State v. McGagh

STATE OF MARYLAND v. KAREN CAMPBELL MCGAGH

No. 12

COURT OF APPEALS OF MARYLAND

Argued: November 6, 2020

September Term, 2020

January 29, 2021

CRIMINAL LAW - STANDARD OF REVIEW - SUFFICIENCY OF EVIDENCE - PERJURY - Maryland Rule 8-131 provides that an appellate court will not set aside the judgment of a trial court on the evidence unless clearly erroneous, and reviewing courts shall defer to trial court's findings regarding the credibility of witnesses. Appellate courts apply a de novo standard of review when a trial court's judgment on the evidence implicates the defendant's constitutional rights. Following a bench trial, the trial court convicted the Respondent for perjury and making a false report to the police ("false report"). Respondent appealed the sufficiency of the evidence for her convictions to the Court of Special Appeals, which applied a de novo review to assess whether her convictions infringed upon Respondent's First Amendment right to petition the government. The Court of Appeals held that Respondent's perjury and false report convictions did not warrant a de novo review. Respondent did not raise any First Amendment challenges at trial, and even if Respondent had, the First Amendment does not protect perjurious speech.

CRIMINAL LAW - SUFFICIENCY OF EVIDENCE - PERJURY - FALSITY - The crimes of perjury and false report both require proof of falsity. The State must satisfy the two-witness rule to establish falsity. The two-witness rule requires either two witnesses testifying to the falsity of a statement or one witness testifying to the falsity of a statement with independent corroboration of equal weight to that of a witness. The Court of Appeals held that a store's surveillance video may independently corroborate a witness's testimony to establish falsity. The State charged Respondent with perjury and false report after the Respondent alleged that a salesman sexually assaulted her by cupping her breast and touching her inner thigh while purchasing a cellphone at a store. The State satisfied the two-witness rule with the salesman's testimony that he did not recall cupping the Respondent's breast and touching her inner thigh and the store's surveillance video showing no occurrence of the alleged conduct. The State also provided sufficient evidence to prove Respondent's intent in making a false statement to the police and the court.

CRIMINAL LAW - SUFFICIENCY OF EVIDENCE - PERJURY - MATERIALITY - Perjury and false report require the State to prove the materiality of willful and knowing false statements beyond a reasonable doubt. The State presents sufficient evidence of materiality by showing a false statement that affects a legal decision or outcome. The Court of Appeals held that a false statement that causes an officer to initiate an investigation and a commissioner to issue an arrest warrant satisfies the element of materiality under Maryland's false report and perjury statutes.

Circuit Court for Baltimore County

Case No. 03-K-17-003606

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Opinion by Hotten, J. Respondent, Karen McGagh, ("McGagh") was tried in the Circuit Court for Baltimore County for falsely accusing Glenn Trebay ("Trebay") of sexually assaulting her while patronizing a Verizon store. McGagh stated to a police officer and in a sworn criminal complaint that Trebay cupped her breast and touched her inner thigh. During a bench trial, the State admitted a surveillance video from the Verizon store that did not show Trebay touching McGagh as she claimed. The trial court convicted McGagh of perjury and making a false statement to police officer. McGagh received a sentence of ten years' incarceration for the perjury conviction, all but eight years suspended, with five years' supervised probation. McGagh also received a consecutive sentence of six months for the false report conviction.

McGagh appealed her convictions to the Court of Special Appeals. She argued that Petitioner ("the State") presented insufficient evidence to establish her convictions beyond a reasonable doubt. The Court of Special Appeals agreed and reversed the trial court. In its unreported opinion, the Court of Special Appeals raised, for the first time, the issue of whether McGagh's perjury conviction implicated the First Amendment, thereby triggering de novo review. The State duly appealed to this Court.

We granted certiorari to address the following questions:

1. Did [the Court of Special Appeals] err when, citing First Amendment and policy-based concerns, it applied a non-deferential, [de novo] standard of review to the legal sufficiency of the evidence to sustain Respondent's convictions for perjury and false statement?

2. Did [the Court of Special Appeals] err in finding the evidence insufficient to show willful and knowing falsity, and in finding that one witness'stestimony corroborated by surveillance video was insufficient to satisfy the [two-witness rule] for perjury?

3. Was the evidence legally insufficient to support Respondent's convictions for perjury and/or false statement because the evidence failed to show that the statements were material?¹

We answer the first two questions in the affirmative, the third in the negative and shall reverse the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Incident

On April 24, 2017, McGagh visited a Verizon store in Towson, Maryland to seek the repair of her broken phone. Glenn Trebay, a Verizon store employee, greeted her and escorted McGagh to his desk. Trebay discovered an outstanding balance on her account that prevented him from immediately replacing her phone. He tried contacting different departments to resolve the issue. After approximately two hours, McGagh purchased a new phone for over $800 and left the store. The store's video cameras captured the entire interaction without sound.

McGagh and Trebay provided starkly different depictions of their encounter. Trebay described McGagh as initially distraught and that she became increasingly agitated and upset by his inability to quickly repair or replace her phone. Trebay denied that any inappropriate behavior occurred. He later testified "[t]here was a distance between us . . .the entire time." Trebay, in fact, spent much of the two-hour encounter sitting adjacent to McGagh, so he could share his work tablet's screen. The surveillance video also showed several instances where Trebay briefly touched McGagh's shoulder, elbow, and back of the arm. The final touch constituted a handshake between Trebay and McGagh before she left the store with a newly purchased phone.

McGagh found Trebay's behavior disturbing. She claimed that he attempted to sell her non-Verizon items, including a Fitbit,² a watch, and a cashmere sweater, and that he allegedly stored these unsanctioned items in his car. She testified that he smelled of alcohol. At one point, she claimed that Trebay held her SIM card and joked, "I've got your life in my hands now[.]"

During the encounter, the surveillance video reflected several customers coming in and out of the store. A nearby salesman spent several minutes attending to another customer and helped Trebay complete the phone transaction with McGagh after an hour and a half. McGagh claimed that the other salesman told her that Trebay's behavior was worse around college-age girls.³

After McGagh left the store, she called Verizon to complain about Trebay's unprofessional behavior. Verizon told Trebay not to come into work the next day, and eventually fired Trebay. On April 25, 2017, McGagh called the Baltimore County Police and Officer Heims took her statement. Officer Heims's body camera recorded the video and audio of the interaction. McGagh alleged that Trebay acted unprofessionally, and "he should never be around young women." She asked whether Trebay could get a "scary warning[]" from the police officer. Officer Heims responded, "I think there's going to be a little more than a scary warning, I can promise you that."

She also alleged Trebay touched her breast and inner thigh. The body camera footage showed McGagh demonstrating that Trebay touched her breast. Officer Heims suggested Trebay attempted to "cop a feel[]" and McGagh responded, "[b]ut that's exactly what it was . . . [t]hat's exactly what it was." McGagh continued, "[I]t was wrong, likeshould he go to prison? I don't know, but he should never work around women and I felt really dirty, I didn't sleep last night and it's a horrible feeling."⁴ Officer Heims told McGagh he would document the alleged sexual assault as a "fourth degree sex offense." He presented McGagh with the options of filing criminal charges and/or obtaining a peace order.

Later that evening, McGagh filed a sworn "A[pplication for] S[tatement of] C[harges]" against Trebay for "[sexually assaulting her]" in the District Court for Baltimore County. In the middle of the ten-page statement, McGagh alleged Trebay "leaned in, and in a flash cupped [her] breast with his hand[]" and "leaned in and rubbed [her] upper thigh." She also alleged that he called her at home and feared he may assault her again. McGagh signed the first page affirming "under the penalties of perjury that the contents of this Application are true to the best of my knowledge, information and belief." The first page also states that it may "lead to the arrest of the above named Defendant[.]" McGagh signed each subsequent page.

The District Court Commissioner authorized an arrest warrant for Trebay, following a review of McGagh's statement of charges. The police arrested Trebay at his home. Trebay later testified in his victim statement that he felt confused and embarrassed by hisarrest, which was made in front of his elderly father and neighbors.⁵ He spent several hours in custody before the State dropped the sexual assault charges. Following an investigation, the State charged McGagh with perjury and making a false statement to police.

Legal Proceedings

A. ...