Mohan v. State

• Court: Court of Special Appeals of Maryland
• Decided: November 30, 2022
• Docket: 1853/21
• Status: Published

Opinion

Brandon Mohan v. State of Maryland, No. 1853, Sept. Term 2021. Opinion filed on November 30, 2022, by Berger, J.

STATUTORY INTERPRETATION - STATUTORY DEFINITION OF “PARENT” UNDER CRIMINAL LAW SECTION 3-602(B)(1) - “DE FACTO” PARENT - IN LOCO PARENTIS - STEPPARENT

The term “parent” under Md. Code (2002, 2021 Repl. Vol.), § 3-602(b)(1) of the Criminal Law Article does not include individuals who are stepparents, “de facto” parents, or individuals standing in loco parentis. The meaning of the term “parent” under Criminal Law Section 3-602(b)(1) is limited to individuals who are either the biological or adoptive parent of the child victim. A conviction for child sexual abuse cannot stand for an individual who is charged as a “parent” pursuant to Criminal Law § 3-602(b)(1) but who does not satisfy the statutory definition of “parent,” even if the individual could have been convicted if charged as a “household member” or “family member” pursuant to Criminal Law § 3-602(b)(2).

SENTENCING - REMAND FOR RESENTENCING AFTER VACATED SENTENCE

An appellate court has discretion to vacate and remand sentences where the sentencing package has been disturbed by a decision to reverse a conviction. On remand, the trial court may impose a sentence on any remaining counts up to the maximum incarceration available at the time of the defendant’s crime. The trial court may not impose a sentence that is more severe than the original aggregate sentence.

HEARSAY - PRIOR CONSISTENT STATEMENTS - MD. RULE 5-616(C)(2) - MD. RULE 5-802.1(B)

A prior consistent statement that is inadmissible under Md. Rule 5-802.1(b) as an exception to hearsay may be admissible as nonhearsay to bolster a witness’s credibility under Md. Rule 5-616(c)(2). A party opens the door to admission of prior consistent statements under Md. Rule 5-616(c)(2) when impeaching a witness’s credibility in either an opening statement or on cross examination. A prior consistent statement under Md. Rule 5-616(c)(2) must be consistent with the witness’s present testimony and detract from or logically rebut the impeachment. Circuit Court for Wicomico County Case No. C-22-CR-20-000497

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1853

September Term, 2021 ______________________________________

BRANDON MOHAN

v.

STATE OF MARYLAND ______________________________________

Berger, Friedman, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Majority Opinion by Berger, J. Concurrence by Friedman, J. ______________________________________

Filed: November 30, 2022

Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2022-11-30 12:24-05:00

Gregory Hilton, Clerk Appellant, Brandon Mohan, was charged in the Circuit Court for Wicomico County

with child sexual abuse, two counts of third-degree sex offense, two counts of fourth-

degree sex offense, and two counts of second-degree assault. The State charged Mohan

with committing sexual abuse of a minor, specifically as a “parent.” The jury convicted

Mohan of child sexual abuse, one count of third-degree sex offense, one count of fourth-

degree sex offense, and one count of second-degree assault. The circuit court sentenced

Mohan to twenty-five years’ incarceration for the child sexual abuse offense, and ten years

consecutive for the third-degree sex offense, but the court suspended the sentence for third-

degree sex offense in favor of a five-year period of probation and lifetime registration as a

sex offender.

Mohan presents two questions for our review,1 which we have rephrased, for clarity,

as follows:

I. Whether the circuit court erred in concluding Mohan was a “parent” under CR § 3-602(b)(1).

II. Whether the circuit court erred in admitting certain witness testimony as prior consistent statements.

For the reasons explained herein, we shall hold the circuit court erred in concluding

Mohan was a “parent” as contemplated by Md. Code (2002, 2021 Repl. Vol.), § 3-

602(b)(1) of the Criminal Law Article (“CR”) (hereinafter also referred to as “the criminal

1 Mohan’s original questions presented are as follows:

1. Was the evidence insufficient to sustain Appellant’s conviction for child sexual abuse?

2. Did the court err in admitting hearsay evidence? statute”). We shall further hold the circuit court did not err in admitting certain witness

testimony.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts of Mohan’s convictions are not in dispute. Accordingly, we

address only those facts essential to our review. Furthermore, to protect the privacy of the

witnesses and the victim, certain individuals will only be identified by first name or initial.

In 2016, Mohan began a relationship with Haley. At the onset of their relationship,

Haley was -- and still is -- the mother to a one-and-a-half-year-old girl, hereinafter referred

to as “C.” Mohan and Haley were later married in 2017, and then proceeded to live

together -- along with C -- in a mobile home in Salisbury, Maryland from 2018 to 2020.

In August 2020, C disclosed to Haley that, on two separate occasions, Mohan put

his penis on her vagina and/or told her to touch his penis. According to Haley’s testimony

at trial, Mohan denied these incidents occurred when she confronted him. Haley further

testified that C refuted Mohan’s denial. Haley further testified that Mohan ultimately

admitted to touching C with his penis and/or having C touch his penis.

The State charged Mohan with various sex abuse offenses including a charge for the

sexual abuse of a minor under CR § 3-602(b)(1). The Statement of Charges filed on

August 30, 2020, and the Criminal Information filed on October 21, 2020, provided in

relevant part:

STATEMENT OF CHARGES

UPON THE FACTS CONTAINED IN APPLICATION OF Officer: SCHULTZ, DET IT IS FORMALLY CHARGED

2 THAT MOHAN, BRANDON LEE at the dates, times and locations specified below:

006 10322 CR 3 602 ((b)(1)) 25Y

. . . did cause sexual abuse to JUVENILE FEMALE, a minor, the defendant being said child’s parent.

***

Count 1

THAT BRANDON LEE MOHAN, between the lst day of June, 2020 and the 30th day of August, 2020, in Wicomico County, State of Maryland, did cause sexual abuse to [C], [a] minor, the defendant being said child’s parent . . . CR:3:602 (b)(1).

In both the Statement of Charges and the Criminal Information, the State specified

that Mohan committed the alleged child sexual abuse as a “parent” of C.2 At the close of

the State’s case -- with respect to Count 1 for child sexual abuse -- Mohan moved for

judgment of acquittal. Mohan argued there was insufficient evidence to convict him as a

“parent” of C, and further, he was not a “parent” under the criminal statute because he was

neither C’s biological nor adoptive parent.

The trial judge denied Mohan’s motion and held he was a “parent” under the

criminal statute. Specifically, the circuit court judge found Mohan was a “parent” under

CR § 3-602(b)(1) because: (1) he was married to C’s mother at the time of the alleged

abuse and acted as a “live-in” step-parent; (2) he was a de facto parent; and (3) he stood in

loco parentis to C. After Mohan testified and the State presented its rebuttal, Mohan

2 As discussed in more detail below, the State charged, tried, and convicted Mohan under CR § 3-602(b)(1), specifically and only as a “parent.” 3 renewed his motion for acquittal. The circuit court denied Mohan’s motion, finding there

was sufficient evidence to convict him as a “parent” under CR § 3-602(b)(1).

Before submitting the case to the jury, the circuit court judge instructed that to find

Mohan guilty of child sexual abuse, the State must prove: (1) that Mohan sexually abused

C by sexual offense or sexual exploitation; (2) at the time of the abuse C was under 18

years of age; and (3) at the time of the abuse Mohan was a parent of C. The jury convicted

Mohan of child sexual abuse, one count of third-degree sex offense, one count of fourth-

degree sex offense, and one count of second-degree assault. The trial judge sentenced

Mohan to twenty-five years’ incarceration for the child sexual abuse offense, and ten years

consecutive for the third-degree sex offense. The trial court fully suspended the sentence

for the third-degree sex offense in favor of a five-year period of probation and lifetime

registration as a sex offender. Mohan’s convictions for fourth-degree sexual offense and

second-degree assault merged for sentencing with his conviction for third-degree sexual

offense. This timely appeal followed.

DISCUSSION

Standard of Review

When reviewing the sufficiency of the evidence to sustain a criminal conviction we

must determine “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Our review

is made without deference to the legal reasoning of the trial judge, and instead, we will

defer to the finder of fact and to “any reasonable inferences a jury could have drawn in

4 reaching its verdict.” Purnell v. State, 250 Md. App. 703, 711 (2021); Lindsey v. State,

235 Md. App. 299, 311 (2018).

Mohan argues there was insufficient evidence to sustain his conviction for child

sexual abuse. Mohan further maintains that the circuit court erred in its interpretation of

the term “parent” under CR § 3-602(b)(1). The critical question before us is whether the

circuit court erred in concluding that Mohan was a “parent” under the criminal statute.

Indeed, whether there was sufficient evidence to sustain Mohan’s conviction is secondary

to the initial question of whether the circuit court properly concluded that the General

Assembly intended the term “parent” to apply to an individual such as Mohan, who is a

step-parent with parental responsibilities. Because we must first determine whether the

circuit court correctly interpreted CR § 3-602(b)(1), our review is de novo. Richardson v.

Boozer, 209 Md. App. 1, 9 (2012) (“A question regarding statutory interpretation is a legal

question, which we review de novo.”).

I. The circuit court erred in concluding Mohan was a “parent” under CR § 3- 602(b)(1).

The goal of statutory interpretation “is to ascertain and effectuate the real and actual

intent of the Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 (2010). Statutory

interpretation begins with the plain language. Price v. State, 378 Md. 378, 387 (2003). If

the plain language of the statute is unambiguous, our inquiry ends, and the statute is applied

as written. Lockshin, supra, 412 Md. at 275. When the language is ambiguous, however,

we must look further to grasp the legislative intent, and will turn to other indicia “including

the relevant statute’s legislative history, the context of the statute within the broader

5 legislative scheme, and the relative rationality of competing constructions.” Harrison-

Solomon v. State, 442 Md. 254, 265–66 (2015). We do not read the statutory provision in

isolation, but rather, the statute “must be viewed within the context of the statutory scheme

to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting

the statute.” Lockshin, supra, 412 Md. at 276. Furthermore, we will not attempt to clarify

a statute with “forced or subtle interpretations” that would either limit or extend the

statute’s application. Id. at 275.

We presume the General Assembly “intend[ed] its enactments to operate together

as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize

the parts of a statute, to the extent possible consistent with the statute’s object and scope.”

Id. at 276. Further, “[w]e interpret statutes to give every word effect, avoiding

constructions that render any portion of the language superfluous or redundant.” Blondell

v. Balt. City Police Dep’t, 341 Md. 680, 691 (1996). Indeed, in all cases concerning

statutory interpretation, we seek “a reasonable interpretation -- one that is consonant with

logic and common sense.” Twigg v. State, 447 Md. 1, 24 (2016).

Our interpretation of the criminal statute is focused on the meaning of the word

“parent” as used in CR § 3-602(b)(1). This is because the State -- rather than charging

Mohan generally under the statute -- charged and tried Mohan specifically and only as a

“parent” of C. The circuit court determined Mohan was a “parent” as contemplated by the

criminal statute because he was: (1) a “live-in” step-parent; and (2) a de facto parent; and

(3) he stood in loco parentis to C. Accordingly, we are tasked with determining whether

6 the General Assembly intended the word “parent” to be broadly interpreted to include these

classes of individuals.

The criminal statute under which Mohan was charged reads as follows:

(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.

CR § 3-602(b)(1).

The word “parent,” read on its own, is subject to two or more reasonable

interpretations. Gilmer v. State, 389 Md. 656, 663 (2005) (“When there is more than one

reasonable interpretation of a statute, however, the statute is ambiguous.”). It is reasonable

to read the word “parent” to mean exclusively biological or adoptive parent. The term may

also be read in a broader, more colloquial sense, including a step-parent with

responsibilities akin to those of a parent. The ambiguity of the term “parent” arises from

the lack of any clarifying definition provided by the General Assembly. Accordingly,

because the term “parent” is subject to more than one reasonable interpretation -- for the

want of a supplied definition -- we must turn to other indicia of the legislative intent to

determine the contemplated meaning of the term. Harrison-Solomon, supra, 442 Md. at

265–66.

Our inquiry and reading of the statute must not be siloed to a single word or

subsection alone. Indeed, we will “view[] the statute within the context of the statutory

scheme to which it belongs . . .” Lockshin, supra, 412 Md. at 276. Although there is no

supplied definition of the term “parent,” we endeavor to discover the contemplated

7 meaning of the term by examining the other classes of individuals prohibited from causing

sexual abuse to a minor.

CR § 3-602(b)(1) designates three discernable classes of persons prohibited from

causing sexual abuse to a minor: (1) parents; (2) other persons who have permanent or

temporary care or custody of a minor; and (3) other persons who have responsibility for

the supervision of a minor.3 Subsection 3-602(b)(2) prohibits the sexual abuse of a minor

by the following additional classes of individuals:

(2) A household member or family member may not cause sexual abuse to a minor.

CR § 3-602(b)(2).

Unlike the term “parent,” the terms “family member” and “household member” are

clearly defined in CR § 3-601(a):

(3) “Family member” means a relative of a minor by blood, adoption, or marriage.

(4) “Household member” means a person who lives with or is a regular presence in a home of a minor at the time of the alleged abuse.

CR § 3-601(a)(3)-(4).

3 The Court of Appeals has previously equated “permanent or temporary care or custody” with an individual who is standing in loco parentis. See Pope v. State, 284 Md. 309, 322 (1979) (“Bowers equates ‘permanent or temporary care or custody’ with in loco parentis, but ‘responsibility for the supervision of’ is not bound by certain of the strictures required for one to stand in place of or instead of the parent.”) Accordingly, we equate “permanent or temporary care or custody” as used in CR § 3-602(b)(1) with the term and meaning of in loco parentis. 8 Accordingly, the criminal statute, read in its entirety, prohibits the following five

classes of individuals from causing sexual abuse to a minor: (1) parents; (2) other persons

who have permanent or temporary care or custody of a minor and/or are individuals

standing in loco parentis; (3) other persons who have responsibility for the supervision of

a minor; (4) family members related by blood, adoption, or marriage; and (5) household

members who live with the minor or have a regular presence in the home at the time of the

abuse.

In total, the classes of individuals range from “parent,” to marital or blood relatives,

to individuals who only have a regular presence in the home. Indeed, the General

Assembly constructed a comprehensive statute in order to apply to as many individuals as

possible who might have a close relationship of trust with a minor child. Accordingly, a

primary consideration we face is whether a broad interpretation of the term “parent” would

render any other portion of the statutory scheme “surplusage, superfluous, meaningless, or

nugatory.” Gilmer v. State, 389 Md. 656, 663 (2005).

In this context, we determine whether the word “parent” as used in CR § 3-602(b)(1)

is meant to be broadly interpreted to include an individual such as Mohan who was a “live-

in” step-parent of C. Notably, the circuit court arrived at its conclusion that Mohan was a

“parent” under CR § 3-602(b)(1) by reasoning that:

The argument of defense counsel is that Mr. Mohan is not a parent as contemplated by Criminal Article 3-602(b)(1). I find that he is a parent as contemplated by 3-602(b)(1) just using common sense.

He is married or he was at the time of the allege[d]. He was married to [C]’s mother. I believe using the factors that

9 were articulated in the Conover4 case, in the spirit of that case, that he was acting as a de facto parent. That the legal parent or the biological parent, she facilitated the relationship between Mr. Mohan and [C]. He was her father figure. That’s the testimony. That he was a live-in [step-parent]. He provided the functions of the [step-parent].

So, again, I just see all of the elements there.

Most importantly, I think the reason the legislature promulgated this statute and defined a parent as a person who could commit this offense, it’s because of that -- how -- it’s that breach of trust that I believe that was probably contemplated by the legislature that was so volatile of decency and volatile of what we all experience as what should not happen in a civilized society.

So the rationale behind the statute’s promulgation I think will be further[ed] by me finding that Mr. Mohan is a parent as as (sic) contemplated by that statute.

He is -- also stands in loco parentis as counsel has stated. Again, maybe not a dispositive fact, but a factor nonetheless. So I deny your motion for that, on that ground.

By the circuit court’s reasoning, Mohan was a “parent” under CR § 3-602(b)(1)

because the nature of his relationship to C was characteristic of a “parent.” The circuit

court utilized three “factors” to conclude Mohan was a “parent” under the criminal statute:

(1) he was married to C’s biological mother at the time of the abuse and acted as a “live-

in” step-parent; (2) he was a de facto parent under the four-factor test in Conover; and

(3) he stood in loco parentis to C.

We first consider whether the General Assembly intended for the term “parent” to

include an individual who stands in loco parentis. Again, our goal is to ascertain the intent

4 Conover v. Conover, 450 Md. 51, 74 (2016). 10 of the General Assembly, and we will read the entire statute in a way that “avoid[s]

constructions that render any portion of the language superfluous or redundant.” Blondell,

supra, 341 Md. at 691.

Broadly interpreting “parent” to include individuals standing in loco parentis and/or

having “permanent or temporary care or custody” results in unnecessary redundancy.5 This

is because “parent” and in loco parentis appear as separate categories in the same

subsection. The General Assembly clearly delineated the statute by including a disjunctive

in the provision: “parent or other person who has permanent or temporary care or custody

. . .” CR § 3-602(b)(1) (emphasis added). In our view, this indicates that the General

Assembly intended “permanent or temporary care or custody” -- and/or in loco parentis --

to operate independently, and not to serve as a factor to find that a criminal defendant is a

“parent.” We, therefore, hold the trial judge erred by including “in loco parentis” and/or

“permanent or temporary care or custody” within the contemplated meaning of the term

“parent.”6

5 Again, the Court of Appeals previously equated “permanent or temporary care or custody” with an individual standing in loco parentis. See Pope v. State, 284 Md. at 322. 6 We must emphasize our interpretation does not mean a biological or adoptive parent could not also stand in loco parentis. Instead, our interpretation concludes all biological or adoptive parents may stand in loco parentis, but not all individuals who stand in loco parentis are equivalent to a “parent” under the contemplated meaning of the term and the legislative intent of the statute.

11 We now consider whether the General Assembly intended “parent” to be interpreted

to include individuals who are de facto parents under the four-factor test in Conover.7 By

the plain language of the statute, there is no indication the General Assembly intended the

term “parent” to include de facto parents. This is simply because the term -- or any intent

to include the term -- is absent. Our research -- thorough we trust -- has revealed that de

facto parenthood -- as a legal concept set forth in Conover -- has never been used in any

Maryland case to interpret a criminal statute or to determine the application of a criminal

statute to a defendant charged with a crime. Indeed, the de facto parent factors have limited

application for establishing “standing to contest custody or visitation.” Conover, supra,

450 Md. at 85. We, therefore, reject the invitation to broadly interpret a criminal statute to

incorporate the civil de facto parent doctrine into an area in which it has no origin or

corollary application.

Furthermore, interpreting “parent” to include an individual who is a de facto parent,

as defined by the four factors in Conover, would result in unnecessary redundancy when

viewed in the context of the statutory scheme. At least two of the four Conover factors --

assuming parental obligations and responsibilities and sharing the same household -- are

7 The four Conover factors are: “(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child's support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.” Conover, supra, 450 Md. at 74 (2016). 12 already present in subsections 3-601(b)(1) as the “responsibility for [] supervision,” and as

a “household member” under subsection 3-601(b)(2). Broadly interpreting “parent” to

include these categories that resemble the Conover factors undermines the General

Assembly’s clear intent to specifically delineate relationships to a minor child that are less

than a biological or adoptive parent. We hold that individuals who are neither biological

nor adoptive parents are not “parents” under CR § 3-602(b)(1) even if they satisfy the non-

statutory criteria for de facto parenthood.

Lastly, we consider whether the General Assembly intended the term “parent” to be

broadly interpreted to include someone who is a step-parent to a minor child. By the plain

language of the statute, there is no indication that the General Assembly intended “parent”

to include step-parents. Broadly interpreting “parent” to include an individual who is a

“live-in” step-parent is not necessarily redundant. Nevertheless, narrowly interpreting

“parent” to exclusively mean biological or adoptive parent is consistent with the legislative

intent and is in harmony with the remainder of the statute. This is because a step-parent

could fall under CR § 3-602(b)(2) as a “family member” related to the minor child by

marriage.

The fact that a legally married step-parent could fall under a separate subsection --

which carries the same maximum penalty as a “parent,” if convicted -- indicates that the

General Assembly intended to narrowly construe “parent” to biological and adoptive parent

only. When weighing “the relative rationality of competing constructions[],” it is more

rational to construct the statute and the meaning of the term “parent” in a way that is more

exclusive rather than inclusive. Harrison-Solomon, supra, 442 Md. at 265–66. This

13 reasoning is buttressed by the multitude of cases that stand for the widely understood legal

meaning of the term “parent” to be limited to biological or adoptive parent only. See E.N.

v. T.R., 474 Md. 346, 351 (2021) (“a child’s legal parent, i.e., biological or adoptive

parent[]”); Kpetigo v. Kpetigo, 238 Md. App. 561, 569 (2018) (“Instead, step-parents

previously have stood in the same shoes as other non-parental third parties.”). Further, any

ambiguity must be construed in favor of the criminal defendant.8 As a result, we hold that

the General Assembly did not intend for the term “parent” under CR § 3-602(b)(1) to

include individuals who are step-parents.

In sum, the ambiguity regarding the term “parent” is resolved when viewed in

context of the larger statutory scheme. The most logical and harmonizing conclusion is

that “parent” is meant to be narrowly construed as biological or adoptive parent only. The

classes of individuals that share characteristics of de facto parenthood and in loco parentis

are identified in other subsections of the statute. Interpreting “parent” to include these

classes would render both “parent” and the other subsections redundant and would

unnecessarily broaden the penal statute. Furthermore, narrowly interpreting “parent” as a

biological or adoptive parent -- excluding step-parents -- does not cut against the legislative

8 We have been mindful throughout our review of this case that it is “[a] fundamental principle that penal statutes are to be strictly construed[],” and interpreted narrowly so that “courts will not extend the punishment to cases not plainly within the language used.” Ishola v. State, 404 Md. 155, 162 (2008) (internal quotation marks and citations omitted). This fundamental principal, i.e., the rule of lenity, may be applied “when all other tools of statutory construction fail to resolve an ambiguity.” Oglesby v. State, 441 Md. 673, 681 (2015). 14 intent of prohibiting as many individuals as possible who are in a position of trust from

sexually abusing a minor.

Moreover, although our decision is made without deference to the circuit court’s

findings, we must emphasize the forced and subtle interpretation engaged by the circuit

court to extend the statute’s application to Mohan. The circuit court reasoned that Mohan

was a “parent” because his relationship with C was characteristic of certain modes of

relationship to a minor child. The circuit court then used these characteristics as “factors”

to conclude he was effectively a “parent” under CR § 3-602(b)(1).

The effect of such makeshift statutory interpretation cuts against the General

Assembly’s intent to clearly differentiate the various modes of culpability. Had the

General Assembly intended to create a statute that would allow someone to be charged and

convicted as a “parent” by meeting various statutory and non-statutory criteria, it could

have easily done so. Instead, the General Assembly created classes of individuals ranging

from the narrowly specific -- a biological or adoptive parent -- to more general classes of

persons. Indeed, interpreting “parent” as its plainly understood legal meaning speaks to,

and does not detract from, the General Assembly’s intent to create four other categories

that capture various individuals who stand in a close position of trust to a minor child. To

interpret “parent” so broadly as to swallow these other categories would detract from the

General Assembly’s efforts to craft such a comprehensive statutory scheme.

We, therefore, hold the contemplated meaning of “parent” under CR § 3-602(b)(1)

is limited to biological or adoptive parent only. Because Mohan was neither the biological

15 nor adoptive parent of C, his conviction for child sexual abuse under CR § 3-602(b)(1)

must be reversed.

The circuit court relied on its factual findings that Mohan was a “live-in” step-

parent, and a de facto parent, and stood in loco parentis to C to conclude Mohan was a

“parent” under the criminal statute. Although the State does not adopt all the circuit court’s

reasoning, we address the State’s arguments on appeal.

First, the State, in attempting to defend essentially the charging decision made in

this case, asserts Mohan’s argument only implicates a variance between the allegata and

the probata -- or in other words -- a variance between what was alleged in the Criminal

Information and what was introduced at trial. Crispino v. State, 417 Md. 31, 51 (2010) (“A

variance has been defined as a difference between the allegations in a charging instrument

and the proof actually introduced at trial.”) (internal quotation marks and citations omitted).

Although the State improperly construes Mohan’s argument, it is certainly correct

that there was no variance between what the Criminal Information alleged and what was

presented at trial. The Statement of Charges, the Criminal Information, the evidence

adduced at trial, and Mohan’s ultimate conviction, all operated under the State’s theory

that Mohan was a “parent” of C. Accordingly, there is no difference between the allegata

or probata. This revelation, however, does not support the State’s position here

because -- as we have held based on our holding -- Mohan is not a “parent” of C under the

criminal statute and the specific language with which he was charged.

Second, the State argues the evidence was legally sufficient to prove Mohan was a

“parent or other person who [had] permanent or temporary care or custody[.]” The State

16 avers the evidence introduced at trial -- as well as Mohan’s own testimony -- conclusively

established he stood in loco parentis to C and was a person with care or custody of C within

the meaning of CR § 3-602(b)(1). The State asserts the various modes of culpability under

the criminal statute are not mutually exclusive and therefore not inconsistent with the

notion that a “parent” may also have “care or custody” of a minor.

The State’s logic is correct. It is entirely possible for an individual to be both a

“parent” and to have “care or custody” of a minor. The State is incorrect, however, in its

assertion that “the charging document may be construed as charging Mohan under § 3-

602(b)(1) generally[.]” The Statement of Charges and the Criminal Information did not

charge Mohan generally. Instead, it charged him specifically and only as a “parent.”9 We

are prohibited from construing the Criminal Information beyond the language used in the

Criminal Information to create a broader category of uncharged criminal culpability. See

Tapscott v. State, 106 Md. App. 109, 135 (1995) (“[w]hen the State delineated the

particular section of the statute, however, it charged only the conduct and circumstances

proscribed by that section.”).

In Tapscott, the State charged the defendant with violating the predecessor to

CR § 3-602(b)(1). The indictment alleged that the defendant was a person “having

responsibility for supervision” of the minor child. Id. at 133. The trial court instructed the

jury that it could find the defendant guilty of child abuse if Tapscott either had permanent

9 The relevant portion of the Statement of Charges and Criminal Information provided: “[Mohan]… did cause sexual abuse to JUVENILE FEMALE, a minor, the defendant being said child’s parent” and “[Mohan] did cause sexual abuse to [C], [a] minor, the defendant being said child’s parent[.]” 17 or temporary care of the child or had responsibility for the supervision of the child. Id. at

133 n.12.

We reversed and explained that:

If the State was unsure about the circumstances under which the sexual activity occurred, it could have generally charged appellant under the statute. When construing the rule established in Leon v. State, 180 Md. 279, 23 A.2d 706 (1942), the court in Morrissey v. State, 9 Md. App. 470, 475–476, 265 A.2d 585 (1970) stated:

When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute. See also Ayre v. State, 21 Md. App. 61, 65, 318 A.2d 828 (1974).

When the State delineated the particular section of the statute, however, it charged only the conduct and circumstances proscribed by that section, and, absent appellant's consent, was barred from later amending the indictment to charge different circumstances.

Id. at 135.

Our review of the record in this case reveals that during the trial, the State fully

adopted the circuit court’s reliance on Conover in support of its conclusion that Mohan was

a de facto parent, and therefore a “parent” under the criminal statute. The State has since

abandoned its support of the circuit court’s reliance on Conover in order to raise another

argument that there was sufficient evidence presented at trial to presume Mohan was a legal

parent of C.

18 The State acknowledges that presumptive legal parentage was never discussed at

trial and that the jury was not asked to determine whether Mohan was C’s legal parent

based on that statutory presumption of parentage. In its brief, the State cities multiple

“presumptive parentage” statutes in its effort to establish Mohan’s status as a “parent”

under CR § 3-602(b)(1). In our view, these provisions do not apply to the context and facts

of this case. First, the presumptions of parentage the State cites apply in the “civil” law

context, as they are found in the Estates and Trusts and the Family Law Articles of the

Maryland Code, applying to civil disputes clarifying rights, responsibilities, and

relationships of family members. See Md. Code (1974, 2022 Repl. Vol.), §§ 1-206, 1-208,

1-208.1(a) of the Estates & Trusts Article (“ET”); see also Md. Code (1984, 2019 Repl.

Vol), §§ 5-1001(j), 5-1027 of the Family Law Article (“FL”). Second, the facts of this case

do not implicate these provisions. The rebuttable presumption of parentage applies to “a

child born to parents who have not participated in a marriage ceremony with each other.”

ET § 1-208(a), (c) (emphasis added); see also FL § 5-1001(j) (defining “putative father”

as an alleged father presumed to be the parent under ET § 1-208(c)).

In this case, Mohan and Haley began their relationship after C’s birth. Indeed,

Haley gave birth to C a year-and-a-half before beginning a relationship with Mohan. This

was not a situation where the couple were dating, Haley became pregnant, and then C was

born, giving rise to a presumption of paternity for Mohan. Contra Monroe v. Monroe, 329

Md. 758, 769–71 (1993) (holding putative father doctrine applied to couple who became

pregnant and had the child while dating, thus barring introduction of genetic testing by

mother attempting to rebut the presumption). Moreover, even if the putative father or

19 presumptive parent doctrine could apply to such a criminal case when a child was born

well before the alleged father began dating the child’s natural mother, the party seeking to

establish the presumption would still need to show that the alleged father (1) acknowledged

in writing he was the child’s father; (2) openly and notoriously recognized the child as his

child; or (3) subsequently married the mother and acknowledged the child as his, either

orally or in writing. ET § 1-208(c).

Indeed, there was no discussion, argument, or instruction to the jury regarding the

presumption of Mohan’s alleged legal parentage. Because this argument has not been

presented or preserved at trial, we decline to address it on appeal. Robinson v. State, 404

Md. 208, 216–17 (2008) (“It is well-settled that an appellate court ordinarily will not

consider any point or question “unless it plainly appears by the record to have been raised

in or decided by the trial court.”) (citing Md. Rule 8–131(a)); State v. Grafton, 255 Md.

App. 128, 145 (2022); see also Woodline v. State, 254 Md. App. 691, 708 (2022) (“Under

Maryland Rule 8-131(a), ‘[o]rdinarily, [this] court will not decide any . . . issue unless it

plainly appears by the record to have been raised in or decided by the trial court.’”).

Even if the State argued Mohan’s presumptive parentage during the trial, we

struggle to see how applying such a presumption to a criminal statute in which parentage

is an element of the crime charged would not implicate long-standing due process

concerns. “The State always has the burden to prove all elements of a criminal charge

beyond a reasonable doubt.” O’Sullivan v. State, 476 Md. 602, 638 (2021). Permitting

presumptions that establish necessary elements of a criminal offense unconstitutionally

“[casts] upon a defendant that sort of burden of ultimately persuading the jury of his

20 innocence (by negating in one fashion or another the necessary criminal element[)].”

Evans v. State, 28 Md. App. 640, 707 (1975), aff’d, 278 Md. 197 (1976). “A

presumption . . . may still have some utility for civil trials, but in a criminal trial it cuts

squarely athwart the due process requirement that the State prove every element of a crime

(including mens rea) beyond a reasonable doubt.” Id. at 707–08.

Further, when applying a paternity presumption in a civil dispute regarding

parentage, “the burden is on the complainant to prove that the ‘alleged father is the father

of the child.’” In re Roberto d.B., 399 Md. 267, 276 (2007); FL § 5-1027(a) (“At the trial,

the burden is on the complainant to establish by a preponderance of the evidence that the

alleged father is the father of the child.”). Even if the presumption of parentage could

somehow apply in a criminal case, the burden would still be on the State to prove the

presumption applies to Mohan. In this case, the use of the term “parent” in CR § 3-

602(b)(1) defines the relationship that must exist between the perpetrator and the victim

for that specific subsection of the statute to apply. That makes “parent” an element of the

crime charged. Therefore, because the State charged Mohan as a “parent,” the State had

the burden of establishing beyond a reasonable doubt this requisite element, that Mohan

was C’s “parent.”

We conclude that the criminal statute’s (CR § 3-602(b)(1)) contemplated meaning

of the term “parent” is limited to biological or adoptive parents. Indeed, the legislative

history of the statute at issue supports our analysis. The legislative history is addressed in

Pope v. State, 284 Md. 309 (1979), where the Court of Appeals noted that:

21 The General Assembly first evidenced its concern with the mistreatment of children fifteen years ago when it added § 11A to Art. 27 of the Maryland Code, later codified as Section 35A of that article, declaring an assault on a child to be a felony. The statute in its entirety provides:

“Any parent, adoptive parent or other person who has the permanent or temporary care of custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the Penitentiary.”

Id. at 317.

Undoubtedly, “parent,” as originally enacted, referred to “biological parent” instead

of “adoptive parent.” This is underscored by the holding in Pope, equating “parent” with

biological parent. Id. at 328-29. Thereafter, “adoptive parent” was dropped from the

predecessor to CR § 3-602(b)(1) in 1984. The legislative history regarding that amendment

reflects the following:

REVISOR’S NOTE: This subsection formerly appeared as Article 27, § 35A(b)7.

In item (1) of this subsection, the words “adoptive parent”, which formerly followed “parent”, are deleted as unnecessary.

1984 Md. Laws Ch. 296 at 16. Clearly, “adoptive parent” was “unnecessary” because

“adoptive parent” is a parent akin to a biological parent, and therefore, falls within the

ambit of “parent” as originally enacted.

Mohan, who was a “live-in” step-parent or individual who stood in loco parentis to

C, is not a “parent” under CR § 3-602(b)(1). Accordingly, we reverse Mohan’s conviction

22 for child sexual abuse. Given the circumstances of this case, however, we shall also vacate

Mohan’s sentence for third-degree sexual offense (which was completely suspended) and

remand the conviction for that offense for resentencing. Twigg, supra, 447 Md. at 30 n. 14

(affirming an appellate court’s discretion to vacate “all sentences originally imposed on

those convictions and sentences left undisturbed on appeal, so as to provide the court

maximum flexibility on remand to fashion a proper sentence that takes into account all of

the relevant facts and circumstances.”).

Here, the circuit court sentenced Mohan to 25-years’ incarceration for child sexual

abuse, the statutory maximum. See CR § 3-602(c). For the third-degree sexual offense,

the court sentenced Mohan to 10 years, consecutive to the 25-year sentence, but entirely

suspended the 10-year sentence in favor of five years of supervised probation.

Accordingly, Mohan’s total sentence was 35 years, with all but 25 years of the period of

incarceration suspended. In light of our reversing Mohan’s conviction for child sexual

abuse, the only sentence remaining in this case is the suspended 10-year sentence for third-

degree sexual offense.

We, therefore, vacate and remand the remaining sentence for third-degree sex

offense to the circuit court for resentencing. Under Maryland Rule 8-604(d)(1), an

appellate court is authorized to remand a case to a lower court if it “concludes that the

substantial merits of a case will not be determined by affirming, reversing or modifying

the judgment, or that justice will be served by permitting further proceedings.” Md. Rule

8-604(d)(1). Further, under the reasoning in Twigg and its progeny, we “remand in a case

where the sentencing package was disturbed by a decision to reverse a conviction.”

23 Johnson v. State, 248 Md. App. 348, 357 (2020); see also Nichols v. State, 461 Md. 572,

609 (2018) (“where an appellate court determines that at least one of a defendant's

sentences must be vacated, the appellate court may vacate all of the defendant's sentences

and remand for resentencing.”).

In sum, we reverse Mohan’s conviction for child sexual abuse under CR § 3-

602(b)(1). We vacate Mohan’s sentence for third-degree sexual offense and remand to the

trial court for resentencing. In so doing, the trial court will “[be] in the best position to

assess the effect of the withdrawal and to redefine the package’s size and shape (if, indeed,

redefinition seems appropriate).” Twigg, supra, 447 Md. at 28. The sentencing court may

impose a sentence on the remaining count for third-degree sexual offense up to “the

maximum . . . incarceration available at the time of [the defendant’s] crime[].” Id. at 30.

Any new sentence, however, cannot “exceed the aggregate sentence imposed originally.”

Id. at 30 n.14. In other words, the new aggregate sentence cannot be “more severe” than

the original aggregate sentence. State v. Thomas, 465 Md. 288, 310 (2019).

II. The circuit court did not err in admitting certain testimony as prior consistent statements.

Mohan presents an additional argument that the circuit court erred in admitting

hearsay evidence at trial. Mohan asserts the circuit court improperly admitted out-of-court

statements, specifically witness statements reciting Haley’s statements of C’s disclosure of

Mohan’s alleged abuse as well as Mohan’s alleged admissions. Mohan argues these

witness recitations of Haley’s statements are hearsay and not subject to any exception to

the rule against hearsay.

24 Mohan challenges three evidentiary submissions: (1) the testimony from social

worker Keri Hignutt conveying Haley’s prior statements; (2) the testimony from Detective

Daniel Shultz conveying Haley’s prior statements; and (3) a screenshot of a series of text

messages sent by Haley to Mohan’s mother. The circuit court admitted the evidence and

determined the testimony was admissible as prior consistent statements. We review de

novo the circuit court’s legal determinations. Brooks v. State, 439 Md. 698, 709 (2014).

We summarize the context of the statements to address Mohan’s contention that the

testimony and text messages were improperly admitted into evidence. During the State’s

case-in-chief, Haley testified that C told her that Mohan put his penis on her vaginal area

on two separate occasions, approximately a month between incidents. Haley further

testified that Mohan denied that these incidents occurred, but he subsequently admitted that

the exposure to C did, in fact, occur. Haley testified she “[told] the police what [her]

daughter had said,” and further, what Mohan had admitted.

On cross-examination, defense counsel asked Haley about what she told Detective

Shultz and social worker Keri Hignutt, specifically regarding C’s disclosure and Mohan’s

admission:

Q. When you went to the police, . . . [o]ne of the people you talk to is a lady by the name of Keri Hignutt . . . [a] lady affiliated with the Child Advocacy Center?

A. Yes.

Q. Now, when you spoke to Ms. Hignutt, you provided her information not just about what [C] told you but what Brandon is supposed to have told you. You talked to her about both of those things?

25 A. Yes.

Q. Your testimony just moments ago during direct was that Brandon’s admission to you was in your mind, and as a paraphrase, so clear it up for me if I’m wrong, but Brandon’s disclosure to you, Brandon’s admission to you, was substantially similar to what [C] had told you had happened?

Q. I want to break that down a little bit. Because when you went to the police the next day and you spoke to Ms. Hignutt, isn’t it true that you told Ms. Hignutt, Keri, that [C] had touched his penis a few days prior?

A. I wasn’t—I don’t think I said that. I’m not sure.

Q. You—

A. It was—I may have said it in that way, but what I had meant was Brandon told her to touch—she—the bottom line, she had touched his penis.

Q. And that’s just the first part of breaking it down, because you also told Keri, Ms. Hignutt, that Brandon’s admission to you was that the prior event—

A. Uh-huh.

Q. —the event that had happened some weeks or months prior consisted of [C] watching Brandon urinate? That’s what you told Keri Brandon’s admission was?

A. Okay.

Q. Well, I’m asking.

A. I don’t know. I don’t know.

Q. Isn’t that what you told Keri?

A. It was a year ago. I’m not sure.

26 Q. Okay.

A. It was a very stressful time.

Q. I understand.

Q. But you’d agree it’s an important distinction?

A. Absolutely.

Q. Touching penis to vagina versus a child who is regularly bathed by someone seeing her father figure’s penis?

Q. You would agree those are quite different?

On redirect examination, Haley testified that on the same day that she spoke to

Detective Shultz and Ms. Hignutt, she also communicated via text message with Mohan’s

mother. Haley testified the topic of their conversation related to C’s and Mohan’s

statements. The State showed Haley a copy of her text message exchange with Mohan’s

mother to refresh her recollection “as to exactly what Mr. Mohan had told [her].” Haley

testified -- based on her refreshed recollection -- that Mohan told her “it happened two

times, and that [C] watched him pee the first time, and then the second time that she touched

his penis.” Haley testified that Mohan’s version of events was inconsistent with what C

had disclosed to her.

C then took the stand and testified that Mohan put his penis on her vaginal area

during both incidents. C’s testimony was consistent with the description Haley provided

to Ms. Hignutt and Detective Shultz. When Ms. Hignutt and Detective Shultz testified, the

27 State asked what Haley had told them regarding C’s disclosure of the alleged abuse to her,

drawing hearsay objections from defense counsel. The circuit court overruled both

objections and allowed the testimony as prior consistent statements. The circuit court

further determined that defense counsel had opened the door to the admission of the prior

consistent statements by questioning Haley about the consistency of her disclosures to Ms.

Hignutt and Detective Shultz. Both witnesses then testified that Haley told them that C

disclosed to her that Mohan had inappropriately touched her and put his penis on her

vaginal area.

Mohan took the stand in his defense and testified that he did not inappropriately

touch C, but rather, C saw his penis when he was using the bathroom and he showed it to

her when she asked to see it. Mohan testified on cross-examination, however, that C

touched his penis without his consent and did so deliberately against his instruction not to

do so. Mohan then testified -- contrary to Haley’s prior testimony -- that he told her C had

touched his penis on her own volition.

The State called Haley in rebuttal and offered her text message exchange with

Mohan’s mother to serve as a prior consistent statement regarding what she conveyed to

her about Mohan’s admission to her. The court determined the text message exchange was

admissible as a prior consistent statement and that the danger of unfair prejudice did not

substantially outweigh its probative value.

Mohan argues that the three statements are inadmissible hearsay, and do not meet

the exception for hearsay as prior consistent statements under Md. Rule 5-802.1(b). The

State argues the evidence was properly admitted -- not as an exception to hearsay -- but

28 rather, as nonhearsay as prior consistent rehabilitative statements properly introduced

under Md. Rule 5-616(c)(2).

Prior consistent statements may serve two purposes under the Maryland Rules. A

prior consistent statement offered not for its truth or for substantive evidence may be used

to rehabilitate a witness’s credibility under Md. Rule 5-616(c)(2):

(2) Except as provided by statute, evidence of the witness's prior statements that are consistent with the witness's present testimony, when their having been made detracts from the impeachment[.]

Md. Rule 5-616(c)(2).

Alternatively, when a prior consistent statement is offered for its truth and as

substantive evidence -- hearsay -- it may nevertheless be admitted as an exception to

hearsay if it is:

(b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.]

Md. Rule 5-802.1(b).

Accordingly, the key difference between these provisions is that Md. Rule 5-

616(c)(2) applies to nonhearsay rehabilitative statements whereas Md. Rule 5-802.1(b)

applies to hearsay statements that rebut an express or implied charge of fabrication or

motive to deceive. We have previously summarized the interplay of the two rules: “When

a prior consistent statement is inadmissible under Md. Rule 5-802.1(b), it may nevertheless

be admissible as nonhearsay to bolster credibility under Md. Rule 5-616(c)(2)[.]”

29 Quansah v. State, 207 Md. App. 636, 658 (2012). Indeed, statements made under Md. Rule

5-616(c)(2) for rehabilitative purposes are apart from hearsay statements:

Prior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth since they are repetitions of the witness’s trial testimony. They are relevant because the circumstances under which they are made rebut an attack on the witness’s credibility. Thus, such statements by definition are not offered as hearsay and logically do not have to meet the same requirements as hearsay statements falling within an exception to the hearsay rule.

Thomas v. State, 429 Md. 85, 108 (2012) (quoting Holmes v. State, 350 Md. 412, 427).

Accordingly, we must first determine whether the evidence at issue was offered as

substantive hearsay evidence or non-substantive evidence to rehabilitate Haley as a

witness. The law is settled that “[i]f the proponent of the evidence is asking the jury to rely

on what the declarant said, out-of-court, as true (accurate), it is hearsay.” Thomas, supra,

429 Md. at 109 (quoting Lynn McLain, Md. Rules of Evidence 182 (2d ed. 2002)).

The testimony from Detective Shultz, Ms. Hignutt, and the text message exchange

between Haley and Mohan’s mother were offered to rehabilitate Haley’s credibility by

showing the consistency of her disclosures with her trial testimony. Indeed, these

statements were not offered for their content -- that Mohan initiated the encounters with C

-- but rather, that Haley consistently relayed Mohan’s alleged admission and C’s disclosure

to Detective Shultz, Ms. Hignutt, and Mohan’s mother. The admission of these statements

falls within the ambit of Md. Rule 5-616(c)(2) where “defense [counsel] contended that

30 [Haley] made inconsistent out-of-court statements and the [witness] testimony was offered

to rebut a prior inconsistency.”10 Thomas, supra, 429 Md. at 110.

Having determined the statements were not offered for their truth or as substantive

evidence, we now address whether the statements satisfy the requirements of Md. Rule 5-

616(c)(2). The offered statements must be consistent with the witness’s present testimony

and detract from or logically rebut the impeachment. Thomas, supra, 429 Md. at 108.

Haley was effectively impeached by defense counsel during cross-examination

when counsel drew attention to her lack of memory and/or inconsistencies regarding what

she reported to Detective Shultz, Ms. Hignutt, and Mohan’s mother. The State then elicited

statements from Detective Shultz, Ms. Hignutt, and the text message exchange with

Mohan’s mother that reiterated Haley’s consistent description of events in direct

examination, thereby attempting to rehabilitate her. Accordingly, Haley’s statements that

were relayed to Detective Shultz, Ms. Hignutt, and Mohan’s mother were consistent with

her prior statements and had the effect of detracting from defense counsel’s impeachment.

We hold, therefore, that the circuit court did not err in admitting this evidence as prior

consistent rehabilitative statements under Md. Rule 5-616(c)(2).

10 We note that Md. Rule 5-616(c)(2) has a necessary predicate that the witnesses be impeached before a prior consistent statement may be introduced to rehabilitate. In other words, a party “open[s] the door” to evidence that is relevant and admissible -- for the purpose of rehabilitation -- when that party successfully impeaches a witness or draws into question the credibility of the witness in either an opening statement or cross examination. Quansah, supra, 207 Md. App. at 663 (citing Johnson v. State, 408 Md. 204, 226 (2009)). Here, defense counsel opened the door to rehabilitation when questioning Haley on the consistency of her statements to Ms. Hignutt and Detective Shultz. 31 III. Conclusion

In sum, we hold that the term “parent” under CR § 3-602(b)(1) was contemplated

by the General Assembly to mean biological or adoptive parent only, i.e., legal parent.

Accordingly, because Mohan was charged, tried, and convicted specifically and only as a

“parent” of C, we reverse his conviction for child sexual abuse. Further, we hold that the

trial court did not err in admitting certain statements as prior consistent statements under

Md. Rule 5-616(c)(2). Lastly, we vacate Mohan’s sentence for third-degree sex offense

and remand to the trial court for resentencing consistent with this opinion.

JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY REVERSED, IN PART, AND AFFIRMED, IN PART. SENTENCE FOR THIRD-DEGREE SEX OFFENSE VACATED. CASE REMANDED TO THAT COURT FOR RESENTENCING ON THE CONVICTION FOR THIRD- DEGREE SEX OFFENSE. COSTS TO BE PAID BY WICOMICO COUNTY.

32 Circuit Court for Wicomico County Case No. C-22-CR-20-000497

Berger, Friedman, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned),

Concurrence by Friedman, J. ______________________________________

Filed: November 30, 2022 I concur in the judgment reached by my colleagues in the majority, but only because

I am bound by precedent to follow what I consider to be an incorrect reading of the

governing statute, Section 3-602(b) of the Criminal Law (“CR”) article of the Annotated

Code of Maryland. A plain reading of CR § 3-602 (b)(1) does not create “three discernable

classes,” as my colleagues write, Slip Op. at 8, but one class that encompasses all people

who are a parent or in a parent-like relationship to their sexual abuse victim. This clear,

plain, and commonsense reading of the statute is, however, foreclosed by the Court of

Appeals’ decision in Pope v. State, 284 Md. 309, 321-22 (1979) (holding that people

having “responsibility for supervision” of a child victim is a distinct category from people

having “care or custody” of a child victim), and, even more so, by our reported opinion in

Tapscott v. State, 106 Md. App. 109, 135 (1995) (“These alternatives are in the disjunctive,

setting forth several different classes of people who fall within the proscriptions of the

statute.”). I write separately, therefore, in the fervent hope that the Court of Appeals will

take this opportunity to correct this misreading of the statute or so that the General

Assembly can revise the statute to make even more plain, the meaning that should always

have been plain.

The very words of CR § 3-602(b)(1) make it clear to me that the General Assembly

intended to include within it all persons who are in a parental relationship or a parent-like

relationship with the child victim: “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 a minor.” I read that definition to encompass a variety of people who are

in a parent-like relationship to a child victim, either by virtue of having custody or by virtue of having responsibility or supervision, or both. I do not read these as separate or discrete

silos of relationship. Rather, I read the statute as reflecting that the General Assembly,

understanding and anticipating the variety of parent and parent-like relationships, created

a single definition within which to encompass that variety.

I think that my reading of CR §3-602(b)(1) makes more sense in the context of the

criminal law article as a whole. Section 3-308 of the Criminal Law article defines as a

sexual offense in the fourth degree, sexual contact on children by people who hold positions

of care, custody, and responsibility to the child victim, but whose care, custody, and

responsibility is less than parent-like. Compare CR § 3-308 (defining a “person in a

position of authority” and prohibiting conduct) with CR § 3-602 (b)(1) (defining parent and

parent-like). With the lesser relationships of care, custody, and responsibility covered by

CR § 3-308, the greater relationships of care, custody, and supervision, i.e., those that are

parent-like, are covered by CR § 3-602(b)(1).

I am also unconvinced by the legislative history on which my colleagues rely, the

deletion of the term “adoptive parent” from the statute as part of code revision in 1984.

Slip Op. at 21-22. I think the better reading of that statutory change isn’t that “adopted

parent” was redundant to “parent,” but that it was redundant—and maybe by implication

suggested a limitation on—the whole definition of parent and parent-like in CR § 3-

602(b)(1) including both “care and custody”-style parent-like relationships and

“responsible for supervision”-style parent-like relationships.

Given that understanding of CR §3-602(b)(1), I think that the prosecutor’s decision

to charge Mohan as C’s “parent,” if an error at all, was harmless. It could not have led to

2 any confusion or prevented Mohan from having notice of the crime with which he was

charged. The alleged misidentification of the relationship didn’t change Mohan’s

relationship with C. Mohan was in a parent-like relationship with his victim, C. He called

himself C’s father. He was, in fact, C’s step-father. He had at least temporary, if not

permanent, care and custody of C. He was responsible for C’s supervision. He was also

certainly within the statutory definition of a “household member” to C. CR § 3-602(b)(2),

(a)(3), and CR § 3-601(a)(4). He was also certainly within the statutory definition of a

“family member” to C. CR § 3-602(b)(2), (a)(2), and CR § 3-601(a)(3). In my view, Mohan

violated the statute in every way that the statute can be violated. He was, in every sense, in

a parent-like relationship with C. More importantly, Mohan could not have had any

difficulty in understanding the nature of the crime with which he was charged nor was he,

in any way, hampered in his ability to defend himself. See Tapscott, 106 Md. App. at 127

(citing Jones v. State, 303 Md. 323, 336-37 (1985) (an indictment is sufficient if it “sets

forth the essential elements of the offense charged” and if confused about an indictment,

the defendant may demand a bill of particulars to clarify)).

I, therefore, concur in my colleague’s judgment, but only because I am compelled

by the mandatory precedents of Pope and Tapscott to do so.