Appeal from the Superior Court of the District of Columbia (F5909-99) (Hon. Judith E. Retchin, Trial Judge)
Before Steadman, Schwelb, and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Concurring opinion by Associate Judge SCHWELB.
Barry E. Carter was indicted on one count of first degree felony sexual abuse (rape), D.C. Code § 22-4102 (1996),*fn1 and one count of misdemeanor sexual abuse (sexual touching of the complainant's genitalia), D.C. Code § 22-4106 (1996).*fn2 A jury acquitted Carter of the felony, but the judge found him guilty of a sexual touching of the complainant's thigh. Carter appeals, claiming, inter alia, that the indictment was constructively amended and that, as a result, he was convicted of a crime with which he had not been charged. Carter also contends that the evidence was insufficient to support a finding that he touched the complainant's inner thigh -- the only touching of a thigh that is proscribed by the misdemeanor statute -- and that the judge failed to recognize the prosecution's obligation to prove a sexual touching of the inner thigh, as distinguished from any other part of the thigh.
We conclude that the indictment was not constructively amended and that, although there was a variance between the indictment and the evidence presented at trial, Carter neither claimed prejudice nor made any evidentiary showing that the variance impaired his defense. We are also satisfied that the evidence, viewed (as it must be) in the light most favorable to the prosecution, was sufficient to support a finding, beyond a reasonable doubt, that Carter violated the misdemeanor sexual assault statute by sexually touching the complainant's inner thigh. Finally, the trial judge stated in her findings only that Carter sexually touched the complainant's thigh, without differentiating between the thigh and the inner thigh. We conclude that the judge was familiar with the statute and that, notwithstanding her failure explicitly to mention the portion of the thigh with which Carter had contact, she effectively found Carter guilty of a sexual touching of the inner thigh.
I. THE TRIAL COURT PROCEEDINGS
The second count of the two-count indictment which the grand jury returned against Carter reads as follows:
On or about August 13, 1999, within the District of Columbia, Barry E. Carter engaged in sexual contact with [K.D.]*fn3 that is, Barry E. Carter touched [K.D.'s] genitalia, with the intent to abuse, humiliate, harass, degrade or arouse the sexual desire of Barry E. Carter or [K.D.] (Misdemeanor Sexual Abuse in violation of 22 D.C. Code Section 4106).
At trial, however, the prosecutor introduced no evidence that Carter had any contact with K.D.'s genitalia. The essence of K.D.'s testimony with respect to the misdemeanor count was that while Carter, an acquaintance, was seated next to her in a movie theater, he attempted to touch K.D.'s vaginal area. According to K.D., she was able to prevent Carter from reaching her genitalia by keeping her legs tightly together. As a result, Carter's hand got no further than K.D.'s thigh.*fn4 The trial judge credited K.D.'s testimony.
After the prosecution and defense had presented their evidence, Carter's attorney made a motion for a judgment of acquittal. The judge denied the motion but stated: "I don't believe the evidence shows that the defendant [touched] [K.D.'s] genitalia or her breasts in the movie theater . . . . The complainant reported only that [Carter] was rubbing her clothed thighs."
Following Carter's acquittal of raping K.D., as charged in the felony count of the indictment, the judge turned to the misdemeanor count and stated:
[M]y findings of fact are that the defendant did touch the complainant intending . . . for it to be sexual, but on her thighs.
After hearing argument from counsel as to the legal consequences of the foregoing finding,*fn5 the judge found Carter guilty:
I . . . believe that how one commits an offense is not an element of an offense. That is, there can be alternative ways of committing the offense of sexual contact. So I did credit the witness' testimony and found that it was not only against her will but done ...