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OLIVER v. U.S.

February 11, 1998

VINCENT OLIVER, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, REGGIE B. WALTON, J.

Before Steadman, King, and Reid, Associate Judges. [711 A2d Page 71]

The opinion of the court was delivered by: Per Curiam:

Appellant Vincent J. Oliver was convicted of one count of enticing a minor child, in violation of D.C.Code § 22-4110 (1996). *fn1 On appeal, he challenges his conviction on five grounds: (1) the trial court abused its discretion by allowing the government to present expert testimony without giving him advance notice and the opportunity to provide his own expert; (2) the trial court should have granted his motion for a mistrial based on a conversation between a government witness and two jurors; (3) the trial court committed error in allowing the government to introduce "other crimes" evidence; (4) the evidence was insufficient to convict him beyond a reasonable doubt; and (5) the trial court abused its discretion in denying his motion for a new trial. *fn1 We affirm.

I.

Complainant M.M. testified that Mr. Oliver took her and her cousins, all of whom were less than twelve years of age, on a camping trip. During the trip he asked her to get into his bed and then touched her private part with his hand. After the trip, M.M. told her grandmother and mother about the incident. Upon questioning by her mother and others, M.M. denied several times that Mr. Oliver had touched her in a sexual manner. M.M.'s mother testified that while M.M. initially said Mr. Oliver touched her, when she "took [M.M.] up in the room and . . . had a nice talk [with her]," M.M. said that Mr. Oliver, who was also known as "Grandpa," did not touch her, but had touched another girl. According to M.M.'s mother, M.M. admitted that she accused Mr. Oliver of touching her because he had caught her stealing something from the Safeway.

After testimony by M.M.'s mother, the prosecutor informed the trial judge that she was surprised by the mother's assertion that M.M. had recanted her charge against Mr. Oliver. In response to the mother's testimony, the government asked the court for permission "to call an expert in child sexual abuse" for the purpose of providing information on "the psychology of recantations and failures to disclose . . . by victims of child sexual abuse." The prosecutor proffered additional details as to the nature of the expert's proposed testimony.

Defense counsel opposed any testimony by an expert, saying in part:

One, we believe it's irrelevant to these charges or what's been presented. We [711 A2d Page 72]

believe it's not probative, and we believe it's just a matter of the Government trying to bolster a case that they can't put together.

Although defense counsel argues on appeal that the testimony of the expert violated Super. Ct.Crim. R. 16 because he was not "[given] advance notice and an opportunity to provide [his] own expert," this specific argument was not made in the trial court. He also contends that the expert's testimony was "highly prejudicial, irrelevant and deprived him of the opportunity to present his own expert."

A.

We review Mr. Oliver's Rule 16 claim for plain error since there was no objection in the trial court based on this rule. Under the circumstances of its surprise by the testimony of M.M.'s mother that her daughter had recanted, the government acted in a timely manner to disclose its desire to call an expert, to proffer the substance of the expert's testimony and to provide information regarding the expert's credentials. We are satisfied that there was no violation of Rule 16. Jackson v. United States, 589 A.2d 1270, 1271 n. 2 (D.C. 1991) (no violation of Rule 16 where government introduced defendant's statement into evidence mid-trial that it had just discovered). Furthermore, under the standard set forth in United States v. Olano, 507 U.S. 725, 733-37, 113 S.Ct. 1770, 1777-80, 123 L.Ed.2d 508 (1993), we cannot say that the trial court's decision, to permit the expert's testimony despite the absence of pre-trial notice, affected any "substantial rights" to which Mr. Oliver was entitled. We see no merit in Mr. Oliver's contention that he was deprived of the opportunity to present his own expert. When the trial court ruled that the government could present an expert, Mr. Oliver expressed no desire to call his own expert, and did not request a continuance to seek an expert.

B.

Because Mr. Oliver was charged with enticing, not child abuse, he maintains, the testimony of a child sexual abuse expert concerning the reason why sexually abused children recant was irrelevant and highly prejudicial. With respect to his prejudice claim, he points to a hypothetical question posed by the government regarding "what effect ...


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