Appeal from the Superior Court of the District of Columbia (DV-1727-03) (Hon. Robert R. Rigsby, Trial Judge).
The opinion of the court was delivered by: Newman, Senior Judge.
Argued September 20, 2005
Before SCHWELB and GLICKMAN, Associate Judges, and NEWMAN, Senior Judge.
Cullen was found guilty of four counts of misdemeanor sexual abuse*fn1 after a bench trial. These convictions arose from two incidents: the first, which occurred on May 1, 2003, where Cullen was alleged to have twice made contact with his mouth and the inner thigh of the complainant, his fifteen-year-old niece;*fn2 and the second, which occurred on May 2, 2003, where he was alleged to have made contact with his mouth with both the inner thigh (count three) and breast (count four) of the same complainant. Cullen contends that he should not have been convicted of two separate violations of the misdemeanor sexual abuse statute for his conduct on May 2, 2003. The two convictions for the touchings of the complainant's inner thigh and breast that occurred on that date were not distinct offenses. Thus, the two convictions constituted multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment. We agree and remand to the trial court to vacate one of these convictions consistent with our holdings herein.*fn3
We review claims of merger of convictions de novo to assess whether a violation of the Double Jeopardy Clause of the Constitution has occurred. Sanchez-Rengifo v. United States, 815 A.2d 351, 354 (D.C. 2002). The Double Jeopardy Clause prohibits a second prosecution for a single crime and protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). A conviction must be vacated if there are duplicate convictions for the same offense. Brown v. United States, 795 A.2d 56, 63 (D.C. 2002).
The government asserts that because Cullen, on May 2, 2003, engaged in two separate acts of sexual contact*fn4 with the complainant, he was properly charged with two violations of the misdemeanor sexual abuse statute because there are separate body parts enumerated in the definition of sexual contact. This argument is based on the theory that appellant invaded different interests. See Sanchez-Rengifo, supra, 815 A.2d at 357, 359.
We have employed a "fact-based approach" to analyze convictions for two violations of the same statute. Id. at 354; Gray v. United States, 544 A.2d 1255, 1257-59 (D.C. 1988). "For purposes of this fact-based merger analysis, criminal acts are considered separate when there is an appreciable length of time between the acts that constitute the two offenses, or when a subsequent criminal act was not the result of the original impulse, but a fresh one." Sanchez-Rengifo, supra, 815 A.2d at 354-55 (internal quotations and citations omitted). An interval of time between two criminal episodes may be quite brief but still show that a "defendant had reached a 'fork in the road' or had acted in response to a 'fresh impulse.'" Spain v. United States, 665 A.2d 658, 661 (D.C. 1995).
In Sanchez-Rengifo, supra, 815 A.2d at 353, the appellant contended that his convictions for child sexual abuse while armed should merge because, although he committed various types of prohibited conduct, his actions evidenced a continuous course of conduct over a two-hour period. His conduct included: placing his mouth on the child's breast, putting his mouth on her vulva, penetrating her vulva with his penis, and putting his penis in her mouth. Id. at 357. We concluded that the legislature viewed Sanchez-Rengifo's methods of sexually assaulting a child to be "different in nature and character." Id. Moreover, Sanchez-Rengifo had significant time "to reflect as he ordered his victim to [assume] different positions after completing one form of sexual assault in order to undertake another to satisfy his new impulse." Id. at 359. Based on these facts, we held that SanchezRengifo's multiple convictions for sexual abuse while armed did not merge. Id.
Although the government concedes that our analysis should be fact based, it invites us to consider the construction of the sexual abuse statute and its legislative history. We note that the Council of the District of Columbia intended to "make the laws governing sexually abusive conduct more inclusive, flexible and reflective of the broad range of abusive conduct which does in fact occur . . . ." COUNCIL OF THE DISTRICT OF COLUMBIA, REPORT OF THE COMMITTEE ON THE JUDICIARY, BILL 10-87, THE "ANTI-SEXUALABUSEACT OF 1994," at 1 (1994). However, we are not convinced that the legislature intended to provide for a separate offense for the touching of multiple enumerated body parts during a single event when there is no evidence that a defendant has reached a new fork in the road or acted in response to a fresh impulse. See State v. Perrillo, 649 A.2d 1031, 1032 (Vt. 1994) (holding that a defendant could only be convicted of one count of lewd and lascivious conduct with a child after he touched both the victim's vulva and her chest "[b]ecause a single episode of sexual misconduct ordinarily involves the wrongdoer touching the victim more than once, . . . we do not think the legislature intended to increase the potential sentences for these crimes exponentially depending on the number of touches involved in a single episode of sexual abuse.") (internal citation omitted).*fn5
"It is well-established that criminal statutes should be strictly construed and that ambiguities should be resolved in favor of the defendant (i.e., the Rule of Lenity)." Belay v. District of Columbia, 860 A.2d 365, 367 (D.C. 2004) (internal citations omitted). "To be sure, the rule of lenity is a secondary canon of construction, and is to be invoked only where the statutory language, structure, purpose and history leave the intent of the legislature in genuine doubt." Winters v. Ridley, 596 A.2d 569, 573 n.5 (D.C. 1991). We have no way of determining from the text of this statute, the legislative history, or even common sense whether the appellant's conduct constituted one or more offenses. Thus, if the District of Columbia City Council intended that every touching of a body part enumerated in § 22-3001 (9) should constitute a separate violation of the sexual abuse statute, then the legislature should amend the statute to make that explicit.*fn6
We hold as a matter of law that on May 2, 2003, Cullen's actions with respect to counts three and four of the information constituted one continuous course of conduct and thus he was improperly charged with two violations of the sexual abuse statute. Complainant testified that on May 2, 2003, Cullen again returned to her bedroom after the events of the previous evening. He kneeled over the side of her bed and made contact with his mouth against her inner thigh. He then kissed the complainant's breast and eventually left the room. These two actions were separated, at the most, by a brief interval and the brief passage of time between these acts "did not terminate appellant's original intent" to engage in sexual contact with the complainant without her consent. See Gray, supra, 544 A.2d at 1258-59 (explaining how criminal acts can be determined to be factually and legally separate in a case where the defendant committed two separate acts of sexual intercourse with his victim but was charged and convicted of only one count of rape).
Accordingly, this case is remanded to the trial court to vacate both the convictions on count two (which the government concedes must be vacated, see note 2, supra), and either count three or four based on the judgment of this court. Otherwise, the judgments of conviction are affirmed.