Appeal from the Superior Court of the District of Columbia. (Hon. Harold L. Cushenberry, Jr., Trial Judge).
Before Ferren and Terry, Associate Judges, and Newman, Senior Judge. Opinion for the court by Associate Judge Ferren. Opinion Concurring in part by Associate Judge Terry. Concurring opinion by Senior Judge Newman.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: Appellant, Julian Keene, was convicted of one count of sodomy on a minor. D.C. Code § 22-3502 (1989 Repl.). The court sentenced him to three to nine years in prison, with all but fifteen months suspended. The principal issue on appeal is whether the trial court erred in excluding three items of evidence, each of which appellant proffered to substantiate his claim that the complainant had fabricated the charge against him. *fn1 The excluded evidence consisted of a tape on which the complainant allegedly fantasized about oral sex, and testimony about two occasions when appellant, a counselor at the group home where the complainant resided, allegedly had disciplined the complainant for engaging in improper sexual behavior. The trial court did allow appellant to reveal to the jury the complainant's antipathy toward him by introducing evidence that appellant had disciplined the complainant on several occasions (without mention of sexual misbehavior). We must conclude, however, that because of the nature of the charge (sodomy), the court abused its discretion in excluding the tape and other proffered evidence of complainant's sexual fantasies and behavior. This non-cumulative evidence was relevant to and probative of appellant's alleged motive to fabricate. Accordingly, we reverse and remand for a new trial.
A. The Government's Evidence
Appellant was the assistant supervisor of a group home at 1309 Park Road, N.W., operated by the D.C. Department of Human Services. His responsibilities included counseling and disciplining the boys at the home. At trial, there was no dispute that sometime after 10:00 p.m. on September 25, 1991, appellant noticed the complainant, L.K., and another boy, Morris G., "play fighting" in L.K.'s room. Appellant intervened and asked L.K. why he was allowing Morris to hit him rather than defending himself. Appellant took L.K. downstairs, and then outside in front of the house, to counsel him.
According to L.K.'s testimony, when appellant and L.K. went outside, appellant saw Morris G. looking out the window and told Morris to get back inside. Appellant then took L.K. back inside the house and down into the basement "activity room." There was no one else in the basement; appellant closed the door and turned off the lights. Appellant told L.K. to go into the bathroom and followed him there. Once in the bathroom, appellant told L.K. to sit on the toilet. According to L.K., appellant pulled down his own pants, held L.K.'s head - back, and attempted to place his penis in L.K.'s mouth. L.K. resisted, but, after several attempts, appellant forced his penis into L.K.'s mouth.
Charles Brown, the other counselor on duty on September 25, testified that he had observed appellant and L.K. talking outside the house and then had seen appellant taking L.K. into the basement. After several minutes, Brown went downstairs to check what was going on. He knocked on the door to the activity room; after several seconds, appellant opened the door. Brown testified that all of the lights in the basement were off except for the bathroom light. Brown also noticed that L.K. was sitting on the toilet and appeared "teary-eyed." When Brown asked what was wrong, appellant replied that L.K. was afraid that appellant was going to slap him. Brown then went back upstairs.
Appellant took L.K. into the activity room and told him to sit on a chair. As L.K. sat on the arm of the chair, appellant again allegedly forced his penis into L.K.'s mouth. Appellant then sent L.K. upstairs.
Appellant's theory of defense was that L.K. had fabricated the charges against him. Edwin Jones, who supervised the group home, testified that he had spoken to L.K. on the telephone early on the morning of September 26, 1991 - the morning after the alleged incident - and that L.K. had said appellant was picking on him but had not mentioned anything sexual. Jones also testified that appellant had disciplined L.K. on a prior occasion and that L.K. did not have a reputation for being truthful. Two other counselors, Teri Johnson and Rosa Lee Hazelton, also testified that appellant had disciplined L.K. on several occasions. Hazelton additionally testified that L.K. did not have a reputation for truthfulness. Bryant W., a resident of the group home in September 1991, testified that, sometime before September 1991, L.K. had said more than once that he was going to try to get appellant fired.
Appellant testified that he did not have a good relationship with L.K. He further testified that L.K. had allowed the other children in the home to abuse him, and that appellant had counseled L.K. with the objective of modifying his behavior so that he would stand up for himself. Appellant added that L.K. had not responded to this counseling. He further testified that he believed he was not L.K.'s favorite counselor.
Appellant also testified that on the night of September 25, 1991, he went upstairs to check the house. He heard noises coming out of L.K.'s room, and when he looked inside he saw L.K. and Morris G. fighting. Appellant sent Morris to his room and tried to counsel L.K. about permitting Morris to hit him. Some of the other boys interrupted appellant while he was trying to talk to L.K., so he took L.K. downstairs. Mr. Brown, the other counselor on duty, was on the phone downstairs so appellant took L.K. outside. When they got outside, some of the other boys were yelling out the window at them so appellant took L.K. back inside. On the way inside appellant noticed that the lights in the basement were on, so he went downstairs to turn them off. According to appellant, L.K. followed him into the basement.
Appellant tried to talk to L.K. again as they stood in the activity room. L.K. said he had to go to the bathroom. Appellant testified that he stayed in the activity room while L.K. was in the bathroom. Appellant told L.K. to turn off the bathroom light when he came out, and then appellant turned off the light in the activity room. At that moment, Brown came down and asked if everything was all right. Appellant replied that L.K. thought appellant was going to hit him. Appellant then went to check the back door while Brown went into the bathroom. According to appellant, when L.K. came out of the bathroom, appellant tried to talk to him ...