Price v. State

JONATHAN DAVID PRICE v. STATE OF MARYLAND

No. 26

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 30, 2020

Circuit Court for Wicomico County

Case No. 22-CR-18-000331

UNREPORTED

Fader, C.J., Friedman, Gould, JJ.

Opinion by Fader, C.J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

A jury sitting in the Circuit Court for Wicomico County convicted Jonathan David Price, the appellant, of sexual abuse of a minor, four counts of second-degree rape, two counts of third-degree sex offense, and four counts of fourth-degree sex offense. Mr. Price argues that the life sentence he received for second-degree rape is illegal because (1) the indictment was insufficient to support an enhanced sentence on second-degree rape, and (2) the jury did not make the requisite findings to support imposition of that enhanced sentence. He further contends that the trial court erred in permitting the State to amend the indictment at trial; denying his motion for a mistrial; permitting the State to cross-examine him regarding his opinion about the victim's credibility; and convicting him on all counts based on legally insufficient evidence. We hold that the life sentence imposed for second-degree rape is illegal because the jury was not asked to make—and so did not make—the requisite findings to support imposition of that sentence. We otherwise find no error and so will affirm the convictions. Consistent with Twigg v. State, 447 Md. 1, 27-30 & n.14 (2016), we will vacate all of Mr. Price's sentences and remand to the circuit court for resentencing.

BACKGROUND

Factual Background¹

At the time of the relevant events, the victim, J.C., was between ten and 11 years old and living in an apartment in Salisbury with her mother, Lovey Bryant, and otherfamily. Mr. Price, who was 35 years old at the time, lived with his wife, Jennifer Harrison, in a house across the street from J.C. Ms. Bryant acted as a "caretaker" for Ms. Harrison, who was disabled, and Mr. Price, who suffered from a traumatic brain injury and post-traumatic stress disorder related to military service. Ms. Bryant cooked, cleaned, and performed other chores for them as needed.

J.C. routinely spent time at Mr. Price's house, both with and without Ms. Bryant present. During these visits, J.C. "would sit there and watch TV" or help with chores. Mr. Price and Ms. Harrison also sometimes took J.C. to stores with them. J.C. testified that because Mr. Price is a "grownup," her "mom said I have to listen to him," and she followed his directions.

Nicholas Orem, who is Mr. Price's brother; Stephanie Orem, Mr. Orem's wife; and their children resided in a separate apartment downstairs from J.C.'s family. In late December 2017, J.C. told her mother and the Orems that Mr. Price "was touching [her] in a way that [she] didn't want him to" and had kissed her on the mouth. Ms. Bryant reported the conduct.

On December 21, 2017, Katie Beran, a social worker for the Wicomico County Department of Social Services, interviewed J.C. J.C. told Ms. Beran that Mr. Price had kissed her on the mouth "[f]our or five" times; that he had asked her to sit on his lap more than ten times, and, when she did, she "felt something hard on [her] back"; that he had asked her to touch his penis, but she had refused; and that on one occasion he had put his hands down the front of her pants, inside of her underwear, and digitally penetrated hervagina. J.C. recounted that one of the kissing incidents occurred when she was with Mr. Price, Ms. Harrison, and Mr. Price's nephews at Sam's Club. She explained that Mr. Price and Ms. Harrison were responsible for taking care of her and that Ms. Bryant "trusts them . . . to take [her] to the store." She considered Mr. Price to be her "uncle," whom she agreed was "in charge" whenever she was at his house.

In April 2018, J.C. disclosed new details about Mr. Price's actions.² J.C. told Ms. Bryant that Mr. Price had put his penis in her mouth. In a second interview with Ms. Beran, J.C. reported that Mr. Price had "put his thing in [her] mouth" on four separate occasions, all occurring in Mr. Price's living room. On each occasion, Mr. Price had directed J.C. to get on her knees and suck his penis, and on each occasion, he ejaculated into her mouth. Ms. Beran confirmed by reference to an anatomical drawing that J.C.'s reference to "his thing" was to Mr. Price's penis. J.C. also reported that Mr. Price had touched her buttocks on one occasion.

In May 2018, Mr. Price was charged with 11 counts of sexual offenses pertaining to J.C.: one count of sexual abuse of a minor (Count 1); four counts of second-degree rape (Counts 2 through 5); two counts of third-degree sex offense (Counts 6 and 7); and four counts of fourth-degree sex offense (Counts 8 through 11).³

The four second-degree rape charges are especially pertinent to this appeal. In each of those counts, the indictment contains the following identical language:

THAT Jonathan David Price, between the 1st day of December, 2017 and the 20th day of December, 2017, in Wicomico County, State of Maryland, did unlawfully commit a rape in the second degree upon J.C., in violation of CR 3-304 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such cases made and provided, against the peace, government and dignity of the State.

CR: 3-304

CJIS Code: 2 1103

Maximum Penalty: Active Incarceration: 20 Years Maximum Fine $0.00

Mr. Price did not request a bill of particulars as to any charges in the indictment.

The Evidence

A jury trial took place on November 5, 2018. J.C. testified that Mr. Price had kissed her, put his penis in her mouth "once or twice," digitally penetrated her "three or four times," and directed her to sit in his lap four times. J.C. was unable to pinpoint the exact dates of these incidents, but she testified that (1) one incident of fellatio occurred after Mr. Price and Ms. Harrison purchased their Christmas tree, but before they put it up; (2) Mr. Price had kissed her at Sam's Club in December 2017; (3) he had touched her buttocks before Thanksgiving 2017; and (4) he had digitally penetrated her after Thanksgiving.

Ms. Bryant testified that J.C. was permitted to go to Mr. Price's house without her, but that she had told Ms. Harrison and Mr. Price that he should not "have [her children] on his lap." Ms. Bryant stated that she expected J.C. to "respect [her] elders," and if Mr. Price told her to do something, she would be expected to do it. According to Ms. Bryant, J.C. did not initially disclose the extent of the sexual conduct because she was embarrassed. Asdescribed in more detail below, Mr. Price unsuccessfully moved for a mistrial after the court sustained certain of his objections to Ms. Bryant's testimony.

Ms. Beran testified about her two interviews with J.C., recounting that J.C. was 11 years old at the time of both interviews. The State played video recordings of both interviews to the jury and introduced into evidence both the videos and transcripts of each interview.

Salisbury City Police Detective Kasey Oppel, the lead investigator on the case, testified that Mr. Price provided a birth date of May 11, 1982 when he was arrested.

At the close of the State's case, Mr. Price's counsel moved for judgment of acquittal on all counts. He argued, in part, that J.C.'s testimony was too vague for a reasonable juror to find that the alleged sexual contact occurred between December 1, 2017 and December 20, 2017, as charged in the indictment. The State then moved to amend the indictment to expand the timeframe for each count to November 1, 2017 through December 20, 2017. Over Mr. Price's opposition, the court granted the motion to amend. The court denied the motion for judgment of acquittal, finding, among other things, that J.C.'s references to holidays provided "enough evidence for the jury . . . regardless of some vagueness with respect to the exact dates."

Mr. Price testified in his own defense that in December 2017, he lived with Ms. Harrison,⁴ but that sometimes Ms. Bryant, J.C., and J.C.'s sisters also lived with them. He categorically denied kissing J.C. or having any sexual contact with her, stating that he"look[s] at her more like a stepdaughter." Mr. Price acknowledged, however, that J.C. regularly sat on his lap.

Jury Instructions

As relevant to this appeal, the court instructed the jury as to two different modalities of second-degree rape. The court first addressed second-degree rape by force:

The Defendant is charged with the crime of second degree rape by force. In order to convict the Defendant of second degree rape by force, the State must prove: 1), the Defendant committed unlawful penetration with [J.C.]; 2), that the act was committed by force or threat of force; and 3), that the act was committed without the consent of [J.C.].

Unlawful penetration means the penetration, however slight, of another's genital opening or anus with a[n] object or part of the person's body if it can be reasonably construed that the act is intended for sexual arousal or gratification or for abuse of the other person. The amount of force necessary depends on the circumstances. No particular amount of force is required, but it must be sufficient to overcome resistance or the will to resist. You must be satisfied that [J.C.] resisted and that her resistance was overcome by force or threat of force . . . or her will to resist was overcome by the Defendant's actions under the circumstances.

If [J.C.] submitted to the unlawful penetration, and if you find that her submission was induced by force or threats that put her in reasonable fear of bodily harm to herself, then her submission was without consent. Her fear was reasonable if you find that under the circumstances a reasonable person would fear for her safety.

Finally, consent means

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