State v. McGagh

472 Md. 168

244 A.3d 1117

STATE of Maryland

v.Karen Campbell MCGAGH

No. 12, Sept. Term, 2020

Court of Appeals of Maryland.

January 29, 2021

Argued by Andrew H. Costinett, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner/Cross-Respondent.

Argued by Peter F. Rose, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent/Cross-Petitioner

Amicus Curiae Brief of the Women's Law Center of Maryland, Inc. in Support of Respondent: Michelle Daugherty Siri, Esq., Laure Ruth, Esq., The Women's Law Center of Maryland, Inc., Towson, MD, Steven M. Klepper, Esq., Megan L. Micco, Esq., Kramon & Graham, P.A., Baltimore, MD.

Argued before: Barbera, C.J.; McDonald, Watts, Hotten, Getty, Booth and Biran, JJ.

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's testimony 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, like should 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 his arrest, 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. Circuit Court Proceeding

McGagh elected a bench trial, which occurred on December 13 and 14, 2017, in the Circuit Court for Baltimore County. The State admitted the Verizon surveillance video, which showed that Trebay did not touch McGagh's breast and inner thigh, though it showed Trebay briefly touching McGagh at various points throughout the encounter. McGagh took the stand in her own defense. She admitted the video did not show Trebay touching her breast and inner thigh:

[DEFENSE COUNSEL]: Now, when you, you've since watched the video?

[McGAGH]: Yes.

[DEFENSE COUNSEL]: Of course, and you see that he doesn't particularly, as your statement of charges says, cup your breast on the video.

[McGAGH]: Yes.

[DEFENSE COUNSEL]: Can you explain to her Honor why you wrote that in your statement of charges?

[McGAGH]: I was trying to, I was, I used the wrong word. I was confused, I used the wrong word, you know, is, you could, is it a cup, is it a feel, is it a brush, is it a touch, it's that sort of, you know, you know it's different than an elderly man, you know it's different, you know you feel violated, you know you feel, you know that it's not okay. You know that there is a power, he's got my phone, he's got pictures of my nieces, he's got pictures of my –

THE COURT: Well, show me where there is a brush or a cupping or a touching or anything of your breast.

[McGAGH]: That's how it felt.

THE COURT: Well, you just said it happened, so I am happy, believe me, because I want to make the right decision, you show me on that video because I sat, I sat here and was glued to, literally over two hours of watching paint dry. So, ... we've got the CD, just show me. You show me where he either touches the, upper inside of your thigh or he comes even near your thigh.

[McGAGH]: It does.

THE COURT: Because you indicated several times to that police officer that it is the upper inside of your left thigh. [Trebay], I don't remember, being on your left side. He was on the right side. So, if I missed it, I truly, genuinely, authentically, want you to show me what I missed. But you're saying that's what I thought happened and you're saying that's what happened, are two completely different things.

[McGAGH]: That's what I thought happened.

THE COURT: Okay. So there's no point in

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