Vigna v. State , 241 Md. App. 704 ( 2019 )

John Vigna v. State of Maryland, No. 1327, September Term, 2017. Opinion by Nazarian,
J.
CRIMINAL LAW – CHARACTER EVIDENCE – CHARACTER OF ACCUSED
In a child sex abuse case, the accused’s reputation for appropriate interactions with children
under their care is not a pertinent trait of character under Maryland Rule 5-404(a)(2)(A).
Circuit Court for Montgomery County
Case No. 130781
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1327
September Term, 2017
______________________________________
JOHN VIGNA
v.
STATE OF MARYLAND
______________________________________
Berger,
Nazarian,
Arthur,
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: July 31, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-07-31 15:39-04:00
Suzanne C. Johnson, Clerk
John Vigna was a long-time teacher at Cloverly Elementary, a public school in
Montgomery County. In 2016, several students reported that Mr. Vigna had touched them
inappropriately in his classroom, dating back as early as the 2001-2002 school year. Under
the guise of a warm and affectionate teaching style, Mr. Vigna allegedly hugged female
students and held them in his lap as he fondled their bodies through their clothing. He was
tried in the Circuit Court for Montgomery County and, on June 9, 2017, convicted of one
count of Child Abuse, three counts of Sex Abuse of a Minor, and five counts of Sex Offense
in the Third Degree.
Mr. Vigna raises primarily evidentiary issues on appeal. First, he argues that the
circuit court improperly excluded testimony (he describes it as character evidence) that
Mr. Vigna had a reputation in the community for interacting appropriately with children
under his care. Second, he argues that the circuit court improperly admitted reprimands he
had received in previous school years for interacting inappropriately with students in the
classroom. Third, he contends that the circuit court improperly admitted a school
counselor’s hearsay testimony relaying one victim’s reports of her sexual abuse. And
finally, he argues that the circuit court’s evidentiary rulings violated his right to a fair trial
under the Sixth Amendment to the U.S. Constitution. We disagree and affirm in toto.
I. BACKGROUND
Mr. Vigna’s career with the Montgomery County Public Schools (“MCPS”) began
in 1992 and ended when the investigation giving rise to this case led to his dismissal in
2016. During his time at MCPS, Mr. Vigna taught grades 3–5 at Cloverly Elementary and
coached bocce and baseball at Paint Branch High School. He was widely adored as a
teacher and a colleague. He maintained close relationships with his students long after they
left his class, and his colleagues praised his teaching style and entrusted him to look after
their own students when they were unable to do so.
Despite his positive reputation, some of Mr. Vigna’s colleagues expressed concern
about how he interacted with students. Jennifer Grey,1 a fifth-grade teacher, testified that
she had seen Mr. Vigna with students in his lap “[a] handful of times” and had spoken with
him more than once about maintaining appropriate boundaries with students. Ms. Grey
reported cautioning Mr. Vigna “especially as a male teacher . . . [not to] be alone with
female students one-on-one, and keep [his] distance.” Ms. Grey testified that she did not
believe there was anything sexual about Mr. Vigna’s interactions with his students, but that
it violated professional guidelines and the policies laid out in MCPS’s pre-employment
training.
In 2008, a fire marshal observed Mr. Vigna holding a child on his lap in his
classroom. The fire marshal reported the incident to then-principal Melissa Brunson, who
called Mr. Vigna into her office and gave him a verbal warning. Three months later, a
building service worker saw Mr. Vigna with another child in his lap and was upset by what
he saw. A loud disagreement ensued, and Mr. Vigna followed the service worker down the
hall and “[tried] to explain that the child was upset and that [he] was trying to meet that
child’s need at that moment.” The incident nonetheless was reported to Dr. Brunson, who
1
Ms. Grey’s name appears as both Grey and Gray in the record. When asked to spell her
name for the record, she spelled it Grey.
2
this time gave Mr. Vigna an official written reprimand and a formal warning that he could
be terminated if his behavior persisted. Despite the warning, Mr. Vigna acknowledged that
he “continued to hug, to kiss, to have kids in [his] lap and to have that kind of contact with
children” because “[t]hat was what [he] deemed [to be] an effective teaching style.”
In 2013, MCPS conducted an investigation into Mr. Vigna’s conduct in response to
a parent complaint. This time, Mr. Vigna allegedly invited three “female students to sit on
[his] lap, lift[ed] them in the air, and dance[d] with them during class.” Mr. Vigna was
placed on administrative leave for three weeks and received another written reprimand, this
time from the Chief Operating Officer of MCPS. Mr. Vigna wrote a brief response
promising to alter his behavior:
I am going to restrict my activities in the classroom to strictly
teaching, counseling and advising students and will make
every effort to not have any physical contact at all with my
students.
In 2016, A.C.2 became the first of several victims to report that Mr. Vigna sexually
abused her. Mr. Vigna was A.C.’s third-grade teacher during the 2013-2014 school year.
When she was in fifth grade, the school counselor, Heather Sobieralski, conducted a lesson
in personal body safety for A.C.’s class. The lesson included information about various
forms of abuse and how children should get help if they were mistreated. The lesson
included a definition of sexual abuse: “When someone touches you or asks you to touch
them on the private parts of the body (those parts covered by a bathing suit), other than to
keep you clean and/or healthy.” Both Ms. Sobieralski and A.C.’s fifth grade teacher,
2
To protect their privacy, we refer to Mr. Vigna’s victims only by initials.
3
Ms. Grey, noted with concern that A.C.’s demeanor changed during the lesson. Although
ordinarily an engaged classroom participant, A.C. became despondent during the body
safety class; she slumped down in her chair and eventually laid her head on the desk. Later
that day, when Ms. Grey and Ms. Sobieralski asked A.C. if she was okay, A.C. said “You
know how we all love Mr. Vigna? Well, he touches us in ways that makes us feel
uncomfortable.”
A.C. reported that Mr. Vigna touches both her and her friend G.G. “on our butt, and
[] makes us sit on his lap, and won’t let us get up.” In a later interview with a social worker,
A.C. stated that Mr. Vigna’s behavior had gone on for years. The first incident she could
recall occurred during her second-grade year, and the most recent just a few days before
the interview. She reiterated that Mr. Vigna touched her buttocks and made her sit on his
lap. A.C. said that Mr. Vigna would pull her onto his lap by her hips and pull her back if
she attempted to get up. She said that he rubbed her thighs with his hands and breathed
steadily more and more heavily the longer she was held on his lap. When she was not on
his lap, she said, his breathing was normal. A.C. also stated that when she was on
Mr. Vigna’s lap she could feel a “hard” part of his body, for which she did not have the
vocabulary, “under her butt.” When asked to locate the body part on an anatomical
drawing, she circled the waistline.
Mr. Vigna ultimately was charged with sexual crimes against five of his former
students. Each victim reported a similar pattern of behavior. All five victims were
prepubescent girls at the time of the alleged incidents, and most testified to having felt that
they had a special relationship with Mr. Vigna. Each child reported that Mr. Vigna touched
4
their chests, buttocks, and genitals through their clothing. Most of the incidents took place
with other students in the classroom and had been concealed by strategic timing and
placement. For example, Mr. Vigna often sat a child on his lap at his desk while the rest of
his students watched videos at the front of the classroom. He also touched students at
chaotic times, such as the end of the day, as the children prepared for dismissal.
Another victim, G.G., reported that she and A.C. frequently went to say goodbye to
Mr. Vigna at the end of the school day. G.G. described the same pattern that A.C. reported.
G.G. approached Mr. Vigna to say goodbye and give him a hug while he was seated at his
desk. Mr. Vigna then rubbed her buttocks in a circular motion with one hand during a “side
hug.” She also reported that Mr. Vigna rubbed and squeezed A.C.’s buttocks before they
left his classroom.
Two other victims, A.S. and J.S., are sisters. A.S. was in Mr. Vigna’s third-grade
class and reported that Mr. Vigna touched her weekly, if not more often, in ways that made
her uncomfortable. She reported that he called her to the back of the classroom during the
school day and touched her chest, buttocks, and genitals over her clothing. He also placed
his hands on her stomach under her clothing. A.S. said that Mr. Vigna kissed her forehead
and told her that he loved her and that she was beautiful while he held her on his lap.
J.S. was in Mr. Vigna’s reading class. She, too, reported that Mr. Vigna would call
her to the back of the classroom and, while hugging her, rub her buttocks and genitals
through her clothing. She stated that “[i]n class he would call me over to the back table,
just me and him, and then he would make sure I sat right next to him, and then he would
start hugging me. He would start touching my butt.”
5
L.D. was an adult at the time of trial. She was Mr. Vigna’s student in fourth grade
and stated that she was “very close with him;” she remembered “having a bond with him
that [she] didn’t have with other teachers.” L.D. contacted the police after she saw an article
on Facebook describing others’ allegations against Mr. Vigna. She reported that Mr. Vigna
sexually abused her during the 2001-2002 school year, and she recounted events similar to
those alleged by the younger victims:
[A]t the end of the day, while we’re waiting for the buses, he
would have me and my former classmate [], I would sit on one
leg and . . . she would sit on the other leg, but it wasn’t like
Santa Claus style. It was like horseback ride style. So, I
remember like we would lean back, and his hands would be on
our, . . . like on our legs. And I remember one specific instance
where he was talking to some boys across the desk, and every
time he talked, I felt his finger on my crotch. And I remember
this so well, even though it was so many years ago, because I
felt sexually aroused when that happened. I felt like that tingly
sensation, and that’s when I knew something wasn’t right.
L.D. described “a routine” for Mr. Vigna’s class, in which she “ha[d] to give him a kiss on
the cheek every single day before we left to go ride our bus.” She also said that on one
occasion, Mr. Vigna instructed her to change her clothes in a closet in his classroom with
the door ajar and that she felt very uncomfortable.
All five victims testified at trial, as did several of Mr. Vigna’s former colleagues,
including Ms. Sobieralski, Ms. Grey, and Dr. Brunson. Mr. Vigna also testified in his own
defense, and he denied categorically that he ever touched a student for his sexual
gratification. He testified that touching children inappropriately was “simply against the
fiber of [him].” He did not deny that he often hugged children, had them sit on his lap,
kissed them, and told them that he loved them:
6
MR. VIGNA: I told all of my students that I loved them. I
believe that you had to love them to lead them and if they knew
that then they would follow you to new heights academically
and socially.
MR. VIGNA’S COUNSEL: There has been testimony that on
occasion you kissed a student on the forehead or on the top of
the head or a student kissed you on the cheek. Did that ever
happen?
MR. VIGNA: Yes, I would go back and blame that on my
Italian family.
MR. VIGNA’S COUNSEL: And did any of those incidents
about which we have just been speaking did that involve any
attempt to sexually exploit any of the students in your class?
MR. VIGNA: Absolutely not.
Mr. Vigna attributed much of his behavior to growing up in a large Italian family
that emphasized physical affection. He said he viewed his students as his family and would
not want to carry on teaching if he could not show them love and physical affection.
Mr. Vigna also acknowledged that he had failed to comply with his agreement not to have
physical contact with his students, and stated repeatedly that the students initiated3 the hugs
and lap-sitting. “[T]hey are little kids,” he explained, “[s]o you can try and tell them not to
sit on your lap but . . . they are going to come up and hop on your knee whether you want
them to or not.” He attributed any contact that could have been interpreted as sexual to
accidental touching in the daily classroom scuffle.
The jury convicted Mr. Vigna of nine of the fourteen counts charged. He later was
sentenced to eighty years in prison, all but forty-eight suspended. Additional facts will be
3
Several of his victims testified to the contrary that Mr. Vigna would ask for hugs and tell
his students to “come here” before pulling them into his lap.
7
provided below as needed.
II. DISCUSSION
Mr. Vigna challenges three of the circuit court’s evidentiary rulings on appeal. He
contends first that the trial court erred when it excluded, under Maryland Rule 5-
404(a)(2)(A), evidence of his character, specifically his character for interacting
appropriately with children. Second, he argues that his 2008 and 2013 reprimands for
inappropriate physical contact with his students were improperly admitted as prior bad acts
evidence under Maryland Rule 5-404(b). Third, he argues that the trial court improperly
admitted A.C.’s complaint to Ms. Sobieralski under Maryland Rule 5-802.1(d). And he
argues finally that the circuit court’s decisions to admit his prior reprimands while
excluding his proffered character evidence violated his right to a fair trial under the Sixth
Amendment to the United States Constitution.4 We find that the circuit court properly
exercised its discretion throughout the trial and affirm Mr. Vigna’s convictions.
A. “Appropriate Interaction With Children” Is Not A Pertinent Character
Trait Under Maryland Rule 5-404(a)(2)(A).
We begin with Mr. Vigna’s argument that the circuit court erred when it excluded
defense testimony about his reputation in the community for “appropriate interaction with
students in his care and custody.” Mr. Vigna sought to admit this testimony under Maryland
Rule 5-404(a)(2)(A), which allows defendants in criminal cases to offer evidence of their
“pertinent trait[s] of character.” The trial judge permitted Mr. Vigna’s character witnesses
4
Mr. Vigna also asserts that the circuit court’s decisions violated his right to a fair trial
under the Maryland Declaration of Rights. Mr. Vigna does not develop an independent
argument on this theory and we decline to address it.
8
to testify to his truthful and law-abiding nature, but found that interacting appropriately
with the children under his care was not a pertinent character trait within the meaning of
the Rule. We review this question of statutory interpretation de novo.
Generally, “evidence of a person’s character or character trait is not admissible to
prove that the person acted in accordance with the character or trait on a particular
occasion.” Md. Rule 5-404(a). Rule 5-404(a)(2)(A) is an exception to the general
prohibition on propensity character evidence that applies in criminal cases:
An accused may offer evidence of the accused’s pertinent trait
of character. If the evidence is admitted, the prosecution may
offer evidence to rebut it.
Md. Rule 5-404(a)(2)(A).
The scope of what constitutes a “pertinent character trait” under Rule 5-
404(a)(2)(A) is defined by the nature of the crimes alleged. To be admissible, the evidence
must be “confined to an attribute or trait the existence or non-existence of which would be
involved in the noncommission or commission of the particular crime charged.” Braxton
v. State, 11 Md. App. 435, 440 (1971). In other words, pertinent character traits must be
relevant to the specific crimes charged—they must have some bearing on the likelihood
that a person exhibiting that trait would (or would not) commit the crimes of which he
stands accused. The issue before us, therefore, is whether Mr. Vigna’s reputation in the
community for appropriately interacting with children bears on whether he sexually abused
them. We agree with the circuit court that it does not.
This narrow issue is one of first impression in Maryland. Mr. Vigna relies primarily
on State v. Rothwell, a decision from the Court of Appeals of Idaho that held that “character
9
traits relating to a defendant’s sexual morality with children are pertinent” in a case
involving sexual misconduct with a minor under Idaho Rule 404(a)(2)(A).5 154 Idaho 125,
131 (Ct. App. 2013). The court found the evidence relevant, albeit limited in probative
value, and Mr. Vigna urges us to adopt its reasoning:
Because character traits relating to a defendant’s sexual
morality with children are pertinent, or relevant, in this type of
case, such evidence is admissible under I.R.E 404(a)(1). We
recognize that sexual abuse is usually secret behavior that
would not be observed by others, and therefore the opinion or
reputation evidence about a defendant’s trustworthiness with
children may be of marginal persuasiveness. . . . It appears that
Rule 404(a)(1) was nevertheless intended to allow an accused
the opportunity to present evidence of good character that is
pertinent to the nature of the charged offense. The unlikelihood
that the character witnesses would have been in a position to
witness criminal conduct of the defendant goes to the weight
of character evidence, not its admissibility.
Id. at 131.
The majority of jurisdictions that have considered this general question have
concluded, as Idaho did, that a defendant’s interactions with children, sexual
predispositions, and general “morality” are pertinent character traits in child sex abuse
cases. See e.g., People v. McAlpin, 53 Cal.3d 1289, 1309 (1991) (witnesses should have
been permitted to testify that the defendant was “not a person given to lewd conduct with
children”); State v. Rhodes, 219 Ariz. 476, 479 (App. 2008) (the defendant’s “sexual
normalcy, or appropriateness in interacting with children” was a pertinent trait); State v.
Hughes, 841 So.2d 718, 723 (La. 2003) (“a defendant may present evidence of his or her
5
Idaho Rule of Evidence 404(a) is virtually identical Maryland Rule 5-404(a).
10
reputation in the community as a moral person and for safe and proper treatment of young
children . . .”); State v. Enakiev, 175 Or.App. 589, 596 (2001) (evidence of a defendant’s
“sexual propriety” is admissible as a pertinent trait in a prosecution for a sex crime). Those
jurisdictions make no distinction between the traits for sexual propriety or appropriateness
with children and more traditional traits offered as character evidence such as honesty or
peacefulness. And like Idaho, they reason that the limited probative value of the evidence
goes only to its weight, not to its admissibility. See Rhodes, 219 Ariz. at 479.
Mr. Vigna asks us to take this principle a step further, and essentially tries to cast
the ultimate issue in this case—whether he acted in a sexually inappropriate manner around
children—as a character trait. We don’t dispute that reputation testimony about a pertinent
character trait is admissible even when its probative value is limited. But evidence can be
admitted for a jury’s assessment of weight and credibility only after a threshold finding
that the proffered trait is relevant. And we are not convinced that a defendant’s reputation
in the community for interacting appropriately with children is relevant in a child sex abuse
case.
Unlike honesty or peacefulness, traits a person might exhibit visibly day-to-day,
sexual interests, predilections, or deviancy are not readily discernable to a casual observer,
or even a close colleague. For that reason, courts in other states have disagreed with the
majority view and have found reputation evidence relating to sexual behavior irrelevant to
a defendant’s guilt for sexual crimes involving children. Put another way, the fact that a
defendant might have behaved appropriately with children in some instances does not make
11
it more or less likely that the defendant sexually abused a child.6
In State v. Jackson, the Court of Appeals of Washington held that because of the
secretive nature of sexual crimes, and sexual activity in general, a defendant’s reputation
for sexual activity, or the lack thereof, bore no correlation to the likelihood that they
committed the crimes charged:
The crimes of indecent liberties and incest concern sexual
activity, which is normally an intimate, private affair not
known to the community. One’s reputation for sexual activity,
or lack thereof, may have no correlation to one’s actual sexual
conduct. Simply put, one’s reputation for moral decency is not
pertinent to whether one has committed indecent liberties or
incest.
46 Wash.App. 360, 365 (1986). Florida courts have likewise found that a defendant’s
reputation for sexual morality did not bear on the likelihood that he committed a sexual
crime against a child. If anything, the District Court of Appeal of Florida observed, that
sort of testimony is inherently unreliable:
[T]he court was concerned with the reliability of such
reputations given that sexual conduct of the nature alleged here
normally does not occur in public. Implicit in the court’s
analysis is the conclusion that reputations for truthfulness,
peacefulness, etc. are more reliable and less likely to differ
from reality because those traits are commonly displayed in
public. . . . In addition, it is highly unlikely that a person will
discuss his or her immoral or indecent sexual conduct;
6
North Carolina has also concluded that this kind of character evidence is not pertinent
under the Rules of Evidence, but for slightly different reasons. See State v. Clapp, 235
N.C.App. 351, 363 (2014) (“[T]he evidence at issue in this case, which consisted of
testimony . . . to the effect that [the witness] saw no indication that Defendant had an
unnatural lust for or sexual interest in young girls, constituted nothing more than an
attestation to Defendant’s normalcy. As a result, given that the excluded evidence did not
tend to show the existence or nonexistence of a pertinent trait of character, the trial court
did not err by excluding [the] testimony[.]”).
12
therefore, a person’s reputation for sexual conduct is not likely
to reflect immoral or indecent conduct.
Hendricks v. State, 34 So.3d 819, 824 (Fla. 1st DCA 2010) (quoting State v. Spencer, 84
Wash.App. 1010 (1996) (unreported), No. 35276-8-I, 1996 WL 665931); see also Alvelo
v. State, 769 So.2d 476 (Fla. 5th DCA 2000). And New Hampshire reached a similar
conclusion, finding in State v. Graf that because sexual crimes are undertaken furtively,
character witnesses necessarily lack the required foundation to “form an opinion as to
whether the defendant is the type of person to sexually assault or to take advantage of
children.” 143 N.H. 294, 299 (1999). The court couched its conclusion in relevance terms:
“Accordingly, the proffered evidence, lacking any foundation, would be irrelevant because
it does not have the tendency to make the existence of any fact that is of consequence to
the determination of the action more or less probable than it would be without the
evidence.” Id.We join those courts that have declined to extend the general rule allowing character
and reputation evidence to include more granular testimony about a defendant’s reputation
for sexual propriety or appropriateness with children. We agree with our Floridian
counterparts that testimony from colleagues that Mr. Vigna hadn’t acted inappropriately
with children in their presence “is not the kind of evidence contemplated by character
testimony. Unlike one’s reputation for honesty or peacefulness, traits that might be noticed
by the community, whether one secretly molests children or does not would not be openly
exhibited[.]” Alvelo, 769 So.2d at 477. And we find those cases particularly compelling in
13
light of the growing understanding about adults who sexually abuse children and the tactics
they employ to gain access to their victims.
Sexual predators are “not instantly recognizable as the ‘dirty old man in the
raincoat.’” Anne-Marie McAlinden, Setting ‘Em Up: Personal, Familial, and Institutional
Grooming in the Sexual Abuse of Children, 15 SOC. AND LEGAL STUD. 339, 348 (2006).
They blend into the community and often stand in trust relationships—coaches, clergy,
teachers, physicians, or family members—with their victims. Id. Offenders “groom”
victims through these relationships and “skillfully manipulate a child into a situation where
he or she can be more readily sexually abused and is simultaneously less likely to disclose.”
Id. at 346.7 Recent news accounts demonstrate how offenders exploit trust relationships,
not only with children but also their parents and the community at large, to gain access to
victims.8 Before these allegations became public, there undoubtedly were colleagues,
7
The U.S. Department of Justice, Office of Sex Offender Sentencing, Monitoring,
Apprehension, Registering, and Tracking uses the following definition of grooming:
Grooming is a method of building trust with a child and the
adults around a child in an effort to gain access to and time
alone with her/him. . . . The offender may assume a caring role,
befriend the child or even exploit their position of trust and
authority to groom the child and/or the child’s family.
U.S. Dep’t of Justice, National Sex Offender Public Website, SMART Program. “Get
Answers About Sexual Abuse and Associated Risks: Common Questions.” Available at
https://perma.cc/56RY-7J38.
8
Consider a few recent and infamous examples: (1) Larry Nassar, the former U.S.
Gymnastics national team doctor sentenced to nearly two centuries in prison for sexually
abusing his patients—one of his victims had known him her entire life and was sexually
abused starting at age ten by the doctor who was “almost like family,” see, e.g., Dan Barry,
Serge F. Kovaleski and Juliet Macur, As F.B.I. Took a Year to Pursue the Nassar Case,
Dozens Say They Were Molested, N.Y. TIMES, Feb. 4, 2018 at A1; (2) Jerry Sandusky, the
former assistant football coach at Penn State who met his victims through a charity he
14
parents, and other children who could have testified honestly that they believed those
abusers were appropriate with children and much beloved by the community for the strong
relationships they formed with them.
To admit a community member’s opinion about a defendant’s reputation for
propriety with children would fail to “consider that sex offenders may [] groom not just the
child but also their family or the wider community as a necessary prerequisite to gaining
access” to child victims. Id. at 341. In this way, they “ingratiate themselves with children
and infiltrate themselves into unsuspecting . . . communities. . . . To do this successfully,
they must pass themselves off as being very nice, usually, men who simply like children.”
Id. at 348. This is not to suggest that teachers, clergy, or other adults with close
relationships with children should inherently be regarded with suspicion, or that their close
relationships with children suggest impropriety with children. But an adult’s public
interaction with children under his care doesn’t make it any more or less likely that the
founded ostensibly to help at-risk youth, see, e.g., Mark Viera, Former Coach at Penn State
Is Charged With Abuse, N.Y. TIMES, Nov. 6, 2011 at A1; and (3) the thousands of children
victimized by clergy. See, e.g., Isaac Stanley-Becker, ‘He’s a priest. I trusted him’: One of
the 1,000 victims of the alleged Pennsylvania clergy abuse tells his story, WASH. POST,
Aug. 15, 2018 (“the priest physically and emotionally abused [the victim], ‘grooming’ him
by exploiting the intensity of their bond.”); Michael Rezendes et al., Church allowed abuse
by priest for years: Aware of Geoghan record, archdiocese still shuttled him from parish
to parish, BOS. GLOBE, Jan. 6, 2002 (“The affable Geoghan usually befriended Catholic
mothers struggling to raise large families, often alone. His offers to help . . . were accepted
without suspicion.”); Elizabeth Dias, Her Evangelical Megachurch Was Her World. Then
Her Daughter Said She Was Molested by a Minister, N.Y. TIMES, June 10, 2019; Hannah
Dreyfus, Did Baltimore’s Orthodox Community Turn A Blind Eye To Child Sexual Abuse?
Despite allegations against him, popular rabbi was still working with children—until Jan.
2018, THE NEW YORK JEWISH WEEK, Jan. 17, 2018.
15
alleged victims were abused by him privately. And because it’s not relevant, it’s not
admissible under Rule 5-404(a)(2)(A).
Mr. Vigna counters that his victims allege they were abused in public and that the
reputation evidence he seeks to admit is therefore appropriate. But although it is true that
much of the reported abuse took place in his classroom, with other students in the room,
the victims explained that Mr. Vigna took active steps to avoid detection. His victims were
abused most frequently during the chaos of the classroom at dismissal time, or during
showings of videos when the room was darkened and other students’ attention was
distracted.
Ultimately, very little of the testimony that Mr. Vigna offered did not find its way
to the jury. He called nine defense witnesses who testified that he was law-abiding and
truthful. Four were former colleagues, and two worked in Mr. Vigna’s classroom alongside
him. One character witness, who was both a former colleague and the parent of a former
student, testified that she trusted Mr. Vigna “obviously, with the lives of [her] children”
and that “as a coworker, I trust him helping me out of some very difficult situations with
other children. So [] he’s very trustworthy and . . . very calming to the children that I needed
help with.” Another stated that he would trust Mr. Vigna with his life. Mr. Vigna’s twelve-
year-old niece testified that she trusted her uncle. And despite excluding testimony about
Mr. Vigna’s reputation for interacting appropriately with children, the court allowed
multiple parents to testify about the positive experience of having Mr. Vigna teach their
children. He was not permitted to elicit testimony that he had the reputation for conducting
himself appropriately with children, but the extensive testimony he did elicit supports the
16
“trait” that Mr. Vigna sought to establish. We see no error in the circuit court’s decision to
exclude Mr. Vigna’s proffered character evidence.
B. The Circuit Court Properly Admitted Mr. Vigna’s Prior Reprimands.
Second, Mr. Vigna argues that the trial court abused its discretion by admitting, via
Maryland Rule 5-404(b), reprimands he received from school administration in the past for
inappropriate interactions with his students. The circuit court admitted two disciplinary
letters, one from 2008 and one from 2013. The 2008 reprimand from Dr. Brunson described
two incidents involving students on Mr. Vigna’s lap:
This letter is an official reprimand for inappropriate behavior
and failure to exercise the professional judgment expected of a
[MCPS] employee. . . . On Thursday, February 28, 2008, a
public service worker observed a male[9] student sitting on your
lap. As follow-up, you and I met on Friday, February 29, 2008,
where you admitted to your wrongdoing and you received
immediate counseling by me and a verbal warning not to have
any students sit on your lap at any time. Again on Thursday,
May 30, 2008 another student, this time a female student, was
sitting on your lap. . . . [T]his investigation reveals that you
have demonstrated insubordination on your part. Your
handling of this situation was improper, unprofessional, and
must not be repeated.
The second reprimand came five years later from Larry A. Bowers, the COO of MCPS,
and also arose after Mr. Vigna was seen with students on his lap and dancing with them:
The purpose of this letter is to strongly reprimand you for
insubordination and failure to exercise the professional
judgment expected of a [MCPS] employee. . . . [The Office of
Human Resources and Development] investigated the
allegation that you had invited female students to sit on your
9
There was some dispute at trial regarding the gender of this student. Although the letter
indicates Mr. Vigna had a male student in his lap, Dr. Brunson testified that she believed
that was a typo and the student was, in fact, female.
17
lap, lift them in the air, and dance with them during class.
These behaviors are indefensible, inappropriate, and
intolerable. . . . It is difficult to believe that any teacher,
especially a veteran teacher, would not understand what is
respectful and professional behavior . . . . This is to serve as a
warning that you need to alter your interactions with students
immediately. Any further instances of such unprofessional
behavior may be grounds for more severe disciplinary action
up to and including dismissal.
The circuit court admitted Mr. Vigna’s reprimands under Rule 5-404(b). The
court found that they were admissible for the purposes of demonstrating Mr. Vigna’s
intent, knowledge of his wrongdoing, and absence of mistake:10
So what this shows is within seven months after being
reprimanded and writing a letter saying he’ll have no contact
with his students, we have victims . . . talking about conducting
in the same type of activity, which is sitting on the lap and now
inappropriate touching. So I think under 404(B) parameters,
although the prior acts [] themselves may not have been crimes
independently, they certainly were acts that were determined
to be inappropriate by school officials and he was given
warning that it was inappropriate for the teacher to have any
physical contact with students which he acknowledged and
indicated that he would not do that in the future. So I think that
the areas of special relevance of these activities from 2008 and
2013 certainly go to knowledge. It goes to the defendant’s
knowledge that this conduct was inappropriate, even at a
school disciplinary level, much less criminal activity. It also I
think goes to intent, which indicates he intended to never have
any physical contact, knowing that it was inappropriate. . . . It
also goes to the issue of lack of mistake or accident[.]
Mr. Vigna contends that the reprimands should not have come in because they did
not indicate that he had engaged in prior criminal behavior, “because the evidence was not
10
The circuit court did not admit all the evidence the State sought to admit. The court
admitted Mr. Vigna’s prior reprimands, but excluded evidence that students had been seen
in the area behind his desk after concluding it was not relevant to the crimes charged.
18
substantially related to some contested issue in the case,” and because the reprimands’
prejudicial effect outweighed their probative value. We disagree.
Maryland Rule 5-404(b) governs “other crimes” or “prior bad acts” evidence:
Evidence of other crimes, wrongs, or acts . . . is not admissible
to prove the character of a person in order to show action in
conformity therewith. Such evidence, however, may be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, common scheme or plan,
knowledge, identity, or absence of mistake or accident.
Trial courts analyze proposed prior bad acts evidence using a three-part test. State v.
Faulkner, 314 Md. 630, 634 (1989). The court must determine first whether the proffered
evidence fits into one of the Rule’s exceptions. Id. We review that decision de novo. Behrel
v. State, 151 Md. App. 64, 125 (2003). The court then must assess “whether the accused’s
involvement in the other crimes is established by clear and convincing evidence.”
Faulkner, 314 Md. at 634. Finally, the trial court must weigh “[t]he necessity for and
probative value of the ‘other crimes’ evidence . . . against any undue prejudice likely to
result from its admission.” Id. at 635. We review the circuit court’s balancing of probative
value against undue prejudice for abuse of discretion. Smith v. State, 218 Md. App. 689,
710 (2014).
Mr. Vigna’s reprimands were not offered to show that he acted in conformity with
his prior bad behavior with his students. The State offered them instead to show that
Mr. Vigna had been on notice that his actions were wrongful. His primary defense at trial
was that he intentionally cultivated a family-like environment in his classroom where
physical affection was common. The prior reprimands demonstrated that, whatever his
19
claimed intentions, he was on notice that his behavior was “indefensible, inappropriate,
and intolerable,” but that he persisted in that behavior at least until 2013 when, he claims,
he made “the very conscious effort to change [his] teaching style” after a three-week
suspension. For that reason, Mr. Vigna’s prior reprimands are “substantially relevant to
some contested issue in the case,” and the trial judge properly found they fell under Rule
404(b) special relevance. Merzbacher v. State, 346 Md. 391, 407 (1997).
We similarly see no merit in Mr. Vigna’s arguments that the reprimands were
inadmissible because they didn’t involve criminal behavior. It’s true that evidence admitted
under Rule 5-404(b) is often called “other crimes evidence.” See, e.g., Behrel, 151 Md.
App. at 124. But the Rule is not limited to prior criminal behavior. The plain language of
the Rule encompasses “crimes, wrongs, or acts.” “A bad act is an activity or conduct, not
necessarily criminal, that tends to impugn or reflect adversely upon one’s character, taking
into consideration the facts of the underlying lawsuit.” Brice v. State, 225 Md. App. 666,
692 (2015) (cleaned up) (emphasis added). And in determining what may properly be
admitted, courts look at the nature of the activity as it relates to the crime charged, not
whether the activity independently constitutes a crime. See Klauenberg v. State, 355 Md.
528, 549 (1999) (quoting U.S. v. Cooper, 577 F.2d 1079 (6th Cir.), cert. denied, 439 U.S.
868 (1978)) (“Conceivably within the broad language of the rule is any conduct of the
defendant which may bear adversely on the jury’s judgment of his character.”).
Finally, we consider and reject Mr. Vigna’s argument that the probative value of his
prior reprimands was outweighed substantially by the risk of unfair prejudice. Mr. Vigna
claims that admitting his prior reprimands “had the very real effect of casting [him] as a
20
dirty man who had children sit in his lap.” But Mr. Vigna readily admits both in appellate
briefing11 and in his trial testimony12 that he had children sit in his lap. And his prior
reprimands do not characterize his behavior towards the children as sexual, but as
unprofessional and inappropriate. Moreover, the concern with prior bad acts evidence is
not avoiding any and all prejudice, but avoiding “untoward prejudice” or “unfair prejudice”
that creates the risk that the jury will convict the defendant for reasons unrelated to his
commission of the crimes charged. Faulkner, 314 Md. at 641 (quoting Cross v. State, 282
Md. 468, 474 (1978)). In light of Mr. Vigna’s ready acknowledgment that he had his
students sit in his lap, we fail to see how the prior reprimands created a risk of unfair
prejudice that outweighed their probative value substantially, and thus we see no abuse of
the circuit court’s discretion in admitting them.
C. Ms. Sobieralski’s Testimony Is Admissible Under The Prompt Complaint
Exception To The General Prohibition On Hearsay.
Mr. Vigna argues next that the circuit court erred by admitting A.C.’s statements to
Ms. Sobieralski under Maryland Rule 5-802.1(d), which excepts from the general
prohibition on hearsay a “prompt complaint of sexually assaultive behavior to which the
declarant was subjected.” Mr. Vigna contends that A.C.’s complaint was not made
promptly and that Ms. Sobieralski’s testimony extended beyond the scope allowable under
“There was no need to make an argument of lack of intent or mistake in 5-404(B) because
11
Mr. Vigna never denied that the students sat on his lap.”
12
“Well, first of all elementary education they are little kids. So you can try and tell them
not to sit on your lap but if they are affectionate to you and they have feelings towards you
and they feel like they can count on you they are going to come up and hop up on your
knee whether you want them to or not. So it happened with some frequency.”
21
the Rule. We review de novo the circuit court’s determination of whether evidence is
admissible under a hearsay exception. Gordon v. State, 431 Md. 527, 538 (2013).
Maryland Rule 5-801 defines hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Hearsay is presumptively inadmissible unless it falls under one of the
recognized hearsay exceptions. Md. Rule 5-802; Parker v. State, 156 Md. App. 252, 259
(2004). The circuit court admitted Ms. Sobieralski’s statement under Md. Rule 5-802.1(d),
the “prompt complaint” exception:
The following statements previously made by a witness who
testifies at the trial or hearing and who is subject to cross-
examination concerning the statement are not excluded by the
hearsay rule:
***
(d) A statement that is one of prompt complaint of sexually
assaultive behavior to which the declarant was subjected if the
statement is consistent with the declarant’s testimony[.]
There is no dispute that A.C. testified at trial and was subject to cross-examination
about her statement to Ms. Sobieralski. Mr. Vigna complains, however, that her statement
came too long after her alleged abuse to be considered “prompt.” We disagree.
Promptness in this context is not subject to any “immutable time frame.” Gaerian
v. State, 159 Md. App. 527, 541 (2013). To the contrary, “promptness is a flexible concept,
tied to the circumstances of the particular case.” Id. at 540. A complaint of sexual assault
may be considered prompt if the victim’s statement is made “without a delay which is
unexplained or is inconsistent with the occurrence of the offense.” Harmony v. State, 88
Md. App. 306, 321 (1991) (cleaned up). And in making that determination, we take into
22
account “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.” Nelson v. State, 137 Md. App. 402, 418 (2001). When the complainant is a young
child, as in this case, the time analysis can include factors related to “the natural fear,
ignorance, and susceptibility to intimidation that is unique to a young child’s make-up”
including “the relationship between the complainant and the defendant” and “whether the
defendant held a position of trust in the complainant’s life.” Gaerian, 159 Md. App. at 542
(quoting Commonwealth v. Fleury, 417 Mass. 810 (1994)).
Until Ms. Sobieralski’s body safety class, A.C. didn’t understand that Mr. Vigna’s
behavior toward her was sexually abusive. As soon as she understood that Mr. Vigna had
touched her inappropriately, she became upset and told her teacher and school counselor
about what had happened. The delay between the onset of the abuse and A.C.’s complaint
is explained readily by A.C.’s young age and close and trusting relationship with
Mr. Vigna. And although we know that Mr. Vigna’s abuse of A.C. spanned a period of
years, “[n]owhere in any case of which we are aware does the applicability of Rule 5-
802.1(d) . . . hinge upon the victim reporting the first act of abuse.” Gaerian, 159 Md. App.
at 538. (cleaned up). We agree with the circuit court that A.C.’s complaint was prompt
within the meaning of Rule 5-802.1.
Mr. Vigna claims as well that Ms. Sobieralski’s testimony exceeded the scope of
what Rule 5-802.1(d) allows. The “legally sanctioned function” of the prompt complaint
exception is to bolster the credibility of the victim by corroborating her account of the
alleged assault. Choate v. State, 214 Md. App. 118, 146 (2013) (quoting Nelson, 137 Md.
23App. at 411). But we have found that testimony admitted under the prompt complaint
exception is subject to certain limitations, including “the extent to which the reference may
be restricted to the fact that the complaint was made, the circumstances under which it was
made, and the identification of the culprit, rather than recounting the substance of the
complaint in full detail.” Muhammad v. State, 223 Md. App. 255, 269 (2015) (quoting
Nelson, 137 Md. App. at 411). That said, “[a]lthough 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.” Cole v. State, 83 Md. App. 279, 293 (1990).
Ms. Sobieralski simply recounted what A.S. told her:
Ms. Grey walked in and said, [A], please tell Ms. S. what you
told me. And she said, you know how everybody loves--this is
[A] talking. You know how everybody loves Mr. Vigna? I said,
yes. And she said, well he makes me feel uncomfortable. And
I said, how so? And she said, when he hugs me he touches my
butt. And he makes me sit on his lap, and when I try to get up
he doesn’t let me.
***
I asked where and when this was happening. And she said
when she goes to say goodbye at the end of the day. I asked if
anybody else was involved and she said another student[’]s
name.
That was the full extent of Ms. Sobieralski’s testimony on the content of A.C.’s
complaint, and it fell well within the limitations to the prompt complaint exception. Ms.
Sobieralski’s testimony provided the context of the complaint, identified Mr. Vigna as the
culprit, and stated the nature of the allegations. It did not, as Mr. Vigna claims, include a
24
narrative account of A.C.’s abuses at Mr. Vigna’s hands. The circuit court properly
admitted Ms. Sobieralski’s testimony about A.C.’s prompt complaint.
D. Mr. Vigna Received a Fair Trial Under the Sixth Amendment to the U.S.
Constitution.
Finally, Mr. Vigna argues that the circuit court’s decisions to exclude his proffered
character testimony and admit his prior reprimands violated his right to a fair trial under
the Sixth Amendment to the United States Constitution. Mr. Vigna’s constitutional
arguments do not differ meaningfully in their substance from his evidentiary arguments.
He argues that the court’s admission of his prior reprimands coupled with the exclusion of
his character witnesses’ testimony that he interacted appropriately with students was so
prejudicial that it denied him a fair trial. He claims that the court’s decisions “set an
impossibly unfair playing field at trial” and that the State “made [his trial] into a personality
contest and [Mr.] Vigna was not allowed to present meaningful relevant evidence in his
defense.”
We disagree. As a general rule, Maryland appellate courts “will not reach a
constitutional issue when a case can properly be disposed of on a non-constitutional
ground.” Myer v. State, 403 Md. 463, 475 (2008). Mr. Vigna nonetheless reminds us that
“[t]he Constitution, not the Rules of Evidence, [r]eign [s]upreme[,]” and that “[w]hen push
comes to shove, the right to a fair trial wins over evidentiary constraints.” But Mr. Vigna
was not deprived of his right to a fair trial—he was not prevented from putting on witnesses
in his defense, only from allowing them to present irrelevant testimony that, in their
opinion, he behaves appropriately with the children under his care. Furthermore, as
25
discussed in Section A above, most of what Mr. Vigna sought to admit reached the jury
despite the circuit court’s ruling.13 We find that Mr. Vigna was not deprived of his right to
a fair trial under the Sixth Amendment and affirm his convictions accordingly.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. APPELLANT TO PAY
COSTS.
13
Mr. Vigna does not articulate a separate constitutional argument against the admission
of his prior reprimands under Rule 5-404(b). But whatever his theory may be, the circuit
court could not possibly have admitted his proffered character testimony while excluding
his prior reprimands. If the circuit court were to have admitted his desired character
testimony, that necessarily would have opened the door for the State to rebut that character
testimony with specific conduct indicating that he did not, in fact, behave appropriately
with children, which would bring Mr. Vigna’s prior reprimands under that umbrella.
26