Background
Benjamin Markham was indicted for continuous sexual abuse of two young children, H.G. and V.M. He represented himself at trial. During cross-examination, Markham sought to ask questions about vaginal infections and sexually transmitted diseases, asserting in unsworn remarks that he had an STD and that the complainants did not.
The trial court sustained some relevance objections, although it allowed Markham to ask H.G. whether she had an STD; she answered no. Markham did not ask either complainant whether she had contracted genital warts or whether she had seen or felt warts on his penis. He also did not testify, introduce medical records or expert testimony, or make an offer of proof establishing that he had genital warts during the alleged abuse. The jury convicted him, and the trial court imposed a life sentence.
The Court’s Holding
The court affirmed, holding that Markham failed to preserve his appellate claim that the trial court prevented him from questioning the complainants about genital warts. The questions identified on appeal were never asked at trial, the court allowed him to ask H.G. whether she had an STD, and he did not ask V.M. the same question.
The court further explained that Markham’s unsworn statements were not evidence that he had an STD or genital warts, and he provided no medical records, expert testimony, testimony of his own, or adequate offer of proof. The trial court also acted within its discretion by excluding questions about vaginal infections allegedly experienced by H.G.’s mother because she was not a complainant and the evidence did not make sexual contact with her daughter more or less probable.
Key Takeaways
- An evidentiary challenge is not preserved when the defendant never asks the specific questions he later claims the trial court prohibited.
- A party’s unsworn assertions during questioning do not establish the factual foundation needed to admit medical-condition evidence.
- Self-represented defendants must comply with the same evidentiary and procedural rules as licensed attorneys.
Why It Matters
The decision underscores that evidence concerning sexually transmitted conditions may be relevant in a sexual-offense prosecution only when supported by a proper evidentiary foundation connecting the condition to the defendant, the complainant, and the alleged contact. Counsel must also preserve exclusion claims through specific questions and, when necessary, an offer of proof.
Because Markham did not create that record, the appellate court did not accept his contention that the trial court barred a genital-warts defense and left his conviction and life sentence intact.