MEMO TO:
Alexsei Demo US
RESEARCH ID:
#400085630d477f
JURISDICTION:
State
STATE/FORUM:
Maryland, United States of America
ANSWERED ON:
September 15, 2022
CLASSIFICATION:
Evidence
Criminal law

Issue:

In what circumstances will evidence of prior “sexually assaultive behavior” be admissible pursuant to Md. Code, Cts. & Jud. Proc. § 10-923(b)?

Conclusion:

Pursuant to Md. Cts. & Jud. Proc. § 10-923, in a criminal trial for certain sexual offenses including:

(a) a sexual crime under Title 3, Subtitle 3 of the Criminal Law Article;

(b) sexual abuse of a minor under §3-602 of the Criminal Law Article; or,

(c) sexual abuse of a vulnerable adult under §3-604 of the Criminal Law Article,

evidence of other sexually assaultive behavior by the defendant occurring before or after the offense for which the defendant is on trial may be admissible.  (Md. Code, Cts. & Jud. Proc. § 10-923 (2022))

A court may admit evidence of sexually assaultive behavior if the court finds and states on the record that:

(1) the evidence is being offered to:

(i) prove lack of consent; or

(ii) rebut an express or implied allegation that a minor victim fabricated the sexual offense;

(2) the defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior;

(3) the sexually assaultive behavior was proven by clear and convincing evidence; and

(4) The probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. (Md. Code, Cts. & Jud. Proc. § 10-923 (2022))

Evidence is never excluded merely because it is prejudicial. If prejudice were the test, no evidence would ever be admitted. The parties have a right to introduce prejudicial evidence. Probative value is outweighed by the danger of unfair prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case. (Raynor v. State, No. 2357 (Md. App. 2020))

The similarity or dissimilarity of the offenses is relevant to the question of whether the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. The more similar the prior sexually assaultive behavior is to the charged offense, the more probative of propensity it is, and the less unfairly prejudicial. Conversely, the more dissimilar the prior sexually assaultive behavior is to the charged offense, the less probative of propensity it is, and the more unfairly prejudicial. (Woodlin v. State, 254 Md. App. 691 (Md. App. 2022))

Before admitting the evidence of prior sexually assaultive behavior, courts must first determine, as a legal matter, what role the similarity or dissimilarity between the offenses plays in balancing the probative value of the evidence against the danger of unfair prejudice. Only then, as a factual matter, may the court determine whether the probative value of evidence of the accused's prior conviction was substantially outweighed by the danger of unfair prejudice. The question is not simply whether the evidence results in prejudice to the defendant, but rather whether the danger of unfair prejudice substantially outweighs any probative value. (Woodlin v. State, 254 Md. App. 691 (Md. App. 2022))

When weighing the probative value of the evidence against the danger of its unfair prejudice, courts consider the Mahone factors: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility. (Carlisle v. State, No. 836 (Md. App. 2020))

In Woodlin v. State, 254 Md. App. 691 (Md. App. 2022), the appellant was charged with child sexual abuse and related sexual offenses. Before trial, the State filed a timely motion of intent to introduce evidence of a prior conviction for sexual assault under Md. Code, Cts. & Jud. Proc. § 10-923, seeking to admit evidence that in 2010 the accused pled guilty to a third-degree sexual assault. The motions court ruled that the evidence was admissible. After being convicted, the appellant appealed. The Maryland Court of Special Appeals held that the facts of the appellant's 2010 conviction and the allegations at issue were sufficiently similar that the motions court's decision to admit the 2010 conviction did not constitute an abuse of discretion. The Court noted that the 2010 offense and current offense could reasonably be characterized as similar because both involved vulnerable, male victims who were unable to consent, and both involved an assault on the victim's anal area. The Maryland Court of Special Appeals held that the trial court did not abuse its discretion in admitting evidence of the accused's prior conviction.

Law:

§ 10-923. Admissibility of evidence of other sexually assaultive behavior

(a) In this section, "sexually assaultive behavior" means an act that would constitute:

(1) A sexual crime under Title 3, Subtitle 3 of the Criminal Law Article;

(2) Sexual abuse of a minor under §3-602 of the Criminal Law Article;

(3) Sexual abuse of a vulnerable adult under §3-604 of the Criminal Law Article;

(4) A violation of 18 U.S.C. Chapter 109A; or

(5) A violation of a law of another state, the United States, or a foreign country that is equivalent to an offense under item (1), (2), (3), or (4) of this subsection.

(b) In a criminal trial for a sexual offense listed in subsection (a)(1), (2), or (3) of this section, evidence of other sexually assaultive behavior by the defendant occurring before or after the offense for which the defendant is on trial may be admissible, in accordance with this section.

(c)

(1) The State shall file a motion of intent to introduce evidence of sexually assaultive behavior at least 90 days before trial or at a later time if authorized by the court for good cause.

(2) A motion filed under paragraph (1) of this subsection shall include a description of the evidence.

(3) The State shall provide a copy of a motion filed under paragraph (1) of this subsection to the defendant and include any other information required to be disclosed under Maryland Rule 4-262 or 4-263.

(d) The court shall hold a hearing outside the presence of a jury to determine the admissibility of evidence of sexually assaultive behavior.

(e) The court may admit evidence of sexually assaultive behavior if the court finds and states on the record that:

(1) The evidence is being offered to:

(i) Prove lack of consent; or

(ii) Rebut an express or implied allegation that a minor victim fabricated the sexual offense;

(2) The defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior;

(3) The sexually assaultive behavior was proven by clear and convincing evidence; and

(4) The probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

As explained by the Mayland Court of Special Appeals in Hayes v. State, No. 2274-2019 (Md. App. 2022)Md. Code, Cts. & Jud. Proc. § 10-923 is a relatively new statute. It became effective July 1, 2018 (at 25 and FN 14):

The Courts and Judicial Procedures (sic) section has this special carve out, I'm going to call it, of other crimes evidence or pattern evidence where it comes to sex offense crimes. And it's a relatively new statute, and there really isn't any reported case law on it, but it's there, and the State insisted on using it. And the Courts and Judicial Procedures (sic) say that the court -- that the State can.

[...]

Section 10-923 of the Courts & Judicial Proceedings Article, effective July 1, 2018, 2018 Md. Laws, ch. 362, provides:

[...]

In the unreported decision of Rosario-Ovalles v. State, No. 154 (Md. App. 2020), the Maryland Court of Special Appeals considered whether the circuit court erred in permitting testimony about uncharged allegations of sexually assaultive behavior under Md. Code, Cts. & Jud. Proc. § 10-923. The appellant compared section 10-923 to "bad-acts evidence" and argued that to overcome the general prohibition on the receipt of other crimes evidence set out in Md. Rules, Rule 5-404(b), the uncharged allegation must be nearly identical in method so as to earmark them as the handiwork of the accused. The Court rejected this argument and held that, rather than being comparable to the exceptions listed in rule 5-404, section 10-923 exists on its own plane, with specific conditions regarding when the offered evidence may be admitted (at 9-10):

In claiming that the testimony offered by W.S. does not have probative value sufficient to outweigh substantially the risk of unfair prejudice occasioned by its admission, Appellant draws a comparison between § 10-923 and "bad-acts evidence."

"Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove the character of the person in order to show action in the 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, absence of mistake or accident, or in conformity with Rule 5-413."

Md. Rule 5-404. In offering this comparison, Appellant notes that, to overcome the general prohibition on the receipt of other crimes evidence, the uncharged allegation must be "nearly identical in method as to earmark them as the handiwork of the accused." Lebedun vState, 283 Md. 257, 279 (1978).

Appellant misses his mark in several aspects. First, the comparison between Rule 5-404 and § 10-923 is inapt. Were the relevant allegations here not sexual in nature,

Page 10

perhaps Appellant's line of reasoning might carry more force and his argument regarding the asserted lack of similarities between the witnesses' testimony might be more worthy. As both witnesses' testimony fit the definition of "sexually assaultive behavior," however, Md. Code § 10-923 is the preeminent benchmark here. Rather than being comparable to the exceptions listed in Rule 5-404, § 10-923 exists on its own plane, with specific conditions regarding when the offered evidence may be admitted. As appears in the record of the adoption process of the legislation, "[b]y limiting the circumstances under which the evidence of other sexual assaults are admissible and allowing the trial court to perform its gatekeeper function and assess the potential for unfair prejudice, [the statute] strikes the appropriate balance between public safety and ensuring the defendant a fair trial." Letter from Office of the Attorney General of Maryland to Honorable Joseph F. Vallario, Chair, House Judiciary Committee, Senate Bill 270 (27 March 2018). The State's purpose in offering the testimony of W.S. was not to impugn generally Appellant's character, nor was it offered to prove he had committed the uncharged crimes, but to rebut the implied defense of fabrication of the events attested by Y.U.1

In the unreported decision of Raynor v. State, No. 2357 (Md. App. 2020), the accused contended that the trial court erred by admitting evidence of his other sexually assaultive behavior under Md. Code, Cts. & Jud. Proc. § 10-923. The Maryland Court of Special Appeals explained the background and purpose of section 10-923 and noted that it creates an opportunity for this relevant, probative evidence to be admitted while still protecting the defendant's rights. By limiting the circumstances under which the evidence of other sexual assaults are admissible and allowing the trial court to perform its gatekeeper function and assess the potential for unfair prejudice, the law strikes the appropriate balance between public safety and ensuring the defendant a fair trial (at 19-20, 24-25):

In 2018, the Maryland General Assembly clarified the law in this regard when it enacted. § 10-923. As indicated, and pertinent to the facts in this case, that statute provides that, after notice by the State and a hearing before the court outside the presence of the jury, "evidence of other sexually assaultive behavior by the defendant occurring before or after the offense for which the defendant is on trial may be admissible" where the evidence is being offered to "[p]rove lack of consent" and other requirements are met, including the opportunity for confrontation of the witnesses, that the prior behavior was shown by clear and convincing evidence, and that the probative value of the other evidence is not substantially outweighed by the danger of unfair prejudice. § 10-923 (b) and (e).

[...]

The legislative history explains the background and purpose of the law:

Page 20

Under current law, the State cannot introduce prior allegations of sexual abuse unless the evidence meets the strict requirements of the 'common plan or scheme 'exception to the prohibition against other crimes evidence. The evidence can never be admitted to rebut a claim that the victim fabricated the charges or consented to the sexual contact.

SB 270 creates an opportunity for this relevant, probative evidence to be admitted while still protecting the defendant's rights. By limiting the circumstances under which the evidence of other sexual assaults are admissible and allowing the trial court to perform its gatekeeper function and assess the potential for unfair prejudice, SB 270 strikes the appropriate balance between public safety and ensuring the defendant a fair trial.

Letter from Office of the Attorney General of Maryland to Honorable Joseph F. Vallario, Chair, Senate Bill 270, Judiciary Committee (March 27, 2018).

[...]

There can be no dispute that Raynor's other "sexually assaultive behavior" qualified under the statute as Raynor was previously convicted of, among other things, multiple

Page 25

degrees of rape and sexual offenses. Raynor, 201 Md. App. at 213. Further, we discern nothing in the plain language that suggests that admission of the other "sexually assaultive behavior" requires proof that consent was contested in the prior case. And regardless, as we indicated, lack of consent is an element of the offenses and was at issue in both cases.

The appellant argued that the probative value of the other sexually assaultive behavior was substantially outweighed by the danger of unfair prejudice. The Court noted that evidence is never excluded merely because it is prejudicial. If prejudice were the test, no evidence would ever be admitted. The parties have a right to introduce prejudicial evidence. Probative value is outweighed by the danger of unfair prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case. The Court rejected the appellant's argument and held that the issue of admission of evidence concerning the prior sexual assault was thoroughly litigated and the court properly considered all of the required factors under Md. Code, Cts. & Jud. Proc. § 10-923 (at 25-26):

C. Probative Value versus Danger of Unfair Prejudice

Raynor next contends that the probative value of the other sexually assaultive behavior involving M.W. was substantially outweighed by the danger of unfair prejudice. Section 10-923(e)(4), like Maryland Rule 5-403, allows exclusion where the probative value of the evidence is "substantially outweighed" by the danger of unfair prejudice. See Md. Rule 5-403. "An appellate court reviews for abuse of discretion a trial court's determination as to whether evidence is inadmissible under Maryland Rule 5-403." Ford vState, 462 Md. 3, 46 (2018). "Evidence is prejudicial when 'it tends to have some adverse effect . . . beyond tending to prove the fact or issue that justified its admission.'" Snyder vState, 210 Md. App. 370, 39495 (quoting Hannah vState, 420 Md. 339, 347 (2011)), certdenied, 432 Md. 470 (2013). However, under the rule:

[E]vidence is never excluded merely because it is "prejudicial." If prejudice were the test, no evidence would ever be admitted. The parties have a right to introduce prejudicial evidence. Probative value is outweighed by the

Page 26

danger of "unfair" prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case. The line is not always easy to draw.

Murphy, Maryland Evidence Handbook § 506(B), at 209 (4th ed. 2010) (emphasis in original).

We discern no abuse of discretion here. The issue of admission of evidence concerning the prior sexual assault involving M.W. was thoroughly litigated in this case, and the court properly considered all of the required factors under Section 10-923. And, this other evidence had significant probative value in this case involving a defense that the victim, S.S., consented to the encounter with Raynor. Moreover, we are unable to conclude that, given the legislative intent, that admission of the evidence was unfair, much less that the probative value was substantially outweighed by the danger of unfair prejudice. As one federal circuit court of appeals, discussing the federal rules, has observed:

Rule 404(b) identifies the propensity inference as improper in all circumstances, and Rule 413 makes an exception to that rule when past sexual offenses are introduced in sexual assault cases. Congress has said that in a criminal trial for an offense of sexual assault, it is not improper to draw the inference that the defendant committed this sexual offense because he has a propensity to do so.

United States vRogers, 587 F.3d 816, 822 (7th Cir. 2009).12

In Woodlin v. State, 254 Md. App. 691 (Md. App. 2022), the appellant was charged with child sexual abuse and related sexual offenses. Before trial, the State filed a timely motion of intent to introduce evidence of a prior conviction for sexual assault under Md. Code, Cts. & Jud. Proc. § 10-923 seeking to admit evidence that in 2010 the accused pled guilty to a third-degree sexual assault. The motions court ruled that the evidence was admissible. After being convicted, the appellant appealed (at 697):

On September 13, 2019, Woodlin spent the night at the home of his daughter and her family, including Woodlin's eleven-year-old grandson, A.H. After everyone went to bed, Woodlin went upstairs to A.H.'s room. At trial, A.H. testified that Woodlin touched his "private parts," pulled down A.H.'s underwear, and put his mouth on A.H.'s penis while he held A.H. by the arm and had his hand over A.H.'s mouth.  [**638]  According to A.H., Woodlin also put his fingers on and licked A.H.'s buttocks. A.H.'s mother testified that Woodlin left the home sometime during the night and called her the next morning crying, claiming that A.H. had touched him sexually and was "trying to get him locked up." A.H. later told his aunt what had happened, triggering the investigation that followed.

When questioned by local police, Woodlin denied having been inside his daughter's home that night or ever having spent the night there. Woodlin also denied having had any contact with A.H. in years and specifically denied having [***5]  had any sexual contact with him. Woodlin was arrested and charged with child sexual abuse and related sexual offenses.

Before trial, the State filed a timely motion of intent to introduce evidence of a prior conviction for sexual assault under Section 10-923 of the Courts and Judicial Proceedings ("CJ") Article, seeking to admit evidence that in 2010 Woodlin pleaded guilty to a third-degree sexual assault. Pursuant to CJ § 10-923(d), the court held a hearing. Over Woodlin's objection, the motions court ruled that the evidence would be admissible. At trial, among other evidence, the State offered, and the court admitted, the testimony of the police officer who investigated the 2010 offense, a certified copy of Woodlin's 2010 conviction, and substantial portions of the transcript of Woodlin's 2010 guilty plea proceedings.2 The jury ultimately  [*698]  convicted Woodlin of child sexual abuse and related offenses. Woodlin subsequently filed this timely appeal.

The Maryland Court of Special Appeals noted that this was among the first convictions to reach the appellate courts using evidence made admissible by virtue of Md. Code, Cts. & Jud. Proc. § 10-923 and reviewed the history and purpose of the statute (at 698-701):

CJ § 10-923

Because this is among the first convictions to reach the appellate courts using evidence made admissible by virtue of CJ § 10-923, and because of its centrality to the issues presented, we will begin with an overview of this new statute.

It is a fundamental principle [***6]  of our jurisprudence that evidence that "tends to show that the accused committed another crime independent of that for which [the accused] is on trial, even one of the same type, is inadmissible." Hurst v. State, 400 Md. 397, 407, 929 A.2d 157 (2007). Evidence of prior crimes is considered  [**639]  propensity evidence in that it suggests that the defendant is the type of person who has the propensity to commit this type of crime. Thus, evidence of prior crimes was prohibited by the traditional common law rules of evidence and, when the Court of Appeals codified our rules of evidence, this prohibition was included as Rule 5-404(b), which provides that "[e]vidence of other crimes, wrongs, or other [*699]  acts ... is not admissible to prove the character of a person ... to show action in conformity therewith." MD. R. 5-404(b). Despite this general rule, however, both the common law and the Maryland Rules permit the admission of evidence of prior crimes or other bad acts in cases in which the evidence is found to have "special relevance" to a contested issue in the case, Hurst, 400 Md. at 407-08, such as proof of "motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident." Md. R. 5-404(b).

In 2018, the General Assembly adopted CJ § 10-923. Acts of 2018, chs. 362, 363. This [***7]  new law changes the rules of evidence and makes admissible evidence that was previously inadmissible regarding prior sexually assaultive behavior.3 As is often the case in Maryland statutory law, the gravamen of the statute is found in subsection (b),4 which provides that when a defendant is on trial for sexual crimes or sexual abuse, evidence of prior "sexually assaultive behavior" can be admissible.5 [*700]  CJ § 10-923(b)Subsection (a) defines "sexually assaultive behavior" as (1) all Maryland sexual crimes; (2) sexual abuse of a minor; (3) sexual abuse of a vulnerable adult; (4) federal sexual abuse crimes; and (5) equivalent sexual crimes in other jurisdictions. CJ § 10-923(a)Subsection (c) requires that the State file a motion of intent to introduce evidence of prior sexually assaultive behavior. In the motion, the State must describe the evidence it intends to rely on to prove the prior sexually assaultive behavior. CJ § 10-923(c). And subsection (d) requires the court to hold a hearing as to the admissibility of the evidence of the prior sexually assaultive behavior. CJ § 10-923(d) [**640]  Finally, subsection (e) allows the court to admit evidence of that prior sexually assaultive behavior if the court finds and states on the record that:

(1) The evidence is being offered to:

(i) Prove lack of consent; or

(ii) Rebut [***8]  an express or implied allegation that a minor victim fabricated the sexual offense;

(2) The defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior;

(3) The sexually assaultive behavior was proven by clear and convincing evidence; and

(4) The probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

CJ § 10-923(e). The fourth element of the test—that the "probative value ... is not substantially outweighed by the danger of unfair prejudice"—appears to us consciously to echo identical language in Rule 5-403.6 Absent evidence to the  [*701]  contrary, we assume that the General Assembly intended also to invoke the existing body of case law interpreting this phrase.7

The Court noted that, as a legal matter, a court must first determine what role the similarity or dissimilarity between the offenses plays in balancing probative value against the danger of unfair prejudice. Only then, as a factual matter, may a court determine whether the probative value of evidence of the accused's prior conviction was substantially outweighed by the danger of unfair prejudice. Courts determining whether to admit evidence of prior sexually assaultive behavior must engage in a balancing of the proponent's need to introduce the challenged evidence against the danger that this evidence would unfairly prejudice the party objecting to it. In so doing, the question is not simply whether the evidence results in prejudice to the defendant, but rather whether the danger of unfair prejudice substantially outweighs any probative value (at 702-703):

As a legal matter, we must first determine what role the similarity or dissimilarity between the offenses plays in balancing probative value against the danger of unfair prejudice. Only then, as a factual matter, can we determine whether the probative value of evidence of Woodlin's 2010 conviction  [*703]  was substantially outweighed by the danger of unfair prejudice. In doing so, we are mindful that we review the motions court's decision balancing these competing interests for abuse of discretion. Wagner v. State, 213 Md. App. 419, 454, 74 A.3d 765 (2013) (citing State v. Simms, 420 Md. 705, 725, 25 A.3d 144 (2011) (applying abuse of discretion standard when reviewing a trial court's [***11]  balancing of the probative value of evidence against the danger of unfair prejudice under Rule 5-403). As we have often explained:

A ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. Rather, the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.

Wagner, 213 Md. App. at 454 (cleaned up).

As in the context of Rule 5-403, courts determining whether to admit evidence of prior sexually assaultive behavior must engage in a balancing of "the proponent's need to introduce the challenged evidence against the danger that this evidence would unfairly prejudice the party objecting to it." Joseph F. Murphy, Jr. & Erin C. Murphy, Maryland Evidence Handbook § 506[B] at 229 (5th ed. 2020). In so doing, the question is not simply whether the evidence results in prejudice to the defendant, but rather whether the danger of unfair prejudice substantially outweighs any probative value:

[E]vidence is never excluded merely because it is "prejudicial." If prejudice  [**642]  were the test, no evidence would ever be admitted. The parties have a right [***12]  to introduce prejudicial evidence. Probative value is outweighed by the danger of "unfair" prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case.

Murphy & Murphy, § 506[B] at 230; see also 5 Lynn McLain, Maryland Evidence, State & Federal § 403:1(b) at 650-51 (3d ed. 2013).

The Maryland Court of Special Appeals held that the similarity or dissimilarity of the offenses is relevant to the question of admissibility under Md. Code, Cts. & Jud. Proc. § 10-923(e)(4). The more similar the prior sexually assaultive behavior is to the charged offense, the more probative of propensity it is, and the less unfairly prejudicial. Conversely, the more dissimilar the prior sexually assaultive behavior is to the charged offense, the less probative of propensity it is, and the more unfairly prejudicial (at 704):

 [*704]  A. Similarity Under CJ § 10-923(e)(4)

The first question we must address on appeal is what role the similarity or dissimilarity of the offenses plays in balancing probative value against the danger of unfair prejudice under CJ § 10-923(e)(4). Woodlin argues that "similarity or dissimilarity of the prior offense to the crime for which the defendant is on trial is critical to a determination of whether the probative value of the prior crime substantially outweighs its danger of undue prejudice, and hence to its admission." For its part, the State argues that CJ § 10-923 does not require that the two offenses be "of a substantially similar nature," but nonetheless concedes that similarity is a factor that courts may consider when balancing probative value and the danger of unfair prejudice.

We hold that the similarity or dissimilarity of the offenses is relevant to the question [***13]  of admissibility under CJ § 10-923(e)(4). Courts must consider whether and how similar the two instances of sexually assaultive behavior actually are when determining whether "[t]he probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." CJ § 10-923(e)(4). The more similar the prior sexually assaultive behavior is to the charged offense, the more probative of propensity it is, and the less unfairly prejudicial. Conversely, the more dissimilar the prior sexually assaultive behavior is to the charged offense, the less probative of propensity it is, and the more unfairly prejudicial.10

The Maryland Court of Special Appeals held that the facts of the appellant's 2010 conviction and the allegations at issue were sufficiently similar that the motions court's decision to admit the 2010 conviction did not constitute an abuse of discretion. The Court noted that the 2010 offense and current offense could reasonably be characterized as similar because both involved vulnerable, male victims who were unable to consent, and both involved an assault on the victim's anal area. The Maryland Court of Special Appeals held that the trial court did not abuse its discretion in admitting evidence of the accused's prior conviction (at 705-706):

 [*705]  B. Similarity Between Woodlin's 2010 Conviction and the 2019 Allegations

Having determined that the question of similarity is necessarily a part of the balancing between probative value and unfairly prejudicial effect under CJ § 10-923(e)(4), we further hold that the facts of Woodlin's 2010 conviction and the 2019 allegations involving A.H. were sufficiently similar that the motions court's decision to admit the 2010 conviction did not constitute  [**643]  an abuse of discretion. The motions court acknowledged its duty to balance the competing interests and heard arguments from the parties on the relative [***14]  value and danger of admitting the evidence. The motions court recognized that there were differences between the two offenses but focused on the lack of consent in both, ultimately determining that the 2010 offense "is consistent enough with the offense here [that] the probative value is not substantially outweighed by the danger of unfair prejudice."

Our review of the record reveals that there was evidence to support both sides of this argument. On the one hand, as the State argued, the 2010 offense and the 2019 offense could reasonably be characterized as similar because both involved vulnerable, male victims who were unable to consent, and both involved an "assault on the victim's anal area." On the other hand, as Woodlin argued, the two offenses could also reasonably be characterized as dissimilar because one involved an adult victim incapable of consent because he was unconscious while the other involved a child victim incapable of consent because of his age, and one involved anal penetration with foreign objects while the other involved anal touching and licking. Given the evidence on both sides, we cannot say that  [*706]  the motions court's decision to put the evidence to the jury was [***15]  "well removed from any center mark" or "beyond the fringe of what [we deem] minimally acceptable." Wagner, 213 Md. App. at 454. We, therefore, hold that the motions court did not abuse its discretion in admitting evidence of Woodlin's 2010 conviction.11

The Court further ruled that circuit 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 sexually assaultive behavior to determine for themselves whether and to what extent the prior sexually assaultive behavior is probative or not as to whether the defendant committed the act for which they are on trial.  Some degree of detail is necessary to establish a factual basis on which the jury could compare and contrast the current allegations with the prior sexually assaultive behavior. Establishing the simple fact of conviction would not have been enough (at 712-714):

 [**647]  B. Scope of the Details Admitted

Even if Woodlin had preserved his objection to the court's failure to redact the "salacious" details, we would find that the trial court did not abuse its discretion by admitting details about the 2010 conviction. We explain.

While the General Assembly clearly intended for evidence of the prior sexually assaultive behavior to be admissible, it did not tell us how much evidence. Woodlin argues that the General Assembly meant only for the jury to be informed of the fact of the prior conviction. The State, without specifying exactly how much evidence should be admitted, [***24]  argues that the details admitted here were not unfairly prejudicial. While the precise contours must be decided on a case-by-case basis by circuit courts, we hold that it is insufficient merely to admit the fact of the prior conviction. Instead, we hold that circuit courts16 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 sexually assaultive  [*713]  behavior to determine for themselves whether and to what extent the prior sexually assaultive behavior is probative—or not—as to whether the defendant committed the act for which they are on trial.

Because there are as yet no cases interpreting the scope of what is admissible under CJ § 10-923, in coming to this determination we have looked for guidance to the closest analogies, the federal sexual propensity exceptions,17 and other Maryland exceptions to the general prohibition against prior crimes evidence under Rule 5-404(b).18 For instance, we think this case is analogous to Cousar v. State, in which we held, pursuant to Maryland Rule 5-404(b), that the detailed circumstances of a prior sexual assault were "reasonably necessary" to establish the relevance of that assault. 198 Md. App. at 511, 514 (internal citations [***25]  omitted) (concluding that details like that the defendant "contacted [the victim] for sexually related activity, produced a gun, and demanded oral sex of [the victim] with the results of the defecation remaining in her mouth" were "reasonably necessary" to demonstrate the non-accidental nature of the charged sexual  [**648]  assault). Similarly, in U.S. v. LeMay, the Ninth Circuit Court of Appeals, in applying Federal Rule 414 said, "the relevance of the prior act evidence [is] in the details." 260 F.3d 1018, 1029 (9th Cir. 2001). In LeMay, the Ninth Circuit rejected the argument that the district court should have limited the prosecution to merely  [*714]  proving the fact of the defendant's prior conviction for rape, and instead held that testimony of an "emotional and highly charged nature" about the defendant's conviction for "sexually abusing his young relatives, by forced oral copulation, while they were in his care" was "necessary to fill in the details that made the prior rape conviction relevant." Id. at 1029-30.

Here, too, for the jurors to be able to determine how probative Woodlin's 2010 conviction was of the likelihood that he sexually abused A.H. in 2019, they had to know something about the similarity or dissimilarity between the offenses. Some degree [***26]  of detail was, therefore, necessary to establish a factual basis on which the jury could compare and contrast the current allegations with the prior sexually assaultive behavior. Moreover, were we to omit the potentially prejudicial details that establish the relevance of prior sexually assaultive behavior, we might, in fact invite the jury to assume the worst. Without details, jurors would be left to speculate as to the nature and circumstances of the offense and could draw all manner of conclusions. As in LeMay and Cousar, "[e]stablishing the simple fact of conviction" would not have been enough. See id.; Cousar, 198 Md. App. at 514.

For these reasons, we hold that even if Woodlin had properly preserved his objection to the scope of the evidence admitted at trial, the trial court did not abuse its discretion in admitting what Woodlin refers to as the "salacious" detail of the prior sexually assaultive behavior.19

In the unreported decision of Carlisle v. State, No. 836 (Md. App. 2020), the accused was charged with 12 separate offenses, including ten counts of second-degree sex offense against one victim and one count of second-degree sex offense against another victim. Prior to trial, the State sought to introduce evidence of past bad acts of sexually assaultive behavior committed by the accused pursuant to Md. Code, Cts. & Jud. Proc. § 10-923. The accused was convicted. On appeal, he argued that evidence of his prior sexually assaultive behavior should have been excluded because section 10-923 violates the separation of powers doctrine and is unconstitutional. The accused further argued that, even if the statute is constitutional, the circuit court erred in admitting the evidence because the court did not make the requisite findings under the statute and because the evidence's probative value was substantially outweighed by the danger of unfair prejudice. With respect to the constitutional argument, the accused argued that section 10-923 violates the separation of powers doctrine. The Maryland Court of Special Appeals rejected this argument and held that section 10-923 does not violate the separation of powers doctrine. The Court noted that the Legislature has the power to change the common law rules of evidence or to prescribe new rules, and it may declare what proof shall be deemed, or taken as prima facie sufficient to establish any particular fact, even in criminal cases (at 13-16):

Separation of Powers

Mr. Carlisle contends that CJP § 10-923 violates the separation of powers doctrine. Mr. Carlisle argues that the Maryland Constitution grants the authority to promulgate rules of evidence to the Court of Appeals, and that pursuant to that authority, the Court of Appeals adopted Maryland Rule 5-404, which codified the long-standing ban on the introduction of propensity evidence—that is, evidence designed to show that because the accused committed the act before, he must have done so again. Mr. Carlisle asserts that CJP § 10-923 is directly contrary to Rule 5-404 because it "creates an evidentiary presumption that evidence of prior sexually assaultive behavior is admissible in sexual assault cases." Mr. Carlisle contends, therefore, that CJP § 10-923 "was enacted in violation of the separation of powers doctrine." We disagree.

Our review of whether a statute is constitutional is, like the interpretation of the Maryland Constitution, a question of law for which we apply a non-deferential standard of reviewMartinez ex rel. Fielding v. The John Hopkins Hosp., 212 Md. App. 634, 656 (2013).

Our analysis begins with Article 8 of the Maryland Declaration of Rights, which states:

That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.

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The Court of Appeals has emphasized that the separation of powers doctrine should be applied with a degree of "elasticity," although not so much that it is "stretched to a point where, in effect, there no longer exists a separation of governmental power." State v. Falcon, 451 Md. 138, 161 (2017) (quotation omitted). The issue here, of course, is which of the three branches of government has the responsibility to determine the rules of evidence that apply in Maryland courts. It turns out that such authority has been vested in two branches of government: the judicial and the legislative. In that regard, Article IV, Section 18 of the Maryland Constitution provides, in relevant part:

The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law. The power of courts other than the Court of Appeals to make rules of practice and procedure, or administrative rules, shall be subject to the rules and regulations adopted by the Court of Appeals or otherwise by law.

"Under this section, the legislature may rescind, change, or modify a rule promulgated by the Court of Appeals." Johnson v. Swann, 314 Md. 285, 289 (1988). Thus, "[t]he Maryland Rules of Procedure generally apply despite a prior statute to the contrary and until a subsequent statute would repeal or modify the rule." Id. (emphasis added). As this Court has stated:

Indeed, there can be no question of the power of the Legislature to change the common law rules of evidence, or to prescribe new rules, altogether different from those known to the common law; and it may declare what proof shall be deemed, or taken as Prima facie sufficient to establish any particular fact, even in criminal cases.

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Gregory v. State, 40 Md. App. 297, 312 (1978) (quotation omitted). As the State correctly notes, the Courts and Judicial Proceedings Article is replete with examples in which the General Assembly has exercised this authority to alter the rules of evidence.4

Applying these principles here, we discern no violation of Article 8 of the Declaration of Rights. In 1994, the Court of Appeals adopted Maryland Rule 5-404 which, among other things, barred evidence of prior acts to show the accused acted "in conformity therewith." Md. Rule 5-404(b) (effective July 1, 1994). In 2018, the General Assembly enacted CJP § 10-923 to allow for the admission of "sexually assaultive behavior" under certain specific conditions. One year later, the Court of Appeals adopted Maryland Rule 5-413, which states that, "[i]n prosecutions for sexually assaultive behavior as defined in [CJP] § 10-923(a), evidence of other sexually assaultive behavior by the defendant occurring before or after the offense for which the defendant is on trial may be admitted in accordance with § 10-923." And, for good measure, the Court also revised Rule 5-404(b), which now reads, in pertinent part, that "[e]vidence of other crimes, wrongs, or other acts. . . . may be admissible for other purposes . . . or in conformity with Rule 5-413." Md. Rule 5-404(b). Thus, to the extent CJP § 10-923 contradicted Rule 5-404, the Court of Appeals

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reconciled any perceived contradiction with its adoption of Rule 5-413 and its revision of Rule 5-404. We therefore hold that CJP § 10-923 does not violate the separation of powers doctrine.5

The appellant also took the position that the lower court erred in admitting the evidence because the evidence's probative value was substantially outweighed by the danger of unfair prejudice. The Court rejected this argument and noted that the question is whether the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. In this case, the lower court acknowledged and applied the correct legal standard, and was appropriately sensitive to the danger of unfair prejudice (at 16-18):

Probative Value vs. Prejudice

Mr. Carlisle also contends that, even if CJP § 10-923 is constitutional, the circuit court nevertheless erred because it did not "find and state on the record . . . that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." CJP § 10-923(e)(4). Mr. Carlisle asserts that, in fact, the evidence's probative value was substantially outweighed by the danger of unfair prejudice.

We review decisions weighing probative value against the danger of unfair prejudice for an abuse of discretion. See Stevenson v. State, 222 Md. App. 118, 149 (2015). "[T]he concern with prior bad acts evidence is not avoiding any and all prejudice, but avoiding 'untoward prejudice' or 'unfair prejudice' that creates the risk that the [fact-finder] will convict the defendant for reasons unrelated to his commission of the crimes

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charged." Vigna v. State, 241 Md. App. 704, 728-29 (2019), aff'd, No. 55, Sept. Term, 2019, 2020 WL 4760334 (Md. Aug. 18, 2020).

Here, the court made the requisite finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. At the second motions hearing, after the circuit court analyzed other requirements of CJP § 10-923, it stated "that really just leaves the last question which is whether the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." The court discussed several hypothetical situations in which such evidence may lack probative value and be unfairly prejudicial, such as "some [fourth-degree] sex offense that took place in a bar 25 years ago between two otherwise adult individuals and then it was just being basically thrown in for no real apparent reason other than to show a predilection for acting in such a fashion." The court contrasted its hypotheticals with the circumstances of Mr. Carlisle's case, observing that here, Mr. Carlisle's prior sexually assaultive behavior occurred "in and around the same time frame" and involved "the same household" and "a similar description of behavior." The court noted that, although those circumstances possibly rendered the evidence "that much more prejudicial," they also "amp[ed] up the probative value." Following those remarks, the court stated that A.W.'s testimony regarding Mr. Carlisle's prior sexually assaultive behavior "would be admissible in some form."

The record reflects that not only did the court acknowledge and apply the correct legal standard, but it was appropriately sensitive to the danger of unfair prejudice and made its ruling only after concluding that any prejudice did not substantially outweigh the

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probative value of the evidence. See Streater v. State, 352 Md. 800, 810 (1999) ("[S]hould the trial court allow the admission of other crimes evidence, it should state its reasons for doing so in the record so as to enable a reviewing court to assess whether Md. Rule 5-404(b), as interpreted through the case law, has been applied correctly."). We perceive no abuse of discretion in the court's assessment of the danger of unfair prejudice and the probative value.

The Court noted that there were no reported decisions on the application of the balancing test to Md. Code, Cts. & Jud. Proc. § 10-923. However, the Court considered that Maryland appellate courts have addressed the same balancing test in the context of rule Md. Rules, Rule 5-609 (impeachment by evidence of conviction of crime). When weighing the probative value of evidence against the danger of its unfair prejudice as required under rule 5-609(a)(2), courts consider the Mahone factors: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility. The Court applied these factors and held that they supported the lower court's decision (at 18-20):

Although there is no reported opinion on the application of the balancing test to CJP § 10-923, Maryland appellate courts have addressed the same balancing test in the context of Rule 5-609, which addresses the admission of prior convictions. This rule states:

(a) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.

(b) Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction, except as to a conviction for perjury for which no time limit applies.

(c) Evidence of a conviction otherwise admissible under section (a) of this Rule shall be excluded if

(1) the conviction has been reversed or vacated;
(2) the conviction has been the subject of a pardon; or
(3) an appeal or application for leave to appeal from the judgment of conviction is pending, or the time for noting an appeal or filing an application for leave to appeal has not expired.

(d) For purposes of this Rule, "conviction" includes a plea of nolo contendere followed by a sentence, whether or not the sentence is suspended.

Md. Rule 5-609.

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When weighing the probative value of evidence against the danger of its unfair prejudice as required under Rule 5-609(a)(2), courts consider the following factors (the "Mahone factors"):

(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility.

Jackson v. State, 340 Md. 705, 717 (1995) (citing United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976)).6

Application of those factors here supports the court's decision. The prior sexual assault was close in time with the instant offense, occurring a mere six years before the offense at issue here. The assaults were also extremely similar: committed in the same household, under similar circumstances (i.e., after the children had fallen asleep or had pretended to fall asleep), and with children of similar age. And Mr. Carlisle's credibility was crucial to the outcome of the trial: the State's case rested entirely upon the victims' allegations, and Mr. Carlisle's defense to those allegations was that the victims' accounts were fabrications. Therefore, although the admission of A.W.'s statement almost certainly

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resulted in some prejudice to Mr. Carlisle, we cannot say the evidence's clear probative value was substantially outweighed by the danger of unfair prejudice.7

Authorities:
Md. Code, Cts. & Jud. Proc. § 10-923 (2022)
Hayes v. State, No. 2274-2019 (Md. App. 2022)
Rosario-Ovalles v. State, No. 154 (Md. App. 2020)
Md. Rules, Rule 5-404 (2022)
Raynor v. State, No. 2357 (Md. App. 2020)
Woodlin v. State, 254 Md. App. 691 (Md. App. 2022)
Carlisle v. State, No. 836 (Md. App. 2020)
Md. Rules, Rule 5-609 (2022)