Gross v. State

DANIEL JAY GROSS v. STATE OF MARYLAND

No. 1413

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

May 13, 2021

Circuit Court for Montgomery County

Case No. 128021C

UNREPORTED

Nazarian, Wells, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Daniel Gross was convicted in the Circuit Court for Montgomery County of sexual offenses—one count of sexual abuse of a minor and two counts of second-degree sexual offense—he committed against his adopted daughter. On appeal, he argues that the circuit court erred in admitting statements the victim made to a social worker, a physician, and her mother; in refusing to ask certain voir dire questions; in imposing a mandatory minimum sentence for each of the second-degree sexual offense counts; and in denying his motion to suppress evidence seized pursuant to a search warrant. The State agrees, and so do we, that the court erred in imposing the minimum sentences, so we vacate Mr. Gross's sentences and remand for resentencing. Otherwise, we affirm.

I. BACKGROUND

The victim in this case, A.M., was born in 2007 to J.M. ("Mother"). As a result of some "mental difficulties," Mother lived at home with her mother, C.M. ("Grandmother"). Shortly after A's birth, Grandmother, who was A's primary caregiver, experienced "personal difficulties" of her own, and A was placed in foster care. When A was approximately two years old, Mother's parental rights were terminated and A was adopted by Mr. Gross and his wife. Even so, A continued to visit with Mother and Grandmother.

At trial, A testified that, around the time that she was in kindergarten, Mr. Gross asked her to "put [her] mouth on his man part" and "suck it." According to A, when she went to bed at night, Mr. Gross would come into her bedroom to say goodnight and pray with her. When they were done praying, Mr. Gross would "unzip his pants" and ask her to "suck his man part," which she did. A testified that "white goo" would come out of Mr. Gross's "man part" and that he would ask her to "rub it." Afterward, A would berewarded with permission to play with her toys or stay up late. She testified that these encounters occurred "throughout kindergarten."

At some point when she was in first grade, A told her adoptive mother, Ms. G., that Mr. Gross had made her "suck his man part." When Ms. G. confronted Mr. Gross with the allegation, he denied it. After that, A did not spend any more time alone with Mr. Gross.

In June 2015, after she reported the abuse to Ms. G., A was visiting her Grandmother and Mother at their home when she reported the abuse to them. During that same visit, Mother recorded a video, which was shown to the jury, of A telling Grandmother that Mr. Gross made her "suck his private part" and that he did it "a lot of times." A few days later, Grandmother took A to the Montgomery County Police Department to be interviewed.

Britney Colandreo, a social worker with the Montgomery County Child Welfare Services, testified that in June 2015, she was contacted by the Montgomery County Police and asked to participate in an investigation of the allegations against Mr. Gross. That same evening, Ms. Colandreo conducted a recorded interview with A. During that interview, which also was shown to the jury, A told Ms. Colandreo that Mr. Gross would come into her room at night, pull "it" out of his pants, and make her "suck it."

Dr. Evelyn Shukat, a child abuse pediatrician and the medical director of The Tree House Child Advocacy Center of Montgomery County, testified that in July 2015, she met with A to conduct a "foster screening examination." During that examination, A informed Dr. Skukat that "she and her father make deals" that "if she sucks her father's nuts she'll be able to stay up," and that "gooey stuff" came "out of his nuts." She also stated that theabuse began when she was in kindergarten and that she told her adopted mother about the abuse during the winter of first grade.

The police later filed for and obtained a warrant to search Mr. Gross's home. As they executed it, the police discovered a section of the carpet near A's bed that was stained with what they thought might be bodily fluids. That section of the carpet was later analyzed and found to contain seminal fluid and spermatozoa. DNA samples from the seminal fluid and sperm were also analyzed, and a single DNA profile was compiled and compared to Mr. Gross's DNA profile. As a result of that analysis, the police determined that the DNA from the carpet had come from a single individual and was consistent with Mr. Gross's DNA profile.

Mr. Gross was convicted of one count of sexual abuse of a minor and two counts of second-degree sexual offense. For each of the two convictions of second-degree sexual offense, Mr. Gross was sentenced to a concurrent term of seventeen years' imprisonment, with a mandatory minimum sentence of fifteen years' imprisonment. For the conviction of sexual abuse of a minor, Mr. Gross was sentenced to a consecutive term of ten years' imprisonment, with all but five years suspended.

Mr. Gross noted a timely appeal. We supply additional facts as necessary below.

II. DISCUSSION

Mr. Gross raises several issues on appeal that we have rephrased.¹ He contends firstthat the trial court erred in admitting A's out-of-court statements to Ms. Colandreo, the social worker, and Dr. Shukat, the medical director of The Tree House. Second, he contends that the trial court erred in admitting the video made by Mother and Grandmother recording A reporting the abuse to them. Third, he contends that the trial court erred in refusing to ask certain voir dire questions. Fourth, he contends that the sentencing court erred in imposing a mandatory minimum sentence of fifteen years' imprisonment for each of his convictions of second-degree sexual offense. And fifth, he contends that the circuit court erred in denying his motion to suppress the DNA evidence officers obtained during the search of his house. For reasons to follow, we vacate Mr. Gross's sentences and remand for resentencing, but affirm in all other respects.

A. The Trial Court Did Not Err In Admitting A's Statements To Ms. Colandreo And Dr. Shukat.

Before trial, the State filed a notice of its intent to introduce A's out-of-court statements to Ms. Colandreo and Dr. Shukat. See Maryland Code (2001, 2018 Repl. Vol.) § 11-304 of the Criminal Procedure Article ("CP"). Under that statute, the court was permitted to admit out-of-court statements as evidence if the statements were made to a physician or social worker in the course of the person's profession and if the statements had particularized guarantees of trustworthiness. Id. After a contested hearing at which both Ms. Colandreo and Dr. Shukat testified, the circuit court found that the statements hadbeen made to Ms. Colandreo, a social worker, and Dr. Shukat, a physician, in the course of their respective professional duties. The court also found that the statements had particularized guarantees of trustworthiness.

Sometime later, the State provided the defense with several additional video recordings of statements by A that Mother and Grandmother had recorded before A had been interviewed by Ms. Colandreo and Dr. Shukat. Those videos included the recording Mother made in June 2015 of A telling Grandmother that Mr. Gross made her "suck his private part."² These prompted a new motion challenging the admissibility of A's out-of-court statements to Ms. Colandreo and Dr. Shukat. Mr. Gross claimed, among other things, that these videos were "prima facie evidence" that A's statements to Ms. Colandreo and Dr. Shukat were "not spontaneous, but rather the product of family coaching" and therefore lacked the requisite particularized guarantees of trustworthiness.

At the hearing that followed, Ms. Colandreo testified that she was a social worker with the Montgomery County Child Welfare Services and that, as part of her duties, she interviewed children, including A, who made allegations of abuse. She testified that, when she interviewed A, she was not aware that any videos existed.

Dr. Shukat testified that she was a child abuse pediatrician and the medical director of The Tree House, a nonprofit, child advocacy center, and that sometimes she worked with child protective services, local doctors, and law enforcement. She stated that inJuly 2015, she had a "medical appointment" with A to get "a full and accurate medical history, history of any trauma that may have occurred to [the] child, and examine the child." She testified that when she examined A, she was not aware that any videos existed.

Dr. Leigh Hagan, a clinical and forensic psychologist, testified for the defense. He opined that the videos Mother and Grandmother recorded were part of Grandmother's efforts to regain custody of A. He claimed that the February video was "nice and gentle" and did not mention any abuse by Mr. Gross, but that the March videos showed an "escalation" of Mother and Grandmother's efforts to get A to say "bad things" about the Grosses. Dr. Hagan contrasted the videos from February and March with the June video, in which A was "tremendously upset." He posited that A appeared upset in the June video not because of the allegations of abuse, but because of Grandmother's "relentless proselytizing and twisting of the child's words." Dr. Hagan added that the June video showed Grandmother's "agenda" and provided a motive for A to fabricate the abuse allegations. He concluded that the statements A made to Ms. Colandreo and Dr. Shukat following the June 2015 video lacked sufficient guarantees of trustworthiness.

The court ruled that A's statements to Ms. Colandreo and Dr. Shukat had particularized guarantees of trustworthiness....