Before Schwelb, Ruiz, and Reid, Associate Judges.
The opinion of the court was delivered by: Per Curiam
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Appeals from the Superior Court of the District of Columbia
(Hon. Colleen Kollar-Kotelly, Trial Judge)
Opinion of the court Per Curiam.
Concurring opinion by Associate Judge Reid at p. .
Concurring opinion by Associate Judge Schwelb at p. .
Concurring opinion by Associate Judge Ruiz at p. .
Following a jury trial, appellants William Guzman and Louis Bolanos were each convicted of two counts of rape while armed in violation of D.C. Code §§ 22-2801, -3202 (1996), and of possession of a firearm during a crime of violence (PFCV), in violation of D.C. Code § 22-3204 (b). *fn1 On appeal, both appellants contend that the trial Judge committed reversible error by admitting into evidence, over objection, testimony that appellants assaulted and beat the complaining witness approximately one week before the alleged rapes.
This contention is addressed in detail in Judge Reid's lead opinion and in the Concurring opinions of Judge Schwelb and Judge Ruiz. A majority of the court believes that the evidence of the beating was relevant to the issue whether the sexual contact between appellants and the complaining witness was consensual, as appellants claimed, or rape, as the prosecutor contended. The court is also of the opinion that, even if the strictures of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and Roper v. United States, 564 A.2d 726, 731 (D.C. 1989), apply to this case *fn2 , the requirements of these decisions have been satisfied.
The court unanimously holds that, for the reasons stated in the lead opinion by Judge Reid, none of the remaining contentions presented by either appellant warrants reversal of any of the convictions. Accordingly, the judgments appealed from are
Reid, Associate Judge, Concurring in the judgment: I join in the judgment of affirmance. After a short factual introduction, in Part I. A. of my Concurring opinion, I set forth the factual basis essential to an understanding of the prior beating issue. In Part I. B., I address the precise ruling of the trial court that is before us, that M.A.'s brief reference to the prior beating was admissible to explain why M.A. gave a recanting statement to Guzman's attorney. In Part I. C., I conclude that even assuming the brief reference to the prior beating was subject to Drew analysis, the trial court conducted the required Drew inquiry. In Part II., I focus on the other issues presented by the case.
In December 1993, complaining witness M.A., then seventeen years of age, lived in an apartment located at 1515 Ogden Street, N.W. in the District of Columbia. She resided there with approximately ten other young people, all under the age of seventeen. After school on December 15, 1993, M.A. returned to the apartment; only two of the occupants were present - C.A. and C.H.
Soon Guzman, Bolanos, and another male arrived at the apartment, talking loudly and carrying bottles of beer. They wanted to talk with the young women in private. When M.A. and C.A. refused, Bolanos dragged M.A. into the dressing room or closet and attempted to force her to drink some beer. Guzman joined Bolanos and M.A. in the dressing room, pulled out a bat or stick and laid it on the ironing table. Bolanos pulled out a BB gun and threatened M.A. with it. The third male, J.M., grabbed a stick from under a bed and stood in front of the dressing room door to prevent anyone from entering. C.A. could hear M.A. "screaming and calling for [C.H.]." C.H. tried to get into the dressing room when he heard M.A. yelling, but J.M. threatened to beat him. Eventually, J.M. went into the dressing room holding the stick, and helped Guzman and Bolanos drag M.A. into the bathroom. He then stood guard outside the bathroom door with the stick.
Bolanos placed the BB gun on top of the toilet tank, removed his pants and underwear, and proceeded to rape M.A. while she cried and banged on the door. He penetrated M.A.'s vaginal wall. Bolanos switched places with Guzman who dropped his pants and underwear, and began to rape M.A. During her trial testimony, M.A. stated that "when [Guzman] was already inside [her]," the police arrived at the apartment, in response to C.A.'s call. They heard cries and screams coming from a back room that was locked. They banged on the bathroom door. As the police entered the bathroom, Guzman told M.A. in Spanish, "say that this had happened before and that [I] was related to one of them and that this was a normal thing that [we] did in this game." When he looked at the scene inside the bathroom, Officer David Gaither saw Guzman and Bolanos "sweating" and "laughing." They did not have on pants. M.A. was "screaming, her face was red, she didn't . . . have any pants on." A "handgun" was on top of the toilet.
When the officers took M.A. into the kitchen to speak with her, she was afraid and scared to talk until a female officer took over the questioning. Subsequently, she was taken to the hospital for examination. Dr. Timothy McElrath, then an intern at D.C. General Hospital, examined M.A. He saw bruises on parts of her upper torso, but "no signs of trauma" in the pelvic area. He stated that it was "not unusual in a woman who has experienced recent vaginal intercourse, nonconsentually, to have no signs of bleeding, tearing, [or] bruising to the genital area." In addition, he declared that "the lack of trauma doesn't necessarily preclude sexual assault."
I turn first to Guzman and Bolanos's contention that the trial court improperly admitted evidence of uncharged misconduct, the beating of M.A. by Guzman and Bolanos that allegedly took place one week before the armed rape. The government presented two theories concerning the admissibility of this evidence. First, the prior beating could be introduced to show M.A.'s state of mind as to whether she consented to the sexual encounter with Guzman and Bolanos. Second, the prior beating could be used to explain why M.A. had given a recanting statement to Guzman's attorney. The government asserted that the first theory involved Drew *fn3 evidence, but that the second theory did not implicate Drew.
The factual basis for the issue of the prior beating is important to my analysis. During the pretrial hearing on motions, the trial court considered the government's written notice of intent to introduce other crimes evidence. Government counsel informed the trial court that:
The evidence we would seek to introduce is specifically that one week, perhaps eight days before the rape, the complainant inside the same apartment as the rape took place was confronted by the two defendants . . . .
She was seated on a couch . . . . Our evidence would be that Mr. Bolanos took the large, light-colored stick . . . from Mr. Guzman's hand and . . . struck [M.A.] . . . .
[M.A.] will not be able to say with certainty how many times Mr. Bolanos struck her but she estimates two . . . .
This was done in the presence of Mr. Guzman. An eyewitness will testify that Mr. Guzman also struck [M.A.] perhaps once or twice . . . [w]ith a stick. However, the complainant is uncertain as to that. By that time she had already been struck several times.
The prior beating would be used to show M.A.'s state of mind, said government counsel. As the government stated:
[W]hen the defense does something in the trial to make the lack of consent or consent a genuine contested issue, at that point the government should have leave to introduce this evidence on the question of consent. That could take place in opening statement or in cross-examination.
When the trial Judge asked "if [the defense] sought to impeach [M.A.] with her . . . recanting of her claim that it was rape, . . . would [the government] use it at that point to explain her fear[,]" government counsel indicated that the prior beating would not be used to show the defendants' intent.
The trial court summarized its understanding of the government's position:
I just want to make sure -- you said three grounds . . . . You've withdrawn the one about the defendant[s]' intent. So we're left with [M.A.'s] state of mind regarding if the issue of consent becomes a contested issue and if she's impeached in terms of an explanation of her . . . alleged fear.
The government added its view that "a mini trial in advance to determine the strength of the Drew evidence" would not be necessary because "it [would] come in at least through [M.A.] ...