In re M. M.

IN RE: M. M.

No. 437

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 11, 2020

Circuit Court for Carroll County

Case No. C-06-JV-18-000040

UNREPORTED

Kehoe, Leahy, Wells, JJ.

Opinion by Kehoe, 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. M. M., appellant, was found involved by the Circuit Court for Carroll County, sitting as a juvenile court, in an act that, if committed by an adult, would be third-degree sexual offense. He was subsequently placed on probation with various conditions, including registering for outpatient sex offender treatment. M. presents two questions for our review, which we have slightly rephrased for clarity:

I. Did the juvenile court err at adjudication by admitting testimony of the victim's post-incident behavioral changes?

II. Did the juvenile court impose an illegal sentence by requiring M. to register for outpatient sex offender treatment because he denied involvement in the sexual offense?

For the reasons that follow, we shall affirm.

Facts

T. was born in 2009, and her brother, O., was born a year earlier. Since 2011 the children have lived with their paternal grandparents, J. and her husband.¹ To provide some respite, J.'s niece, Tracey, cared for the children at her own home about once a month, often over the weekend.

Tracey and her husband lived on a large piece of property with several of his family members. On the property was a large garage, above which were two, side-by-side apartments. Jerry and her husband lived in one of the apartments, and her husband's brother lived in the other apartment with two of his children, including M. M., who is several years older than T. T., who was nine years old at the time of trial and in the fourth grade, testified that one day while visiting Tracey the year before, she and her brother went to M.'s home to play video games with him. After playing video games in M.'s bedroom, M. suggested they play a "massage game." M. said he would use a timer, and that he and she would alternate rubbing her brother's back for five minutes, and then M. would rub her back for 10 minutes.

T. testified that she rubbed her brother's back in M.'s bedroom while M. waited in the living room, then M. rubbed her brother's back, and then while her brother was in the living room, M. locked the door to his bedroom and rubbed her back. After doing so, M. pulled down her pants and underwear, and engaged in sexual contact with her. She testified that "after he did that he said to never, ever - to not - he said don't ever tell anyone I did this." The timer went off, M. opened the door to his bedroom, and she and her brother left and went back to Tracey's home. Several months later, T.'s teacher gave a lesson about the differences between appropriate and inappropriate touching and the need to report the latter. She then told her grandparents what had happened.

J. testified that T. has gone to the same elementary school and had "always been a straight A student" but that changed in the fall of her third-grade school year. She explained that T. "would keep to herself. She wouldn't eat. She was extremely quiet. And she was angry. Traits we had never see[n] in her before." J. added that T.'s "grades fell. She read all the time and she didn't want to read anymore. . . . And she would cry a lot." When she and her husband asked T. what was wrong, she would not answer.

On April 1, 2018, the children, J. and her husband went to M.'s home for Easter dinner. J. described how T. sat in a chair away from the rest of the family and she cried at one point. Later that evening, T. told her about the sexual assault by M. A few days after that conversation, the authorities were contacted. J. testified that T. also told her about an incident while she and M. were on a 4-wheeler during which M. had "gotten up and kissed her," and that it had upset her.

O., who was ten years old at the time of trial, testified similarly to his sister about the massage game. He testified that he and his sister went to M.'s home to play video games, and at some point M. told them they were going to play a massage game. M. set a timer for five minutes for the massage his sister and M. gave him, but set the timer for ten minutes for the massage M. gave his sister. M. locked the door while giving his sister a massage, during which time O. watched television in the living room.

M. testified in his defense. He denied ever being alone with T. or O., denied ever giving them a massage, and denied ever touching T. inappropriately. Several witnesses for the defense testified that M.'s bedroom door does not lock and, in fact, it does not shut properly but bounces back about two inches when someone tries to close it shut.

One of the theories of defense was to suggest that O. was a "troubled child" who might have instigated his sister to falsely accuse M.² The defense elicited testimony abouta "trampoline incident" that occurred when the children were visiting Tracey several months before the sexual assault. During the incident, M. fractured O.'s leg when he came down on it while doing a flip. The defense elicited that although witnesses to the incident believed it was an accident, O. believed that M. had done it purposefully. Tracey's husband testified that after the incident O. told Tracey that M. had "to pay for what he [had] done [to] his leg." Tracey testified that when O. left the courtroom after testifying, he ran up to his sister, saying, "[W]hoo, whoo, . . . we did it[,]" and touched her on the back and then inappropriately on her buttocks.

We shall provide further facts below to address the arguments raised.

Analysis

1.

Appellant argues on appeal that the juvenile court erred in allowing J. to testify about T.'s behavioral changes following the sexual assault. Appellant argues that the evidence was irrelevant because only an expert could testify that a change in behavior related to a traumatic event, and the evidence was unduly prejudicial. We are not persuaded that the juvenile court erred.

When the State asked J. how T. did in school, she testified that T. "has always been a straight A student. Third grade things changed." Defense counsel objected, arguing: "I am not sure what the basis is for how we are getting to the changing, how we are moving forward with this. I am just not sure of the relevance of all this. And a - you are talkingabout her school. I am not sure how we moved into that." The State responded that the testimony was "highly relevant" and the following colloquy occurred:

[DEFENSE COUNSEL]: Well, I guess, Your Honor, are we going to bring in an expert witness to make some conclusions or are we going to make sure that it is just observations and not something that is going to now be lead into [a] conclusive area [of] evidence without an expert being qualified to say that some of these things may or may not be indicative. They could just be regular behaviors of children.

And so I am just not sure exactly where this is going. But again, I['m] just kind of trying to figure out what the relevance is. My client is charged with sex offenses in - at - her - at a residence. And I am not sure how her schooling - and I have not - and I do not know if I have even heard where the school is. I am not sure if - Madam State even said that, so.

With that, Your Honor, I would ask the [c]ourt to sort of not allow the State much leeway in sort of moving forward with this. I think it is probably more prejudicial than probative.

THE COURT: I will overrule the objection. Changes in a child's conduct can be caused by myriads of reasons. But the [c]ourt has to look at everything in its totality before making a decision. That this is a small piece, but a piece nonetheless. So, I will overrule.

The State then asked J. about changes she noticed in T.'s behavior, and she testified that in the second quarter of third grade, T. "became extremely depressed." Defense counsel objected, and the court asked the witness, "just tell us what you observed. Try not to make - conclusions." The State again asked her what she observed, and she testified that T. "was depressed." Defense counsel objected, and the State said it could rephrase the question, emphasizing to J. that the question was what she observed about T.'s demeanor. J. testified that T. kept "to herself. She wouldn't eat. She was extremely quiet. And she was angry.

Traits we had never seen in her before." She added: "Her grades fell. She read all the time and she didn't want to read anymore."

Appellant argues on appeal that the testimony about T.'s behavioral changes following the sexual assault was admitted in error because "there was absolutely no foundational showing that behavioral changes are in any way related to a traumatic event, such that such changes increase the likelihood of sexual victimization." Appellant cites to a case from Ohio that he argues holds that in a trial alleging sexual assault, testimony about a victim's changed behavior may be admitted only through an expert. See In Re T.W., 112 N.E.3d 527, 535 (Ohio App. 2018).

Two Maryland Rules govern opinion testimony. Md. Rule 5-701, titled "Opinion Testimony by Lay Witnesses," provides:

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

Md. Rule 5-702, titled, "Testimony by Experts," provides:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court

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