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July 2, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. John H. Bayly, Jr., Trial Judge)

Before Terry, Steadman, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge : These cases, consolidated on appeal, present the primary issue of whether corroboration is required to prove solicitation for the purpose of homosexual prostitution in the District of Columbia. *fn1 We hold that it is not. Gary v. United States, 499 A.2d 815 (D.C. 1985) (en banc), cert. denied, 477 U.S. 906 (1986).

Joseph Moore also challenges his conviction on the ground that the trial court erred by admitting hearsay statements as substantive evidence against him. In addition, Phillip Moore challenges the sufficiency of the evidence to sustain his conviction. We hold that both arguments are devoid of merit.

Accordingly, we affirm the trial court's conviction of each defendant following a consolidated bench trial for soliciting money in exchange for sex in violation of D.C. Code § 22-2701 (a) (1989). *fn2 Since we hold, however, that the government was not required to prove corroboration, we affirm on grounds other than those on which the trial court relied in its memorandum opinion dated June 11, 1991. See Craig v. United States, 551 A.2d 440 n.4 (D.C. 1988).


The evidence adduced at trial is set forth in the trial court's memorandum opinion as follows: On February 11, 1991, Metropolitan Police officers investigating a suspected male prostitution ring were working undercover in a homosexual bar. Officer Matthew Earls approached Paul Gardner *fn3 and told him that his friend, Officer Anthony Cesaro, who was posing as a visiting businessman, was looking for male prostitutes. Officer Earls then introduced the two men. Although he walked away from Gardner and Cesaro, Earls remained in the bar with at least one other undercover officer. Officer Cesaro discussed with Gardner the type and cost of sexual services available. Officer Cesaro then observed Gardner make several telephone calls, but he did not overhear the conversations.

Subsequently, each of the appellants and two other men entered the bar and spoke separately with Gardner, who then introduced each, in turn, to Officer Cesaro. Officer Earls testified that he observed appellants and the two other men separately approach Cesaro and briefly converse with him. Cesaro testified that his conversation with each appellant was essentially the same. That is, he asked each if seventy-five dollars was sufficient payment and then determined whether each appellant's preference was for "top or bottom." According to Officer Cesaro's testimony, Bates said his services were restricted to "top only;" Phillip Moore offered "anything you want;" and Joseph Moore said he was "versatile."

After the conversations, Officer Cesaro gave a prearranged signal indicating that the "cases had been made." Officer Earls and other undercover officers in the bar then arrested the five men who had spoken with Officer Cesaro, including appellants.

Detective Mark A. Gilkey, the government's expert witness in terminology and modus operandi used by homosexual prostitutes in the District of Columbia, testified that the expression "top or bottom" refers to the respective positions of inserter and receptor in anal intercourse and is widely known among homosexual prostitutes.


Appellants argue that the government did not corroborate Officer Cesaro's testimony and, therefore, failed to meet its burden of proof for conviction. They cite the testimony of Officers Earls and Cesaro, who stated that none of the appellants' separate conversations with the police officers or with Gardner were overheard.

The trial court ruled, however, that the testimony of Officer Cesaro was sufficient because it was corroborated by the testimony of Officer Earls. Earls testified that after he introduced Officer Cesaro to Gardner, he "maintained presence [at a table] in the lower bar area. . . ." From there, he said, he "saw several individuals [including the three appellants, Gardner and Phillips] approach the officer. . . ." Earls testified that each appellant approached Cesaro at "individual, different times" and that "each conversation . . . took a few minutes." He added that Gardner was not present when each of the appellants approached Officer Cesaro.

The court relied, as do the appellants, on Kelly v. United States, 90 U.S. App. D.C. 125, 130, 194 F.2d 150, 155 (1952), which required corroboration for proof of homosexual solicitation, and Griffin v. United States, 396 A.2d 211 (D.C. 1978), which relied on Kelly. The Court held: "Officer Earls' eye-witness testimony provides the necessary corroboration because it affirmed 'the circumstances surrounding the parties at the time [of the encounter] such as presence at the ...

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