Appeal from the Superior Court of the District of Columbia (F-5743-99) (Hon. Wendell P. Gardner, Jr., Trial Judge)
Before Schwelb, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
After a bench trial appellant was found guilty of two counts of committing lewd, indecent, or obscene acts and one count of misdemeanor sexual abuse, *fn1 all arising from conduct directed to the child A.T. during the period from April through December of 1998. At the time, A.T. was at most ten years old and lived with her mother and siblings; appellant lived with them and shared a bedroom with the mother. The trial judge found that on two occasions during this period appellant committed indecent acts in the presence of the child and, on one occasion, engaged in sexual abuse via the statutory "sexual contact" of placing his mouth against her buttocks.
The sole issue warranting publication is appellant's contention that the trial court erroneously considered as evidence statements A.T. had made on videotape to a woman at the Children's Advocacy Center in April of 1999 describing appellant's sexual actions toward her, and similar statements she had made in a letter written (but not delivered) to her aunt several months earlier. The court ruled the contents of both statements admissible under the hearsay exception for past recollection recorded.
For a witness's out-of-court statement to be admissible under that exception:
(1) the witness must have had first-hand knowledge of the event;
(2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it;
(3) the witness must lack a present recollection of the event; and
(4) the witness must vouch for the accuracy of the written memorandum. Carey v. United States, 647 A.2d 56, 58 (D.C. 1994), citing Mitchell v. United States, 368 A.2d 514, 517-18 (D.C. 1977).
At bottom, appellant challenges only the trial court's finding that the fourth requirement was met; *fn2 he argues that A.T. in fact "repudiated" the prior statements at trial or, at the least, was so equivocal about their truth that she cannot be said to have vouched for their accuracy.
This court reviews a "trial court's [evidentiary] ruling[s] for abuse of discretion and will reverse only if the exercise of discretion is clearly erroneous." Malloy v. United States, 797 A.2d 687, 690 (D.C. ...