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McFerguson v. United States

March 31, 2005

KENNEDY MCFERGUSON, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia. (F-3522-01). (Hon. Judith E. Retchin, Trial Judge).

Before Wagner, Chief Judge, Glickman, Associate Judge, and Pryor, Senior Judge.

Per curiam.

Argued January 18, 2005

Appellant was charged, by indictment, with one count of attempted first degree sexual abuse,*fn1 two counts of enticing a child,*fn2 one count of second degree child sexual abuse,*fn3 and four counts of first degree child sexual abuse.*fn4 After a jury trial on all counts, appellant was convicted of two counts of the latter offense. On appeal he contends the trial judge committed reversible error in denying severance of the offenses and in allowing the prosecution to cross-examine defense character witnesses on the basis of a hypothetical assumption that appellant committed the acts alleged in the indictment. Appellant also asserts there were errors in sentencing. We conclude there was reversible error stemming from the first two contentions and therefore do not consider the sentencing questions.

I.

A.

In early June 2001, T.W. and K.K. were school aged girls (fourteen years old), who sang and aspired to be entertainers. While standing on a rail platform at a Metro station, appellant noticed them singing and introduced himself as a choreographer and dancer from New York. In a casual manner, he mentioned that he was seeking singers and dancers to go on tour. The girls stated they were singers and arranged to call appellant at a later time. K.K. called appellant that same day and made an appointment for an audition. T.W., K.K. and a male friend, who was a dancer, met appellant at the Anacostia Metro Station. Appellant expressed some displeasure at the unexpected presence of the male dancer. Nonetheless, they accompanied appellant to his house and went down to the basement. While downstairs, appellant talked about some of his experiences as a performer, shared his scrap books, and showed some videos. He also called a friend on the telephone, who was reputed to be an entertainer, and urged T.W. to speak with him. At about the same time the male dancer performed a routine for appellant. Appellant then showed the group a pornographic video and explained that, in order to evaluate T.W. and K.K. as performers, it would be necessary to touch them in intimate ways. He, as part of a dance routine, rubbed T.W.'s legs, buttocks and breasts; he repeated the same behavior with K.K. As part of the evaluation, appellant said he would need to have an encounter with each female individually. K.K. and the male dancer were escorted upstairs, and appellant returned to the basement with T.W. While downstairs, appellant placed his penis in her vagina and then her mouth. After a short interval, appellant returned to the basement with K.K. and repeated his earlier behavior. Although he was unable to complete intercourse, he did engage in oral sex and masturbation. Appellant warned K.K. not to tell anyone what occurred.

About this time, appellant's friend, who had earlier talked with T.W. on the telephone, arrived. He talked to the group generally about show business and distributed his business card. When T.W. and K.K. seemed unnerved and began crying, they related their experiences in the basement to the friend. He took them home and, later that evening, the police were called.

In the spring of 2001, another complainant, N.M., a young adult female, was introduced to appellant by the same person who had conversed with the younger complainants. At N.M.'s request she met with appellant to discuss her interest in being a choreographer. In his basement she was shown pictures of naked women, and video tapes, including pornographic material. When N.M. stated she had no interest in sexual activities, appellant danced with her and touched her in intimate ways. N.M. began to cry. Appellant masturbated in N.M.'s presence and attempted, without success, to get her to engage in oral sex. She did not report this matter to the police, but later learned that appellant had been arrested.

B.

Prior to trial appellant filed a severance motion seeking separate trials for the offenses involving the minor complainants, and those involving the adult complainant, N.M. The government opposed the motion on the ground that the evidence of the two incidents would be mutually admissible at separate trials as evidence of intent, motive, absence of mistake or accident, or to show a common scheme or plan. The government also argued that because evidence of the two incidents would be kept separate and distinct, the probative value of joining the offenses would outweigh the risk of unfair prejudice. See Drew v. United States, 118 U.S. App. D.C. 11, 17, 331 F.2d 85, 91 (D.C. Cir. 1964); see also FED. R. EVID. 404 (a)(3), (b). The government conceded, at the hearing on the motion, that evidence of one sexual assault incident would not be admissible to show intent in another, but argued that evidence of the two incidents would be mutually admissible as evidence of common scheme or plan. The trial judge initially rejected the government's common scheme or plan argument. However, the judge reconsidered her ruling, stating "[m]aybe I should not have so out of hand rejected common scheme or plan," and denied appellant's severance motion. The judge directed the government to present its evidence of the two incidents separately.

Appellant did not testify at trial; however, the defense called three witnesses. One witness, a woman, testified that she was a dancer and that appellant had conducted an audition for her in his basement. She stated that appellant had demonstrated dance routines and helped to improve her skills. The remaining two witnesses were character witnesses who had known appellant for a period of years. They gave opinions regarding appellant's truthfulness, peacefulness, honesty and good order. On cross-examination, the government, over defense counsel's objection, asked both witnesses if they learned that "[appellant] had sexually assaulted two young girls, would that change [their] opinion"? One witness stated that his opinion of appellant would not change if such allegations were found to be true; the other testified that his opinion of appellant would change.

II.

The offenses involving the adult complainant were charged in the same indictment with the offenses involving the two juvenile complainants based on the "similar character" of the offenses. See Super. Ct. Crim. R. 8 (a). "When joinder is based on the 'similar character' of the offenses, a motion to sever should be granted unless (1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others." Arnold v. United States, 511 A.2d 399, 404 (D.C. 1986). The ...


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