State of Maryland v. Karen Campbell McGagh, No. 12, September Term 2020. Opinion

by Hotten, J.

CRIMINAL LAW – STANDARD OF REVIEW – SUFFICIENCY OF EVIDENCE

– PERJURY – Maryland Rule 8-131 provides that an appellate court will not set aside the

judgment of a trial court on the evidence unless clearly erroneous, and reviewing courts

shall defer to trial court’s findings regarding the credibility of witnesses. Appellate courts

held that Respondent’s perjury and false report convictions did not warrant a de novo

review. Respondent did not raise any First Amendment challenges at trial, and even if

Respondent had, the First Amendment does not protect perjurious speech.

CRIMINAL LAW – SUFFICIENCY OF EVIDENCE – PERJURY – FALSITY – The

crimes of perjury and false report both require proof of falsity. The State must satisfy the

two-witness rule to establish falsity. The two-witness rule requires either two witnesses

testifying to the falsity of a statement or one witness testifying to the falsity of a statement

with independent corroboration of equal weight to that of a witness. The Court of Appeals

held that a store’s surveillance video may independently corroborate a witness’s testimony

to prove Respondent’s intent in making a false statement to the police and the court.

CRIMINAL LAW – SUFFICIENCY OF EVIDENCE – PERJURY –

MATERIALITY – Perjury and false report require the State to prove the materiality of

willful and knowing false statements beyond a reasonable doubt. The State presents

sufficient evidence of materiality by showing a false statement that affects a legal decision

or outcome. The Court of Appeals held that a false statement that causes an officer to

initiate an investigation and a commissioner to issue an arrest warrant satisfies the element

of materiality under Maryland’s false report and perjury statutes.

IN THE COURT OF APPEALS

OF MARYLAND

No. 12

September Term, 2020

Trebay touching McGagh as she claimed. The trial court convicted McGagh of perjury

and making a false statement to police officer. McGagh received a sentence of ten years’

incarceration for the perjury conviction, all but eight years suspended, with five years’

supervised probation. McGagh also received a consecutive sentence of six months for the

false report conviction.

McGagh appealed her convictions to the Court of Special Appeals. She argued that

Petitioner (“the State”) presented insufficient evidence to establish her convictions beyond

a reasonable doubt. The Court of Special Appeals agreed and reversed the trial court. In

its unreported opinion, the Court of Special Appeals raised, for the first time, the issue of

whether McGagh’s perjury conviction implicated the First Amendment, thereby triggering

policy-based concerns, it applied a non-deferential, [de novo] standard of

2. Did [the Court of Special Appeals] err in finding the evidence insufficient

to show willful and knowing falsity, and in finding that one witness’s

2

testimony corroborated by surveillance video was insufficient to satisfy

the [two-witness rule] for perjury?

3. Was the evidence legally insufficient to support Respondent’s

convictions for perjury and/or false statement because the evidence failed

On April 24, 2017, McGagh visited a Verizon store in Towson, Maryland to seek

the repair of her broken phone. Glenn Trebay, a Verizon store employee, greeted her and

escorted McGagh to his desk. Trebay discovered an outstanding balance on her account

that prevented him from immediately replacing her phone. He tried contacting different

departments to resolve the issue. After approximately two hours, McGagh purchased a

new phone for over $800 and left the store. The store’s video cameras captured the entire

interaction without sound.

McGagh and Trebay provided starkly different depictions of their encounter.

Trebay described McGagh as initially distraught and that she became increasingly agitated

3

McGagh found Trebay’s behavior disturbing. She claimed that he attempted to sell

her non-Verizon items, including a Fitbit,

2

a watch, and a cashmere sweater, and that he

allegedly stored these unsanctioned items in his car. She testified that he smelled of

alcohol. At one point, she claimed that Trebay held her SIM card and joked, “I’ve got your

life in my hands now[.]”

During the encounter, the surveillance video reflected several customers coming in

and out of the store. A nearby salesman spent several minutes attending to another

customer and helped Trebay complete the phone transaction with McGagh after an hour

and a half. McGagh claimed that the other salesman told her that Trebay’s behavior was

worse around college-age girls.

3

2

wearable technology. Wikipedia, the Free Encyclopedia, Fitbit,

https://en.wikipedia.org/wiki/Fitbit (last visited Dec. 4, 2020), archived at

https://perma.cc/83H8-QDK9.

(continued . . .)

4

should never be around young women.” She asked whether Trebay could get a “scary

warning[]” from the police officer. Officer Heims responded, “I think there’s going to be

a little more than a scary warning, I can promise you that.”

She also alleged Trebay touched her breast and inner thigh. The body camera

footage showed McGagh demonstrating that Trebay touched her breast. Officer Heims

suggested Trebay attempted to “cop a feel[]” and McGagh responded, “[b]ut that’s exactly

what it was . . . [t]hat’s exactly what it was.” McGagh continued, “[I]t was wrong, like

5

Later that evening, McGagh filed a sworn “A[pplication for] S[tatement of]

C[harges]” against Trebay for “[sexually assaulting her]” in the District Court for

Baltimore County. In the middle of the ten-page statement, McGagh alleged Trebay

“leaned in, and in a flash cupped [her] breast with his hand[]” and “leaned in and rubbed

[her] upper thigh.” She also alleged that he called her at home and feared he may assault

her again. McGagh signed the first page affirming “under the penalties of perjury that the

contents of this Application are true to the best of my knowledge, information and belief.”

The first page also states that it may “lead to the arrest of the above named Defendant[.]”

McGagh signed each subsequent page.

The District Court Commissioner authorized an arrest warrant for Trebay, following

interaction as indicative of McGagh’s deceitful pattern of behavior.

6

McGagh elected a bench trial, which occurred on December 13 and 14, 2017, in the

Circuit Court for Baltimore County. The State admitted the Verizon surveillance video,

which showed that Trebay did not touch McGagh’s breast and inner thigh, though it

showed Trebay briefly touching McGagh at various points throughout the encounter.

McGagh took the stand in her own defense. She admitted the video did not show Trebay

touching her breast and inner thigh:

[DEFENSE COUNSEL]: Now, when you, you’ve since watched the video?

[McGAGH]: Yes.

[DEFENSE COUNSEL]: Of course, and you see that he doesn’t particularly,

[McGAGH]: Yes.

[DEFENSE COUNSEL]: Can you explain to her Honor why you wrote that

I used the wrong word, you know, is, you could, is it a cup, is it a feel, is it a

morning from the house I’ve lived in thirty, for thirty-nine years in Roland Park.”

7

know you feel, you know that it’s not okay. You know that there is a power,

he’s got my phone, he’s got pictures of my nieces, he’s got pictures of my –

THE COURT: Well, show me where there is a brush or a cupping or a

touching or anything of your breast.

I sat, I sat here and was glued to, literally over two hours of watching paint

touches the, upper inside of your thigh or he comes even near your thigh.

it is the upper inside of your left thigh. [Trebay], I don’t remember, being on

authentically, want you to show me what I missed. But you’re saying that’s

not there. You concede that point.

told Verizon is the same as what you told the police officer?

THE COURT: Which turns out not to be true. Is that where we are?

THE COURT: Okay.

930-31 (2011) (“[W]e are mindful that the trial judge here did not find Furda to be a

credible witness: ‘The Court also finds that Mr. Furda did not testify candidly when he

testified during his trial. He told me then, he told me now, he was not aware of [the Denial

Order.] To be blunt, I do not believe him[.]’ We give great ‘deference to a hearing judge’s

. . . credibility determinations’ because ‘credibility determinations are to be made by trial

courts, not appellate courts.’”) (emphasis added) (quoting Longshore v. State, 399 Md.

486, 520, 924 A.2d 1129, 1149 (2007)); see also Mason v. State, 225 Md. App. 467, 475,

126 A.3d 129, 133 (2015) (noting in a perjury bench trial that “[w]e defer to the fact-

finder’s decisions on which evidence to accept and which inferences to draw when the

evidence supports differing inferences. In other words, we give deference to all reasonable

Verizon’s surveillance video corroborated his testimony because it showed no touching

McGagh lacked credibility. The dissent observed that appellate courts must defer to trial

court’s findings of fact and assessment of the credibility of witnesses, even when

conducting a de novo review on the law. The dissent commented that, according to the

trial court, the credibility determination was not close in this case, and that the trial judge

rejected McGagh’s account in light of the evidence. Finally, the dissent emphasized that

“boorish” or “creepy” behavior does not amount to sexual assault, let alone permit false

oaths to withstand judicial scrutiny. McGagh, slip op. at 6 (Meredith, J., dissenting).

On June 5, 2020, this Court granted the State’s petition and McGagh’s conditional

cross-petition for certiorari.

DISCUSSION

or friendly affection; or (ii) an act for an accepted medical purpose.”

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.”) (internal citations omitted) (emphasis in original). The State

asserts that the court’s application of a de novo standard of review is also inconsistent with

Maryland Rule 8-131(c), which provides the standard of appellate review of bench trials.

The State argues that there is no public policy reason for departing from the Jackson

standard of review. The State points out that the Supreme Court decided Jackson to

safeguard the constitutional requirement that convictions must be proven beyond a

reasonable doubt. Jackson, 443 U.S. at 316-17, 99 S. Ct. at 2788. A policy exception,

according to the State, would make the standard more difficult to apply, and most

importantly, it would encroach on the responsibility and capacity of fact finders “to resolve

opinion) for the proposition that the First Amendment does not protect perjurious speech

respectively, proof of a willful and knowing false statement. Good faith reporting of sexual

assaults, even if later proven erroneous or unfounded, will not be subject to criminal

punishment.

According to the State, the court also erred because McGagh did not raise a First

Amendment challenge, nor did her sufficiency claim implicate one. The State noted that

this Court has only rarely applied a de novo standard of review to a sufficiency of evidence

claim when the petitioner squarely raises a First Amendment issue in the appeal. See e.g.,

Polk v. State, 378 Md. 1, 8, 835 A.2d 575, 579 (2003) (reviewing whether a police officer’s

orders were content-based or content-neutral and in violation of the petitioner’s First

Amendment rights).

the park’s dog leash rule. Amir Vera and Laura Ly, White Woman Who Called Police on

the element of willfulness. According to the State, the Verizon surveillance video

independently corroborated Trebay’s testimony that he did not recall touching McGagh’s

breast or inner thigh.

Finally, the State argues that it presented sufficient evidence to support a finding of

willful and knowing falsity for the perjury conviction, as well as the conviction for making

a false statement. The State points out that McGagh conceded the Verizon store video did

not depict what she alleged had occurred. The record also provides sufficient evidence to

sustain her conviction for false statement. Moreover, the State asserts that McGagh’s claim

that Trebay cupped her breast and touched her inner thigh was not substantiated by the

video.

trnd/index.html (last visited Oct. 28, 2020), archived at https://perma.cc/76WF-MCPE.

Accordingly, McGagh asserts that this Court should extend this same approach to perjury

allegations.

McGagh also contends that a de novo standard of review comports with this Court’s

recognition of the “clear public policy” in encouraging women to come forward with sexual

assault allegations. Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 486, 588 A.2d 760,

769 (1991). In Watson, this Court held “it is contrary to a clear mandate of public policy

to discharge an employee for seeking legal redress against a co-worker for workplace

sexual harassment culminating in assault and battery.” Id. at 480-81, 588 A.2d at 766.

According to McGagh, a de novo standard of review would serve the public policy

articulated in Watson by ensuring that a victim’s First Amendment right to petition the

McGagh, the video shows that Trebay touched McGagh ten times over the two-hour

In the event that this Court declines to undertake a de novo review of the sufficiency

of the evidence, McGagh asserts that the State presented legally insufficient evidence under

the Jackson standard of review. McGagh contends that the two-witness rule applies to the

“essence” of perjury, Palmisano v. State, 124 Md. App. 420, 427, 722 A.2d 428, 432

(1999), because the common law language used to describe the mens rea element of perjury

(e.g., willfully, deliberately, knowingly, and corruptly) overlaps with the element of falsity.

McGagh argues that the State erred by limiting the application of the two-witness rule to

falsity. See also State v. Levitt, 48 Md. App. 1, 9-10, 426 A.2d 383, 389 (1981) (noting

confusion over whether falsely, willfully, and knowingly are synonymous with corruptly).

According to McGagh, the Verizon surveillance video was not sufficiently

contends that Trebay’s denial cannot provide independent corroboration on its own.

In her cross-petition, McGagh also asserts that that there was insufficient evidence

to satisfy the element of materiality. She argues that the Court of Special Appeals

erroneously concluded without discussion that the statements satisfied the materiality

element. According to McGagh, her accusations of being touched on the inner thigh and

breast were not material because her charging statement and report to Officer Heims

already contained sufficient truthful information to establish probable cause for sexual

assault. She points out that the trial court acknowledged that most of the Application for

Statement of Charges was correct. She asserts that the sum of her ten-page statement

demonstrated a legitimate fear of Trebay. McGagh argues that if the statement did not

articulate a legitimate claim of sexual assault, then there was inadequate probable cause for

and false statement.

When an action has been tried without a jury, the appellate court will review

the case on both the law and the evidence. It will not set aside the judgment

of the trial court on the evidence unless clearly erroneous, and will give due

A. The Court of Special Appeals Erred by Independently Reviewing the

The Court of Special Appeals erred by applying a de novo standard of review to a

sufficiency of evidence issue. While the court articulated important First Amendment and

2789) (emphasis in original). This Court does not “ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.” Dawson v. State, 329

Md. 275, 281, 619 A.2d 111, 114 (1993) (emphasis in original). “[O]ur concern is only

whether the verdict was supported by sufficient evidence, direct or circumstantial, which

could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond

a reasonable doubt.” Taylor v. State, 346 Md. 452, 457, 697 A.2d 462, 465 (1997). The

deferential standard recognizes the trier of fact’s better position to assess the evidence and

credibility of the witnesses. Smith v. State, 415 Md. 174, 184-85, 999 A.2d 986, 992

(2010).

McGagh did not raise a First Amendment challenge of whether de novo review