Before Wagner, Chief Judge, and Steadman, and Reid, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appeal from the Superior Court of the District of Columbia (Hon. Paul R. Webber, III, Trial Judge)
Appellant, Jose Guzman, was convicted following a bench trial of misdemeanor sexual abuse in violation of D.C. Code § 22-4106 (1996 Repl.). He argues for reversal on the grounds that the trial court improperly limited cross-examination of the minor complaining witness thereby violating his Sixth Amendment right to confrontation. We conclude that given the cross-examination permitted, the limitations imposed by the trial court did not violate appellant's confrontation rights under the Sixth Amendment and that reversal is not otherwise warranted.
The government's case against appellant was based on the testimony of the complaining witness, V.V., who was ten years old at the time of the events which resulted in appellant's conviction. V.V. testified that she was visiting the Guzman household on a Saturday in November 1996, before Thanksgiving. *fn1 She testified that she went over to a table in the kitchen to get some food, and appellant came up behind her and rubbed and squeezed her buttocks. V.V. testified that appellant whispered in her ear that if she told anyone, he would kill her.
According to V.V., appellant asked her if she wanted to come upstairs with him. V.V. testified that there was another adult in the kitchen at the time, Maria (Chela) Guzman, who was on the telephone. She testified that Chela told appellant "that he needed to stop and [t]hat he needed to go upstairs and rest or do something, but get away from [V.V.]." V.V. ran upstairs into the bathroom. After a couple of weeks, V.V. told her mother what happened to her while visiting the Guzman household. *fn2 V.V. also informed her mother of another alleged molestation committed by appellant's father approximately thirteen days prior to this incident. *fn3 V.V. and her mother subsequently reported these incidents to the police.
Appellant testified that he never touched or threatened V.V. in any sexual or improper way. He acknowledged that he went into the kitchen some time that evening before going upstairs to bed. Maria Guzman, appellant's sister-in-law, testified that while she was in the kitchen talking on the telephone, V.V. was in the kitchen heating food and that she did not see appellant touch her. She denied telling appellant to go upstairs and leave V.V. alone. Loraina Guzman, V.V.'s godmother and appellant's sister-in-law, testified that V.V. did not appear to be upset when she picked her up that night for an overnight visit, did not appear to be upset the next morning and said nothing about not being able to sleep. *fn4
B. Cross-Examination of the Complaining Witness
Appellant argues for reversal on the grounds that the trial court improperly limited his cross-examination of the government's sole witness on matters essential to an evaluation of her credibility, in violation of his Sixth Amendment right to confrontation. Specifically, he contends that the court improperly precluded cross-examination of the complaining witness which might have shown that the child was influenced into making a false report against appellant by her mother's statements and questions concerning the incident. In response, the government argues: (1) that the trial court properly limited cross-examination to matters raised on direct examination; (2) that appellant failed to inform the court of his bias theory or to proffer a factual basis for his bias claim; and (3) appellant had an adequate opportunity to develop the child's report about the sexual misconduct. It is necessary to examine in some detail the context in which the pertinent rulings of the trial court occurred in order to resolve the issues raised.
During the direct examination of V.V., the prosecutor sought to question the child about her report of the touching incident to her mother. The trial court overruled the objection of defense counsel that this would be a prior inconsistent statement. The child then testified "I told my mother what had happened . . . both times, and then she - she started to count slowly." The defense counsel objected, and the trial court sustained the objection as to what the mother did. The prosecutor's subsequent attempts to elicit the mother's reaction and later actions similarly drew objections from defense counsel on the grounds of relevance. At a bench conference to discuss the objections, the prosecutor stated that this evidence was relevant to refute appellant's defense that "the mother is the one who conjured this whole thing up because she has some bias against the [appellant] or his family." *fn5 However, defense counsel persisted in the objection, explaining that
the child is being asked to interpret thoughts and thought patterns of a witness who had those thoughts and thought patterns and who is here and available to the government. I don't think that is the appropriate thing through this ...