reasoning that while there was suspicion that Bible's actions could be explained by a convictable intent-touching a child for sexual gratification-mere suspicion was insufficient for conviction because it forced the jury to speculate
How later courts described this case
- reasoning that while there was suspicion that Bible's actions could be explained by a convictable intent-touching a child for sexual gratification-mere suspicion was insufficient for conviction because it forced the jury to speculate
- stating “[the appellate court] must give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference.” (citation omitted)
- recognizing that fact-finder may choose among differing inferences from evidence and that appellate court must defer to reasonable inferences regardless of whether it would have chosen different reasonable inference
- holding that statute reaches touching of clothed buttocks
Written by the judges who cited it.
The opinion
Dissenting Opinion by
HARRELL, J.,
which MURPHY, J., joins.
It took the Washington County jury in this case 30 minutes to decide that Bible, a 49-year-old man, touched the buttocks of a 7-year-old female victim (while she was unescorted at the time and in the toy section of a store), for his sexual arousal or gratification, or to abuse the victim. The victim knew his conduct was wrong. Twelve jurors in Washington County quickly recognized that it was wrong. I submit that any reasonable juror would know it was wrong. The Court of Special Appeals agreed. Bible and the Majority see it otherwise (I refer here to Majority as encompassing also Judges Battaglia and Eldridge who join the judgment only. This leaves the opinion, however, as a plurality expression of views of only 3 judges of the Court). Worse yet, the Plurality opinion elects to superimpose its view of the evidence on that of the finder-of-fact. I am compelled to dissent.
At the threshold, I give the Devil its due. The Plurality opinion is a well-crafted and rational-sounding (and therefore beguiling) piece of judicial writing. It explains and attempts to justify (as well as I imagine is possible) its reversal of Bible’s conviction. I cannot give it high marks, however, for reaching the obvious conclusion (with which I agree) that a person’s posterior can be an intimate area (even for people who flaunt theirs). It is the Plurality opinion’s legal sufficiency analysis, however, where the train really runs off the tracks (Plurality slip. op. at 17-22).
After paying lip service to the fact-finder’s discretion to draw reasonable inferences from direct and circumstantial evidence and an appellate court’s duty to render a disciplined and deferential review of the exercise of that discretion (Plurality slip op. at 17), the Plurality opinion glides effortlessly into second-guessing the Washington County jury here.
*162 Drawing on what we said in Thornton v. State, 397 Md. 704, 714 , 919 A.2d 678, 683 (2007), about proof of specific intent, the Plurality opinion conflates identifying a “presumption of intent” (a bad thing) with drawing an inference of mens rea from circumstantial evidence (a permitted thing). Plurality slip op. at 19. Characterizing the fact-finder’s ability here to draw an inference from the evidence as at best one of speculation or suspicion as to Bible’s “more remote purpose or design ... [for] doing of the immediate act,” to wit, touching Hannah’s buttocks for sexual arousal or gratification (Plurality slip op. at 21), the Plurality opinion supplants its rationalized Olympian view of the evidence for that of the rank-and-file body entrusted with that primary task.
I cannot point too emphatically to the Plurality’s ignoring of context. Hannah was not hanging by her jump rope from a precipice as Bible reached up to push her to safety, while touching her behind. He was not steadying her from a bad tumble because she lost her balance. With her mother and siblings elsewhere in the store, she presumably was safe and secure in the toy section of the Hagerstown Goodwill Store when Bible offensively initiated touching of one of her intimate areas for his purposes. By a rational process of elimination in this context, a reasonable jury could conclude, beyond a reasonable doubt, that he did so solely to gratify or arouse his prurient sexual interests. Indulging in spinning out theories of possibly benign motives for his conduct in these circumstances is not productive or something in which appellate courts should engage. The jury did its job.
A reasonable jury could have (and apparently did) infer the requisite specific intent for the crime from Bible’s lying initially to police whether he was even at the crime scene. See Kolker v. State, 230 Md. 157, 159 , 186 A.2d 212, 213 (1962) (quoting Hayette v. State, 199 Md. 140, 145 , 85 A.2d 790, 792 (1952) (“[0]n questions of scienter reason for disbelieving evidence denying scienter may also justify finding scienter.”)). Moreover, the evidence here does not generate a disputed issue as to a benign reason for why this defendant déliberately would make unsolicited physical contact with his hand on an *163 intimate portion of the minor’s body. The conviction should stand.
Judge MURPHY authorizes me to state that he joins in this dissent.