Vigna v. State
This text of 235 A.3d 937 (Vigna v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
John Vigna v. State of Maryland, No. 55, September Term, 2019. Opinion by Biran, J.
CRIMINAL LAW – CHARACTER EVIDENCE – CHARACTER OF THE ACCUSED FOR APPROPRIATENESS WITH CHILDREN – The Court of Appeals held that, in a prosecution of a defendant for a sex crime against a minor, the defendant’s character for appropriateness with children in his custody or care may be a pertinent trait of character for purposes of admissibility of character evidence under Maryland Rule 5- 404(a)(2)(A). When the State objects to a defendant’s proffer of opinion or reputation evidence under Rule 5-404(a)(2)(A) to establish his or her character for a particular trait, the trial court must determine whether: (1) the particular quality identified by the defendant is a “trait of character” within the meaning of Rule 5-404(a)(2)(A); and (2) evidence of such a trait of character is “pertinent,” i.e., relevant to the trier of fact’s consideration of the charged offenses. If the trial court answers both of these questions in the affirmative, then the court (if requested by the State) should (3) analyze the proffered evidence under Maryland Rule 5-403 to determine whether its probative value is substantially outweighed by the danger of unfair prejudice or another circumstance listed in that Rule.
CRIMINAL LAW – CHARACTER EVIDENCE – HARMLESS ERROR – The Court of Appeals held that any error in excluding evidence of Petitioner’s character for appropriateness with children in his custody or care was harmless beyond a reasonable doubt. Testimony from parents who stated that, based on their experiences in seeing Petitioner interact with children in his custody or care, they would entrust the lives of their children and other children to him, was functionally the equivalent of an opinion that Petitioner was the type of person who was appropriate with children in his custody or care. In addition, opinion testimony of multiple defense witnesses that Petitioner was law- abiding, although broader than the excluded opinion evidence Petitioner sought to elicit, ultimately served the same purpose.
APPELLATE PRACTICE – ABANDONMENT AND PRESERVATION OF ARGUMENTS – The Court of Appeals held that, where Petitioner included no substantive argument in his briefs on the constitutional question for which the Court granted review, Petitioner abandoned the argument. In addition, Petitioner failed to preserve his new constitutional argument for appellate review, where he raised it for the first time in his briefs to the Court.
CRIMINAL LAW – SIXTH AMENDMENT RIGHT TO FAIR TRIAL – DUE PROCESS – The Court of Appeals held that, because any evidentiary error was harmless beyond a reasonable doubt, Petitioner received a fair trial under the Sixth Amendment. In addition, the trial court’s adverse evidentiary ruling did not prevent Petitioner from presenting a meaningful defense. Thus, the exclusion of the proffered character evidence did not deprive Petitioner of due process. Circuit Court for Montgomery County Case Nos. 130781C & 129932C Argued: March 9, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 55
September Term, 2019
Case No. 419686V Argued 1/7/19 JOHN VIGNA
v.
STATE OF MARYLAND
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran,
JJ.
Opinion by Biran, J. Watts and Hotten, JJ., concur.
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Suzanne Johnson Filed: August 18, 2020 2020-08-20 14:51-04:00
Suzanne C. Johnson, Clerk For many years, John Vigna was a popular elementary school teacher in Silver
Spring, Maryland. But, as our nation has learned all too well, it is possible for a person to
be a popular teacher (or coach or trainer or member of the clergy, etc.) and, at the same
time, to sexually abuse children entrusted to his care. According to the evidence the jury
heard in this case, Vigna sexually abused several female students while he was their
teacher. The evidence showed that Vigna would have these young girls sit in his lap, and
then would rub their buttocks and touch their genital areas over their clothes, or otherwise
touch the girls for his sexual gratification.
At his trial, Vigna sought to elicit evidence from parents of students and from
professional colleagues that, in their opinion, Vigna is the type of person who behaves
appropriately with children in his custody or care. The trial judge ruled this evidence
inadmissible, reasoning that appropriateness with children in one’s custody or care is not a
“trait of character” within the meaning of the applicable rule of evidence. However, the
trial judge allowed Vigna’s character witnesses to testify that Vigna is law-abiding and
truthful.
The jury convicted Vigna on nine counts, and the trial judge sentenced Vigna to 80
years of imprisonment, suspending all but 48 years. The Court of Special Appeals affirmed
the trial court’s evidentiary rulings and upheld Vigna’s convictions.
We have not previously considered whether the type of character evidence Vigna
sought to introduce at his trial is proper under the Maryland Rules. For the reasons
discussed below, we conclude that character evidence of appropriateness with children in
one’s custody or care (or of similar character traits, such as trustworthiness with children or sexual morality with respect to children) may be admissible in a criminal case where a
defendant is accused of sexually abusing a child. However, we hold that any error by the
trial court in excluding such character evidence in Vigna’s case was harmless beyond a
reasonable doubt. We also reject Vigna’s constitutional arguments based on the trial court’s
evidentiary rulings. Accordingly, we affirm Vigna’s convictions.
I
Background
A. Vigna’s Career as a Teacher
Vigna was a teacher in the Montgomery County Public Schools (“MCPS”) system
from 1992 until his dismissal in 2016 following the emergence of the allegations that led
to this criminal case. During his tenure with MCPS, Vigna taught grades three through five
at Cloverly Elementary School (“Cloverly”) in Silver Spring. He also coached baseball and
unified bocce at nearby Paint Branch High School, handling the three roles simultaneously
before the end of his employment with MCPS.
Vigna was very popular with students and other teachers. Vigna’s students adored
his affectionate teaching style, and many of them maintained close relationships with Vigna
after they left his classroom. Vigna’s fellow teachers respected his abilities as a teacher,
and several entrusted him with their students when they had to attend to other matters.
According to Vigna, he treated his students like family, which for Vigna included
physical displays of affection. He often hugged, kissed, and consoled students during the
school day. These interactions with students did not go unnoticed by colleagues and others.
Occasionally, other teachers and staff saw Vigna with students on his lap as he sat behind
2 his desk. On several occasions, these physical contacts prompted concerned observers
either to speak with Vigna directly or to alert school officials about his conduct.
Jennifer Grey, a fifth-grade teacher at Cloverly, took the former approach. More
than once, Ms. Grey cautioned Vigna that, “especially as a male teacher,” he should not
“be alone with female students one-on-one,” and that he should “keep [his] distance.”
Another teacher at Cloverly and a close friend of Vigna, David Cline, also cautioned Vigna
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John Vigna v. State of Maryland, No. 55, September Term, 2019. Opinion by Biran, J.
CRIMINAL LAW – CHARACTER EVIDENCE – CHARACTER OF THE ACCUSED FOR APPROPRIATENESS WITH CHILDREN – The Court of Appeals held that, in a prosecution of a defendant for a sex crime against a minor, the defendant’s character for appropriateness with children in his custody or care may be a pertinent trait of character for purposes of admissibility of character evidence under Maryland Rule 5- 404(a)(2)(A). When the State objects to a defendant’s proffer of opinion or reputation evidence under Rule 5-404(a)(2)(A) to establish his or her character for a particular trait, the trial court must determine whether: (1) the particular quality identified by the defendant is a “trait of character” within the meaning of Rule 5-404(a)(2)(A); and (2) evidence of such a trait of character is “pertinent,” i.e., relevant to the trier of fact’s consideration of the charged offenses. If the trial court answers both of these questions in the affirmative, then the court (if requested by the State) should (3) analyze the proffered evidence under Maryland Rule 5-403 to determine whether its probative value is substantially outweighed by the danger of unfair prejudice or another circumstance listed in that Rule.
CRIMINAL LAW – CHARACTER EVIDENCE – HARMLESS ERROR – The Court of Appeals held that any error in excluding evidence of Petitioner’s character for appropriateness with children in his custody or care was harmless beyond a reasonable doubt. Testimony from parents who stated that, based on their experiences in seeing Petitioner interact with children in his custody or care, they would entrust the lives of their children and other children to him, was functionally the equivalent of an opinion that Petitioner was the type of person who was appropriate with children in his custody or care. In addition, opinion testimony of multiple defense witnesses that Petitioner was law- abiding, although broader than the excluded opinion evidence Petitioner sought to elicit, ultimately served the same purpose.
APPELLATE PRACTICE – ABANDONMENT AND PRESERVATION OF ARGUMENTS – The Court of Appeals held that, where Petitioner included no substantive argument in his briefs on the constitutional question for which the Court granted review, Petitioner abandoned the argument. In addition, Petitioner failed to preserve his new constitutional argument for appellate review, where he raised it for the first time in his briefs to the Court.
CRIMINAL LAW – SIXTH AMENDMENT RIGHT TO FAIR TRIAL – DUE PROCESS – The Court of Appeals held that, because any evidentiary error was harmless beyond a reasonable doubt, Petitioner received a fair trial under the Sixth Amendment. In addition, the trial court’s adverse evidentiary ruling did not prevent Petitioner from presenting a meaningful defense. Thus, the exclusion of the proffered character evidence did not deprive Petitioner of due process. Circuit Court for Montgomery County Case Nos. 130781C & 129932C Argued: March 9, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 55
September Term, 2019
Case No. 419686V Argued 1/7/19 JOHN VIGNA
v.
STATE OF MARYLAND
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran,
JJ.
Opinion by Biran, J. Watts and Hotten, JJ., concur.
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Suzanne Johnson Filed: August 18, 2020 2020-08-20 14:51-04:00
Suzanne C. Johnson, Clerk For many years, John Vigna was a popular elementary school teacher in Silver
Spring, Maryland. But, as our nation has learned all too well, it is possible for a person to
be a popular teacher (or coach or trainer or member of the clergy, etc.) and, at the same
time, to sexually abuse children entrusted to his care. According to the evidence the jury
heard in this case, Vigna sexually abused several female students while he was their
teacher. The evidence showed that Vigna would have these young girls sit in his lap, and
then would rub their buttocks and touch their genital areas over their clothes, or otherwise
touch the girls for his sexual gratification.
At his trial, Vigna sought to elicit evidence from parents of students and from
professional colleagues that, in their opinion, Vigna is the type of person who behaves
appropriately with children in his custody or care. The trial judge ruled this evidence
inadmissible, reasoning that appropriateness with children in one’s custody or care is not a
“trait of character” within the meaning of the applicable rule of evidence. However, the
trial judge allowed Vigna’s character witnesses to testify that Vigna is law-abiding and
truthful.
The jury convicted Vigna on nine counts, and the trial judge sentenced Vigna to 80
years of imprisonment, suspending all but 48 years. The Court of Special Appeals affirmed
the trial court’s evidentiary rulings and upheld Vigna’s convictions.
We have not previously considered whether the type of character evidence Vigna
sought to introduce at his trial is proper under the Maryland Rules. For the reasons
discussed below, we conclude that character evidence of appropriateness with children in
one’s custody or care (or of similar character traits, such as trustworthiness with children or sexual morality with respect to children) may be admissible in a criminal case where a
defendant is accused of sexually abusing a child. However, we hold that any error by the
trial court in excluding such character evidence in Vigna’s case was harmless beyond a
reasonable doubt. We also reject Vigna’s constitutional arguments based on the trial court’s
evidentiary rulings. Accordingly, we affirm Vigna’s convictions.
I
Background
A. Vigna’s Career as a Teacher
Vigna was a teacher in the Montgomery County Public Schools (“MCPS”) system
from 1992 until his dismissal in 2016 following the emergence of the allegations that led
to this criminal case. During his tenure with MCPS, Vigna taught grades three through five
at Cloverly Elementary School (“Cloverly”) in Silver Spring. He also coached baseball and
unified bocce at nearby Paint Branch High School, handling the three roles simultaneously
before the end of his employment with MCPS.
Vigna was very popular with students and other teachers. Vigna’s students adored
his affectionate teaching style, and many of them maintained close relationships with Vigna
after they left his classroom. Vigna’s fellow teachers respected his abilities as a teacher,
and several entrusted him with their students when they had to attend to other matters.
According to Vigna, he treated his students like family, which for Vigna included
physical displays of affection. He often hugged, kissed, and consoled students during the
school day. These interactions with students did not go unnoticed by colleagues and others.
Occasionally, other teachers and staff saw Vigna with students on his lap as he sat behind
2 his desk. On several occasions, these physical contacts prompted concerned observers
either to speak with Vigna directly or to alert school officials about his conduct.
Jennifer Grey, a fifth-grade teacher at Cloverly, took the former approach. More
than once, Ms. Grey cautioned Vigna that, “especially as a male teacher,” he should not
“be alone with female students one-on-one,” and that he should “keep [his] distance.”
Another teacher at Cloverly and a close friend of Vigna, David Cline, also cautioned Vigna
about engaging students too closely. Ms. Grey and Mr. Cline were not concerned about the
possibility of any sexual contact with students; rather, Vigna’s colleagues were “looking
out for his well-being” by reminding him of professional guidelines and what they “felt
was appropriate.” In response to Ms. Grey, Vigna on at least one occasion asserted that he
was “not doing anything wrong.”
On two occasions in 2008, while Vigna was a fifth-grade teacher, Cloverly principal
Melissa Brunson1 became aware of students sitting in Vigna’s lap. First, on February 28,
2008, a fire marshal reported to Dr. Brunson that, during a routine inspection, he saw a
student sitting on Vigna’s lap. Dr. Brunson gave Vigna a verbal warning and counseled
him not to have students sit in his lap. Vigna indicated to Dr. Brunson that he understood
the problem.
1 MCPS documents dating from 2013 and earlier, which were introduced as exhibits at Vigna’s trial, refer to Cloverly’s principal as “Ms.” Brunson. At trial, the parties referred to her as “Dr.” Brunson. The record does not reflect when Dr. Brunson obtained her doctoral degree. We will use Dr. Brunson’s current title in this opinion.
3 Second, on or about May 29, 2008, a building service worker became upset after he
saw a student sitting in Vigna’s lap. Vigna pursued the staff member down the hall.
According to Vigna, he tried to “explain that the child was upset and that [he] was trying
to meet the child’s needs at that moment.” The loud exchange between Vigna and the
building service worker received the attention of nearby staff, including Mr. Cline, who
helped to deescalate the situation and took Vigna to Dr. Brunson’s office. On June 2, 2008,
having received two reports of lap-sitting over a three-month span, Dr. Brunson issued a
letter of reprimand to Vigna (the “2008 reprimand”), stating that his “handling of this
situation was improper, unprofessional, and must not be repeated.” The letter informed
Vigna that further incidents could lead to his termination. Vigna signed the 2008 reprimand
on June 2, 2008.
To monitor Vigna more easily, Dr. Brunson moved him from a classroom located
outside the building to one next to her office. Thereafter, Vigna taught the third grade
instead of the fifth grade, although fourth- and fifth-grade students often visited his
classroom after dismissal, while they were waiting for their buses to be called. According
to Vigna, he remained committed to his “family” style of teaching despite Dr. Brunson’s
warnings.
During the 2012-13 school year, prompted by a parent complaint, Dr. Brunson
requested that MCPS’s Office of Human Resources and Development investigate
allegations that Vigna “had invited female students to sit on [his] lap, lift[ed] them in the
air, and danc[ed] with them during class.” During the investigation, Vigna was placed on
administrative leave for approximately three weeks. In a statement that Vigna provided in
4 relation to that investigation, Vigna wrote: “I am going to restrict my activities in the
classroom to strictly teaching, counseling and advising students and will make every effort
to not have any physical contact at all with my students.” The result of the 2012-13
investigation was that Vigna received another letter of reprimand, this time from Larry A.
Bowers, the Chief Operating Officer of MCPS (the “2013 reprimand”). Referencing
Vigna’s two lap-sitting incidents in 2008 and Dr. Brunson’s admonition to Vigna at that
time, Mr. Bowers wrote, “It is difficult to believe that any teacher, especially a veteran
teacher, would not understand what is respectful and professional behavior, even after
receiving a reprimand.” Mr. Bowers warned Vigna that he needed to “alter [his]
interactions with students immediately,” and that “[a]ny further instances of such
unprofessional behavior may be grounds for more severe disciplinary action up to and
including dismissal.”
B. The Criminal Investigation and Charges
The criminal charges against Vigna involved four girls and a young woman who all
accused him of touching them in a sexual manner while they attended Cloverly.2 The first
of Vigna’s former students to identify incidents of sexual abuse was A.C., who had been
Vigna’s student in third grade during the 2013-14 school year. Teachers knew A.C. as an
engaging and attentive student. In February 2016, A.C. was in Ms. Grey’s fifth-grade
classroom when, during a pilot class on body safety taught by school counselor Heather
2 We will refer to the victims by their initials to protect their privacy. The five former Cloverly students who testified that Vigna abused them were: friends A.C. and G.G.; L.D., who was an adult at the time of trial; and sisters A.S. and J.S. 5 Sobieralski, her demeanor changed. For the fifth-grade version of the body safety class,
Ms. Sobieralski taught lessons on different types of abuse, starting with physical abuse.
Later, she discussed sexual abuse. The PowerPoint slide she showed the class defined
sexual abuse as follows: “When someone touches you or asks you to touch them on the
private parts of the body (those parts covered by a bathing suit), other than to keep you
clean and/or healthy.” The following slide identified different types of touches, including
“Unsafe/unwanted touch,” which “feels uncomfortable, embarrassing or scary.”
At about this point in the presentation, Ms. Sobieralski noticed that A.C. was
“slumped down in her chair and staring out the window. And eventually she put her head
down.” Observing the near-30 student class from her desk at the front of the room, Ms.
Grey saw the same thing. They both considered this behavior unusual for A.C. During a
break in instruction, Ms. Grey pulled Ms. Sobieralski aside to express her concern, and Ms.
Sobieralski advised Ms. Grey to check on A.C. after class. When Ms. Grey first approached
her, A.C. told Ms. Grey that she was okay, but at the end of the school day about an hour
later, A.C. spoke to Ms. Grey again. This time, A.C. brought up Vigna: “You know how
we all love Mr. Vigna? Well, he touches us in ways that make[] us feel uncomfortable.”
Ms. Grey then took A.C. to Ms. Sobieralski’s office. After Ms. Sobieralski asked A.C. to
explain how Mr. Vigna makes her feel comfortable, A.C. responded, “when he hugs me he
touches my butt. And he makes me sit on his lap, and when I try to get up he doesn’t let
me.” A.C. said this activity occurred when she was in Vigna’s third-grade class and
continued when she regularly went to say goodbye to him in the fourth and fifth grades.
6 A.C. then met with a forensic social worker, Sara Kulow-Malave, at the Tree House
Child Advocacy Center of Montgomery County. There, A.C. described how Vigna made
girls feel uncomfortable. She told Ms. Kulow-Malave that Vigna touched her buttocks and
made her sit on his lap. A.C. said that Vigna would rub her thighs with his hands and
breathed steadily more and more heavily as she sat on his lap. She also stated that when
she was on Vigna’s lap, she could feel a “hard” part of his body “under her butt.” When
Ms. Kulow-Malave asked A.C. to show on an anatomical drawing where the hard part of
Vigna’s body was, she circled the waistline. A.C. told Ms. Kulow-Malave that the first
time Vigna made A.C. feel uncomfortable was during her second-grade year, and that the
most recent time was just a few days before the body safety class with Ms. Sobieralski.
During her discussion with Ms. Sobieralski and again with Ms. Kulow-Malave,
A.C. also claimed that she saw Vigna touch her friend, G.G., inappropriately. G.G. never
had Vigna as her primary teacher but would accompany A.C. when she visited his
classroom after the final bell of the day. A.C. said that Vigna moved his hand over G.G.’s
buttocks while giving her a hug.
On February 12, 2016, the day after her interview with A.C., Ms. Kulow-Malave
interviewed G.G. In addition to describing her own encounter with Vigna, G.G.
corroborated A.C.’s account of repeated uncomfortable touches. G.G. explained how Mr.
Vigna touched them differently during their hugs, and described how Vigna “squeezed”
A.C.’s buttocks.
Vigna was removed as a teacher at Cloverly immediately after these allegations of
sexual abuse surfaced. A criminal investigation ensued. On June 23, 2016, Vigna was
7 charged in the District Court of Maryland sitting in Montgomery County with various sex
offenses relating to his alleged abuse of A.C. and G.G. In July 2016, the charges were
forwarded to the Circuit Court for Montgomery County.
The investigation continued, and three more victims came forward. L.D., a young
adult, learned about the charges against Vigna through a Facebook group of Cloverly
alumni. She then contacted police and reported incidents of sexual abuse by Vigna between
August 2001 and June 2002, when Vigna was her fourth-grade teacher. According to L.D.,
she and Vigna interacted frequently during her time at Cloverly. L.D. alleged that Vigna
would sit her and her friend on his lap, and touch her on her crotch. L.D. described one
particular instance of abuse while she was sitting on Vigna’s lap:
[H]e was talking to some boys across the desk, and every time he talked, I felt his finger on my crotch. And I remember this so well, even though it was so many years ago, because I felt sexually aroused when that happened. I felt like that tingly sensation, and that’s when I knew something wasn’t right.
According to L.D., Vigna would engage in this touching activity when there was a lot of
commotion in the room, as children waited for their buses. L.D. said that other children
could not see Vigna touch her because their view was blocked by his desk. Vigna had L.D.
kiss him on his cheek during her visits prior to leaving for the school bus. She also
described one instance when she had to change her clothes, and Vigna said she could use
the closet in his classroom. They were the only two people in the room at the time, and
L.D. remembered feeling uncomfortable as the closet door was left ajar.
Two more of Vigna’s former students came forward with similar accounts. A.S., a
sixth-grader at the time of the trial, reported that when Vigna was her third-grade teacher,
8 he touched her weekly, or perhaps even more often, in ways that made her uncomfortable.
In particular, A.S. said that Vigna had her sit on his lap at his desk while the rest of the
class faced away to watch a video. On multiple occasions, he then touched her genitals,
buttocks, and chest area over her clothes. Sometimes he kissed the top of her head and
asked her for a kiss on the cheek. According to A.S., Vigna told her that he loved her and
that she was beautiful while he held her on his lap.
J.S., who is A.S.’s sister and one year younger, claimed that, when Vigna was her
third-grade reading teacher, he would “call me over to the back table, just me and him, and
then he would make sure I sat right next to him, and then he would start hugging me. He
would start touching my butt.”
In a superseding indictment filed on December 1, 2016, the State added charges
related to the alleged sex abuse of L.D., A.S., and J.S. Ultimately, the State proceeded on
two counts from the first indictment, which were consolidated with 12 counts contained in
the second indictment. The charges included multiple counts of sexual abuse of a minor3
and third-degree sex offense.4
3 “A … person who has … temporary care or custody or responsibility for the supervision of a minor may not cause sexual abuse to the minor.” Md. Code Ann., Crim. Law (“CR”) § 3-602(b)(1) (2012). With respect to L.D., the indictment charged a violation of Article 27, § 35(C)(b)(1), of the Maryland Code, the predecessor statute to CR § 3- 602(b), which was in effect at the time that Vigna allegedly abused L.D. 4 “A person may not: … engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim.” CR § 3-307(a)(3). At the time of Vigna’s alleged abuse of L.D., this offense was codified at Article 27, § 464(A) of the Maryland Code. 9 C. Pretrial Hearing on Character Evidence
Prior to trial, Vigna filed a motion in limine seeking a ruling allowing him to
introduce pertinent character evidence under Maryland Rule 5-404(a)(2)(A), which
provides: “An accused may offer evidence of the accused’s pertinent trait of character. If
the evidence is admitted, the prosecution may offer evidence to rebut it.” At a pretrial
hearing on this motion on June 5, 2017, Vigna’s counsel argued that Vigna should be
allowed to introduce character evidence of three pertinent traits: truthfulness, law-
abidingness, and appropriate interaction with children in his custody or care. The State did
not challenge Vigna’s ability to introduce evidence as to his character for truthfulness and
law-abidingness. However, the State objected to the admission of character evidence of
Vigna’s appropriateness with children in his custody or care. While Vigna acknowledged
that it would be improper to have former students specifically testify that Vigna did not
abuse them, he argued that he should be allowed to introduce “classic reputation” and/or
“classic opinion” evidence concerning his “character for interacting appropriately” with
children in his custody or care.
The trial court ruled that evidence concerning Vigna’s character for the traits of
truthfulness and being law-abiding would be admissible. As for Vigna’s character for
appropriateness with children in his custody or care, the court commented that, unlike the
traits of honesty, peacefulness, and law-abidingness, which “span across all walks of life
and all categories of interaction with people,” the trait proffered by Vigna seemed too
“unique and specific and limited … to be considered a character trait.” The court reserved
ruling with respect to the admissibility of this third category of character evidence.
10 D. The Trial and Appeal
Vigna’s jury trial began on June 6, 2017, in the Circuit Court for Montgomery
County, and concluded on June 9, 2017. The five victims discussed above all testified in
the State’s case-in-chief. Each victim described how Vigna touched her buttocks and/or
genital area. The State called the social workers who interviewed A.C., G.G., A.S., and
J.S., and played for the jury the videos of those interviews. Ms. Grey testified about having
seen Vigna with students in his lap a “handful of times.” In addition, over Vigna’s
objection, Dr. Brunson testified about the circumstances that led to Vigna’s prior discipline,
and the court admitted both the 2008 reprimand and the 2013 reprimand as exhibits. The
court admitted this testimony and the letters of reprimand under Maryland Rule 5-404(b).5
The court found that this evidence was admissible to demonstrate Vigna’s intent,
knowledge, and absence of mistake.
Vigna testified in his own defense, and denied that he ever touched any of his
students for sexual gratification. He claimed that touching a student inappropriately was
“simply against the fiber of [him].” He acknowledged that he had often hugged students,
had them sit on his lap, and told them that he loved them. He claimed that his teaching
style, which included these types of displays of affection, was the result of having grown
up in a large Italian family that emphasized physical affection. He explained that his
5 “Evidence of other crimes, wrongs, or acts … is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Md. Rule 5-404(b). 11 teaching philosophy included treating a class like a family and the students as if they were
his own children. Vigna testified that he made an effort to change his teaching style after
he was reprimanded in 2013, but that the students continued to “hop on [his] knee” and
initiate hugs with him, and that he was not going to push them away. Vigna attributed any
contact that a student could have interpreted as sexual to be the result of an accidental
touching.
In addition to testifying himself, Vigna called nine witnesses in his defense case.
Seven of these were character witnesses. They included Dr. Brunson’s predecessor as the
Cloverly principal; fellow Cloverly teachers; parents of former female students in Vigna’s
classes; a fellow coach and the athletic director at Paint Branch High School; and Vigna’s
12-year-old niece.6 Prior to these character witnesses testifying, the trial judge took up the
question on which he had reserved ruling, i.e., whether appropriate interaction with
children is a proper character trait. The court concluded that it is not:
I think that the proper character category would be character for … lawfulness or law[-]abiding citizen, something like that. Because the other one seemed so specific and so – it doesn’t seem like a character trait to me. It seems more like – it seems like it’s too narrow and too specific to be a character trait. So, but I think the more general notion of that request is that Mr. Vigna is generally a law-abiding person or I think that’s more consistent with a character trait, which is what the rule permits. So to that extent, I’ll grant the defendant’s motion to permit character evidence on that character trait.
6 The other two defense witnesses, who were teachers at Cloverly, testified as fact witnesses to circumstances that called into question the accuracy of some of the victims’ testimony. 12 The court also confirmed that the character witnesses would be permitted to testify as to
Vigna’s character for truthfulness.
Six of the seven character witnesses testified to their opinion that Vigna possessed
a character for being law-abiding. Those character witnesses provided extensive testimony
concerning Vigna’s interactions with children in his custody or care in the course of
opining as to his law-abidingness. For example, Janet Lopez, the principal of Cloverly from
2004 to 2007, testified that she made unannounced classroom visits and “saw [Vigna] with
children every day.” Based on her observations, Ms. Lopez opined that Vigna was law-
abiding.
Kristen Delikat, a former colleague of Vigna’s at Cloverly for eight years, testified
that she worked closely with Vigna when she was a reading specialist. Ms. Delikat often
observed Vigna in his classroom. Ms. Delikat testified that she never saw Vigna touch or
put a student in his lap. She, too, opined that Vigna was a law-abiding person.
The Paint Branch athletic director, Heather Podesek, testified that she knew Vigna
from his work as a bocce coach and his volunteering as a baseball coach, as well as Vigna’s
service as the Vice President of the Paint Branch Athletic Association. Ms. Podesek
testified that she would often watch Vigna’s interaction with his players and the student
coaches, and saw Vigna’s “positive interactions . . . with his student athletes.” Based on
her years of knowledge of, and experience with, Vigna, Ms. Podesek also opined that he
was a law-abiding person.
Jill Doll, the parent of two girls who had been in Vigna’s fifth-grade classes in the
2006-07 and 2009-10 school years, testified about her interactions with Vigna as a parent
13 volunteer and a substitute teacher. She told the jury that she had seen Vigna interacting
with students and trusted him with them, noting that this included trusting him “with the
lives of [her] children.”
Irena Nalls, whose daughter was in Vigna’s third-grade class in 2014-15, testified
that, as a room parent, she often visited Vigna’s classroom. She assisted with and observed
various parties in Vigna’s classroom, including parties for Halloween, Valentine’s Day,
and the end of the school year. Ms. Nalls explained that she would stay in the room after
these parties to help clean up while the children were still in the classroom before dismissal.
Based on her experiences and observations, Ms. Nalls also opined that Vigna was law-
Terry Conrad, a parent whose daughter had been in Vigna’s class and who coached
youth sports and high school baseball with Vigna, testified that Vigna was law-abiding and
that he trusted Vigna “with [his] life.”
Vigna’s 12-year-old niece testified that, after her father died when she was in the
third grade, Vigna was like a father to her. She spent time with Vigna and trusted him. She
further testified that she saw Vigna with other children when he was a parent chaperone on
her field trips. She provided her opinion that Vigna obeyed the law.
The character witnesses also testified to their opinion that Vigna was truthful.7
7 In its rebuttal case, the State called Mr. Cline and recalled Ms. Grey and elicited evidence concerning specific instances of alleged untruthfulness by Vigna, as permitted under Maryland Rule 5-404(a)(2)(A). In addition, in an effort to rebut the character evidence concerning Vigna being law-abiding, the State elicited testimony that Vigna had smoked marijuana several times. 14 The jury found Vigna guilty on nine of the 14 counts with which he was charged.
The circuit court subsequently sentenced Vigna to 80 years in prison, with all but 48 years
suspended.
The Court of Special Appeals affirmed Vigna’s convictions. Vigna v. State, 241 Md.
App. 704 (2019). As pertinent here, the intermediate appellate court held that: (1) in
resolving a question of first impression in Maryland, “appropriate interaction with
children” is not a pertinent character trait under Rule 5-404(a)(2)(A); and (2) the circuit
court’s evidentiary rulings did not deprive Vigna of his right to a fair trial under the Sixth
Amendment to the United States Constitution.
On September 24, 2019, Vigna filed a petition for certiorari. On November 6, 2019,
we granted Vigna’s petition. 466 Md. 311 (2019). We agreed to review the following
questions (which we paraphrase here slightly):
I. Did the Court of Special Appeals err by contradicting the majority of other
jurisdictions in holding that appropriate interaction with children is not a
pertinent character trait under Maryland Rule 5-404(a)(2)(A)?
II. Did the Court of Special Appeals err when it failed to recognize that denying
Vigna the ability to introduce relevant character evidence, while at the same
time allowing the State to introduce non-criminal “bad acts” character
evidence, denied Vigna the right to a fair trial under the Sixth Amendment
of the United States Constitution?
15 II
Standard of Review
Although an evidentiary ruling, including the decision to admit or exclude character
evidence, is typically reviewed for abuse of discretion, see, e.g., Devincentz v. State, 460
Md. 518, 539 (2018), in this case the circuit court excluded Vigna’s proffered character
evidence based on its determination that appropriate interaction with children in one’s
custody or care is “too narrow and too specific to be a character trait” under Rule 5-
404(a)(2)(A). The Court of Special Appeals affirmed the circuit court, framing the question
as whether the proffered character evidence was relevant to the specific crimes with which
Vigna was charged. See Vigna, 241 Md. App. at 718. The Court of Special Appeals
considered that to be a question of statutory interpretation requiring de novo review. Id. at
717. We agree with the Court of Special Appeals that de novo review is appropriate for this
question. See Williams v. State, 457 Md. 551, 563 (2018) (contrasting the decision whether
a piece of evidence is relevant, which is a legal conclusion reviewed de novo, with the
decision to admit relevant evidence, which is reviewed for abuse of discretion). We also
review constitutional claims de novo. See, e.g., State v. Cates, 417 Md. 678, 691 (2011);
Schisler v. State, 394 Md. 519, 535 (2006).
III
Discussion
Vigna contends before us that the circuit court improperly excluded the proffered
evidence concerning his character for appropriate interaction with children in his custody
or care, and that this error was not harmless beyond a reasonable doubt. In addition, Vigna
16 asserts that the circuit court’s evidentiary rulings violated his constitutional rights to due
process and a fair trial.8
We hold that appropriateness with children in one’s custody or care may be a
“pertinent trait of character” within the meaning of Rule 5-404(a)(2)(A). However, we
conclude that any error in the circuit court’s exclusion of such evidence in Vigna’s case
was harmless beyond a reasonable doubt. As for Vigna’s constitutional arguments, Vigna
abandoned his Sixth Amendment claim and failed to preserve a due process claim for
appellate review. In any event, both constitutional claims lack merit.
A. Appropriateness with Children in One’s Custody or Care May Be a Pertinent Character Trait for Purposes of Maryland Rule 5-404(a)(2)(A).
1. Character Evidence under Maryland Rule 5-404(a)
Maryland Rule 5-404(a)(1) provides that “evidence of a person’s character or
character trait is not admissible to prove that the person acted in accordance with the
character or trait on a particular occasion.” However, there are exceptions to this rule. As
pertinent here, a defendant in a criminal case “may offer evidence of [his or her] pertinent
trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut
it.” Id. § 5-404(a)(2)(A).9
8 In the Court of Special Appeals, Vigna also asserted claims of evidentiary error relating to the admission of the 2008 and 2013 reprimands under Maryland Rule 5-404(b), as well as the admission of A.C.’s statements to Ms. Sobieralski under Maryland Rule 5- 802.1(d), which is a hearsay exception for a “prompt complaint of sexually assaultive behavior to which the declarant was subjected.” The intermediate appellate court rejected these contentions, and Vigna did not seek further review of those questions in this Court. 9 The Rule also contains exceptions that allow: (1) a criminal defendant, in certain circumstances, to offer evidence of an alleged crime victim’s pertinent trait of character, 17 Maryland Rule 5-404 derives from its similarly numbered federal counterpart,
Federal Rule of Evidence 404. The original Advisory Committee Note to Federal Rule of
Evidence 404(a) explained that
[c]haracter questions arise in two fundamentally different ways. (1) Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as “character in issue.” Illustrations [include] … the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. The only question relates to allowable methods of proof, as to which see Rule 405,[10] immediately following. (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as “circumstantial.” Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof.
We are concerned here with a defendant’s effort to elicit “circumstantial” character
evidence. Specifically, Vigna argues that a defendant, who has been accused of sexually
abusing a child in his custody or care, should be permitted to introduce evidence of his
subject to rebuttal evidence being introduced by the prosecutor, id. § 5-404(a)(2)(B); (2) a prosecutor to offer evidence in a homicide case of an alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor, id. § 5-404(a)(2)(C); and (3) a party in any type of case to offer evidence, under certain circumstances, “of the character of a witness with regard to credibility,” id. § 5-404(a)(3).
10 The Maryland Rules also include a counterpart to Federal Rule of Evidence 405, which governs the methods of proof a proponent of character evidence may use. As pertinent here, Maryland Rule 5-405 provides: “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.” 18 character for being appropriate in interactions with children in his custody or care, so that
he may then ask the jury to infer from such evidence that it is less likely he committed the
charged offense.
This Court has not previously considered whether evidence concerning the character
of a defendant for appropriateness with children (or similar traits) may be admissible in a
criminal case where the defendant is charged with a sex crime against a child. To help
inform our resolution of this question, we examine similar cases from other jurisdictions.
2. Case Law Concerning Character Evidence in Child Sex Abuse Prosecutions
The majority of the out-of-state courts that have considered this issue have held that
appropriate interaction with children, sexual morality, and other similar formulations of
traits relating to sexual disposition, may be pertinent character traits in child sex abuse
cases. See State v. Rothwell, 294 P.3d 1137, 1143 (Idaho Ct. App. 2013) (holding that
“character traits relating to a defendant’s sexual morality with children are pertinent”);
State v. Enakiev, 29 P.3d 1160, 1163 (Or. Ct. App. 2011) (“Evidence of a person’s character
with respect to sexual propriety evinces that person’s propensity to act in a sexually proper
manner,” and therefore may be admissible as a pertinent trait in a prosecution for a sex
crime); State v. Rhodes, 200 P.3d 973, 976 (Ariz. Ct. App. 2008) (holding that defendant’s
“sexual normalcy, or appropriateness in interacting with children, is a character trait, and
one that pertains to charges of sexual conduct with a child”); State v. Hughes, 841 So. 2d
718, 723 (La. 2003) (per curiam) (in case where defendant was charged with aggravated
rape and other offenses involving child molestation, holding that “a defendant may present
evidence of his or her reputation in the community as a moral person and for safe and
19 proper treatment of young children”); People v. McAlpin, 812 P.2d 563, 575-76 (Cal. 1991)
(holding that character witnesses should have been permitted to testify to opinion that
defendant was not “a person given to lewd conduct with children” and that he had a
reputation for “normalcy in his sexual tastes,” which included not having “a reputation for
being sexually attracted to young girls”); State v. Benoit, 697 A.2d 329, 331 (R.I. 1997)
(where defendant was convicted of child molestation sexual assault charges, remanding
case to trial court to consider whether proffered character witness had sufficient basis to
provide an opinion concerning defendant’s “trustworthiness with children or other
pertinent character traits”); State v. Hallman, 379 S.E.2d 115, 117 (S.C. 1989) (trial court
erred by excluding character evidence of defendant’s “morality” in prosecution for sexual
offenses against a minor); see also Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App.
2002) (noting that defendant “was entitled to proffer evidence of his good character (or
propensity) for moral and safe relations with small children or young girls”); State v.
Griswold, 991 P.2d 657, 663 (Wash. Ct. App. 2000) (in case where defendant was charged
with third degree child molestation, stating that “sexual morality is a pertinent character
trait”); State v. Miller, 709 P.2d 350, 353-54 (Utah 1985) (where defendant was accused of
sexually abusing a child, noting that defendant was permitted to introduce “reputation or
opinion testimony to prove good moral character”); McMullin v. State, 486 S.W.3d 818,
820-21 & n.1 (Ark. Ct. App. 2018) (citing Rothwell for the proposition that “a relevant trait
of good character could be proved by reputation or opinion evidence,” which the trial court
had allowed the defendant to do; but affirming the trial court’s exclusion of evidence of
20 specific instances of conduct to prove the trait of “sexual morality with respect to minors”)
(cleaned up).
A minority of courts, on the other hand, have reasoned that character traits similar
to the trait at issue here are not “pertinent” in child sex abuse prosecutions, because sex
crimes generally occur in private. Thus, according to these courts, evidence of a
defendant’s reputation in the community for appropriate interaction with children, based
on public observation, does not make it more likely that the defendant is innocent of a sex
crime he is alleged to have committed in private. See State v. Jackson, 730 P.2d 1361, 1364
(Wash. App. Ct. 1986) (“The crimes of indecent liberties and incest concern sexual activity,
which is normally an intimate, private affair not known to the community. One’s reputation
for sexual activity, or lack thereof, may have no correlation to one’s actual sexual
conduct.”)11; Hendricks v. State, 34 So. 3d 819, 822, 825-26 (Fla. Dist. Ct. App. 2010) (in
child molestation case, affirming exclusion of evidence that defendant had an “excellent”
reputation for sexual morality; because “a person’s tendency, or lack thereof, to commit
acts of child molestation is not something that a community tends to have knowledge of,
testimony concerning a person’s reputation for having such a trait is inherently unreliable
and distinguishable from traditionally admissible reputation evidence”); State v. Graf, 726
11 In State v. Griswold, cited above, a different Washington intermediate appellate division court disagreed with Jackson. See Griswold, 991 P.2d at 663. The Griswold Court suggested that the Washington Supreme Court’s holding concerning a character evidence jury instruction in the post-Jackson case of State v. Thomas, 757 P.2d 512 (1988), indicated that the state’s highest court approved of the type of character evidence Jackson had not allowed. To date, the Washington Supreme Court has not resolved this split in Washington’s intermediate appellate courts. 21 A.2d 1270, 1274-75 (N.H. 1999) (in sexual assault case involving a minor victim, relying
on Jackson to hold that proffered evidence that defendant was “not the type of person to
sexually assault or to take advantage of children” was irrelevant and, therefore, properly
excluded at trial).
In Rothwell, the case upon which Vigna most relies, the Court of Appeals of Idaho
considered the majority and minority lines of cases on this question and adopted the
majority position, rejecting the argument that the secretive nature of child sexual abuse
renders character evidence of sexual morality inadmissible:
We conclude the majority rule is correct. Because character traits relating to a defendant’s sexual morality with children are pertinent, or relevant, in this type of case, such evidence is admissible under I.R.E. 404(a)(1). We recognize that sexual abuse is usually secret behavior that would not be observed by others, and therefore the opinion or reputation evidence about a defendant’s trustworthiness with children may be of marginal persuasiveness. The same can be said, however, of many types of criminal activity. It appears that Rule 404(a)(1) was nevertheless intended to allow an accused the opportunity to present evidence of good character that is pertinent to the nature of the charged offense. The unlikelihood that the character witnesses would have been in a position to witness criminal conduct of the defendant goes to the weight of character evidence, not its admissibility.
294 P.3d at 1143. The Rothwell Court confirmed that a defendant who seeks to introduce
such evidence through a witness first must establish that the witness has a sufficient
foundation of knowledge to opine or provide reputation evidence about the defendant’s
sexual morality with children. Id. at 1143-44. In addition, the Court noted that a trial court
retains the authority to exclude such character evidence under Idaho’s equivalent to
22 Maryland Rule 5-403,12 if the trial court finds that the probative value of the character
evidence is substantially outweighed by the danger of, among other things, unfair
prejudice, confusing the issues, or misleading the jury. Id. at 1144.
3. A Blanket Rule of Exclusion of Character Evidence of Appropriateness with Children in One’s Custody or Care Is Erroneous.
Like the Rothwell Court, we adopt the majority position among the courts around
the country that have considered this question, and hold that evidence of a defendant’s
character for appropriateness with children in his or her custody or care (or a similarly
worded trait) may be admissible in a case where the defendant is charged with sexual abuse
of a minor or a similar crime against a child.
The Court of Special Appeals opted for the minority position, based on its view that
such character evidence can never be relevant in a child sex abuse case. See Vigna, 241
Md. App. at 719-24. The intermediate appellate court reached this conclusion for two
reasons. First, the court accepted the reasoning of Jackson and Hendricks that, due to the
“secretive nature of sexual crimes, and sexual activity in general, a defendant’s reputation
for sexual activity, or the lack thereof, [bears] no correlation to the likelihood that they
committed the crimes charged.” Id. at 720. In this regard, the court observed that, “[u]nlike
one’s reputation for honesty or peacefulness, traits that might be noticed by the community,
12 “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Md. Rule 5-403. 23 whether one secretly molests children or does not would not be openly exhibited.” Id. at
721.
Second, the Court of Special Appeals observed that sexual predators often gain
special access to children for the very reason that they are able to appear “appropriate” (and
trustworthy, moral, etc.) in their interactions with children:
Sexual predators are “not instantly recognizable as the ‘dirty old man in the raincoat.’” Anne-Marie McAlinden, Setting ‘Em Up: Personal, Familial, and Institutional Grooming in the Sexual Abuse of Children, 15 SOC. AND LEGAL STUD. 339, 348 (2006). They blend into the community and often stand in trust relationships—coaches, clergy, teachers, physicians, or family members—with their victims. Id. Offenders “groom” victims through these relationships and “skillfully manipulate a child into a situation where he or she can be more readily sexually abused and is simultaneously less likely to disclose.” Id. at 346. Recent news accounts demonstrate how offenders exploit trust relationships, not only with children but also their parents and the community at large, to gain access to victims. Before these allegations became public, there undoubtedly were colleagues, parents, and other children who could have testified honestly that they believed those abusers were appropriate with children and much beloved by the community for the strong relationships they formed with them.
To admit a community member’s opinion about a defendant’s reputation for propriety with children would fail to “consider that sex offenders may [ ] groom not just the child but also their family or the wider community as a necessary prerequisite to gaining access” to child victims. Id. at 341. In this way, they “ingratiate themselves with children and infiltrate themselves into unsuspecting ... communities.... To do this successfully, they must pass themselves off as being very nice, usually, men who simply like children.” Id. at 348. This is not to suggest that teachers, clergy, or other adults with close relationships with children should inherently be regarded with suspicion, or that their close relationships with children suggest impropriety with children. But an adult’s public interaction with children under his care doesn’t make it any more or less likely that the alleged victims were abused by him privately. And because it’s not relevant, it’s not admissible under Rule 5-404(a)(2)(A).
Vigna, 241 Md. App. at 722-23 (footnotes omitted).
24 We disagree with the Court of Special Appeals’ reliance on Jackson and Hendricks.
Rather, we agree with the Rothwell Court that “[t]he unlikelihood that the character
witnesses would have been in a position to witness criminal conduct of the defendant goes
to the weight of character evidence, not its admissibility.” 294 P.3d at 1143. To be sure,
child sexual abusers do not usually commit their crimes in the view of others in the
community from whom character witnesses are drawn.13 But, as the Court observed in
Rothwell, the same can be said of other cases in which character evidence is routinely
admitted. Id. For example, it is common for a defendant accused of a fraud offense to offer
opinion and reputation testimony about the defendant’s character for honesty. See, e.g.,
Grant v. State, 55 Md. App. 1, 39 (1983) (noting that a defendant’s “reputation for truth
and veracity would be relevant upon the trial of a charge such as perjury, false pretenses,
or embezzlement”); In re Sealed Case, 352 F.3d 409, 413 (D.C. Cir. 2003) (evidence of a
defendant’s character for truthfulness and honesty is admissible in cases involving fraud or
false statements). In such cases, prosecutors frequently elicit on cross-examination that the
character witness did not work in the defendant’s allegedly fraudulent company or
otherwise have any knowledge about the transactions at issue in the indictment. Such cross-
examination often is powerful, resulting in the proffered character evidence having
13 However, as Vigna points out, there have been well publicized incidents in which colleagues of sexual predators allegedly became aware of the conduct at the time it was happening. See, e.g., Tom Winter, Hannah Rappleye & Tracy Conner, Sandusky Case Bombshell: Did 6 Penn State Coaches Witness Abuse?, NBC News (May 6, 2016), available at https://www.nbcnews.com/news/us-news/sandusky-case-bombshell-did-6- penn-state-coaches-witness-abuse-n569526 (accessed on Aug. 3, 2020), archived at https://perma.cc/7GGZ-9JSY. 25 “marginal persuasiveness” to the jury. Rothwell, 294 P.3d at 1143. However, we certainly
cannot say that such challenged character evidence – or the character evidence that Vigna
wanted to elicit in this case – will never have any relevance to a properly instructed jury.
In addition, although we understand that child sex abusers frequently engage in
“grooming” activity – with respect to child victims, as well as to their parents and other
adults in the community – it does not follow that evidence that an alleged abuser has the
character of appropriately interacting with children is categorically irrelevant. As the Court
of Special Appeals correctly observed, not all close relationships between children and
“teachers, clergy, or other adults … suggest impropriety.” Vigna, 241 Md. App. at 723
(emphasis in original). Indeed, most adults in positions of trust with children undoubtedly
choose to occupy those positions because they want to help children, not abuse them. For
this reason, we believe that the Court of Special Appeals’ reliance on the grooming activity
of convicted child sexual abusers to prevent an accused child sexual abuser from
introducing character evidence of his appropriateness with children encroaches on the
latter’s presumption of innocence. This we cannot allow. See, e.g., Montgomery v. State,
292 Md. 84, 91 (1981) (listing the presumption of innocence among the “bedrock
characteristics” that “are indispensable to the integrity of every criminal trial”), overruled
on other grounds by Unger v. State, 427 Md. 383 (2012); see also Rinat Kitai, Presuming
Innocence, 55 Okla. L. Rev. 257, 265 (2002) (“This presumption [of innocence prior to
conviction] is a general one, granted equally to every person even before the onset of the
investigation and trial, and independent of prior conditions such as her status, the amount
of incriminating evidence, or her criminal history.”).
26 However, the State is not powerless when it comes to challenging the probative
value of character evidence of appropriateness with children (as well as other positive traits
such as law-abidingness and truthfulness) where there is evidence that the defendant
engaged in grooming conduct not just toward children, but also toward the community as
a whole. To the extent the State possesses such evidence, the State may seek to introduce
expert testimony on such grooming to assist the jury in understanding its significance. See
Coates v. State, 175 Md. App. 588, 607 (2007) (expert witness “described the process of
‘grooming,’ in which an abuser gains a child’s trust through special attentiveness”); see
also United States v. Romero, 189 F.3d 576, 585 (7th Cir. 1999) (affirming admission of
expert testimony on the “modus operandi of modern child molesters”).14 This, in turn, may
provide the jury with insight as to how someone accused of a horrible crime against a child
may nevertheless have a stellar reputation in the community for appropriate interaction
with children and other positive traits of character. In addition, the prosecutor may cross-
examine the character witness concerning specific uncharged acts of inappropriateness. See
Md. Rule 5-405(a). And, as discussed above, the prosecutor often will score points on
cross-examination of such a character witness, even without going into specific acts of
inappropriateness.
14 This observation should not be taken to suggest that expert testimony is always necessary before the State (or the defense) may refer in closing arguments to evidence of a defendant’s conduct as “grooming” or the lack thereof. See Dandass v. State, 233 So. 3d 856, 868-69 (Miss. Ct. App. 2017) (holding that prosecutor’s reference in closing argument to defendant’s “grooming” of victim, without supporting expert testimony, was not improper in light of the victim’s testimony). We express no opinion on the factors that would permit (or require) expert testimony on “grooming” in any particular case.
27 Although the juries in many child sex abuse cases probably will not find reasonable
doubt of guilt after hearing character evidence of the defendant’s appropriateness with
children, it does not follow that there is no relevance to such character evidence. While not
all people who have reputations for appropriate interaction with children in their custody
or care refrain from sexually abusing some of those children, we expect that almost all
people in positions of trust toward children who do refrain from sexually abusing those
children, over time, will have built reputations in their community for appropriateness with
children. Although research suggests that false allegations of child sexual abuse are very
rare,15 they have occurred.16 For an innocent teacher, coach, or other person occupying a
position of trust who has been falsely accused of child sexual abuse, the ability to introduce
opinion or reputation evidence from respected members of the community about the
defendant’s appropriateness with children in his custody or care may not only be relevant,
but also crucial to avoid a miscarriage of justice. We have confidence that juries will be
able to appropriately weigh such character evidence in conjunction with all the other
relevant evidence they receive in child sexual abuse cases.
15 See, e.g., The Leadership Council on Child Abuse & Interpersonal Violence, How Often Do Children’s Reports of Abuse Turn Out to Be False, available at http://www.leadershipcouncil.org/1/res/csa-acc.html (summarizing several studies that all concluded such false allegations occurred in single-digit percentage ranges) (accessed on Aug. 4, 2020), archived at https://perma.cc/T3KP-GJJT. 16 See Caroline Hendrie, Living Through a Teacher’s Nightmare: False Accusation, Education Week, https://www.edweek.org/ew/articles/1998/12/09/15false.h18.html, Dec. 9, 1998 (accessed on Aug. 4, 2020), archived at https://perma.cc/6A7K-6SQH. 28 In sum, we decline to adopt a per se rule that character evidence of appropriateness
with children in one’s custody or care (or similar traits) is never relevant in a criminal case
where the defendant is charged with a sex crime against a child. Rather, as we discuss in
the next section, the trial court must conduct an individualized, three-part analysis to
determine whether such evidence is admissible.
4. The Test for Admissibility of Character Evidence Under Rule 5-404(a)(2)(A)
When the State objects to a defendant’s proffer of opinion or reputation evidence
under Rule 5-404(a)(2)(A) to establish his or her character for a particular trait, the trial
court must determine whether: (1) the particular quality identified by the defendant is a
“trait of character” within the meaning of Rule 5-404(a)(2)(A); and (2) evidence of such a
trait of character is “pertinent,” i.e., relevant to the trier of fact’s consideration of the
charged offenses. If the court answers both of these questions in the affirmative, then the
court (if requested by the State) should (3) analyze the proffered evidence under Rule 5-
403 to determine whether its probative value is substantially outweighed by the danger of
unfair prejudice or another circumstance listed in that Rule.17
a. Whether a Quality Is a “Trait of Character”
Rules 5-404 and 5-405 do not define what constitutes “character” or a “trait of
character”; neither do their counterparts in the Federal Rules of Evidence, in what one
17 A pretrial motion in limine is typically the best way to address the admissibility of character evidence. That is the approach the parties took in this case. However, if neither party requests a pretrial ruling on the admissibility of character evidence, if the State objects to (or requests an offer of proof regarding) character evidence the defendant seeks to admit under Rule 5-404(a)(2)(A), the trial court should conduct this analysis outside the presence of the jury. 29 commentator has said “is perhaps a nod to the impracticality of defining [character].”
Barrett J. Anderson, Recognizing Character: A New Perspective on Character Evidence,
121 Yale L.J. 1912, 1923 (2012). The Advisory Committee Notes to Federal Rule of
Evidence 405 at the time of its adoption “are just as imprecise, listing several examples of
character traits, such as honesty, peacefulness, and violence, and then stating generally that
‘character is defined as the kind of person one is.’” Id. There is scant additional guidance
as to what constitutes a “trait of character” for purposes of admitting character evidence in
a criminal trial. However, a proffered character trait cannot be “so diffuse as to be merely
synonymous with good character generally, which is not admissible.” United States v.
Angelini, 678 F.2d 380, 381 (1st Cir. 1982). As the Court in Angelini explained, Federal
Rule of Evidence 404(a)(2)(A), from which Maryland Rule 5-404(a)(2)(A) is derived,
permits evidence of traits only; an earlier draft was modified, deleting language that would have allowed the introduction of evidence of a defendant’s character generally. See Advisory Committee’s Note to Rule 404; Proposed Federal Rules of Evidence 4-04(a)(1), 46 F.R.D. 161, 227 (1969). Under the common law, there was a similar distinction made between general good character and particular traits of character. See McCormick, Evidence § 191, at 455 (2d ed. 1972); 1 Wigmore, Evidence § 59, at 458; 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5236, at 382.
Angelini, 678 F.2d at 382. Rule 404 “was intended to restate the common law rule.” Id.
(citing 2 Weinstein & Berger, Evidence ¶ 404(05) (1981)).
We determine that, at the outset of a hearing regarding the admissibility of character
evidence under Rule 5-404(a)(2)(A), the defendant must identify with particularity the
quality that the defendant contends is a “trait of character,” and must articulate how the
proffered trait sheds light on the “kind of person” he or she is. Generally, this should not
30 be a difficult burden to meet. As long as the defendant’s proffered character trait is
sufficiently specific to distinguish it from “good character generally,” the defendant will
pass this first part of the test.
We have no difficulty concluding that the quality of being appropriate with children
(or similar formulations, such as trustworthiness with children, or sexual morality with
respect to children) can shed light on the type of person one is. See Enakiev, 29 P.3d at
1163 (“Evidence of a person’s character with respect to sexual propriety evinces that
person’s propensity to act in a sexually proper manner in all the varying situations of
life. In that sense, sexual propriety is materially indistinguishable from … other examples
of character traits,” such as truthfulness, honesty, temperance, carefulness, or peacefulness,
“and is properly deemed a character trait.”) (citation omitted); Hughes, 841 So. 2d at 722
(evidence of a defendant’s lack of sexual deviancy, or lack of interest in children as the
occasion of sexual desire, “constitutes evidence of character because it reveals the ‘actual
moral or psychical disposition’ of the person”) (quoting 1 Wigmore, Evidence, § 52, at 448
(3d ed. 1940) (emphasis in original)). Thus, when a defendant seeks to offer evidence of
his character for appropriateness with children in his custody or care, or a similar trait
involving a disposition toward children, the trial court should proceed to the pertinence,
i.e., relevance, inquiry.
b. Whether a Defendant’s Character for Appropriateness with Children Is a “Pertinent” Trait in a Particular Criminal Case
As discussed above, a court may not exclude per se proffered character evidence of
appropriateness with children as irrelevant to the determination of charges in a criminal
31 case. However, such evidence is not automatically relevant in every criminal case in which
a defendant is charged with a crime against a child. A court should consider in each instance
whether the proffered testimony is evidence of a “pertinent” trait of character, given the
specific charges in the case. That is, the court should consider whether such evidence, if
believed by the jury, makes it less likely that the defendant committed the charged offense.
See Sahin v. State, 337 Md. 304, 311 (1995) (“To be relevant, it is necessary that the
character be confined to an attribute or trait the existence or nonexistence of which would
be involved in the noncommission or commission of the particular crime charged.”)
(cleaned up). Thus, while a particular character trait may be relevant in one kind of criminal
case, that same trait will not be relevant in others. In Braxton v. State, 11 Md. App. 435
(1971), the Court of Special Appeals listed several examples of irrelevant character traits
for specific crimes:
It is irrelevant to show the defendant’s reputation for honesty and integrity in a prosecution for adultery; for truth and veracity, or peace and quietude, in a prosecution for statutory rape; for good military conduct in a rape prosecution; for truth and veracity in a robbery prosecution; or for honesty and integrity, in a murder prosecution; for morality and sobriety in a prosecution for a false bank report entry; or for reliability in business in a prosecution for the malicious destruction of property.
Id. at 440 n.3 (internal quotation marks and citation omitted).
Where the State alleges that a defendant sexually abused a child who was in his
custody or care at the time of the alleged offense, the relevance of character evidence
concerning the defendant’s appropriateness with children in his custody or care is clear to
us. To be sure, a jury may ultimately give such evidence little weight. However, for the
reasons discussed above, we believe such character evidence has probative value,
32 especially in a case where (as here) temporary custody or care of the allegedly abused child
is an element of at least one of the charged offenses.
An arguably more difficult case in which to establish relevance may be where the
defendant is charged with, for example, kidnapping and sexually assaulting a child with
whom he has no prior relationship. In such a case, the probative value of character evidence
of appropriateness with children (in one’s custody or otherwise) may depend on additional
factors, including the theory of the defense and the particulars of the character evidence the
defendant seeks to introduce. We leave such determinations of relevance for trial judges to
assess on a case-by-case basis.
c. Application of the Rule 5-403 Balancing Test
If a trial judge determines that the proffered evidence goes to a “trait of character”
and that such evidence has probative value to the jury’s consideration of the charges against
the defendant, then the trial court should conduct a Rule 5-403 analysis (if the State requests
that the court do so). If the court concludes that the probative value of the character
evidence is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, etc., then the trial court may exclude the proffered evidence.18
18 If the result of the trial court’s analysis under the three-part test we have articulated is that the category of proposed character evidence is ruled admissible, the defendant still must establish that the proffered witness has a sufficient basis of knowledge upon which to provide opinion or reputation testimony regarding the character of the defendant. See Devincentz, 460 Md. at 543-44. And, if the defense seeks to admit character evidence through improper methods, e.g., proof of specific instances of conduct, as opposed to opinion and/or reputation evidence, then the court may sustain an objection by the State on that basis as well. Md. Rule 5-405(a). 33 B. Any Error in Excluding Vigna’s Proffered Character Evidence Was Harmless Beyond a Reasonable Doubt.
A trial court’s error does not necessarily require reversal of a conviction and a new
trial. If an appellate court finds, beyond a reasonable doubt, that the error had no influence
on the verdict, then the error is deemed harmless, and the conviction stands. See, e.g.,
Morris v. State, 418 Md. 194, 221-22 (2011). The exclusion of evidence is harmless if it is
“unimportant in relation to everything else the jury considered on the issue in question, as
revealed by the record.” Dionas v. State, 436 Md. 97, 117 (2013).
In this case, the circuit court ended its admissibility analysis after concluding that
appropriateness in interactions with children is not a character trait. The circuit court was
troubled by the “specific” and “unique” nature of the quality that Vigna articulated as a
character trait. However, as discussed above, at the first step in the analysis we outlined
above, we are concerned with traits that suffer from the opposite problem, i.e., traits that
are so broad they are synonymous with good character generally. Appropriateness with
children in one’s custody or care does not suffer from this infirmity. The circuit court
should have considered that trait’s relevance to the jury’s consideration of the charges
Vigna faced.
The Court of Special Appeals considered the relevance question, but as discussed
above, erred in adopting a per se rule that such character evidence has no relevance in a
case where a defendant is charged with a sex offense against a child. We conclude that
evidence of Vigna’s character for appropriateness with children in his custody or care had
34 at least some probative value in determining whether he abused the five children in his
temporary custody or care, as alleged in the indictments.
If we assume for the sake of argument that the State had no valid basis upon which
to argue for exclusion of the proffered character evidence under Rule 5-403, we
nevertheless conclude that the circuit court’s error in excluding the evidence was harmless
beyond a reasonable doubt. As the Court of Special Appeals aptly observed:
Ultimately, very little of the testimony that Mr. Vigna offered did not find its way to the jury. He called nine defense witnesses who testified that he was law-abiding and truthful. Four were former colleagues, and two worked in Mr. Vigna’s classroom alongside him. One character witness, who was both a former colleague and the parent of a former student, testified that she trusted Mr. Vigna “obviously, with the lives of [her] children” and that “as a coworker, I trust him helping me out of some very difficult situations with other children. So [ ] he’s very trustworthy and ... very calming to the children that I needed help with.” Another stated that he would trust Mr. Vigna with his life. Mr. Vigna’s twelve-year-old niece testified that she trusted her uncle. And despite excluding testimony about Mr. Vigna’s reputation for interacting appropriately with children, the court allowed multiple parents to testify about the positive experience of having Mr. Vigna teach their children. He was not permitted to elicit testimony that he had the reputation for conducting himself appropriately with children, but the extensive testimony he did elicit supports the “trait” that Mr. Vigna sought to establish.
241 Md. App. at 679-80.
We agree with the Court of Special Appeals’ assessment of the record. The
testimony from parents who stated that, based on their experiences in seeing Vigna interact
with children, they would entrust the lives of their children and other children to him, was
functionally the equivalent of an opinion that Vigna was the type of person who was
appropriate with children. See McDowell v. State, 318 P.3d 352, 359-60 (Wyo. 2014)
(witness who testified that her brother (the defendant) was an attentive, “fun uncle” and
35 that she never “ha[d] any problems” with him while her children were growing up,
colloquially provided an opinion as to the defendant’s trustworthiness with children).
Moreover, the opinion testimony of multiple defense witnesses that Vigna was law-
abiding, although broader than the excluded opinion evidence Vigna sought to elicit,
ultimately served the same purpose. That is, if the jurors credited the character evidence
that Vigna was law-abiding, they logically would have inferred that Vigna was not the type
of person who would commit the specific violations of law with which he was charged.
Finally, Vigna testified in his own defense and denied that he ever improperly
touched any of his students. Indeed, he claimed that touching a student inappropriately was
“simply against the fiber of [him].” The defense witnesses who followed Vigna on the
witness stand testified to his character for truthfulness. The character evidence that Vigna
was a truthful person, if believed, supported Vigna’s argument that the jurors should
believe his denial of the charges.
For these reasons, we conclude that any error in precluding the defense witnesses
from opining that Vigna was not just law-abiding and truthful, but also was the type of
person who is appropriate with children, was harmless beyond a reasonable doubt. See
Rothwell, 294 P.3d at 1150 (improper exclusion of character evidence that defendant was
trustworthy with children was harmless, given its marginal probative value); McAlpin, 812
P.2d at 577-78 (erroneous exclusion of opinion evidence that defendant was not a person
given to lewd conduct was harmless under a reasonable probability standard); Hallman,
379 S.E.2d at 117 (erroneous exclusion of evidence of defendant’s reputation for
“morality” was harmless beyond a reasonable doubt, where the character witnesses
36 testified that defendant had a good reputation for truth and veracity, which supported
defendant’s own testimony that he did not commit the alleged abuse).19
C. Vigna’s Constitutional Arguments Are Not Preserved for Appellate Review or Abandoned, and Lack Merit in Any Event.
In the Court of Special Appeals, Vigna argued that the circuit court’s decisions to
exclude his proffered character evidence and admit the 2008 and 2013 reprimands violated
his right to a fair trial under the Sixth Amendment to the United States Constitution.
Vigna’s theory was that the circuit court’s admission of his prior reprimands, combined
with the exclusion of the defense witnesses’ proffered opinion and/or reputation testimony
concerning Vigna’s character for appropriateness with children, was so prejudicial that it
19 Vigna’s reliance on Pierce v. State, 62 Md. App. 453 (1985), is unavailing. In Pierce, the evidence showed that the victim began arguing with the defendant at a party when the defendant applied first aid to the victim’s teenage son. The victim, who was intoxicated at the time, started grappling with the defendant, who was carrying a handgun for protection. During the struggle, the firearm discharged, killing the victim. Id. at 455- 56. The trial judge precluded the defendant from eliciting character evidence of her peaceable nature, but two defense witnesses were allowed to testify to the defendant’s general good character and law-abiding nature. The jury acquitted the defendant of murder, but convicted her of voluntary manslaughter. On appeal, the Court of Special Appeals held that the erroneous exclusion of character evidence of peacefulness was not harmless beyond a reasonable doubt. Id. at 461-62. Assuming we would reach the same conclusion in Pierce as the Court of Special Appeals did, Pierce is distinguishable from this case. Evidence that a defendant is generally law-abiding may be much less significant than evidence that the defendant is peaceful, where the defendant is charged with murder as a result of a homicide that is not alleged to have been premeditated, but rather occurred during a struggle in a matter of seconds. In contrast, when a defendant is charged with committing sex crimes against multiple children spanning more than a decade, a jury may be able more readily to infer from character evidence about the defendant’s law-abidingness that the defendant is not the type of person who would commit the crimes with which he is charged. 37 denied him a fair trial. The Court of Special Appeals rejected this argument. Vigna, 241
Md. App. at 732-33.
In his petition for certiorari, the second question Vigna asked us to review was:
“Did the Court of Special Appeals err when it failed to recognize that denying Mr. Vigna
the ability to introduce relevant character evidence, while at the same time allowing the
state to introduce non-criminal 404(b) ‘bad acts’ character evidence, denied him the right
to a fair trial under the Sixth Amendment of the United States Constitution?”
We agreed to consider this question when we granted Vigna’s petition for certiorari.
However, in his briefs to this Court, Vigna did not include any substantive argument about
how the purported imbalance of the two evidentiary rulings rendered his trial unfair under
the Sixth Amendment. Thus, Vigna abandoned the constitutional argument underlying the
second question for which we granted review. See Md. Rules 8-504(a)(6) & (c).
In place of his abandoned Sixth Amendment argument, Vigna made a different
constitutional argument, claiming for the first time that the exclusion of his proffered
character evidence violated his right to due process.20 Vigna seemingly accepts that
exclusion of the type of character evidence he sought to admit would not have posed a due
process problem when “our court system [was] male-centered.” However, according to
20 Vigna did not specify in his briefs whether his due process claim arises under the Fifth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, or under Article 24 of the Maryland Declaration of Rights, or both.
38 Vigna, in the advent of statutory protections that now exist for victims,21 “this Court should
be mindful of the pendulum swinging too far,” and should hold that, as a matter of due
process, a court must allow a defendant to introduce relevant character evidence of the sort
Vigna proffered in his trial.
Vigna failed to preserve this due process argument for appellate review. See Md.
Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it
plainly appears by the record to have been raised in or decided by the trial court.”).
Regardless, both Vigna’s original Sixth Amendment argument and his new due process
argument lack merit. As discussed above, any error in the exclusion of character evidence
was harmless beyond a reasonable doubt. By definition, then, Vigna received a fair trial. It
may not have been a perfect trial, given the limitation on Vigna’s ability to elicit the more
specific character evidence he proffered, but fairness, not perfection, is the constitutional
standard. See Dorsey v. State, 276 Md. 638, 647 (1976) (“[I]t is firmly established that an
accused has a constitutional right to a fair trial but not necessarily to that seldom
experienced rarity, a perfect trial.”) (cleaned up).
Moreover, we disagree with Vigna that due process requires the admission of
character evidence of the sort he sought to elicit in this case, either as applied to him or as
to all defendants. The logical conclusion of Vigna’s argument is that a trial judge lacks all
21 Vigna observes that “[i]n Maryland we have seen the advent of rape-shield laws, expansion of 404(b)-character evidence applied to sexual assault cases; child hearsay evidentiary rules (See Md. Rule 5-802.1), amendments to criminal procedure rules specifically to protect child sexual assault victims (See Md. Crim. Pro. 11-304), and also the establishment of Maryland’s victim’s rights laws that are so robust and progressive that they are now explicitly listed in the Maryland Declaration of Rights.” 39 discretion when it comes to relevant character evidence. To accept that contention would
be to render such evidence immune to exclusion or limitation under Rule 5-403. We reject
that assertion. We trust trial judges to exercise their discretion wisely in such
circumstances, giving due consideration to a defendant’s right to put on a meaningful
defense. See, e.g., California v. Trombetta, 467 U.S. 479, 485 (1984). As for the contention
that the circuit court’s ruling, as applied to Vigna, violated due process, we again disagree.
The ruling did not prevent Vigna from putting on any kind of character evidence, let alone
a meaningful defense. The record reflects that Vigna was ably represented by experienced
trial counsel who, indeed, did present a meaningful defense on behalf of his client. The
jury seems to have deliberated with care, acquitting Vigna of five of the 14 charges. We
are confident that Vigna received due process, regardless of any harmless error that resulted
from the exclusion of the character evidence Vigna sought to introduce.
IV
Conclusion
As discussed above, character evidence of a defendant’s appropriateness with
children in his custody or care (or a similar character trait) may be admissible in a case
where a defendant is charged with a sex crime against a child. However, any error in the
exclusion of such character evidence in Vigna’s case was harmless beyond a reasonable
doubt, given the extensive character evidence that the jury heard about Vigna’s character
40 for being law-abiding and truthful. Therefore, we affirm the judgment of the Court of
Special Appeals.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.
41 Circuit Court for Montgomery County Case Nos. 130781C & 129932C Argued: March 9, 2020 IN THE COURT OF APPEALS
__________________________________
JOHN VIGNA v. STATE OF MARYLAND __________________________________
Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran,
JJ. __________________________________
Concurring Opinion by Hotten, J., which Watts, J. joins. __________________________________
Filed: August 18, 2020 Respectfully, I join the Majority in affirming the judgment of the Court of Special
Appeals. However, I write separately to express my views regarding the Majority’s
conclusion that appropriateness with children in the care of Mr. Vigna is a pertinent
character trait.
Before trial, Mr. Vigna attempted to introduce, as character evidence, testimony that
he had a reputation in the community for “appropriate interaction with students,” which he
later broadened to include “any situation in which he has supervisory responsibility for
children in his custody[.]” Under Maryland Rule 5-404(a)(2)(A): “An accused [in a
criminal case] may offer evidence of the accused’s pertinent trait of character. If the
evidence is admitted, the prosecution may offer evidence to rebut it.” But fundamentally,
what constitutes a “character trait”?
The plain-language of the Rule outlines two elements that must be satisfied before
the accused may offer character evidence: (1) the evidence must pertain to a trait of
character and (2) that trait must be pertinent, or relevant, to the crime charged.
Appropriateness with children in his care or custody is not a trait of character. I am
unconvinced that “reputation” for appropriate interaction with children in his care is a
character trait, nor am I convinced that this testimony would be relevant in a child sex
abuse trial. I explain my reasoning more fully herein.
A. Appropriate Interactions with Children in His Care is Not a Trait of Character.
As a general rule, “evidence of a person’s character or character trait is not
admissible to prove that the person acted in accordance with the character or trait on a
particular occasion.” Md. Rule 5-404(a)(1). Stated differently, such evidence is inadmissible to prove propensity. Maryland Rule 5-404(a)(2)(A) is an exception to the
general prohibition against propensity evidence.
Character under the evidentiary rules, “is a generalized description of a person’s
disposition, or of the[ir] disposition [with] respect to a general trait, such as honesty,
temperance or peacefulness, that usually is regarded as meriting approval or disapproval.”
1 McCormick on Evid. § 195 (8th ed. 2020). While the text of the relevant rules does not
explicitly define what constitutes a “character trait,” Black’s Law Dictionary similarly
defines “character” as “[t]he qualities that combine to make an individual human being
distinctive from others, esp[ecially] as regards morality and behavior; the disposition,
reputation, or collective traits of a person as they might be gathered from close observation
of that person’s pattern of behavior.” BLACK’S LAW DICTIONARY (11th ed. 2019). A
“trait” is generally understood to be an “[e]lement of a person’s [makeup] serving as an
explanation of personal characteristics.” Trait, THE LAW DICTIONARY,
https://thelawdictionary.org/trait/ (last visited on August 11, 2020), archived at
https://perma.cc/DE6Y-PMTF; Trait, Merriam-Webster’s Dictionary,
https://www.merriam-webster.com/dictionary/trait (last visited August 11, 2020), archived
at https://perma.cc/XA8F-P3HY (defining “trait” as “a distinguishing quality (as of
personal character)”).
These definitions prove useful here. As the trial judge articulated at the motions
hearing, “usually character traits . . . span across all walks of life and all categories of
interaction with people.” However, Mr. Vigna attempted to elicit testimony that he was
appropriate with children when they were under his supervision. Unlike a general character
2 for being a peaceful person in an assault prosecution, for example, evidence that Mr. Vigna
acted appropriately with children in his care or custody is evidence of conduct under
specific circumstances. It is not the kind of evidence contemplated by the exceptions to
Rule 5-404(a)(1), because the evidence is situational and does not transcend all
circumstances and interactions with all people. Although a defendant is permitted to
introduce evidence of a character trait on direct examination, such evidence is limited to
testimony regarding the reputation of the accused for a particular character trait, and the
witness’s personal opinion concerning that trait. Md. Rule 5-405. A defendant is not
permitted to introduce evidence of specific instances of conduct on direct examination,
unless evidence of the character trait is an “essential element of a charge, claim, or
defense[.]” Md. Rule 5-405(b). Mr. Vigna framed this witness testimony as concerning
his reputation in the community, but in actuality, this testimony constitutes past instances
of behavior or conduct, which is prohibited under the relevant evidentiary rules. Mr.
Vigna’s attempt to reframe testimony of past conduct as “reputation” evidence falls just
short of describing his conduct with children on a particular date and time. As such, the
proffered evidence was not evidence of a character attribute or trait.
B. Appropriate Interactions with Children in His Care is Not “Pertinent” to Allegations of Child Sex Abuse.
Assuming that the proffered evidence does qualify as a character trait, it was not
pertinent. As so well expressed by the Court of Special Appeals, “[t]he scope of what
constitutes a ‘pertinent character trait’ under Rule 5-404(a)(2)(A) is defined by the nature
of the crimes alleged.” Vigna v. State, 241 Md. App. 704, 717–18, 213 A.3d 668, 676
3 (2019). It is one that is relevant to the alleged crimes of the accused. Braxton v. State, 11
Md. App. 435, 440, 274 A.2d 647, 650 (1971). To surpass the relevance bar, the character
trait must be “confined to an attribute or trait the existence or nonexistence of which would
be involved in the noncommission or commission of the particular crime[.]” Id. In other
words, to be admissible as a pertinent trait of character, the particular evidence offered
must bear some nexus to the charged crimes. See State v. Bogle, 324 N.C. 190, 201, 376
S.E.2d 745, 751 (1989) (stating that a “pertinent” character trait is that which “bear[s] a
special relationship to . . . the crime charged”) (emphasis in original). In the case at bar,
we are concerned with whether “Mr. Vigna’s reputation in the community for appropriately
interacting with children bears on whether he sexually abused them.” Vigna, 241 Md. App.
at 718, 213 A.3d at 676. I agree with the Court of Special Appeals and the trial court, that
such evidence has no bearing in this type of case.
Evidence of appropriate behavior or conduct with children, unlike character for
truthfulness or peacefulness in a fraud or assault investigation, adds nothing to a child sex
abuse prosecution, because of the nature of the allegations. As I believe the Court of
Special Appeals correctly pointed out, child sexual predators are particularly insidious.
These types of sexual predators often hide in plain sight. They “blend into the community
and often stand in trust relationships—coaches, clergy, teachers, physicians, or family
members—with their victims.” Vigna, 241 Md. App. at 722, 213 A.3d at 678 (citing Anne-
Marie McAlinden, Setting ‘Em Up: Personal, Familial, and Institutional Grooming in the
Sexual Abuse of Children, 15 SOC. AND LEGAL STUD. 339, 348 (2006)). They “groom
victims through these relationships and skillfully manipulate a child into a situation where
4 he or she can be more readily sexually abused and is simultaneously less likely to disclose.”
Id. (internal quotations omitted). Mr. Vigna was an elementary school teacher with more
than twenty years in the same school system. Considering the covert nature of child sexual
abuse under the circumstances presented, testimony regarding Mr. Vigna’s appropriate
behavior with children in his care would prove irrelevant and tend to confuse or mislead
the triers of fact.
A minority of jurisdictions have reached similar conclusions in that regard. For
example, in State v. Jackson, “the Court of Appeals of Washington held that[,] because of
the secretive nature of sexual crimes, and sexual activity in general, [] reputation for sexual
activity, or lack thereof, bore no correlation to the likelihood that [the defendant]
committed the crimes charged[.]” Vigna, 241 Md. App. at 720, 213 A.3d at 677 (citing
Jackson, 46 Wash. App. 360, 365, 730 P.2d 1361, 1364 (1986)). In that case, the defendant
was convicted of statutory rape, after the trial court excluded witness testimony that the
defendant had a good reputation in the community for “not spend[ing] an inordinate
amount of time with children in the community who are less than the age of ten” and
generally for “not molesting children[.]” Jackson, 46 Wash. App. at 365, 730 P.2d at 1364.
The appellate court rejected the argument that this evidence was relevant because crimes
of a sexual nature are “normally [] intimate, private affair[s] not known to the community.”
Vigna, 241 Md. App at 720, 213 A.3d at 677 (footnote omitted). As the Court of Special
Appeals aptly acknowledged:
Unlike honesty or peacefulness, traits [that] a person might exhibit visibly day-to-day, sexual interests, predilections, or deviancy are not readily discernable to a casual observer, or even a close colleague. For that reason,
5 courts in other states have disagreed with the majority view and have found reputation evidence relating to sexual behavior irrelevant to a defendant’s guilt for sexual crimes involving children. Put another way, the fact that a defendant might have behaved appropriately with children in some instances does not make it more or less likely that the defendant sexually abused a child.
Id. In conclusion, for the reasons previously expressed, I respectfully concur.
Judge Watts has authorized me to state that she joins in this opinion.
6 The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/55a19cn.pdf
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Cite This Page — Counsel Stack
235 A.3d 937, 470 Md. 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vigna-v-state-md-2020.