In Woodlin v. State, No. C-22-CR-19-000613 (Md. Ct. Spec. App. May 31, 2022), the Court of Special Appeals of Maryland considered the application of CJ § 10-923, a new evidentiary statute enacted by the Maryland General Assembly to permit, in certain circumstances, the admissibility of evidence of prior sexually assaultive behavior in the prosecution of sex crimes. The appellant argued that the allegations of his 2010 conviction were so dissimilar from the charges he faced for child sexual abuse and related sexual offenses in this case, that the 2010 allegations should not have been admitted. The appellant also argued that even if the fact of his prior conviction was admissible, the trial court abused its discretion by admitting “salacious” details of the offense.

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The statute

CJ § 10-923(b) sets out that when a defendant is on trial for sexual crimes or sexual abuse,

evidence of prior “sexually assaultive behavior” can be admissible. CJ § 10-923(e) allows the court to admit evidence of that prior sexually assaultive behavior if the court finds and states on the record that: the evidence is being offered to prove lack of consent or rebut an express or implied allegation that a minor victim fabricated the sexual offense; the defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior; the sexually assaultive behavior was proven by clear and convincing evidence; and, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

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Courts must consider the similarity of the offenses when determining whether the probative value of the evidence is not substantially outweighed by unfair prejudice

The Court held that when a party seeks to introduce evidence of prior “sexually assaultive behavior,” courts must consider the similarity of the offenses when determining whether the probative value of the evidence is not substantially outweighed by unfair prejudice under CJ § 10-923(e)(4). The more similar the prior sexually assaultive behavior is to the charged offense, the more probative, and the less unfairly prejudicially it is. Conversely, the more dissimilar the prior behavior is to the charged offense, the less probative, and the more unfairly prejudicial it is.

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Prior behavior was sufficiently similar to be admitted

In this case, the Court found that the facts of the appellant’s 2010 conviction were sufficiently similar to the allegations he faced in this case such that the motion court’s decision to admit the evidence was not an abuse of discretion. While the 2010 conviction involved an adult victim and different physical acts, the motion court noted the lack of consent in both instances.

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Trial Court did not abuse its discretion by admitting “salacious” details of the prior offense

The appellant also argued that even if the fact of his prior conviction was admissible, the trial court abused its discretion by admitting “salacious” details of the offense. The Court found that the appellant waived this argument by not objecting to the scope of the evidence offered or otherwise raising the issue of redaction to the trial judge, but even if he had not waived this argument, the Court would find that the trial court did not abuse its discretion.

The Court held that for the purposes of CJ § 10-923, it is insufficient merely to admit the fact of the prior conviction. Instead, courts must admit sufficient factual detail of the prior sexually assaultive behavior to allow the jurors to compare and contrast the current allegations with the prior behavior. This comparison is necessary for the jurors to determine for themselves whether, and to what extent, the prior behavior is probative. Additionally, the Court noted that without details of the prior behavior the jurors would be left to speculate as to the nature and circumstances of the prior offense.

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Disposition

The Court affirmed the appellant’s conviction.