Gaerian v. State

860 A.2d 396, 159 Md. App. 527, 2004 Md. App. LEXIS 169
CourtCourt of Special Appeals of Maryland
DecidedOctober 28, 2004
Docket2956 September Term, 2002
StatusPublished
Cited by4 cases

This text of 860 A.2d 396 (Gaerian v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaerian v. State, 860 A.2d 396, 159 Md. App. 527, 2004 Md. App. LEXIS 169 (Md. Ct. App. 2004).

Opinion

BARBERA, Judge.

Appellant, Zoilo Camposano Gaerian, a/k/a Zoilan Gaerian, stands convicted by a jury of child abuse and second degree assault for having sexually assaulted his half-sister, ten years younger than he, from the time she was four or five years old until she was thirteen. One of the issues presented by this appeal is the admissibility of the victim’s report of the assaults to her best friend.

As recounted by the friend, the victim reported in October 2001, that she was being sexually assaulted by her older brother in October 2001. The tenor of the complaint suggested that the assaultive conduct might have occurred more than once during that October, but the friend was unable to be *531 more specific, either about when the victim made the report or when the sexual assault or assaults occurred.

We are asked to decide whether this complaint was “prompt,” as that term is used in the exception to the hearsay rule that permits admission into evidence of a statement by a declarant who testifies and is subject to cross-examination, if it “is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected....” Md. Rule 5-802.1(d). As we shall discuss, the complaint in this case satisfies the test that has been developed in Maryland for ascertaining when a complaint is “prompt” for purposes of Rule 5—802.1(d). We hold that the court did not abuse its discretion in allowing the report to be admitted into evidence.

BACKGROUND FACTS AND LEGAL PROCEEDINGS

The victim in this case, May N., was born on May 13, 1987. At all times relevant, May lived in Fort Washington with her parents, appellant, and sometimes her sister and godparents. May refers to appellant as her brother, and appellant refers to May as his half-sister.

The events leading to the charges against appellant came to the attention of the authorities in January 2002, when two teenagers claiming to be relatives of May attempted to remove her from her classes at the high school. Pursuing the teenagers’ request, the school’s registrar spoke with May and, as a result of that conversation, took her to see the school’s guidance counselor, and called Child Protective Services.

The Prince George’s County Police Department became involved in the case. Detective Chrystal Tibbs interviewed May and Conchita N., May’s mother. In a written statement provided to Detective Tibbs, May reported that appellant had been sexually abusing her since she was four or five years old.

In July 2002, appellant was charged in a seven-count indictment with child abuse, second degree rape, sexual offenses in various degrees, and second degree assault. Appellant pleaded not guilty to all charges and, on January 7, 2003, the case *532 came on for a jury trial in the Circuit Court for Prince George’s County.

May, then fifteen years old, testified about appellant’s sexual assaults upon her. She testified that “sometimes at night, probably around fifth grade, [appellant] would come into my room and touch me, and I would realize someone was there, but I knew it was him.” She elaborated: “[H]e would come in the bed with me and then say that he was going to just check for lumps or whatever to see if I had breast cancer, and not to tell Mom and Dad because they would get mad.” Appellant would touch her breasts and insert his finger in her vagina to “check for lumps,” telling her that “it had to hurt to show that [she] didn’t have the cancer.”

May testified that, as she grew older, she was forced to have intercourse with appellant. The first time this occurred, appellant’s former girlfriend, Christina K. (whom May referred to as “Christy”), was present. This was the only time anyone else was present during the assaults.

May explained that she did not report the assaults to her parents because appellant scared her with threats that “some-' thing would happen to [them] if [she] told, or that [her] dad would get in a fight with him and it wouldn’t really be [appellant’s] fault but [the fault of] the spirits.” May added: “[Appellant] said that if he were to go to jail—if I told, that my mom would become pregnant and it wouldn’t be my dad’s, and that Dad would just go crazy, or something would come over Dad, and Dad would be after me.” May testified that her last sexual contact with appellant occurred in October 2001.

May testified that she told her best friend, Jennifer L., what was going on. May explained: “I never told her in detail. I just told her that sometimes my brother would come into the room.” She added that she eventually told her cousins, her counselor, and her parents, and provided a detective with a written statement.

May was cross-examined about the statement she had given to the police. May had written in that statement that she was four or five years old when appellant first assaulted her. She *533 also wrote that Christy had said that she had talked with a ghost, “Sib”; that it was “good for Sib and appellant”; and that May was directed by Christy to take appellant’s hand and rub it over May’s body and kiss the palm of his hand. And she wrote that she had to suck appellant’s penis that night, and that Christy was hiding in the closet while this was happening.

The State called Jennifer to testify about May’s report to her of appellant’s sexual assaults. Over appellant’s objection (about which we shall say more later), the prosecution was permitted to ask Jennifer: “[Directing your attention to October 2001, what specifically did May tell you was going on at that time with her brother?”. To this question, Jennifer replied that May “would tell [Jennifer that appellant] would force her to have intercourse or any type of, like, oral sex or anything like that.” Jennifer confirmed, on cross-examination, that the acts May reported to her had occurred in October 2001.

Detective Chrystal Tibbs, a nine-year veteran of the Prince George’s County Police Department, testified that she had investigated approximately 100 cases while assigned to the Sex-Victim Unit. The State attempted on several occasions to elicit from Detective Tibbs whether, in her experience, it was unusual for victims to delay in reporting sexual assaults. On the first several of these attempts, appellant’s objections were sustained. Eventually, the State posed the question, “Based upon your training and experience, have you had occasion where victims of sexual abuse have not reported the abuse immediately?” Detective Tibbs answered “Yes.” Defense counsel objected and moved to strike the answer, to which the court responded, “But it wasn’t timely.”

In his defense case, appellant called Christina K., his former girlfriend, who testified that she began dating appellant when she was seventeen years old, had “practically lived with” appellant while they dated, and knew May “a little bit,” but that they “didn’t really talk much.” Christina denied ever having assisted, encouraged, or watched appellant engage May *534 in sexual acts. Appellant took the stand and denied committing any sexual acts with May.

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Cite This Page — Counsel Stack

Bluebook (online)
860 A.2d 396, 159 Md. App. 527, 2004 Md. App. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaerian-v-state-mdctspecapp-2004.