Appeal from the Superior Court of the District of Columbia; (Hon. Frederick H. Weisberg, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Sullivan, Associate Judges. Opinion for the court by Chief Judge Rogers. Opinion by Associate Judge Ferren, Dissenting and Concurring in part.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant George Davis appeals his conviction by a jury of kidnapping on the principal grounds that there was an insufficient instruction on consent and insufficient evidence of kidnapping. We affirm.
The government's evidence showed that at approximately 8:30 p.m., on October 16, 1989, the complainant walked down 13th Street, N.W., on her way to a friend's home. As she passed the Davis home at 5712 13th Street, N.W., the complainant encountered Michael Lucas, whom she knew from the neighborhood, and stopped to speak to him. A few moments later, they were joined by appellant and the complainant told him that she was interested in renting a room, but that she was on her way to a friend's house. Appellant told her that she could rent a room from his sister, and to "stop by and see the room" on her way back. The complainant then continued on to her friend's house and stayed there until approximately 9:30 p.m.
When the complainant returned to 5712 13th Street, N.W., she again saw appellant and Michael Lucas. Appellant asked the complainant whether she wanted to see the room. She agreed, and followed appellant into his house and upstairs into a bedroom. Several other men also entered the room, and one of them asked appellant why he was trying to give his room to the complainant. The other men then left, closing the door behind them, but appellant told the complainant that she could not leave yet and asked her to remove her clothes. When she refused, he pushed her onto the bed and called to his brother, William, "William, come here, * * * Man, help me get her clothes off of her." William came into the room and helped appellant forcibly undress the complainant. *fn1 Thereafter, according to the complainant, appellant touched her all over while she kept asking him to leave her alone; she screamed a couple of times. Finally, appellant told her he was tired of her "sniffing and crying" and that she could go home. He called his brother, William, to find the complainant's clothes, and told Michael Lucas to walk the complainant home.
When the complainant arrived home, she told her boyfriend what had happened and he called the police. The complainant told the police that she had been dragged into the house and raped. She accompanied the police back to appellant's house. Appellant answered the door, and the complainant identified him, his brother, William, and another man as the men who were involved in the assault.
Appellant was indicted along with his brother, William Davis, for assault with intent to commit rape and kidnapping. D.C. Code §§ 22-501, -2101 (1989 Repl.) The defense was consent. Appellant testified that on the evening of the incident he returned from the store to find his step-brother, William Demetrius Hammond, and Michael Lucas talking to the complainant on the front porch of appellant's home. According to appellant, the complainant jumped up when he returned, saying "this is the one I want to talk to," and asked appellant whether she could rent a room from him. Appellant told the complainant that he "didn't have any rooms for her." Appellant testified that, outside of the complainant's hearing, his brother, King Davis, "did offer his room [for the complainant] but I told him that I didn't want to, you know, go through the changes of having a female roomer." Appellant claimed that, despite his explanation that he had no rooms available for rent, the complainant followed appellant when he went into the house and up the stairs. Appellant testified that the complainant was intoxicated and "in a real happy mood, . . . she wants to grab and, you know, this type of thing."
Appellant claimed that when the complainant followed him upstairs, she asked to borrow ten dollars for crack cocaine. When appellant refused, the complainant asked him to sit on the bed with her. She then "threw her legs over [appellant's] and also put her arm around and she started talking very intimate." The complainant became upset, however, when they were interrupted by one of appellant's brothers, King Davis, who squirted them with a water pistol. When appellant grabbed and pulled on the complainant, she "snatched" back and then, according to appellant, "a bunch of screaming started and we were tussling. She hit me and she kicked me in my groin area. I grabbed her arm and then grabbed her leg." When Derrick Costen and his girlfriend Gwenie came into the room, the complainant "started screaming 'you're trying to rape me.'" Appellant denied that he pulled off any of the complainant's clothes during the scuffle.
After Derrick Costen and Gwenie left the room, the complainant began to cry, and appellant told her that she would have to leave. According to appellant, the complainant then said that she had lost her keys and pocketbook, but appellant remembered that the complainant had not brought a pocketbook with her when she entered the house, so appellant told her to leave. The complainant left the room, but returned to tell appellant that she was going to the police. Appellant testified that he told her "you can go to the police if you want because nothing has happened to you." According to appellant, the complainant then asked to see his room, in the attic of the house, and once inside the room she removed her boots and lay down on appellant's bed. Appellant testified that the complainant "wanted to prove to me how she feels about me," and started to remove her clothes. Appellant and the complainant then engaged in sexual intercourse. According to appellant, the complainant told him that "she had a terrible disease at one time," so appellant used a condom. Appellant testified that at approximately 8:45 p.m. he walked the complainant home, and then "didn't see her anymore until she got back with the police."
Michael Lucas testified that the complainant had been drinking and that she "wanted to get high off some ." Mr. Lucas claimed that he saw the complainant "grab underneath the arm and was . . . directing him to the house going into the front door," and that after he saw them go into the house he and William Demetrius Hammond left for the evening.
Appellant's brother, King Davis, testified that when he heard that the complainant was looking for a room, he told appellant that "he could rent my room out to her." However, appellant told King Davis that "he don't need it because it's just a headache." According to King Davis, the complainant was "leaning on the rail looking in [appellant's] face" during this conversation. King Davis stated that he saw appellant and the complainant go upstairs into his room, and that when he went into the bathroom to put water into his water pistol, he saw "the girl her right leg over George's lap and her right arm around on his shoulders." According to King Davis, the complainant did not get upset when he squirted appellant with his water pistol, but instead, appellant asked him at that time whether he knew where to get some cocaine for the complainant. King Davis testified that he went downstairs for a while, then returned upstairs to find appellant and the complainant still in the same position. According to King Davis, appellant told him "come on man, I'm trying to do something." King Davis replied, "no, man, not here," and appellant and the complainant left his bedroom to go to the attic.
The jury returned a verdict convicting appellant of kidnapping.
Appellant contends that the trial Judge failed to instruct the jury adequately on appellant's defense of consent, and that this failure was substantially prejudicial. Specifically, he maintains that the Judge failed to advise the jury that it could acquit appellant even if actual consent was not given as long as the jury found that there were "reasonable grounds" for appellant to believe that the complainant had consented, and that the jury's acquittal of appellant on the charge of assault with intent to rape suggests that consent may have been an important consideration in its verdict. *fn2 He relies on Bush v. United States, 516 A.2d 186, 195 (D.C. 1986), also involving a charge of kidnapping, where the court stated that "it would have been more appropriate to have used standard instruction 5.19," and that "the trial court approached the limits of permissible discretion in denying that instruction . . . ." See STANDARD JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, (3d. ed. 1978). *fn3 The government acknowledges [at oral argument] that the trial Judge did not instruct the jury that it could find that the complainant consented ...