APPEAL FROM SUPERIOR COURT, COLLEEN KOLLAR-KOTELLY, J. [707 A2d Page 1302]
Before Steadman, Schwelb, and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge:
After a jury trial, appellant John P. Hicks was convicted of first degree sexual abuse, in violation of D.C. Code § 22-4102 (1996), and kidnapping, in violation of D.C. Code § 22-2101. *fn1 His timely appeal challenges the jury instruction regarding first degree sexual abuse. He claims that the trial court unconstitutionally shifted the burden of proof to him on the element of force. We reverse.
According to the government's evidence, on the morning of August 4, 1995, sixteen year-old S.H. approached 1128 6th Street, N.W., where she resided with her grandmother and aunt. Hicks, who lived across the street and who had known S.H. since elementary school, called out to her. The two exchanged pleasantries, and when S.H. started to leave, Hicks insisted that she accompany him to his apartment so that he could write down his pager number for her. S.H. had previously visited Hicks's apartment, without incident. On this particular morning, however, Hicks grabbed S.H. by the arm and pulled her into his building. She tried to pull away, but only thought that he was being "stupid and playful." She resisted entering his apartment and said: "Let me go. I can wait for you out here." Hicks pulled her into his apartment and locked the door.
Inside the apartment, Hicks tried to coax S.H. into having sex with him. When she rebuffed all his advances, he pulled her close to him. She cried and begged him to let her leave the apartment. He ordered her to shut up, pulled her towards the sofa, pinned her down with one hand, turned up the television volume, and raped her.
In his defense case, Hicks testified that he had had a prior consensual sexual encounter [707 A2d Page 1303]
with S.H. earlier that summer in his apartment. When he started kissing her, she pulled down her underwear and then laid down on the floor. Hicks had started engaging in sex with her, but had stopped when she expressed fear about pain if she engaged in a physical sexual act with him. He testified that on the morning of August 4, 1995, the event in question, he had a similar encounter with S.H.; that is, they again kissed and she pulled down her underwear, but he again stopped because "[s]he was scared it might hurt because she was a virgin." He admitted to giving the police a false name, saying he did so because he feared being charged with statutory rape, an offense for which his brother was convicted in Virginia. He also admitted that he gave a written statement to the police admitting that he "roughed [S.H.] a little bit, punched her in her leg . . . grabbed her arm and was pulling on her[,] and [after] fighting . . . back[,] . . . she stormed out of the apartment." During his testimony, he admitted "[getting] it halfway in," but insisted that she had consented, and that he "just left" after "she jumped and she pushed me back and told me that it hurt."
With respect to the trial court's instructions to the jury on the offense of first degree sexual abuse, Hicks contends that the trial court "impermissibly shifted the burden of proof on the element of force from the prosecution to the defense." He claims that his constitutional due process rights were violated, and that the trial court's challenged instructions "also impacted the specific intent element of the [k]idnapping charge." *fn2 In Russell v. United States, 698 A.2d 1007 (D.C. 1997), decided after Hicks was sentenced, this court interpreted the recently enacted first degree sexual abuse statute. We addressed the relationship between the defendant's statutory affirmative defense of consent, and the government's burden to prove the elements of first degree sexual abuse, including the element of force. We said, "because evidence relating to consent is relevant to the question of force, a failure to instruct the jury in that regard, where requested, does violate due process." Id. at 1015 (referencing Humanik v. Beyer, 871 F.2d 432, 440-41 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989)). We further stated, "at least when the legislature has not specified otherwise, that the jury should be expressly instructed that it may consider the affirmative defense evidence when it determines whether the government has met its burden to prove all the elements of the offense beyond a reasonable doubt." Id. at 1015-16.
Here, the trial court instructed the jury on first degree sexual abuse, in relevant part, as follows:
Now, first degree sexual abuse: The essential elements of first degree sexual abuse, each of which the Government must prove beyond a reasonable doubt, are that the defendant knowingly engaged in or caused [S.H.] to engage in or submit to a sexual act by using force against S.H. . . .
Now, consent by the victim is a defense to the charge of first degree sexual abuse which the defendant must establish by a preponderance of the evidence. . . .
. . . If you find that Mr. Hicks has proven by a preponderance of the evidence that S.H. agreed to the sexual act, then the Government must prove beyond a reasonable doubt that the complainant's consent was not voluntary. If the Government fails to prove ...