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Hicks v. U.S.

May 4, 1995

DAVID HICKS, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia. (Hon. Gregory E. Mize, Trial Judge).

Before Schwelb, Farrell and Ruiz, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: David Hicks was convicted by a jury of taking indecent liberties with a minor child, *fn1 enticing a minor child for the purpose of taking indecent liberties, *fn2 and assault with intent to commit sodomy (AWIS). *fn3 He was sentenced to concurrent terms of imprisonment, but the execution of his sentence was suspended, and he was placed on probation for five years. On direct appeal from his convictions, No. 93-CF-1204, Hicks contends that the trial Judge committed instructional error and that his sentences merge. We affirm. *fn4

I.

THE EVIDENCE

At trial, the prosecution presented testimony which, if credited by the jury, established that on September 18, 1992, R.Y., a thirteen-year-old boy, had been playing football and basketball at a Boys' and Girls' Club in northwest Washington, D.C. R.Y. testified that after he left the Club, Hicks, who had engaged R.Y. in conversation earlier in the day, grabbed his arm and started pulling him down the street. After he had brought R.Y. to an isolated location, Hicks pulled down R.Y.'s shorts and boxer shorts. He then took R.Y.'s penis in his fingers and moved his head near it, as if to place the boy's penis in his mouth. R.Y. jumped-back, pulled up his shorts, and tried to run away. Hicks, however, restrained R.Y. and maintained control over him.

Hicks asked R.Y. whether he had ever "fucked a grown man before." R.Y. replied that he had not. Hicks then took three condoms out of his pocket and pulled R.Y. into an alley. In the alley, Hicks released his hold on R.Y.'s arm. R.Y. was able to make his escape and ran to a Trailways bus station. There, he reported the assault to a police officer, who set out with R.Y. to locate the individual who had molested the boy.

R.Y. soon spotted Hicks on the street and pointed him out to the officer. Hicks was taken to the police station. Two condoms and some lubricant were recovered from his rear pocket. As a result of R.Y.'s allegations, a grand jury returned an indictment charging Hicks with taking indecent liberties, enticing a minor, and assault with intent to commit sodomy.

At trial, Hicks denied R.Y.'s charges. He claimed that R.Y. had struck him and stolen money from him, and that R.Y. had fabricated the molestation charge to cover up his own misdeeds. The jury evidently credited the prosecution testimony, and Hicks was convicted of all charges.

II.

HICKS' CLAIM OF INSTRUCTIONAL ERROR

Hicks' attorney requested that the trial Judge include in his charge to the jury the standard cautionary "Redbook" Instruction on the testimony of a child witness in effect at the time of the trial. See Criminal Jury Instructions for the District of Columbia, No. 2.21 (3d ed. 1978). The trial Judge declined to do so "in light of the fact that my core instructions already ask [the jurors] to examine the testimony of each witness and ask themselves questions to be critical regarding the testimony of each witness." Hicks claims that this refusal was reversible error. We do not agree.

R.Y. was thirteen years of age at the time of trial. According to the Comment to Instruction No. 2.21 in the 1978 Redbook,

the Committee was in agreement with the suggestion received from one trial Judge that instruction [2. 21] should be used only in cases where children appear to be impressionable by reason of their youth; the instruction may be inappropriate in the case of many children above the age of puberty.

This court has recognized that children's testimony is not inherently suspect, and that no special corroboration is required:

Today, we leave it to the jury to consider a child's testimony along with all the other evidence. As is true with any witness, a child's testimony at times may be inconsistent or confused; and just as with any witness, such confusion or ...


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