Opinion
No. 1017
06-08-2016
JAMES THOMAS STARR v. STATE OF MARYLAND
UNREPORTED
Kehoe, Nazarian, Serrette, Cathy Hollenberg (Specially Assigned), JJ. Opinion by Nazarian, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
James Thomas Starr was accused of sexually abusing a four-year-old boy. A jury in the Circuit Court for Harford County convicted Mr. Starr of sexual abuse of a minor and third-degree sexual offense, and the court sentenced him to consecutive terms of imprisonment. Mr. Starr complains that the court erred in finding the child-victim competent to testify, that the court unconstitutionally excluded him from the courtroom during an admissibility hearing, and that the court improperly admitted hearsay statements from the social worker and the victim's mother. We find no error and affirm.
I. BACKGROUND
On March 31, 2012, in the early hours of the morning, the Harford County Sheriff's Department responded to a house call from Ms. W, whose four-year-old son, J, described touching and tasting a man's genitals. The responding officer drafted a report and forwarded it to the local Child Advocacy Center. Dione White, a social worker at the Child Advocacy Center, interviewed J on April 3, 2012. During the interview, the police officer assigned to J's case phoned in questions for Ms. White to ask him. J recounted to Ms. White the details of the alleged sexual encounter with Mr. Starr, and this interview was audio- and video-recorded. Mr. Starr was charged with sexual abuse of a minor, second-degree sexual offense, third-degree sexual offense, second-degree assault, and unnatural or perverted practice.
In the interest of privacy, we will refer to the mother only by her last initial and the victim and other family members by their first initials.
Before trial, the court held two preliminary hearings: one to determine J's competency to testify, and the other to decide the admissibility of J's out-of-court statements to Ms. White. The court found J competent to testify—and he did, and the court admitted J's out-of-court statements at trial. The jury found Mr. Starr guilty of sexual abuse of a minor and third-degree sexual offense, and he was sentenced to thirty-five years, fifteen suspended. Mr. Starr filed a timely notice of appeal. Additional facts are incorporated below as relevant to each issue.
Mr. Starr filed a first notice of appeal, but his prior counsel failed to submit a brief, and that appeal was dismissed. The circuit court granted Mr. Starr the right to file anew and that is the appeal before us.
II. DISCUSSION
Mr. Starr challenges four decisions the circuit court made during his trial: first, its finding that J was competent to testify; second, its decision to allow the social worker to testify about hearsay statements J made to her; third, its decision to exclude Mr. Starr from the courtroom during an admissibility hearing; and fourth, the admission of a (hearsay) statement J made to his mother.
Mr. Starr phrased the issues as follows in his brief:
1. Did the trial court err in finding that the child victim in this case was competent to testify?
2. Did the trial court err in admitting the hearsay statements of the victim to a social worker pursuant to Md. Code, Crim. Pro. § 11-304?
3. Did the exclusion of Appellant from the courtroom during a hearing to determine the admissibility of a statement pursuant to § 11-304 violate Appellant's right to be present at every stage of his trial?
4. Was the hearsay statement of the child victim to his mother properly admitted under the prompt report of a sexual assault exception to the hearsay rule?
A. The Trial Court Did Not Err In Finding J Competent To Testify.
During one of the preliminary hearings, the trial court explored J's competency, and found him competent to testify at trial. See Md. Rule 5-104(a) (requiring the court to determine "[p]reliminary questions concerning the qualification of a person to be a witness"). "The determination of a child's competence is within the sound discretion of the trial judge," and "the procedure that should be employed to determine a child's competency is, in the first instance, also within the trial court's discretion." Perry v. State, 381 Md. 138, 148, 157 (2004) (citations omitted). In determining a witness's competency, the trial judge makes a finding of fact, and we review that finding for clear error. Jones v. State, 410 Md. 681, 699 (2009) (applying the "clearly erroneous" standard of review to competency determination). The Court of Appeals has translated this standard to mean that if the record shows "any competent evidence to support the factual findings of the trial court," that finding cannot be clearly erroneous. Goff v. State, 387 Md. 327, 338 (2005) (internal quotations and citations omitted).
1. J understood the difference between the truth and a lie.
As a threshold matter, the court must determine whether the child understands the difference between the truth and a lie. See Jones, 410 Md. at 699 (noting that the child first passed the "truth v. lie" portion of the test). To that end, the State engaged J in this inquiry:
[THE STATE]: Now, [J], if I told you my jacket was purple, is that telling the truth or is that a lie?
[J]: A lie.
[THE STATE]: Why is that a lie?
[J]: Because it's black.
[THE STATE]: It's black. If I said that your sunglasses[] were blue, is that telling the truth or a lie?
[J]: A truth.
[THE STATE]: Why is that the truth?
[J]: Because it is blue.
* * *
[THE STATE]: Now, [J], with regards to the truth and a lie, if I told you that Mr. Reporter here just hit me, would I be telling the truth or a lie?
[J]: A lie.
[THE STATE]: Why is that a lie?
[J]: Because he didn't.
For clarity, J wore sunglasses that day, but removed them two or three questions into the competency hearing.
Mr. Starr contends that this line of questioning was insufficient to establish that J knew the difference between the truth and a lie. In support, he cites Jones, in which the prosecutor asked the child-victim fifteen questions for that purpose. Id. at 686-87. The prosecutor showed the child-victim pictures of two children—one wearing red, the other blue—looking at an object. Id. at 686. With each picture, the prosecutor offered a statement about how each depicted child characterized the item in the picture, then asked the child-victim whether the boy in blue or the boy in red was telling the truth. Id. Each time, the child-victim answered that the boy in red was telling the truth, which resulted in many incorrect responses. Id. at 686-87. But the wrong answers did not dissuade the court from finding that the child-victim could nonetheless tell the truth from a lie, and the parties continued to the next steps of the pretrial hearing. Id. at 687-88 (noting the child's affinity for the color red).
Here, the prosecutor asked J three questions, and he answered all three correctly. And the form of the questions posed to J mirrored questions posed in other cases. In Jones, for example, the Court of Appeals explained that the questions "should not be 'complicated or tricky,'" for example, "Q . . . . If I were to say that I'm wearing a red jacket, would that be a lie or would that be a truth?, A. A lie[, and] Q. And why would it be a lie?, A. Because you're wearing a brown jacket." Id. at 698-99 (quoting Robin W. Morey, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U. MIAMI L. REV. 245, 263 (1985)). Although our courts have favored certain forms of questions, there is no rigid minimum number of questions that must be asked before a judge can make a finding of competency. See, e.g., Bruce v. State, 96 Md. App. 510, 517-18, 521 (finding that a five-year-old child-victim knew the difference between the truth and a lie after posing five questions in the form presented above). Instead, we and the Court of Appeals have deferred to the discretion of the judge making the competency determination, who (unlike us) can observe the child's conduct and demeanor during questioning. Jones v. State, 68 Md. App. 162, 165 (1986). And this record reveals a sufficient basis for the court to conclude that J understood the difference between the truth and a lie, and we see no abuse of discretion in its finding.
2. J demonstrated capacity under each Jones factor.
A child's age does not itself determine his competency to testify. Instead, courts assess each child's individual capacity to testify:
The trial court must determine the child's "capacity to observe, understand, recall, and relate happenings while conscious of a duty to speak the truth. Jones v. State, 68 Md. App. 162, 166-67 (1986). Professor Wigmore states the essential requirements as: (1) capacity for observation; (2) capacity for recollection; (3) capacity for communication, including ability "to understand questions put and to frame and express intelligent answers;" and, (4) a sense of moral responsibility to tell the truth. 2 Wigmore, Evidence § 506 (Chadbourn rev. 1979).Jones, 410 Md. at 697-98.
The record amply supports the circuit court's finding that J was competent to testify. First, the transcript provided displays J's capacity to observe—the prosecutor's jacket was black and his sunglasses were blue and the reporter had not hit anyone in the courtroom. These answers provided the judge a reasonable basis to assess J's capacity for observation.
Second, J had to show a capacity for recollection, and Mr. Starr seems to take the greatest issue with this finding. He argues again that the prosecutor did not ask enough questions, and that the answers J gave— one question was answered incorrectly and the other answer was not objectively verifiable—could not sustain a finding that he had the ability to recall. The prosecutor's questions revolved around J's Christmas gifts:
Q: This past Christmas, what kind of presents did you get?
A: I don't know. I forgot.
Q: You forgot?
A: Yeah.
Q: What was your favorite present that you got?
A: My car.
Q: Your car?
A: Yeah.
Q: Your remote control car?
A: Yeah.
Q: Can you tell the judge about your remote control car and why you like it?
A: Yeah. Because it goes with a remote.
Q: What color is it?
A: Green and black.
Q: Can it go fast?
A: Actually it goes slow. I don't know how fast it goes.
Mr. Starr equates J's inability to remember the list of presents he received for Christmas with an inability to communicate memories. The trial court disagreed, reasoning that J merely "drew a blank" because "in his mind he was being asked to give a whole laundry list of everything that he got for Christmas," while noting that J was "good at answering what is significant to him." Mr. Starr responds that J's ability to recall his favorite gift, and aspects of that gift—remote control, color, and slowness—is meaningless to this analysis because it is not objectively verifiable. But he doesn't cite, and we haven't found, any authority to support the notion that corroboration is or should be required.
Mr. Starr also notes that J was asked an objectively verifiable question, but that he answered it incorrectly. The prosecutor asked J to "tell the judge who [M] is," to which J said, "[M] is my sister." And, in fact, J and M aren't biological siblings. But they live together in the same household with J's mother, and J repeatedly referred to M as his sister. We decline to condition J's ability to testify on his ability to parse his precise consanguinity with each member of his household, and we disagree with Mr. Starr that J's acknowledgement of M as his "sister," rather than his "live-in second cousin," calls his capacity to testify into question.
S, Ms. W's cousin, and S's daughter, M, live with J and Ms. W.
Third, J had to demonstrate a capacity for communication. The trial judge found on the record that J had the "ability to understand questions put and to frame and express intelligent answers," and the record reveals repeated instances where J was posed a question, comprehended the subject, and delivered a relevant response.
Fourth, J had to express a sense of moral responsibility to tell the truth. Mr. Starr argues that because J did not know what the word "promise" meant, he could not appreciate his oath to tell the truth. But the competency test is not a vocabulary test, and our cases focus on the ability to comprehend the concept of a promise, not on a child's ability to provide a definition. In Perry, the child-victim differentiated the truth from a story by stating that when you tell a story, you get in trouble. 381 Md. at 142. From there, the Court of Appeals reasoned that the child "knew that she was required to tell the truth . . . ." Id. at 156. In Bruce v. State, the child-victim stated that he did not know what it meant to make a promise, but that he would tell the truth when the attorneys asked him questions. 96 Md. App. 510, 519 (1993). In that case, we concluded that the child "understood and appreciated the importance of telling the truth." Id. at 521.
When asked "[i]f you promise to tell the truth today, what should you do[,]" J answered, "I don't know." When asked again about making a "promise," J replied that he did not know what it meant if he made a promise, but then demonstrated that he knew the importance of telling the truth:
Q: Now, when you get caught telling a lie, what happens?
A: I get in trouble.
* * *
Q: If you said that [M] hit you and it really didn't happen but your mom and [your mom's cousin] believed you, what would happen to [M]?
A: Her fault.
Q: I'm sorry? She would get in trouble?
A: Yeah.The trial judge observed that "whenever the term promise was used he didn't know. When it came down to it if I tell a lie I'll get in trouble and also if I tell a lie it would be bad." Despite not being able to define "promise," the record supports the trial court's finding that J appreciated the concept of a promise, as evinced in his repeated inclination to tell the truth, and that to lie is bad.
Q: Would that be a good thing or a bad thing?
A: A bad thing.
* * *
Q: If you get caught telling a story that is not true and if you tell a lie, what happens?
A: I get in trouble.
Q: So, you know it is important to tell the truth in court. Right?
A: Right.
Q: So, what would happen to you if you didn't tell the truth in here in front of the judge?
A: That would be bad.
* * *
Q: And what would happen to you?
A: I don't know.
Q: But it would be bad?
A: Yeah.
All told, the trial court sufficiently tested J's competence under each of the Jones factors, and J's responses to the questions supported the trial court's finding that he was competent to testify as to his alleged abuse.
B. The Trial Court Complied With Md. Code, Crim. Proc. § 11-304.
After the competency hearing, the court shifted its focus to Md. Code (2008, 2015 Repl. Vol.), § 11-304 of the Criminal Procedure ("CP") Article, which controls the admissibility of out-of-court statements made by child-victims. Section 11-304 required the court to conduct a hearing to determine whether the social worker, Ms. White, could testify at trial about the conversation she had with J (the conversation was also recorded and to be played at trial). At the State's request, Mr. Starr was made to leave the courtroom. Mr. Starr raises Confrontation Clause claims arising both from the admission of J's out-of-court statements via Mrs. White's testimony and his exclusion from that portion of the pretrial hearing. He also argues that the trial court failed to comply with the admissibility criteria set forth in CP § 11-304.
Mr. Starr was excluded from that portion of the hearing pursuant to CP § 11-304(g)(3)(ii), which permits the court to exclude the defendant from the CP § 11-304(f) examination. But as we explain, the fact that J ultimately testified cures Mr. Starr's Confrontation Clause concerns. And to the extent that Mr. Starr aims to challenge the constitutionality of CP § 11-304(g), that issue was neither preserved in the circuit court nor briefed in this Court.
We can dispense quickly with the Confrontation Clause claim: J was available to testify at trial and did, and Mr. Start was able to cross-examine him. Mr. Starr's constitutional arguments rely on cases in which the declarants of out-of-court statements did not testify at trial, see Crawford v. Washington, 541 U.S. 36, 68-69 (2004); State v. Snowden, 385 Md. 64, 96 (2005) (violating defendant's constitutional rights "by having the social worker testify in place of the children"), but the Confrontation Clause is satisfied if the declarant is available to testify at trial and for cross-examination:
[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a testimonial statement so long as the declarant is present at trial to defend or explain it.541 U.S. at 59 n.9; see also Lawson v. State, 389 Md. 570, 588-89 (2005) (holding that even if a child-victim's out-of-court statements to a social worker were testimonial, they were admissible because the declarant testified at trial).
This leaves Mr. Starr's claim that J's out-of-court statements did not meet the admissibility criteria set forth in CP § 11-304, and therefore should not have been admitted. We apply "clearly erroneous" review to the trial court's factual findings. Reece v. State, 220 Md. App. 309, 319 (2014) (citing Jones v. State, 410 Md. 681, 700 (2009)). As a threshold matter, an out-of-court statement is only a candidate for admission if it was made to and is offered by a person lawfully acting in the course of her profession at the time the statement was made. CP § 11-304(c) (including "social workers" among the list of qualified professionals). And we disagree with Mr. Starr's contention that the social worker was acting in a law enforcement capacity, and not in the course of her employment.
In Crawford v. Washington, police arrested a man and questioned him and his wife in connection with a stabbing. 541 U.S. at 38. After Mirandizing the husband and wife, each were "interrogated" twice, and the wife's responses recorded and admitted at trial. Id. The Supreme Court held that out-of-court statements may qualify as testimonial, and in that case, the wife's recorded interrogation was a testimonial statement subject to Sixth Amendment scrutiny. Id. at 68-69.
The wife made tape-recorded statements to law enforcement officers describing her husband, the defendant, stabbing the victim with a knife. Crawford, 541 U.S. at 38. The wife's testimony was barred from trial because of the State's marital privilege, but the tape-recorded statements were admitted at trial. Id. at 40. The Supreme Court found a Sixth Amendment violation because the statement was testimonial in nature and the husband never had an opportunity to cross-examine the declarant, either at the time the statement was made to law enforcement or at trial. Id. at 68.
In Snowden, the Court of Appeals reconciled Crawford with CP § 11-304, and recognized that statements made to health officials (including social workers) may be non-testimonial (although the statement at issue in that case was testimonial). 385 Md. at 84-87. The children were questioned by a social worker in police presence. Id. at 87. The trial court found that "[t]he [child-victims] were interviewed for the expressed purpose of developing their testimony," and the Court confirmed that the "structure, location, and style" transformed that questioning into "the functional equivalent" of the formal police questioning in Crawford. Id. at 84, 85-86. The child-victims in Snowden were interviewed by a trained sexual abuse investigator who often testified in court and, in her professional capacity, worked closely with local law enforcement; she played "dual roles as interviewer and ultimate witness for the prosecution." Id. at 87. And, there, the social worker testified in place of the children, effectively making the officer the offeror of the statements under CP § 11-304(c). Id. at 95-96.
The State responds that this case is more like Lawson v. State, in which the police notified a social worker of alleged sexual abuse, and the social worker interviewed the child-victim without the presence or participation of any law enforcement. 389 Md. at 582 (holding that social workers aren't transformed into law enforcement "even when they are informed of the abuse by police officers or themselves report the abuse to the police"). Mr. Starr rightfully points out that Detective Myers (who remained in another room and whose presence was unknown by J) did offer questions to Ms. White over the phone, and that Ms. White asked them during their interview. This fact, though, does not remove the interview from the realm of "ascertaining whether a crime had been committed." See Snowden, 385 Md. at 86 ("The fact that the interviews were conducted by a licensed sexual abuse investigator, rather than a police officer, is of little persuasive weight in our analysis"); id. at 84 (citing Hammon v. State, 809 N.E.2d 945, 952 (Ind. App. 2004) (distinguishing nontestimonial statements elicited to determine if a crime was committed from testimonial interrogations)). And because Ms. White was acting as a social worker, not a police officer or agent of the State, we agree with the circuit court that CP § 11-304(c) was satisfied.
One last statutory issue remains: whether the statement was particularly trustworthy. CP § 11-304(f) requires the court to conduct a hearing outside the presence of the jury and create a record establishing the particularized trustworthiness of the out-of-court statement and to make the ultimate determination of admissibility. CP § 11-304(e)(2) provides a non-exhaustive list of factors relevant to establishing a guaranty of trustworthiness.
Mr. Starr raises several complaints pertaining to the court's findings of trustworthiness. He contends that the court erred when it failed to pose a question to test J's potential for bias, that the social worker used leading questions to obtain information from J, that the court found Ms. White credible despite her inability to recall accurately the date she interviewed J, that the court was unaware of extrinsic evidence to show that Mr. Starr had an opportunity to abuse J, and that the court itself did not examine J as required by CP § 11-304. To the contrary, we find that the record supports the trial court's finding that Ms. White's statement bore the appropriate indicia of trustworthiness.
The trial judge worked his way down the list of factors set forth in CP § 11-304(e)(2), and addressed each before ultimately declaring the out-of-court statements admissible. The judge found that J had personal knowledge of the event, as expressed through verbal responses and demonstrative hand motions, and that he had no apparent motive or partiality that would lead him to fabricate the story. The judge reviewed the video of the interview and confirmed that J made a statement, and that there were times where the social worker used leading questions to elicit from J that "[Mr. Starr] told [J] there was candy in his pee-weenie," but noted also that most of J's statements came spontaneously: that he makes "daddy's pee-weenie go up and down," that "[Mr. Starr's] pee-weenie [s]pits out but it tastes like pee," that "[a]ll this candy squirts out in my mouth," and "we had to wipe it up." The trial judge recognized that the interview was held closer to the time of the incident, and that it seemed to be an isolated incident of abuse. Comparing his experiences with children-witnesses "who were obviously spoon fed [testimonial statements]," the judge noted that "[J] does not come across like that," and that J used age-appropriate terminology to relay sensory perceptions and details. The judge did notice some moments of inconsistency relating to whether the incident occurred at the mother's or father's house or if it was light or dark outside, but found those were outweighed by J's "very consistent and coherent and clear" recollection of the physical incident. The court also found that J was not under pain or duress in making the statement, and recounted the prosecutor's observation that "[J] was just kind of terribly matter of fact that this is what happened." As of the time of the hearing, no extrinsic evidence existed to prove Mr. Starr's opportunity to commit the crime, but it is evidence enough that J visited his father, and had done so around the time of the allegations. The trial judge also found the social worker credible. The record fully supports the trial court's finding that J's out-of-court statements were trustworthy, and we find no error in its decision to admit J's out-of-court statements under CP § 11-304.
These are quoted from the transcript of the hearing, and therefore are the trial judge's actual words. The judge prefaced these quotations in a manner indicating that he was quoting or paraphrasing J's own words, but neither the recording nor the transcript of Ms. While's interview were contained in the record.
C. J's Statements To His Mother Were Admissible Under The Prompt Reporting Exception.
Finally, Mr. Starr asserts that the trial court erred by permitting Ms. Williams to testify as to J's initial allegation of abuse. According to Mr. Starr, "there was no reliable information presented as to when the alleged abuse occurred," and thus "the trial court could not make a determination that the statement made to Ms. Williams was prompt for the purposes of the exception." He also reminds us that, as he argued above, J was unable to produce a date or give the day of the week when the abuse occurred. Mr. Starr's arguments would require an unprecedented level of accuracy, beyond the statutory requirements, though, and we disagree both with Mr. Starr's interpretation of the prompt reporting exception and with his contention that the trial court lacked reliable facts on which to base its determination of admissibility.
At the end of this argument, Mr. Starr states, "Further, Ms. Williams was permitted to testify as to the details of the narrative given to her by [J] contrary to the case law interpreting Rule 5-802.1(d) cited above." We can assume that Mr. Starr is referring to this quote embedded in a two-and-a-half-page paragraph: "[R]eferences to the complaint may be restricted . . . rather than recounting the substance of the complaint in full detail." (quoting Gaerian v. State, 159 Md. App. 527, 538 (2004) (internal quotations and citations omitted)). Although we decline to address an argument that was not properly briefed, see Honeycutt v. Honeycutt, 150 Md. App. 604, 618 (2003), we point Mr. Starr to the origin of that quotation, Cole v. State, 83 Md. App. 279 (1990), in which this Court discussed the history of this limitation to the prompt report exception: "Although the earlier case law admitted only the bare fact that the complaint had been made, the restraints have been loosened at least to the point of admitting as well the essential nature of the crime complained of and the identity of the assailant." Id. at 293; see Guardino v. State, 50 Md. App. 695, 706 (1982) (admitting over hearsay objections the details of a rape victim's complaint to support the victim's testimony "as to the time, place, crime, and name of the wrongdoer"). --------
Whether testimony (or other evidence) was properly admitted under a hearsay exception is a question of law that we review de novo. Choate v. State, 214 Md. App. 118, 145 (2013). Maryland Rule 5-802.1 is such an exception. Id. at 146. Md. Rule 5-802.1(d) allows a court to admit an otherwise hearsay statement if that statement was "a prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant's testimony." Promptness is "measured by the expectation of what a reasonable victim, considering age and family involvement and other circumstances, would probably do by way of complaining once it became safe and feasible to do so." Gaerian v. State, 159 Md. App. 527, 545 (2004) (requiring only that the complainant spoke up "without a delay which is unexplained or is inconsistent with the occurrence of the offense" (quoting Nelson v. State, 137 Md. App. 402, 418 (2001))).
At trial, J testified that the abuse occurred the last time he was at Mr. Starr's house. J's mother then testified that J stayed with Mr. Starr for a week in March 2012 so she could help her father after surgery. She said that Mr. Starr dropped J off on the last Wednesday in March. Then, around 3:30 AM on the last Saturday in March, J awoke his mother after he wet the bed. She recalled J "playing with himself" while she changed the bed sheets, and when she asked him to stop, J "started grabbing himself and pulling." Ms. W continued:
I went to change him. I pulled his underwear off, I pulled his pants off and he was touching himself. I asked him to stop. He started grabbing it and moving it in a back and forth motion. I asked him what was he doing and he said, Daddy made me do that. I said, what do you mean daddy [made] you do that? He said, I had to use two hands on daddy. I asked him again what he meant and he said, Daddy made me do that, he told me there was candy inside and when I put my mouth on it, mommy, it tasted like pee and I spit it on the floor.Ms. W then called the police.
It is undisputed that J stayed with Mr. Starr from March 23-28, 2012, and reported the incident to his mother on March 31, 2012, stating that the events occurred the last time he was at Mr. Starr's home. See Gaerian, 159 Md. App. at 545 (admitting complaint by a thirteen-year-old victim made within thirty days of the assault). We discern no error in the trial court's finding that J's report was sufficiently prompt, and therefore no error in the court's decision to admit the mother's testimony.
JUDGMENTS OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.