Lugo-Defuentes v. State

ALDERCY LUGO-DEFUENTES v. STATE OF MARYLAND

No. 1925

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

March 13, 2020

Circuit Court for Montgomery County

Case No. 128117C

UNREPORTED

Graeff, Leahy, Beachley, JJ.

Opinion by Graeff, 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.

On August 28, 2017, a jury sitting in the Circuit Court for Montgomery County convicted Aldercy Lugo-Defuentes, appellant, of four counts of second-degree child abuse. The court sentenced appellant to four, consecutive, ten-year terms of imprisonment, which resulted in an aggregate sentence of 40 years.

On appeal, appellant presents five questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court err when it responded to a jury note by instructing the jury that the defense has the same ability as the State to call witnesses?

2. Did the circuit err in permitting the State to engage in several instances of impermissible closing argument?

3. Did the circuit court err in preventing the defense from engaging in permissible closing argument?

4. Did the circuit court err in denying appellant's request for particulars and in denying a related motion to dismiss on grounds of multiplicity?

5. Did the circuit court err in ordering separate sentences for each conviction of second-degree child abuse?

For reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2015, appellant married "J.I." Around that time, J.I. and his young daughter, D.B., began living with appellant, who cared for the child while J.I. was at work.

On August 26, 2015, a paramedic responded to appellant's residence after receiving a report of a young female who was unresponsive. Appellant advised that D.B., who at the time was four years old, had been injured in a fall. The paramedic examined D.B., who was very tired and had a bruise on the back of her head and a scrape on her forehead. D.B.was transported to the hospital where an examination revealed that D.B. had suffered several injuries, including: rib fractures in various stages of healing; a grade four liver laceration, which caused blood to form in the abdomen; healing fractures in the pelvic area; at least one healing fracture of the lower back; swelling of the scalp; bruising along the ears; and significant bruising on the back and neck.

D.B.'s injuries were reported to the local authorities, and an investigation ensued. Initially, appellant told investigators that D.B.'s injuries were caused by various falls and accidents. In a follow-up interview, however, appellant admitted that she was "the one that hurt" D.B., and she had "started hitting" D.B. in or around July of 2015. Appellant also admitted that she had: (1) hit D.B. in her face and on the side of her head; (2) slapped D.B; (3) hit D.B. with a belt and a shoe; (4) pushed D.B. "hard" into a wall and into an elliptical machine, causing a back injury; and (5) had "squeezed" D.B. Investigators also interviewed D.B., who informed them that appellant had hit her with a belt and had "squished" and "squeezed" her stomach. Appellant subsequently was arrested.

Trial Testimony and Evidence

At trial, Dr. Eglal Shalaby-Rama, an expert in pediatric radiology, testified that she reviewed D.B.'s medical records and determined that D.B. had suffered 18 rib fractures, each of which was caused by a "crush-type injury" indicative of non-accidental trauma. Some of the rib fractures were in the acute stage and some were in the healing stage, which suggested that there were two incidents of injury to the ribs.¹ When asked whether all ofD.B.'s rib fractures could have been inflicted during the same event, Dr. Shalaby-Rama responded, "No." Dr. Shalaby-Rama testified that D.B. also had a "grade four liver laceration," which was caused by "severe direct trauma to the abdomen."²

Dr. Tanya Hinds, an expert in pediatrics with a specialty in child abuse, testified that she examined D.B. at the hospital on August 26, 2015. During that examination, she observed that, in addition to various abdominal injuries, D.B. was missing hair from her right scalp and had bruises "too numerous to count," on her right cheek, in front of her right ear, on her back, and on the back of her neck. Dr. Hinds concluded that D.B.'s injuries were "consistent with non-accidental trauma," and D.B.'s liver laceration was not "likely to be caused by being slapped with an open hand."

Photographs of D.B., which were taken at the hospital on August 26, 2015, were admitted into evidence. In those photographs, bruises and other marks can be seen on D.B.'s forehead, cheeks, chin, chest, torso, one arm, the back of her neck, ear, behind one ear, and all along her back.

D.B., who was six years old at the time of trial, testified that, when she was four years old, appellant pushed her down the stairs "more than one time." D.B. also testified that she "got hurt" after appellant put her foot on her stomach.

Laura Erstling, a child abuse investigator with the Montgomery County Department of Health and Human Services, testified that she was tasked with investigating D.B.'s injuries. On August 26, 2016, the same day that D.B. was taken to the hospital, sheinterviewed appellant. During that interview, appellant claimed that D.B.'s injuries had been caused by various accidents.

Later that day, Ms. Erstling observed a follow-up interview between the police and appellant. In that interview, which was recorded and played for the jury, appellant admitted that she had slapped D.B. in the face and in the ear. When the interviewing detective asked appellant about the injuries to D.B.'s ear, appellant stated that D.B. had made her mad because D.B. had hit one of appellant's daughters. The detective then asked appellant why she slapped D.B. in the face, and appellant stated that D.B. had "color[e]d the carpet." Appellant stated that both instances had occurred the previous week. She explained, moreover, that she had pushed D.B. forcefully into the walls and that, on the morning of August 25, 2016, she had pushed D.B. hard into an elliptical machine, causing D.B. to injure her back. When the detective asked appellant "what else happened in the morning," appellant responded, "That's all." And with respect to the various rib fractures, appellant stated that she "had pushed [D.B.] other times," and she had done so "during these past few days." Finally, appellant noted that, on one occasion weeks ago, D.B. had fallen down the stairs because appellant was rushing her.

Ms. Erstling testified that, during her investigation, she also interviewed D.B.'s father, J.I., who stated that, although he "may have hit [D.B.] with a belt the day before," he "was not responsible for those injuries." According to Ms. Erstling, J.I. also "denied that he had ever seen any injuries" to D.B.

Ms. Erstling later interviewed D.B. In that interview, which was recorded and played for the jury, D.B. told Ms. Erstling that appellant had hit her with a belt and that shehad "squished" and "squeezed" her stomach. D.B. also stated that J.I. had hit her "in the face and the tummy" with his open hand.

Appellant ultimately was convicted of four counts of second-degree child abuse: Count 3, between February 1, 2015, and August 12, 2015, causing fractures to D.B.'s ribs; Count 7, between February 1, 2015, and August 26, 2015, striking D.B.'s ear, causing bruising; Count 8, between February 1, 2015, and August 26, 2015, slapping D.B.'s face, causing bruising; and Count 9, on August 25, 2015, pushing D.B. into an elliptical machine, causing injury to D.B.'s back.

This appeal followed.

DISCUSSION

I.

Appellant contends that the circuit court erred in its response to a note submitted by the jury during deliberations. The note read: "Is [sic] the Defending attorneys not allowed to call witnesses? i.e. only the State gets to call witnesses?" The court shared the jury's note with the parties and proposed that it instruct the jury that "the defendant has no burden of proof and no obligation to call any witnesses. However, the defendant has the same opportunity as the State to call any witnesses she chooses."

Defense counsel objected, stating that he preferred that the court provide "no answer at all." He added that, as "a fallback position," the first sentence of the court's proposed instruction "would be appropriate." The court responded:

THE COURT: It's a correct statement of the law, and the Court - a problem the Court has is somebody in there thinks that [appellant] was disadvantaged and that they couldn't call any witnesses. My job is to givethem a fair understanding of the law without putting my finger on the scale, but to at least let them know what the law is. So, if they think only the State could call witnesses, which is kind of an absurd thought, but apparently somebody got that - but I think I'm going to add the - you got your objection noted. I'm going to add the burden of proof instruction and tell them to refer to that.

Ultimately, the court issued a handwritten response to the note, which stated: "The Defendant has no burden of proof and no obligation to call any witnesses. However, the Defendant has the same opportunity as t[he] State to call any witnesses she chooses. See MPJI-CR 2:02 - instructions on pg. 1 of instructions."³

Appellant contends that the court erred in giving this supplemental instruction to the jury because it "shifted the burden and diluted the reasonable doubt standard." She asserts that the court's supplemental instruction was unfairly prejudicial because the court "essentially permitted the jury to consider, as part of its deliberations, the fact that [a]ppellant did not testify and did not otherwise call any witnesses."

The State contends that the...