Rogers v. State

DUSTIN THOMAS ROGERS v. STATE OF MARYLAND

No. 1931

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 25, 2021

Circuit Court for Montgomery County

Case No. 134677C

UNREPORTED

Fader, C.J., Friedman, Shaw Geter, JJ.

Opinion by Fader, C.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.

A jury sitting in the Circuit Court for Montgomery County convicted Dustin Rogers, the appellant, of first-degree rape and third-degree sexual offense against E.¹ The State's theory of prosecution was that on the night of October 2, 2018, E. was walking on a sidewalk along a highway when Mr. Rogers grabbed her by the shoulder and arms, put her in a chokehold, forced her onto the ground, and proceeded to digitally penetrate her both vaginally and anally. The State charged Mr. Rogers with two counts of first-degree rape by digital penetration (one for vaginal penetration and one for anal penetration) and one count of third-degree sexual offense by vaginal touching. At the State's request, in addition to the two counts of first-degree rape, the court submitted to the jury, as lesser-included offenses, two counts each of second-degree rape by digital penetration and third-degree sexual offense by touching.²

Mr. Rogers's defense was two-pronged. He acknowledged that E. had been physically assaulted. However, he argued that the State did not prove either that he was the perpetrator of the attack or that E. had been sexually assaulted. In connection with the latter argument, he requested that the court: (1) submit to the jury a charge of second-degree assault as a lesser-included offense of first-degree rape; and (2) instruct the jury concerning the offense of second-degree assault. The court declined both requests.

Following a trial, the jury convicted Mr. Rogers of first-degree rape by digital penetration of the vagina and third-degree sexual offense by anal touching. In this appeal,Mr. Rogers contends that the court erred in refusing both to submit to the jury a charge of second-degree assault and to instruct the jury on that offense. For two reasons, we disagree. First, the evidence generated at trial did not provide a rational basis for the jury to conclude that Mr. Rogers was guilty of second-degree assault but not guilty of any sexual offense. Second, even if that were not the case, fundamental fairness did not require the court to permit the jury to consider a second-degree assault charge because the jury already had the option to convict Mr. Rogers of third-degree sexual offense, which is a crime of similar severity to second-degree assault. Accordingly, we will affirm Mr. Rogers's convictions.³

BACKGROUND

E. testified that on October 2, 2018, she had gone out dancing in downtown Washington, D.C. She then took the D.C. Metro to the Shady Grove station, arriving at approximately 11:00 p.m. E. began walking south along Rockville Pike. The side of the highway on which she was walking had "no main lighting, . . . but the light from th[e opposite] side of the street was more than enough to illuminate [her] side of the street."

E. initially did not see anyone else in the area. Eventually, an individual "walked in front of [her] and stayed in front of [her]" at a distance of no more than "15, 20 feet." While E. "purposefully" kept that distance from the individual, she observed that he twice looked back over his shoulder at her. After his second glance, and unable "to get a good look at the person's face," E. became concerned and attempted to cross to the "more brightly lit" side of the street.

E. testified that when she attempted to cross the street, the individual closed the distance between them, "grabbed me by the upper shoulder region, and lifted me off the ground." When E. attempted to push her assailant away and escape, "he grabbed [her] from behind, and dragged [her] off to the sidewalk into the clearing." After they fell to the ground, E.'s face struck the dirt, and with her hands and knees on the ground, the assailant placed her in a chokehold with his left arm. The attacker then briefly groped her breast under her bra before unsuccessfully attempting to undo her belt buckle. E. provided the following account of what happened next:

[E.]: He attempted to go through the back end of my jeans.

[Prosecutor]: And was he able to go through the back of your jeans?

[E.]: Yes.

[Prosecutor]: Where did he put his hand underneath your jeans?

[E.]: He slipped his hand under my undergarments.

[Prosecutor]: And what part of your body did he touch?

[E.]: He touched my buttocks.

[Prosecutor]: And did he go within the buttock?

[E.]: Yes.

[Prosecutor]: Can you describe what he did?

[E.]: He penetrated my anus digitally.

. . . .

[Prosecutor]: Do you know how long that lasted?

[E.]: Maybe 10, 10 seconds.

[Prosecutor]: During this time, was the chokehold maintained around your neck?

[E.]: Yes.

[Prosecutor]: After he penetrated your anus, where did his hand go?

[E.]: He attempted to reach around the front of my pants.

. . . .

[Prosecutor]: And was he successful in reaching around to the front of your pants?

[E.]: Yes.

[Prosecutor]: And what did he do with his hand in the front of your pants?

[E.]: He touched my genitals.

[Prosecutor]: Can you describe what you mean he touched your genitals? What exactly did he touch?

[E.]: He put his finger first on my outer labia, and then between my inner and outer labia.

[Prosecutor]: Did he go inside the vagina with his hand?

[E.]: No.

E. testified that during the attack, she attempted to retrieve her cell phone, but the assailant punched her "in the back of the head," grabbed her phone, and "tossed it into the wooded area nearby." At some point thereafter, E. "play[ed] dead," "bolt[ed] out from under" him, and ran to a nearby building, where she told a security guard that she "had just been raped," and asked him to call the police.

When police arrived, E. provided a general description of the attacker's build, ethnicity, and clothing but acknowledged that she "was not able to observe any part of hisbody" and did not "clearly" see his face at any point. E. further testified that she did not lose consciousness during the attack but kept her eyes closed. E. testified that she had sustained injuries including "a black eye, multiple bruises," and damage to her face.

Defense counsel cross-examined E. about a recorded audio statement she gave to a detective while waiting to be examined at the hospital. In the recording, E. told the detective that the perpetrator was a distance of 100 to 200 feet in front of her before the attack. When defense counsel asked about that statement, E. acknowledged that the estimate of ten to 15 feet that she had testified to on direct examination was "definitely incorrect." When questioned about some of the other statements she made to the detective, E. could not recall making the statements and suggested that some of them, at least as recorded, were incorrect. For example, when asked whether she recalled telling the detective that she was "wrestled back" by the assailant more than once when she "really started to fight against him," E. did not remember making the statement and responded that it "sounds like an abstraction of what happened." E. confirmed, however, that she did not observe her assailant's physical characteristics.⁴

Other Evidence Presented at Trial

Sandra Carlin, whom the court accepted as an expert in sexual offense forensic nurse examinations, testified that she conducted a physical examination shortly after E. arrived at the hospital. E. told Ms. Carlin that she had been digitally penetrated in both the vaginaand the anus and was punched, strangled, and fondled. During the physical examination, Ms. Carlin documented injuries to E.'s head, face, shoulders, right breast, forearm, finger, wrist, and leg. Both Ms. Carlin and another witness who was accepted as an expert in forensic nursing testified that E. had sustained injuries that were consistent with strangulation.

Ms. Carlin testified that E. declined a vaginal speculum examination. Ms. Carlin therefore conducted only an external examination of E.'s pelvic area, from which she did not identify any injuries to E.'s vagina or anus. Ms. Carlin also swabbed several parts of E.'s body for evidence collection, which included a swab of her neck and "an external genitalia swab on the outside of her vagina." Ms. Carlin also sent the underwear that E. was wearing during the attack, along with the other samples, for DNA analysis.

Paul Nelson, a forensic specialist for the Montgomery County Police Department, testified that, in addition to other items, he collected a pair of white earphones at the crime scene. Because the police initially believed the earphones belonged to E., Mr. Nelson placed them in the same, clear plastic bag that contained other items recovered from the scene, including E.'s cell phone and a folding knife, which were to be delivered to E. at the hospital. It turned out that the earphones did not belong to E. and were later identified as belonging to the perpetrator. Ms. Carlin testified that when she initially met E. in her hospital room, E. was in possession of that plastic bag, which was unsealed. At that time, E. was also in possession of a separate, brown paper bag containing the clothes and underwear that she had been wearing during the attack.

Law enforcement officers testified that they identified Mr. Rogers as a suspect from surveillance footage and arrested him the day after the attack. The State introduced photographs taken upon Mr. Rogers's arrest of a "very large bruise" on his shoulder and "[s]cratches or abrasions" on his back. Police also collected a buccal swab sample from Mr. Rogers for DNA identification.

DNA Evidence

Chandra Christenson, who was accepted as an "expert in DNA analysis comparison and evaluation,"...