In re Laizel J., 0244

IN RE: LAIZEL J.

No. 0244

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

April 8, 2016

UNREPORTED

Krauser, C.J., Berger, Reed, JJ.

Opinion by Reed, 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.

The Circuit Court for Prince George's County, sitting as the juvenile court, found Laizel J., appellant, "involved"¹ in committing the delinquent acts² of second-degree sex offense, fourth-degree sex offense, and second-degree assault. Appellant was placed on supervised probation. In this appeal, appellant presents the following question for our review:

Is the evidence insufficient to support a finding that Appellant committed the delinquent act of second-degree sex offense?

Finding the evidence sufficient, we affirm.

BACKGROUND

In August of 2014, appellant was in the basement of a relative's house with his cousin ("J.J."), who was six years old at the time.³ J.J. was sitting on a couch watching television, while appellant was sitting on a different couch "either on his phone or playing the [sic] video game." At some point, appellant approached the couch J.J. was on and asked her to pull her pants down, but J.J. refused. Despite J.J.'s remonstrations, appellant removed J.J.'s pants and underwear for her, then removed his own clothes and "got overtop" of J.J., who was lying on her back. Appellant proceeded to—in J.J.'s words—"touch" J.J.'s "butt" and "vagina" with "his penis."⁴ Appellant then turned J.J. around "towards the couch" and again "touched" her "butt" with his penis. At trial, J.J. indicated that appellant's penis felt "hard" and, importantly, that it "hurt" when appellant's penis "touched" specifically her "butt."

At some point following the incident, J.J.'s mother, based on a conversation with J.J.'s babysitter, "suspected that something was going on," so she spoke with J.J. and asked if appellant had ever "pulled his pants down" in front of her or touched her "in a way that he wasn't supposed to[.]" J.J. answered "yes" to both questions. That same day, after confronting appellant and his mother, J.J.'s mother reported the incident to the police.

A few days later, Prince George's County Police Detectives Travis Kelly and Patrick Devaney met with J.J. regarding the incident. During the interview, Detective Kelly showed J.J. two anatomical drawings, one male and one female, on which J.J. was asked to identify various parts of the human anatomy. Detective Kelly proceeded to circle various body parts on both drawings and ask J.J. to name the body part. When Detective Kelly circled the male and female genitalia, J.J. identified these parts as the "wee-wee" and "private part," respectively. When Detective Kelly circled each picture's "butt," more specifically the gluteal cleft and anus, J.J. identified these as the "butt." Detective Kelly was not, however, permitted to testify as to what J.J. told him regarding the incident.

On October 28, 2014, a delinquency petition was filed in the circuit court, charging appellant with second-degree sex offense, third-degree sex offense, fourth-degree sex offense, and second-degree assault. Appellant's adjudicatory hearing⁵ lasted roughly three days, between January 6, 7, and 8, 2015. After the State rested, appellant moved for a judgment of acquittal, solely regarding the second- and third-degree sexual offenses. As to the third-degree sex offense, the juvenile court granted appellant's motion for judgment of acquittal, finding that the State failed to demonstrate any of the four disjunctive modalities required in the statute, and that the State did not charge appellant under the statute's separate age difference subsection.⁶

With respect to the second-degree sex assault count, appellant argued that while J.J. testified that appellant had "touched" her "butt," there was no evidence of actual penetration. The court denied the motion, noting that the offense required only "the slightest amount" of penetration. After appellant neither testified nor called any witnesses, the juvenile court ultimately found appellant involved in the delinquent act of second-degree sex offense, and the two remaining lesser charges:

And so [J.J.] says that at some point, as the State said, [appellant's] penis touched her anus. Did it go slightly in or not and I think as I said the critical things for me is that what she said when [appellant] touched her anus at that point [he was] hard. And that's why it hurt. And to me, that's why it was slight penetration. It wasn't just hard and [appellant] touched her. She said it hurt. What 7-year-old is going to make that up? No 7-year-old is going to know anything about that. That's what happened. So therefore . . . I find [appellant] involved as to second[-]degree sex offense, fourth[-]degree sex offense, and second[-]degree assault.

At appellant's disposition hearing,⁷ on March 13, 2015, the juvenile court, after considering multiple pre-sentence investigatory reports, placed appellant on supervised probation. This appeal followed.

DISCUSSION

A. Parties' Contentions

Appellant argues that the evidence adduced at trial was insufficient to support the juvenile court's finding of involved as to second-degree sexual offense.⁸ Appellant contends that J.J.'s testimony was too ambiguous to support the juvenile court's conclusion that appellant penetrated J.J.'s anus with his penis—that being a required element of second-degree sexual offense. Appellant also avers that, although the juvenile court inferred from J.J.'s testimony that penetration had occurred, the testimony supported at least one additional non-inculpatory inference. As a result, the juvenile court's decision to choose one inference over the other was mere "speculation" requiring reversal.

The State counters that, while J.J. did refer to her "butt," as opposed to her "anus," "medically accurate testimony is not required, particularly from child witnesses," and thus, J.J.'s testimony "provided a reasonable basis from which the court could infer that at least slight penetration had occurred." The State further argues that any competing rational inferences drawn from the evidence should be resolved in favor of the fact-finder—here, the juvenile court. We agree with the State.

B. Standard of Review

In a recent delinquency appeal (with a substantially similar posture), we explained:

When faced with a challenge to the sufficiency of the evidence, Maryland courts have applied the test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Smith v. State, 415 Md. 174, 184,999 A.2d 986 (2010). We must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781. Accord, Allen v. State, 402 Md. 59, 71, 935 A.2d 421 (2007). This inquiry is one of law, so that our review of this legal determination is plenary. See Hudson v. State, 152 Md. App. 488, 523, 832 A.2d 834, cert. denied, 378 Md. 618, 837 A.2d 928 (2003).

"This same standard of review applies in juvenile delinquency cases. In such cases, the delinquent act, like the criminal act, must be proven beyond a reasonable doubt." In re Timothy F., 343 Md. 371, 380, 681 A.2d 501 (1996) (citation omitted). Cf. Branch v. State, 305 Md. 177, 182, 502 A.2d 496 (1986) (criteria for review of sufficiency same whether verdict rendered by jury or court). "Absent clear error, an appellate court will not set aside the judgment of the trial court." Matter of Tyrek S., 118 Md. App. 270, 273, 702 A.2d 466 (1997), aff'd on other grounds, 351 Md. 698, 720 A.2d 306 (1998).

In re James R., 220 Md. App. 132, 137-38 (2014) (affirming sufficiency of the evidence in juvenile court's finding of delinquency after 14-year-old's second-degree rape of his 13-year-old acquaintance).

C. Analysis

Under the Maryland Code, a sexual offense in the second degree occurs when an individual engages in a sexual act with another by force or threat of force without the other's consent. CL §3-306(a)(1). The term "sexual act" encompasses "anal intercourse, including penetration, however slight, of the anus[.]" CL § 3-301(e)(1)(iv). While our caselaw mainly provides instruction regarding what, exactly, constitutes vaginal penetration, any lack of instruction is of no moment to this case. For our purposes, "[t]here is no distinction with respect to the legal sufficiency of the evidence of penetration in the sexual offense case involving . . . anal intercourse." Wilson v. State, 132 Md. App. 510, 522-23 (2000).

Admittedly, our analysis is all the more difficult in the present case, as the victim was just seven years old when she testified. See Wilson, 132 Md. App. at 518 ("Especially in rape cases involving very young victims, the evidence of penetration is frequently very problematic."). Nevertheless, proof of penetration does not require any particular evidence or set of facts to be sufficient; "[t]he proof may be supplied by medical evidence, by the testimony of the victim, or by a combination of both." Kackley v. State, 63 Md. App. 532, 537 (1985) (internal citations omitted). In light of such evidence, proof of penetration has been established when "the totality of the circumstances support a reasonable inference that penetration occurred during the course of a sexual assault[.]" Simms v. State, 52 Md. App. 448, 454 (1982). Moreover, when the only evidence of penetration stems from the testimony of the victim, proof of penetration may be established even when the testimony lacks particular detail:

While much has been written concerning the type of evidence necessary to prove penetration, it is clear that the victim need not go into sordid detail to effectively establish that

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