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.


                                                23
App. 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
