UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1417

September Term, 2013

______________________________________

RASHAD WHITE

v.

STATE of MARYLAND
______________________________________

Eyler, Deborah S.,

Kehoe,
Rodowsky, Lawrence F.
(Retired, Specially Assigned),

JJ.

______________________________________

Opinion by: Kehoe, J.

_____________________________________

Filed: November 7, 2014

 A jury in the Circuit Court for Prince George’s County found Rashad White,

appellant, guilty of sexual child abuse, second degree sexual offense, attempted second

degree sexual offense and third degree sexual offense. The trial court sentenced appellant to

incarceration for twenty years for the sexual child abuse, with all but ten years suspended in

favor of five years probation, and a concurrent sentence of twenty years for the second degree

sexual offense, with all but fifteen years of that term suspended. The court also ordered

appellant to register as a sex offender.

Appellant presents four questions:

1. Did the trial court err in admitting prior consistent statements by the alleged
victim?

2. Did the trial court err in permitting the State to ask appellant “were they
lying” type questions?

3. Must appellant’s convictions be reversed as a result of improper

prosecutorial argument?

4. Did the trial court err in imposing an enhanced sentence for second degree
sexual offense?

We see no prejudicial error in the trial court’s evidentiary rulings and no abuse of

discretion in the court’s regulation of cross-examination, opening statement and closing

argument. The State concedes that the trial court’s sentence for the second degree sex offense

conviction was erroneous. We agree. We will vacate appellant’s sentence for second degree

sexual offense, and remand for re-sentencing on that count. We shall affirm in all other

respects.
 B ACKGROUND

Neither party questions the sufficiency of the State’s evidence, “[t]herefore, we recite

only the portions of the trial evidence necessary to provide a context for our discussion of the

issues presented.” Washington v. State, 180 Md. App. 458, 488 n.2 (2008).

The Victim’s Testimony

At the time of the events that prompted this prosecution, the complainant, T., was six

years old and resided with Shalae S. (her mother), appellant (her step-father), a sister, an aunt

and her maternal grandparents. At approximately 11:30 a.m. on July 4, 2012, T. was with

appellant in her parents’ bedroom. T. testified that appellant touched her “[b]ack and front,”

that is, her buttocks and her vaginal area, while showing her an adult video that was

displayed on an iPod. T. also testified that appellant was touching her with his mouth and

his “thing,” her reference to appellant’s penis. Appellant ejaculated onto T.’s hand. The child

could not recall how long this touching persisted or whether appellant placed his penis

between her legs.

T. would sometimes play with an Apple iPod1 that belonged to Ms. S.. Appellant

would occasionally use it as well. T. testified that she had seen a movie on the device that

showed people who did not have clothes on. T. answered “yes” when asked, without

1
The device is sometimes referred to as an “iTouch” or an “iPhone” in the record.
T. identified it as an iPod.

2
objection, whether the movie depicted “some of the things that [appellant] did to you.”

Appellant did not move to strike T.’s response.

Ms. S.’s Testimony

T.’s mother was upstairs when these events took place. Ordinarily, she would not

consider the fact that T. was alone with appellant to be particularly unusual. Ms. S. did

notice, however, that on the morning of July 4 the bedroom door was closed. This was

significant because she had earlier directed that the door should remain open whenever T.

was in the room with men, even with her grandfather. Ms. S. entered the room and

discovered appellant and T. “laying sideways at the end of the bed.” She testified that

appellant pretended to be asleep, and that T. “jumped up” when she saw Ms. S. She recalled

that appellant “acted normally” for the rest of the day.

Appellant went to work later in the day. After he left the residence, Ms. S. asked her

daughter, “out of the blue,” whether appellant had touched her. At first T. did not answer

and instead said that she wanted to go to bed, but Ms. S. persisted and told the child that

“God was going to get her” or “if you don’t tell . . . the truth, that God is going to wake you

up when you sleep.” The trial court did not permit Ms. S. to testify what T. said in response.

Ms. S. testified that she had purchased a used iPod from her brother shortly before T.

was assaulted. The device contained two pornographic videos showing a couple engaging

in oral sex. Ms. S. was unaware that the videos were on the device. T., however, was aware

3
of them and, after she had told her mother that appellant had assaulted her, showed Ms. S.

the videos.

With this as background, the following colloquy occurred:

[Prosecutor]: Why did [T.] show you the videos?

[Ms. S.]: She said “This is what he did to me.”

[Defense Counsel]: Objection. Move to strike.

The Court: I’ll allow it.

Ms. S. testified that she was “shock[ed]” at this revelation, and called appellant at

work. She also told her parents and her aunt, who had been asleep upstairs.

The DNA Evidence

The police gathered T.’s clothing for testing and collected a DNA sample from

appellant for testing. An examination of T.’s clothing revealed six stains, two of which

tested positive for semen and negative for blood. A second stain, on the inside of the front

right leg, was the location of a single sperm cell. T. also underwent a forensic examination

at a nearby hospital. The forensic nurse took swabs from various areas of T.’s body.

Kristin Lease, a DNA analyst with the Prince George’s County Police Department,

performed a DNA analysis on some of these samples. The sample from the swab on the right

buttock produced “a mixed DNA profile . . . . that [was] consistent with . . . Rashad White.”

After discussing the statistical bases for her conclusions, Ms. Lease testified that the chances

that the DNA was from a person other than appellant was “1 in 1.43 million.”

4
 The analysis of the swab from T.’s breast area also implicated appellant. Ms. Lease

testified, without objection, to the effect that the possibility that the DNA in the sample was

from someone other than appellant was “1 in 35.1 trillion[.]”

T.’s Pre-Trial Statements

The trial court permitted the State to introduce evidence of pre-trial statements made

by T. to three individuals: (1) Ms. S., T.’s mother; (2) Kristine Herold, a social worker for

the Prince George’s County Department of Social Services, who interviewed T. as part of the

Department’s investigation; and (3) Paulette Dendy, a forensic nurse who examined T.

Additionally, the court permitted the State to show a video recording of Ms. Herold’s

interview to the jury. We will discuss this testimony, and the video, in Part I.

Appellant’s Testimony

Appellant testified in his own defense. In summary, he told the jury that he had never

molested or touched T. inappropriately. He said that T. frequently slept in the same bed as

he and Ms. S. and that, on July 4, there could have been bodily fluids on the bedding because

he and Ms. S. may have “had fun” on the previous day. He also testified that he had

discovered T. viewing a pornographic video on the i-Pod and had scolded her but had not

told Ms. S. of the incident.

5
 A NALYSIS

I. T.’s Pre-Trial Statements

As a general rule, whether evidence is admissible is a matter left to the discretion of

the trial court. However, hearsay evidence is inadmissible unless it falls into one of the

recognized exceptions to the hearsay rule or is otherwise admissible by law. “Thus, a circuit

court has no discretion to admit hearsay in the absence of a provision providing for its

admissibility. Whether evidence is hearsay is an issue of law reviewed de novo.” Bernadyn

v. State, 390 Md. 1, 7-8 (2005). That evidence is admissible under a hearsay exception does

not equate to its actual admission—a trial court may still exclude it in the exercise of its

discretion.

Appellant contends that the trial court erred by admitting prior statements of the

victim pursuant to the “prompt complaint” exception to the hearsay rule. He asserts that

statements made by T. to Ms. S., her mother, Ms. Herold, the social worker, and Ms. Dendy,

the nurse, were the result of “coercive” questioning, contained excessive detail, and were not

entirely consistent with T.’s testimony because they went beyond her trial testimony. Finally,

he suggests that the cumulative impact of these statements was unfairly prejudicial. The State

disagrees and raises some preservation challenges as well. Before addressing the parties’

specific contentions, we will review the legal context.

“[I]t is established in Maryland that a complaint by a rape victim may be admitted as

original evidence primarily to support the testimony of the victim as to the time, place, crime,

6
and name of the wrongdoer.” Guardino v. State, 50 Md. App. 695, 706 (1982). Maryland’s

common law “prompt complaint” exception to the hearsay rule is now found at Md. Rule

5-802.1 (d).2 See Gaerian v. State, 159 Md. App. 527, 536–37 (2004) (Rule 5-802.1(d) was

intended to “codif[y] Maryland case law with regard to rape.”) (quoting The Reporter’s Note

accompanying proposed Rule 5-802.1 in the 125th Report of the Standing Committee on

Rules of Practice and Procedure Md. Reg. pt. II at P-21 (July 23, 1993) (Issue 15)).

Maryland’s case law, both before and after the effective date of Rule 5-802.1, as to

the “prompt complaint” exception is well-developed. See, e.g., Choate v. State, 214 Md. App.

118, 145–51 (2013); Gaerian, 159 Md. App. at 534–46; Parker v. State, 156 Md. App. 252,

261–67 (2004); Nelson v. State, 137 Md. App. 402, 411 (2001); Cole v. State, 83 Md. App.

279, 287–95 (1990) (discussing common law rule). In Parker, we explained:

In prosecutions for sex offenses, evidence of the victim’s complaint,

coupled with the circumstances of the complaint, is admissible as part of the
prosecution’s case if the complaint was made in a recent period of time after
the offense..... [I]f the prosecutrix has testified to a violent assault, the fact of
the making of complaint within a reasonable time under the circumstances is

2
That rule states in pertinent part:

Rule 5-802.1. Hearsay exceptions – Prior statements by witnesses.

The following statements previously made by a witness who testifies at

the trial or hearing and who is subject to cross-examination concerning the
statement are not excluded by the hearsay rule.
***
(d) A statement that is one of prompt complaint of sexually assaultive
behavior to which the declarant was subjected if the statement is consistent
with the declarant’s testimony[.]

7
 original evidence and may be shown to prevent the inference that the woman
did in fact maintain a silence inconsistent with her narrative at the trial....”

156 Md. App. 252, 260-61 (quotation marks and citations omitted). “In a credibility battle

between the defendant and the victim, the legally sanctioned function of the prompt

complaint of a sexual attack is to give added weight to the credibility of the victim.” Choate,

214 Md. App. at 146 (citation and internal quotation marks omitted).

The admissibility of evidence as to a prompt complaint is subject to several

limitations. These include two that are not at issue in this case; first, that the victim actually

testify at trial and, second, that the victim’s complaint or complaints were made in a timely

fashion. See, e.g., Choate, 214 Md. App. at 146; Gaerian, 159 Md. App. at 538. A third

limitation—which is relevant to appellant’s contentions—pertains to the scope of the

testimony about the victim’s statement. The testimony must be “restricted to the fact that the

complaint was made, the circumstances under which it was made, and the identification of

the culprit, rather than recounting the substance of the complaint in full detail.” Gaerian, 214

Md. App. at 538; see also Nelson, 137 Md. App. at 411 (same).3

Appellant invites us to add an additional restriction to the admissibility of evidence

of a prompt complaint. He urges us to follow the lead of the Supreme Court of New Jersey

3
This limitation has been articulated in different ways. For example, in Cole, we
explained that evidence of the substance of the victim’s complaint should be limited to “the
essential nature of the crime complained of and the identity of the assailant[.]” 83 Md. App.
at 293. In Parker, we stated that the evidence should be admitted “primarily to support the
testimony of the victim as to the time, place, crime, and name of the wrongdoer.” 156 Md.
App at 261.

8
by holding that the prompt complaint exception does not apply to statements made by the

victim in response to questions from others. In our view, appellant reads the relevant New

Jersey cases too broadly and, in any event, such a step would be unwarranted in light of the

facts of this case as well as Rule 8-502.1(d)’s legislative history. We will elaborate on these

matters in the context of the specific arguments made by appellant.

T.’s Statements to Ms. S.

We first address appellant’s complaint that T.’s statements to Ms. S. were coerced and

are thus inadmissible. This argument is based on Ms. S.’s testimony that, when she first

asked her daughter if appellant “was touching her,” T. responded that she wanted to go to

bed. Ms. S. testified that she felt T. was not telling the truth and that she told her daughter

that “God was going to get her” if T. lied to her. The following testimony occurred:

[Defense Counsel:] So after you had that feeling, did you ask her again?

[Ms. S.:] Yes.

[Prosecutor:] And did she answer you?

[Ms. S.:] She told me she was ready for her bed.

[Prosecutor:] She just kept saying she was ready to go to bed?

[Ms. S.:] Uh-huh.

[Prosecutor:] Did you put her to bed?

[Ms. S.:] No.

[Prosecutor:] What did you do?

9
[Ms. S.:] I told her again that God is going to get her if she was lying to
me.

[Prosecutor:] If she was lying to you?

[Ms. S.:] (Witness moves head up and down.)

[Prosecutor:] And what, if anything, was her response?

[Ms. S.:] She didn’t respond so I asked her again and she said yes.

[Defense Counsel:] Objection.

At this point, the trial court called counsel to the bench and stated “[t]his doesn’t fit

into the Rule. This is asking her questions, not somebody making the declaration of

something else.” The bench conference was adjourned and the State’s questioning moved

onto other topics. One of these topics was that, after T. told her of the assault, Ms. S. learned

that the iPod contained two pornographic videos. She described the videos as depicting oral

sex between heterosexual adults.

On cross-examination, Ms. S. answered “[y]es” to the question: “[t]he videos on the

iPod, your daughter was actually able to use the iPod to show them to you?” On redirect, the

following exchange occurred in reference to the pornographic videos on Ms. S.’s iPod:

[Prosecutor:] Why did [T.] show you the videos?

[Ms. S.]: She said “This is what he did to me.”

[Defense Counsel]: Objection. Move to strike.

The Court: I’ll allow it.

10
 Appellant contends that T.’s statement, “[t]his is what he did to me,” was a “response

to [Ms. S.’s] coercive questioning [and should] not have been admitted[.]” In support of this

contention, he cites to State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990).

In Hill, the New Jersey Supreme court concluded a prompt complaint of a sexual

assault was inadmissible if it was “procured by pointed, inquisitive, coercive interrogation”

because such statements “lack the degree of voluntariness necessary to qualify under the

fresh-complaint rule.” Id., 578 A.2d at 379. The court recognized that “[t]he line, however,

between non-coercive questioning and coercive questioning depends on the circumstances

of the interrogation[,]” and assigned this inquiry to the trial court:

Among the factors a court should consider in making that determination are
the age of the victim; the circumstances under which the interrogation takes
place; the victim’s relationship with the interrogator, i.e., relative, friend,
professional counselor, or authoritarian figure; who initiated the discussion;
the type of questions asked whether they are leading and their specificity
regarding the alleged abuser and the acts alleged.

Id. (citation omitted). Although the victim in Hill was a minor, id., the Court, for reasons it

did not explain, analyzed the case as if she had been an adult. In a companion case, State v.

Bethune, 121 N.J. 137, 578 A.2d 364 (1990), the victim was a five-year-old child. The Court

adopted the same rule for complaints made by children:

We conclude, however, that statements, even those of children, made

directly in response to coercive questioning are inadmissible under the
fresh-complaint rule, because coercive interrogation robs those statements of
the self-motivation necessary to qualify as fresh complaint. We do not mean
to say that every time social workers and doctors question children about
sexual abuse, they render the children’s responses invalid under the
fresh-complaint rule. Therapy play and non-coercive discussion may be

11
 necessary to liberate a child from the fear, embarrassment, or ignorance that
causes the victim to be silent about abuse.

Id., 578 A.2d at 367-68.

The reasoning in Hill and Bethune do not persuade us to adopt a similar rule in this

case. Appellant does not point to any Maryland decision, decided either before or after the

adoption of Rule 5-802.1(d), that espouses anything analogous to the Hill/Bethune rule. This

is significant because, as this Court explained in Gaerian, the legislative history of Rule

5-802.1(d) makes it clear that the rule was intended to codify Maryland’s then-existing

jurisprudence related to the admissibility of prompt complaints. In this case, as in Gaerian,

“we are loathe to engraft upon Rule 5-802.1(d) a limitation that is not expressed in its

language[.] We decline to read into the Rule 5-802.1(d) a limitation on reporting that is not

plainly declared.” 159 Md. App. at 539.

Appellant also cites to Nelson, 137 Md. App. at 414–15, arguing that, because of Ms.

S.’s questions, T.’s statement “did not serve the purpose of the prompt complaint exception:

to ‘forestall ... skepticism’ of the victim’s testimony by the jury based on ‘conventional

wisdom that an outraged victim of a sexual attack will raise the hue and cry as soon as it is

feasible to do so.’”4 Nelson offers no support whatsoever to appellant. In that opinion, this

4
The “hue and cry” doctrine—which eventually evolved into the prompt complaint
doctrine—originates from the medieval era. 2 F. Pollock & F. Maitland, T HE H ISTORY OF
E NGLISH L AW B EFORE THE T IME OF E DWARD I 578–79 (2d ed. 1899). At early common law,
victims of crimes were required to raise a “hue and cry” immediately after a felony was
committed against them—obligating those in earshot to attempt to catch the felon. Id.
(continued...)

12
Court made it clear that the “conventional wisdom” was a reference to the “doctrinal reasons

undergirding the admissibility of prompt complaints.” 137 Md. App. at 414. There is nothing

in Nelson that addresses how this “conventional wisdom” might apply in a case in which the

victim is a young child. Moreover, there are sound reasons why child sexual abuse cases

should be approached differently:

Victims of child abuse often do not disclose immediately after the abuse has
taken place. Sometimes, victims of abuse keep the events to themselves for
many years. For example, in a 1992 report, the National Victim Center &
Crime Victims Research and Treatment Center found that only sixteen percent
of sexual assault victims ever report the assault to the authorities, or fail to
provide a full report. Frequently, the child victim is unaware of the wrongful
nature of the conduct or that what has occurred is not “normal.” The victim
also often experiences feelings of confusion and guilt, a desire to forget the
incident, a fear of not being believed, and in many instances, may remain silent
as a result of intimidation by the abuser.

Christopher T. Fell, Crying out for Change: A Call for a New Child Abuse Hearsay

Exception in New York State, 76 A LBANY L. R EV. 1853, 1854–55 (2013) (emphasis added).

Assuming for purposes of analysis that the approach espoused by Hill and Bethune

is the proper one, we would have no difficulty in concluding that no error was committed by

4
(...continued)
Although the medieval “hue and cry” doctrine led to the evolution of the prompt complaint
doctrine, the purpose served by the latter is vastly different. The purpose of the prompt
complaint doctrine is two-fold: 1) a prompt complaint may be used as substantive evidence
to forestall any skepticism that may be perceived by a lack of its existence—a relic of the
“hue and cry” doctrine’s mandate that victims should immediately report crimes; and 2) to
assist the State in obtaining a conviction by allowing the jury to hear testimony made by the
victim prior to consistent statements made during the trial. Nelson, 137 Md. App. at 413–17;
Cole, 83 Md. App. at 287–96.

13
the trial court’s evidentiary ruling in this case. Both of the New Jersey decisions make it clear

that a prompt report of a sexual assault is not rendered inadmissable simply because the

statement was elicited by a question. The exchange took place in T.’s home and the only

other party to it was her mother. To be sure, Ms. S. declined to be fobbed off by T.’s attempts

to avoid answering the question by saying that she wanted to go to bed. Under the

circumstances, Ms. S.’s repeated questions did not render her conversation with her daughter

coercive. Ms. S.’s statement to her daughter that “God is going to get her if she was lying”

may be a closer question but we decline to say that a mother’s invocation of commonly-held

moral and religious principles rendered the conversation so coercive as to preclude admission

as a matter of law.5

T.’s Statements to the Forensic Nurse

After Ms. S. called the police, T. was taken to a nearby hospital and examined by

Paulette Dendy, a nurse who performed a forensic examination on her. In the course of her

examination, T. made several statements to her about what happened to her. Dendy testified,

without objection, that:

She said her, her dad kissed her with his tongue on her mouth. She
mentioned that he put his thing on her cootie. She mentioned, and she pointed
out not only to that, but she pointed to her behind also, and she said his, that

5
Appellant also contends that Ms. S.’s discussion with T. rendered her later
statements to Herold and Dendy inadmissible. Appellant does not explain why this is so. Our
conclusion that Ms. S. did not coerce her daughter into describing the sexual assault disposes
of this challenge to the testimony of Dendy and Herold.

14
 his, that her thing, that his thing squirted out something, and it even squirted
in her hand. Plus she made about twenty statements. I can’t remember them all.

Dendy also testified, over objection, that appellant had licked and touched her breasts.

However, she later testified, without objection, that her notes stated that “I swabbed her left

breast because she said he licked my breast and she pointed to her left breast.”

Appellant states that “Dendy’s testimony was far too detailed in that it was not

restricted to that fact that [T.] made a complaint, the circumstances under which she did so,

and her identification of [appellant] as her assailant. In addition, [T.’s] statements . . . were

more extensive than her trial testimony in that it included details such as her allegation that

he licked or touched her breasts.”

Appellant’s contentions fail because they are unpreserved—appellant did not object

to Dendy’s narrative, nor did he object to Dendy’s testimony as to the substance of her notes.

See, e.g., Ware v. State, 170 Md. App. 1, 19-20 (2006) (“It is well established that a party

opposing the admission of evidence shall object at the time the evidence is offered or as soon

thereafter as the grounds for objection become apparent. Otherwise, the objection is

waived.”) (internal quotation marks and citations omitted)).6

6
The State also asserts that Dendy’s testimony would be admissible under Rule
5-803(b)(4) as a statement made for purposes of medical treatment. On the record before us,
the State is wrong. See State v. Coates, 405 Md. 131, 146 (2008) (“To determine whether a
statement is made for purposes of medical treatment or medical diagnosis such that it is
admissible pursuant to Md. Rule 5–803(b)(4), the medical professional’s opinion as to
whether there was a medical purpose to the exam or interview is only relevant to the extent
that it affected the patient’s perception.). There is nothing in the record that sheds light on
(continued...)

15
 T.’s Statements to the Social Worker

Ms. Herold interviewed T. on July 5, 2012. Ms. Herold is a licensed social worker

assigned to Child Protective Services. A detective was also present. The interview was

recorded, and portions of the recording7 were played for the jury over appellant’s objection.

T. said that appellant had touched her vagina, which she referred to as her “coochie,” using

his hand and “thing,”—his penis. She recounted that something came out of appellant’s

“thing,” and got onto her hand. The child said that she wiped the substance off of her hand

onto a tissue and disposed of it in the backyard trash. T. also recounted that appellant and

she watched a “grown up” movie on the iPod which showed a couple having sex. These

statements were elicited by questions from the social worker. Before the recording was

played to the jury, defense counsel objected on the grounds that T.’s answers were

“prompted” and that T.’s narrative was more detailed than the what is permitted by the

prompt complaint exception. The trial court overruled the objection.

Appellant asserts that :

The interview was inadmissible for at least three reasons. First and
foremost, the evidence was not limited to the fact that the complaint was made,
the circumstances under which it was made, and the identification of the
culprit . . . . Second, a good amount of what [T.] said to Ms. Herold went
beyond the account she gave on the witness stand . . . . As such, the interview
was not consistent with her trial testimony. Finally, as defense counsel also

6
(...continued)
T.’s state of mind during the examination.
7
In the video, T. made reference to other instances when she had been abused by
appellant. The court did not permit that part of the recording to be shown to the jury.

16
 argued, [T.] did not volunteer her complaint but, rather, made it in response to
persistent and often leading questions[.]

The State correctly points that appellant’s second contention, i.e., that T.’s statements

were not consistent with her trial testimony, is not preserved because defense counsel did not

raise that issue in his objection. See Anderson v. Litzenberg, 115 Md. App. 549, 569 (1997)

(“If counsel provides the trial judge with specific grounds for an objection, the litigant may

raise on appeal only those grounds presented to the trial judge.”). With that said, we have no

difficulty in concluding that the video contained certain information, such as that appellant

and T. watched a pornographic video, that went beyond “the essential nature of the crime

complained of and the identity of the assailant[.],” Cole, 83 Md. App. at 293, or “the time,

place, crime, and name of the wrongdoer.” Parker, 156 Md. App at 261.8

The trial court’s error is not, however, a basis for appellate relief. This is because

substantially the same evidence was admitted without objection during Nurse Dendy’s

testimony. See, e.g., Wilder v. State, 191 Md. App. 319, 346 (2010) (“‘When evidence is

received without objection, a defendant may not complain about the same evidence coming

in on another occasion even over a then timely objection.’” (quoting Williams v. State, 131

8
Appellant also asserts that Herold’s questions were leading and coercive. We have
reviewed the entire transcript of the interview, which occupies approximately 24 pages of the
trial transcript. Herold repeated some of her questions when T. failed to respond or gave
inaudible answers. Some questions were leading. At other points, T. was unwilling to
respond out loud and whispered her answers to Herold, who then repeated them. But T. was
six years old and Herold was justified in using appropriate interviewing techniques. We are
not persuaded that Herold’s interview of T. was coercive or otherwise framed so as to render
T.’s responses involuntary.

17
Md. App. 1, 26 (2000)). To be sure, new details were introduced, viz., that appellant and T.

watched a pornographic video or that T. wiped appellant’s semen off of her hand with a

tissue. However, in light of the mountain of evidence against appellant, we have no

difficulty in concluding beyond a reasonable doubt that this incidental information had no

effect on the jury’s verdict. See Tucker v. State, 407 Md. 368, 382-83 (2009) (‘“When an

appellant, in a criminal case, establishes error, unless a reviewing court, upon its own

independent review of the record, is able to declare a belief, beyond a reasonable doubt, that

the error in no way influenced the verdict, such error cannot be deemed “harmless” and a

reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable

possibility that the evidence complained of-whether erroneously admitted or excluded-may

have contributed to the rendition of the guilty verdict.”’ (quoting Bellamy v. State, 403 Md.

308, 332 (2008)).9

9
There is another aspect to the harmless error analysis. Appellant argues that
admitting [T.]’s statements to Herold and Dendy was prejudical because “‘when one party’s
version of an incident is allowed to be repeated again and again. . . the repetitive retelling of
the same story adds to its weight in the minds of its auditors. Here, that was precisely the
effect the State intended . . . .’” (quoting Cole, 83 Md. App. at 286 (formatting altered)). As
we have explained, Dendy’s testimony was properly admitted. In light of the properly-
admitted testimony of T., Dendy and Ms. S., as well as the DNA evidence, we are convinced
that video did not effect the jury’s verdict.

18
 II. The Cross-Examination of Appellant

Appellant maintains that the trial court erred by permitting the prosecutor to cross-

examine him by employing “were they lying” questions. The factual basis for this assertion

is two sets of questions propounded to appellant during cross-examination.

In the first, the prosecutor asked appellant “[y]our saliva was on [T.’s] breasts,

correct?” Defense counsel objected, explaining that the question sought an answer “outside

[appellant’s] scope of knowledge.” The trial court overruled the objection.

A few minutes later, the prosecutor asked (emphasis added):

[The Prosecutor]: But you remember July 3rd you might have had some fun?

[Appellant]: It’s possible.

[The Prosecutor]: Possibly left some saliva on the sheets?

[The Appellant]: It’s possible.

[The Prosecutor]: The saliva that got onto the breasts of [T.]?

[The Appellant]: I have no idea about that, so you can’t ask me about that.

[The Prosecutor]: Well you heard the testimony today, correct?

[The Appellant]: Yes.

[The Prosecutor]: The DNA expert was on the stand, correct?

[The Appellant]: Yes.

[The Prosecutor]: And testified it would be a 1 in some trillion that it would be

anyone else’s DNA?

19
[The Appellant]: She said it was possible, she didn’t say it was inconclusive
[sic].

[DEFENSE COUNSEL]: Objection.

THE COURT: Well, it’s cross-examination.

[DEFENSE COUNSEL]: Well, it’s hearsay as to what someone else said.

THE COURT: Come on up.

(Counsel approached the bench and the following ensued:)

[DEFENSE COUNSEL]: I don’t think —

THE COURT: It’s cross-examination, it’s a leading question and leading

questions are designed to misdirect. That’s part of cross-
examination.

[DEFENSE COUNSEL]: The problem is –

THE COURT: And he can say he doesn’t know or he doesn’t agree or anything
else.

[DEFENSE COUNSEL]: I just think it’s improper to ask questions about other
people’s testimony, whether or not other people’s testimony
is true or not. And that’s what she’s asking.

THE COURT: I don’t think, no, she asked if he remembered that testimony and
it was in whatever trillion. Not whether it was true or not.

Counsel returned to the trial tables and the following ensued:

[The Prosecutor]: So you heard the testimony, correct, of the DNA expert?

[The Appellant]: Yes.

[The Prosecutor]: And you heard her testimony in regards to the chances of one in
some trillion amount of chances that it would be anybody else’s
DNA other than yours on [T.’s] breasts?

20
[The Appellant]: Yes, I heard that.

[The Prosecutor]: And you told Detective Praytor none of your body fluids ever
came in contact with [T.]?

[The Appellant]: Not that I knew of.

With this as a factual backdrop, appellant asserts:

[T]he State’s questions were the functional equivalent of the ‘were they lying’
questions the Court of Appeals has condemned . . . .

****
Although not phrased as ‘were they lying’ questions, the State’s
questions in this case were the “functional equivalent” in that their purpose was
to force [appellant] into a position where it would appear to the jury that he was
disputing the credibility of the State’s expert. Contrary to the trial court, the
prosecutor was not simply, asking [appellant] whether he remembered the
testimony of Ms. Lease, since [appellant]’s recollection vel non of her
testimony was irrelevant. That is, the fact that [appellant] did or did not recall
the testimony of the expert did not make her testimony (or his own) more or
less likely to be credible. Instead, the State’s goal was to discredit [appellant]
by suggesting that both he and Ms. Lease could not be telling the truth.

[T]he failure of the court to take corrective action in response to the

State’s improper cross-examination cannot be dismissed as harmless.
[Appellant]’s credibility was critical to his defense, and the jury should not have
been misled into thinking it had to choose between believing him and accepting
the testimony of the State’s expert. This Court should reverse.

In support of this contention, appellant asserts: (1) as a general rule, one witness may

not comment upon another witness’s credibility; 10 (2) questions eliciting such responses are

10
See, e.g. Hunter v. State, 397 Md. 580, 589 (2007) (“Therefore, it is the well
established law of this State that issues of credibility and the appropriate weight to give to
(continued...)

21
fundamentally unfair to parties, particularly to criminal defendants;11 and (3) questions that

are “the functional equivalent” of “were they lying” queries are proscribed as well. We agree

with appellant’s premises but not his application of those principles to the facts in this case.

The centerpiece of appellant’s argument is Hunter v. State, 397 Md. 580 (2007).

Appellant is correct that Hunter supports the principle that questions that are the functional

equivalent of “were they lying” queries are improper. Id. at 592. However, the concept of

functional equivalency in Hunter is not nearly as broad as appellant suggests.

Hunter featured a paradigmatic “were they lying” cross-examination. The defendant

was charged with burglary and testified at his trial. In addition to his confession, the State’s

case included evidence showing that Hunter pawned a ring stolen from the victim’s residence.

In his testimony, Hunter denied making a confession and explained that he had been given the

ring by a friend, Hairston, and that he had provided that information to the police. During

cross-examination, the prosecutor asked Hunter several questions such as “So, if the detective

were to testify . . . that you never brought up Mr. Hairston’s name to him that would be a lie?”

10
(...continued)
a witness’s testimony are for the jury and it is impermissible, as a matter of law, for a witness
to give an opinion on the credibility of another witness.”); Bohnert v. State, 312 Md. 266,
278, 539 A.2d 657 (1988) (“Testimony from a witness relating to the credibility of another
witness is to be rejected as a matter of law.”).
11
See Hunter, 397 Md. at 595–96 (“The questions were further unfair because it is
possible that neither the petitioner nor the police officers deliberately misrepresented the
truth. These questions forced petitioner to choose between answering in a way that would
allow the jury to draw the inference that he was lying or taking the risk of alienating the jury
by accusing the police officers of lying.”).

22
Id. at 585–86. The Court of Appeals concluded that the trial judge erred by permitting this

avenue of cross-examination; the “credibility of a witness and the weight accorded the

witness’ testimony are solely within the province of the jury[,]” and that “[t]estimony from

a witness relating to the credibility of another witness is to be rejected as a matter of law.”

Id., 397 Md. at 588 (citations and internal quotation marks omitted; emphasis in original).

In reaching this conclusion, the Court surveyed its previous relevant decisions. Those

cases included Thompson v. Standard Wholesale Phosphate & Acid Works, 178 Md. 305

(1940). The Hunter Court stated:

[In Thompson] we addressed the ability of an expert witness to opine on the

conflicting testimony of previous witnesses and said:

‘All courts agree that if there is any conflict between the

witnesses as to facts on which an expert opinion is sought, the
expert witness cannot [in that situation], although he has heard
the testimony, be asked to base his opinion on that testimony,
because, to reach his conclusion, he must necessarily invade the
province of the jury and pass on the credibility of witnesses and
the weight of the evidence.’”

Thompson, 178 Md. at 318 (quoting 20 Am. Jur., § 790) (emphasis added). In
other words, when conflicting testimony is given and an expert witness is asked
to draw a conclusion as to which version of events actually occurred, his or her
expert conclusion could influence the jury as to which witness’s version of
events is more credible. This is not permitted because it is the functional
equivalent of asking a “were-they-lying” question to someone who has the
additional influence of being an expert.

397 Md. at 591–92 (italicized emphasis added by Hunter; underlining added by this Court).

Posing a question to an expert that invites an expert witness to opine as to which

version of conflicting factual testimony should be believed by the jury is the “functional

23
equivalent of asking a ‘were-they-lying’ question.” There may be other forms of questions that

are also “functional equivalents.” However, the pertinent questions in the instant case were

nothing of the sort. The prosecutor asked appellant to explain the discrepancy between his

version of events and the testimony of other witnesses. As the trial court noted “he can say he

doesn’t know or he doesn’t agree or anything else.” Which is exactly what appellant did.

There was no error on the part of the trial court.

III. Opening Statement and Closing Argument

Appellant contests the trial court’s adverse rulings on his objections to both the State’s

opening statement and closing argument. He argues that the State, in both opening statement

and closing argument, “mischaracterized the forensic evidence three times, first in its opening

statement when it claimed that it would be presenting evidence that [appellant’s] saliva was

on [T.’s] breasts,” then in its closing argument when it misstated the strength of the DNA

evidence, and in its rebuttal argument when the State “suggested that its expert had quantified

the odds of an accidental transfer of DNA to [T.].” Appellant last asserts that the prosecutor

denigrated the role of defense counsel. We find no basis for relief and explain.

With respect to opening statement, the Court of Appeals has emphasized:

While the prosecutor should be allowed a reasonable latitude in his opening

statement he should be confined to statements based on facts that can be proved
and his opening statement should not include reference to facts which are
plainly inadmissible and which he cannot or will not be permitted to prove, or
which he in good faith does not expect to prove. . . . To secure a reversal based
on an opening statement the accused is usually required to establish bad faith

24
 on the part of the prosecutor in the statement of what the prosecutor expects to
prove or establish substantial prejudice resulting therefrom.

Wilhelm v. State, 272 Md. 404, 411–12 (1974) (citations omitted).

“During closing argument, counsel must confine his or her oral advocacy to the issues

in the case, but is afforded generally wide latitude to engage in rhetorical flourishes and invite

the jury to draw inferences.” Ingram v. State, 427 Md. 717, 727 (2014) (citing Degren v.

State, 352 Md. 400, 430 (1999)). Even in cases where the prosecutor has crossed the line over

to improper summation, “[r]eversal ... is only warranted when it appears that the remarks of

the prosecutor actually misled the jury or were likely to have misled or influenced the jury to

the prejudice of the accused.” Degren, 352 Md. at 431 (quotation marks and internal citations

omitted).

Control of the scope and duration of both opening statement and closing argument is

entrusted to the trial court’s discretion, which we review for abuse. Ingram, 437 Md. 717 at

727 (citing Wilhelm, 272 Md. at 413). Given the importance of summation, Maryland courts

have thus “given attorneys wide latitude in the presentation of closing arguments[.]” Lee v.

State, 405 Md. 148, 162 (2008) (citation omitted).

In her opening statement, the prosecutor said that the jury would “hear from the

serologist and from the DNA expert” who would demonstrate that appellant’s saliva had been

25
detected on T.’s breasts. As the record showed, however, no serological testing was

performed on the “suspected sputum” that was taken from T.’s breasts.12

Notwithstanding, we discern no basis for appellate relief. “To secure a reversal based

on an opening statement the accused is usually required to establish bad faith on the part of

the prosecutor in the statement of what the prosecutor expects to prove or establish substantial

prejudice resulting therefrom.” Wilhelm v. State, 272 Md. at 412. The State’s representation

in its opening statement was inaccurate—the serologist testified that no serological testing had

been performed on the “suspected sputum.” We agree with the State that appellant has failed

to demonstrate bad faith or undue prejudice by this isolated error.

Appellant next assails what he describes as the prosecutor’s “active”

mischaracterization of the DNA evidence. He maintains that the prosecutor misstated

statistics from the DNA testing, and also misinterpreted Ms. Lease’s opinion regarding the

probable contribution of appellant’s DNA to the sputum sample.

The transcript reflects the following relevant closing argument (emphasis added):

[PROSECUTOR:] This was a violation of trust. The defense, however, will have
you believe that this is all an unfortunate coincidence. Because
the next set of evidence is the DNA. And they will have you
believe that oh, there was DNA on [T.] and it just so happened to
belong to the client, but that’s because they share a laundry and
it’s just unfortunate that on that day the laundry happened to
touch her breasts, her buttocks, and she just so happened to get
semen on the inside of her pant leg. That’s some really bad luck.

12
Dendy, the forensic nurse, testified without objection that T. told her that appellant
had touched and licked her left breast.

26
 But you heard from the DNA experts. You heard what they said
about the DNA that was found. There was DNA all over [T.’s]
breasts. The breasts that were swabbed by Nurse Dendy. The
rape kit that was submitted. She swabbed her skin, her breasts,
the defendant’s DNA was on it. She swabbed her buttocks and
the DNA of the defendant was on it and what did she tell you?
It was one, the chances of that DNA being any other person than
the defendant was 1 in 1.43 trillion. Trillion. In the U.S. African
American population.

[DEFENSE COUNSEL]: Objection.

THE COURT: It’s the jury’s recollection that would cover it.

[PROSECUTOR]: It’s in the trillions. There’s a 16 billion people in the world.

Who else could it be? So that’s why the defense will try to have
you believe, confuse you with the DNA and say of course, of
course they share laundry, it’s easy it’s all transferrable. You
know we can touch each other and everybody gets their DNA on
each other. Where did the semen come from? You heard the
defendant, who has now become a witness in this case as well.
You can choose to believe some, all or none of what he says. I
ask that you believe none of what he said. He said I may have
ejaculated on the bed on the 3rd before [T.] got into the bed with
me, me and her mom may have been fooling around. I didn’t do
anything on the 4th. Can’t remember what happened on the 2nd.
But there probably was semen on the bed that I decided to just
lay on the next day, that I decided to allow my daughter,
stepdaughter to just lay on the next day, in the semen on the bed.
That’s how it got on there. That’s how it got on the inside of her
pant leg. Not it got on the inside of her pant leg because he
ejaculated on her hands while he had her pants down. That’s
child abuse, sexual child abuse of a family member.

The State counters appellant’s argument by pointing out that the statistical

misrepresentation — “trillion” instead of “million” — was “likely the result of an

unintentional mix up between statistics,” and points to a second statistic in which the match

27
for a swab from T.’s breast yielded a figure of “1 in 35.1 trillion.” The State further points

to the fact that both defense counsel and the prosecutor, on rebuttal, provided the jury with

the correct figure, and that the DNA evidence, even with the correct statistical correlation, is

“essentially unassailable.”

We believe that the State has the better argument. In “deciding whether there was an

abuse of discretion [in the trial court’s ruling against an objection to closing argument], we

examine whether the jury was actually or likely misled or otherwise ‘influenced to the

prejudice of the accused’ by the State’s comments.” Whack v. State, 433 Md. 728, 742 (2013).

On this record, we are unable to conclude that the jury would have been misled on the basis

of the prosecutor’s remarks, especially in view of the fact that the jury eventually heard the

correct statistics from both defense counsel and the prosecutor.

We turn to appellant’s complaint that the State “blurred the odds of an accidental

transference of [appellant’s] DNA . . . and the odds that the DNA came from an individual

other than appellant[.]” As far as can be discerned from his argument, it appears that

appellant takes issue with the prosecutor’s assertion that, regardless of the manner by which

appellant’s DNA had been transferred to T.’s buttocks, the likelihood of anyone else being

a contributor to that DNA was 1 in 1.43 million African Americans. This argument is

baseless. Regardless of how the DNA was deposited on the victim, the prosecutor was

entitled to argue to the jury the statistics. The defense theory as to the manner by which his

DNA ended up on T. or her clothing was not relevant to the State’s argument at this point; the

provenance of the DNA was. We certainly discern no basis for relief on this claim.

28
 Appellant’s last challenge to the State’s closing argument is that the prosecutor

denigrated defense counsel by essentially accusing counsel of fabricating a defense or even

suborning perjury.13 This claim is without merit. The disputed argument was presented as

follows:

[PROSECUTOR]: Defense attorneys love to have it one way or the other, depending
on how –

[DEFENSE COUNSEL]: Objection.

[PROSECUTOR]:14 – it works for them.

THE COURT: It’s an argument.

[PROSECUTOR]: Especially when it comes to DNA evidence. Defense attorneys

will either come up here and argue they didn’t even collect
forensic evidence, they didn’t swab –

[DEFENSE COUNSEL]: Objection.

THE COURT: It’s an argument.

[PROSECUTOR]: – for prints, or they didn’t swab for DNA. That’s ridiculous.
They should have done that because if they did my client would
have been excluded because he didn’t do this. So they want the
DNA. But when there is DNA and it happens to exclude their
client, DNA is the best evidence ever. Believe the DNA.
Believe what you hear about the DNA. Because it’s got to be
true, the experts know what they’re talking about. But then when
you have the unfortunate coincidence to have the DNA of their
client on the body of a 6-year-old, it’s just that. It’s just an
unfortunate coincidence. The DNA doesn’t tell you anything.

13
This accusation flows from appellant’s citation to cases in which the prosecutor had
indeed accused the defense of that misconduct. Those accusations are absent in this case.
14
The transcript indicates that this statement was made by the trial court. Obviously,
the statement was made by the prosecutor.

29
 Don’t believe the DNA. It’s because they did laundry together.
That makes no reasonable sense.

The prosecutor certainly may not make remarks calculated to inflame the passions of

the jury, comment on matters not in evidence or “infer that defense counsel suborned perjury

or fabricated a defense.” Hunt v. State, 321 Md. 387, 435 (1990) (citations omitted).

We see no misconduct here. The prosecutor could well comment on the viability of

the defense theories or the strength of the defense. It must do so, however, without suggesting

that defense counsel would accomplish a defense by the use of perjury or fabrication. In a

previous case, the prosecutor argued that the defendant’s claim of self-defense was “a fiction

manufactured by defense counsel[.]” Reidy v. State, 8 Md. App. 169, 172 (1969). We

concluded that this comment could have been interpreted by the jury to mean that counsel

suborned perjury.

There is no similar misconduct in the case before us. The prosecutor alluded to the role

of defense counsel to win an acquittal, but in so doing presented her view that, in the final

analysis, the theory of the defense was unreasonable. The remarks were “unlikely to have

misled the jury or influence the jury to the prejudice of the accused.” See Beads, 422 Md. at

11.

IV. Illegal Sentence

Appellant asserts that his sentence for second-degree sexual offense was illegal. The

State agrees that appellant is due to be re-sentenced, but disagrees with the proposition that

the extant sentence for second-degree sexual offense is “illegal.”

30
 Appellant was convicted of second degree sexual offense, in violation of Md. Code

(2002, 2011 Supp.), § 3-306(a)(3) of the Criminal Law Article (“Crim. Law”), the sole

modality for committing Crim. Law § 3-306 for which the court instructed the jury.15 Crim.

Law § 3-306 provides:

§ 3-306. Sexual offense in the second degree.

(a) Prohibited. – A person may not engage in a sexual act with another:

(1) by force, or the threat of force, without the consent of the other;

(2) if the victim is a mentally defective individual, a mentally incapacitated

individual, or a physically helpless individual, and the person performing the
sexual act knows or reasonably should know that the victim is a mentally
defective individual, a mentally incapacitated individual, or a physically
helpless individual; or

(3) if the victim is under the age of 14 years, and the person performing the
sexual act is at least 4 years older than the victim.

(b) Age considerations. – A person 18 years of age or older may not violate
subsection (a)(1) or (2) of this section involving a child under the age of 13
years.

(c) Penalty. – (1) Except as provided in paragraph (2) of this subsection, a

person who violates this section is guilty of the felony of sexual offense in the
second degree and on conviction is subject to imprisonment not exceeding 20
years.

(2)(i) Subject to subparagraph (iv) of this paragraph, a person 18 years of age

or older who violates subsection (b) of this section is guilty of the felony of
sexual offense in the second degree and on conviction is subject to
imprisonment for not less than 15 years and not exceeding life.

15
The acts leading to appellant’s convictions were committed on July 4, 2012, prior
to the effective date of any amendments to the Criminal Law Article.

31
 (ii) A court may not suspend any part of the mandatory minimum sentence of
15 years.

(iii) The person is not eligible for parole during the mandatory minimum
sentence.

(iv) If the State fails to comply with subsection (d) of this section, the
mandatory minimum sentence shall not apply.

(d) Required notice. -- If the State intends to seek a sentence of imprisonment

for not less than 15 years under subsection (c)(2) of this section, the State shall
notify the person in writing of the State’s intention at least 30 days before trial.

A violation of Crim. Law § 3-306(a)(3) may result in a sentence of no more than 20

years. There is no mandatory minimum sentence for a violation of this section. Yet the trial

court sentenced appellant under Crim. Law § 3-306(c)(2)(i), based on a conviction under

Crim. Law § 3-306(b). Appellant is subject to a sentence imposed pursuant to Crim. Law

§ 3-306(c)(1). We therefore vacate appellant’s sentence for second degree sex offense and

remand for re-sentencing on that count consistent with this opinion.

THE SENTENCE FOR SECOND DEGREE SEXUAL OFFENSE IS

VACATED, AND THE CASE REMANDED TO THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY FOR RE-SENTENCING ON THAT
COUNT IN ACCORDANCE WITH THIS OPINION.

THE JUDGMENTS ARE OTHERWISE AFFIRMED IN ALL

RESPECTS.

COSTS TO BE PAID 3/4 BY APPELLANT AND 1/4 BY PRINCE

GEORGE’S COUNTY.

32