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08/30/93 CHARLES E. BATTLE v. UNITED STATES

August 30, 1993

CHARLES E. BATTLE, APPELLANT
v.
UNITED STATES, APPELLEE



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

Before Rogers, Chief Judge, and Steadman and King, Associate Judges. Opinion for the court by Chief Judge Rogers. Concurring opinion by Associate Judge King.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : This appeal requires the court to decide whether the report of rape rule survives abolition of the corroboration requirement in sex crime prosecutions. Appellant, Charles E. Battle, appeals from his convictions by a jury of sodomy and taking indecent liberties with a minor, D.C. Code §§ 22-3502, -3501 (a) (Repl. 1989), on two grounds: he contends that the trial Judge erred in admitting testimony by the complainant's aunt and a police officer concerning the complainant's out-of-court statements, and in denying a mistrial after the aunt and the officer allegedly referred to appellant's previous sexual assaults on the complainant. We hold that the evidence that the complainant reported the sexual assault to her aunt and the officer was admissible under the report of rape rule, which we conclude continues to exist notwithstanding abolition of the corroboration requirement in sex crime prosecutions. We also hold that the absence of a limiting instruction was, under the circumstances, harmless error. Accordingly, because we further conclude that the trial Judge did not abuse his discretion in denying a mistrial in connection with the admission of alleged other crimes evidence, we affirm.

I.

At the time of the assaults, appellant had been dating the complainant's mother for approximately two years. On the night at issue the complainant, age fourteen, had gone with her family and appellant to see the movie "Home Alone." *fn1 Thereafter, she fell asleep on the couch in her mother's living room while her siblings slept on a bed beside the couch. The complainant testified that sometime later appellant entered the living room, shook her until she woke up, and then stood over her and put his hand around her throat. According to the complainant, appellant put his hand on her breasts and under her panties, and told her to suck his penis. Appellant put his penis into her mouth. The complainant testified that she did what he told her to do because she was frightened. She saw something come out of his penis and fall onto the floor; appellant wiped it up with his housecoat. The complainant also testified that appellant told her not to tell anyone about what had happened and that appellant said that "if I tell anybody he was going to beat me worser ." The complainant testified that this scared her. In court, she demonstrated the sexual assault using boy and girl dolls.

Approximately six weeks later, the complainant told her aunt about the sexual assault. The complainant explained that she spoke with her aunt (who was married to her mother's brother) because she was spending the day at her aunt's house and thought that appellant could not go there and hit her. At trial the aunt testified that this was the first time that she had seen the complainant alone since Christmas-time, and that she had found the complainant crying in the children's bedroom. The aunt described the complainant as "real upset," and testified that the complainant would not stop crying and kept saying that no one understood what she was going through. The aunt told the complainant that she could talk to her aunt, and the complainant eventually told the aunt that appellant was making her have sex with him. The aunt persisted, asking the complainant what had happened, and the complainant described the sexual assault. Defense counsel's motion for a mistrial was denied. The aunt continued to relate the complainant's statements about what appellant had done to her on the night in question.

Officer Calvin Branch, who met the complainant on February 9, 1991, testified that the complainant told him that appellant "had fondled her and then slapped her." When asked what else the complainant had said about the December 1990 incident, the officer testified that the complainant had told him that "there were a few more times but --." Defense counsel renewed his motion for a mistrial, which was denied, and the officer proceeded to summarize the complainants description of the sexual assault.

The defense was alibi. Appellant's mother and sister testified that they were with appellant from approximately 7 p.m. to 11:15 p.m. on December 26, 1990.

II.

In responding to appellant's contention that the trial Judge erred in allowing the aunt and the police officer to testify about statements that the complainant made six weeks after the alleged offense, the government maintains that the testimony was admissible on four grounds: to show how the incident came to the attention of the police, as prior identification evidence, as an excited utterance, and under the report of rape rule. Only one ground requires extended Discussion. *fn2

A.

Law Enforcement Backgound. The trial Judge ruled that the evidence was admissible to show how the incident came to the attention of the police, and not for the truth of the allegations against appellant. See, e.g., United States v. Lazcano, 881 F.2d 402, 407 (7th Cir. 1989) ("An out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken") (quoting United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985), cert. denied, 474 U.S. 1081, 88 L. Ed. 2d 890, 106 S. Ct. 848, 106 S. Ct. 849 (1986)). While some of the cases cited by the government state broadly that evidence used to show the origin of an investigation is not hearsay, these cases concern evidence used to explain government investigative activity or preparations for arrest, such as a government agent's presence at a site or government surveillance of defendants or other individuals. *fn3 There was no such government activity to be explained in the instant case. In fact, defense counsel and the prosecutor agreed that they would not mention the circumstances under which the officer met the complainant at the complainant's residence.

No case cited by the government, or found by the court, concerned testimony which repeated a victim's report of the crime charged. Most of the cited cases did not involve testimony that repeated declarants' descriptions of the defendants' commission of the crime charged, but instead involved descriptions of the defendants' activities before the crime, or the defendants' plans to commit the crime. Some cases condition the admission of the evidence on the fact that the declarant did not specifically identify the defendant as the wrongdoer. See, e.g., United States v. Gomez, 529 F.2d 412, 416-17 (5th Cir. 1976) (informant's statement, repeated in officer's testimony, "pointed directly to the suspects involved" and should not have been admitted, but not reversible error) (citations omitted). The trial Judge stated that the testimony was "relevant on the subject of how we got from December 26th to . . . [the trial], when on December 26th the ...


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