John Matthew Woodlin v. State of Maryland, No. 22, September Term, 2022. Opinion by
Eaves, J.
CRIMINAL LAW — MARYLAND REPEAT SEXUAL PREDATORPREVENTION ACT OF 2018 — STATUTORY INTERPRETATION The Supreme
Court of Maryland held that the Maryland Repeat Sexual Predator Prevention Act of 2018,
codified under the Courts and Judicial Proceedings Article, § 10-923, does not require acircuit court to consider any particular factor when it determines whether the probativevalue of the evidence the State seeks to admit outweighs the danger of unfair prejudice
under § 10-923(e)(4). Rather, the Court explained that there is an array of factors that acircuit court can consider, and the Court provided a non-exhaustive list of appropriate
factors to guide the circuit courts in future cases.
CRIMINAL LAW — MARYLAND REPEAT SEXUAL PREDATORPREVENTION ACT OF 2018 — ADMISSIBILITY OF PROPENSITY EVIDENCE
The Supreme Court of Maryland held that the circuit court did not abuse its discretion in
determining that the probative value of Petitioner’s 2010 conviction, where Petitioner
inserted foreign objects into an unconscious adults male’s rectum, outweighed the dangerof unfair prejudice in Petitioner’s current case, where he sexually assaulted his grandsonby performing fellatio on him and touching and licking his grandson’s buttocks.
APPELLATE PROCEDURE — WAIVER The Supreme Court of Maryland held that
Petitioner failed to preserve for appeal his argument that the circuit court erred in failing tosua sponte limit the scope of the evidence of his 2010 conviction after ruling that said
evidence was admissible.

Circuit Court for Wicomico County
Case No. C-22-CR-19-000613
Argued: April 4, 2023

IN THE SUPREME COURT
OF MARYLAND*

No. 22September Term, 2022

JOHN MATTHEW WOODLINv.
STATE OF MARYLAND

Fader, C.J.,
Watts,
Hotten,Booth,
Biran,
Gould,
Eaves,JJ.

Opinion by Eaves, J.

Filed: July 26, 2023

Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) thisdocument is authentic.

2023-10-11 12:47-04:00

Gregory Hilton, Clerk* At the November 8, 2022, general election, thevoters of Maryland ratified a constitutional
amendment changing the name of the Court ofAppeals of Maryland to the Supreme Court ofMaryland. The name change took effect on
December 14, 2022.

A common law rule in American jurisprudence prohibits a government from using
in the criminal prosecution of a defendant “evidence of [that] defendant’s evil character toestablish a probability of his [or her] guilt.”1 Such evidence includes the defendant’s “priortrouble with the law, specific criminal acts, or ill name among his [or her] neighbors[.]”2This rule exists not to give a defendant a leg up in any criminal prosecution, but rather
because such evidence likely will “weigh too much with the jury and . . . overpersuade [itso] as to prejudge one with a bad general record[,]” denying the defendant a fair opportunity
to defend against crimes alleged by the government.3
Maryland common law generally prohibits the use of character evidence to show aperson’s propensity to act in accordance with their character traits or prior bad acts, but
sexual assault trials have long been recognized as meriting a partial exception to the bar on
propensity evidence.4 This common law exception is limited to evidence of the defendant’s
other sexually assaultive conduct that is both similar to the act for which he or she currently
is charged and toward the same victim.5

1

Michelson v. United States, 335 U.S. 469, 475 (1948) (footnote omitted).

2

Id.

3

Id. at 476.

4

See Acuna v. State, 332 Md. 65, 74–75 (1993); United States v. Castillo, 140 F.3d
874, 881 (6th Cir. 1998).
5

See Vogel v. State, 315 Md. 458, 466 (1989) (establishing the rule that evidence ofa defendant’s other sexually assaultive behavior—against the same victim and of the same
type—is admissible); State v. Westpoint, 404 Md. 455, 492 (2008); Hurst v. State, 400 Md.
397, 416–17 (2007) (declining to expand the exception announced in Vogel).

Expanding on that common law exception, the General Assembly passed the
Maryland Repeat Sexual Predator Prevention Act of 2018, codified under the Courts andJudicial Proceedings Article (“CJP”) (1974, 2020 Repl. Vol.) as § 10-923, to allow theState to move to introduce in a criminal trial for certain sexual offenses evidence of the
defendant’s “other sexually assaultive behavior” that occurred either before or after thecrime currently charged. Under CJP § 10-923, the State may introduce evidence of priorsexually assaultive behavior involving different victims to help establish credibility inqualifying sexual assault cases. The statute was enacted in recognition that many sexualassault offenses occur in private and may not generate any physical evidence. 6 The
admissibility of evidence under CJP § 10-923 depends on two necessary, sequential events:(1) the State proving at a required hearing four criteria and (2) the circuit court then
exercising its discretion in favor of admissibility.
John Matthew Woodlin, Petitioner, was arrested and charged with child sexual
abuse and other related sexual offenses against his ten-year-old grandson, A.H.7 Before
trial, the State timely moved pursuant to CJP § 10-923 to introduce evidence of Petitioner’s
2010 conviction (by way of a guilty plea) for sexual assault against a different individual,
and, after the required hearing, the circuit court granted that motion. At trial, consistent
with the circuit court’s ruling, the State introduced evidence of Petitioner’s prior

6

S.B. 270, 2018 Reg. Sess., Fisc. & Pol’y Note.

7

Like the intermediate appellate court below, for privacy reasons, we refer to theminor victim by the initials “A.H.,” which reflect neither his given name nor surname.
Woodlin v. State, 254 Md. App. 691, 696 n.1 (2022).
2

conviction, and he ultimately was convicted by a jury; he noted a timely appeal. The
Appellate Court of Maryland8 affirmed the circuit court’s decision to put before the jury
evidence of Petitioner’s 2010 offense and affirmed his conviction in this case.
Petitioner sought review in this Court, and we granted certiorari, 482 Md. 31 (2022),
to answer the following questions, which we have rephrased9:8

At the November 8, 2022, general election, the voters of Maryland ratified aconstitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
9This Court has authority to rephrase the questions presented. United Parcel Serv.
v. Strothers, 482 Md. 198, 205 (2022). The original questions for which we granted
certiorari are:
1. As a matter of first impression, under Md. Cts. & Jud. Proc. Art. §10-923,
which permits the admission in certain circumstances of prior sexuallyassaultive behavior in prosecutions for child sexual offenses, what factors
must a trial court consider in determining whether the probative value of thatprior sexually assaultive behavior is substantially outweighed by the dangerof unfair prejudice, and, specifically, is the similarity or dissimilarity
between the two offenses one of those factors?
2. As a matter of first impression, how should [the] trial [court] apply thesefactors, including the dissimilarity between the two offenses, in determining
whether the probative value of the prior sexual assaultive behavior issubstantially outweighed by the danger of unfair prejudice, as required by§10-923(e)(4)?
3. As a matter of first impression, if the trial court has determined that theprobative value of the prior sexual assaultive behavior is not substantiallyoutweighed by the danger of unfair prejudice, how much of the factual details
including the dissimilarities between the past and present offense [may] beadmitted at trial before the jury and what factors should be considered in
making that determination?
4. Did the trial court abuse its discretion at Petitioner’s trial for sexual abuse
and rape of his minor grandson when it admitted evidence of Petitioner’s ten
31.
Under CJP § 10-923(e)(4), must a circuit court consider certain specific factors indetermining whether the probative value of a defendant’s other sexually assaultive
behavior substantially outweighs the danger of unfair prejudice?
2.
How should circuit courts weigh any identified factors when conducting an analysis
under CJP § 10-923(e)(4)?
3.
Did the motions judge abuse his discretion when he determined that the probativevalue of Petitioner’s 2010 conviction was not substantially outweighed by the danger of
unfair prejudice?
4.
If the motions judge correctly determined that the probative value of Petitioner’s
prior conviction was not substantially outweighed by the danger of unfair prejudice, thenwas either the motions judge or the trial judge nevertheless required to sua sponte limit thescope of the evidence presented to only certain details of the prior conviction?
For the reasons discussed below, we hold that there is no factor that circuit courts
must consider in every case when conducting an analysis under CJP § 10-923(e)(4), andwe discuss an illustrative—but not exhaustive—list of appropriate factors that circuit courts
may consider. The motions judge in this case did not abuse his discretion when hedetermined that the probative value of Petitioner’s 2010 conviction was not substantiallyoutweighed by the danger of unfair prejudice. Lastly, Petitioner waived any argument
concerning whether the circuit court had a sua sponte duty to limit evidence admitted under
CJP § 10-923 because he failed to raise any such argument during any of the circuit court
proceedings. Thus, for these reasons detailed below, we affirm the judgment of theAppellate Court.

year old sexual abusive behavior on an adult male which was substantiallydissimilar from the child abuse for which he was on trial?
4I
BACKGROUND
Before addressing the merits of this appeal, we provide an overview of somepertinent evidentiary principles, as well as the facts and procedural history of Petitioner’s
case.
A.

Admissible Evidence Generally, Historical Exceptions For Prosecution Of Sexual
Crimes, And CJP § 10-923
To appreciate how CJP § 10-923 operates in context, we first discuss admissible

evidence generally and our State’s treatment of admissible evidence in the prosecution ofsexual crimes.
1. Evidence Generally
Our rules make clear: relevant evidence is generally admissible; evidence that is not
relevant is inadmissible.10 Md. Rule 5-402. Two exceptions to Rule 5-402’s general policyof admission of relevant evidence are Rule 5-404(b), which bars, absent an applicable
exception, the introduction of “[e]vidence of other crimes, wrongs, or other acts . . . toprove the character of a person in order to show action in the conformity therewith[,]”otherwise known as “propensity evidence,” and Rule 5-403, which excludes relevant“Relevant evidence” is that which has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probablethan it would be without the evidence.” Md. Rule 5-401.
10

5

evidence if its probative value is substantially outweighed by, among other things, thedanger of unfair prejudice.
The policy consideration underlying Rule 5-404(b) is to avoid tainting the jury into
thinking that the defendant is a bad person “who should be punished regardless of his [orher] guilt of the charged crime, or to infer that he [or she] committed the charged crime
due to a criminal disposition.” Thompson v. State, 412 Md. 497, 503 (2010) (quoting
Acuna v. State, 332 Md. 65, 75 (1993)). Despite that prohibition, such evidence historicallyhas been admissible to prove things other than a defendant’s general propensity to commit
a crime, such as “proof of motive, opportunity, intent, preparation, common scheme orplan, knowledge, identity, [or] absence of mistake or accident[.]”11 Md. Rule 5-404(b); see
Merzbacher v. State, 346 Md. 391, 407 (1997) (noting that Rule 5-404(b) “incorporates
well recognized exceptions” to the general prohibition of propensity evidence).
We do not exclude relevant evidence merely because it is prejudicial, as “[a]llevidence, by its nature, is prejudicial.” Williams v. State, 457 Md. 551, 572 (2018). Rule5-403 instead excludes relevant evidence when its unfairly prejudicial nature substantiallyoutweighs its probative value. Under Rule 5-403, unfair prejudice outweighs a piece of
relevant evidence’s probative value if it “tends to have some adverse effect . . . beyond

11

Rule 5-404(b) was amended on May 15, 2019 (effective July 1, 2019), to include
as an additional exception evidence “in conformity with Rule 5-413.” Rule 5-413, which
was adopted on May 15, 2019, became effective on July 1, 2019, and is the counterpart toCJP § 10-923, authorizing the introduction of certain propensity evidence in compliancewith that statute.
6

tending to prove the fact or issue that justified its admission.” Montague v. State, 471 Md.
657, 674 (2020) (alteration in original) (quoting State v. Heath, 464 Md. 445, 464 (2019)).
By its plain language, CJP § 10-923 necessarily contemplates the introduction ofsome propensity evidence against a defendant. But the statute is not a radical departurefrom Rule 5-404(b)’s underlying policy. Indeed, this is not the first time we have treatedpropensity evidence differently in the prosecution of sexual offenses.12
2. Common law exception for the prosecution of sexual crimes
In 1989, this Court held that in Maryland, there exists a “‘sexual propensity’
exception to the rule excluding evidence of other crimes[.]” Vogel v. State, 315 Md. 458,
462 (1989). In reaching this holding, the Court noted that the exception “is strictly limited
to the prosecution for sexual crimes in which the prior illicit sexual acts are similar to theoffense for which the accused is being tried and involve the same victim.” Id. at 466. The
rule announced in Vogel was, therefore, a narrow common-law exception to the general
exclusionary rule for propensity evidence.

See Thompson, 412 Md. at 503–04(acknowledging and discussing the rule established in Vogel).
Years later, we declined to extend Vogel to admit evidence of similar sexual acts
committed against a person other than the victim in the current criminal proceeding. See
Hurst v. State, 400 Md. 397, 415 (2007) (“[T]he State urges that . . . this Court should

12

Likewise, such exceptions for prosecution of sexually based crimes have existed
in the federal system for nearly three decades. See Violent Crime Control and Enforcement
Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2136–37 (Sept. 13, 1994) (enacting
Federal Rules of Evidence 413 and 414, which allow for the admission of some propensity
evidence in the prosecution of federal sexual crimes).
7

extend its holding in Vogel . . . and allow evidence of a defendant’s prior rapes and sexualassaults to show such a propensity beyond the limitations we expressed in Vogel. We
decline to do so.”). We clearly stated that if the scope of our rule in Vogel was to be
expanded, then such a change would need to come from the General Assembly “or by thisCourt, sitting in its legislative capacity, exercising its authority to enact Rules of Practiceand Procedure and Rules of Evidence[,]” id. at 418, “not by judicial fiat[,]” id. at 417.
Since Vogel, this Court reiterated that the exception exists to prove what Rule 5-404(b)generally tries to prohibit: proving that a defendant has a “passion or propensity for illicit
sexual relations with the particular person concerned in the crime at trial[.]” Acuna, 332
Md. at 75 (quoting Vogel, 315 Md. at 465).
3. CJP § 10-923
Fast forward to 2018. The General Assembly took to heart our words in Hurst andenacted CJP § 10-923. The statute codifies and expands the narrow exception announced
in Vogel, as § 10-923’s application is limited by neither the victim’s identity nor, as we
explain below, similarity of the act committed. Under that section, if the State tries adefendant for (1) a sexual crime under Title 3 of the Criminal Law Article (“CR”), (2)sexual abuse of a minor under CR § 3-602, or (3) sexual abuse of a vulnerable adult underCR § 3-604, evidence of the defendant’s other sexually assaultive behavior may be
admissible. CJP § 10-923(b). The statute defines “sexually assaultive behavior” as an act
that would constitute one of the three crimes immediately noted above, as well as (4) a8violation of 18 U.S.C. Chapter 109A13 or (5) a violation of the law of another state, theUnited States, or a foreign country that is the equivalent of an offense under items (1)–(4).
Id. § 10-923(a). In other words, the statute does not require that the other sexuallyassaultive behavior yield a conviction. To introduce such evidence, the State must file amotion at least 90 days before trial, describing the evidence that it seeks to introduce. Id.
§ 10-923(c). The circuit court then must hold a hearing to determine the evidence’s
admissibility. Id. § 10-923(d).
After the hearing, the circuit court may admit the evidence only if it determines that
the State can satisfy four criteria: (1) the evidence is offered either to (i) prove a lack ofconsent or (ii) rebut an express or implied allegation that a minor victim fabricated a sexual
offense, (2) the defendant had the opportunity to confront and cross-examine the witness
or witnesses testifying to the sexually assaultive behavior, (3) the sexually assaultive
behavior was proven by clear and convincing evidence at the required hearing, and (4) the
probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice. Id. § 10-923(e).
As the plain language makes clear, before the circuit court can exercise discretionas to admissibility, it must ensure that the State has satisfied four criteria. See id.; see also
id. § 10-923(b) (“[E]vidence of other sexually assaultive behavior by the defendant . . .
may be admissible, in accordance with this section.” (emphasis added)). Thus, if any one

13

Chapter 109A of Title 18 of the United States Code encompasses various federal
sexual crimes and other related provisions.
9

of the criteria in (e)(1)–(4) is not satisfied, then the circuit court has no discretion to
exercise, and the evidence is inadmissible.
The fourth criterion, codified in subsection (e)(4), imports the same balancing test
utilized in Rule 5-403, and determinations under that rule, if challenged, are always
reviewed for an abuse of discretion. See Dejarnette v. State, 478 Md. 148, 175 (2022).
Therefore, in analyzing whether the State has satisfied subsection (e)(4), the circuit court
must determine—by exercising its discretion—whether the danger of unfair prejudice
substantially outweighs the probative value of the evidence the State seeks to introduce.
But even if the State can satisfy all four criteria, the evidence is not yet necessarily
admissible. Satisfaction of subsections (e)(1)–(4) are conditions precedent to the circuit
court exercising discretion whether to admit the evidence; their satisfaction does not
automatically trigger admissibility. See CJP § 10-923(e) (circuit court judges “may admit
evidence . . . if the court finds” that the State has satisfied the four criteria (emphasis
added)); see also Uthus v. Valley Mill Camp, Inc., 472 Md. 378, 395 (2021) (noting that
this Court has a “long history” of interpreting the statutory term “may” as a discretionary
term and “shall” as a mandatory term). A plain reading of the statute, thus, shows thatwhen the State seeks to admit evidence under § 10-923, the circuit court, assuming
subsections (e)(1)–(3) are satisfied, will always exercise discretion at least once (indetermining whether the State can satisfy subsection (e)(4)) and potentially twice (indetermining whether to admit the evidence after it finds that the State has satisfied, if indeed10

it has, subsections (e)(1)–(4)).14 We will revisit this important distinction below. See infra
Part III.B.
B.

Factual Background
The weather was rainy and stormy on Friday, September 13, 2019, and because

Petitioner then was homeless, his daughter—A.H.’s mother (“Mother”)—permitted
Petitioner to stay the night at her home, as she had on prior occasions. At the time, Motherlived with her husband and her three children: A.H., who was ten years old, and A.H.’s twoolder sisters. Mother’s bedroom was on the first floor while the children’s bedrooms wereon the second floor; A.H. had his own room, and A.H.’s sisters shared a room. Petitioner
and Mother agreed that he would sleep on the couch on the first floor.15
The following recitation of events comes from A.H.’s trial testimony. Sometimethat evening or early Saturday morning, Petitioner went upstairs to A.H.’s room where
A.H. was playing video games. Petitioner sat down on an air mattress on the floor before

14

That is not to say that the circuit court does not exercise its discretion when
determining whether the State has satisfied the other criteria in (e)(1)–(3). At the very
least, subsection (e)(3)—determining whether the State has proved by clear and convincing
evidence a defendant’s involvement in the other sexually assaultive behavior—also
involves, to a degree, the exercise of discretion. See Faulkner v. State, 314 Md. 630, 635(1989) (“[T]he [second] step is to decide whether the accused’s involvement in the othercrimes is established by clear and convincing evidence. We will review this decision todetermine whether the evidence was sufficient to support the trial judge’s finding.”(citations omitted)).
15

Although several witnesses testified that Petitioner was supposed to sleep on the
couch downstairs, A.H. testified that Petitioner sometimes would sleep on the couch
downstairs and sometimes would sleep on an air mattress on the floor in A.H.’s bedroom.
A.H. also testified that, on the night in question, there was an air mattress on the floor in
his bedroom.
11

he and A.H. began play fighting, which was not an uncommon activity when Petitioner
would stay the night. A.H. was dressed in only his underwear. Petitioner eventually began
touching A.H.’s genitals over A.H.’s underwear. A.H. stopped playing with Petitioner,
who then pulled down A.H.’s underwear and performed fellatio on A.H. while holding
down A.H. by the arm. Petitioner also put two–three fingers “on [A.H.’s] butt” and in his“butt crack,” but Petitioner did not touch A.H.’s anus. Petitioner also licked A.H.’s “buttcrack.” During the entire assault, Petitioner had one hand over A.H.’s mouth and ceased
holding down A.H. by the arm only when Petitioner placed his fingers on A.H.’s buttocks.
Petitioner’s hand covering A.H.’s mouth prevented A.H. from calling out to Mother for
help.
Petitioner returned to the air mattress, and A.H. immediately left his room and woke
up his eldest sister, who let A.H. sleep in their other sister’s bed, as that sister was not homethat evening. The two did not discuss what happened, but A.H.’s sister testified that A.H.
looked frightened. A.H. heard crying and then a door shut. A.H. presumably heard
Petitioner leave Mother’s house because Petitioner’s other daughter (“Aunt”) eventually
saw Petitioner outside (undetermined where) and brought him back to her house.16
Petitioner called Mother Saturday morning, crying and claiming that A.H. wastrying to get him “locked up[.]” Petitioner turned the tables and accused A.H. of sexuallyassaulting him. Mother immediately hung up the phone. She asked A.H. if anything
happened between him and Petitioner, but A.H. would not say, so Mother elicited Aunt’s

16

The record does not reflect that, at this point, Aunt was aware of the assault that
had just taken place.
12

help to encourage A.H. to share the details of what occurred the prior night. A.H.
eventually disclosed to Aunt that Petitioner sexually assaulted him. Aunt called Motherand the police and brought A.H. to the hospital where officials performed a rape kit. There
was no forensic evidence corroborating Petitioner’s assault on A.H.
A few days later, Licensed Clinical Social Worker Mollie Kotis, of the Child
Advocacy Center, interviewed A.H., who confirmed that Petitioner sexually assaulted
him.17 Detective Sergeant Tom Funk of the Wicomico County Sheriff’s Office was
assigned as the lead detective and observed Ms. Kotis’ interview with A.H.
After that interview, a different detective located Petitioner, who agreed to speakwith Det. Sgt. Funk at the station. During the interview, Petitioner proffered a different
series of events: he admitted going to Mother’s house the night of the incident, but hedisclaimed ever going inside. Instead, he maintained that he was there strictly to pick up abus ticket, which one of his granddaughters hand-delivered to him. He denied seeing or
having any contact with his grandchildren in several years. Petitioner eventually wasarrested and charged with child sexual abuse and other sexual offenses.

A.H.’s trial testimony slightly varies from his recollection of events during Ms.
Kotis’ interview. During the interview, for example, he made the following assertions thatdiffered from his trial testimony:• When Petitioner arrived at A.H.’s room, A.H. was asleep and awoken by Petitioner.
• Petitioner digitally penetrated A.H.
• Upon entering his sisters’ room, A.H. woke both his sisters and told them that
Petitioner assaulted him, and A.H.’s sisters responded by stating that they wanted
to kill Petitioner.
• A.H. told his mother about the assault after Petitioner left.
17

13

C.

Procedural Background
1. Circuit court proceedings
Before trial, the State timely sought to introduce under CJP § 10-923 evidence ofPetitioner’s 2010 conviction, by way of a guilty plea, for a third-degree sexual offense. As
the basis for that conviction, Petitioner previously admitted that he inserted both abroomstick and a vacuum hose (not simultaneously) into an unconscious male adult’s
rectum and photographed the victim while those foreign objects were inside the victim.
At the required hearing under § 10-923(d), the State indicated that both the victim
of and eyewitness18 to Petitioner’s 2010 criminal conduct were deceased. Thus, the State
intended to introduce a copy of the 2010 guilty plea transcript, which the State provided toPetitioner in advance of the hearing. Petitioner argued that the State could prove only thethird requirement under CJP § 10-923(e): that his other sexually assaultive behavior (as aprior conviction) was proven by at least clear and convincing evidence. While Petitioner
argued that the State could not satisfy the first two elements—a permissible purpose forthe evidence and Petitioner’s prior opportunity to cross examine any witnesses testifying
to the other sexually assaultive behavior—the focus of this appeal is on Petitioner’scontention that the State failed to satisfy the fourth criterion: whether the danger of unfair

At the hearing, the State characterized this individual as the “witness” toPetitioner’s prior sexually assaultive behavior. During Petitioner’s 2010 guilty plea forthat conduct, however, it was clear that no individual actually witnessed Petitioner sexuallyassaulting the now-deceased victim. Rather, Petitioner showed the photos documenting
his sexual assault of the victim to a third party and told that third party that he (Petitioner)
was the one who both perpetrated the depicted assault and took the photographs.
18

14

prejudice in admitting any evidence of the 2010 conviction substantially outweighed that
evidence’s probative value.
As to that issue, Petitioner argued at the hearing that presenting such evidence to ajury would be “substantially more prejudicial than [it would be] probative[.]” In his view,the two crimes were not similar enough to be admissible: first, this case concerned a minor
victim, and the prior sexual offense was against an adult victim; and second, the prior caseinvolved insertion of foreign objects while this case contained no “weapon[.]” The Stateargued that Petitioner’s emphasis on dissimilarities between the two acts was misplaced.
Preliminarily, the State argued that the plain language of CJP § 10-923 does not requirethat the two instances of sexually assaultive behavior be similar or in any way connected.
Second, even if the court were looking for similarities between the two instances, the State
noted that both victims are male, penetration occurred against both victims,19 and thatconsent was at issue.
The motions judge likewise gleaned an underlying issue of consent in each case:[THE COURT]: I mean, in the adult case, the . . . victim is not awake or is
not able to give consent. The defendant sexually assaults the person.
In this case, it’s going upstairs into a bedroom where you have a minor victim
who is, you know, not able to give consent, is either awake or asleep andwoken up. I mean, does it matter adult versus minor[?]
When the State asserted that both cases involved anal penetration, Petitioner’s
trial counsel did not contest that characterization. In his brief before this Court, Petitioner
argues that the prosecution “erroneously claim[ed] that both cases involved anal/rectal
penetration when there was no evidence of such penetration presented by the evidence.”(Emphasis added). That claim, however, is based on the evidence presented at the trial that
had not yet occurred at the time of the hearing. At the hearing, the parties were focused on
A.H.’s statements during his interview with Ms. Kotis, which did allege digital penetration.
Petitioner’s counsel acknowledged that during oral arguments.
19

15

*

*

*

[T]he conduct is still sort of sexually assaultive behavior against someonethat either didn’t or can’t give consent.
The motions judge ruled that the State had satisfied all criteria under § 10-923(e).
As to subsection (e)(4), he noted that the issue is not whether any prejudice would ensue
from admitting evidence of Petitioner’s conviction, but whether the probative value ofadmitting that evidence would be outweighed by unfair prejudice. The motions judge
believed that “the nature of [the prior] offense . . . is consistent enough with the offense
here, and that the probative value is not substantially outweighed by the danger of unfair
prejudice.” He then subsequently ruled that evidence of Petitioner’s 2010 conviction wasadmissible.
Petitioner filed a motion to reconsider, asking the motions judge to revisit his priorruling under CJP § 10-923 and, to the extent that he was unwilling to change his ruling,“clarify what evidence from the earlier proceeding may be admitted[.]” The court did not
rule on that motion via a written order, so Petitioner orally renewed it at an October 2020
pre-trial conference before the motions judge.20 Petitioner reargued only that the State
could not satisfy the confrontation requirement under CJP § 10-923(e)(2). The State
disclosed that it had located the law enforcement official who previously investigatedPetitioner’s 2010 conviction and that it would use that detective’s testimony to bring in the

At the pre-trial conference, Petitioner’s counsel stated why he believed “theCourt’s construction [of 10-923 was] . . . problematic.” The motions judge asked if counsel
was referencing the “motion to reconsider that was filed on August the 24th[.]” Counsel
confirmed that he was.
20

16

previously provided plea transcript. Petitioner then asked the motions judge for guidanceon its original ruling: “[W]hat specifically [would] be admitted as opposed to just saying
information from the case can be admitted[?]” The State confirmed that it would seek toelicit testimony from the 2010 detective—confined to the information within the four
corners of the plea transcript—and introduce the plea transcript previously provided toPetitioner “at the [motions] hearing[,]” as well as a true test copy of Petitioner’s conviction.
At that point, the motions judge asked Petitioner’s trial counsel if he had anything
further to add, to which he replied, “No. It at least clarifies for me what it is the State’s
seeking. I’ll [re-object] at the appropriate time[.]” The motions judge then denied the
motion to reconsider.
At trial, the State’s final witness was Corporal Steven Creason of the Queen Anne’sCounty Office of the Sheriff. Cpl. Creason previously worked for the Ridgely Police
Department in Caroline County and was assigned to investigate the circumstances of whatcame to be Petitioner’s 2010 conviction.

Petitioner objected to the State’s direct

examination of Cpl. Creason, at which point a bench conference ensued. The State
informed the trial judge of the purpose of Cpl. Creason’s testimony and that the motions
judge previously decided this issue.

The State confirmed that it was limiting Cpl.

Creason’s testimony to the contents of the 2010 plea transcript. Petitioner raised only aconfrontation issue to the trial judge:[N]either [Petitioner] nor I have ever had an opportunity to cross-examine
the individual who is the alleged victim in this case. It never happened
before. It didn’t happen here. The alleged victim in that case is deceased.
So just advising the Court I’m going to have to just keep saying I object alot.
17The trial judge overruled that initial objection and the other ensuing objections throughout
the State’s direct examination of Cpl. Creason. The trial judge also overruled Petitioner’s
objections to the admission of the 2010 plea transcript and the true test copy of his
conviction. That same day, the jury convicted Petitioner of sexual abuse of a minor andrelated sexual offenses; he timely noted his appeal.
2. The Appellate Court of Maryland
Petitioner asked the Appellate Court one question: did the trial court abuse its
discretion in admitting evidence of Petitioner’s prior conviction under CJP § 10-923? The
Appellate Court, however, bifurcated and rephrased Petitioner’s question to ask: whether(1) his 2010 conviction was sufficiently similar to the charged offense so as to allow its
admission and (2) the evidence used to prove the 2010 conviction was too salacious to be
admitted. The intermediate court found it “necessary to treat the admiss[ibility] . . . of[Petitioner’s] 2010 conviction separately from the admiss[ibility]of the allegedly‘salacious’ detail[.]” Woodlin v. State, 254 Md. App. 691, 702 n.8 (2022).
As a legal matter, the court determined that it must “first determine what role thesimilarity or dissimilarity between the offenses plays . . . . Only then, as a factual matter,[could it] determine whether the probative value . . . of [Petitioner’s] 2010 conviction was
substantially outweighed by the danger of unfair prejudice.” Id. at 702–03. The court
noted that a similarity analysis is a relevant question to admissibility, id. at 704, but did not
clearly answer whether consideration of similarity is required. The court refused to“engraft[] onto this balancing test a requirement that courts consider a set list of factors, as
18

[Petitioner] urges[,]” id. at 704 n.10, but nevertheless simultaneously stated that courts“must consider whether and how similar the two instances of sexually assaultive behavior
actually are[,]” id. at 704 (emphasis added), and that “the question of similarity isnecessarily a part of the balancing between probative value and unfairly prejudicial
effect[,]” id. at 705 (emphasis added).
The Appellate Court ultimately held that the motions judge did not abuse his
discretion in weighing the similarity and dissimilarity and admitting the evidence. Id. at705. The motions judge, it recognized, focused on lack of consent, an issue that, in theAppellate Court’s view, contained evidence on both sides. The motions judge’s decision
to admit the evidence, therefore, clearly was not an abuse of discretion. Id. at 705–06.
For the “salaciousness” component of the inquiry, the court framed Petitioner’s
argument as follows: “[E]ven if . . . [Petitioner’s] prior conviction is admissible, [did] thetrial court nevertheless abuse[] its discretion by admitting ‘the inflammatory and dissimilarparts of that conviction which were not at all relevant to [the allegation] but were sure torouse the jury’s hostility[?]’”21 Id. at 706 (second-to-last alteration in original). While it
still addressed the merits, the Appellate Court held that Petitioner waived this argument
because he was provided the entire plea transcript on at least three separate occasions and

The court noted that the transcript contained “four pages of potentially prejudicial
details about the 2010 assault[.]” Woodlin, 254 Md. App. at 707 (emphasis added). These
facts included details of the victim’s trauma and statements from Petitioner, the victim, anda witness. Id. at 707–08.
21

19

never argued to the motions judge or trial judge his concern with the unredacted
transcript.22 Id. at 708–12.
II
STANDARD OF REVIEWThe General Assembly imported the same balancing test found in Maryland Rule 5403 (probative value versus unfair prejudice) into CJP § 10-923(e)(4). When a trial court’s
determination under Rule 5-403 undergoes appellate scrutiny, this Court has stated thatsuch determinations are “discretionary,” and, therefore, are reviewed for abuse of
discretion. Dejarnette, 478 Md. at 175. Under the abuse-of-discretion standard, we mustrefrain from reversing a lower court “simply because th[is] . . . [C]ourt would not havemade the same ruling.” State v. Matthews, 479 Md. 278, 305 (2022) (second alteration inoriginal) (quoting Devincentz v. State, 460 Md. 518, 550 (2018)). “Rather, the trial court’s
decision must be well removed from any center mark imagined by the reviewing court andbeyond the fringe of what that court deems minimally acceptable.”

Id. (quoting

Devincentz, 460 Md. at 550). In other words, an abuse of discretion occurs when “noreasonable person would take the view adopted by the circuit court.” Williams, 457 Md.

22

Even if Petitioner had preserved this argument, the intermediate court still would
have held that the circuit court did not abuse its discretion. It would be insufficient, it
believed, simply to inform the jury that Petitioner had been convicted of a prior sexual
crime; rather, the circuit court was within its discretion to present to the jury all the details
surrounding Petitioner’s prior conviction, allowing the jury to determine for itself how
similar or dissimilar the two acts were and what—if any—probative value to assign thepast conviction. Id. at 712–13. The court was careful not to assign this task solely to either
the motions judge or trial judge, noting that a motions judge could give guidance as to what
could be admitted, subject to “refinement at trial by the trial judge when confronted by theactual evidence.” Id. at 713 n.16.
20

at 563 (citing Fuentes v. State, 454 Md. 296, 325 (2017) and Alexis v. State, 437 Md. 457,
478 (2014)).
III
ANALYSIS
This is the first time we have been asked to interpret CJP § 10-923. We first explain,
utilizing our canons of statutory interpretation, why § 10-923(e)(4) does not require circuit
courts to consider any specific factor in balancing probative value against the danger of
unfair prejudice. Next, we address appropriate factors that circuit courts may consider inassessing probative value and unfair prejudice under subsection (e)(4) and in determining
admissibility generally under § 10-923(e) as a whole (that is, after a circuit court determinesthat (e)(1)–(4) have been satisfied). We then discuss why the motions judge in this case
did not abuse his discretion when he determined that the danger of unfair prejudice inadmitting evidence of Petitioner’s 2010 conviction did not substantially outweigh theevidence’s probative value.

Lastly, we briefly address how Petitioner waived anyargument concerning whether the circuit court erred by failing to sua sponte limit the scopeof the State’s evidence. We address the parties’ various arguments along the way.
A.

CJP § 10-923(e)(4) Does Not Require Circuit Courts To Consider Any Particular
FactorPetitioner concedes that § 10-923 is “silent on what factors a trial court is to consider

in balancing [a piece of relevant evidence’s] probative value against its potential for unfair
prejudice.” He admits further that a prior draft bill of the statute contained four factors thattrial courts would have been required to assess, but that the General Assembly otherwise
decided not to specify any factor and adopted the statute in its current form. These four21

factors were (1) whether the evidence offered is in dispute, (2) the similarity between thetwo offenses, (3) the closeness in time between the two offenses, and (4) the independenceof the two offenses. See Woodlin, 254 Md. App. at 704 n.10. That the General Assemblychose not to specify any of these factors, he argues, does not preclude the circuit court fromconsidering them. He goes one step further, though, arguing that “a proper assessment” ofprobative value against the danger of unfair prejudice “requires consideration of thesefactors.” (Emphasis added). Petitioner primarily relies on United States v. LeMay, 260
F.3d 1018 (9th Cir. 2001), and advocates that we, like the United States Court of Appeals
for the Ninth Circuit, should require our circuit courts to consider certain factors when
performing the required balancing under subsection (e)(4). In his view, the “list set out in
LeMay has wide acceptance. It gives wide guidance to trial courts. It mirrors most factors
considered relevant by the [General Assembly], and it allows the trial court to consider
other factors not specifically listed when they are relevant to the particular case.”
The State agrees that the General Assembly’s decision not to enumerate a list of
criteria does not preclude circuit courts from considering Petitioner’s proposed factors but
urges us to reject his plea that circuit courts must consider these factors. Instead, the Stateargues that this “task will be better served by the identification of illustrative factors, thanby mandating a rigid test akin to the one that the [General Assembly] consciously rejected.”
We agree with the State. Whether circuit courts must consider in every case certain
factors when balancing probative value against unfair prejudice under CJP § 10-923(e)(4)requires us to interpret the language of the statute, so we turn to the tools of statutory
interpretation that guide our analysis:22

Our goal is to ascertain and effectuate the intention of the legislature and we
begin that exercise by reviewing the statutory language itself. We read theplain meaning of the language of the statute as a whole, so that no word,clause, sentence or phrase is rendered surplusage, superfluous, meaninglessor nugatory. Additionally, we neither add nor delete language so as to reflect
an intent not evidenced in the plain and unambiguous language of the statute,and we do not construe a statute with forced or subtle interpretations that
limit or extend its application. If the language of the statute is unambiguous
and clearly consistent with the statute's apparent purpose, our inquiry as tolegislative intent ends ordinarily and we apply the statute as written, without
resorting to other rules of construction.
Comptroller of Md. v. FC-GEN Operations Invs. LLC, 482 Md. 343, 379–80 (2022)(emphasis added) (citations and quotation marks omitted). Keeping these provisions in
mind, we have little doubt that the General Assembly intended to give circuit courts wide
discretion and took steps not to limit the individuals in the best position to weigh probativevalue against the potential dangers of unfair prejudice.
We start, as always, with the plain text. The unambiguous language shows that the
only mandates the General Assembly placed on circuit courts under § 10-923 were to holda hearing on the State’s motion, see CJP § 10-923(d), and to require that the State satisfy
certain criteria before the circuit court could exercise its discretion as to admissibility, see
id. § 10-923(e) (permitting discretion to admit evidence only “if the court finds”
satisfaction of (e)(1)–(4)). Thus, the General Assembly expressly imposed mandatory
requirements on the circuit courts in this context when it wanted to do so. That it did not
do so in subsection (e)(4), therefore, is persuasive evidence that it did not intend to soconstrain the circuit courts. CJP § 10-923 enumerates no specific factor or factors toconsider under subsection (e)(4), but Petitioner argues that we should nonetheless adopt a
specific set of factors that courts must consider in every case. Consistent with the discretion23

we have long afforded trial courts in making determinations under Rule 5-403, we declinethat invitation.
Nor are we persuaded by Petitioner’s suggestion to follow the Ninth Circuit’s
approach in LeMay. In affirming a district court’s balancing under Federal Rule of
Evidence (“FRE”) 414 to admit evidence of LeMay’s prior sexually assaultive behavior,
the Ninth Circuit stated that there are “several factors that district judges must evaluate” indetermining whether to admit such evidence. 260 F.3d at 1027 (emphasis added). Those
factors are (1) similarity, (2) closeness in time, (3) frequency of the acts, (4) presence orlack of intervening circumstances, and (5) necessity of the evidence beyond testimonies
already offered at trial. Id. at 1028. LeMay itself was not, however, where the Ninth Circuit
adopted these mandatory factors. Rather, it previously adopted them in Doe ex rel. RudyGlanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000). Thus, we turn to that case.
In Glanzer, which involved the application of FRE 415 (the civil counterpart toFREs 413 and 414), the Ninth Circuit noted that federal courts had coalesced around athree-step inquiry to determine whether FRE 415 applied to evidence that a party seeks tointroduce at trial. Glanzer, 232 F.3d at 1268. The third step of that inquiry requires theevidence to be relevant, and the Ninth Circuit recognized that if a defendant truly has apropensity to commit the offense alleged, then evidence of the defendant previously
engaging in that specific act is relevant and conforms to the principles established in FREs
413 and 414. Id. The Court then announced and adopted the five factors it later noted in
LeMay that district courts must assess when balancing evidence pursuant to FREs 413, 414,
and 415. Id. at 1268–69. In adopting these mandatory factors, the court primarily relied24

upon the United States Court of Appeals for the Tenth Circuit’s opinion in United States v.
Guardia, 135 F.3d 1326 (10th Cir. 1998).
But Glanzer misinterpreted Guardia, which did not purport to adopt a strict set offactors that district courts must consider.

Instead, the Tenth Circuit stated that“[p]ropensity evidence, however, has indisputable probative value. That value in a given
case will depend on innumerable considerations, including” the five factors indicatedabove. Guardia, 135 F.3d at 1331 (emphasis added). Thus, the Tenth Circuit recognized—much as we do—that there is an array of factors that trial courts can consider whenbalancing probative value against the danger of unfair prejudice and—like we do below—
merely provided a non-exhaustive list of factors as guidance. Other federal courts havequestioned the strength of LeMay’s reasoning and the requirement that district courts
within the Ninth Circuit must consider special factors in determining whether to admit
evidence under FREs 413, 414, and 415. See United States v. Hawpetoss, 478 F.3d 820,
825 (7th Cir. 2007) (recognizing that Guardia did not purport to adopt a rigid test, LeMayread too much into Guardia, and that the Seventh Circuit is more flexible than LeMay andmore aligned to Guardia’s approach); see also Martinez v. Cui, 608 F.3d 54, 60 (1st Cir.
2010) (rejecting any sort of “special rules constraining district courts’ usual exercise of
discretion under FRE 403 when considering evidence under Rule 415,” including thoseannounced in LeMay).
We decline to adopt LeMay’s approach and instead conclude that our circuit courts
will be better served by affording them under CJP § 10-923(e)(4) the very same latitude
and discretion they have in making similar determinations under Maryland Rule 5-403’s
25balancing test. To the extent that the Appellate Court’s opinion could be interpreted tohold that similarity is a factor that circuit courts must consider in every case, we disagree
and reject that part of its holding. See Woodlin, 254 Md. App. at 704 (stating that circuit
courts “must consider whether and how similar the two instances of sexually assaultive
behavior are”). Our holding comports with the plain language of the statute—which
mentions no factor that circuit courts must consider—and our general approach to theexercise of discretion under Rule 5-403.
B.

Appropriate Factors To Consider Under CJP § 10-923(e)(4) And How To WeighThose Factors
Having determined that circuit courts are not required to assess any particular factor

in every case, we next discuss which factors a circuit court properly may assess. On thisissue, there is much common ground between the parties. There is no factor identified byeither party that the other believes is an inappropriate factor to consider in at least somecases. Among all the factors identified, we agree that most would be appropriate toconsider at some point in the analysis required under § 10-923(e). As we will explain,
however, some of those factors are more appropriately considered when a circuit court
balances probative value against the dangers of unfair prejudice under § 10-923(e)(4);
while others are more appropriately considered in the final determination of whether or not
to exercise discretion to admit the evidence (i.e., after the circuit court determines that §10-923(e)(1)–(4) have been satisfied). Before we discuss each factor, we make two points.
First, it generally is incumbent upon the parties to argue any factor they deem
relevant or applicable. A precondition to arguing on appeal that a factor was not properly
26

weighed or considered is that the party brought that particular factor to the circuit court’s
attention. See DeLeon v. State, 407 Md. 16, 29–30 (2008) (noting that defendant waived
in this Court evidentiary arguments on bases of relevancy and unfair prejudice where therecord reflected that he raised at trial only an objection on grounds of improper foundation);
Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unlessit plainly appears by the record to have been raised in or decided by the trial court[.]”).
Second, because the list we provide today is illustrative—not exhaustive—the Stateand future defendants are, of course, free to argue for other factors not specified in thisopinion. If the trial court believes that a factor not enumerated here is one that should beconsidered in a particular case, then it should weigh it along with all other pertinent factors,
either before making a decision under subsection (e)(4) or as to admissibility generally,
depending on the nature of the factor.
With those points in mind, we now move to the factors identified by the parties,
which we divide into three categories: those used for assessing probative value undersubsection (e)(4), those used for assessing unfair prejudice under subsection (e)(4), andthose that are better suited to the ultimate discretionary issue of admissibility aftersatisfaction of subsection (e)(1)–(4).
1. Factors concerning probative value under CJP § 10-923(e)(4)i. similarity or dissimilarity of the acts
While we do not hold that circuit courts must consider the similarity between thetwo instances of sexually assaultive behavior in every case, we nevertheless agree with theparties that it is an appropriate factor a circuit court may consider. The State argues that a27

“defendant’s other sexually assaultive conduct need only have ‘some threshold similarity
to the crime charged[,]’” and that we should focus on the similarities over the differences.
Petitioner asserts that the purpose of CJP § 10-923, at least as relevant to this case, is tobolster the credibility of A.H.; thus, evidence of “dissimilar activities with a dissimilar
individual in no way serves this same purpose and does not make [A.H.’s] testimony any
more credible or believable.”
We think the two are inextricably intertwined. Any similarity analysis necessarily
involves an assessment of both similarities and differences. Counting similarities while
ignoring differences, or vice versa, would result in an incomplete analysis.

As theAppellate Court rightly noted, as the similarity between the two acts increases, so too does
the evidence’s probative value. Woodlin, 254 Md. App. at 704. As similarity decreases(i.e., as dissimilarity increases), the more likely it is that the evidence’s probative value
will be outweighed by the danger of unfair prejudice. Id.
Once a party raises as an applicable factor the similarity or dissimilarity of the acts,
then circuit courts generally should assess at least two categories: (1) the characteristics ofthe victim and (2) the nature of the defendant’s conduct. To the former, the analysis
includes the victim’s age, biological sex, gender identity, and status (mental state, physicalprowess, capabilities, etc.); as to the defendant’s conduct, the assessment includes both themethod of perpetrating the sexual offense (use of violence/weapons, use of drugs toincapacitate, abuse of a position of trust, etc.) and the sexual offense itself (the specific acts
committed, the location of the assault, etc.). See United States v. Weber, 987 F.3d 789, 793(8th Cir. 2021) (upholding use of evidence under FRE 413 and 414 where defendant28

sexually assaulted other children by abusing his role as a pediatrician); LeMay, 260 F.3d at
1029 (noting that the propensity evidence was very similar to the crime charged: eachinvolved forced oral sex against the defendant’s younger relatives while the defendant wasbabysitting those relatives); State v. Devon D., 138 A.3d 849, 856–57 (Conn. 2016)(holding that evidence of defendant’s sexual abuse of his three biological children would
have been cross-admissible despite refusal to sever the charges because the assaults(forcing children to watch pornography and helping them bathe as a guise for digitalpenetration) involved prepubescent children and were perpetrated when the defendant had
unsupervised visitation with the children at one of two locations, and because defendant
instructed each child not to disclose the assault); State v. Ring, 424 P.3d 845, 853 (Utah2018) (holding that defendant’s prior act evidence was highly probative due to age of thevictim, setting, and opportunity, and that the passage of time, alone, was not enough tooutweigh the evidence’s probative value); State v. Davison, 636 S.W.3d 588, 594 (Mo. Ct.
App. 2021) (noting that defendant’s prior sexual acts were “quite similar” to the crime
charged in that they both involved four-year-old females whom the defendant had taken
into a bedroom and forced to perform oral sex on him and that the trial court did not abuse
its discretion in admitting that evidence); Schuler v. Comm’r of Correc., 238 A.3d 835, 845(Conn. App. Ct. 2020) (holding that defendant’s prior sexually assaultive behavior wasprobative of crime charged because it involved the same victim and, on both occasions, thevictim was intoxicated prior to going to sleep and awoke to the defendant assaulting her);State v. Modes, 475 P.3d 153, 160–61 (Utah Ct. App. 2020) (holding that evidence ofdefendant’s other sexually assaultive behavior was “highly probative” where the victim’s
29

age, setting of the offense charged, opportunity, and defendant’s modus operandi all weresimilar).
ii. temporal proximity and intervening circumstances
The parties agree that the closer in time between the other sexually assaultive
behavior and the crime charged, the more probative it becomes to proving the crime
charged. We agree with that commonsense approach. See State v. Rainey, 175 A.3d 1169,
1182 (R.I. 2018) (stating that “nonremote similar sexual offenses” against a third party bya defendant are admissible in a current trial against that defendant); State v. Summers, 629
S.E.2d 902, 906 (N.C. 2006) (noting that similarity of the acts committed and temporalproximity “govern” in the admission of a defendant’s other sexually assaultive behavior);
cf. State v. Winter, 648 A.2d 624, 629 (Vt. 1994) (“[T]emporal proximity is a prerequisite
in plan or scheme cases.”). The State posits that it is appropriate to consider intervening
circumstances between the crime charged and a defendant’s other sexually assaultive
behavior. It relies on State v. Williams, which stated:
The conduct underlying Williams’s prior conviction occurred in 1996, andthe acts with which he was charged in the present case began in 2008.
However, Williams was incarcerated for much of this period. The acts
charged began within five years of Williams’s release from prison. This isadequate to give the prior conviction probative value.
548 S.W.3d 275, 289 n.14 (Mo. 2018). Petitioner agrees with Williams, noting that“incarceration [can] . . . explain[] the lack of any temporal proximity to the charged sexual
offense by establishing that the accused was incarcerated at that time.” He also implicitly
endorses the “intervening circumstances” factor by advocating for the LeMay factors.

30

We also believe that when intervening circumstances give context to the temporalproximity between events, courts may consider them in assessing this factor. For example,
a circuit court reasonably could conclude that a period of incarceration intervening between
a prior incident of other sexually assaultive behavior and the crime at issue should be
excluded when considering the probative value of the gap in time between the events. See,e.g., id. We agree that any intervening circumstance (not just incarceration) may be an
appropriate factor to consider.
iii. frequency of sexually assaultive behavior
This factor is rather straightforward to apply: the more frequent the defendant’s
other sexually assaultive behavior, the more probative it becomes of the crime charged.
The parties agree with this assessment, and we see no reason to exclude this factor fromconsideration. See, e.g., United States v. Seymour, 468 F.3d 378, 382 (6th Cir. 2006)(approving two sexual assault witnesses’ testimony under FRE 414 because the district
court concluded that the assaults occurred close enough in time to the crime charged “andwith enough frequency to be sufficiently probative”); People v. Trujillo Garcia, 89 Cal.
App. 4th 1321, 1332 (2001) (noting that the value of uncharged sexual misconduct will
depend on various factors including frequency, similarity, and temporal proximity to thecharged offense).
2. Factors concerning unfair prejudice under CJP § 10-923(e)(4)i. overshadowing of the crime charged
According to Petitioner, in assessing whether unfair prejudice exists, courts should
weigh “the inflammatory character of the evidence against the utility the evidence will31

provide to the jurors’ evaluations of the case.” The State concedes that this factor weighsin favor of admission when the sexually assaultive behavior is “comparable to, or less than,that of the charged conduct[.]”Again, common sense dictates that this is an appropriate factor for circuit courts toconsider. If juries were allowed to consider heinous acts that completely overshadow thecrime charged, then we run the risk that juries predominantly will focus on the othersexually assaultive behavior and not the present charge. See Davison, 636 S.W.3d at 594(recognizing overshadowing as one of many factors in a propensity-evidence analysis);State v. Meeks, 34 N.E.3d 382, 398 (Ohio Ct. App. 2015) (noting that juries are more likely
to convict based on propensity grounds when the other crimes/bad acts evidence is more
inflammatory than the crime charged).
ii. the jury’s knowledge that a defendant previously was punished
The State argues that the jury’s knowledge of a conviction (as opposed to just mere
allegations) can be beneficial to a defendant. As the State sees it, when a jury “knows thedefendant was convicted for the past criminal acts,” it will be less likely to “infer (or, worse,
speculate) [that] the defendant escaped punishment in the past [and] be inclined to convict
merely to punish the defendant for past criminal acts[.]” Petitioner argues that while
informing a jury of a defendant’s past conviction can decrease the risk that the jury willconvict the defendant of the currently charged crime on improper grounds, such knowledge
does not eliminate the risk.23

Petitioner further contends that informing juries about a defendant’s priorconviction—absent any information about the actual sentence received—does more harm
2332

We agree this may be an appropriate factor a circuit court may consider. If a jury is
not given the opportunity to speculate whether the other sexually assaultive behavior
resulted in a conviction, then it is less likely to be swayed by the notion that the defendantpreviously escaped punishment. See United States v. Lau, 828 F.2d 871, 874 (1st Cir.
1987) (weighing probative value of prior bad act evidence against the prejudicial risk thata jury would convict a defendant as punishment for past conduct); Williams, 548 S.W.2d
at 290 (noting that a factor bearing on the prejudicial nature of propensity evidence is“whether the jury knows or can fairly infer [that] the defendant was punished for his [orher] past criminal acts”); Rodriguez v. State, 245 P.3d 818, 826–27 (Wyo. 2010) (holdingthat trial court provided a well-reasoned analysis for admitting prior convictions where it
stated, among other things, that “the previous acts resulted in convictions, so a jury should
not be tempted to punish [Mr.] Rodriguez for having ‘escaped’ penalty in the past”(alteration in original)).
All that is not to say that the State’s attempt to use evidence that did not result in
conviction (i.e., uncharged or unproven allegations) automatically is a factor that weighsin favor of excluding evidence of the other sexually assaultive behavior. We note only that
the State, in informing the jury that the defendant’s prior conduct resulted in a conviction,

than good. He believes this occurred in his case because the plea transcript contained no
information about his sentence, which allowed the jury to unduly speculate. This argument
makes too much of too little. If Petitioner believed he was disadvantaged by the jury not
being informed of the sentence he received, then he could have asked that it be so informed.
We nevertheless offer no view concerning how a trial court should exercise its discretion
when considering how much information the jury should be permitted to hear about adefendant’s other sexually assaultive behavior, which must be assessed on the facts of each
case.
33

can lessen the fear that the jury will convict simply because the jury believes the defendant
escaped punishment for the other sexually assaultive behavior.
3. Factors concerning admissibility generally after the State has satisfied CJP§ 10-923(e)(1)–(4)i. needThe parties both address “need” as a factor under § 10-923(e)(4). Petitioner
acknowledges that it is a relevant factor for courts to consider by advocating for the LeMay
factors, but he does not discuss it further. The State, also citing LeMay, argues that
evidence of a defendant’s other sexually assaultive behavior need only be practicallynecessary to the State’s case to warrant admission.

This factor weighs in favor ofadmission, the State believes, when the victim’s testimony in the current case is the primaryor only evidence of the underlying charge and the defendant challenges the victim’s
credibility.
We agree that the State’s need for this evidence is something a circuit court canconsider, but it is a consideration for the court’s discretion regarding admissibility
generally—not the balancing specifically performed under § 10-923(e)(4). In other words,
the State’s need for the evidence is not considered until the court has first concluded, in its
consideration of § 10-923(e)(4), that the probative value of the evidence is not substantiallyoutweighed by the danger of unfair prejudice. Furthermore, the State’s need for evidenceof a defendant’s other sexually assaultive behavior as part of its case-in-chief is a factor,
like many others addressed herein, that can cut both ways—for or against the State. As theState lacks other evidence to carry its burden at trial, the probative value of the other34

sexually assaultive behavior increases, as does the State’s need for such evidence.24 In thesame vein, the risk that a jury will use such evidence for an improper propensity purpose
also increases. Conversely, where the circuit court reasonably could conclude that the Statehas other viable means of proving the currently charged crime, the “need” factor may cut
against the State and in favor of exclusion. We recognize that this is a rather difficult factor
to balance, but one that circuit courts diligently must consider—from both sides—before
making an ultimate determination whether this factor weighs in favor of inclusion or
exclusion.
ii. clarity and manner
The State addresses two more factors: the clarity with which it can prove the othersexually assaultive behavior and the manner in which it seeks to prove the other sexuallyassaultive behavior. As the State sees the clarity component, conduct that has “resulted ina conviction [is] more probative than uncharged allegations of such conduct.” Regarding
manner, it argues that when the evidence is “limited to a few instances that can be presented
without requiring a ‘mini trial,’” this factor weighs in favor of admission.
The State’s argument as to clarity already is encapsulated by the requirement that
the State prove by clear and convincing evidence the defendant’s involvement in the othersexually assaultive behavior under § 10-923(e)(3).

24

Nothing we say should be read as permitting the State to use propensity evidence
in lieu of its obligation to prove beyond a reasonable doubt a defendant’s guilt based on
the evidence related to the offense currently charged.
35

With respect to “manner,” Maryland Rule 5-403 permits a trial court to exclude apiece of otherwise relevant evidence for a variety of reasons, not just unfair prejudice.
Under that rule, the court also can consider whether the evidence would confuse the issues,
mislead the jury, amount to an undue delay or waste of time, or represent cumulative
evidence. Md. Rule 5-403. Arguing that a piece of evidence likely is to produce a “minitrial” is a hallmark invocation of confusing the issues or an undue delay. See Lund v.
Henderson, 807 F.3d 6, 11 (1st Cir. 2015) (affirming trial court’s decision to exclude priorcomplaint evidence against defendant-police officer because defendant would havechallenged each complaint, resulting in a mini trial); United States v. Williams, 464 F.3d
443, 448 (3d Cir. 2006) (affirming district court’s exclusion of witness’ prior conviction
for murder because not probative as to truthfulness or untruthfulness and potential to cause
an unnecessary mini trial); United States v. Fonseca, 435 F.3d 369, 376 (D.C. Cir. 2006)(calling a police officer to testify on a collateral issue would have caused a delay and amini trial, both of which FRE 403 seeks to avoid). For that reason, we agree that themanner of presentation of evidence of other sexually assaultive behavior may beappropriate for a circuit court to consider.

Like with “need,” however, we thinkconsideration of “manner,” if raised by a party, is an argument better addressed when acircuit court exercises its discretion whether to admit the evidence only once the court hasdetermined that the factors listed in (e)(1) through (4) have been satisfied.

36

C.

The Motions Judge Did Not Abuse His Discretion When He Determined That The
Danger Of Unfair Prejudice Did Not Substantially Outweigh The Probative ValueOf Petitioner’s Prior Conviction, And Petitioner Waived Any Argument That The
Circuit Court Sua Sponte Should Have Limited The Scope Of The State’s
Evidence
As previously stated, it is incumbent upon the parties to argue any factor they deem

relevant to the inquiry under CJP § 10-923(e)(4). Petitioner argues in this Court that his
2010 conviction is both dissimilar to and more inflammatory than his assault on A.H. But
Petitioner failed to make any argument concerning inflammatory nature in the circuit court.
Concerning subsection (e)(4), he argued only that the facts of his 2010 conviction were too
dissimilar from his assault on A.H.25 Thus, Petitioner has forfeited any argument that thecircuit court erred by improperly weighing the inflammatory factor, and we consider only
Petitioner’s arguments regarding similarity. See Md. Rule 8-131(a).

Although Petitioner’s trial counsel noted that Petitioner’s prior conviction was 10
years old, he did not argue that temporal proximity was a factor weighing in favor of
exclusion under CJP § 10-923(e)(4). At the motions hearing, trial counsel stated:
25

But we are talking about an allegation from ten years prior of sexual assault
on an adult. The idea that this evidence could somehow be introduced as it
relates to rebutting what is going to happen which is an attack on the victim’s
credibility, the fact that [Petitioner] was convicted of sexually assaulting anadult has very little probative value, if any, I would suggest none, or as it
relates to the allegations of sexual assault upon minor victim, which have tosay, I don’t see even if the Court wanted to suggest or conclude that there
was an opportunity to cross-examine, and there is nothing in the record thatsuggests that [Petitioner] had an opportunity to cross-examine any of these
individuals.
Rather, the thrust of trial counsel’s arguments went to confrontation under subsection (e)(2)and similarity under subsection (e)(4).
37

As to similarity, Petitioner highlights the following differences between the twocases: the insertion of foreign objects on one victim versus performing fellatio andanilingus on the other, without the use of foreign objects; adult victim versus minor victim;
no familial relationship versus a familial relationship; unconsciousness of one victim
versus consciousness of the other; and, if conscious, ability of adult victim to have legallyconsented to the sexual acts versus inability for the minor victim to consent to any sexualact. The State, on the other hand, believes there are enough similarities between the two
assaults. It argues that both involved vulnerable male victims who were assaulted in theanal area.
The standard of review in this case bears repeating: abuse of discretion. To rule in
Petitioner’s favor, we must be prepared to find that the motions judge’s decision was so far
removed from any center mark imagined by this Court that it places that decision “beyond
the fringe of what we deem minimally acceptable.” Matthews, 479 Md. at 305. We cannot
say that occurred here. As the Appellate Court noted, the motions judge focused on what
he saw as the common denominator between the two assaults: consent, see Woodlin, 254
Md. App. at 705–06, questioning whether it “matter[ed],” that one victim was adult, andone was a minor. The motions judge considered each side’s arguments attempting tohighlight the similarities or differences, ultimately concluding—in his discretion—that thetwo events were “consistent enough,” to find that the danger of unfair prejudice did not
substantially outweigh the probative value of Petitioner’s 2010 conviction. Armed withplausible interpretations supporting either side, we will not superimpose our judgment overthe motions judge’s well-supported determination. See Matthews, 479 Md. at 305. In other38

words, we cannot say that no reasonable person would have concluded as the motions judge
did. See Williams, 457 Md. at 563.
Petitioner also asks this Court to address an argument that the Appellate Court
determined was waived: whether the circuit court “nonetheless erred in admitting all theevidence concerning [the] past offense” and “not using its discretion to limit the admission
to the minimal facts necessary to achieve the prosecution’s goal of bolstering [A.H.’s]
credibility.” We agree with the Appellate Court that this issue is not preserved for appellate
review. Woodlin, 254 Md. App. at 708–13. Giving every benefit of the doubt to Petitioner,
trial counsel knew as early as the October 2020 pre-trial conference that the State wasseeking to introduce the entire 2010 plea transcript, testimony from Cpl. Creason, and atrue test copy of Petitioner’s conviction, and the State provided the entire plea transcript toPetitioner on multiple occasions. Petitioner did not object to the scope of the evidence at
the motions hearing, the October 2020 conference, or at trial when the State officiallyintroduced it. To the contrary, he only ever argued at the motions hearing that the court
should exclude all evidence of his 2010 conviction, and his objections were to theadmissibility of the entirety of the evidence offered by the State, not specific portions.
Petitioner’s decision not to ask at any point for the motions judge or the trial judge to limit
the scope of the State’s evidence means that this issue was not preserved for appellate
review. See Md. Rule 8-131(a). Indeed, after learning at the October 2020 pre-trial
conference the exact scope of the evidence the State intended to introduce, trial counsel
told the motions judge that he had no further questions and simply would object, when39

appropriate, at trial. Trial counsel’s objections at trial, as to this issue, only ever concerned
what he believed was a confrontation issue under CJP § 10-923(e)(2).
Thus, his argument that the circuit court had an independent duty to limit the scopeof the State’s evidence is not preserved, and we see no basis to exercise our discretion toreview it.26 See Conyers v. State, 367 Md. 571, 594 (2002) (describing appellate review
pursuant to Rule 8-131(a) as an “exceptional circumstance” and “discretionary, notmandatory”).
IV
CONCLUSION
The plain, unambiguous language of CJP § 10-923(e)(4) does not require circuit
court judges to consider in every case any particular factor when balancing evidence of adefendant’s other sexually assaultive behavior against the danger of unfair prejudice, andwe decline to impose such a requirement. Nevertheless, as outlined above, there arevarious factors that a circuit court may consider during that balancing exercise, and it

26

Although we are satisfied that basic waiver principles resolve this issue, we cannot
ignore the possibility that Petitioner’s failure to make any such argument in the circuit court
could have been a strategic trial decision. Petitioner knew the jury was going to hearsomething about his prior conviction. The only determination left in which he had any
potential say was how many details about it would go before the jury. Petitioner could havedetermined that, if the jury were bound to hear about his prior conviction, it was in his bestinterest that it hear everything, including the dissimilarities that provided a basis for arguingthat the earlier incident was not relevant. Absent the full details of his past criminal actions,the jury possibly could speculate about the specific conduct that formed the basis for thatprior conviction, creating the potential that it would convict on propensity grounds. We
naturally cannot know whether this indeed was Petitioner’s reasoning for not advancing anargument to limit the scope of the State’s evidence. But, if it is, he cannot have it bothways. He cannot now claim error having had the benefit of testing what he thought wassound trial strategy—merely because that strategy did not pay off.
40

generally is incumbent on the parties to bring any factor they deem applicable to the circuit
court’s attention. Circuit courts must balance and weigh all appropriate factors—just as
they would in any other case under Maryland Rule 5-403—before deciding whether thedanger of unfair prejudice substantially outweighs the probative value of evidence of adefendant’s other sexually assaultive behavior. If the circuit court determines that the State
has satisfied § 10-923(e)(1)–(4), then—and only then—may the circuit court exercise
discretion to admit or exclude the evidence in question.
Here, the motions judge did not abuse his discretion in determining that the dangerof unfair prejudice did not substantially outweigh the probative value of Petitioner’s 2010
conviction. The motions judge considered the parties’ arguments as to the similarity
between the two acts—the only factor raised by Petitioner—and believed that a lack ofconsent from vulnerable male victims, who experienced an assault to their anal area, wasenough of a similarity to outweigh the danger of unfair prejudice. We cannot say that
determination, after weighing evidence from both sides, constitutes an abuse of discretion.
Petitioner also waived any argument that the circuit court sua sponte should have limited
the scope of the State’s evidence. Therefore, we affirm Petitioner’s conviction.

JUDGMENT OF THE APPELLATE
COURT OF MARYLAND AFFIRMED.
COSTS TO BE PAID BY PETITIONER.

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The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/22a22cn.pdf