In Green v. State (No. 0854, September Term 2022), the Appellate Court of Maryland (ACM) decided, as a matter of first impression, whether the defendant’s denial of just one of the elements of the offense amounts to an implied allegation of fabrication necessary for the admission of a prior sexually assaultive act under Cts. & Jud. Procs. (CJP) § 10-923. The ACM also applied the Maryland Supreme Court’s recent decision in Woodlin v. State, 484 Md. 253 (2023), to decide whether the probative value of Green’s prior sexually assaultive behavior was substantially outweighed by the danger of unfair prejudice.
The Law. Under CJP § 10-923, a court may admit evidence of sexually assaultive behavior if the following four factors are met: (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. Green raised the question of how much dispute must exist between a victim’s and a defendant’s versions to generate the claim of an implied fabrication required by the statute.
The Parties Contentions. The victim, who was Green’s step-granddaughter, alleged that she was watching TV with Green on the couch when he started masturbating while looking at her. Green admitted to masturbating on his couch but disputed that he looked at the victim. Green argued that there was no allegation of fabrication, just an inconsistency between his version and the child’s version. The State argued that the defendant need not assert that the victim fabricated every aspect of an encounter to trigger the statute, so long as the defendant alleged that the victim fabricated facts establishing a sexual offense. The ACM agreed with the State.
The ACM holding. As a matter of first impression, the ACM held that there is an implied allegation of fabrication when the defendant alleges that the victim fabricated a detail, that, if accepted, would enable a jury to find an act criminal, even if the defendant admits to the central act itself. The Court looked at the legislative history and further reasoned that, if it were to conclude otherwise, sexual offenders could evade the application of the statute simply by agreeing with any innocent act described by the victim’s testimony. Such a result would unreasonably lessen the effectiveness of the statute and be incompatible with the statute’s intended purpose. Because Green denied looking at the victim while masturbating, he implicitly alleged that the child fabricated the offense.
The Woodlin Factors. Green also raised that the trial court abused its discretion when it admitted his prior conviction for sexual abuse of a minor. His previous conviction, which occurred eight and a half years prior to the incident here, involved the digital penetration of Green’s other step-granddaughter. The ACM applied the Woodlin factors and found no abuse of discretion. In Woodlin, the Supreme Court held that as the similarity between the two acts increases, so too does the evidence’s probative value. As similarity decreases (i.e., as dissimilarity increases), the more likely it is that the evidence’s probative value will be outweighed by the danger of unfair prejudice.
Under Woodlin, once a party raises as an applicable factor the similarity or dissimilarity of the acts, then circuit courts generally should assess at least two categories: (1) the characteristics of the victim and (2) the nature of the defendant’s conduct. To the former, the analysis includes the victim’s age, biological sex, gender identity, and status (mental state, physical prowess, capabilities, etc.); as to the defendant’s conduct, the assessment includes both the method of perpetrating the sexual offense (use of violence/weapons, use of drugs to incapacitate, abuse of a position of trust, etc.) and the sexual offense itself (the specific acts committed, the location of the assault, etc.).
Applying these factors, the ACM found that both offenses involved step-granddaughters whom Green resided with and who were both minors. The facts that the sexual acts involved were different and that the previous conviction was eight and a half years prior to the instant offense were not dispositive, and therefore, the court did not abuse its discretion. Despite Green’s broad application of “implied fabrication,” its analytical approach following Woodlin still demonstrates that the admission of prior sexually assaultive behavior in a criminal trial under CJP § 10-923(a)(1), (2), or (3), is not a fait accompli.