Appeal from the Superior Court of the District of Columbia; Hon. Sylvia Bacon, Trial Judge
Newman, Steadman and Schwelb, Associate Judges. Opinion for the court by Associate Judge Steadman. Opinion Concurring in part and Dissenting in part by Associate Judge Schwelb.
The opinion of the court was delivered by: Steadman
Appellant was convicted by a jury on one count of sodomy, D.C. Code § 22-3502 (1989), and one count of tampering with physical evidence, id. § 22-723. On appeal, he challenges the trial court's refusal to permit him to cross-examine the complaining witness about her previous allegations of sexual assaults by other men. Additionally, appellant claims that the trial court improperly excluded evidence about the condition of the genitalia of the complaining witness, who was allegedly suffering from a venereal disease at the time of the incident. He also contends that the trial court improperly instructed the jury as to the elements of the crime of sodomy. We affirm. *fn1
On May 12, 1985, appellant, a correctional officer, was on duty at the D.C. Jail. According to Karen Brock, another correctional officer at the Jail, appellant was quite forward that day about his fondness for cunnilingus. Brock testified that she overheard appellant telling a woman named Sheila over the telephone how much he had enjoyed "going down" on her, which Brock understood to mean performing oral sex on her, *fn2 during the past weekend. Later, according to Brock, appellant, who was "very flirtatious" and "coming on to" her, said that "going down" on a woman "really turns him on," and that he would like to do so with Brock. *fn3 Brock rebuffed appellant's advances.
After this rebuke by Brock, appellant's attention apparently shifted to seventeen-year-old W.D., the complaining witness in this case. W.D. was the sole female prisoner in custody at the D.C. Jail at the time. *fn4 Appellant asked a male prisoner near the female section of the jail if he knew how old the "young lady across the hall" was. He then entered the portion of the jail where W.D. was being held, and, upon his return, said to the male prisoner, "I've got to have her."
W.D. testified that she had been asleep when appellant came to her cell in the female section of the jail, ostensibly to inquire whether she wanted to be released from her cell for some recreation time. After he unlocked and opened W.D.'s cell door, however, appellant grabbed W.D. and started kissing her face and neck. Despite W.D.'s efforts to push him away, appellant lifted her nightshirt, placed his lips around her vagina, and licked her genitalia with his tongue. *fn5 After engaging in this activity for "a couple of minutes," appellant took out his penis, put W.D.'s hand on it, and moved her hand back and forth until he ejaculated into a nearby trash can. Afterwards, appellant wiped himself clean, threw the soiled tissues into the same trash can, and left the female section of the jail.
A few minutes later, W.D. reported the incident to other jail officials, and an investigation ensued. Three jail officials testified that they saw semen and tissues in a trash can near W.D.'s cell. One of the prison officials retrieved the liner from the trash can and placed it in a brown paper bag, which he then stapled shut and labelled "evidence." The official placed the bag on top of a file cabinet in an administrative office in the jail. Soon after, in that same office, appellant was interviewed by his supervisors; they confronted him with the evidence in the bag. At the Conclusion of their interview, however, the jail officials left appellant alone in the office with another correctional officer, also appellant's union representative, who did not know of the bag containing evidence. The union representative testified that he saw appellant stumble over a desk in the office and gather up, among other things, a brown bag which had been stapled shut and had writing on it. Another jail official later saw appellant walking by himself with a folded brown bag in his back pocket. Before long, officials discovered that the evidence bag had disappeared, and it was never found. However, during a strip search conducted in an effort to locate the missing evidence, investigating officials did discover semen stains on appellant's underpants.
Appellant's defense was a total denial. Though he admitted entering the female section of the jail and speaking with W.D., he denied having had any sexual contact with her. He also denied having propositioned Officer Brock or having had the phone conversation with Sheila described by Brock. Appellant admitted having a brown paper bag, but claimed he was carrying a chicken sandwich in it. He contradicted himself as to whether the bag had staples in it, and could not remember whether the bag bore any writing on it. His girl friend testified that she and Roundtree had made love during the lunch hour, and he claimed that this explained the presence of semen on his clothing. The prosecutor, who conducted a probing and highly professional cross-examination of Roundtree, exposed numerous contradictions in his account, severely damaging Roundtree's credibility.
Appellant first alleges that the trial court's refusal to permit him to inquire during cross-examination of W.D. about her past allegations of sexual assaults by other men violated his constitutional rights under the confrontation clause of the sixth amendment, or alternatively was an abuse of discretion.
A. The factual background
During discovery in a civil lawsuit in federal court by W.D. against appellant and the District of Columbia arising out of this incident, appellant learned of and obtained copies of W.D.'s juvenile records from her home state of Minnesota. Those records revealed that W.D. had claimed to have been raped or sexually abused by different men on at least eight occasions. Several allegations involved sexual abuse by family members or boyfriends of family members; others involved sexual assaults committed by pimps. *fn6 In at least one instance, after initially telling a social worker that she had been sexually abused by her brother Hank, W.D. later denied that any such sexual abuse had occurred. *fn7 She also gave inconsistent accounts of how frequently her brother had sex with her. On the other hand, the Minnesota records provide partial corroboration of at least some of W.D.'s claims. In May of 1983, W.D. claimed during a medical examination that she had been sexually assaulted by a friend of her sister's. The examining physician's report noted the presence of a "semen-like substance on thighs, mons pubis, and within vagina" of W.D. Additionally, medical tests conducted after a sexual assault which W.D. alleged occurred on January 11, 1985, indicated the presence of sperm on W.D.
The most fully documented incident in the record involved a claim by W.D. that a male counselor at a facility for teen-aged mothers called Juvenile Horizons had placed his hand on her buttocks in an inappropriately sexual manner, a claim denied by the counselor. During the course of a Ramsey County Human Services Department investigation into the matter, two members of the Juvenile Horizons staff and two social workers familiar with W.D. indicated that they did not believe W.D.'s allegation. *fn8 The Human Services Department officials who investigated the allegation concluded that they were "unable to substantiate" W.D.'s charge, although they felt "that there was reason to suspect that the incident may have occurred."
After the parties had reviewed the contents of the Minnesota records, the government moved in limine to preclude any inquiry by the defense into W.D.'s prior allegations of sexual abuse. In response, appellant argued that the prior allegations were probative of W.D.'s credibility. *fn9 After inspecting the Minnesota materials, the trial court indicated that there was "no basis for inquiry into prior accusations" because there had been no "firm determination" as to whether any of W.D.'s allegations "were false or true." Nevertheless, before making a final decision on the issue, the trial court decided to inquire about the prior allegations during a voir dire examination of W.D.
On voir dire, W.D. testified that she had been sexually abused by her brother Hank; she explained that she had later recanted that charge "because I didn't want my mom to find out and I didn't want the police involved." She reaffirmed her earlier allegation, documented in the Minnesota records, that she had been sexually abused by a friend of her mother's, but explained that she did not report the matter to the police because "my mom was going through a lot of problems and I didn't feel that she would trust me or believe me." W.D. also reasserted that several of the other sexual assaults mentioned in the Minnesota's records, including the incident with the Juvenile Horizons counselor, had in fact occurred.
At the Conclusion of the hearing, the trial Judge decided to preclude cross-examination about the prior allegations. She made clear that she would have permitted such inquiry had the prior allegations been fabricated. On the basis of the documents and her assessment of W.D.'s testimony, however, the trial court found that "there is no substantial basis for concluding that these assaults are fabrication." Following the trial Judge's oral ruling, appellant filed a motion seeking reconsideration. In a brief written order denying that motion, the trial Judge emphasized that appellant had failed to "show convincingly" that W.D.'s allegations were false.
B. Admissibility of evidence of prior allegations of sexual assault
Appellant sought to impeach W.D.'s credibility through cross-examination about specific instances of prior conduct specifically, her prior allegations of sexual assault by other men. *fn10 He argues that the trial court's failure to permit such cross-examination constituted reversible error. In assessing appellant's contention, we first consider whether the trial court was constitutionally required by the confrontation clause of the sixth amendment to permit inquiry into W.D.'s prior allegations. Finding no such constitutional mandate, we next examine whether the trial court committed an abuse of discretion in precluding cross-examination about those allegations.
1. Constitutional concerns: The confrontation clause
Appellant argues that the trial court's failure to permit him to cross-examine W.D. about her prior allegations violated his rights under the confrontation clause of the sixth amendment. *fn11 Appellant's argument appears to be that where a witness who testifies that he or she is the victim of a crime has in the past claimed to be a victim of similar crimes, those prior claims are so probative of the credibility of the witness that the confrontation clause therefore requires the trial court to allow cross-examination about them.
The sixth amendment "guarantees to a defendant in a criminal prosecution the right to be confronted with the witnesses against him." Lawrence v. United States, 482 A.2d 374, 376 (D.C. 1984) (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)), and the opportunity to cross-examine government witnesses is central to that right. Id. Nevertheless, a criminal defendant's constitutional right to cross-examine adverse witnesses "is not without limits." Reed v. United States, 452 A.2d 1173, 1176 (D.C. 1982), cert. denied, 464 U.S. 839, 104 S. Ct. 132, 78 L. Ed. 2d 127 (1983). For instance, the proposed line of cross-examination must be relevant to the issues involved in the case. Gibson v. United States, 536 A.2d 78, 82 (D.C. 1987) ("there is no constitutional right to present irrelevant evidence"). *fn12
In this case, as the trial court correctly noted, W.D.'s past allegations would be probative of her credibility only if they were fabricated. *fn13 See Sherer v. United States, 470 A.2d 732, 738 (D.C. 1983) (alleged perjury in another trial probative only if the perjury actually took place), cert. denied, 469 U.S. 931, 105 S. Ct. 325, 83 L. Ed. 2d 262 (1984); Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981) (any probative Conclusions drawn from rape victim's previous accusation of rape depend on whether the other charge was false). *fn14 In contrast, if the prior accusations were true, they would not serve as a relevant basis for impeachment. Because the constitution does not require confrontation of witnesses with irrelevant evidence, the very applicability of the confrontation clause in this case depends on W.D.'s prior allegations being false. Under these circumstances, "'the confrontation clause does not prevent the trial court from weighing the [defendant's] offer of proof to determine its probative value to the trier of fact.'" Sherer, supra, 470 A.2d at 738 (citation omitted). Where an accused seeks to impeach the credibility of a witness by offering evidence that the witness has made a false claim under similar circumstances, the confrontation clause mandates that the trial court give defendant leave to cross-examine about the prior claim only where it is "shown convincingly" that the prior claim is false. Id. at 739 (citation omitted).
In Sherer, the trial court refused to permit the defendant to cross-examine a witness concerning an alleged incident of perjury. Sherer, supra, 470 A.2d at 739. In sustaining this ruling, the Sherer court specifically agreed with the confrontation clause analysis employed in Hughes v. Raines, supra. In Hughes, a rape case, the defendant wanted to demonstrate that the victim had previously made a false accusation of rape. The court found that the trial court's denial of the defendant's request did not offend the confrontation clause because the offer of proof failed to show convincingly whether the prior accusation was false: "Any Conclusions drawn from [the fact of a prior accusation] that would bear on this case would depend upon whether it could be shown convincingly that the other charge was false." Hughes v. Raines, supra, 641 F.2d at 792.
This court's opinion in Lawrence v. United States, supra, 482 A.2d 374, does not compel a different Conclusion. In Lawrence, the court, relying on the confrontation clause, found reversible error in a trial court's refusal to permit the defendant to cross-examine a witness to a sexual assault on a minor about "prior false accusations of sexual activity made by [the witness] against other family members." Id. at 376. Admittedly, the court in Lawrence did not discuss the question of the showing a defendant must make as to the falsity of prior allegations. *fn15 However, it does not appear that the Lawrence court saw itself as deciding a case in which the veracity of the prior allegations was substantially disputed. As the court explained, the issue was whether the trial court violated the defendant's confrontation clause rights by, as argued by the defendant, "preventing exploration into prior false accusations" made by a witness, or whether, as the government responded, that the denial was an appropriate exercise of discretion. Id. (emphasis added). In other words, we read Lawrence as a case premised on the assumption that the allegations at issue were indeed false. *fn16
Our Conclusion that Lawrence did not modify the "shown convincingly" standard articulated in Sherer is buttressed by the fact that the Lawrence court was aware of, and even cited, the Sherer opinion. Lawrence, supra, 482 A.2d at 377. To read Lawrence otherwise would suggest that the division of the court which decided Lawrence had revisited the question decided in Sherer about the showing required before a defendant is constitutionally entitled to cross-examine a witness about prior accusations of others. Under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), however, the court in Lawrence was bound by the decision in Sherer and could not reconsider that question. We think the best interpretation of Sherer and Lawrence, read together, is that where a witness has previously made allegations similar to those he or she testifies to at trial, cross-examination about those prior allegations is constitutionally mandated only where they are "shown convincingly" to be false.
In this case, after reviewing the Minnesota records and observing W.D.'s testimony first hand, the trial court concluded that appellant had not "convincingly" shown that W.D.'s prior allegations of sexual assault were false. *fn17 We agree that appellant's proffer fell far short of the standard required to sustain a contention that cross-examination about those allegations was constitutionally mandated. *fn18
2. Trial court discretion
Having determined that the refusal to permit appellant to cross-examine W.D. about her prior allegations did not violate the confrontation clause, we next consider whether the trial court's ruling was otherwise erroneous. Here, because evidence of W.D.'s prior allegations would have been probative only if the allegations were false, appellant's request to cross-examine about those allegations must be doctrinally analyzed in the context of the evidentiary rules governing impeachment of witness credibility with specific instances of bad conduct. For purposes of this analysis, W.D.'s allegedly false prior accusations would constitute the bad conduct. Our evidentiary rules on the impeachment of witness credibility provide that a witness may be cross-examined about a prior bad act that has not resulted in a criminal conviction only where, at a minimum:
(1) the examiner has a factual predicate for such question, and (2) the bad act "bears directly upon the veracity of the witness in respect to the issues involved the trial."
Sherer, supra, 470 A.2d at 738 (citations omitted). *fn19 The two-part Sherer standard constitutes a minimum threshold for the admissibility of proposed cross-examination into alleged prior bad acts, and evidence which fails to satisfy the Sherer test may not be admitted.
In applying the rules pertaining to the impeachment of witnesses with specific instances of bad conduct, the trial court is vested with broad discretion. First, notwithstanding the fact that a party proposing cross-examination claims to have a "factual predicate" for inquiry into prior bad acts, the trial court may assess the questioner's offer of proof to determine whether such a factual predicate exists. See Sherer, supra, 470 A.2d at 739 (trial court did not abuse discretion in precluding cross-examination into prior testimony where defendant's offer of proof that the statements were false was "scanty"); cf. Hollingsworth v. United States, 531 A.2d 973, 981 (D.C. 1987) ("trial court has broad discretion when ruling on the relevance of evidence"). Second, even where proposed cross-examination satisfies the two-part Sherer test, in the absence of confrontation clause concerns, the trial court retains its "broad discretion" generally to control the scope and extent of cross-examination. In re C.B.N., 499 A.2d 1215, 1218 (D.C. 1985); see also Reed, supra, 452 A.2d at 1176; Smith v. United States, 392 A.2d 990, 993 (D.C. 1978). In the exercise of this discretion, the court has wide latitude to "impose reasonable limits" on cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, supra note 12, 475 U.S. at 679. With regard to prejudice, the court may preclude a proposed line of cross-examination "if it appears that the danger of unfair prejudice will outweigh its probative value." Lee, supra, note 10, 454 A.2d at 775. See also Goldman v. United States, 473 A.2d 852, 856 (D.C. 1984); Brown v. United States, 409 A.2d 1093, 1099-1100 (D.C. 1979). And as is true even in confrontation clause situations, the trial court may also weigh the "probable effect on fair and efficient conduct of the trial." Sherer, supra, 470 A.2d at 738 (citation omitted). This court will not reverse such decisions unless the trial court abuses its discretion. Brown, supra, 409 A.2d at 1100.
In exercising discretion whether to permit cross-examination into prior allegations of sexual assault, the precise probative value of such evidence, even where it clears the "factual predicate" component of the Sherer threshold, will depend upon the degree of certainty with which the trial court can conclude that the prior allegations were false. *fn20 The stronger the evidence that the allegations are false, the greater the probative value. As a countervailing concern, cross-examination into prior allegations of sexual assault is likely to generate considerable prejudicial consequences. First, some prejudice results whenever cross-examination "probes into the private life" of a complainant in a sexual assault case. See Meaders v. United States, 519 A.2d 1248, 1254 (D.C. 1986). See also State v. Anderson, supra, 211 Mont. at , 686 P.2d at 201 (evidence of prior allegations "places a prejudicial stamp on [the complainant's] general character and reputation"). Second, evidence of a complainant's prior allegations of sexual assault "diverts the jury's attention to collateral matters." McLean, supra note 10, 377 A.2d at 77. *fn21 See also State v. Johnson, supra, 102 N.M. at , 692 P.2d at 43 ("the focus would be on whether the prior charges were 'unsubstantiated,' in effect putting the complainant on trial as to the truthfulness of any complaint to the police which did not result in arrest or conviction").
Here, the trial Judge acted within her discretion in precluding cross-examination about W.D.'s prior allegations of sexual assault. *fn22 As indicated, the trial court determined, following voir dire, that there was "no substantial basis" for concluding that W.D. had fabricated her prior claims of sexual assault. As a result, the proposed line of impeachment was of limited probative value at best. *fn23 The prejudicial effect of the proposed inquiry, in comparison, was considerable. The cross-examination sought by appellant would have probed into extremely private and potentially humiliating aspects of W.D.'s life. Moreover, in this case the risk of distracting the jury with collateral matters was particularly acute. Appellant's proposed line of cross-examination would have diverted the jurors' attention away from the incident in the D.C. Jail and would have invited them instead to focus their energies on assessing the veracity of each of W.D.'s prior claims of sexual assault. *fn24 Accordingly, we conclude that the trial court acted within its discretion in precluding appellant from inquiring on cross-examination about W.D.'s prior allegations of sexual assault. *fn25
We do not think that this position necessarily conflicts with the opinion in Mintz v. Premier Cab Ass'n, 75 U.S. App. D.C. 389, 127 F.2d 744 (1942). In Mintz, the trial court permitted the defendant in a personal injury action to ask the plaintiff on cross-examination whether she had "made claim for injuries" in two previous unrelated accidents. 75 U.S. App. D.C. at 389, 127 F.2d at 744. The appellate court affirmed the trial court's decision to admit evidence of prior claims under the claim-minded plaintiff principle. We read Mintz as permitting, not requiring, the trial court to allow cross-examination under this principle where it determines that the proffered evidence "may create prejudice but is believed to be worth more than it costs." Id. at 390, 127 F.2d at 745. *fn26
Furthermore, the dictum in Mintz suggesting the principle's application to sexual assault cases is of dubious validity today. *fn27 In the era when the Mintz court suggested application of its cost-benefit calculus to sexual assault cases, the legal system operated under the assumption that it was also "worth more than it costs" in effect to put the victim on trial in rape cases; the rules of evidence at the time permitted a defendant, under the guise of cross-examination on the issue of consent, to grill his victim about virtually her entire sexual history and reputation. See Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 COLUM. L. REV. 1, 12-15 (1977); see also, e.g., Packineau v. United States, 202 F.2d 681, 684-87 (8th Cir. 1953) (holding that trial court error in excluding evidence of complaining witness' "concupiscence -- of her having sexual lust and unlawfully indulging in it" with another man). As this court's o pinion in McLean v. United States makes clear, courts today accord much more weight to the prejudicial aspect of inquiry into a rape victim's sexual history than did courts a half-century ago; in this jurisdiction, such prejudicial inquiry is no longer deemed to be worth more than it costs. McLean, supra note 10, 377 A.2d at 77-78. For similar reasons, we think that, absent confrontation clause concerns, the prejudice inherent in cross-examination about a complainant's prior allegations of sexual assault *fn28 precludes us from requiring the trial court under the Mintz principle to allow cross-examination of the victim in a sexual assault case about her prior allegations of sexual assault regardless of their truth or falsity. *fn29
In sum, under all the circumstances of this case, we conclude that the trial Judge committed no reversible error in precluding appellant from cross-examining W.D. about her prior allegations of sexual assault.
Appellant next contends that the trial court abused its discretion in refusing to permit a physician to testify about the results of a medical examination he conducted on W.D. Appellant intended to have the doctor testify that the examination revealed no "bruises, redness, swelling, lacerations" on W.D.'s genitalia. Appellant also sought to show through the doctor's testimony that W.D. was suffering from a venereal disease, and that a symptom of that disease was the presence of a "cheesy white extrudance" or a "heavy discharge" in her genital area. The trial court excluded as irrelevant medical testimony "concerning any disease."
Before us, appellant urges that such evidence "could have influenced the jury's mind on the creditability of [the complaining witness]." At trial, however, appellant did not make clear precisely for what purpose he offered the evidence of W.D.'s medical condition. Initially, during pre-trial proceedings, appellant had sought leave to introduce evidence that he was aware of the fact that W.D. was in the D.C. Jail following her arrest on prostitution charges. This was relevant, appellant argued, on the theory that he would not have engaged in any sexual acts with W.D. because "he knew that prostitutes many times carry venereal diseases and this would in his own mind create the idea that he would not want to do this to her." It was in this context that appellant first mentioned evidence that W.D. was suffering from a venereal disease at the time of the incident: "The truth of the matter," defense counsel argued, "is that according to the medical records she had some sort of infection at the time that this happened. So, [appellant's] thought that she might be diseased or unclean is not a fanciful thought." In other words, appellant initially suggested to the trial court that evidence of the mere presence of the disease was relevant as proof of his state of mind namely, that his fear of contracting diseases often carried by prostitutes would have deterred him from seeking to engage in any sexual conduct with W.D.
Later, at trial, prior to the presentation of the defense case, appellant again raised the question of W.D.'s medical condition. This time, defense counsel indicated he wished to have the doctor's testimony include "the condition of her sexual organ." Defense counsel's proffer as to the relevance of evidence of the "cheesy white extrudance," however, was still somewhat unclear: "The Government would have the jury believe [Mr. Roundtree] came in there, committed the act without even -- according to the doctor, my conversation with the doctor, the doctor agrees that there was a heavy discharge." The trial court ruled that it "would exclude testimony concerning any disease and finds as represented that it would appear to be irrelevant in this case."
Contrary to appellant's initial assertion before the trial court, in light of his defense at trial, the presence in W.D. of a venereal disease would not have been relevant on the issue of appellant's state of mind i.e., whether he feared W.D. suffered from a venereal disease and thus would be unlikely to sexually assault her. Throughout trial, appellant consistently maintained that he never had any physical contact with the victim. Because he claimed that he was never in a situation where he could have observed symptoms manifesting the fact that W.D. had a venereal disease, the actual presence or absence of such a disease or its symptoms would have had no bearing on his state of mind. *fn30 Nor would the fact that W.D. actually suffered from a venereal disease be relevant as to the reasonableness of appellant's ex ante belief that she might suffer from such a disease. Thus, given appellant's defense at trial, to the extent he offered the evidence of W.D.'s disease and its symptoms to prove that his fear of contracting a venereal disease would have dissuaded him from sexually assaulting W.D., the evidence was irrelevant.
Evidence of the physical appearance of W.D.'s genitalia, regardless of cause, might have been relevant, however, on the question of her credibility. This is true even in light of appellant's defense at trial. If, as appellant suggests, the symptoms of W.D.'s disease would have made oral sex unpleasant and therefore unlikely to occur, this evidence could be somewhat probative of the credibility of her account of the sodomy. As such, it might have made a jury somewhat more likely to believe appellant's version of events, i.e., that no oral sexual contact occurred. *fn31
Here, appellant's proffer did not make entirely clear to the trial Judge that he was not merely reiterating his request to introduce evidence of the presence in W.D. of a venereal disease as proof of his state of mind, for which it was irrelevant, but was instead seeking to introduce the evidence of the physical appearance of the disease to challenge W.D.'s credibility, for which it could be relevant. Cf. Jones v. United States, supra note 9, 516 A.2d at 517 (affirming trial court's restriction on cross-examination about a witness's bias because of an insufficient factual proffer). *fn32 The nature of appellant's proffer perhaps explains the trial court's ruling that "the Court would exclude testimony concerning any disease and finds as represented that it would appear to be irrelevant in this case." *fn33 Nevertheless, because we ordinarily do not require an "'exhaustive proffer'" as a prerequisite to the admission of evidence, id. (citation omitted), we will assume the issue of the admissibility of the external appearance of W.D.'s genitalia on the issue of her credibility was sufficiently presented to warrant appellate review.
An evidentiary ruling by a trial Judge on the relevancy of a particular item is a "highly discretionary decision" that will be upset on appeal only upon a showing of "grave abuse." Mitchell v. United States, 408 A.2d 1213, 1215 (D.C. 1979) (citations omitted). See also Mosby, supra note 26, 495 A.2d at 305. However, even on the assumption that the relevancy ruling was in error in its application to the physical appearance of the genitalia, we do not perceive grounds for reversal, since we think we can say with fair assurance that any such presumed trial court error did not substantially influence the jury's determination. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). *fn34 As indicated above, the appellant never suggested that he in any way saw the appearance of W.D.'s genitalia. His defense was a flat denial of all the significant events testified to by the prosecution witnesses: the conversation with the female prison guard about his particular sexual desires, the sodomy of W.D., the masturbation event, and the destruction of evidence. W.D.'s was not the only testimony to contradict appellant's story. That he lied as to three of these events was convincingly shown by the evidence apart from W.D.'s testimony. Thus, appellant stood as a largely discredited witness, and no reason was apparent why W.D. would have told the truth as to part of appellant's actions and lied about the cunnilingus.
The marginal relevance of the evidence is further illustrated by appellant's own difficulty in articulating any legitimate basis for its admission, as indicated above. Moreover, the record on appeal contains no significant elaboration of the proposed testimony beyond the sketchy description orally given to the trial court. *fn35 And although the trial court never explicitly reached the issue, a ruling excluding the evidence on a balancing of prejudice versus probative value could have been sustained. See, e.g., Swinson v. United States, 483 A.2d 1160, 1164 (D.C. 1984).
In sum, in light of all the circumstances, we do not think that the trial court's ruling with respect to the proffered testimony warrants appellate reversal for a new trial.
Appellant next asserts that cunnilingus, *fn36 at least on the evidence here, does not violate the D.C. sodomy statute. *fn37 For over fifteen years, it has been established in this jurisdiction that "cunnilingus is a sodomitic act which is within the purview of § 22-3502." United States v. Cozart, supra, 321 A.2d at 343 (footnotes omitted). This holding, of course, is binding upon us as a division, and we must proceed from that postulate. M.A.P. v. Ryan, supra, 285 A.2d at 312. *fn38 Appellant contends, however, that even if cunnilingus does constitute sodomy, penetration is a necessary element of the offense. Under appellant's interpretation, the trial court would be required to instruct the jury that to prove the offense of oral sodomy on a woman, the government must prove either that the defendant placed his or her tongue within the labia or inside the vagina of the complaining witness, or that her genitalia penetrated the defendant's mouth. *fn39 We do not read the statute as imposing such a requirement. *fn40
Appellant's argument relies heavily on D.C. Code § 22-3502(b), which provides: "Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary." However, that provision does not mandate the interpretation pressed by appellant. The reference to "emission" in section 3502(b) indicates that that provision refers to forms of sodomy involving a penis. *fn41 In contrast, where a defendant is charged with performing oral sodomy on a woman's genitalia, the "penetration" language of section 3502(b), is inapplicable. Consequently, section 3502(b) does not require the government in such cases to prove either that the complaining witness's genitalia penetrated the mouth of the defendant, or that the defendant's tongue penetrated the complainant's genitalia. *fn42 Nor, given that under Cozart cunnilingus constitutes a violation of the sodomy statute, and considering the realities of female anatomy, can we agree that the phrase "taking into" in section 3502(a) requires entry into the mouth by the female sexual organ. As ...