Appeals from the Superior Court of the District of Columbia. (M-13762-99 & F-12774-91). (Hon. Hiram E. Puig-Lugo, Trial Judge). (Hon. Reggie A. Walton, Probation Revocation Judge).
Before Terry and Steadman, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson, Senior Judge
Taurus Outlaw appeals his conviction on two counts of misdemeanor sexual abuse in violation of D.C. Code § 22-4106 (1981), as well as the revocation of his probation in an older case in which he had been convicted of unauthorized use of a motor vehicle (UUV) and simple assault. Outlaw presents three issues in his appeal:
(1) that the misdemeanor sexual abuse convictions should be reversed because the trial judge impermissibly considered the complainant's capacity to consent; (2) that the order revoking his probation should be reversed because the probation revocation judge had an improper ex parte conversation with the judge who had tried the misdemeanor sex abuse case; and (3) in the alternative, that his probation revocation should be vacated because a substantial portion of the revocation hearing transcript is missing. We are not persuaded by appellant's arguments for reversal of either his conviction or the order revoking his probation.
Outlaw met Nina Gray, the complainant, as she exited the Takoma Park Metro station on her way home from work. Outlaw and Gray had previously dated each other and had a child in common. Outlaw drove Gray to Rock Creek Park where they had sexual intercourse, then drove her to her mother's house, where Gray lived. Ramona Long, Gray's mother, noticed a wet spot on the back of Gray's pants and, after asking what happened, telephoned the police. During her conversation with the police, she ascertained that her daughter said "no" to Outlaw's sexual advances. Gray led the police to the location in the park where the events took place before being taken to D.C. General Hospital for examination.
During the non-jury trial, Gray testified that she resisted Outlaw in the car, that she tried to escape but Outlaw locked all the doors, and that she repeatedly told Outlaw to stop what he was doing to her. Gray is a former special education student who, at the time the*fn1 events occurred, worked for an agency that employed "special education people." Outlaw called Ms. Long to testify, and she admitted that she never liked the way he treated her daughter. She stated that Outlaw called to speak to Gray earlier that day and Long told him that she was at work. Judge Hiram E. Puig-Lugo found appellant guilty of both counts of sexual abuse, and imposed consecutive sentences of 180 days on each count, with execution suspended except for time served.*fn2
Four days later, Outlaw appeared before Judge Reggie A. Walton for a probation revocation hearing stemming from Outlaw's 1992 convictions for UUV and simple assault. Judge Walton had originally suspended imposition of sentence and placed Outlaw on probation for five years for those convictions. After a series of changes in his probation status due to matters not relevant here, Outlaw's probation was revoked in 1998 and he was resentenced, with imposition of the sentence again suspended, and given another three years of probation. It was during this final three-year period that Outlaw committed the acts that gave rise to the misdemeanor sex abuse case.
There is no transcript of the early part of the revocation hearing. During a later part of the hearing, according to the partial transcript, Judge Walton engaged in a telephone conversation from the bench with the misdemeanor trial judge and discussed the proceedings in Outlaw's recent sex abuse case. According to the partial transcript, Judge Walton also heard from Outlaw, Outlaw's fiancée, his attorney, and the government before deciding to revoke Outlaw's probation and order execution of the sentence originally imposed.*fn3
Outlaw contends that the trial judge erred because he considered the sex abuse complainant's mental competency to consent to sexual acts in reaching its verdict, even though the issue of her competency was not raised or litigated at trial. Because the record does not support the argument that the trial judge made or relied upon a competency determination, we hold that the trial judge did not err.
There is no contention on appeal that the trial record fails to support the trial judge's finding that Gray did not consent to Outlaw's sexual advances. The trial judge expressly found that Gray "was not making . . . up" her testimony that she repeatedly objected to Outlaw's actions throughout their encounter. Neither party raised the issue of Gray's competency at trial. In response to an objection by Outlaw's counsel to the prosecution's closing argument, which defense counsel took to refer to capacity to consent, the court stated: "Nobody raised the issue of competence from either side and I will not take [the prosecution's] comment in that regard." In reaching his finding of guilt, the trial judge observed:
Now, I saw Nina [Gray], had the opportunity to evaluate her credibility, her ability to recall. She is somebody with some limitations and she seems to particularly have trouble with time frames and when something happened or how long it happened, but she was very clear as to what happened that day. And, frankly, I have no doubt that you just go get her because you ...