Before Farrell and Ruiz, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Robert I. Richter, Trial Judge)
(Argued December 8, 1998 Decided May 25, 2000)
Opinion for the court by Associate Judge Ruiz.
Dissenting opinion by Senior Judge Mack at p. ___.
Appellant, Willie Preston Parker, was indicted for second-degree child sexual abuse, D.C. Code § 22-4109 (1996), and attempted second-degree child sexual abuse, D.C. Code §§ 22-4109, -4118, stemming from two separate incidents involving two different minor boys, M.S., a twelve-year-old, and T.K., a thirteen- year-old. Following a jury trial, appellant was convicted of the first charge, but acquitted of the second. Appellant was subsequently given a sentence of three to nine years, with all but sixteen months suspended in favor of a four-year period of probation and mandatory participation in alcohol treatment and sexual counseling programs. On appeal, appellant challenges the trial court's decision to deny his motion to sever the two charges, contending that the trial court failed to conduct a full Drew inquiry, see Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), before concluding that the evidence presented by the government for each charge would be mutually admissible at a separate trial on the other charge. Even assuming that the trial court had been required to consider all of the relevant Drew factors, however, we conclude that the court's failure to do so was harmless and affirm.
Thirteen-year-old T.K. testified at trial that he had been alone sitting on the living room couch in his cousin's apartment watching television when appellant walked in, sat down by the couch and took off his shirt. Appellant told T.K. that he was a good-looking kid and asked him if he was interested in meeting a girl. After T.K. said that he was, appellant turned off the light, closed the blinds and asked T.K. to pull down his pants, telling T.K., "You got to let me see your hair . . . `cause she like boys with a whole bunch of hair." T.K. refused to remove his pants, and when appellant began to walk towards T.K. with his hands open as if to grab him, T.K. rushed to the door, just as his mother and his cousin were returning from the store. Appellant looked out the window, saw the others, and told T.K. not to tell anybody about what had happened. Although T.K. later related the incident to his mother and to M.S.'s father, Mark Fowler, the family decided to handle the situation internally.
M.S. testified that on April 14, 1996, about two months after the incident involving appellant and T.K., *fn1 he was staying at his aunt's *fn2 apartment because his mother was out of town. M.S. was left alone in the apartment along with two younger children and appellant, who was watching television in another room. Sometime before midnight, M.S.'s uncle, Tyrone Fowler, *fn3 came in and went to sleep on the living room floor. M.S.'s aunt, Nicole, and her friend, Rodericka Cook, came home around 3:30 a.m. and went to bed soon after, Nicole in her bedroom and Rodericka on the couch in the living room with her son, one of the younger children also staying in the apartment. M.S. testified that he slept in his younger cousins' bedroom with appellant because appellant had told him that his aunt had a new couch and did not want anybody to sleep on it.
Later in the night, M.S. felt a hand turning him over, but he remained asleep. The next morning, M.S. woke up and found appellant with his hand down M.S.'s pants and holding M.S.'s penis. Appellant's hand was moving up and down, and M.S. ejaculated. At this point, M.S. became fully awake *fn4 and jumped out of bed and put his pants on. M.S. asked appellant, "What's wrong with you" and headed towards the living room to tell his uncle, Tyrone, and his aunt, Nicole, but was stopped by appellant, who told M.S. to keep the matter secret. M.S. ignored appellant and knocked on Nicole's door and told her what had happened. She told him to call his father. M.S. stayed in Nicole's room until the police arrived. *fn5
M.S.'s testimony was corroborated by both his uncle, Tyrone, and Rodericka Cook. Tyrone testified that he woke up on the morning of April 14, 1996 and heard M.S. cry out "Ooh, . . . What you trying to do, Junior [appellant]? What you trying to do?" Tyrone then heard appellant say "I ain't trying to do nothing. I ain't trying to do nothing to you," and M.S. respond: "Yes, you is, Junior, yes, you is. You had your hand down in my pants. You unbuckled my pants and you run your hand down my pants. You did, Junior." Tyrone went into the bedroom to find out what had happened and M.S. told him "Junior had his hand going down my pants." According to Tyrone, appellant "looked like, you know, he was trying to, you know, deny. He had a funny look on his face, you know." Tyrone also testified at trial that shortly after appellant had called the police, appellant had tried to walk out of the apartment, but that he had prevented appellant from leaving. *fn6 Though Cook could not remember what was said, she testified that she woke up on the morning of April 14 and heard M.S. crying. *fn7
Before the trial began, appellant moved to sever the two charges against him, arguing that he would be impermissibly prejudiced by their joinder because the jury might infer criminal disposition from one offense and use it to assess appellant's culpability for the other offense. Appellant also asserted that any determination as to whether the evidence from either of the two charged offenses would be admissible under Drew v. United States, in a separate trial for the other charge required a pretrial evidentiary hearing. *fn8 Appellant specifically requested during the hearing on the severance motion that the court make a "clear and convincing" finding that appellant had committed the two offenses ...