Opinion
72-2023
08-22-2024
ALFONSO A. HERNANDEZ v. STATE OF MARYLAND
UNREPORTED IN THE APPELLATE COURT OF MARYLAND [*]
Circuit Court for Baltimore City Case No. 121119025
Graeff, Nazarian, Eyler, James R. (Senior Judge, Specially Assigned), JJ.
OPINION
Graeff, J.
In May 2022, the State charged Alfonso A. Hernandez, appellant, with four counts of sexual abuse of a minor against T. and six counts of sexual abuse of a minor against J.Each count involved sexual abuse during a year-long time period.
In accordance with Maryland Rule 8-125(b)(1)-(2), the names of the victims and their mother are referred to by their initials.
A jury in the Circuit Court for Baltimore City convicted appellant of two counts of sexual abuse against a minor relating to T. and five counts of sexual abuse against a minor relating to J. The court sentenced appellant to 25 years for one of the convictions and 25 years, concurrent, for each of the six remaining convictions.
This was the second time appellant was tried. His first trial ended in a mistrial.
On appeal, appellant presents the following questions for this Court's review:
1. Did the circuit court err by preventing defense counsel from asking one of the witnesses for the State about the reliability of her memory?
2. Was the evidence insufficient to sustain multiple convictions?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's convictions were predicated on repeated sexual abuse of T., who was born in 2004, and J., who was born in 2006. The abuse began after T. and J. moved to an apartment (the "Amberwood apartment") in 2011 with their mother, A., their younger sister, M., a person with a disability, and appellant. A. worked at night while appellant stayed with A.'s daughters. Appellant stopped living at the Amberwood apartment on September 4, 2017.
A three-day jury trial began on September 27, 2022. T., who was 17 years old at the time of trial, testified that her mother left her biological father when she was five years old. Her family subsequently moved into the Amberwood apartment with appellant. Even though her mother was not married to appellant, T. viewed him as a father, and her mother viewed him as her husband.
On the first day of trial, September 27, 2022, after the jury was picked, but prior to the presentation of evidence, defense counsel argued that appellant should be charged with only one count of sexual abuse per victim, two counts total, because the crimes were "charged as a course of conduct." The State responded:
So, sex abuse of a minor, we charge it with one-year increments. Due to case law, [Cooksey v. State, 359 Md. 1 (2000)] and [State v. Mulkey, 316 Md. 475, 560 (1989)], we charge it for one-year increments. Now, if counsel would allow me to amend it to sex abuse of a minor, course of conduct, which is a completely different charge, then we can send it back that way. But that's a completely different charge.Defense counsel noted that he had some "advantage in some respects [with] the way [the State had] charged it," and he wanted to wait to "see what the evidence shows" relating to whether the State could "prove the time periods they ha[d] listed." There was no further discussion about amending the charging document.
Beginning in 2011 or 2012, when T. was starting first grade, appellant began doing "sexual things" to her and her sister, J. These "sexual things" happened multiple times a week. Appellant made T. suck his penis "multiple times," and he "would make [her] get on top of him and [her] vagina would scrape against his penis." When this occurred, her clothes were sometimes on and sometimes off, and appellant's clothes were off. T. remembered most incidents that occurred when she and J. did sexual things with appellant together or when the abuse occurred in the kitchen. Most of the incidents happened at night in appellant's bedroom, while her mother was working. Appellant sometimes ejaculated.
T. later testified that the sexual abuse began when she was approximately ten or 11 years old.
Appellant would persuade T. and J. to perform sexual acts on him by offering to buy them things they liked, such as toys and money, or by allowing T. and J. to play on a phone. The sexual abuse occurred multiple times a week. When her grandmother and brother visited the Amberwood apartment, her brother slept on the couch in the living room and her grandmother slept in her room. T.'s mother would sometimes be home when the abuse occurred. T. recalled at least one incident of abuse occurring one day in the kitchen while her mother was "five to ten steps away in the bathroom." The sexual abuse ended when T. started her period at 13 years old.
T. stated that appellant was very strict, and he sometimes prohibited her and J. from watching TV or going outside. She recalled that appellant moved out of the Amberwood apartment in 2016 or 2017, after he separated from her mother. During the summer of 2020, T. worked for appellant "doing some demolition and some construction type stuff."
T. did not tell anyone about the abuse while it was happening because appellant told her that the information would break apart her family, and she and her sisters would be sent to foster care. She also did not realize that what appellant was doing to her was wrong until she became older. T. decided to disclose the abuse, however, after J. began selfharming by cutting her arms. T.'s mother initially was shocked and hesitant to believe her.
J. was born in 2006, and at the time of trial in September 2022, she was 16 years old. J. testified that appellant began touching her inappropriately when she was six years old, and he stopped when she turned 12. Appellant touched J. multiple times underneath her clothes on her "butt and vagina." J. testified regarding several incidents that took place "late at night" while her mother was at work. On one occasion, appellant made her take her clothes off and lie in his bed while he rubbed his penis on her butt. Another time, J. was in appellant's room "face down with [] no pants or underwear on," and appellant was on top of her, rubbing his penis against her butt. J. also described an incident where appellant touched her vagina underneath her clothes and did not say anything to her. She testified that the sexual abuse always occurred in appellant's bedroom with the lights off.
J. later testified that the abuse began when she was in fourth or fifth grade.
The first time that J. saw appellant touch T. inappropriately was when she opened appellant's bedroom door and saw appellant touching T.'s vagina with his penis while she was lying down. After seeing this, J. went to her room. She also recalled an incident where appellant touched her and T. at the same time. J. and T. were both naked, and appellant touched their vaginas with his hands and their "butts" with his penis. Appellant sometimes watched pornography in the house.
J. testified that her mother worked every night of the week except for Saturdays and Sundays. M. had a night nurse who cared for M. at the Amberwood apartment. The night nurse had a key to the Amberwood apartment, and the abuse would stop when the night nurse would arrive or "whenever [appellant] want[ed] to" stop. J. did not mention M.'s night nurse at the forensic interview because the interviewer never asked her what made appellant stop the abuse. She did not recall appellant ever touching M. inappropriately.Appellant moved out of the Amberwood apartment when J. was 12 years old. She occasionally saw appellant after that time.
At the time of the trial, M. was 14 years old and could not walk.
J. testified that she did not tell her mother about the abuse because appellant threatened that, if she did, she would never see her mother again. J. also was scared, and she did not think that anyone would believe her. A few years later, when J. became older, she realized that what appellant did to her was wrong. She finally disclosed the abuse when she became suicidal and disgusted with herself. The first person J. told was her therapist, followed by her cousin, and then her mother. Although J.'s mother did not "know how to process" the information at first, J. stated that her mother believed both of her daughters about the sexual abuse. At the time of trial, J. was seeing a psychiatrist and going to therapy, and she had been diagnosed with PTSD and depression.
A. testified that she and appellant were in a relationship for approximately seven years. Appellant worked during the day in construction. A. would leave for her job at approximately 7:30 p.m. She worked five to six days a week, leaving her children alone with appellant. A. was off from work on Sunday evenings. A nurse came to the Amberwood apartment seven nights a week to care for M., typically arriving at 11:00 p.m. and leaving at 7:00 a.m. the following morning.
A. testified that appellant's relationship with T. and J. was good, but appellant could be "strict with their homework," and he sometimes would "fuss at them." She believed appellant was a good father figure.
On September 4, 2017, appellant moved out of the Amberwood apartment. A.'s daughters were not upset when appellant moved out because "they didn't like him to be on them regarding their homework."
In the summer of 2020, A. and appellant began texting, calling, and seeing each other occasionally. Appellant asked if T. and J. could do some work for him. These discussions occurred around the same time that J. was hospitalized for cutting herself.
A. first heard about the sexual abuse from her nephew over the phone. A. asked T. and J. about the sexual abuse, and they told her what appellant had done to them. She was "very confused," and she thought that T. and J. were lying. That same day, a social worker, multiple police officers, and an interpreter came to the Amberwood apartment. Both T. and J. were crying, and J. was nervous.
A. testified that her daughters sometimes felt comfortable confiding in her, but they sometimes felt uncomfortable. A. never noticed any marks or abrasions on her daughter, nor any discomfort in their private areas. She did not bathe her daughters while they were in elementary school, but she did change their clothes. A. had never spoken to her daughters about sex "because they were little."
After the State rested its case, the defense made a motion for judgment of acquittal, arguing that the State had not met its burden "as to the time periods that they ha[d] charged [appellant] with." The State argued that it had met its burden regarding the specific time frames in the charging document because T. and J. testified to their birthdays, their ages when the abuse started and ended, and the abuse being continuous throughout those years. The court denied the motion, stating: "[B]ased on the testimony of the two children who, although the testimony was certainly broad based, it was specific enough, and I'll note . . . that each child did testify to when the abuse started" and that it ended when appellant moved out of the Amberwood apartment. The court stated that it was "not sure why the State didn't charge this as a continuing course of conduct case," but it concluded that "a reasonable jury could draw reasonable inferences to find beyond a reasonable doubt all the elements that this sexual abuse of a minor did occur for all these time frames based on that testimony."
After the court denied the motion, the parties made their closing arguments. The State argued that the evidence showed that appellant was guilty of sexual abuse of J. and T. from 2012 through 2017, stating that T. testified that the abuse began when she was ten or 11 years old and ended when she was 13 years old, and J. testified that the abuse began when she was six years old and ended when she was 12 years old.
Defense counsel argued that the State had not proven that appellant was guilty of sexual abuse of a minor beyond a reasonable doubt, asserting that both T. and J. were "confused" and "mentally unstable young ladies," who had no evidence or verification to substantiate their "story." He asserted that T. and J. brought up the accusations against appellant to "protect their mom" after A. and appellant began rekindling their relationship. Counsel argued that T. and J.'s testimony that appellant sexually abused them "multiple times" was not sufficient to prove that appellant committed the crimes for ten different time periods, asserting that neither T. nor J. described the sexual acts "in particularity as to when they occurred or how they occurred."
After appellant was convicted and sentenced, this appeal followed.
Prior to sentencing, defense counsel argued that the separate counts should merge as to each victim, so that appellant would serve 25 years per victim, because "this is a general course of conduct type of charge." The court did not merge the convictions and sentenced appellant to 25 years for one of the convictions and 25 years, concurrent, for each of the six remaining convictions.
DISCUSSION
I.
Cross-examination
Appellant contends that "the circuit court erred by preventing defense counsel from asking T. about the reliability of her memory." The State disagrees, asserting that "the circuit court properly exercised its discretion" in regulating cross-examination. The State contends that the court did not prevent questions regarding T.'s memory, but rather, it sustained the objection to one question based on form, and defense counsel did not pursue it further. Alternatively, the State argues that the question at issue was objectionable because it was argumentative. In any event, the State asserts that, even if the court erred, any error was harmless.
A.
Proceedings Below
During cross-examination, defense counsel focused on details that T. and J. gave in testimony that they had not relayed during the pretrial forensic interview. For example, T. testified that appellant rubbed his penis against her vagina when she was not wearing any clothes. Defense then asked:
Now, today is the first time you've ever mentioned that my client rubbed his penis on your vagina without any clothes on. You didn't mention it during your forensic interview. It wasn't mentioned at the prior hearing. Today is the first time you're ever mentioning it. Is your memory better today than it was prior?
The State objected, and the court sustained the objection.
Defense counsel then asked: "Well, let me ask you this. Why are we now hearing for the first time that my client's penis, bare penis rubbed your bare vagina? We have never heard that before." The State again objected, and the court held a bench conference, during which it explained that it previously sustained the State's objection because defense counsel "asked three questions in one." The State then disputed the premise of the question that T. had not previously testified about not wearing underwear when appellant rubbed his penis against her vagina, but the court overruled the objection, stating that T. could correct any "misstatement" or the State could "redirect her if it's not the case."
Defense counsel then continued with cross-examination, as follows:
[DEFENSE COUNSEL]: The question to you, [T.], was today - - or why today is the first time we are hearing about [appellant's] bare penis rubbing on your bare vagina?
[T.]: Because it was.
[DEFENSE COUNSEL]: Okay. Do you recall mentioning it at all at the prior hearing?
[T.]: No.
[DEFENSE COUNSEL]: Do you recall mentioning it at all at your forensic interview?
[T.]: They probably didn't ask that question there.
After this exchange, defense counsel did not repeat the question as to whether T.'s memory "was better today than it was prior," despite the court's explanation that it sustained the State's earlier objection because defense counsel "asked three questions in one."
B.
Analysis
"The Confrontation Clause of the Sixth Amendment to the United States Constitution provides a criminal defendant with the right 'to be confronted with the witnesses against him.'" Leidig v. State, 475 Md. 181, 184 (2021) (quoting U.S. CONST. amend. VI.). Critical to the right of confrontation is the opportunity to cross-examine witnesses and attack the credibility of a witness. See Pantazes v. State, 376 Md. 661, 680 (2003). Nevertheless, a defendant's constitutional right to cross-examine witnesses is not boundless, and the scope of cross-examination is a matter within the sound discretion of the trial court. See Simmons v. State, 392 Md. 279, 296 (2006).
"The appropriate test to determine abuse of discretion in limiting cross-examination is whether, under the particular circumstances of the case, the limitation inhibited the ability of the defendant to receive a fair trial." Hall v. State, 233 Md.App. 118, 133-34 (2017) (quoting Martin v. State, 364 Md. 692, 698 (2001)). Whether there has been an abuse of discretion depends on the particular circumstances of each individual case. See Pantazes, 376 Md. at 681.
Here, the court sustained the State's objection to the question whether T.'s memory was better at trial than it was in prior interviews on the ground that defense counsel asked "three questions in one." The court denied the State's objection to questions related to whether T.'s testimony was the first time she had stated certain facts, noting that if the question was a "misstatement," then T. could correct it, or the State could clarify during redirect examination. Defense counsel chose not to ask the initial question again in proper form. He did, however, cross-examine T. regarding discrepancies between her pre-trial statements and her current testimony. The limit on counsel's questioning did not inhibit defendant's ability to get a fair trial, and we perceive no abuse of discretion in the circuit court's ruling on the scope of cross-examination.
In any event, even if the court erred, we agree with the State that any error was harmless. The applicable test for harmless error is as follows:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless[,] and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of - whether erroneously admitted or excluded - may have contributed to the rendition of the guilty verdict.Gross v. State, 481 Md. 233, 254 (2022) (quoting Dorsey v. State, 276 Md. 638, 659 (1976)). We consider "whether the trial court's error was unimportant in relation to everything else the jury considered in reaching its verdict." Dionas v. State, 436 Md. 97, 118 (2013).
Here, defense counsel's question had little probative value because it was a rhetorical argument. Moreover, the court's decision to sustain the objection did not prevent defense counsel from testing T.'s memory; counsel vigorously cross-examined T. regarding inconsistencies in her statements. The question to which the court sustained the objection was cumulative to the questions that counsel did ask, which perhaps is why he chose not to ask it again when the court explained that the objection was sustained due to its form. See Yates v. State, 429 Md. 112, 124 (2012) (the admission of hearsay evidence did not affect the jury's verdict "given the cumulative nature of the similar statements offered at trial"). Accordingly, any error by the circuit court was harmless and does not require reversal of appellant's conviction.
II.
Sufficiency of the Evidence
Appellant was charged with ten counts of sexual abuse of a minor, four counts pertaining to T. and six counts pertaining to J., in one-year time periods for each year that the abuse occurred. The State used T.'s birthday, November 22, as a starting point, with four counts covering the four different years: (1) count one charged sexual abuse for the time period of November 22, 2013-November 21, 2014, when T. was nine years old; (2) count two charged sexual abuse for the time period November 22, 2014-November 21, 2015, when T. was ten years old; (3) count three charged sexual abuse for the time period November 22, 2015-November 21, 2016, when T. was 11 years old; and (4) count four charged sexual abuse for the time period November 22, 2016-September 4, 2017 when T. was 12 years old.
The State also used J.'s birthday, June 13, as a starting point, with six counts covering six different years: (5) count five charged sexual abuse for the time period of June 13, 2012-June 12, 2013, when J. was six years old; (6) count six charged sexual abuse for the time period of June 13, 2013-June 12, 2014, when J. was seven years old; (7) count seven charged sexual abuse for the time period of June 13, 2014-June 12, 2015, when J. was eight years old; (8) count eight charged sexual abuse for the time period of June 13, 2015-June 12, 2016, when J. was nine years old; (9) count nine charged sexual abuse for the time period of June 13, 2016-June 12, 2017, when J. was ten years old; and (10) count ten charged sexual abuse for the time period of June 13, 2017-September 4, 2017, when J. was 11 years old. The jury convicted appellant of counts three, four, six, seven, eight, nine, and ten.
Appellant contends that "the State presented insufficient evidence to sustain multiple convictions" of sexual abuse of a minor. He concedes that there was sufficient evidence to support one abuse count for each child, but he asserts that the State elicited only "vague testimony" regarding the extent of the abuse within the time periods specified in the Indictment. With respect to T., the jury found appellant guilty of sexual abuse when T. was 11 and 12 years old, but appellant argues that the State failed to present evidence that abuse occurred in both years. With respect to J., the jury found appellant guilty of five counts of sexual abuse, one count for each year when J. was seven to 11 years old, but appellant argues that there was insufficient evidence of abuse in each of those years.
The State contends that the evidence was sufficient to sustain appellant's convictions because T. and J. testified to when the abuse began and ended, as well as that the abuse was continual. A. further corroborated T. and J.'s testimony regarding the time frame when appellant lived with them.
"The standard for appellate review of evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Scriber v. State, 236 Md.App. 332, 344 (2018). Accord Turenne v. State, 2024 WL 3841162, at *10 (Md. Aug. 16, 2024). "When making this determination, the appellate court is not required to determine 'whether it believes that the evidence at trial established guilt beyond a reasonable doubt.'" Roes v. State, 236 Md.App. 569, 583 (2018) (quoting State v. Manion, 442 Md. 419, 431 (2015)). "This is because weighing the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact." Scriber, 236 Md.App. at 344 (quoting Darling v. State, 232 Md.App. 430, 465 (2017)).
"We defer to any possible reasonable inferences the jury could have drawn from the admitted evidence and need not decide whether the jury could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence." Fuentes v. State, 454 Md. 296, 308 (2017). In short, "the limited question before an appellate court is not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder." Scriber, 236 Md.App. at 344 (quoting Darling, 232 Md.App. at 465). "[O]ur concern is only whether the verdict was supported by sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant's guilt of the offenses charged beyond a reasonable doubt." State v. McGagh, 472 Md. 168, 194 (2021) (quoting Taylor v. State, 346 Md. 452, 457 (1997)). "The deferential standard recognizes the trier of fact's better position to assess the evidence and credibility of the witnesses." Id.
Appellant was convicted of sexual abuse of a minor pursuant to Md. Code Ann., Crim. Law ("CR") § 3-602 (2023 Supp.), which provides, in relevant part, as follows:
(a)(1) In this section[,] the following words have the meanings indicated.
(2) "Family member" has the meaning stated in 3-601 of this subtitle.
(3) "Household member" has the meaning stated in 3-601 of this subtitle.
(4)(i) "Sexual abuse" means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.
(ii) "Sexual abuse" includes:
1. incest;
2. rape;
3. sexual offense in any degree; and
4. any other sexual conduct that is a crime
(b)(1) A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not cause sexual abuse to the minor.
(2) A household member or family member may not cause sexual abuse to a minor.
The appellate courts have made clear that sexual abuse of a minor may be charged based on each act or as a continuing course of conduct. In Cooksey v. State, 359 Md. 1, 23 (2000), the Supreme Court of Maryland held that "a single act, of a type included within the definition of 'sexual abuse,' may be separately prosecuted and will support a conviction for that offense." The Court explained that "the offense is not the sexual act itself . . . but rather the abuse of the child," and "[t]hat abuse can as easily arise from several qualifying acts as from one." Id. Sexual abuse of a minor is, therefore, "a crime that can be committed both by a single act and through a continuing course of conduct consisting of multiple acts." Id. at 24.
This Court further clarified this issue in Bey v. State, 259 Md.App. 324 (2023), cert. denied, 486 Md. 394 (2024). In that case, Bey sexually abused his putative daughter between May 2010 and February 2014, with the abuse occurring at least twice a week starting when she was 11 years old and ending when she was 14 years old. Id. at 329-30. The State charged Bey with five counts of sexual abuse of a minor, with each count corresponding "to the age of the victim while the abuse continued, i.e., one count for the abuse that occurred when the victim was ten, and separate counts for the abuse that occurred when the victim was eleven, twelve, thirteen, and fourteen." Id. at 330.
Each count "corresponded to annual time periods defined by the victim's birthdate." Bey v. State, 259 Md.App. 324, 330 n.2 (2023), cert. denied, 486 Md. 394 (2024).
On appeal, Bey contended that sexual abuse of a minor "is an 'umbrella crime' or a 'continuing course of conduct offense' that 'encompasses within one criminal charge all acts of molestation or exploitation that have occurred between one defendant and one minor victim.'" Id. at 333. Bey argued that four out of five of his sexual abuse convictions should be reversed because they violated the double jeopardy protections against multiple punishments for the same offense, and that the counts should merge under the rule of lenity because it was ambiguous whether prosecutors could "divide an overarching time period of abuse into smaller time periods." Id.
We disagreed, noting that the "legislature's use of 'an act' to define the behavior that constitutes sexual abuse indicates that a singular act could satisfy the element of sexual abuse." Id. at 336. Thus, Bey's five sentences "for acts of sexual abuse that occurred within different time periods" were not "multiple punishments for the same offense in violation of double jeopardy protections." Id. at 336-37. Therefore, we held that the State may charge child sexual abuse as a course of conduct, but it is not prohibited from charging the offense as a "single act or in a date range" if it does not charge overlapping dates. Id. at 338, 340.
Here, the State charged appellant with multiple counts of sexual abuse of a minor from 2011 to 2017, with none of the dates overlapping. T. and J both testified to their birthdays, as well as how old they were when the abuse began and ended. The abuse began when they moved to the Amberwood apartment with appellant in 2011. The abuse ended for T. when she got her period at 13 years old and ended for J. when appellant moved out of the Amberwood apartment in 2017. T. testified that the abuse occurred "multiple times" per week. A. corroborated the dates when appellant lived at the apartment with her and her daughters.
T. testified that she was born in 2004, that the abuse began when she was ten or 11 years old, and it ended when she was 13 years old. J. testified that she was born in 2006, that the abuse began when she was six years old, and it continued until she was 12 years old.
The evidence permitted the jury to infer that appellant continuously sexually assaulted both T. and J. while they were minors from 2011 to 2017. See Robinson v. State, 315 Md. 309, 318 (1989) ("There is nothing mysterious about the use of inferences in the fact-finding process. Jurors routinely apply their common sense, powers of logic, and accumulated experiences in life to arrive at conclusions from demonstrated sets of facts."). When viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to support each of appellant's convictions of sexual abuse against T. and J.
Appellant's contention that, "[affirming more than one conviction with respect to both T. and J. would run the risk of violating double jeopardy by punishing [a]ppellant more than once for the same conduct," is devoid of merit. See Bey, 259 Md.App. at 338, 340 (the State may charge child sexual abuse as a course of conduct, or as a single act in a date range if it does not charge overlapping dates). Each conviction for each child involved a different time period. Appellant was not punished twice for the same acts. See id.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
[*] This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for persuasive value only if the citation conforms to Md. Rule 1-104(a)(2)(B).