John Matthew Woodlin v. State of Maryland , No. 22, September Term, 2022. Opinion by

Eaves, J.

CRIMINAL LAW — MARYLAND REPEAT SEXUAL PREDATOR PREVENTION ACT OF 2018 — STATUTORY INTERPRETATION The Supreme Court of Maryland held that the Maryland Repeat Sex ual Predator Prevention Act of 2018, codified under the Courts and Judicial Proceedings Article, § 10-923, does not require a circuit court to consider any particular factor whe n it determines whether the probative value of the evidence the State seeks to admit outw eighs the danger of unfair prejudice under § 10-923(e)(4). Rather, the Court explained that there is an array of factors that a circuit court can consider, and the Court provided a non-exhaustive list of appropriate factors to guide the circuit courts in future cases

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CRIMINAL LAW — MARYLAND REPEAT SEXUAL PREDATOR PREVENTION ACT OF 2018 — ADMISSIBILITY OF PROPENSIT Y 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 danger of unfair prejudice in Petitioner’s current case, w here he sexually assaulted his grandson by performing fellatio on him and touching and lick ing his grandson’s buttocks.

APPELLATE PROCEDURE — WAIVER The Supreme Court of Maryland held that Petitioner failed to preserve for appeal his argume nt that the circuit court erred in failing to sua sponte limit the scope of the evidence of his 2010 convic tion 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. 22 September Term, 2022

JOHN MATTHEW WOODLIN

v. STATE OF MARYLAND

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

JJ.

Opinion by Eaves, J.

Filed: July 26, 2023 * At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.A common law rule in American jurisprudence prohibi ts a government from using

in the criminal prosecution of a defendant “evidenc e of [that] defendant’s evil character to establish a probability of his [or her] guilt.” 1 Such evidence includes the defendant’s “prior trouble with the law, specific criminal acts, or il l name among his [or her] neighbors[.]” 2 This rule exists not to give a defendant a leg up i n any criminal prosecution, but rather because such evidence likely will “weigh too much w ith the jury and . . . overpersuade [it so] 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 a person’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. Maryland , 332 Md. 65, 74–75 (1993); United States v. Costello , 140 F.3d 874, 881 (6th Cir. 1998).

5 See Vogel v. State , 315 Md. 458, 466 (1989) (establishing the rule th at evidence of a defendant’s other sexually assaultive behavior—ag ainst 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 excepti on announced in Vogel ).2

Expanding on that common law exception, the General Assembly passed the Maryland Repeat Sexual Predator Prevention Act of 2 018, codified under the Courts and Judicial Proceedings Article (“CJP”) (1974, 2020 Re pl. Vol.) as § 10-923, to allow the

State to move to introduce in a criminal trial for certain sexual offenses evidence of the defendant’s “other sexually assaultive behavior” th at occurred either before or after the crime currently charged. Under CJP § 10-923, the S tate may introduce evidence of prior sexually assaultive behavior involving different vi ctims to help establish credibility in qualifying sexual assault cases. The statute was e nacted in recognition that many sexual assault offenses occur in private and may not gener ate any physical evidence. 6 The admissibility of evidence under CJP § 10-923 depend s on two necessary, sequential events: (1) the State proving at a required hearing four cr iteria 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 sexua l 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 introduc ed evidence of Petitioner’s prior

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

7 Like the intermediate appellate court below, for p rivacy reasons, we refer to the minor 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).3

conviction, and he ultimately was convicted by a ju ry; he noted a timely appeal. The Appellate Court of Maryland 8 affirmed the circuit court’s decision to put befor e the jury

evidence of Petitioner’s 2010 offense and affirmed his conviction in this case. Petitioner sought review in this Court, and we gran ted certiorari, 482 Md. 31 (2022), to answer the following questions, which we have re phrased 9 :

8 At the November 8, 2022, general election, the vot ers of Maryland ratified a constitutional amendment changing the name of the C ourt of Special Appeals of Maryland to the Appellate Court of Maryland. The name chang e took effect on December 14, 2022.

9 This 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 circumstance s of prior sexually assaultive behavior in prosecutions for child sexua l offenses, what factors must a trial court consider in determining whether the probative value of that prior sexually assaultive behavior is substantially outweighed by the danger of unfair prejudice, and, specifically, is the simi larity or dissimilarity between the two offenses one of those factors? 2. As a matter of first impression, how should [the ] trial [court] apply these factors, including the dissimilarity between the tw o offenses, in determining whether the probative value of the prior sexual ass aultive behavior is substantially outweighed by the danger of unfair pr ejudice, as required by §10-923(e)(4)? 3. As a matter of first impression, if the trial co urt has determined that the probative value of the prior sexual assaultive beha vior is not substantially outweighed by the danger of unfair prejudice, how m uch of the factual details including the dissimilarities between the past and present offense [may] be admitted at trial before the jury and what factors should be considered in making that determination?

4. Did the trial court abuse its discretion at Peti tioner’s trial for sexual abuse and rape of his minor grandson when it admitted evi dence of Petitioner’s ten4

1. Under CJP § 10-923(e)(4), must a circuit court cons ider certain specific factors in determining whether the probative value of a defend ant’s other sexually assaultive behavior substantially outweighs the danger of unfa ir prejudice?

2. How should circuit courts weigh any identified fact ors when conducting an analysis under CJP § 10-923(e)(4)?

3. Did the motions judge abuse his discretion when he determined that the probative value of Petitioner’s 2010 conviction was not subst antially 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 b y the danger of unfair prejudice, then was either the motions judge or the trial judge nev ertheless required to sua sponte limit the scope of the evidence presented to only certain det ails 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), and

we 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 he determined that the probative value of Petitioner’s 2010 conviction was not substantially outweighed by the danger of unfair prejudice. Last ly, 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 ar gument during any of the circuit court proceedings. Thus, for these reasons detailed belo w, we affirm the judgment of the Appellate Court.

year old sexual abusive behavior on an adult male w hich was substantially dissimilar from the child abuse for which he was on trial?5 I BACKGROUND Before addressing the merits of this appeal, we pro vide an overview of some pertinent evidentiary principles, as well as the fa cts and procedural history of Petitioner’s

case. A. Admissible Evidence Generally, Historical Excep tions 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 adm issible evidence in the prosecution of

sexual crimes. 1. Evidence Generally Our rules make clear: relevant evidence is generall y admissible; evidence that is not

relevant is inadmissible. 10 Md. Rule 5-402. Two exceptions to Rule 5-402’s g eneral policy of 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 . . . to prove the character of a person in order to show ac tion in the conformity therewith[,]” otherwise known as “propensity evidence,” and Rule 5-403, which excludes relevant

10 “Relevant evidence” is that which has “any tendenc y to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5 -401.6

evidence if its probative value is substantially ou tweighed by, among other things, the danger of unfair prejudice. The policy consideration underlying Rule 5-404(b) i s to avoid tainting the jury into thinking that the defendant is a bad person “who sh ould be punished regardless of his [or her] guilt of the charged crime, or to infer that h e [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 historically has been admissible to prove things other than a de fendant’s general propensity to commit a crime, such as “proof of motive, opportunity, int ent, preparation, common scheme or plan, 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 prohibit ion of propensity evidence). We do not exclude relevant evidence merely because it is prejudicial, as “[a]ll evidence, by its nature, is prejudicial.” Williams v. State , 457 Md. 551, 572 (2018). Rule

5-403 instead excludes relevant evidence when its unfairly prejudicial nature substantially outweighs its probative value. Under Rule 5-403, u nfair 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 (effecti ve 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 Ju ly 1, 2019, and is the counterpart to CJP § 10-923, authorizing the introduction of certa in propensity evidence in compliance with that statute.7

tending to prove the fact or issue that justified i ts 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 con templates the introduction of some propensity evidence against a defendant. But the statute is not a radical departure from Rule 5-404(b)’s underlying policy. Indeed, th is is not the first time we have treated propensity evidence differently in the prosecution of sexual offenses. 12 2. Common law exception for the prosecution of sexu al crimes In 1989, this Court held that in Maryland, there ex ists a “‘sexual propensity’ exception to the rule excluding evidence of other c rimes[.]” Vogel v. State , 315 Md. 458, 462 (1989). In reaching this holding, the Court no ted that the exception “is strictly limited to the prosecution for sexual crimes in which the p rior illicit sexual acts are similar to the offense for which the accused is being tried and in volve the same victim.” Id. at 466. The

rule announced in Vogel was, therefore, a narrow common-law exception to t he 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 sexua lly 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, 2 136–37 (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 crime s).8

extend its holding in Vogel . . . and allow evidence of a defendant’s prior ra pes and sexual assaults to show such a propensity beyond the limit ations 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 fro m the General Assembly “or by this Court, sitting in its legislative capacity, exercis ing its authority to enact Rules of Practice and Procedure and Rules of Evidence[,]” id. at 418, “not by judicial fiat[,]” id. at 417.

Since Vogel , this Court reiterated that the exception exists t o 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 concern ed 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 and enacted CJP § 10-923. The statute codifies and exp ands the narrow exception announced

in Vogel , as § 10-923’s application is limited by neither t he victim’s identity nor, as we explain below, similarity of the act committed. Un der that section, if the State tries a defendant for (1) a sexual crime under Title 3 of t he Criminal Law Article (“CR”), (2) sexual abuse of a minor under CR § 3-602, or (3) se xual abuse of a vulnerable adult under CR § 3-604, evidence of the defendant’s other sexua lly 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 immed iately noted above, as well as (4) a9

violation of 18 U.S.C. Chapter 109A 13 or (5) a violation of the law of another state, th e United States, or a foreign country that is the equ ivalent of an offense under items (1)–(4).

Id. § 10-923(a). In other words, the statute does not require that the other sexually assaultive behavior yield a conviction. To introdu ce such evidence, the State must file a motion at least 90 days before trial, describing th e evidence that it seeks to introduce. Id. § 10-923(c). The circuit court then must hold a he aring 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 eviden ce is offered either to (i) prove a lack of consent or (ii) rebut an express or implied allegat ion that a minor victim fabricated a sexual offense, (2) the defendant had the opportunity to c onfront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior, (3) the sexually assaultive behavior was proven by clear and convincing evidenc e at the required hearing, and (4) the probative value of the evidence is not substantiall y outweighed by the danger of unfair prejudice. Id. § 10-923(e). As the plain language makes clear, before the circu it court can exercise discretion as 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 assault ive 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.10

of the criteria in (e)(1)–(4) is not satisfied, the n 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 th at 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 satis fied 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 ev idence; 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 rea ding of the statute, thus, shows that when the State seeks to admit evidence under § 10-9 23, the circuit court, assuming subsections (e)(1)–(3) are satisfied, will always exercise discretion at least once (in determining whether the State can satisfy subsectio n (e)(4)) and potentially twice (in determining whether to admit the evidence after it finds that the State has satisfied, if indeed11

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, Septemb er 13, 2019, and because Petitioner then was homeless, his daughter—A.H.’s m other (“Mother”)—permitted Petitioner to stay the night at her home, as she ha d on prior occasions. At the time, Mother

lived with her husband and her three children: A.H. , who was ten years old, and A.H.’s two

older sisters. Mother’s bedroom was on the first f loor while the children’s bedrooms were on 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. Sometime that 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 oth er criteria in (e)(1)–(3). At the very least, subsection (e)(3)—determining whether the St ate has proved by clear and convincing evidence a defendant’s involvement in the other sex ually 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 t he accused’s involvement in the other crimes is established by clear and convincing evide nce. We will review this decision to determine whether the evidence was sufficient to su pport the trial judge’s finding.” (citations omitted)).

15 Although several witnesses testified that Petition er was supposed to sleep on the couch downstairs, A.H. testified that Petitioner so metimes would sleep on the couch downstairs and sometimes would sleep on an air matt ress 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.12

he and A.H. began play fighting, which was not an u ncommon 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–thre e fingers “on [A.H.’s] butt” and in his “butt crack,” but Petitioner did not touch A.H.’s a nus. Petitioner also licked A.H.’s “butt crack.” 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 p laced 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. i mmediately left his room and woke up his eldest sister, who let A.H. sleep in their o ther sister’s bed, as that sister was not home that evening. The two did not discuss what happene d, but A.H.’s sister testified that A.H. looked frightened. A.H. heard crying and then a do or shut. A.H. presumably heard

Petitioner leave Mother’s house because Petitioner’ s other daughter (“Aunt”) eventually saw Petitioner outside (undetermined where) and bro ught him back to her house. 16 Petitioner called Mother Saturday morning, crying a nd claiming that A.H. was trying to get him “locked up[.]” Petitioner turned the tables and accused A.H. of sexually assaulting him. Mother immediately hung up the pho ne. 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, A unt was aware of the assault that had just taken place.13

help to encourage A.H. to share the details of what occurred the prior night. A.H. eventually disclosed to Aunt that Petitioner sexual ly assaulted him. Aunt called Mother and the police and brought A.H. to the hospital whe re 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 M ollie Kotis, of the Child Advocacy Center, interviewed A.H., who confirmed th at Petitioner sexually assaulted

him. 17 Detective Sergeant Tom Funk of the Wicomico Count y Sheriff’s Office was assigned as the lead detective and observed Ms. Kot is’ interview with A.H. After that interview, a different detective located Petitioner, who agreed to speak with Det. Sgt. Funk at the station. During the int erview, Petitioner proffered a different series of events: he admitted going to Mother’s hou se the night of the incident, but he disclaimed ever going inside. Instead, he maintain ed that he was there strictly to pick up a bus ticket, which one of his granddaughters hand-de livered to him. He denied seeing or having any contact with his grandchildren in severa l years. Petitioner eventually was arrested and charged with child sexual abuse and ot her sexual offenses.

17 A.H.’s trial testimony slightly varies from his re collection of events during Ms. Kotis’ interview. During the interview, for exampl e, he made the following assertions that differed from his trial testimony:

 When Petitioner arrived at A.H.’s room, A.H. was as leep 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 respon ded by stating that they wanted to kill Petitioner.

 A.H. told his mother about the assault after Petiti oner left.14

C. Procedural Background 1. Circuit court proceedings Before trial, the State timely sought to introduce under CJP § 10-923 evidence of Petitioner’s 2010 conviction, by way of a guilty pl ea, for a third-degree sexual offense. As the basis for that conviction, Petitioner previousl y admitted that he inserted both a broomstick and a vacuum hose (not simultaneously) i nto an unconscious male adult’s rectum and photographed the victim while those fore ign objects were inside the victim. At the required hearing under § 10-923(d), the Stat e indicated that both the victim of and eyewitness 18 to Petitioner’s 2010 criminal conduct were decease d. Thus, the State intended to introduce a copy of the 2010 guilty ple a transcript, which the State provided to Petitioner in advance of the hearing. Petitioner a rgued that the State could prove only the third requirement under CJP § 10-923(e): that his o ther sexually assaultive behavior (as a prior conviction) was proven by at least clear and convincing evidence. While Petitioner argued that the State could not satisfy the first t wo elements—a permissible purpose for the 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’s contention that the State failed to satisfy the fou rth criterion: whether the danger of unfair

18 At the hearing, the State characterized this indivi dual as the “witness” to Petitioner’s prior sexually assaultive behavior. D uring Petitioner’s 2010 guilty plea for that conduct, however, it was clear that no individ ual actually witnessed Petitioner sexually assaulting the now-deceased victim. Rather, Petiti oner showed the photos documenting his sexual assault of the victim to a third party a nd told that third party that he (Petitioner) was the one who both perpetrated the depicted assau lt and took the photographs.15

prejudice in admitting any evidence of the 2010 con viction substantially outweighed that evidence’s probative value. As to that issue, Petitioner argued at the hearing that presenting such evidence to a jury would be “substantially more prejudicial than [it would be] probative[.]” In his view, the two crimes were not similar enough to be admiss ible: first, this case concerned a minor victim, and the prior sexual offense was against an adult victim; and second, the prior case involved insertion of foreign objects while this ca se contained no “weapon[.]” The State argued that Petitioner’s emphasis on dissimilaritie s between the two acts was misplaced. Preliminarily, the State argued that the plain lang uage of CJP § 10-923 does not require that the two instances of sexually assaultive behav ior be similar or in any way connected. Second, even if the court were looking for similari ties between the two instances, the State noted that both victims are male, penetration occur red against both victims, 19 and that

consent was at issue. The motions judge likewise gleaned an underlying is sue of consent in each case: [THE COURT]: I mean, in the adult case, the . . . v ictim is not awake or is not able to give consent. The defendant sexually a ssaults the person. In this case, it’s going upstairs into a bedroom wh ere you have a minor victim who is, you know, not able to give consent, is eith er awake or asleep and woken up. I mean, does it matter adult versus mino r[?]

19 When the State asserted that both cases involved a nal 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. A t the hearing, the parties were focused on A.H.’s statements during his interview with Ms. Kot is, which did allege digital penetration. Petitioner’s counsel acknowledged that during oral arguments.16 * * * [T]he conduct is still sort of sexually assaultive behavior against someone that either didn’t or can’t give consent. The motions judge ruled that the State had satisfie d 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 of admitting 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 substanti ally outweighed by the danger of unfair prejudice.” He then subsequently ruled that eviden ce of Petitioner’s 2010 conviction was

admissible. Petitioner filed a motion to reconsider, asking the motions judge to revisit his prior ruling under CJP § 10-923 and, to the extent that h e 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 Petitio ner 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 und er CJP § 10-923(e)(2). The State

disclosed that it had located the law enforcement o fficial who previously investigated

Petitioner’s 2010 conviction and that it would use that detective’s testimony to bring in the

20 At the pre-trial conference, Petitioner’s counsel stated why he believed “the Court’s construction [of 10-923 was] . . . problema tic.” The motions judge asked if counsel was referencing the “motion to reconsider that was filed on August the 24th[.]” Counsel confirmed that he was.17

previously provided plea transcript. Petitioner th en asked the motions judge for guidance on 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 to elicit testimony from the 2010 detective—confined t o the information within the four corners of the plea transcript—and introduce the pl ea transcript previously provided to Petitioner “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 le ast 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 St even Creason of the Queen Anne’s County Office of the Sheriff. Cpl. Creason previou sly worked for the Ridgely Police Department in Caroline County and was assigned to i nvestigate the circumstances of what

came to be Petitioner’s 2010 conviction. Petitione r 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. Cre ason’s testimony and that the motions judge previously decided this issue. The State con firmed that it was limiting Cpl. Creason’s testimony to the contents of the 2010 ple a transcript. Petitioner raised only a confrontation issue to the trial judge: [N]either [Petitioner] nor I have ever had an oppor tunity to cross-examine the individual who is the alleged victim in this ca se. 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 jus t keep saying I object a lot.18

The trial judge overruled that initial objection an d the other ensuing objections throughout the State’s direct examination of Cpl. Creason. Th e trial judge also overruled Petitioner’s objections to the admission of the 2010 plea transc ript and the true test copy of his conviction. That same day, the jury convicted Peti tioner of sexual abuse of a minor and related 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 pr ior 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 20 10 conviction was too salacious to be

admitted. The intermediate court found it “necessa ry 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 mus t “first determine what role the similarity or dissimilarity between the offenses pl ays . . . . 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 pr ejudice.” Id. at 702–03. The court noted that a similarity analysis is a relevant ques tion 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 t hat courts consider a set list of factors, as19

[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 is necessarily a part of the balancing between probative value an d unfairly prejudicial effect[,]” id. at 705 (emphasis added). The Appellate Court ultimately held that the motion s judge did not abuse his discretion in weighing the similarity and dissimila rity and admitting the evidence. Id. at 705. The motions judge, it recognized, focused on lack of consent, an issue that, in the Appellate Court’s view, contained evidence on both sides. The motions judge’s decision to admit the evidence, therefore, clearly was not a n abuse of discretion. Id. at 705–06. For the “salaciousness” component of the inquiry, t he court framed Petitioner’s argument as follows: “[E]ven if . . . [Petitioner’s ] prior conviction is admissible, [did] the trial court nevertheless abuse[] its discretion by admitting ‘the inflammatory and dissimilar parts of that conviction which were not at all rele vant to [the allegation] but were sure to rouse the jury’s hostility[?]’” 21 Id. at 706 (second-to-last alteration in original). W hile it still addressed the merits, the Appellate Court hel d that Petitioner waived this argument because he was provided the entire plea transcript on at least three separate occasions and

21 The court noted that the transcript contained “fou r 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 s tatements from Petitioner, the victim, and a witness. Id. at 707–08.20

never argued to the motions judge or trial judge hi s concern with the unredacted transcript. 22 Id. at 708–12.

II STANDARD OF REVIEW The General Assembly imported the same balancing te st found in Maryland Rule 5- 403 (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 that such determinations are “discretionary,” and, there fore, are reviewed for abuse of

discretion. Dejarnette , 478 Md. at 175. Under the abuse-of-discretion st andard, we must refrain from reversing a lower court “simply becaus e th[is] . . . [C]ourt would not have made the same ruling.” State v. Matthews , 479 Md. 278, 305 (2022) (second alteration in original) (quoting Devincentz v. State , 460 Md. 518, 550 (2018)). “Rather, the trial cou rt’s decision must be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimall y acceptable.” Id. (quoting

Devincentz , 460 Md. at 550). In other words, an abuse of dis cretion occurs when “no reasonable person would take the view adopted by th e circuit court.” Williams , 457 Md.

22 Even if Petitioner had preserved this argument, th e 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 dis cretion 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 the past conviction. Id. at 712–13. The court was careful not to assign th is task solely to either the motions judge or trial judge, noting that a mot ions judge could give guidance as to what could be admitted, subject to “refinement at trial by the trial judge when confronted by the actual evidence.” Id. at 713 n.16.21

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 interp ret CJP § 10-923. We first explain, utilizing our canons of statutory interpretation, w hy § 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 fac tors that circuit courts may consider in assessing probative value and unfair prejudice unde r subsection (e)(4) and in determining admissibility generally under § 10-923(e) as a whol e (that is, after a circuit court determines that (e)(1)–(4) have been satisfied). We then disc uss why the motions judge in this case

did not abuse his discretion when he determined tha t the danger of unfair prejudice in admitting evidence of Petitioner’s 2010 conviction did not substantially outweigh the evidence’s probative value. Lastly, we briefly add ress how Petitioner waived any argument concerning whether the circuit court erred by failing to sua sponte limit the scope of the State’s evidence. We address the parties’ v arious arguments along the way. A. CJP § 10-923(e)(4) Does Not Require Circuit Cour ts To Consider Any Particular Factor Petitioner concedes that § 10-923 is “silent on wha t factors a trial court is to consider in balancing [a piece of relevant evidence’s] proba tive value against its potential for unfair prejudice.” He admits further that a prior draft b ill of the statute contained four factors that trial courts would have been required to assess, bu t that the General Assembly otherwise decided not to specify any factor and adopted the s tatute in its current form. These four22

factors were (1) whether the evidence offered is in dispute, (2) the similarity between the two offenses, (3) the closeness in time between the two offenses, and (4) the independence

of the two offenses. See Woodlin , 254 Md. App. at 704 n.10. That the General Assem bly chose not to specify any of these factors, he argue s, does not preclude the circuit court from considering them. He goes one step further, though , arguing that “a proper assessment” of probative value against the danger of unfair prejud ice “ requires consideration of these factors.” (Emphasis added). Petitioner primarily relies on United States v. LeMay , 260 F.3d 1018 (9th Cir. 2001), and advocates that we, l ike the United States Court of Appeals for the Ninth Circuit, should require our circuit c ourts 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 tr ial 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 decisi on not to enumerate a list of

criteria does not preclude circuit courts from considering Petitioner’s propo sed factors but urges us to reject his plea that circuit courts must consider these factors. Instead, the State argues that this “task will be better served by the identification of illustrative factors, than by mandating a rigid test akin to the one that the [General Assembly] consciously rejected.” We agree with the State. Whether circuit courts mu st consider in every case certain factors when balancing probative value against unfa ir prejudice under CJP § 10-923(e)(4) requires us to interpret the language of the statut e, so we turn to the tools of statutory interpretation that guide our analysis:23

Our goal is to ascertain and effectuate the intenti on of the legislature and we begin that exercise by reviewing the statutory lang uage itself. We read the plain meaning of the language of the statute as a w hole, so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. Additionally, we neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguou s language of the statute , and we do not construe a statute with forced or sub tle interpretations that limit or extend its application. If the language o f the statute is unambiguous and clearly consistent with the statute's apparent purpose, our inquiry as to legislative 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 omi tted). Keeping these provisions in mind, we have little doubt that the General Assembl y intended to give circuit courts wide discretion and took steps not to limit the individu als in the best position to weigh probative value against the potential dangers of unfair preju dice. We start, as always, with the plain text. The unam biguous language shows that the only mandates the General Assembly placed on circui t courts under § 10-923 were to hold a hearing on the State’s motion, see CJP § 10-923(d), and to require that the State sati sfy

certain criteria before the circuit court could exe rcise its discretion as to admissibility, see id. § 10-923(e) (permitting discretion to admit eviden ce only “if the court finds” satisfaction of (e)(1)–(4)). Thus, the General Ass embly 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 persuasiv e evidence that it did not intend to so constrain the circuit courts. CJP § 10-923 enumera tes no specific factor or factors to consider under subsection (e)(4), but Petitioner ar gues that we should nonetheless adopt a specific set of factors that courts must consider i n every case. Consistent with the discretion24

we have long afforded trial courts in making determ inations under Rule 5-403, we decline

that 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 p rior sexually assaultive behavior,

the Ninth Circuit stated that there are “several fa ctors that district judges must evaluate” in determining 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 or lack of intervening circumstances, and (5) necessit y 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 previo usly adopted them in Doe ex rel. RudyGlanzer v. Glanzer , 232 F.3d 1258, 1268 (9th Cir. 2000). Thus, we tu rn to that case.

In Glanzer , which involved the application of FRE 415 (the ci vil counterpart to FREs 413 and 414), the Ninth Circuit noted that fed eral courts had coalesced around a three-step inquiry to determine whether FRE 415 app lied to evidence that a party seeks to

introduce at trial. Glanzer , 232 F.3d at 1268. The third step of that inquiry r equires the evidence to be relevant, and the Ninth Circuit reco gnized that if a defendant truly has a propensity to commit the offense alleged, then evid ence of the defendant previously engaging in that specific act is relevant and confo rms to the principles established in FREs

413 and 414. Id. The Court then announced and adopted the five fac tors it later noted in LeMay that district courts must assess when balancing evidence pursuant to FREs 41 3, 414,

and 415

. Id. at 1268–69. In adopting these mandatory factors, the court primarily relied25

upon the United States Court of Appeals for the Ten th 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 of

factors that district courts must consider. Instea d, the Tenth Circuit stated that “[p]ropensity evidence, however, has indisputable p robative value. That value in a given case will depend on innumerable considerations, including ” the five factors indicated

above. Guardia , 135 F.3d at 1331 (emphasis added). Thus, the Tenth Circuit recognized— much as we do—that there is an array of factors tha t trial courts can consider when balancing probative value against the danger of unf air prejudice and—like we do below— merely provided a non-exhaustive list of factors as guidance. Other federal courts have questioned the strength of LeMay ’s reasoning and the requirement that district cour ts within the Ninth Circuit must consider special fact ors 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, LeMay

read too much into Guardia , and that the Seventh Circuit is more flexible tha n LeMay and more aligned to Guardia ’s approach); see also Martinez v. Cui , 608 F.3d 54, 60 (1st Cir. 2010) (rejecting any sort of “special rules constra ining district courts’ usual exercise of discretion under FRE 403 when considering evidence under Rule 415,” including those

announced in LeMay ). We decline to adopt LeMay ’s approach and instead conclude that our circuit c ourts will be better served by affording them under CJP § 10-923(e)(4) the very same latitude and discretion they have in making similar determin ations under Maryland Rule 5-403’s26

balancing test. To the extent that the Appellate C ourt’s opinion could be interpreted to hold that similarity is a factor that circuit court s 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 t wo instances of sexually assaultive behavior are”). Our holding comports with the plai n language of the statute—which

mentions no factor that circuit courts must conside r—and our general approach to the

exercise of discretion under Rule 5-403. B. Appropriate Factors To Consider Under CJP § 10-9 23(e)(4) And How To Weigh Those Factors Having determined that circuit courts are not requi red to assess any particular factor in every case, we next discuss which factors a circ uit court properly may assess. On this issue, there is much common ground between the part ies. There is no factor identified by either party that the other believes is an inapprop riate factor to consider in at least some cases. Among all the factors identified, we agree that most would be appropriate to consider at some point in the analysis required und er § 10-923(e). As we will explain, however, some of those factors are more appropriate ly considered when a circuit court balances probative value against the dangers of unf air prejudice under § 10-923(e)(4); while others are more appropriately considered in t he 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 d iscuss each factor, we make two points.

First , it generally is incumbent upon the parties to arg ue any factor they deem relevant or applicable. A precondition to arguing on appeal that a factor was not properly27

weighed or considered is that the party brought tha t particular factor to the circuit court’s

attention. See DeLeon v. State , 407 Md. 16, 29–30 (2008) (noting that defendant w aived in this Court evidentiary arguments on bases of rel evancy and unfair prejudice where the record reflected that he raised at trial only an ob jection on grounds of improper foundation); Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raise d in or decided by the trial court[.]”).

Second , because the list we provide today is illustrative —not exhaustive—the State and future defendants are, of course, free to argue for other factors not specified in this opinion. If the trial court believes that a factor not enumerated here is one that should be considered in a particular case, then it should wei gh 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 facto rs identified by the parties, which we divide into three categories: those used f or assessing probative value under subsection (e)(4), those used for assessing unfair prejudice under subsection (e)(4), and

those that are better suited to the ultimate discre tionary issue of admissibility after satisfaction of subsection (e)(1)–(4). 1. Factors concerning probative value under CJP § 1 0-923(e)(4) i. similarity or dissimilarity of the acts

While we do not hold that circuit courts must consider the similarity between the two instances of sexually assaultive behavior in ev ery case, we nevertheless agree with the parties that it is an appropriate factor a circuit court may consider. The State argues that a28

“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 to bolster the credibility of A.H.; thus, evidence of “ dissimilar activities with a dissimilar individual in no way serves this same purpose and d oes 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 dif ferences. Counting similarities while ignoring differences, or vice versa, would result i n an incomplete analysis. As the Appellate Court rightly noted, as the similarity be tween 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 probat ive value will be outweighed by the danger of unfair prejudic e. Id. Once a party raises as an applicable factor the sim ilarity or dissimilarity of the acts, then circuit courts generally should assess at leas t two categories: (1) the characteristics of the victim and (2) the nature of the defendant’s co nduct. To the former, the analysis includes the victim’s age, biological sex, gender i dentity, and status (mental state, physical prowess, capabilities, etc.); as to the defendant’s conduct, the assessment includes both the method of perpetrating the sexual offense (use of v iolence/weapons, use of drugs to incapacitate, abuse of a position of trust, etc.) a nd 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 FR E 413 and 414 where defendant29

sexually assaulted other children by abusing his ro le as a pediatrician); LeMay , 260 F.3d at 1029 (noting that the propensity evidence was very similar to the crime charged: each involved forced oral sex against the defendant’s yo unger relatives while the defendant was babysitting 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 digital penetration) involved prepubescent children and wer e 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 (Utah 2018) (holding that defendant’s prior act evidence was highly probative due to age of the victim, setting, and opportunity, and that the pass age of time, alone, was not enough to outweigh the evidence’s probative value); State v. Davison , 636 S.W.3d 588, 594 (Mo. Ct. App. 2021) (noting that defendant’s prior sexual ac ts were “quite similar” to the crime charged in that they both involved four-year-old fe males whom the defendant had taken into a bedroom and forced to perform oral sex on hi m 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 pri or sexually assaultive behavior was probative of crime charged because it involved the same victim and, on both occasions, the victim 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) (holdin g that evidence of defendant’s other sexually assaultive behavior was “highly probative” where the victim’s30

age, setting of the offense charged, opportunity, a nd defendant’s modus operandi all were similar). ii. temporal proximity and intervening circumstance s The parties agree that the closer in time between t he 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 s exual offenses” against a third party by a defendant are inadmissible in a current trial aga inst that defendant); State v. Summers , 629 S.E.2d 902, 906 (N.C. 2006) (noting that simila rity of the acts committed and temporal proximity “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 proximi ty 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 defen dant’s other sexually assaultive

behavior. It relies on State v. Williams , which stated: The conduct underlying Williams’s prior conviction occurred in 1996, and the acts with which he was charged in the present c ase began in 2008. However, Williams was incarcerated for much of this period. The acts charged began within five years of Williams’s relea se from prison. This is adequate to give the prior conviction probative val ue. 548 S.W.3d 275, 289 n.14 (Mo. 2018). Petitioner ag rees with Williams , noting that “incarceration [can] . . . explain[] the lack of an y temporal proximity to the charged sexual offense by establishing that the accused was incarc erated at that time.” He also implicitly endorses the “intervening circumstances” factor by advocating for the LeMay factors.31

We also believe that when intervening circumstances give context to the temporal proximity between events, courts may consider them in assessing this factor. For example, a circuit court reasonably could conclude that a pe riod of incarceration intervening between a prior incident of other sexually assaultive behav ior and the crime at issue should be excluded when considering the probative value of th e gap in time between the events. See,

e.g. , id. We agree that any intervening circumstance (not j ust 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 probat ive it becomes of the crime charged. The parties agree with this assessment, and we see no reason to exclude this factor from

consideration. 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 en ough in time to the crime charged “and with enough frequency to be sufficiently probative” ); People v. Trujillo Garcia , 89 Cal. App. 4th 1321, 1332 (2001) (noting that the value o f uncharged sexual misconduct will depend on various factors including frequency, simi larity, and temporal proximity to the charged offense). 2. Factors concerning unfair prejudice under CJP § 10-923(e)(4) i. overshadowing of the crime charged According to Petitioner, in assessing whether unfai r prejudice exists, courts should weigh “the inflammatory character of the evidence a gainst the utility the evidence will32

provide to the jurors’ evaluations of the case.” T he State concedes that this factor weighs in 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 approp riate factor for circuit courts to consider. If juries were allowed to consider heino us acts that completely overshadow the crime charged, then we run the risk that juries pre dominantly will focus on the other sexually assaultive behavior and not the present ch arge. See Davison , 636 S.W.3d at 594 (recognizing overshadowing as one of many factors i n a propensity-evidence analysis);

State v. Meeks , 34 N.E.3d 382, 398 (Ohio Ct. App. 2015) (noting t hat juries are more likely to convict based on propensity grounds when the oth er crimes/bad acts evidence is more inflammatory than the crime charged).

ii. the jury’s knowledge that a defendant previousl y was punished The State argues that the jury’s knowledge of a con viction (as opposed to just mere allegations) can be beneficial to a defendant. As the State sees it, when a jury “knows the defendant 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 ac ts[.]” Petitioner argues that while informing a jury of a defendant’s past conviction c an decrease the risk that the jury will convict the defendant of the currently charged crim e on improper grounds, such knowledge

does not eliminate the risk. 23

23 Petitioner further contends that informing juries about a defendant’s prior conviction—absent any information about the actual sentence received—does more harm33

We agree this may be an appropriate factor a circui t 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 defendant previously escaped punishment. See United States v. Lau , 828 F.2d 871, 874 (1st Cir. 1987) (weighing probative value of prior bad act ev idence against the prejudicial risk that a jury would convict a defendant as punishment for past conduct); Williams , 548 S.W.2d at 290 (noting that a factor bearing on the prejudi cial nature of propensity evidence is “whether the jury knows or can fairly infer [that] the defendant was punished for his [or her] past criminal acts”); Rodriguez v. State , 245 P.3d 818, 826–27 (Wyo. 2010) (holding that 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 weighs in favor of excluding evidence of the other sexuall y 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 b ecause the plea transcript contained no information about his sentence, which allowed the j ury to unduly speculate. This argument makes too much of too little. If Petitioner believ ed 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 tria l court should exercise its discretion when considering how much information the jury shou ld be permitted to hear about a defendant’s other sexually assaultive behavior, whi ch must be assessed on the facts of each case.34

can lessen the fear that the jury will convict simp ly because the jury believes the defendant escaped punishment for the other sexually assaultiv e behavior. 3. Factors concerning admissibility generally after the State has satisfied CJP § 10-923(e)(1)–(4)

i. need The parties both address “need” as a factor under § 10-923(e)(4). Petitioner acknowledges that it is a relevant factor for court s to consider by advocating for the LeMay factors, but he does not discuss it further. The S tate, also citing LeMay , argues that evidence of a defendant’s other sexually assaultive behavior need only be practically necessary to the State’s case to warrant admission. This factor weighs in favor of admission, the State believes, when the victim’s te stimony in the current case is the primary or only evidence of the underlying charge and the d efendant challenges the victim’s credibility. We agree that the State’s need for this evidence is something a circuit court can consider, 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 substantially outweighed by the danger of unfair prejudice. Furt hermore, the State’s need for evidence of 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 bot h ways—for or against the State. As the State lacks other evidence to carry its burden at t rial, the probative value of the other35

sexually assaultive behavior increases, as does the State’s need for such evidence. 24 In the same vein, the risk that a jury will use such evide nce for an improper propensity purpose also increases. Conversely, where the circuit cour t reasonably could conclude that the State has other viable means of proving the currently cha rged crime, the “need” factor may cut against the State and in favor of exclusion. We re cognize 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 facto r 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 other sexually assaultive behavior and the manner in which it seeks to prove the other sexually assaultive behavior. As the State sees the clarity component, conduct that has “resulted in a conviction [is] more probative than uncharged all egations of such conduct.” Regarding manner, it argues that when the evidence is “limite d to a few instances that can be presented without requiring a ‘mini trial,’” this factor weig hs in favor of admission. The State’s argument as to clarity already is encap sulated by the requirement that the State prove by clear and convincing evidence th e defendant’s involvement in the other sexually assaultive behavior under § 10-923(e)(3).

24 Nothing we say should be read as permitting the St ate to use propensity evidence in lieu of its obligation to prove beyond a reasona ble doubt a defendant’s guilt based on the evidence related to the offense currently charg ed.36

With respect to “manner,” Maryland Rule 5-403 permi ts a trial court to exclude a piece of otherwise relevant evidence for a variety of reasons, not just unfair prejudice. Under that rule, the court also can consider whethe r 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 “mini trial” is a hallmark invocation of confusing the is sues or an undue delay. See Lund v.

Henderson , 807 F.3d 6, 11 (1st Cir. 2015) (affirming trial c ourt’s decision to exclude prior complaint evidence against defendant-police officer because defendant would have challenged each complaint, resulting in a mini tria l); 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 collatera l issue would have caused a delay and a mini trial, both of which FRE 403 seeks to avoid). For that reason, we agree that the manner of presentation of evidence of other sexuall y assaultive behavior may be appropriate for a circuit court to consider. Like with “need,” however, we think consideration of “manner,” if raised by a party, is an argument better addressed when a

circuit court exercises its discretion whether to a dmit the evidence only once the court has determined that the factors listed in (e)(1) throug h (4) have been satisfied.37

C. The Motions Judge Did Not Abuse His Discretion W hen He Determined That The Danger Of Unfair Prejudice Did Not Substantially Ou tweigh The Probative Value Of Petitioner’s Prior Conviction, And Petitioner Wa ived Any Argument That The Circuit Court Sua Sponte Should Have Limited The Sc ope Of The State’s Evidence As previously stated, it is incumbent upon the part ies 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 infl ammatory than his assault on A.H. But Petitioner failed to make any argument concerning i nflammatory nature in the circuit court. Concerning subsection (e)(4), he argued only that t he facts of his 2010 conviction were too

dissimilar from his assault on A.H. 25 Thus, Petitioner has forfeited any argument that the circuit court erred by improperly weighing the infl ammatory factor, and we consider only Petitioner’s arguments regarding similarity. See Md. Rule 8-131(a).

25 Although Petitioner’s trial counsel noted that Pet itioner’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: But we are talking about an allegation from ten yea rs prior of sexual assault on an adult. The idea that this evidence could som ehow 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 convict ed of sexually assaulting an adult has very little probative value, if any, I wo uld suggest none, or as it relates to the allegations of sexual assault upon m inor victim, which have to say, I don’t see even if the Court wanted to sugges t or conclude that there was an opportunity to cross-examine, and there is n othing in the record that suggests that [Petitioner] had an opportunity to cr oss-examine any of these individuals. Rather, the thrust of trial counsel’s arguments wen t to confrontation under subsection (e)(2) and similarity under subsection (e)(4).38

As to similarity, Petitioner highlights the followi ng differences between the two cases: the insertion of foreign objects on one vict im versus performing fellatio and anilingus on the other, without the use of foreign objects; adult victim versus minor victim; no familial relationship versus a familial relation ship; unconsciousness of one victim versus consciousness of the other; and, if consciou s, ability of adult victim to have legally consented to the sexual acts versus inability for t he minor victim to consent to any sexual act. 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 the

anal 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 tha t 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 not ed, the motions judge focused on what

he saw as the common denominator between the two as saults: consent, see Woodlin , 254 Md. App. at 705–06, questioning whether it “matter[ ed],” that one victim was adult, and one was a minor. The motions judge considered each side’s arguments attempting to highlight the similarities or differences, ultimate ly concluding—in his discretion—that the two events were “consistent enough,” to find that t he danger of unfair prejudice did not substantially outweigh the probative value of Petit ioner’s 2010 conviction. Armed with plausible interpretations supporting either side, w e will not superimpose our judgment over the motions judge’s well-supported determination. See Matthews , 479 Md. at 305. In other39

words, we cannot say that no reasonable person woul d have concluded as the motions judge

did. See Williams , 457 Md. at 563. Petitioner also asks this Court to address an argum ent that the Appellate Court

determined was waived: whether the circuit court “n onetheless erred in admitting all the evidence concerning [the] past offense” and “not us ing its discretion to limit the admission to the minimal facts necessary to achieve the prose cution’s goal of bolstering [A.H.’s] credibility.” We agree with the Appellate Court th at 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 was seeking to introduce the entire 2010 plea transcrip t, testimony from Cpl. Creason, and a true test copy of Petitioner’s conviction, and the State provided the entire plea transcript to Petitioner on multiple occasions. Petitioner did n ot object to the scope of the evidence at the motions hearing, the October 2020 conference, o r at trial when the State officially introduced it. To the contrary, he only ever argue d at the motions hearing that the court

should exclude all evidence of his 2010 conviction, and his objections were to the admissibility of the entirety of the evidence offer ed by the State, not specific portions. Petitioner’s decision not to ask at any point for t he motions judge or the trial judge to limit the scope of the State’s evidence means that this i ssue 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 introd uce, trial counsel told the motions judge that he had no further quest ions and simply would object, when40

appropriate, at trial. Trial counsel’s objections at trial, as to this issue, only ever concerned

what he believed was a confrontation issue under CJ P § 10-923(e)(2). Thus, his argument that the circuit court had an in dependent duty to limit the scope of the State’s evidence is not preserved, and we se e no basis to exercise our discretion to

review it. 26 See Conyers v. State , 367 Md. 571, 594 (2002) (describing appellate rev iew pursuant to Rule 8-131(a) as an “exceptional circum stance” and “discretionary, not mandatory”).

IV CONCLUSION The plain, unambiguous language of CJP § 10-923(e)( 4) does not require circuit court judges to consider in every case any particul ar factor when balancing evidence of a defendant’s other sexually assaultive behavior agai nst the danger of unfair prejudice, and we decline to impose such a requirement. Neverthel ess, as outlined above, there are

various factors that a circuit court may consider during that balancing exercise, and it

26 Although we are satisfied that basic waiver princi ples 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. Petiti oner knew the jury was going to hear something 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. Petiti oner could have determined that, if the jury were bound to hear abo ut his prior conviction, it was in his best interest that it hear everything , including the dissimilarities that provided a bas is for arguing that the earlier incident was not relevant. Absent the full details of his past criminal actions, the jury possibly could speculate about the specifi c conduct that formed the basis for that prior conviction, creating the potential that it wo uld convict on propensity grounds. We naturally cannot know whether this indeed was Petit ioner’s reasoning for not advancing an argument to limit the scope of the State’s evidence . But, if it is, he cannot have it both ways. He cannot now claim error having had the ben efit of testing what he thought was sound trial strategy—merely because that strategy d id not pay off.41

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 the danger of unfair prejudice substantially outweighs the probative value of evidence of a defendant’s other sexually assaultive behavior. If the circuit court determines that the State has satisfied § 10-923(e)(1)–(4), then—and only the n—may the circuit court exercise discretion to admit or exclude the evidence in ques tion. Here, the motions judge did not abuse his discretio n in determining that the danger of unfair prejudice did not substantially outweigh the probative value of Petitioner’s 2010 conviction. The motions judge considered the parti es’ arguments as to the similarity between the two acts—the only factor raised by Peti tioner—and believed that a lack of consent from vulnerable male victims, who experienc ed an assault to their anal area, was enough of a similarity to outweigh the danger of un fair prejudice. We cannot say that determination, after weighing evidence from both si des, constitutes an abuse of discretion. Petitioner also waived any argument that the circui t court sua sponte should have limited the scope of the State’s evidence. Therefore, we a ffirm Petitioner’s conviction.

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