Appeal from the Superior Court of the District of Columbia. (Hon. George W. Mitchell, Trial Judge).
Before Wagner, Chief Judge, Schwelb, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge : Appellant was convicted by a jury of: (1) one count of sodomy with a minor, in violation of D.C. Code § 22-3502 (1989); and (2) one count of taking indecent liberties with a child, in violation of D.C. Code § 22-3501 (a) (1989). He appeals his conviction on four grounds. First, appellant's main contention is that the trial court erred in admitting evidence of a past sexual offense involving a different complainant because this evidence was admitted for the sole purpose of showing that appellant had a preDisposition to commit the charged offenses and because it was more prejudicial than probative. Second, appellant argues that the trial court abused its discretion in finding the child complainant competent to testify. Third, appellant argues that the trial court erred in denying his motion for a mistrial because during deliberations, but prior to returning a verdict, one of the jurors had moved to Virginia. Fourth, appellant argues that one of his two convictions and sentences must be vacated on merger grounds. We affirm.
Prior to trial, the trial court held a hearing to determine whether the five-year-old female complaining witness was competent to testify. After conducting an extensive inquiry, the court concluded that the witness was "intelligent and competent to testify in this case." The court's questioning reveals that the witness understood the difference between telling a "true story" and telling a "false story." Although, as stated by appellant's counsel during the hearing, the witness did not demonstrate "a firm grasp on line between reality and fantasy" when discussing television characters, the court, in response to this concern, ultimately found that: "Only the truth can come out of her mouth, she exudes with it. Big Bird is true to her. And if your client did something to her, that is truth to her, and she would not make it up." It is also clear from the record that the witness understood her duty to tell the truth and she was able to recall the events about which she was to testify.
At trial, the complaining witness, who is appellant's natural daughter, testified that during an overnight visit to appellant's home, while laying on a bed, appellant pulled down her panties and "kissed between legs and put his ding-a-ling between legs." In addition to being questioned, the complaining witness was asked to pretend that anatomically correct female and male dolls where she and appellant, respectively, and to demonstrate with the dolls what had occurred; she did so accordingly.
After hearing arguments from both parties prior to and during trial, the trial court ruled that it would allow the government to introduce evidence in its case-in-chief of a 1986 sexual offense committed by appellant with a four-year-old girl, who was the daughter of appellant's brother's girlfriend. This evidence was admitted in the form of testimony of the police officer who recorded appellant's statement in which he admitted committing the offense. The trial court explicitly stated that it was admitting the evidence solely for the purpose of showing that appellant had an "unusual preference for having sexual relations with young girls," relying upon the "unusual sexual preference" theory articulated in Johnson v. United States, 610 A.2d 729 (D.C. 1992), and Dyson v. United States, 97 A.2d 135 (D.C. 1953). However, the trial court did not permit evidence of appellant's guilty plea or conviction for the 1986 offense, but only used this information in determining that there was clear and convincing evidence that appellant had committed the offense. Moreover, the court did not allow evidence that appellant admitted having gonorrhea or that the minor involved in the 1986 offense tested positive for gonorrhea, finding such evidence to be inflammatory.
Appellant's statement concerning the 1986 offense was admitted into evidence and the officer who took down the statement read it to the jury. In the statement, appellant admitted that he went into the bedroom where the child was sleeping and "pulled down [the girl's] pants and stuck penis in her vagina." According to this statement, appellant had never had sex with a child prior to this incident and he did not know why he had sex with this girl -- appellant specifically replied: "I don't know. It just happened." Immediately after the officer read the statement, the trial court gave the following instruction to the jury in pertinent part (which had been approved by both parties):
You may consider this evidence only on the issue insofar as it may show that had an unusual preference for having sexual relations with young girls.
You may use that evidence for that purpose, or you may not.
The law does not require you to do so, but you may use it in that manner.
The trial court gave a similar limiting instruction during final instructions. *fn1
Appellant did not testify or present any witnesses. However, he did introduce into evidence medical records of the complaining witness' visit to the hospital following the incident in question. According to these records, the complaining witness tested negative for sexually transmitted diseases. *fn2
During the morning of the second day of jury deliberations, *fn3 the deputy clerk reported to the trial court that one of the jurors needed to address the court because she had moved to Virginia during the past week. Appellant requested a continuance in order to research any potential legal consequences as a result of the juror's change of residence. The trial court, relying upon Kingsburg v. United States , 520 A.2d 686 (D.C. 1987), *fn4 denied appellant's request and concluded that there was no legal impediment to the jury continuing its deliberations. After the verdict had been reached, but prior to it being announced, appellant requested ...