Hicks v. State

JOHN PRENTICE HICKS v. STATE OF MARYLAND

No. 629

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

September 6, 2019

Circuit Court for Montgomery County

Case No.: 129654C

UNREPORTED

Meredith, Shaw Geter, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, 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.

Appellant, John Prentice Hicks, was convicted by a jury, sitting in the Circuit Court for Montgomery County, of first-degree rape, first degree sexual offense and second-degree assault. After appellant was sentenced to two consecutive life sentences, he timely appealed, and presents the following questions for our review:

1. Was it error to refuse to give a jury instruction on jurisdiction?

2. Should the court have suppressed the evidence seized from Appellant's bedroom?

3. Was the evidence sufficient to prove the charges beyond a reasonable doubt?

For the following reasons, we shall affirm.

BACKGROUND

At around 9:00 a.m. on April 12, 2016, G.W. boarded a Red Line metro train at the Medical Center stop, located in Bethesda. She was heading to her home located near the Glenmont station from her overnight job as a private certified nursing assistant.¹ After boarding the train, G.W. found a seat in the middle of the train and fell asleep for a short while. She woke at around 9:44 a.m. at the Fort Totten station, located in the District of Columbia, and saw appellant standing in front of her.²

Appellant asked her several questions, including whether she was going to Glenmont and whether she had a boyfriend, but G.W. tried to ignore him. Appellant then pulled out a knife and grabbed her from her seat. As he was dragging her to the end of the Metro car, G.W. was cut by the knife as she tried to push it away from her.

Appellant dragged G.W. to a seat past a divider located at the end of the car. There, the lower half of her body was concealed by the divider, and her upper half was obscured behind tinted glass. As appellant continued to hold the knife at G.W.'s right side, he turned her around and told her to pull down her pants. Appellant pushed her head down and then G.W. felt appellant's penis "at the opening" of her vagina, "trying to get through[.]" G.W. testified that "I felt like something's going inside of my private area," meaning, her vagina, and that it was "almost penetrating" but not successful.

Appellant then turned G.W. back around and said "suck it[.]" G.W., who was pleading for appellant to stop, asked him to put the knife away, but appellant refused. At this point, G.W. was sitting down, bleeding from a cut on her hand, and appellant was standing over her, demanding fellatio and telling her "just do what I tell you to do and then I won't hurt you." Appellant then placed his penis inside G.W.'s mouth. After appellant ejaculated, G.W. spit the semen out into a tissue from her sling bag, and then threw the tissue to the floor of the Metro car. She then pulled her pants back up as appellant gaveher a tissue to clean her hands. Appellant exited the Metro car when the train arrived at the final stop at the Glenmont station. G.W. got off the train and sat down on a bench. Metro employees came over to her and provided assistance.

After G.W. reported that she had been sexually assaulted on the train to the Metro employees, the transit police were called to the scene. G.W. spoke to Officer Erin Cooper, of the Metro Transit Police Department, and provided a description of her assailant.³ Officer Cooper then transported G.W. to Shady Grove Hospital for a sexual assault examination. G.W. told a nurse about the sexual assault, and a forensic examination of her genital area revealed a fissure located between her fossa navicularis and posterior fourchette.

At the hospital, G.W. also provided a description of her assailant to Metro Transit Detective Colin Dorrity. She was subsequently presented with photographs of several possible suspects and G.W. identified appellant as the man who sexually assaulted her. G.W. testified at trial that she was "100 percent" certain that appellant was that man, testifying that "I can recognize his eyes. I can recognize his face."

Other evidence was admitted for the purpose of identification. First, although the train car that was involved in the incident was an older train and did not have any surveillance cameras on board, surveillance cameras that were mounted at the Glenmont station captured an image of a man, matching the description given by the victim, exit thetrain at around the time of the incident. That man eventually went up the stairs and exited the station by using a SmarTrip card, i.e., a permanent, rechargeable card used to pay Metrorail, at the gate. Based on the foregoing information, Metro investigators determined that a SmarTrip card used at the same time and location at the Glenmont station was registered to appellant.

After the train car involved in the incident was located and taken out of service, investigators found a tissue, a bloody bandage and blood in the area described by the victim. Mixtures of blood and semen were found on the tissue recovered from the crime scene. DNA testing was performed, and appellant could not be excluded as a source of blood, sperm, and epithelial cells found on the tissue. Appellant was also a possible contributor of sperm cells recovered from an oral swab taken from G.W.

Finally, and as will be discussed in more detail in the second question presented, police went to appellant's residence to execute an arrest warrant. Upon discovering certain items potentially related to the investigation in plain view, the police obtained a search warrant and then seized these, and other, items that were ultimately admitted into evidence at trial. The items included a black jacket, a pair of blue jeans, a knife, a pair of gray sneakers, a Samsung Galaxy cell phone, a D.C. identification in appellant's name, a Metro SmarTrip card, a Metro fare card, two condoms, a tank top shirt with a red stain, gray underwear with a red stain, and three watches.

We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant asserts that the trial court erred in not giving his requested instruction on territorial jurisdiction because there was some evidence that the sexual offenses occurred in the District of Columbia. The State disagrees, contending that the issue was not generated by the evidence admitted at trial.

Prior to instructions, the court first made its thoughts known on this issue when it addressed appellant's motion for judgment of acquittal on the rape and sexual assault charges.⁴ The court denied the motion for judgment of acquittal, stating, in part as follows:

. . . She woke up just as the conductor was saying Fort Totten or the speaker was saying Fort Totten approaching.

And it was at that time she observed that the defendant was on -- who she has identified in this trial and through a photo array -- was the only other person on the train with her. It was at that point or shortly after that he started a conversation with her about whether or not she had a boyfriend and something to the effect with her accent it was somewhat difficult for me to hear because she was looking at the jury but did she want to be his girlfriend or something to that effect and she just tried to ignore that and started looking at her cell phone.

It was at that time the defendant then came to her, grabbed her, displayed the knife, dragged her to -- I'm going to call it the back of the car where we have heard about the partition and how each car is equipped for that car to become for the conductor.

And it was at that area that he began forcing himself on her. She testified that as Ms. Fenton just said my notes reflect the same testimony that she did look and see the Silver Spring sign and that was at the time that he was forcing her over the seat in that back area on the metro and saw the sign for Silver Spring. The testimony has been in this trial that Silver Spring which I believe I could also take judicial notice of is in Montgomery County,Maryland but that's the testimony on the record and she testified that that's where that part of this event was taking place.

The testimony collectively from other witnesses indicates through the metro transit authority and whoever else has testified using their data they have used that the time it takes the train to go between Takoma Park and Silver Spring is 2 minutes and 55 seconds. And that the platform at Takoma Park is in the District of Columbia but once the train start to leave the station again is immediately in Takoma Park. She testified -- I believe there is testimony in this case and this evidence is being considered at this point as the standard in the light most favorable to the moving party who is the State of Maryland.

Under that analysis certainly the court, as I said, understands Silver Spring to be part of Montgomery County. That has not changed and the complaining witness has testified that it was at that point of this ordeal that the defendant was endeavoring to insert his penis. She testified with regard -- so on that basis counts 1 and 2 the motion for judgment of acquittal on jurisdictional grounds is denied.

After this motion was denied, defense counsel then argued for inclusion of the pattern instruction on territorial jurisdiction as to Counts 1 and 2, namely, first degree rape and sexual offense in the first degree, on the grounds that the victim indicated that this "happened immediately and this started at Fort Totten." That instruction provides:

You have heard evidence that the crime of (offense) was not committed in the State of Maryland. While not all of the elements of the crime of (offense) must occur in Maryland, in order to convict the defendant,

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