Acker v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 513

September Term, 2011

ON REMAND

ROBERT MITCHELL ACKER

v.

STATE OF MARYLAND

Eyler, Deborah S.,
Woodward,
Kehoe,

JJ.

Opinion by Kehoe, J.

Filed: September 30, 2014
 Maryland Rule 5-802.1(b) permits the introduction of a witness’s prior consistent

statement as substantive evidence “if the statement is offered to rebut an express or implied

charge against the declarant of fabrication, or improper influence or motive . . . .” The Court

of Appeals has interpreted this rule to include a temporal restriction, namely, that a prior

consistent statement is admissible under Rule 5-802.1(b) only if “it was made before the

source of the bias, interest, influence or incapacity originated .” Thomas v. State, 429 Md. 85,

101-02 (2012). The issue before us is how the restriction articulated in Thomas should apply

in cases in which a party, in addition to a temporally-specific allegation of bias, makes bald

assertions such as that the victim of alleged child sexual abuse was “starved for attention”

and therefore is inherently unworthy of belief. We conclude that factually unsupported and

conclusory allegations of bias or fabrication of the sort at issue in this appeal do not trigger

the Thomas restriction.

The appellant in this case is Robert Mitchell Acker, who was convicted by a jury of

the Circuit Court for Montgomery County of two counts of sexual offense in the third

degree.1 He appealed and a panel of this Court affirmed his convictions in an unreported

opinion. Acker v. State, No. 513, September Term, 2011, filed April 5, 2012 (“Acker I”). As

we will explain in greater detail, the Court of Appeals granted Acker’s petition for writ of

certiorari, summarily vacated the judgment, and remanded the case to us for reconsideration

1
A third degree sexual offense is defined in Maryland to include: “engag[ing] in
sexual contact with another if the victim is under the age of 14 years, and the person
performing the sexual contact is at least four years older than the victim.” Md. Code (2002,
2010 Supp.) § 3-307(a)(3) of the Criminal Law Article.
in light of Thomas. Upon reconsideration, we conclude that the trial court did not err in its

evidentiary rulings and again affirm the convictions.

Background

A. The Trial

On July 11, 2010, K., at the time fifteen years old, called the Montgomery County

Police and stated that she had been sexually abused by Acker on several occasions starting

in 2003, when she was seven years old. Acker was eventually indicted on seven sex-related

offenses, including multiple counts of sexual offense in the third degree. The case proceeded

to a four-day trial by jury in the Circuit Court for Montgomery County.

A few days before trial commenced, the prosecution filed a motion in limine

requesting that the trial court “make a pre-trial ruling on the admissibility of certain prior

consistent statements [made by K.] to be offered by the State.” In the motion, the prosecution

asserted that the statements it intended to offer were admissible on several grounds,

including pursuant to Rule 5-802.1(b). The court heard the motion outside the presence of

the jury on the first day of trial. The prosecutor, at that time, repeated her request for “a pre-

trial ruling on [the motion]” but stated, “I know it may end up becoming more of a ripe issue

after the victim’s testified. . . .” Defense counsel, in turn, agreed with the latter point,

contending, “I think it’s premature to make any judgment. We don’t know what the evidence

is going to be until we hear the evidence. . . .” The trial court agreed with defense counsel,

concluding that, “once [the State is] in a position to call witnesses that would be [testifying

2
as to] prior consistent statements, then we can address it at that point.”

The State’s case rested on the credibility of K. She testified that, on several occasions

between 2003 and 2005, Acker engaged in two different types of sexual contact with her.

According to K., the alleged incidents of abuse occurred at her mother’s house, after the

family hosted parties which involved alcohol and illicit drug use among the adults in

attendance. The guests at these parties, including Acker, often spent the night, sleeping on

the floor or couch in the home’s living room, in order to avoid driving under the influence

of drugs, alcohol, or both.

K. testified that, at first, she did nothing in response to the ongoing abuse because “I

didn’t know what was happening,” but that, eventually, she told several people about it in

2004 or 2005, including (in chronological order): Michael S., a neighborhood friend;

Melissa, her mother; and Charlene C., her best friend from school.2 According to K., she

believed that Melissa had “gotten [Acker] in trouble” for abusing her until July of 2010,

when she learned, during a heated verbal argument with her mother, that Melissa had not,

in fact, called the police after learning of the alleged abuse. K. testified that she was upset

that Melissa “didn’t do anything,” and that she “wanted something done [about the abuse].”

As a result, K. called 9-1-1 two times: first, reporting that Melissa had “abus[ed]” her;3 and

2
K. testified that she also told others about the abuse at later points in time. The trial
court did not permit the introduction of evidence of these statements.
3
The police did not respond to this first 9-1-1 call. Defense counsel, during cross-
examination, asked K. if her intention in calling 9-1-1 on her mother was to “get the attention
(continued...)

3
second, reporting that Acker had “raped” her several years ago. (K. clarified that, when she

told others that she had been raped by Acker, she meant that he had “violated” her or

touched her inappropriately). K. further testified that, as a result of, among other matters, the

9-1-1 calls and Melissa’s failure to report the abuse, she and Melissa “have a difficult time

getting along with each other.”

Defense counsel advanced three theories as to why K.’s testimony was unworthy of

belief.4 First, in opening statement, defense counsel attacked K.’s character, contending that

K. had fabricated the alleged instances of abuse because she was “starved for attention,” and,

as a result, was “reaching out for attention” from both her mother and the world at large.

Second, defense counsel asserted that K. had lied about the alleged abuse at the behest of

her mother, Melissa, who felt “jilted” by Acker’s refusal, in June of 2005, of what he

perceived to be romantic overtures from her. Third, defense counsel maintained that K. had

3
(...continued)
of the police to come talk to you[?]” K. responded in the affirmative. K.’s second 9-1-1 call
was played for the jury. During that dialogue, K. asked the dispatcher, “[c]ould you send
someone over to me?” The dispatcher responded by asking, “[w]hat do you need a police
officer for?” to which K. replied, “there is this . . . whole [] situation that [] I need to [] tell
about this one guy and me, that what happened,” and “that my mom never told the cops on
this one guy because he raped me for almost five years, and she never told the cops on him.”
K. clarified on cross-examination that the abuse continued, not for five years, but only
between 2003 and 2005.
4
As Thomas makes clear, “the alleged pre-statement motive to fabricate must have
been ‘raised in the case’ [either] expressly or impliedly [] before the trial judge’s
determination as to the admissibility of the prior consistent statement.” 429 Md. at 103 n.1.
Here, defense counsel raised the theories of impeachment in his opening statement, and, thus,
the alleged motives were clearly “raised in the case” prior to when the trial judge ruled on
the admissibility of K.’s prior consistent statements.

4
fabricated the abuse allegations in order to assist Amy R., a family friend, who was involved

in a lawsuit with Acker over a real estate transaction (the suit was filed in either late 2009

or 2010). As defense counsel summarized to the jury in his opening statement, “Mr. Acker’s

kind of caught up in this perfect storm. He has his worst enemies pursuing him through

[K.] . . . a child struggling for attention . . . .”

In an attempt to rebut one or more of these charges of fabrication,5 the State called

Michael S., Melissa, and Charlene C. to testify, over Acker’s objections, that K. had

disclosed the alleged incidents of abuse to them in 2004 or 2005.6 Michael S. stated that,

although he could not remember K.’s exact words, she communicated to him that Acker had

“touched her” and “did inappropriate things to her,” and that, during these conversations, K.

was “upset” and “crying.” Melissa testified that K. “came to me and told me that [Acker]

touched her one time” and that “he had put his hands on her when she was little.” According

to Melissa, at the time, K. was “really upset” and “it just kind of came out at the end of [a]

discussion.” Charlene C., in turn, testified that K. told her that “around from when she was

7 until 10, that she was being raped”—i.e., touched inappropriately—and that, during the

conversations, K. was “upset” and, “several times, she would just randomly cry about it

5
At trial, the State did not specify which of these charges of fabrication it was
attempting to rebut by admitting K.’s prior consistent statements.
6
The testimony established that K. did not disclose specific details of the abuse to
these witnesses, nor did they testify as to such.

5
because nothing had been done.”7 The trial court admitted these prior consistent statements

as substantive evidence under Rule 5-802.1(b), which, as noted above, requires that the

statements be “offered to rebut an express or implied charge against the declarant of

fabrication, or improper influence or motive[.]”

Acker testified in his own defense. He admitted that sexual contact had occurred on

at least one occasion in 2004 or 2005, when he awoke one morning to find that K. was, in

his words, “dry humping . . . my hand.” But he denied any responsibility for the interaction,

stating that it was K. who had initiated the inappropriate contact. As to the remaining

incidents described by K., Acker testified that he had never sexually abused K. and that she

was lying about the allegations.

After deliberating, the jury convicted Acker of two counts of sexual offense in the

third degree and acquitted him of the remaining charges. Acker was sentenced to

incarceration for a period of four years, all but eighteen months suspended, with eighteen

months of supervised probation to follow upon his release. In addition, Acker was required

to register as a sex offender.

B. The Appeal

Acker appealed his convictions to this Court, arguing, in pertinent part, that the trial

court erred in permitting Melissa, Charlene C., and Michael S. to testify regarding K.’s prior

consistent statements about the alleged abuse. Applying the analysis set forth in Thomas v.

7
As noted above, K. clarified that when she told others that she had been raped by
Acker, she meant that he had touched her inappropriately.
6
State, 202 Md. App. 386 (2011), rev’d, 429 Md. 85 (2012), the panel affirmed Acker’s

convictions, holding that the prior consistent statements were admissible because they “were

made prior to the existence of at least one of the potential motives to lie as argued by

Acker—most notably, [K.’s] 9-1-1 call to police to elicit attention from her mother.” Slip.

Op. at 16.8 Acker filed a petition for writ of certiorari in the Court of Appeals, presenting

the following question:

Did the Court of Special Appeals incorrectly apply Maryland Rule 5-802.1(b)
when it held that if a declarant had multiple motives to fabricate, the
declarant’s prior consistent statement was admissible at trial so long as it
predated at least one of the declarant’s motives?

The Court of Appeals granted the petition and summarily vacated this Court’s

judgment and remanded the case to us “for further consideration in light of Thomas v. State,

[429 Md. 85 (2012)].”

Upon remand, we ordered the parties to re-brief the relevant issues in light of Thomas

and Hajireen v. State, 203 Md. App. 537, cert. denied, 424 Md. 306 (2012), a decision of

this Court interpreting Rule 5-802.1(b).9

8
Acker raised other issues in Acker I, namely, whether the trial court erred in
admitting a pre-trial statement made to police detectives, whether the court should have
ordered the State to file a bill of particulars, and whether the court erred in failing to exclude
testimony as to a letter written by Acker to K.’s mother when neither an original nor a copy
of the letter was available. These issues are not before us at this stage in the litigation.
9
We posed the following questions to the parties:

1. In light of the Court of Appeals’ analysis in Thomas, and this Court’s
opinion in Hajireen v. State, 203 Md. App. 537 (2012), did assertions by
(continued...)

7
 Analysis

There is no dispute that the prior consistent statements at issue in this appeal

constitute hearsay and were inadmissible unless they satisfied the requirements of Rule 5-

802.1(b) or another exception to the general prohibition against the admission of hearsay

evidence. Our review of the trial court’s rulings concerning the admission of hearsay

evidence is de novo. Thomas, 429 Md. at 98; Dulyx v. State, 425 Md. 273, 285 (2012).

9
(...continued)
defense counsel that the victim was “reaching out for attention” or that the
victim had “an oversized appetite for attention” from the time that she first
made statements to others that she had been allegedly sexually assaulted by
appellant constitute “the existence of any fact which would motivate bias,
interest, or corruption on the part of the witness,” Thomas, 429 Md. at 104-05,
that would bar admission of evidence of all or some of such statements under
Md. Rule 5-802.1(b)?

2. In light of the Court of Appeals’ analysis in Thomas, and this Court’s
opinion in Hajireen . . . , is evidence (i) that the victim told her mother that she
had been sexually assaulted by appellant or (ii) that the victim told friends in
2005-2006 that she had been sexually assaulted by appellant, admissible to
rebut an impeachment that, in 2010, the victim was manipulated by the
victim’s mother and a friend of the mother to accuse appellant of sexually
assaulting the victim?

3. Based on the record developed before the trial court, may this Court
consider whether the victim’s statements to her friends and her mother were
“prompt report[s] of sexually assaultive behavior.” See Rule 5-802.1(d) and
Gaerian v. State, 159 Md. App. 527 (2004)?

4. If the answer to the previous question is “yes,” would such a conclusion
render harmless any error by the trial court in admitting the alleged victim’s
prior statements pursuant to Rule 5-802.1(b)?

In light of our analysis, it is not necessary to address the final two questions.

8
 Acker maintains that the Court of Appeals’ decision in Thomas “dictates . . . that once

the defense has asserted [that] a witness has a motive to fabricate, any statements that follow

are inadmissible as prior consistent statements so long as the original motive continues to

exist.” In Acker’s view, the trial court erred in admitting K.’s prior consistent statements into

evidence via the testimony of Michael S., Melissa, and Charlene C. We do not agree with

Acker’s proposed application of Thomas to the facts before us.

To reiterate, Acker argued that K. complained to the police about his alleged actions

and then testified consistently with the details of her complaint for three distinct reasons: (1)

that K. was angry at Acker because he had an ongoing lawsuit against a friend of K. and her

family; (2) that K. complained to the police in the first instance because she was “starved for

attention”; and (3) that she resented Acker because he had rebuffed romantic overtures from

K.’s mother, overtures that Acker asserted had been made about the time he allegedly

assaulted K.

We hold that evidence of K.’s prior consistent statements was properly admissible

under Thomas to rebut Acker’s first theory of impeachment because the statements were

made prior to the dispute that led to the lawsuit with the family friend. We decline to accept

Acker’s argument that this otherwise admissible evidence should be barred because K.

reported the alleged assaults to the police. Finally, we conclude that the temporal element

of Acker’s third theory of impeachment—that K. was motivated to lie because her mother

had been rebuffed by Acker—is irrelevant to a Thomas analysis because there was no

9
evidence or argument suggesting that K. was so motivated at the time she made the

statements to her mother and her friends that were admitted into evidence.

Because evidence of K.’s prior consistent statements were properly admitted to rebut

Acker’s first theory of impeachment, and the remaining two theories of impeachment did

not affect the admissibility of those statements, we will affirm Acker's convictions for sex

offense in the third degree.

We will begin our analysis by reviewing the Court’s reasoning in Thomas itself. We

will then consider Thomas in the context of other principles relevant to Rule 5-802.1(b)

problems. We will then turn to Acker’s specific contentions.

II. Thomas: A Prior Statement Must Predate the
Alleged Motive to Fabricate to Be Admissible under Rule 5-802.1(b)

The trial court admitted K.’s prior consistent statements as substantive evidence

pursuant to Rule 5-802.1(b).10 The rule provides in pertinent part:

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:
...
(b) A statement that is consistent with the declarant’s testimony, if the

10
We recognize that child sex abuse prosecutions raise unique challenges to courts and
counsel alike. See, e.g., Tome v. United States, 513 U.S. 150, 166 (1995) (observing that
there are “difficulties attendant upon the prosecution of alleged child abuses”); John Myers,
M YERS ON E VIDENCE OF INTERPERSONAL V IOLENCE C HILD M ALTREATMENT, INTIMATE
P ARTNER V IOLENCE, R APE, S TALKING, AND E LDER A BUSE § 7.11 (2012) (identifying and
discussing difficulties in applying certain evidentiary standards in child sex abuse
prosecutions, including the rules applicable to prior consistent statements of a child abuse
victim). However, Rule 5-802.1(b) focuses on the type of impeachment alleged, not on the
capacity of the witness or the nature of the proceeding.
10
 statement is offered to rebut an express or implied charge against the declarant
of fabrication, or improper influence or motive[.]

Although Rule 5-802.1(b) is silent as to any temporal limitations, appellate courts in

Maryland have held that prior consistent statements are admissible under this rule only if the

prior statements were delivered “before the alleged fabrication or improper influence or

motive arose.” Holmes v. State, 350 Md. 412, 424 (1998). As the Court of Appeals

explained in Thomas:

In Holmes, we explained that Md. Rule 5-802.1(b) retains the common law
“premotive” requirement. In other words, as a prerequisite to admissibility, a
prior statement must predate the alleged motive to fabricate. Under the
common law, if a witness is attacked by a charge of fabrication or improper
influence or motive, the prior consistent statement is relevant only if it was
made before the source of the fabrication or improper influence or motive
originated.

429 Md. at 101-02 (citing Holmes, 350 Md. at 422).

In Thomas, the defendant was charged with distributing controlled dangerous

substances. At trial, the State offered evidence that the defendant and a man named

Benjamin had engaged in an exchange of drugs, money, or both, in a shopping center

parking lot, before driving away. The State contended that the evidence at trial established

that the defendant was the seller and that Benjamin was the purchaser. The defense

presented the opposite theory, that it was Benjamin—not the defendant—who was the one

distributing drugs. In support of the State’s position, the prosecution called Benjamin to

testify, as well as the two police officers who stopped Benjamin’s vehicle and arrested him

shortly after the exchange took place. Benjamin testified that he had purchased crack cocaine

11
from the defendant. Thereafter, the two police officers testified that, after pulling him over

on the side of the road and discovering crack cocaine on his person, Benjamin told them that

he had purchased the drugs from the defendant. Though opting not to present evidence of

its own, the defense responded to this testimony by attacking the credibility of Benjamin

during its cross-examination and closing argument. The jury ultimately convicted the

defendant of distributing controlled dangerous substances.

On appeal to this Court, in Thomas v. State, 202 Md. App. 386 (2011), the defendant

challenged the admissibility of the police officers’ testimony as to the prior, out-of-court

statements of Benjamin. The defendant argued that Benjamin had a motive to testify falsely

and that this motive arose from two distinct events: first, that, upon the officers’ discovery

of crack cocaine on his person, he had a motive to lie to protect himself from drug

distribution charges, and second, that he had a motive to testify falsely in court so that he

would receive favorable treatment from the prosecution on unrelated charges involving his

unauthorized use of a motor vehicle. 202 Md. App. at 393-94, 397-98. The police found the

cocaine in Benjamin’s possession before he made the out-of-court statements; but the

unauthorized use situation arose after Benjamin made the statements. Id.

On appeal, the defendant contended that, pursuant to Rule 5-802.1(b), the trial court

erred in permitting the police officers to testify as to Benjamin’s pre-trial statements because

they were made after at least one of the alleged motivations to lie arose. Id. at 394. This

Court disagreed, holding that, under the rule, “a witness’s prior consistent statement is

12
admissible if made prior to the existence of any one of multiple biases or motives that an

opposing party charges, expressly or impliedly, might have influenced the witness’s

testimony.” 202 Md. App. at 398 (emphasis added). Because the second of the two alleged

motives to lie arose subsequent to Benjamin’s making of the statements, we affirmed the

trial court’s evidentiary rulings. Id. at 400.

The Court of Appeals granted Thomas’s petition for a writ of certiorari and came to

a different conclusion. In Thomas v. State, 429 Md. 85 (2012), the Court held that, “when

the witness is obviously under investigation or has been arrested when the [prior] statements

were made, [those statements] are generally inadmissible because the motive to fabricate has

already arisen.” 429 Md. at 103 (citing 2 MCCORMICK ON EVIDENCE § 251, at 152 (Kenneth

S. Brown ed., 6th ed.2006)). Applying the rule to the facts before it, the Court concluded

that the trial court erred in permitting the police officers to testify about Benjamin’s prior

statements because “Benjamin made the statements after he was stopped by police and under

investigation for his alleged participation in [the] drug transaction.” Id. at 106. As the Court

observed, “Benjamin had a motive to fabricate his story the moment he knew he was under

investigation and/or stopped by the police on suspicion of participating in a drug

transaction.” Id. at 107. Therefore, “his prior consistent statements were inadmissible

because the motive to fabricate, as alleged by [the defendant], had already arisen.” Id. at 106.

In so holding, the Court articulated the following generally applicable standard for

purposes of applying Rule 5-802.1(b): “[i]f the prior consistent statements were made at a

13
time prior to the existence of any fact which would motivate bias, interest, or corruption on

the part of the witness then the prior consistent statements are admissible to rebut the alleged

bias or interest,” but, “[c]onversely, statements made when the declarant had an alleged

motive to falsify are not relevant [and thus not admissible] to rebut a charge of fabrication.”

429 Md. at 104-105. As the Court noted, “[t]he timing of the alleged fabrication is crucial

to the application of Md. Rule 5–802.1(b),” and, therefore, “the trial court’s focus should

be on when the prior consistent statements arose.” Id. at 104.

III. The Finite Scope of Rule 5-802.1(b)

As the Court of Appeals made clear in Thomas, “under Md. Rule 5–802.1(b) a prior

consistent statement may not be admitted to counter all forms of impeachment or to bolster

the witness merely because [he or] she has been discredited.” 429 Md. at 102 (quotation

marks and citations omitted). Instead, the rule is “‘intended to permit the admission of those

prior consistent statements which would logically rebut the impeachment undertaken,

whether by an implied or express charge of fabrication or of bias or improper motive.’” Id.

at 103 (quoting Holmes, 350 Md. at 423). To rebut the charge of fabrication, the out-of-court

statement must have been made prior to the occurrence of facts or events that gave rise to the

alleged motivation to fabricate. Such events may be, for example: an investigatory stop or

arrest of the witness, id. at 103; the witness’s commission of a crime, Blair v. State, 130 Md.

App. 571, 601 (2000); McCray v. State, 122 Md. App. 598, 609–10 (1998); the witness’s

formulation of a “‘plan or contrivance to give false testimony,’” Cole v. State, 83 Md. App.

14
279, 301 (1990) (quoting MCCORMICK ON EVIDENCE § 49 (E. Cleary 3d ed. 1984)); or a

“change of circumstances” arising from the witness’s role in a financial or other type of

“transaction.” Baltimore City Pass. Ry. Co. v. Knee, 83 Md. 77, 78-79 (1896). Put another

way, these cases stand for the proposition that Rule 5-802.1(b) is not an avenue for the

admission of a witness’s consistent out-of-court statement unless the statement is introduced

to rebut an impeachment based upon a specific event which is the source of the witness’s

motivation to fabricate. See, e.g., Thomas, 429 Md. at 104; Knee, 83 Md. at 78-79; Cole, 83

Md. App. at 300.

That such a factual predicate is necessary before invocation of Rule 5–802.1(b) is

consistent with the landmark Supreme Court decision on this subject. In Tome v. United

States, 513 U.S. 150 (1995), the Supreme Court observed:

Impeachment by charging that the testimony is a recent fabrication or results
from an improper influence or motive is . . . capable of direct and forceful
refutation through introduction of out-of-court consistent statements that
predate the alleged fabrication, influence, or motive. A consistent statement
that predates the motive is a square rebuttal of the charge that the testimony
was contrived as a consequence of that motive.

513 U.S. at 157-58 (interpreting Federal Rule of Evidence 801(d)(1)(B)); see also, Holmes,

350 Md. at 419 (quoting and adopting this reasoning, and applying it to Md. Rule

5–802.1(b)).

Tome provides an apt illustration of these principles. The issue in Tome was “whether

out-of-court consistent statements made after the alleged fabrication, or after the alleged

15
improper influence or motive arose, are admissible under [Fed. Rule Evid. 801(d)(1)(B)].”11

513 U.S. at 152. At trial, Tome—the father of the victim—contended that she had

“concocted” the abuse allegations in order to effectuate a change in custody to her mother.

(Tome and the victim’s mother had divorced approximately two years prior, and Tome had

been awarded primary physical custody of the victim in that proceeding). Id. at 153. The

prosecution, in support of its case, presented several witnesses who recounted prior

consistent statements made by the victim about the abuse. Id. at 154. There was no dispute

that the out-of-court statements had been made after the specific event which had allegedly

motivated the victim to fabricate her allegations—namely, the change in the victim’s custody

arrangement following her parents’ divorce. Id. at 154-55. In its analysis, the Supreme Court

emphasized that the victim’s prior consistent statements had been made after she had been

placed in Tome’s custody. Id. at 153-55, 57-58. The Court concluded that admission of the

11
Fed. Rule Evid. 801(d)(1)(B) provides:

d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies
and is subject to cross-examination about a prior statement, and the
statement:
***
(B) is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive
in so testifying[.]

Rule 5-802.1(b) was derived, in part, from Federal Rule of Evidence 801(d)(1). See Holmes,
350 Md. at 418.

16
out-of-court statements as substantive evidence violated Rule 801(d)(1)(B)’s temporal

restriction—i.e., failed to rebut the impeachment because they had been made after the

motivating event had occurred—and reversed and remanded the case for further

proceedings. Id. at 165-67.

In Cole, supra, this Court applied similar reasoning in a sex offense case relying on

Maryland’s evidentiary rules as they existed under the common law (the Maryland Rules of

Evidence did not take effect until July 1, 1994). At trial, defense counsel attempted to

impeach the victim’s credibility by asserting that she was cognitively impaired and had “a

tendency to exaggerate in order to attract attention.” 83 Md. App. at 301. This impeachment

was based on the testimony of a social worker who had interviewed the victim about prior

complaints of sexual assault. He testified that the victim had cognitive disabilities and had

made statements during the course of the prior interviews that he did not find to be accurate.

Id. at 285. To rebut this impeachment, the prosecutor elicited from two witnesses testimony

about prior consistent statements made by the victim concerning the alleged abuse. Id. We

concluded that the statements violated the common law’s temporal restriction. Id. at 302. In

so concluding, we explained that:

[t]he problem with the attempted rehabilitation was that [the victim’s]
conditions and tendencies preceded [her prior] complaints [of abuse]. The
developing of these conditions and tendencies was not an intervening event
between [her] complaints [of abuse] and [her] trial testimony. The consistency
of [the victim’s] reports and [her] testimony under this sequencing did not
rehabilitate her testimonial credibility.

Id. at 301-02.

17
 IV. Acker’s Three Theories of Impeachment

As noted above, defense counsel alleged three distinct theories of impeachment

against K. in his opening statement. First, defense counsel argued that K. was motivated to

testify falsely about Acker because of his involvement in a lawsuit against Amy R., a family

friend of K.’s. Second, counsel maintained that K. was unworthy of belief because she was

“starved for attention.” Finally, defense counsel contended that K. was acting in concert with

Melissa, her mother, to punish Acker because he had spurned Melissa’s romantic overtures

years previously. We will discuss each of these theories of impeachment in turn.

(1) The Lawsuit with Amy R.

In opening statement (and periodically referenced throughout the trial), defense

counsel asserted that K. was motivated to fabricate her abuse story as a result of Amy R.’s

ongoing lawsuit with Acker over a real estate transaction. Acker testified that his dispute

with Amy R. arose after he sold her a house, which, according to Acker, occurred

approximately one year prior to his criminal trial. In our view, this impeachment was

“capable of direct and forceful refutation through introduction of out-of-court consistent

statements that predate the alleged fabrication, influence, or motive.” Tome, 513 U.S. at 157-

58. Because “[t]he timing of the alleged fabrication is crucial . . . the trial court’s focus

should be on when the prior consistent statements arose.” Thomas, 429 Md. at 104.

Although the record does not disclose the precise date the civil suit was filed, the trial

transcript is sufficiently clear that the lawsuit commenced in either 2009 or 2010, upwards

18
of five years after K. disclosed the alleged abuse to Michael S., Melissa, and Charlene C. in

2004 or 2005.

Had Acker asserted only this theory of impeachment, Thomas would not bar

admission of the prior statements because the event that allegedly motivated K. to fabricate

her testimony occurred after K. made the out-of-court statements. 429 Md. at 104.

(2) K. Was “Starved for Attention”

In his opening statement, Acker’s counsel asserted that K. was not credible because

she was “starved for attention.” To this Court, he argues:

[s]imilar to the defense in Thomas that alleged the declarant had a motive to
fabricate throughout due to his having been stopped by police in possession
of illegal drugs, here, the defense alleged the victim had a motive to fabricate
throughout: her desire to seek attention. That motive never disappeared and
any of the statements she made that were admitted at trial all occurred when
the motive existed. Under Thomas, that she may have later developed an
additional motive, the same way the declarant in Thomas developed an
additional motive when he incurred the unauthorized [vehicle] use charge,
does not make her statements inadmissible. It is immaterial that the victim in
this case may have had more than one motive to fabricate her testimony so
long as she had any motive to fabricate at the time the statements were made.

We are not persuaded that Acker’s analogy to Thomas is valid.

The record contains no specific assertions about, much less evidence of, any

emotional or psychological abnormality on K.’s part. Instead, Acker argued that K.’s 2010

report of the alleged abuse to the police showed that she was, in his counsel’s word’s,

“starved for attention.”12 This entirely circular reasoning does not, in our view, establish a

12
K. testified that she called the police when she learned that her mother had failed
(continued...)

19
“fact which would motivate bias, interest, or corruption on the part of the witness . . . .”

Thomas, 429 Md. 104. Moreover, Acker’s argument is based on the unspoken, but necessary,

premise that any victim who reports a crime to the police is thereafter motivated to fabricate.

There is no basis, either in law or logic, for such a conclusion. Finally, accepting Acker’s

argument for purposes of analysis, it at best suggested that K. had a motive to fabricate when

she called the police in 2010. This is a far cry from establishing that she had that same motive

years earlier, when she made the statements to her two friends and her mother.

We conclude that reporting a crime, by itself, is not an event that “ would motivate

bias . . . . on the part of the witness,” Thomas, 429 Md. 104, nor is it the type of

circumstance that might logically give rise to a “‘plan or contrivance to give false

testimony[.]’” Cole, 83 Md. App. at 301 (quoting MCCORMICK ON EVIDENCE § 49)). In other

words, for the purposes of Thomas’s temporal relationship test, reporting an alleged crime

to the police is simply a non-event that does not require a trial court to apply the Thomas test

before deciding whether to admit a prior statement through Rule 5-802.1(b).

Acker’s attempt to characterize K.’s calls to the police as demonstrating a character

abnormality does not change the result. Were we to agree with Acker, any trial counsel who

was planning to impeach a victim in a criminal trial based on a motive to fabricate arising out

of a specific event could foreclose the admission of prior consistent statements pursuant to

12
(...continued)
to take any action in response to K.’s earlier disclosures of abuse. This is not a basis to
conclude that she was starved for attention.

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Rule 5-802.1(b) simply by asserting, as was done in this case, that a witness possesses certain

natural and inherent human traits or desires, such as wanting attention from his or her mother.

A single sentence in an opening statement would render Rule 5–802.1(b) a dead letter.

(3) The Rebuffed Overtures

Defense counsel contended at trial that K. was motivated to lie about the alleged

abuse because her mother felt “jilted” by Acker’s refusal of her romantic advances. There

is an obvious weakness—whether or not Melissa resented Acker’s alleged rebuff, the

witness whom Acker sought to impeach was K. For the following reasons, we believe that

this impeachment is irrelevant for a Thomas analysis.

There was conflicting evidence presented at trial as to Melissa’s relationship with

Acker. He testified that he had refused what he perceived to be Melissa’s romantic gestures

toward him by writing a “it’s me, not you breakup letter,” which, according to him, he sent

to Melissa sometime during the latter part of June 2005.13 Melissa, on the other hand,

testified that she never made any romantic gestures toward Acker, that she was never

romantically interested in him, and that the letter sent by Acker was an apology for his

actions toward K. Melissa testified that she stopped talking to and socializing with Acker

from June 2005 onward, that is, after K. told her that Acker had abused her. Melissa further

testified that, during the weeks that followed, Acker tried multiple times to contact the family

via telephone and internet, until finally opting to mail the handwritten apology letter.

13
This letter was not introduced at trial. The evidence indicated that Melissa lost or
destroyed it at an undetermined time after receiving it.

21
 All of this provides a basis for an impeachment of Melissa’s credibility but Rule 5-

802.1(b) indicates that the alleged motive to fabricate must belong to the declarant, and not

some other person. Thomas makes it clear that, when a witness’s motive to lie could stem

from more than one event, the witness’s prior consistent statements are admissible under the

rule only if they were made prior to all of the events that could have given rise to the motive

to fabricate. 429 Md. at 106-07. Thus, the relevant event for purposes of a Thomas analysis

is not when Acker allegedly rebuffed Melissa’s advances, but when Melissa allegedly

informed K. of the rebuff.

Under Thomas, Acker’s third theory of impeachment would preclude admission of

K.’s prior statements to rebut the Amy R. impeachment only if something like the following

sequence of events was presented to the jury either by opening statement, cross-examination,

or evidence: (1) Melissa made romantic overtures to Acker in 2005; (2) he rejected them; (3)

Melissa told K., then aged ten, of the first two events; (4) K. developed a resentment of

Acker because he refused to engage in an illicit relationship with her mother and thus formed

a motive to lie; and (5) acting on this motive, K. told her mother and two friends that she had

been abused but waited five years before calling the police. Perhaps wisely, Acker’s counsel

made no attempt at trial to elicit information from K. or any other witness pertaining to steps

(3) through (5). At no point during the trial did Acker identify any fact or event that

supported his contention that Melissa, angry at being rejected by Acker, confided in her ten

year old daughter. We conclude that because of its utterly illogical nature, Acker’s third

22
theory of impeachment does not constitute “the existence of any fact which would motivate

bias, interest, or corruption on the part of [K.]” Thomas, 429 Md. at 104.

V. Hajireen v. State

We turn, finally, to Hajireen v. State. In that case, the defendant was accused of

sexually assaulting an eight-year-old girl. Defense counsel suggested to the jury (as

summarized by this Court) that the girl “was making up stories” and “made up the entire

incident, from the beginning when she told her mother.” 203 Md. App. at 554. The trial court

permitted the State to introduce evidence of prior statements made by the victim under two

theories, first, that the statements “were offered to rebut an express . . . charge . . . of

fabrication . . . .” (Rule 5-802.1(b)); and, second, that the prior statements were rehabilitative

under Rule 5-616(c)(2).14 We held that the child’s “subsequent statements to the social

worker were not made prior to the time the alleged, but unexplained, bias originated” and

that, “[b]ecause her statements were not made ‘premotive,’ they were not admissible pursuant

to Rule 5-802.1.” Id. at 554. We explained:

the trial court found that J. M.’s prior statements to the social worker were
admissible pursuant to Rule 5–802.1 because defense counsel suggested to the
jury that J. M. was making up stories, and therefore, the evidence was

14
Rule 5-616 states in pertinent part:

(c) Rehabilitation. A witness whose credibility has been attacked may be
rehabilitated by:
****
(2) Except as provided by statute, evidence of the witness’s prior statements
that are consistent with the witness’s present testimony, when their having
been made detracts from the impeachment[.]
23
 “admissible to rebut an implied or express charge of fabrication.” Defense
counsel’s argument, however, was that, for reasons unknown, J. M. made up
the entire incident, from the beginning when she told her mother. J. M.’s
subsequent statements to the social worker, therefore, were not made prior to
the time the alleged, but unexplained, bias originated

Id.15

Acker contends that Hajireen establishes that the trial court erred in admitting K.’s

prior consistent statements into evidence. We disagree.

In Hajireen, the defendant presented only one theory of impeachment. Thus, in that

case, we did not reach the question squarely before us here: whether Rule 5-802.1(b)’s

temporal restriction acts to bar the admission of prior consistent statements otherwise

properly admissible under the rule because defense counsel also alleged additional theories

of impeachment that were based solely on bald and conclusory statements by counsel and that

had no logical or factual relationship to the evidence presented to the jury. We answer that

question in the negative.

THE JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY
COUNTY ARE AFFIRMED. APPELLANT TO PAY COSTS.

15
In Hajireen, although we addressed and rejected the State’s contention that the prior
consistent statements at issue were admissible pursuant to Rule 5-802.1(b), we focused our
analysis on the question whether the statements were alternatively admissible under Rule 5-
616(c)(2). We concluded that they were not. See 203 Md. App. at 554-558.

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