Gilbert v. State

1

SHAUN M. GILBERT v. STATE OF MARYLAND

No. 1557-2022

Court of Special Appeals of Maryland

June 14, 2024

UNREPORTED ^[*]

Circuit Court for Cecil County Case No. C-07-CR-22-000197

Arthur, Tang, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION

Tang J. Shaun M. Gilbert, the appellant, was charged with various offenses stemming from allegations that he had sexually abused a minor between May 10 and December 31, 2018, once between May 1 and November 30, 2020, and three times in November 2020. The charged offenses were grouped by time frame as follows:

Count

Time Frame

Offense

May 10 - December 31, 2018

Sexual abuse of a minor

May 1 - November 30, 2020

Sexual abuse of a minor

November 1 - 30, 2020

2nd-degree rape

November 1 - 30, 2020

Attempted 2nd-degree rape

November 1 - 30, 2020

3rd-degree sexual offense

November 1 - 30, 2020

2nd-degree rape

November 1 - 30, 2020

Attempted 2nd-degree rape

November 1 - 30, 2020

3rd-degree sexual offense

November 1 - 30, 2020

2nd-degree rape

November 1 - 30, 2020

Attempted 2nd-degree rape

November 1 - 30, 2020

3rd-degree sexual offense

A jury in the Circuit Court for Cecil County convicted the appellant of all but Counts 6 and 9, and the court sentenced him to an aggregate of 90 years of incarceration. On appeal, the appellant raises two issues, which we have rephrased:^[1]

1. Did the trial court err in denying the appellant's motion in limine seeking to prohibit the members of the group Bikers Against Child Abuse from attending trial while wearing vests displaying the group's insignia?

2. Did the trial court properly sentence the appellant on Counts 10 and 11?

For the following reasons, we shall affirm the circuit court's judgments.

BACKGROUND

A.P who was 13 years old at the time of the trial, testified that the appellant committed acts of sexual abuse against her during 2018 and 2020. A.P. resided in a household with her mother, the appellant, and other family members. The appellant was engaged to A.P.'s mother. A.P. considered the appellant to be her stepfather.

May 10 to December 31, 2018

Before spring 2018, the appellant was away from home. He returned between May and December 2018, when A.P. was about nine years old, and that is when the sexual contact began. When she wanted to be on the phone for a little longer after bedtime, she would ask the appellant for permission to have more screen time. But she "had to do something for him" in exchange. The appellant would "pull down [her] pants and then pull down his pants[.]" As she lay on her stomach, the appellant "would rub his penis in between [her] butt and vagina area." A.P. testified that this would occur the "same way" "maybe three times, every like week or two[.]" Each sexual contact lasted about 10 to 15 minutes.

Later, in 2018, A.P. learned about inappropriate touching at school. Afterward, when the appellant asked if A.P. wanted screen time, A.P. declined, saying she was tired. The sexual contact stopped at that point. But it resumed in 2020 when she was around 11 years old.

May 1 to November 30, 2020

A.P. testified about one incident with the appellant in the summer of 2020. This time, the appellant sat on A.P.'s bed, kissed her goodnight, and placed her on his lap. He then "stuck his hand down [her] pants and started . . . rubbing [her] vagina area." The appellant told her he was preparing her for adulthood as this would happen when she became an adult. A.P. protested, screaming that she had to use the bathroom, to which the appellant responded that she was "just being overdramatic."

November 1 to 30, 2020

A.P. testified about three other incidents in November 2020. One time, the appellant pulled down her pants and underwear, placed A.P. on all fours, and "tr[ied] to stick his penis in [her] butt." The appellant "tried really hard[,]" but A.P. told him that "it hurt too much and that we should stop[.]" The appellant then stopped.

On a second occasion that month, the appellant pulled down A.P.'s pants and underwear and "lick[ed] [her] vagina area" while touching her breasts.

On a third occasion that month, the appellant "tried to stick his penis in [her] butthole[.]" A.P. told him, "[W]e should just stop[,]" and then it was "over."

Other Evidence Adduced at Trial

Detective John Lines of the Cecil County Sheriff's Office was assigned to investigate the case with an investigator at Child Protective Services, who conducted a forensic interview of A.P. Later, the detective interviewed the appellant. When asked about the allegations of his sexual contact with A.P., the appellant said he believed "something did happen to her in the house, but it wasn't him."

The appellant had an adult daughter who was called to testify.^[2] The adult daughter testified that the appellant had touched her vaginal area in 2008 when she was eight years old. The parties stipulated that the appellant was found guilty of sex abuse of a minor related to her.

The defense presented the testimony of certain household family members. They generally stated that they did not know that the appellant had touched A.P. inappropriately.

The appellant testified in his defense and denied ever having any inappropriate contact with A.P. He explained that he took an Alford plea^[3] in the previous case involving the adult daughter because he lacked sufficient money to pay his attorney and believed he was not admitting guilt in doing so.

Jury Instructions, Verdict, and Sentencing

The court instructed the jury about the different offenses grouped by "time frame[.]" The court instructed the jury that the appellant was charged with one count of sexual abuse of a minor "for acts between May 10, 2018 and December 31, 2018" and a second count "for acts between May 1, 2020 and November 30, 2020." To convict the appellant of sexual abuse of a minor, the State had to prove that the appellant sexually abused A.P. by acts or attempted acts, including rape, sodomy, or other sexual offenses or sexual molestation; that at the time of the abuse, A.P. was under the age of 18; and that at the time of the abuse, the appellant was a member of the household.

For the three incidents in November 2020, the State had charged the appellant with second-degree rape, attempted second-degree rape, and third-degree sexual offense for each incident. The court told counsel that it had structured the instructions to avoid reading the same instruction for each offense multiple times. The court instructed the jury that the appellant was charged with three counts of second-degree rape "for the period between November 1, 2020 and November 3[0], 2020." To convict the appellant of second-degree rape, the State had to prove that the appellant had vaginal intercourse, cunnilingus, anal intercourse, or unlawful penetration with A.P.; that A.P. was under 14 years of age at the time; and that the appellant was at least four years older than A.P.

The court instructed the jury that the appellant was charged with three counts of attempted second-degree rape "for acts between November 1, 2020 and November 30, 2020." To convict the appellant of attempted second-degree rape, the State had to prove that the appellant took a substantial step beyond mere preparation toward the commission of second-degree rape and that he intended to commit second-degree rape.

Finally, the court instructed the jury that the appellant was charged with three counts of third-degree sexual offense "for acts between November 1, 2020 to November 30, 2020." To convict the appellant of a third-degree sexual offense, the State had to prove that the appellant engaged in a sexual act with A.P.; that at the time of the act, A.P. was 14, 15, or younger; and that the appellant was at least 21 years old.

The jury found the appellant guilty on all counts except two counts of second-degree rape (Counts 6 and 9). The verdict sheet read as follows:

1.

Sexual Child Abuse - Household/Family (May 10, 2018 - December 31, 2018)

___ Not Guilty

√ Guilty

2.

Sexual Child Abuse - Household/Family (May 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

3.

Rape Second Degree (November 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

4.

Attempted Rape Second Degree (November 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

5.

Third Degree Sex Offense (November 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

6.

Rape Second Degree (November 1, 2020 - November 30, 2020)

Not Guilty ___

√ Guilty

7.

Attempted Second Degree Rape (November 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

8.

Third Degree Sex Offense (November 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

9.

Rape Second Degree (November 1, 2020 - November 30, 2020)

__Not Guilty

___ Guilty

10.

Attempted Second Degree Rape (November 1, 2020 - November 30, 2020)

___ Not Guilty

√ Guilty

11.

Sex Offense Third Degree (November 1, 2020 - November

___ Not Guilty

√ Guilty

The court sentenced the appellant as follows:

Count

                    1
                  

Sentence

25 years of incarceration;

                    2
                  

25 years of incarceration, consecutive to Count 1;

                    3
                  

20 years of incarceration, consecutive to Count 2;

                    4
                  

Merged with Count 3;

                    5
                  

Merged with Count 3;

                    7
                  

20 years of incarceration, suspend all but 10 years, consecutive to Count 3;

                    8
                  

Merged with Count 7;

                    10
                  

20 years of incarceration, suspend all but 10 years, consecutive to Count 7;

                    11
                  

Merged.

Additional facts...