Howard v. State

ANDRE MARQUIS HOWARD v. STATE OF MARYLAND

No. 1062

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

April 18, 2019

Circuit Court for Montgomery County

Case No.: 130232

UNREPORTED

Leahy, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Salmon. 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, Andre Marquis Howard, was indicted in the Circuit Court for Montgomery County, Maryland, and charged with second degree rape. Following a jury trial, appellant was convicted of second degree rape and sentenced to twenty (20) years' incarceration, with all but seven (7) years suspended. Appellant timely appealed and presents the following questions for our review:

1. Did the trial judge abuse her discretion by allowing into evidence State's Exhibit #5, medical records?

2. Did the trial judge err or abuse her discretion by admitting hearsay during the testimony of Officer Stefanie Hesse?

3. Is the evidence legally insufficient to sustain Mr. Howard's conviction of rape in the second degree?

For the following reasons, we shall affirm.

BACKGROUND

During most of 2015 and part of 2016, Ms. W. lived in the upstairs bedroom of a Germantown, Maryland townhome shared with her friend, Allison Howard, and Allison Howard's husband, the appellant.¹ The Howards occupied the basement level. On Thursday, March 10, 2016, the night before her 25^th birthday, Ms. W. and the Howards began drinking after work in their shared living room. Ms. W. drank several glasses of wine, and, all three individuals enjoyed shots of a rum-flavored juice drink, called "jungle juice." After several hours, Ms. W. passed out on the living room couch, wearing pants and underwear, as well as a blue blouse and a thin camisole undershirt.

Ms. W. testified that the next thing she remembered was waking up in her bed, in pain, with the appellant's penis in her vagina. Ms. W. was confused and disoriented when she looked up to see appellant straddling her. She was wearing nothing but her undershirt. After then saying appellant's name "like a question," the appellant turned her over and penetrated her vagina again while she lay on her stomach. According to Ms. W.'s testimony, she then passed out again.

Ms. W. remembered waking the next morning and heard the appellant calling her name from downstairs to tell her she was late for her work. Although she remained confused about the preceding events, Ms. W. got dressed and went to her teaching job at a nearby school.

When she arrived late, Ms. W. was greeted by her director. The director looked at her and asked her "what's wrong[?]" Ms. W. asked her if she could use her office for a minute. When her director agreed, Ms. W. went into the office alone and started to cry. The director then came into the office where Ms. W. confided to her that the appellant raped her the prior evening.

After a brief conversation, the director left the office, and Ms. W. called Allison Howard and told her that her husband, the appellant, raped her. Mrs. Howard "cried and said I'm sorry." Ms. W. then went to her classroom, where she encountered another teacher. After also informing this person that she had been raped, Ms. W. gathered her belongings and left the school for the day.

Next, Ms. W. called her mother, with the intent of telling her about the rape. But when her mother told her she was no longer included on her health insurance policy, Ms. W. decided not to tell her about the rape, and decided not to go to the hospital because she could not afford it.

Ms. W. then went back home to the Germantown townhome. Her sister, Molly, arrived soon thereafter from Delaware, with plans to stay overnight for a previously planned birthday party the next day. After she told her sister about the rape, they stayed in her bedroom, with the door locked.²

The next morning, a Saturday, Ms. W. contacted the Victim's Assistance Sexual Assault Program, and then went to Shady Grove Adventist Hospital, where she was examined over the course of several hours by a sexual assault nurse. Ms. W. told the nurse details about the incident, and also brought along her underwear and a bed sheet. She testified that she had not shared any details about the incident with anyone prior to this.

Several hours later, Ms. W. and her sister returned to the townhome for her birthday party. Testifying that she did not want to disinvite her friends and then have to give them an explanation, Ms. W. went ahead with the party. She agreed that appellant was in attendance. Ms. W. testified that she did not discuss the incident with appellant because she feared some sort of retaliation, either from him or his friends.

After spending the next day, Sunday, in her bedroom, Ms. W. went to work Monday morning. During a break, she left and met Allison Howard at the courthouse. Without testifying what occurred at the courthouse, Ms. W. agreed that the appellant moved out of the townhome that same day. Ms. W. moved out two to three months later.

Ms. W. explained that she remained in the townhome because she believed she was required to honor her lease, which did not expire until March of 2017. Nevertheless, after she got a peace order against appellant, and explained the circumstances to her landlord, the landlord allowed her to terminate the lease and move out in June 2016. According to Ms. W., it was at that point that she filed a report of the rape with the police.

Ms. W. testified that, from the time appellant moved out in March until she reported the rape to the police, the appellant was in contact with her via text messages.³ Ms. W. remembered appellant just saying "he was sorry for what happened." She further testified that appellant contacted her on several more occasions, but she did not find the exchanges "helpful" and that she informed him that "[t]here is nothing that you can say to me. I'm not pursuing a friendship."

On cross-examination, Ms. W. agreed that, in addition to drinking wine and "jungle juice" on the night in question, she also smoked marijuana. She testified that she did not remember if she removed her clothing before she fell asleep on the couch. She also did not remember how she got to her bedroom, and agreed that she had never testified that appellant carried her.

Ms. W. also agreed that, although she told Allison Howard and several others about the rape on the morning following the occurrence, she did not call the police until approximately two to three months later, in late May or early June. Defense counsel emphasized in his cross-examination that Ms. W. did not call the police when she went to work; she did not call them when she stayed in the townhome Friday night; and, she went to the hospital Saturday morning for several hours before returning to the townhome for her birthday party and did not call the police.

Ms. W. was then asked, on further cross-examination, about her report to the police, and testified as follows:

Q. And didn't you inform the police that you now wanted to go forward on May 25^th?

A. I don't remember if that is the date I reported it. I thought it was in June. But at the time of reporting, I told them I did not want to move forward until I moved.

Q. Well, didn't you tell them you didn't want to go forward to Detective Hesse at this time?

A. In speaking with Hesse?

Q. Yeah.

A. Yes. I did say I did not want to go forward at that time.

Q. Are you telling me you told Detective Hesse you didn't want to go forward and actually told her that you didn't want to go forward because you didn't want - you had nowhere to move?

A. I believe at the time yes. I didn't have anywhere that I was moving to.

Q. Did you tell Detective Hesse about not wanting to go forward until you had a place to move?

A. Yes.

During cross-examination, Ms. W. was again asked about her memory about coming upstairs and agreed she did not remember what happened between falling asleep on the couch and waking up. Defense counsel then asked "You can't remember whether you said yes or no. Can you?" to which Ms. W. replied "I don't remember any conversation."

Asked about the exchange of text messages between herself and appellant, Ms. W. denied threatening appellant in those exchanges, but acknowledged that she was "near or around him" prior to vacating the townhouse. In fact, Ms. W. acknowledged that appellant moved into the townhome next door and that she saw him at a party after the incident, and also while the two were walking their dogs in the neighborhood.

On redirect examination, Ms. W. addressed the peace order she obtained against appellant, testifying that it was never served. Asked why she got a peace order, Ms. W. testified that "I think I distinctly remember saying I am afraid and want a protective order because I'm going to move forward with this and I wanted that in place first." She agreed, however, that appellant never "attacked" her during this time frame.

Sid Sutsakhan testified that he was the forensic nurse that examined Ms. W. at Shady Grove Adventist Hospital on March 12, 2016 at around 11:00 a.m. Sutsakhan explained that, when he met her, he gave her three options:

Option one consists of just undergoing medical treatment. Option two is where the patient wants medical treatment and then wants the evidence collected as a Jane Doe. And then option three is where the patient getsmedical treatment and then the evidence is collected as what we call standard reporting where the police and investigation is involved.

Ms. W. chose option two. Sutsakhan wrote down her medical history in what was identified at trial as State's Exhibit #5. He testified that Ms. W. told him that "she was having drinks earlier that evening. She does not recall going to the bedroom. But then she woke up to the feeling that someone is penetrating her and somebody was on...