UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1731
September Term, 2014
IN RE: NAJEE P.
Krauser, C.J.,
Graeff,
Friedman,
JJ.
Opinion by Krauser, C. J.
Filed: September 16, 2015
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other
document filed in this Court or any other Maryland Court as either precedent within the rule of stare
decisis or as persuasive authority. Md. Rule 1-104.
— Unreported Opinion —
Found involved in fourth degree sexual offense and second degree assault by the
Circuit Court for Prince George’s County, sitting as a juvenile court, Najee P. presents the
following question for our review:
Did the State fail to present sufficient evidence that Najee P. committed
fourth degree sexual offense?
For the reasons that follow, we shall affirm.
BACKGROUND
On March 12, 2014, just past noon, fifteen-year-old Faith B. walked two of her
neighbor’s children, six-year-old Nathan and four-year-old Sammy, down to a creek, near
the end of their street, for an outing. There, Faith saw three boys: Chance and Toby, whom
she knew, and appellant, whom she had never seen before.
When Faith and her two little companions arrived at the creek, Chance and Toby
quickly left the scene, whereupon appellant approached Faith. He asked her about her
relationship with Chance. After responding that she and Chance used to date, Faith decided
to leave the area as she did not know appellant and he would not leave her alone.
Faith then picked up the younger boy, Sammy, put him on her hip, and grabbed
Nathan’s hand. As they started to walk away from the area, appellant came up behind Faith
and then, as Faith later put it, “he reached around and touched my breasts,” with both of his
hands. Faith “spun” away from appellant in an effort to get away from him, whereupon
appellant “bit” her cheek. Faith did not consent to either of these unwanted touchings.
— Unreported Opinion —
As Faith walked back towards her home with the two young boys, appellant followed
her. After Faith told the boys to run back up the hill to ensure their safety, appellant, in
Faith’s words, “came around and he put me in a headlock and kissed me, which was not
wanted,” later adding that, when he kissed her, appellant “stuck his tongue” in her mouth.
When she pushed appellant away from her, appellant grabbed Faith’s cellphone from
her. Faith, in return, snatched appellant’s glasses and told him that if he returned her phone,
she would return his glasses. Appellant then gave Faith her cellphone, at which point Faith
noticed that appellant had entered his own phone number into the contacts list on her phone.
Faith then took flight, running back up the hill, grabbing the two children, and running home
with them.
Although Toby W. testified at trial that he never saw appellant touch or kiss Faith and
insisted that “nothing, nothing happened,” the court found, beyond a reasonable doubt, that
appellant committed the acts alleged, specifically, “the touching of the breast and kissing
[Faith] against her will.” Consequently, the court found appellant involved in the delinquent
acts of fourth degree sexual offense and second degree assault.
DISCUSSION
Although appellant does not contest the court’s finding on the charge of second
degree assault, he does challenge the court’s finding that he was involved, beyond a
reasonable doubt, in a fourth degree sexual offense. Although appellant concedes that the
evidence established that he touched Faith B.’s breasts, he maintains that there was
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insufficient evidence to show that the touching was sexually oriented or motivated. The
State disagrees, responding that, when appellant touched Faith’s breasts, he did so for the
purpose of sexual arousal or gratification. The court below agreed with the State, and so do
we.
Maryland has adopted “a separate system for juvenile offenders, civil in nature.” In
re Victor B., 336 Md. 85, 91 (1994); see also In re Areal B., 177 Md. App. 708, 714 (2007)
(“Juvenile causes are civil, not criminal proceedings”) (citation omitted). The Juvenile
Causes Act (the “Act”), codified at Md. Code (1973, 2013 Repl. Vol., 2014 Supp.),
§§ 3-8A-01S3-8A-34 of the Courts and Judicial Proceedings Article (“C.J.P.”), “grant[s]
jurisdiction in juvenile courts over young offenders and establish[es] the process for treating
them, to advance its purpose of rehabilitating the juveniles who have transgressed to ensure
that they become useful and productive members of society.” Lopez-Sanchez v. State,
155 Md. App. 580, 598 (2004) (citation omitted), aff’d, 388 Md. 214 (2005), cert. denied,
546 U.S. 1102 (2006).
Under Maryland law, a “delinquent act” is “an act which would be a crime if
committed by an adult.” C.J.P. § 3-8A-01 (l). Before a child may be found “involved” in
such an act, the State must present evidence, at an adjudicatory hearing, C.J.P. § 3-8A-18;
Md. Rule 11-114, that proves beyond a reasonable doubt the commission of the delinquent
act charged. C.J.P. § 3-8A-18 (c)(1); Md. Rule 11-114 (e)(1). And the evidence is legally
sufficient to meet this standard, if, “after viewing the evidence in the light most favorable to
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— Unreported Opinion —
the [State], any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” In re Timothy F., 343 Md. 371, 380 (1996) (quoting Jackson
v. Virginia, 443 U.S. 307, 318-19 (1979)); accord In re Anthony W., 388 Md. 251, 261
(2005). Moreover, “[j]udging the weight of evidence and the credibility of witnesses and
resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier
of fact.” In re Timothy F., 343 Md. at 379. Consequently, we will not disturb the judgment
of the trial court “unless the trial judge’s findings of fact are clearly erroneous” In re
Anthony W., 388 Md. at 261 (citing In re Timothy, 343 Md. at 380).
Section 3-308 of the Criminal Law Article provides, in pertinent part, that ““(b) A
person may not engage in . . . (1) sexual contact with another without the consent of the
other;” Md. Code (2002, 2012 Repl. Vol., 2014 Supp.), § 3-308 of the Criminal Law (“CL”)
Article. “Sexual contact” is defined as follows:
(f)(1) “Sexual contact,” as used in §§ 3-307, 3-308, and 3-314 of this
subtitle, means an intentional touching of the victim’s or actor’s genital, anal,
or other intimate area for sexual arousal or gratification, or for the abuse of
either party.
(2) “Sexual contact” does not include:
(I) a common expression of familial or friendly
affection; or
(ii) an act for an accepted medical purpose.
CL § 3-301.
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— Unreported Opinion —
It is beyond cavil that a female’s breasts constitute an “intimate area.” See Travis v.
State, 218 Md. App. 410, 465 (2014) (recognizing that the breasts of a female victim
constitute an intimate area for purposes of fourth degree sexual offense). Nor is there any
dispute that the lips and mouth are “intimate areas,” especially when those areas are touched
by another’s lips, mouth, and, as in this case, tongue. See People v. Rondon, 579 N.Y.S.2d
319, 320-21 (N.Y. Crim. Ct. 1992) (recognizing that kissing someone, with or without
insertion of the tongue, “can be considered a touching of an intimate part, constituting the
essential element of sexual abuse”).
Because neither appellant nor the State suggest that appellant’s touching of appellant’s
lips and breasts was “for the abuse of either party,” as set forth in Section 3-301(f) (1) of the
Criminal Law Article, the issue we are asked to determine is whether the evidence was
sufficient to show, beyond a reasonable doubt, that appellant’s actions were for purposes of
“sexual arousal or gratification.” A determination that there was sufficient evidence requires
proof of specific intent:
The phrase in CL § 3-301(f)(1) that prohibits contact “for sexual arousal or
gratification, or for the abuse of either party” establishes a specific intent
requirement. Thus, the State must prove two elements beyond a reasonable
doubt: (1) the fact of the touching, and (2) the intent to do so for sexual arousal
or gratification.
Bible v. State, 411 Md. 138, 157 (2009).
First of all, there is no dispute that appellant touched Faith’s breasts, and thus, the
first element is proved. As for the second element, we note that the Court of Appeals
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addressed in Bible v. State the issue of whether a touching was for sexual gratification was
sufficient to support a fourth degree sexual offense conviction. In that case, a seven-year-old
female claimed that, while shopping in a Goodwill store, Bible touched her twice on her
behind, but on top of her clothes. Bible, 411 Md. at 146-47. The victim subsequently
identified the culprit as Bible from a photograph and that identification was corroborated
when the police, using a recorded surveillance video tape, confirmed that not only was Bible
in the store at around the time of the alleged incident, but also that he had been in the same
area of the store as the victim. Id. at 144. But, that recording did not show any evidence of
the actual touching as claimed. Id. at 145. Following a trial, Bible was convicted of third
and fourth degree sexual offense.
On appeal, Bible challenged those convictions on the grounds that the victim’s
testimony alone was insufficient, and because there was no evidence suggesting that any
touching was intentional. Bible, 411 Md. at 147-48. After concluding that a person’s
buttocks are an intimate area under the statute, id. at 156, the Court of Appeals agreed with
Bible that the State failed to show, beyond a reasonable doubt, that he had a specific intent
to touch the victim for purposes of sexual arousal or gratification. Id. at 160. However, the
Court discussed other situations where that purpose could be found:
Evidence sufficient to support a finding that a touching was done with
the purpose of sexual arousal or gratification may be deduced from the
circumstances surrounding the touching, or from the character of the touching
itself. Circumstances surrounding the touching that would aid in the
determination of whether it was for the purpose of sexual gratification might
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— Unreported Opinion —
include whether the defendant and victim were strangers or knew each other;
whether either party was undressed; whether anything was spoken between
them; whether the touching occurred in public or in a secluded area; whether
the defendant showed any signs of sexual arousal; or whether the defendant
behaved in a nervous or guilty manner when another person came upon the
scene. With respect to the touching, the motion, the duration, and the
frequence are all important. This list is not exhaustive, but merely descriptive
of the type of circumstantial evidence that would be relevant.
Bible, 411 Md. at 158 (emphasis added).
Therefore, Bible instructs that sexual intent may be inferred from the surrounding
circumstances. We next turn to LaPin v. State, 188 Md. App. 57 (2009), a case decided just
two weeks before Bible was reported, which addressed a similar situation. LaPin was
convicted of sexual abuse of a minor, second degree assault and fourth degree sexual
offense. The charges stemmed from an incident involving his 14-year-old niece at a family
member’s home. Although LaPin and the victim gave conflicting accounts of the underlying
events, LaPin admitted to grabbing the victim’s breasts and to possibly touching her legs on
the outside of her clothing. But, he claimed that it was just “fun and games” and not for
purposes of sexual gratification. Id. at 64.
On appeal, LaPin maintained that the evidence was insufficient to sustain his
conviction for fourth degree sexual offense because there was insufficient evidence
presented showing that the touching in question was for sexual or gratification, or for the
abuse of either party. LaPin, 188 Md. App. at 75-76. After explaining that, although LaPin
claimed he did not touch the victim for sexual gratification, the jury was free to disbelieve
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— Unreported Opinion —
his testimony. Id. at 77. See Pryor v. State, 195 Md. App. 311, 329 (2010) (“A fact-finder
is free to believe part of a witness’s testimony, disbelieve other part’s of a witness’s
testimony, or to completely discount a witness’s testimony”). We agreed “that a jury
properly could infer that the touching of a girl’s breasts was for the purpose of sexual
gratification without specific proof that it was so motivated.” LaPin, 188 Md. App. at 77
(citing Holloway v. State, 849 S.W.2d 473, 476 (Ark. 1993)).
Then, in holding that the evidence was sufficient to sustain LaPin’s convictions, we
observe that, in addition to touching the victim between her legs, LaPin repeatedly touched
the victim’s breasts despite her requests to stop. LaPin, 188 Md. App. at 77-78. We further
noted that LaPin made several statements supporting an inference that his intent was sexual
in nature, including, but not limited to, stating “Ooooh baby,” when the victim hit him back
and asked how he liked it, and, at another point, stating “Oooh, these [the victim’s breasts]
are nice, I need to mount these on the wall.” Id. In addition, when appellant and the victim
were in what was described as a “computer room,” appellant was viewing a half-naked
woman in a leather suit, and then stated, in the victim’s presence, “I’m going to whip you
with a whip and put you in this suit.” We therefore concluded that “[t]hese statements, in
conjunction with appellant’s repeated touching of the victim, were sufficient to establish,
beyond a reasonable doubt, that appellant touched the victim for the purpose of sexual
arousal or gratification, or for abuse.” LaPin, 188 Md. App. at 77-78.
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— Unreported Opinion —
In this case, Faith was babysitting two young boys when she encountered appellant
and several of his companions, at a creek, near the end of the road on which she lived. After
appellant’s companions left the area, appellant, a person whom Faith did not know, started
asking her about her prior romantic relationship with Chance, one of the individuals who
had just left the scene. Feeling uncomfortable, Faith put one of the children she was
babysitting on her hip, and then started to lead the other boy away from the area by hand.
At that point, appellant came up behind Faith and touched her breasts with both hands,
without her consent. This act alone arguably was sufficient to show that appellant did so for
his own sexual arousal and gratification.
Then, appellant continued to pursue Faith in a sexual and unwanted manner. He “bit”
her on the cheek, without her consent. And, when Faith directed the children she was with
to run to safety, appellant approached her from behind, put her in a headlock, turned her
around, kissed her, and “stuck” his tongue in her mouth. After Faith pushed him away,
appellant snatched her phone and entered his own phone number into her contacts list on her
cellphone.
We conclude that a fair and rational inference can be made that appellant touched
Faith’s intimate areas to further his own sexual arousal and gratification. Accordingly, the
evidence was sufficient for the juvenile court to find appellant involved in the delinquent
act of fourth degree sexual offense, beyond a reasonable doubt.
JUDGMENTS AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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