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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 2292

September Term, 2007

DAVID JOSEPH LAPIN

v.

STATE OF MARYLAND

Eyler, James R., Graeff, Kehoe, JJ.

Opinion by Graeff, J.

Filed: October 1, 2009

A jury sitting in the Circuit Court for Prince George's County convicted David Joseph LaPin, appellant, of sexual abuse of a minor, second degree assault, and fourth degree sexual offense. Appellant appealed his convictions, and he presents two issues for our review, which we have rephrased:1 1. Did the circuit court err in declining to give appellant's proposed jury instruction regarding the definition of "abuse" as it pertains to a fourth degree sexual assault? Was the evidence sufficient to support appellant's convictions for sexual abuse of a minor and fourth degree sexual offense?

2.

For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On January 30, 2007, the victim, age 14, and her 16-year-old brother, Christopher, visited their grandfather at his home. Appellant, the victim's 46-year-old uncle, was also present in the home, as was the victim's 20-year-old sister, Jessica, and another uncle, Daniel Watson.

1

Appellant presented the following issues in his brief: Should David LaPin's convictions for sexual abuse of a minor and fourth degree sexual offense be reversed because the trial judge refused to include David's proposed jury instruction on "abuse" when the proposed instruction was a correct statement of the law, was properly requested under Maryland Rule 4-325, and would have prevented juror confusion? Should David LaPin's convictions for sexual abuse of a minor and fourth degree sexual offense be vacated because there was insufficient evidence when the State's evidence did not establish that the touching was for the purpose of sexual arousal or gratification or the abuse of either party?

1.

2.

The victim testified that, while she was in the kitchen with appellant and her sister Jessica, appellant "repeatedly touched [her] chest." She told appellant to stop, but he did not stop. The victim was upset and scared, so she hit appellant on his chest, telling him again to stop and stating: "`How do you like it?'" Appellant responded: "`Oooh, baby.'" The victim left the kitchen and went to the computer room to use the computer. Appellant was there, using the computer and "looking at porn on a My Space page."2 Appellant was viewing "a girl in a leather suit that was half naked, and he said, `I'm going to whip you with a whip and put you in this suit.'" That comment made the victim uncomfortable, so she left the computer room and went outside. Appellant came outside, and he "unexpectedly . . . grabbed my private area." He touched her "vagina area" on the outside of her clothing. The victim testified that she did not want appellant to touch her there or on her breast. The victim told her sister what happened. Jessica instructed her to "[g]o tell Danny." Danny directed the victim to "stay away from [appellant]." The victim testified that, the weekend before, appellant stated to her: "`I'm going to cut your breasts off and mount them on the wall.'" She did not know why appellant said that.

Robert Lawrence LaPin, the victim's father and appellant's younger brother, testified that, on January 30, 2007, while at work, he spoke to his daughter on the phone, and she

MySpace is a social networking web site that was described in testimony as "like a dating web site, but you can meet friends and talk to old people that you went to school with." -2-

2

informed him that she was "touched inappropriately" by appellant, who "fondl[ed] her breasts and private parts." Robert informed his daughter that he would handle the situation once he arrived at the house. Robert "wanted to hear both sides of the story" because "at that time [the victim] had a way of blowing things way out of proportion." Robert arrived at the house at approximately 6:00 p.m., and he was in the kitchen with the victim and appellant when appellant grabbed his daughter's breast and stated: "`Oooh, these are nice, I need to mount these on the wall.'" Robert rebuked appellant, and appellant responded by threatening that Robert "could be put down" if he "said or did anything about it." Robert removed the victim and his son from the house, and he called the police.3 Officer Steven Durity, a police officer with the Prince George's County Police Department, responded to a call for an alleged assault. The victim stated that appellant "grabbed her breast and twisted it, twisting the nipple." After speaking with appellant and other family members, Officer Durity questioned the victim again to get all the details. At that time, the victim stated that they "were actually playing." The Officer summarized her statement as follows: She grabbed him, he grabbed her back. She grabbed him a second time, he grabbed her back the second time. At that point she stated that she didn't want to play, to stop, and then that's when he grabbed her following after that, and I suppose that's when she called the Police.[4]

Robert stated that he did not take Jessica, his older daughter, out of the house because she did not live with him, she was twenty-years-old, and she "pretty much does her own thing."
4

3

In his report, Officer Durity indicated that the victim "changed her story." -3-

Officer Durity did not arrest appellant at the house "[b]ased on the fact that the suspect [was] a known family member, and the discrepancies in the victim's statement." He forwarded the incident report to the Sex Crimes Unit to conduct an investigation. Detective John Greever, the investigating officer, testified that he interviewed several people at the police station the night of the incident, including the victim, her father, her sister, and appellant. The victim's "eyes were puffy, she was crying, she was very upset." She informed Detective Greever that appellant "grabbed her on the breast and twisted her breast area on the nipple area, and he grabbed her on her private part between her legs." The victim stated that her sister was in the kitchen when appellant grabbed her breasts. The victim's brother, Christopher, did not give a statement, maintaining that "he did not see anything." A couple of days later, however, Christopher came to the police station to make a statement regarding the incident. Appellant's step-brother, Daniel, testified that on the day of the incident, he was living at his father's house with appellant and Jessica LaPin, the victim's sister. He did not see any "exchange" between appellant and the victim, but he heard appellant tell the victim to "leave him alone" as she followed him from the kitchen into the computer room. Daniel also testified that both the victim's father and appellant called the police, and Daniel drove appellant to the police station later that night to give a statement. Jessica, the victim's older sister, testified that she was in the kitchen with the victim and appellant on the date in question. She testified that, while appellant was making soup, the victim grabbed his "balls and breasts." Appellant told the victim to stop, but the victim -4-

refused. Appellant responded by stating: "Well, I'm going to cut your titties off and mount them on the wall." The victim "repeatedly kept doing it over and over again." Appellant left the kitchen and went to the computer room to use the computer. The victim followed him into the room. While appellant was on the phone with a woman named Karen, he commented on pictures that she had posted on the website MySpace and stated: "I would like to put that in leather and use whips, chains on her." The victim mistakenly believed that appellant directed those comments at her, when "he was really talking to Karen." Jessica testified that appellant "never touched [the victim] at all." Jessica acknowledged that she does not get along with her sister. Christopher, the victim's older brother, testified that he did not make a statement to the police on January 30, 2007, because the Detective did not ask him if he wanted to make a statement. Christopher testified that the appellant and the victim were "playing around" in the kitchen, "pinching each other and laughing about it." After the victim followed appellant into the computer room, she "started touching him and grabbing him," and she ignored appellant's requests to stop. Christopher testified that appellant's statement

regarding cutting off the victim's breasts and mounting them on the wall came after the victim refused to stop pinching appellant. The victim responded to this statement by laughing. Christopher told the police that he saw appellant grab the victim's breast, but when the victim told him, Jessica, and Danny that appellant touched her, he said that "it didn't happen," advising that he was "right there following her the whole time so she would leave [appellant] alone." Christopher acknowledged feeling sorry for appellant. -5-

Appellant testified in his own defense. He acknowledged that he touched the victim's breast and that he "may have" touched the victim between her legs on the outside of her clothing. He denied, however, that he touched the victim for purposes of sexual gratification, sexual arousal, or to physically harm her. He testified that it was "fun and games at first," which began when he was in the kitchen making soup, the victim pinched him, and he responded by pinching her back. According to appellant, the victim continued to pinch him, and she refused to leave him alone. Appellant smoked a cigarette outside and then went into the computer room and closed the door behind him. He logged onto MySpace and received a phone call from "a girl [he] met online on My Space." The victim entered the room and placed an old shoe in his face. Appellant became angry and the victim "proceeded to pinch [appellant] again and punch [appellant] in [his] private areas." Appellant then left the house and took his dog for a walk. Upon returning, the victim informed appellant that "[m]y dad is going to whip your ass when he comes here." Appellant attempted to go to his bedroom, but the victim pinched him again, and he responded by stating: "[I]f you're not going to stop, I'm going to take your boobs and mount them [] on the wall and see . . . how you like other people to pinch you . . . ." According to appellant, the victim then grabbed his "private area." He testified that when her father subsequently called 9-1-1, he also called 9-1-1. At the end of the State's case, appellant moved for judgment of acquittal on the charge of third degree sexual offense. The State agreed to enter a nolle prosequi with respect to that count. The circuit court then denied appellant's motion with respect to the remaining counts. -6-

At the close of all the evidence, appellant again moved for judgment of acquittal, arguing that the motion should be granted with respect to the charges of sexual abuse of a minor and fourth degree sex offense because "[t]here hasn't been a sufficient showing that the touching or grabbing . . . was for the purpose of sexual arousal or gratification." Appellant further argued that there was "not a sufficient showing that [appellant] intended any physical harm to" the victim. The circuit court denied appellant's motion. Prior to the court instructing the jury, defense counsel requested that the court include in its instructions a definition of the term "abuse" with respect to the charge of fourth degree sexual offense.5 Defense counsel requested that the court define "abuse" as a "physical attack intended to inflict sexual injury." Appellant argued as follows: [T]he Dillsworth case[6] is the case that defines what constitutes abuse for purposes of sexual contact. The point is this. If a person commits an act for sexual gratification or arousal, sexual arousal, you have that element. That element is met. However, if the intention isn't for sexual arousal, this is in the disjunctive, if it's not for sexual arousal or for gratification, then you turn to abuse. Now, if you want to have some generic big all encompassing term of abuse, which the State is advocating for, it is completely contrary to the case law. I cited Dillsworth. If it's going to be

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