Thompson v. State

Dissenting Opinion by GREENE, Judge, which BELL, C.J., and ELDRIDGE, J., Join.

I respectfully dissent. Although I agree with the majority’s conclusion that the amendment of the charges did not change the character of the offenses charged, I disagree with the majority’s conclusion that the evidence of Thompson’s uncharged juvenile conduct was properly admitted into evidence during his criminal prosecution for other crimes. I would hold that evidence, of such acts, is not admissible to the extent that evidence of adjudicated acts committed by a juvenile is not admissible in subsequent criminal proceedings under the Juve*520nile Causes Act, McLCode (1973, 2006 RepLVol.), § 3-8A-01 et seq. of the Courts & Judicial Proceedings Article.

I.

Karl Thompson, the petitioner, was charged in the Circuit Court for Baltimore City with multiple sexual offenses allegedly committed against Kassandra Timm between the years 1983 and 1986. At Thompson’s trial, over defense counsel’s objection, the court permitted the prosecutor to present evidence of uncharged sexual offenses that Thompson allegedly committed against Ms. Timm in the summer of 1978, when Ms. Timm was age five and Thompson was age 14. The Circuit Court reasoned that evidence of the 1978 incident was admissible under Md. Rule 5-404(b) to prove motive, opportunity, intent, or common scheme.

Ms. Timm testified that Thompson sexuálly abused her at her grandparents’ home in 1978. She stated, in pertinent part:

I woke up to [Thompson] touching me between my legs with his hands and with his penis. It hurt. I started to whimper a little bit and I said to him that I need to go to the bathroom. I didn’t need to go to the bathroom. I just wanted to remove myself from the room. I went into the bathroom' and ... sat on the toilet. I remember ... my feet didn’t touch the floor.
And I left the bathroom, I went into my aunt’s room ... a different bedroom and I just laid on her floor. And then he came into the room after and asked why I didn’t come back. I didn’t answer and he climbed into my aunt’s bed....

Ms. Timm also testified about four incidents that occurred after 1978. Regarding an incident that occurred in 1983, she testified:

My mother and I drove to Maryland ... to visit. The whole family was there, I remember a very full house ... we slept in [Thompson’s] room.... And there were a lot of other people in the room....
*521Everyone was going to sleep and [Thompson] kept saying my mother’s name, Linda, are you asleep? ... And when she stopped answering] he came and he, he touched me with his hands between my legs. He molested me.... I mean he was touching me in my vagina with his hands. He was inserting his fingers between my legs.

Ms. Timm testified that, in 1986, during her Thanksgiving school break, she visited Thompson at his apartment in Baltimore. Ms. Timm stated that before Thompson left for work one day, Thompson told her that she could sleep in his bed with his girlfriend, Stephanie Perry. Ms. Timm stated that she awoke that night to find “[Thompson’s] penis inside of [her].” On July 11, 2006, the jury rendered several guilty verdicts. With respect to the incident occurring in 1983, the jury found Thompson guilty of third-degree and fourth-degree sex offenses; the jury also found the petitioner guilty of second-degree rape, third-degree and fourth-degree sexual offenses, as well as second-degree assault, for the incident in 1986. The court sentenced Thompson to 20 years incarceration.

Thompson appealed his convictions to the Court of Special Appeals, which affirmed the judgments entered below. Thompson v. State, 181 Md.App. 74, 955 A.2d 802 (2008). The intermediate appellate court held that the 1978 incident was admissible into evidence pursuant to Maryland Rule 5~404(b). In so holding, the Court of Special Appeals rejected Thompson’s argument that § 3-8A-23 of the Courts & Judicial Proceedings Article applies to unadjudicated acts. The intermediate appellate court noted that interpreting § 3-8A-23 to bar the admissibility of unadjudicated conduct in subsequent criminal proceedings conflicts with the basic cannon of statutory construction that “a court may neither add nor delete language” of a statute. Thompson, 181 Md.App. at 86-87, 955 A.2d at 810 (quoting Price v. State, 378 Md. 378, 387, 835 A.2d 1221 (2003)).

II.

In Maryland, evidence of other crimes, wrongs, or acts committed by a defendant is generally not admissible in *522criminal proceedings. Title 5 of the Maryland Rules of Evidence, Rule 5-404(b) thus provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.
The General Assembly has deemed certain acts to be exempt from Rule 5-404(b)’s purview altogether. Under the Juvenile Causes Act, §§ 3-8A-01 et seq. of the Courts & Judicial Proceedings Article, prior adjudications or dispositions of juveniles, as well as any evidence introduced therein, may not generally be admitted into evidence in subsequent criminal proceedings. The applicable provision reads, in pertinent part:
§ 3-8A-23. Effect of proceedings under subtitle.
(b) Adjudication and disposition not admissible as evidence.—An adjudication and disposition of a child pursuant to this subtitle are not admissible as evidence against the child:
(1) In any criminal proceeding prior to conviction; or
(2) 'In any adjudicatory hearing on a petition alleging delinquency; or
(3) In any civil proceeding not conducted under this subtitle.
(c) Evidence given in proceeding under this subtitle inadmissible in criminal proceeding.—Evidence given in a proceeding under this subtitle is not admissible against the child in any other proceeding in another court, except in a criminal proceeding where the child is charged with perjury and the evidence is relevant to that charge and is otherwise admissible.

Section 3-8A-23 of the Courts & Judicial Proceedings Article is one part of a comprehensive Juvenile Causes Act, an act that establishes “a separate system of courts, procedure and method of treatment for juveniles.” In re Victor B., 336 Md. *52385, 94, 646 A.2d 1012, 1016 (1994). We have explained that “[t]he raison d’etre of the Juvenile Causes Act is that a child does not commit a crime when he commits a delinquent act and therefore is not a criminal.” In re Darryl D., 308 Md. 475, 481, 520 A.2d 712, 715 (1987) (quoting Matter of Davis, 17 Md.App. 98, 104, 299 A.2d 856, 860 (1973)); see also Moore v. Miley, 372 Md. 663, 673-74, 814 A.2d 557, 563 (2003) (“ ‘[T]he keystone of Maryland’s disposition of juvenile delinquents is that ‘the moral responsibility or blameworthiness of the child [is] of no consequence,’ such that delinquency adjudication is seen as the opportunity for the State to provide needed rehabilitative intervention.” (quoting Victor B., 336 Md. at 91-92, 646 A.2d at 1015)). Accordingly, “[j]uvenile proceedings are governed by a separate, pervasive scheme of specific statutes and rules developed by the Maryland General Assembly and the Court of Appeals.” Victor B., 336 Md. at 96, 646 A.2d at 1017.

Section 3-8A-02 of the Courts and Judicial Proceedings Article lists the purposes of the relevant subtitle of the Juvenile Causes Act. Those purposes are:

(1) To ensure that the Juvenile Justice System balances the following objectives for children who have committed delinquent acts:[1]
(i) Public safety and the protection of the community;
(ii) Accountability of the child to the victim and the community for offenses committed; and
(iii) Competency and character development to assist children in becoming responsible and productive members of society;
*524(2) To hold parents of children found to be delinquent responsible for the child’s behavior and accountable to the victim and the community;
(3) To hold parents of children found to be delinquent or in need of supervision responsible, where possible, for remedying the circumstances that required the court’s intervention;
(4) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest;
(5) To conserve and strengthen the child’s family ties and to separate a child from his parents only when necessary for his welfare or in the interest of public safety;
(6) If necessary to remove a child from his home, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents;
(7) To provide to children in State care and custody:
(i) A safe, humane, and caring environment; and
(ii) Access to required services; and
(8) To provide judicial procedures for carrying out the provisions of this subtitle.

§ 3-8A-02(a) of the Courts & Judicial Proceedings Article. This section also states that this subtitle, of which § 3-8A-23 is a part, “shall be liberally construed to effectuate these purposes.” § 3-8A-02(b) of the Courts & Judicial Proceedings Article; see also In re Leslie M., 305 Md. 477, 482, 505 A.2d 504, 507 (1986) (rejecting a “restrictive” reading of former Maryland Rule 916 due to the “liberal statutory construction” required by the Juvenile Causes Act).

In the case sub judice, Thompson contends that the Circuit Court erred in admitting into evidence testimony concerning the uncharged 1978 incident, which occurred when Thompson was 14 years old. According to Thompson, Md. Rule 5^404(b) must be read in light of the policy underlying the Juvenile *525Causes Act, and that, under such a construction, evidence of unadjudicated juvenile acts is not admissible in subsequent criminal proceedings as a matter of law. The State argues to the contrary, maintaining that the Circuit Court acted within its discretion in admitting into evidence the acts committed by Thompson when he was a juvenile. The majority concludes that § 3-8A-23 does not apply to testimony presented by the State in the prosecution of Thompson for criminal offenses because the evidence was admissible under Md. Rule 5-404(b) and had never been “given” in a juvenile proceeding. I disagree with that holding primarily because of the statutory mandate that § 3-8A-23 should be construed liberally.

First, the determination of whether there exists an exception to Md. Rule 5-404(b) is a matter of law not within the trial judge’s discretion. Faulkner, 314 Md. at 634, 552 A.2d at 898. Similarly, the determination of whether an act is exempt from the purview of Rule 5-404(b) is a questions of law and not a matter of discretion. See Figgins v. Cochrane, 403 Md. 392, 942 A.2d 736 (2008) (explaining that we review the determination of whether evidence must be excluded as a matter of law) (quoting Hall v. Univ. of Md. Med. Sys. Corp., 398 Md. 67, 82-83, 919 A.2d 1177, 1186 (2007)).

Because the determination that the existence of an exemption to Md. Rule 5-404(b) is a legal determination, we should consider whether the trial judge erred in admitting into evidence testimony about the alleged sexual assault by Thompson in 1978. As explained, Thompson argues that § 3-8A-23 of the Courts and Proceedings Article provides the applicable evidentiary exemption. We should therefore interpret the language of that statute to determine whether it does, in fact, apply to the testimony at issue in this case. In considering the Juvenile Causes Act, we construe this statutory language liberally to effectuate the purposes of the Act. § 3-8A-02(b) of the Courts and Proceedings Article. With that requirement in mind, our goal is to “identify and effectuate the legislative intent underlying the statute(s) at issue.” Serio v. Baltimore County, 384 Md. 373, 863 A.2d 952, 962 (2004) (quoting Drew v. First Guaranty Mortgage Corp., 379 *526Md. 318, 327, 842 A.2d 1, 6 (2003)). The statute’s plain language is the best source of legislative intent, and that language guides our understanding of this intent, but we do not read the plain language of a statute in a vacuum. Serio, 384 Md. at 373, 863 A.2d at 962 (citing Drew, 379 Md. at 327, 842 A.2d at 6; Derry v. State, 358 Md. 325, 336, 748 A.2d 478, 483-84 (2000)). We should instead “read the statutory language within the context of the statutory scheme, considering the ‘purpose, aim, or policy of the enacting body.’ ” Serio, 384 Md. at 373, 863 A.2d at 962 (quoting Drew, 379 Md. at 327, 842 A.2d at 6; citing Beyer v. Morgan State Univ., 369 Md: 335, 350, 800 A.2d 707, 715 (2002); In re Mark M., 365 Md. 687, 711, 782 A.2d 332, 346 (2001)). As we have stated,

when we pursue the context of statutory language, we are not limited to the words of the statute as they are printed---- We may and often must consider other “external manifestations” or “persuasive evidence,” including a bill’s title and function paragraphs ... and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.

Williams v. Mayor and City Council of Baltimore, 359 Md. 101, 116, 753 A.2d 41, 49 (2000) (quoting Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628, 632-33 (1987)).

With these rules guiding my analysis, I interpret the statute at hand differently than the majority. In my view, if Thompson’s juvenile conduct had been adjudicated in a juvenile proceeding, § 3-8A-23 of the Juvenile Causes Act would have precluded admission of the adjudication into evidence, as well as any evidence given in the juvenile proceeding from admission in the criminal proceedings below. Indeéd, it is clear that the Legislature intended for juvenile adjudications of delinquent acts to be wholly separate from the criminal justice system. § 3-8A-23(a) of the Courts & Judicial Proceedings Article (“An adjudication of a child pursuant to this subtitle is not a criminal conviction for any purpose and does not impose any of the civil disabilities ordinarily imposed by a criminal *527conviction.”); see also Md.Code C.J. § 3-8A-01(£) (defining a delinquent act as an act that “would be a crime if committed by an adult”); In re Alexander, 16 Md.App. 416, 420, 297 A.2d 301, 303 (1972) (“We hold that it was the plain legislative intent that a finding of delinquency in a juvenile court should not be equated in any way with a conviction for crime.”).

The fact that § 3-8A-23 of the Juvenile Causes Act uses the terms “adjudicate” and “disposition,” however, does not mean that unadjudicated conduct is excluded from the prohibition’s purview. Construing § 3-8A-23 to apply only to juvenile adjudications is inconsistent with the “legislative purpose or goal” underlying the Juvenile Causes Act, see Williams, 359 Md. at 116, 753 A.2d at 49, and it contradicts the basic cannon of statutory interpretation that a court should “avoid a construction of [a] statute that is unreasonable, illogical, or inconsistent with common sense,’ ” Walzer v. Osborne, 395 Md. 563, 573, 911 A.2d 427, 432 (2006) (quoting Blake v. State, 395 Md. 213, 224, 909 A.2d 1020, 1026 (2006)). For a juvenile to be found involved and adjudicated delinquent in a juvenile proceeding the State must prove, beyond a reasonable doubt, the conduct giving rise to the juvenile act. Md.Code (1973, 2006 RepLVol.), § 3-8A-18(c) of the Courts & Judicial Proceedings Article. Under Rule 5-404(b), however, the State is only required to prove the conduct classified as a crime, wrong, or bad act by a lesser standard, clear and convincing evidence. Faulkner, 314 Md. at 634, 552 A.2d at 898. Considering the lower standard of proof under 5-404(b), it would be unreasonable to construe the Juvenile Causes Act as merely precluding the admission of adjudicated juvenile conduct in a subsequent criminal proceeding. Under such a construction, the State could decline to have a juvenile’s conduct adjudicated before the juvenile reached age 18, but then introduce that same conduct in a criminal proceeding after the juvenile has turned age 18 or older. The State would then only need to prove the juvenile conduct by clear and convincing evidence, a lesser standard than the Legislature has expressly required for establishing a juvenile delinquent act. See § 3-8A-18(c)(i) of the Courts & Judicial Proceedings Article (adopting the stan*528dard of reasonable doubt to prove that a juvenile committed a delinquent act); In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970) (acknowledging that reasonable doubt is a constitutional safeguard applicable to the adjudicatory stage of a delinquency proceeding).

This interpretation of § 3-8A-23 is untenable. Such an interpretation would allow the State to use Rule 5-404(b) as a way of keeping juveniles out of the juvenile justice system, thereby allowing the State to defeat the Legislature’s intent in creating a separate system for the adjudication of juveniles. The explicit purposes underlying the Juvenile Causes Act include rehabilitating and protecting juveniles, developing juveniles’ competency and character, holding parents accountable, and strengthening family ties. § 3-8A-02(a) of the Courts & Judicial Proceedings Article. We, therefore, should liberally construe the provisions of the Juvenile Causes Act, including § 3-8A-23, to effectuate these purposes. § 3-8A-02(b) of the Courts & Judicial Proceedings Article. The juvenile justice system cannot achieve any of these purposes if the State diverts juveniles from that system when they commit delinquent acts. Accordingly, we should construe § 3-8A-23 in a way that ensures that the State will direct juveniles to the juvenile justice system when appropriate. By construing the statute to make inadmissible, in a criminal court, evidence of unadjudicated delinquent acts to the same extent as adjudicated delinquent acts, we would ensure that the State cannot bring these acts to the attention of a criminal court when the appropriate venue was the juvenile justice system. Any other interpretation would permit a subversion of the juvenile justices system and thereby eviscerate the Juvenile Causes Act.

Second, the majority’s and the State’s interpretation of § 3-8A-23 of the Courts & Judicial Proceedings Article contradicts another basic cannon of statutory interpretation: that “[w]hen construing a provision that is part of a single statutory scheme, the legislative intent must be gathered from the entire statute, rather than from only one part.” Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474 (1988). Each provision of the Juvenile Causes Act therefore “must be *529harmonized both with its immediate context and with the larger context of the entire Juvenile Causes Act.” Jones, 311 Md. at 405, 535 A.2d at 475 (1988). With the Juvenile Causes Act, the Legislature set forth a statutory scheme that dictates that juvenile acts should be considered by particular courts. For example, the Legislature has decided that the Juvenile Court lacks original jurisdiction in some circumstances. § 3-8A-03(d) of the Courts & Judicial Proceedings Article. In addition, the Legislature has identified certain circumstances where the Juvenile Court may waive jurisdiction in favor of a criminal court. § 3-8A-06 of the Courts & Judicial Proceedings Article. The Legislature has also created a procedure by which a criminal court may transfer some cases to the Juvenile Court, after considering a variety of specified factors. § 3-8A-03(d)(l),(4),(5) of the Courts & Judicial Proceedings Article; see also Md.Code (1974, 2008 RepLVol.), § 4-202 of the Criminal Procedures Article (providing factors the criminal court must consider in transferring cases to the Juvenile Court). These provisions of the Juvenile Causes Act set forth the limited circumstances where juvenile conduct may come before a criminal court, and we should construe § 3-8A-23 to prohibit the State from creating an additional method for doing so.

Indeed, we have previously said that the lower courts must adhere to the waiver and jurisdiction provisions of the Juvenile Causes Act in regard to delinquent acts committed by individuals who have subsequently reached adulthood. In In re Appeals No. 1022 & No. 1081, 278 Md. 174, 176, 359 A.2d 556, 558 (1976), the Juvenile Court had determined that waiver was not warranted in regard to a case involving an adult who had committed a delinquent act while still a juvenile. The court then dismissed the case for lack of jurisdiction over the adult, pursuant to the statute that is now codified as § 3-8A-07(e) of the Courts and Proceedings Act. Id. On appeal, we agreed with the Juvenile Court and rejected the State’s argument that waiver was mandatory in such a case. In re Appeals, 278 Md. 174, 178-79, 359 A.2d 556, 559-60. We held instead that a waiver hearing must be conducted before a *530criminal court may consider a delinquent act, even if the person who committed the act subsequently reached adulthood. In re Appeals, 278 Md. at 178-79, 359 A.2d at 559-60. In other words, absent a waiver hearing and determination that jurisdiction over an adult who allegedly committed a delinquent act as a juvenile should be waived, a criminal court cannot consider the alleged delinquent act. Relying on In re Appeals, recently the Court of Special Appeals reached the same conclusion in a similar case. In re Saifu K., 187 Md.App. 395, 978 A.2d 881 (2009) (rejecting the State’s argument that the Juvenile Court was required to waive its jurisdiction when the defendant had allegedly committed a delinquent act at age 14, but a petition was not served on him until he had reached age 21). In the case sub judice, I would similarly construe § 3-8A-23 to ensure that criminal courts do not consider delinquent acts absent adherence to the waiver and jurisdiction procedures of the Juvenile Causes Act.

Third, we should liberally construe § 3-8A-23 of the Courts & Judicial Proceedings Article “reasonably with reference to its purpose, aim, [and] policy.” In re Keith G., 325 Md. 538, 542, 601 A.2d 1107, 1109 (1992). As the foregoing makes clear, the General Assembly’s aim, in enacting the Juvenile Causes Act, was for juvenile acts, in most instances, to be wholly separate from the criminal justice system. Moreover, the well-established purpose underlying the Juvenile Causes Act is to rehabilitate juvenile offenders. See, e, g., In re Julianna B., 179 Md.App. 512, 574, 947 A.2d 90, 126-27 (2008) (“[The appellate courts] have repeatedly noted that the Legislature intended the juvenile justice system to be ‘guided generally by principles of protection and rehabilitation of the individual rather than a societal goal of retribution and punishment.’ ”) (quoting Smith v. State, 399 Md. 565, 580, 924 A.2d 1175 (2007)), vacated on other grounds, 407 Md. 657, 967 A.2d 776 (2009); Lopez-Sanchez v. State, 155 Md.App. 580, 598, 843 A.2d 915 (2004) (“The General Assembly enacted the Juvenile Causes Act ... to advance its purpose of rehabilitating the juveniles who have transgressed____”). That § 3-8A-23 of the Courts & Judicial Proceedings Article effectively prevents *531a prosecutor from using a juvenile’s adjudicated delinquent acts against him in a later criminal proceeding is indeed evident of the General Assembly’s broad policy of distinguishing between juvenile transgressions and those acts that should be brought before the criminal justice system.

From the exclusion of charged juvenile conduct in subsequent criminal proceedings pursuant to § 3-8A-23 of the Courts & Judicial Proceedings Article, it necessarily follows that the Legislature intended to grant the same protections to uncharged juvenile conduct. It is plainly inconsistent with the underlying policy and overall scheme of the Juvenile Causes Act to admit as evidence, in a criminal case, the unadjudicated delinquent acts of a juvenile when those same acts, if determined by the Juvenile Court to have been delinquent, would not have been admitted as evidence in a criminal case. Accordingly, there is no sound justification for distinguishing between the unadjudicated delinquent acts of a juvenile offender and the adjudicated delinquent acts of a juvenile offender for purposes of the admissibility of evidence in a criminal case. Both acts are not admissible into evidence in a criminal case. Therefore, I would hold that, under Maryland law, juvenile acts are not legislatively deemed to be “crimes, wrongs, or acts” within the meaning of Rule 5^104(b), because the General Assembly has determined that the acts are irrelevant in a criminal prosecution.

In holding that evidence of unadjudicated juvenile conduct is inadmissible in subsequent criminal proceedings to the extent that adjudicated conduct is precluded pursuant to § 3-8A-23 of the Courts & Judicial Proceedings Article, such a holding would be consistent with the concerns expressed by the court in State v. Dixon, 656 S.W.2d 49 (Tenn.Crim.App.1983). In Dixon, the Criminal Court of Appeals of Tennessee rejected the prosecution’s argument that “bad acts” of a juvenile were distinguishable from juvenile adjudications. Dixon, 656 S.W.2d at 52. Although the court found that the admission of juvenile acts was harmless error, it noted that allowing the juvenile “bad acts” into evidence would enable the State to *532circumvent Federal Rule of Evidence 609(d).2 Dixon, 656 S.W.2d at 52. Like § 3-8A-23 of the Courts & Judicial Proceedings Article, Federal Rule of Evidence 609(d) limits the admissibility of juvenile adjudications as evidence in subsequent proceedings. I agree that allowing evidence of uncharged juvenile conduct would open the door for some prosecutors to elude the juvenile court system by choosing to not charge juvenile acts in order to admit evidence of the acts in a later criminal court proceeding. This would enable some prosecutors to bypass the clear prohibition against the admission of juvenile adjudications and dispositions in subsequent criminal proceedings, as well as the clear prohibition against the admission of evidence given in juvenile proceedings, contained in § 3-8A-23 of the Courts & Judicial Proceedings Article and would undermine the State’s policy of protecting juveniles.

The State is correct in pointing out that § 3-8A-23 of the Courts & Judicial Proceedings Article does not expressly mention unadjudicated juvenile acts; however, both the State and the majority place less significance on the purpose of the Juvenile Causes Act and § 3-8A-23’s function within it. The Juvenile Causes Act created Maryland’s juvenile court system and process for dealing with juvenile offenders. Lopez-Sanchez, 155 Md.App. at 600, 843 A.2d at 927 (“The separate system of courts created by the Juvenile Causes Act to address the problems of juvenile offenders are governed by their own procedures, as set forth in CJ section 3-8A-01, et seq”). Section 3-8A-23 is a subsection within the Juvenile Causes Act entitled “Effect of proceedings under subtitle” that specifically addresses the effect of juvenile adjudications *533and proceedings3 arising under the Juvenile Causes Act. That § 3-8A-23 does not explicitly reference unadjudicated juvenile conduct does not change the clear legislative policy of protecting or insulating juveniles from the criminal justice system unless or until waived from the juvenile processes. Moreover, this Court’s focus should not be only on the language of the statute but on the underlying legislative intent to separate juveniles and juvenile acts from the criminal justice system.

After holding that the 1978 incident was properly admitted into evidence and that § 3-8A-23 of the Courts & Judicial Proceedings Article did not include unadjudicated juvenile acts, the intermediate appellate court noted that it “decline[d] to construe ... § 3-8A-23 so that it prohibits the introduction of the very evidence that the Court of Appeals has declared to be of “special relevance in a sex crime involving the same perpetrator, victim, and criminal conduct.” Thompson, 181 Md.App. at 87, 955 A.2d at 810. The majority adopts this position. I do not find that concern compelling or consistent with the underlying policy of the Juvenile Causes Act. Maryland courts recognize a special “sexual propensity” exception to Rule 5-404(b). Adopted by this Court in Vogel v. State, 315 *534Md. 458, 554 A.2d 1231 (1989), the “sexual propensity” exception allows prosecutors in sex crime cases to admit into evidence “prior illicit sexual acts [which] are similar to the offense for which the accused is being tried and involve the same victim.” Vogel, 315 Md. at 466, 554 A.2d at 1234. In Acuna v. State, 332 Md. 65, 629 A.2d 1233 (1993), this Court elaborated on the sexual propensity exception stating that:

The primary policy consideration underlying the rule against other crimes evidence “is that this type of evidence will prejudice the jury against the accused because of the jury’s tendency to infer that the accused is a ‘bad man’ who should be punished regardless of his guilt of the charged crime, or to infer that he committed the charged crime due to a criminal disposition.” Yet, in the area of sex crimes, particularly child molestation, “courts have been likely to admit proof of prior acts to show a party’s conformity with past conduct.” Professor McLain suggests that this relaxation of the general prohibition is “probably because the character evidence is believed to have greater probative value in those circumstances.” In sex crimes cases the special relevance of the other crimes evidence that may be admissible is a criminal propensity particularized to similar sex crimes perpetrated on the same victim.
Thus, in a sex offense prosecution, when the State offers evidence of prior sexual criminal acts of the same type by the accused against the same victim, the law of evidence already has concluded that, in general, the probative value, as substantive evidence that the defendant committed the crime charged, outweighs the inherent prejudicial effect. The discretion exercised by the trial judge in weighing unfair prejudice against probative value is concerned with special features in the particular case.

Acuna, 332 Md. at 75, 629 A.2d at 1238 (citations omitted). The “sexual propensity” exception is based on the notion that evidence of prior sexual misconduct against the same victim has a special probative value, it is asserted, sufficient enough that it generally outweighs the inherent “bad actor” prejudice of other crimes evidence.

*535As discussed above, the State of Maryland’s policy of protecting or insulating juveniles from the criminal justice system absent a waiver is evident from the Juvenile Causes Act. In light of that policy, juvenile acts are not legislatively deemed “crimes, wrongs, or acts” within the meaning of Rule 5-404(b) and are therefore not relevant in subsequent criminal proceedings. Because I would hold that juvenile acts are not within the purview of Rule 5—404(b), I would conclude that the “sexual propensity” exception to Rule 5-404(b) does not justify the admissibility of evidence of juvenile acts in subsequent criminal proceedings. In other words, a juvenile act does not constitute a criminal act within the meaning of the sexual propensity exception.

III.

The Circuit Court’s admission into evidence testimony with regard to Thompson’s juvenile act was not harmless error. An error is deemed harmless when a reviewing court, upon an independent review of the record, can declare beyond a reasonable doubt that the error in no way influenced the verdict. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). In the instant case, the State presented the 1978 incident to the court as the first of five instances of sexual misconduct between Thompson and Ms. Timm. The jury convicted Thompson on charges arising from two of the five incidents. Specifically, the jury heard evidence that Thompson was a sexual predator when he was 14 years old. In addition, the jury heard that Thompson demonstrated that same deviant behavior toward the same victim when Thompson became an adult. It is highly unlikely that the jury separated Thompson’s alleged juvenile acts from his criminal acts. Thus, I do not believe that this Court can say beyond a reasonable doubt that the admission of evidence that Thompson sexually assaulted Ms. Timm when Thompson was a juvenile in no way influenced the jury’s verdict. Therefore, the Court should reverse the judgment of the Court of Special Appeals and remand the case for purposes of a new trial.

*536Chief Judge BELL and Judge ELDRIDGE authorize me to state that they join in this dissenting opinion.

. The Juvenile Causes Act defines a “delinquent act” as "an act which would be a crime if committed by an adult”; a “delinquent child” as "a child who has committed a delinquent act and requires guidance, treatment, or rehabilitation”; and a "child” as “an individual under the age of 18 years.” § 3-8A-01(Z ),(m),(d) of the Courts and Judicial Proceedings Article.

. Tennessee adopted Federal Rule of Evidence 609(d) in State v. Butler, 626 S.W.2d 6, 10 (Tenn.1981). That Rule provides:

Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

. The term “proceeding” is undefined in the Juvenile Causes Act. We recently explained:

Black's Law Dictionary defines a "proceeding” as: "1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action.... ” BLACK’S LAW DICTIONARY! 1 1241 [(8th ed. 2004)]; see also WEBSTER'S II NEW COLLEGE DICTIONARY 902 (3d ed. 2005) (providing the legal definition of “proceeding” as "[l]itigation” or “[t]he act of instituting or conducting litigation”); EDWIN E. BRYANT, THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE 3 (1894) (" 'Proceeding' is a word much used to express the business done in courts.”).

Kramer v. Liberty Property, 408 Md. 1, 21, 968 A.2d 120, 132 (2009).

As I construe the scope of the term "proceeding” within the meaning of the Juvenile Causes Act, my focus is upon acts that were adjudicated in the context of juvenile proceedings, as well as acts that could have been adjudicated if juvenile proceedings had been initiated.