Anderson v. State

RAKER, J.

In this case, we must decide whether petitioner, a high school teacher, was a person with responsibility for supervision of a child, within the meaning of Md.Code Ann., Art. 27, § 35C(b) (2001 Supp.).1 We shall hold that under the circumstances presented herein, the evidence was sufficient to establish that petitioner was a person having temporary responsibility for the supervision of a child within the contemplation of the statute.

Wendell Daniel Anderson, petitioner, a high school teacher, was convicted of child abuse and several related sexual offenses.2 The Court of Special Appeals affirmed the convictions, Anderson v. State, 142 Md.App. 498, 790 A.2d 732 (2002), and we granted Anderson’s petition for writ of certiorari. Anderson v. State, 369 Md. 178, 798 A.2d 551 (2002). We shall affirm the Court of Special Appeals.

*288I. Background

The victim, a fourteen-year-old gml, was a ninth grade student at Kenwood High School. She met petitioner, a math teacher at the school, through one of her teachers, Ms. Riggs. The victim was not in any of petitioner’s classes or a participant in the extracurricular activities he ran. Petitioner would sometimes see her in the halls of the school, however, and would come into Ms. Riggs’ classroom where the victim helped out after school, occasionally helping the victim with math problems. Petitioner also drove the victim home from school two or three times.

At trial, petitioner testified that he knew the victim had developed a crush on him. During the year, he talked to her about her relationships with boys, discussed with her his own interest in a romantic relationship with Ms. Riggs, and criticized her for her provocative choice of clothing. Petitioner testified that when the victim confronted him about her affections for him, he told her “sometime in.the future there may be a chance, but right now you are way too young.”

The sexual encounter between petitioner and the victim occurred on the last day of the school year, when petitioner gave the victim a ride home from school. Although he had driven her home from school on prior occasions, the victim’s mother was unaware of this practice. The victim’s mother testified that she believed that her daughter either took the bus, got a ride home from a friend, or called her for a ride. She testified that she entrusted Kenwood High School with the care of her daughter, but had never asked any of the teachers explicitly to be responsible for her supervision after school.

The high school principal testified about the supervisory responsibilities of the teachers. She stated that all teachers “are given a set of five classes to teach and they are expected to do hall duty, supervision hall duty between changes of classes. They generally get one hour a day and they are given chaperone duties after school.” Asked about responsibility for “[a]ny scenario on school campus,” the principal *289stated that all teachers “are responsible to assure the safety of the students.” On cross-examination, however, the principal agreed that teachers have no responsibility for students they meet after the school day ends, not in connection with an academic activity.

The evening before the last day of the school year, the victim phoned petitioner to ask him for a ride home from school the following day. The Court of Special Appeals summarized the events of the following day as follows:

“On June 9, 2000, the last day of the school year, the school day ended at noon. That day, [the victim] ‘stayed after with Ms. Riggs to help her with her room.’ While she was walking in the hallway with Ms. Riggs and her daughter, whom Ms. Riggs had brought to school that day, [petitioner] approached and invited them to go to lunch with him. They then left school property with [petitioner], in his car, and had lunch at a nearby McDonald’s restaurant. About a half hour later, all four of them returned to school in [petitioner’s] car and [the victim] resumed ‘helping] Ms. Riggs with her room and her daughter.’ ” When [petitioner] asked [the victim] if she wanted a ride home, she accepted his offer. Sometime after 2 p.m., [petitioner] and [the victim] left the school in [petitioner’s] car. While driving [the victim] home, [petitioner] asked her if she wanted to play a game of pool at his house; she replied that she did. [Petitioner] then drove [the victim] to his house. ”

Anderson, 142 Md.App. at 503-04, 790 A.2d 732 (footnote omitted).

In the course of the ensuing investigation, Baltimore County Police Detective Joseph Donahue recorded a telephone conversation between petitioner and the victim. According to his testimony, he believed he was investigating a case of child abuse. Pursuant to the Maryland Wiretapping and Electronic Surveillance Act, Md.Code (1998 Repl.Vol., 2000 Supp.), §§ 10-401 et seq., Courts and Judicial Proceedings Article, the officer obtained consent to record the conversation from the victim. The officer did not obtain petitioner’s consent to *290record the conversation, nor did he have a court order. Prior to trial, petitioner moved to suppress the taped recording of this conversation and to sever the child abuse charge from the sexual offense charges. Both of these motions were denied.

Petitioner was indicted by the Grand Jury for Baltimore County and proceeded to trial before the court. He maintained that he could not be convicted of child abuse because he did not have the requisite statutory responsibility for the care of a child. He also denied any sexual contact. The trial judge found that petitioner fit within the statutory definition of child abuse and believed the testimony of the victim. He was convicted and sentenced to a term of incarceration.

Petitioner noted a timely appeal to the Court of Special Appeals. The intermediate appellate court noted that the “principal issue presented by this appeal is whether consensual sexual intercourse can constitute ‘child abuse’ under Maryland law.” Judge Peter Krauser, writing for an unanimous panel, noted:

“Because we find that a parent impliedly consents to a teacher taking all reasonable measures to assure the safe return of his or her child from school, including personally driving that child home; because [petitioner] assumed that responsibility when he agreed to drive the child home; because the events leading up to this unfortunate occurrence were set in motion on school property; and because, at the time of the offense, there had been no temporal break in the teacher and student relationship that existed between [petitioner] and the victim, we shall affirm [petitioner’s] conviction for child abuse.”

Anderson, 142 Md.App. at 501, 790 A.2d at 734-35. This Court granted Anderson’s petition for writ of certiorari. Anderson v. State, 369 Md. 178, 798 A.2d 551 (2002).

II. Child Abuse

Petitioner contends before this Court that the evidence was insufficient to sustain the charge of child abuse because a necessary element under the statute was missing, namely, that *291he was either a parent, household or family member or other person who has permanent or temporary care or custody or responsibility for supervision of a child. Petitioner acknowledges that a teacher is responsible for the supervision of a child at those times and places where he or she is acting as a teacher and that when the teacher is at school or is with a student off school premises for a school related activity, he “has responsibility for supervision as part of his job.” He recognizes that these circumstances would fit within the notion of implied mutual consent between the parent and the school authorities. He argues, conversely, that when a teacher is with a student off school grounds, for a non-school related activity, the implied consent rationale is inapplicable and that once a teacher is no longer acting as a teacher, he or she does not have responsibility to supervise the student.

Article 27, § 35C(b) states that “[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member who causes abuse to the child is guilty of a felony....” Whether a teacher has responsibility for the supervision of a child, i.e., a student under eighteen years of age, is a factual question, dependent upon the particular circumstances.

It is uncontested that the act of sexual intercourse by an adult with a fourteen-year-old girl qualifies as “abuse” under the statute. Although petitioner was neither a parent nor household or family member of the victim, the Circuit Court found that petitioner had “responsibility for the supervision” of the victim at the time of the alleged misconduct. The Court of Special Appeals agreed, and held the evidence to be sufficient to support the conviction. We agree.

Petitioner contests the sufficiency of the evidence supporting the conviction for child abuse. The standard for determining whether there is sufficient evidence to support a conviction “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a *292reasonable doubt.” Burch v. State, 346 Md. 253, 272, 696 A.2d 443, 452-53 (1997); State v. Albrecht, 336 Md. 475, 478, 649 A.2d 336, 337 (1994). Whether a person has responsibility for the supervision of a minor child in contemplation of Art. 27, § 35C, is a question of fact for the jury. See Newman v. State, 65 Md.App. 85, 99, 499 A.2d 492 (1985).

The. courts of this State have had several occasions to consider the class of persons to whom the child abuse statute applies. See e.g., Pope v. State, 284 Md. 309, 396 A.2d 1054 (1979); Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978); Tapscott v. State, 106 Md.App. 109, 664 A.2d 42 (1995); Brackins v. State, 84 Md.App. 157, 578 A.2d 300 (1990); Newman, 65 Md.App. 85, 499 A.2d 492. See also, 82 Op. Md. Att’y Gen. (1997).

In Pope, we addressed the statutory language of “responsibility for the supervision of a child.” Judge Orth, writing for the Court, pointed out that the phrase “responsibility for the supervision” under § 35C is not limited solely to a person standing in loco parentis to a child and may include others. We said:

“The child abuse statute speaks in terms of a person who ‘has’ responsibility for the supervision of a minor child. It does not prescribe how such responsibility attaches or what ‘responsibility’ and ‘supervision’ encompass. A doubt or ambiguity exists as to the exact reach of the statute’s provision with respect to ‘has responsibility for the supervision of,’ justifying application of the principle that permits courts in such circumstances to ascertain and give effect to the real intention of the Legislature. Bowers equates ‘permanent or temporary care or custody’ with ‘in loco parentis,’ but ‘responsibility for the supervision of is not bound by certain of the strictures required for one to stand in place of or instead of the parent.”

Id. at 322, 396 A.2d at 1063 (citations omitted).

Discussing the meaning of the word “responsibility,” we said:

*293“ ‘Responsibility’ in its common and generally accepted meaning denotes ‘accountability,’ and ‘supervision’ emphasizes broad authority to oversee with the powers of direction and decision.... Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming responsibility. In other words, a parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it.”

Id. at 323-24, 396 A.2d at 1063. We went on to provide examples of persons who may come within the ambit of the statute. We said:

“So it is that a baby sitter temporarily has responsibility for the supervision of a child. The parents grant the responsibility for the period they are not at home, and the sitter accepts it. And it is by mutual consent that a school teacher has responsibility for the supervision of children in connection with his academic duties.”

Id. at 324, 396 A.2d at 1063-64. We concluded that:

“[0/nce responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct.... But, of course, the third person in wdiom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent.”

Id., 396 A.2d at 1064.

Petitioner acknowledges that he had responsibility for the supervision of the victim, by mutual consent, while they were at school or were involved in school related activities. Relying on an opinion letter of the Attorney General, 82 Att’y Gen. Op.-(1997) [Opinion No. 97-017 (Aug. 19, 1997)], he argues, *294however, that outside of such academic duties, there is no mutual consent.

Petitioner argues that the mutual, implied consent which existed as a result of his position as a teacher ended when he and the victim left the school and thus, as there was no mutual consent that he drive the victim home, he did not have responsibility for her supervision. The Court of Special Appeals rejected this argument, as do we. We agree with Judge Krauser’s analysis.

“[The victim’s] mother may not have known that [petitioner] had assumed the task of driving her home from school, but, from that fact, it does not follow that she did not impliedly consent to his doing so. Indeed, it is absurd to suggest that when a parent entrusts her child to a school that that parent does not impliedly consent to any reasonable assistance that a teacher may provide to assure the child’s return home from school. In other words, it may be reasonably assumed by both parent and teacher that a parent impliedly consents to all reasonable measures taken by a teacher to assure the safe return of the child from school, including personally driving that child home.... Once a teacher assumes the task of personally transporting a child from school to home with the implied consent of the parent, he or she also assumes the responsibility of supervising that child.... Finally, there was no temporal break in the teacher and student relationship that existed between appellant and the child. Such a break, depending on its length and nature, can interrupt the implied consent of the parent and dispel the teacher’s duty to supervise. Had appellant and [the victim] met, for example, after they had parted, at a location unconnected with Kenwood High School, we might have reached a different result in this case. But that is not the case here. Indeed, appellant’s offer to give the child a ride home was made on school premises while the child was still under the supervision of appellant. And the trip home began on school premises, where appellant and [the victim] got into his car. From the moment he extended his invitation until the time he and [the victim] had sexual inter*295course, she was never for long, if ever, either out of his sight or, for that matter, out from under his influence or control. At bottom, a teacher-student relationship is based on the student’s trust and acquiescence to her teacher’s authority. At no time was there a temporal break in that relationship so that we might conclude the relationship inducing both trust and acquiescence to authority have at least temporally ended.”

Id. at 509-10, 790 A.2d at 739.

Petitioner did not initiate the meeting with the victim at a park or shopping center near the school. Petitioner, as a teacher, met with the student during school hours and made the plans to leave the school with her. Petitioner had assisted the victim academically, and acknowledged his responsibility for her supervision at school. The principal of the school acknowledged that for “[a]ny scenario on school campus, even if that teacher is not on hall duty or even if that student is not a member of their class,” the teacher is responsible “to assure the safety of the students.” This was the understanding of the victim’s mother, who entrusted her daughter to Kenwood High School. She entrusted her not to a particular teacher for a particular activity, but to the school as a whole for the entirety of the school day.

The victim’s mother terminated the responsibility of the school, and by extension the teachers, on the days she came to get her daughter or gave her daughter permission to ride the bus. On the day in question, however, the mother never resumed responsibility expressly or by conduct. Instead, the responsibility remained in the teacher who held it and voluntarily extended it through his offer of transportation. He took it upon himself to transport her home from school and made those arrangements with her at school and during school hours.3 Petitioner’s “official” supervisory interactions with *296the victim that began at school, his transportation of her that was initiated at school, and his sexual involvement with her “together constituted an indivisible, ongoing relationship.” Doe v. Taylor, 15 F.3d 443, 461 (5th Cir.1994) (Higginbotham, J., concurring).

Petitioner asserts that “at the time of the alleged sexual contact, Petitioner was not with the child on school grounds or with the child off school grounds for an activity related to academic or a school related extracurricular activity.” It goes without saying that any conduct that amounts to child abuse will never be an “academic activity.” A teacher cannot argue that his conduct is not child abuse because his seduction of a student was not consented to by the parent. It is the school related activity immediately connected to the abuse, in this case the transportation of the student home from school, that provides the basis of supervision. Our view is consistent with the opinion expressed in the letteT of the Attorney General. In the letter opinion, the Attorney General stated that

“responsibility ... could also exist when the parent consents to the child’s accompanying the teacher off school premises. In all these situations, a jury could find, at the least, an implicit mutual agreement to transfer ‘responsibility for supervision’ to the teacher and the teacher’s acceptance of it.”

82 Att’y Gen. op. No. 97-017, at 111.

A similar issue was addressed by the Missouri Court of Appeals in State v. Pasteur, 9 S.W.3d 689 (Mo.Ct.App.1999). A teacher was convicted of sexual offenses against two students, one of which occurred after a school play, when the teacher offered to drive a student home. As in the case sub judice, the student accepted the ride and the teacher made a *297detour to his own home. Sexual contact occurred during the ride. The defendant challenged the evidence that there existed a custodial relationship between himself and the two victims. The court first described the scope of the student-teacher relationship:

“Teachers are undeniably charged with the ‘care and custody’ of students. When parents send their child to school, they entrust the teacher with that child’s well-being.... [A] teacher’s duty of care and custody extends beyond the confines on the schoolyard.... By virtue of Defendant’s position, he was able to exert influence upon [the victim], not only within the confines of the school, but outside of it as well.”

Id. at 697. The court concluded that not only was there evidence of a custodial position, but that the conduct occurred “while Defendant and [the victim] were engaged in school related activities.” Id. at 698.

In this case, the Circuit Court found that petitioner’s conduct, both on and off school grounds, was within the scope of his role as a teacher. We hold that the evidence was sufficient for the trier of fact to find beyond a reasonable doubt that petitioner was a person who had responsibility for the supervision of a minor child as contemplated by Art. 27, § 35C.

III. Suppression of Taped Conversation

We next turn to petitioner’s assertion that the Circuit Court’s denial of his motion to suppress the taped conversation was error. Section 10—402(c)(2) of the Courts and Judicial Proceedings Article provides, in pertinent part, as follows:

“[i]t is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation ... to intercept a wire, oral, or electronic communication in order to provide evidence of the commission of the offenses of ... child abuse ... where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.”

*298Md.Code Ann., Cts. & Jud. Proc. Art., § 10-402(c)(2) (2001 Supp.).

It is undisputed that the victim and her mother consented to the electronic monitoring of the telephone call between petitioner and the victim. Petitioner contends. that the officer knew or should have known that petitioner was not within the class of persons covered by the child abuse statute and, therefore, the taping was illegal under Maryland law and should have been suppressed. He concludes that the Circuit Court abused its discretion in finding that the officer, in good faith, believed he was investigating the crime of child abuse. Petitioner’s primary argument is that the Circuit Court applied the wrong standard in assessing whether the officer was acting in a criminal investigation of child abuse and that the test is not whether the officer had a good faith belief that he was investigating child abuse, but rather whether the officer had a reasonable basis for his suspicion that petitioner had committed child abuse.

The officer clearly had reasonable grounds to believe that petitioner had committed child abuse.4 His recording was lawful and the motion to suppress properly was denied.

*299IV. Severance of Charges

Finally, petitioner argues that the trial court erred in failing to sever the counts of child abuse from the sexual offense charges.5 He argues that because he is not within the class of persons who could have been convicted of child abuse, had the child abuse count been severed for trial, and further, had he been found not guilty of child abuse, the tape recording of the telephone conversation would not have been admissible at trial on the sexual offense charges.

The Court of Special Appeals held that because Anderson’s conduct constituted child abuse, his argument that he was wrongfully denied a severance was moot. We agree.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

. Unless otherwise noted, all future references are to Md.Code Ann., Art. 27, § 35C(b) (2001 Supp.).

. In addition to the child abuse count (count 1), petitioner was convicted of third degree sexual offense (count 2), attempted third degree sexual offense (count 3), fourth degree sexual offense (count 4), and attempted fourth degree sexual offense (count 5). The Circuit Court merged counts 3 and 4 with count 2 and count 5 with count 1 for sentencing purposes.

. As previously stated, the victim phoned petitioner the night before to ask for a ride home. Supra at 289, 812 A.2d at 1019. Although the victim’s testimony is unclear on this point, petitioner testified that on *296the following day, he sought out the victim at school and asked her if she still needed a ride home. Petitioner testified:

“I then went to Ms. Riggs’ room to see if [the victim] still needed the ride. [Ms. Riggs and the victim] were not there. I wandered around the building for a while trying to find them. They were in an alcove on the first floor. When I found them, I said I am leaving now, do you still need a ride home. [The victim] said yes.”

. We need not address the question of whether a standard of reasonable suspicion, or good faith, is sufficient, because in this case we find that the officer had reasonable grounds to believe he was investigating the crime of child abuse. The Court of Special Appeals noted that an interception is lawful so long as the officer has reasonable suspicion to warrant an investigation of one of the statutorily enumerated crimes. See Anderson, 142 Md.App. at 517, 790 A.2d at 743 (citing Fearnow v. Chesapeake & Potomac Telephone, 104 Md.App. 1, 24 n. 21, 655 A.2d 1, 12 n. 21 (1995), rev'd on other grounds, 342 Md. 363, 676 A.2d 65 (1996)). See also, Commonwealth v. Thorpe, 384 Mass. 271, 424 N.E.2d 250, 255-56 (Mass. 1981) (rejecting both good faith and probable cause standards, and stating that ‘‘[a]t the minimum, the Commonwealth should be required to show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense”). See generally, Eric H. Miller, Annotation, Permissible Warrantless Surveillance, Under State Communications Interception Statute, by State or Local Law Enforcement Officer or One Acting in Concert With Officer, 27 A.L.R.4th 449 (1984).

. Petitioner relies on Maryland Rule 4-253 for his argument that the court erred. Rule 4-253(c) provides as follows:

"If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.”