Before Reid, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Stephanie Duncan-Peters, Trial Judge)
Appellant Randolph O. Williams was charged with five counts of first-degree child sexual abuse, in violation of D.C. Code § 22-4108 (1995 Supp.). The prosecutor dismissed count three of the indictment at the close of its case, and the trial court granted a motion for judgment of acquittal on count two of the indictment. Williams was convicted by a jury of two counts of first- degree child sexual abuse, as alleged in counts one and five of the indictment, but was acquitted on count four of the indictment. Williams filed a timely notice of appeal. On appeal, Williams argues that (1) the trial court erred by admitting into evidence the complainant's statements to her friend under the "report of rape" exception to the hearsay rule; and (2) his conviction on the fifth count of the indictment should be reversed because it was not supported by ample evidence and the evidence supporting this count presented a variance from or constructive amendment of the indictment. We affirm.
A. The Government's Evidence
On a Saturday in August 1997, Williams, then thirty-five years old, called the house of the complaining witness in this case, M.D., a fourteen-year-old girl. Williams had been an acquaintance of M.D.'s family since she was one-year old. On that Saturday, Williams asked M.D.'s mother, Valerie, if he could watch a cable movie at her house. Valerie agreed, and she, her three children, and Williams watched the movie in the living room. During the movie, Valerie decided to go to the grocery store. Williams offered to pick her up from the store after the movie. Valerie agreed, leaving her three children at home with Williams.
After Valerie left, M.D.'s older brother left to play tennis. M.D.'s younger sister fell asleep on the living room sofa. Williams and M.D. went to the basement to play video games. M.D. then removed all of her clothes, and Williams removed only his pants. Williams put on a condom and engaged in sexual intercourse with M.D. on the floor of the basement. After intercourse, Williams removed the condom, put it in the basement toilet, and flushed the toilet. Williams and M.D. then returned upstairs where her sister was still asleep on the sofa. Soon afterwards, Valerie called to say that she was finished at the grocery store. She spoke to M.D. but detected nothing wrong.
Williams picked Valerie up at the grocery store and brought her home. He left after he helped Valerie bring the groceries into the house. After M.D. helped Valerie put the groceries away, Valerie went downstairs to the basement to put some clothes in the dryer. She noticed that the toilet seat was up, *fn1 and then she saw a condom in the toilet. *fn2 Valerie became very nervous. She picked the condom out of the toilet, shook the water out, and looked to see if anything was on it. Valerie knew that Williams had been the only man in the house and wondered whether he had engaged in sex with M.D. Valerie flushed the condom down the toilet and then went upstairs to talk to M.D. Valerie asked M.D. where the condom in the basement toilet came from, but M.D. just stared. Valerie repeated her question, and M.D. continued to stare. Valerie repeated her question again, and M.D. told her to ask Williams. Valerie asked M.D. if Williams had hurt her, but M.D. just stared. Valerie then examined M.D.'s genitals, wondering if she had been hurt or torn. *fn3
M.D. saw Williams about one month after the August incident, when she went to his apartment for the first time. M.D. did not remember if she had sex with him during this visit. However, M.D. did remember having sex with Williams in his apartment on a school day after the August incident. She recalled that Williams used a condom that he had retrieved from his hallway closet. M.D. did not specify a date for this sexual encounter. About two months after the first sexual encounter at Williams' apartment, M.D. recalled having sex with him on his carpeted living room floor. M.D. believed that this incident "maybe" happened after December 23, 1997. M.D. also recalled a third occasion when she had sex with Williams in his apartment. She and Williams had sex in his bed, under the covers. Although M.D. could not recall the month, she testified that it was after Christmas. M.D. testified about one additional incident of sexual intercourse with Williams at his apartment. *fn4 This event occurred about two weeks before an encounter she had with an old neighbor, Delores Vanderhall. During this encounter, M.D. recalled that on a school day in February, she went to visit Williams. It was exam time, so there was only half a day of school. M.D. saw Vanderhall in her car as she walked into Williams' apartment. M.D. did not have sex with Williams on this occasion. Vanderhall called Valerie that day to report where she had seen M.D. Valerie took M.D. to the police station for a second time.
On two occasions, M.D. reported to her best friend, Jacquia Warren, that she was having sex with Williams. M.D. would also sleep over at the Warrens' house about every other weekend. During these sleepovers, M.D. would speak with Williams on the phone. Dr. Kim Kelly, a local pediatrician, testified that she saw M.D. during a sick visit on December 23, 1997. During this medical visit, M.D. asked Dr. Kelly for an HIV test. When Dr. Kelly asked M.D. why she wanted this test, she replied that she had started having sex. M.D. also told Dr. Kelly that she was having sex, using condoms, every one to three weeks with a thirty-year old male who had two children. *fn5
Williams, testifying on his own behalf, stated that on August 16, 1997, he and Valerie "had a big fallout" about a condom that was found in her toilet. Valerie paged Williams and said she needed him to take her to the grocery store and back. Williams planned to meet some friends that evening for a movie and billiards, so he said he would take Valerie to the store but could not wait for her there. Williams claims that he dropped Valerie at the store and did not see her anymore that night. According to Williams, he was working at his father's grocery store the next day when M.D. came into the store and told him that Valerie had found a condom in the toilet. M.D. said that she was scared her mother would punish her and send her away if she found out that she had been having sex with a boy in the house. M.D. told Williams that she had told Valerie that she had ...