Before Ruiz and Washington, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Pryor, Senior Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Patricia A. Wynn, Trial Judge)
Following a bench trial, the trial judge found appellant Lonnie Mungo not guilty of three charged counts of misdemeanor sexual abuse ("MSA"), see D.C. Code § 22-4106 (1996), but guilty of two counts of simple assault, see D.C. Code § 22-504, under the lesser-included offense doctrine. Mungo raises three related arguments on appeal. First, he argues that the trial judge, sua sponte, improperly considered the lesser-included offenses. Second, Mungo asserts that simple assault is not a lesser-included offense of MSA. Finally, he urges that the evidence presented at trial was insufficient to convict of assault. Being unpersuaded by these assertions, we affirm his convictions, but remand the case for action consistent with this opinion.
A mother and her five daughters, G.S. (sixteen years old), E.S. (fifteen years old), C.S. (eleven years old), J.S. (nine years old), and P.S. (six years old), lived at the Wingate Apartment complex in the District of Columbia. Mungo worked as a maintenance engineer at Wingate.
In September 1997, four of the children and a friend, C.D., were in the Wingate apartment when insects flew inside from a balcony. G.S. telephoned the maintenance department for assistance. When no one responded, she and P.S. went downstairs to seek help. Thereafter, Mungo arrived at the apartment to spray the bees. After he finished, he approached C.D., making a spraying sound, and put the spray can down her shirt, touching her breast. She told Mungo to stop. According to C.D., Mungo then put the spray can between her legs, touching her vaginal area. J.S. then jumped on Mungo's back, whereupon Mungo reached behind and began pressing the can on her buttocks. Both J.S. and E.S. told Mungo to stop. Against E.S.'s wishes, Mungo then tried to put the can between E.S.'s legs, near her vaginal area, and down her shirt. While E.S. stated that Mungo did not touch her, J.S. and C.D. testified that Mungo put the can down E.S.'s shirt. Soon thereafter, J.S. jumped off Mungo's back and Mungo left the apartment. C.D. testified that Mungo was in a "playful mood" during the occurrence. J.S. stated that when Mungo "finished all the bees, he started playing with us."
Following Mungo's departure, the girls called their mother at work. After coming home and talking with the girls, the mother called the police. Officer Leandia Hunsucker responded and interviewed the girls. Officer Hunsucker arrested Mungo later that day.
At trial, Mungo denied touching or playing with any of the girls at anytime. He did, however, testify that he "shook off" one of the girls who had jumped on his back, but did so without touching her with his hands or the spray can. On rebuttal, Detective Ozell Richmond testified that after informing Mungo that "he was in [his] office . . . because three young girls said that he had touched them in the wrong area," Mungo remarked that he was only playing with the girls.
Mungo was charged with three counts of MSA in violation of D.C. Code § 22-4106; each count pertained to his conduct toward J.S., E.S., and C.D., respectively. Following a bench trial, the trial judge found Mungo guilty of two counts of the lesser-included offense of simple assault with respect to C.D. and E.S.
Mungo first argues that the trial judge, sua sponte, acted improperly by considering the lesser-included offense of simple assault in the absence of a request to do so by one of the parties. *fn1 There is no doubt that the trial judge initiated the subject of lesser-included offenses with counsel. After the evidence had been presented, the judge remarked:
I've reviewed the evidence and the law in this matter. And I believe that this is a case where it might be appropriate for the Court to consider lesser included offenses. That was not something that was discussed at all during - at the time of the trial. And, of course, it sort of - ...