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10/26/90 S.G. B.G. APPELLANT. A.B. K.B. S.G. AND

October 26, 1990


Appeals from the Superior Court of the District of Columbia; Hon. Ronald P. Wertheim, Trial Judge

Rogers, Chief Judge, Ferren and Schwelb, Associate Judges. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Chief Judge Rogers, in which Associate Judge Ferren joins, at p. 33.*

The opinion of the court was delivered by: Schwelb



This is not a pleasant case. The consolidated appeals before us are from the trial court's Disposition of a child neglect proceeding which had its inception in the repeated sexual abuse of S.G., now twelve years of age, by her stepfather, J.B. *fn1 The abuse began in the spring of 1986, when S.G. was seven years old, and continued at intervals *fn2 until July 1987. S.G.'s complaints to her mother did not resolve the situation, and she eventually related her experiences to an adult friend, who urged the mother to take some steps to protect her daughter. The mother then called Children's Hospital and agreed to come to the hospital to make a report. When the mother failed to keep her appointment, representatives of the hospital notified the police.

In August 1987, as a result of the police investigation of the charges, the Corporation Counsel filed a petition pursuant to D.C. Code §§ 16-2301, -2320 (1989) alleging that S.G. was a neglected child. Both S.G.'s stepfather and her mother were alleged to have participated in the neglect, the former actively, the latter passively. Specifically, the government claimed that S.G.'s stepfather had taken certain "indecent, improper and immoral liberties" with her, and that her mother had failed to protect her from the stepfather's abusive conduct.

The government also filed separate neglect petitions with regard to S.G.'s three younger half-siblings (A.B., K.B., and R.B.). These three children -- a boy of six and two girls, both under two -- were all born of the union of S.G.'s mother and her stepfather. The government alleged that each of the younger children was neglected because, in light of the abuse of S.G., he or she was in "imminent danger of being abused" by his or her father (S.G.'s stepfather) within the meaning of D.C. Code § 16-2301 (9) (E) (1989).

Following an evidentiary "factfinding" hearing, the trial Judge found that the stepfather had sexually abused S.G. several times by touching her vagina with his hand and, on one occasion, by inducing her to perform oral sodomy on him. *fn3 The Judge held that S.G. and the three other youngsters were neglected children, and specifically found that the younger three were in imminent danger of abuse. The Judge concluded, however, that the mother's conduct "did not rise to the level of neglect or abuse." Subsequently, at the Disposition hearing, the Judge held that it would be in the best interest of all four children to be placed in the custody of A.A., their maternal grandmother. He then entered an order directing such placement for an indeterminate period not to exceed two years.

The foregoing Disposition has resulted in appeals to this court by S.G.'s stepfather, J.B., and by her natural father, B.G. The stepfather contends that the evidence was insufficient to show that he abused S.G., that the trial Judge should have granted his motion for a severance and should have tried the allegations against him separately from the allegations against the mother, and that there was inadequate support in the record for the Judge's finding that S.G.'s young half-siblings -- the stepfather's own children -- were in imminent danger of abuse. S.G.'s natural father, B.G., contends that he was wrongfully denied custody of S.G. and that the trial court's order was not authorized by law. Finding the contentions of both appellants unpersuasive, we affirm the judgment of the trial court in all respects.



A. Sufficiency of the evidence of abuse.

The stepfather claims that the evidence at the factfinding hearing was insufficient to support the Judge's finding that he had abused S.G. He contends that S.G. was not consistent in her accounts of the alleged abuse, that the government offered no physical corroboration of her testimony, and that her good grades and normal behavior during the period in question were incompatible with the notion that she was being sexually abused.

This contention need not detain us long. In cases tried by the Judge without a jury, the scope of our review is circumscribed by D.C. Code § 17-305 (a) (1989), which provides that the judgment may not be set aside except for errors of law unless it is "plainly wrong or without evidence to support it." As we recently noted in In re T.M., 577 A.2d 1149, 1151 (D.C. 1990), a juvenile delinquency proceeding in which guilt was required to be proved beyond a reasonable doubt rather than, as here, by the lesser standard of preponderance of the evidence, *fn4

in evaluating appellants' claim of evidentiary insufficiency, we must consider the evidence in the light most favorable to the government, giving full play to the right of the Judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences . . . . The government is entitled to the benefit of all reasonable inferences from the evidence, nor may any distinction be drawn between direct and circumstantial evidence.

[Citations omitted].

The trial Judge presided over the factfinding hearing and was able to observe and assess the demeanor of the witnesses. This court, on the other hand, is limited to a paper record which may capture the words of a case but not its heart and soul. In re T.M., supra, 577 A.2d at 1154. "An appellate court will not redetermine the credibility of witnesses where, as here, the trial court had the opportunity to observe their demeanor and form a Conclusion." WSM, Inc. v. Hilton, 724 F.2d 1320, 1328 (8th Cir. 1984). The Judge expressly credited S.G.'s testimony, despite some inconsistencies in it, specifically alluding to her candor in declining to exaggerate when the opportunity arose. The Judge also made it clear that he disbelieved the testimony of her stepfather. This court may not usurp the prerogative of the Judge, as the trier of fact, to determine credibility and weigh the evidence. Irick v. United States, 565 A.2d 26, 30 (D.C. 1989). Were we to second-guess the trial Judge's determination that, with respect to the critical facts, S.G. was worthy of belief and her stepfather was not, we would be engaging in the very usurpation which § 17-305(a) and our precedents proscribe.

B. The denial of the stepfather's motion for severance.

The stepfather contended below, and now reiterates on appeal, that the allegations against him should have been tried separately from those against the mother. He argues as follows:

Severance was required to ensure a fair trial for the appellant. He was charged with abusing his step-daughter. The mother, C.B., was charged with failure to protect. From the petition and complaint, it was obvious that the evidence in regard to the mother would involve what she had been told, when she had been informed of possible incidents, and what she had done in response to that information. It was also clear that whatever evidence was to be brought against the mother could contain a great deal of material that was inadmissible as against the father, but highly prejudicial to his defense. Much of it would be emotional and inflammatory, given the nature of the charges. The opportunity for the father to have a fair trial under such circumstances would be heavily compromised.

The trial itself was proof of appellant's worst fears about a joint trial. More than three-fourths of the trial involved the Government's efforts to prove the charges against the mother, most of it as expected with emotionally-charged evidence that was not admissible as evidence against the father.

Noting that the proceedings involved serious charges against him and implicated fundamental liberty interests, the stepfather argues that "guidance from and reference to procedures seems appropriate." Neglect proceedings are remedial and focus on the child; they are critically different from criminal prosecutions, which are primarily concerned with the allegedly abusive parent. See In re S.K., 564 A.2d 1382, 1388-89 (D.C. 1989). Nevertheless, we agree that in the area of joinder and severance, precedents in criminal cases can provide us with some guidance. *fn5 We are satisfied, in any event, that the trial Judge acted well within his discretion in denying the stepfather's motion for a severance.

If the stepfather and mother had been criminally prosecuted on the basis of the facts adduced at trial, the offenses would have been properly joined. The allegations that the stepfather abused S.G. and that the mother failed to prevent the abuse plainly mean that the two are accused of "participating in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" within the meaning of D.C. Code § 23-111 (a)(1989) and Super. Ct. Crim. R. 8(b). The only substantive question, were this a criminal case, would be whether the trial Judge abused his discretion by denying the stepfather's motion for a severance. See D.C. Code § 23-113 (1989) and Super. Ct. Crim. R. 14.

Since the charges against the stepfather and the mother were properly joined, there is a strong presumption that, even in a criminal proceeding, they would be tried together. King v. United States, 550 A.2d 348, 352 (D.C. 1988). "Joinder serves to expedite the administration of Justice, reduce congestion of trial dockets, conserve judicial time . . . and avoid the necessity of recalling witnesses who would otherwise be called upon to testify only once." Jennings v. United States, 431 A.2d 552, 556 (D.C. 1981), cert. denied, 457 U.S. 1135, 102 S. Ct. 2964, 73 L. Ed. 2d 1353 (1982). Moreover, "the trial Judge has wide latitude in determining whether to grant or deny a motion for severance of defendants, and our review is limited to a determination whether his discretion was abused." King, supra, 550 A.2d at 352.

In the present case, the granting of the stepfather's motion for a severance would not only have contributed to court congestion and inconvenienced counsel and witnesses, but would have required S.G., a child not yet in her teens, to testify for a second time about the painful and humiliating experiences which gave rise to this unfortunate case. This would surely have added, unnecessarily and impermissibly, to the distress which S.G. had already suffered. As the Supreme Court recently reiterated in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (June 27, 1990), the public interest in protecting minor victims of sex crimes from further trauma and embarrassment is a compelling one. The Court held in that case that what it described as the State's transcendent interest in protecting the welfare of children, id. at 5049, *fn6 which finds support in "the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court," id., may outweigh even the defendant's right under the Confrontation Clause of the Sixth Amendment to face his accuser in the courtroom. If the protection of a child from a single face-to-face confrontation with the alleged abuser is such a compelling consideration that it warrants a constricted reading of an express constitutional guarantee, then the trial Judge surely acted within his broad discretion when he denied the motion for separate trials here and declined to require S.G. to testify twice.

Moreover, as we stated in Winestock v. United States, 429 A.2d 519, 527 (D.C. 1981),

in order to establish that the trial Judge has abused his discretion in denying him a severance, a defendant must show the most compelling prejudice.

(Citation and internal quotation marks omitted.) There is no basis for such a finding of prejudice in this case. There was no jury. We recently observed in Nolan v. Nolan, 568 A.2d 479, 488 (D.C. 1990), that this court has often acknowledged the ability of trial Judges to separate admissible from inadmissible evidence in rendering judgment on the merits. As we stated in In re L.J.W., 370 A.2d 1333, 1336 (D.C. 1977), a juvenile delinquency case,

this court has recognized the 'presumption that a trial court will disregard all irrelevant matters in making its adjudications.' In re W.N.W., D.C. App., 343 A.2d 55, 58 (1975). Where, as here, the evidence presented is admissible for one purpose (admission of co-respondent) but not admissible for another purpose (implicating appellant in the crime), "the Judge will be presumed to have disregarded the ...

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