Appeal from the Superior Court of the District of Columbia (M-5415-03) (Hon. Shellie F. Bowers, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, REID, Associate Judge and SCHWELB, Senior Judge.*fn1
Opinion for the court by Chief Judge WASHINGTON.
Opinion Dissenting in part by Senior Judge SCHWELB at p. 8.
After a bench trial, appellant Patrick C. Mattete ("Mattete") was found guilty of misdemeanor sexual abuse*fn2 and simple assault.*fn3 The trial court acquitted Mattete of attempted threats.*fn4 On appeal, Mattete contends: (1) the evidence was insufficient to support his convictions; (2) a detective's testimony at trial exceeded the permissible scope of the report-of-rape rule; (3) the trial court erred in erroneously attributing testimony to Mattete; and (4) his conviction for simple assault merges into his conviction for misdemeanor sexual abuse. We agree with Mattete that his conviction for simple assault merges into his conviction for misdemeanor sexual abuse, and remand his case to the trial court solely for the purpose of vacating his assault conviction. As to all other claims, we affirm.
A. Sufficiency of the Evidence
When reviewing a claim of insufficiency of the evidence, "[w]e view the evidence in the light most favorable to the government, recognizing the province of the trier of fact to weigh the evidence, determine the credibility of the witnesses and to draw reasonable inferences from the testimony." Dickerson v. United States, 650 A.2d 680, 683 (D.C. 1994); see also Gibson v. United States, 792 A.2d 1059, 1065 (D.C. 2002). The government "must present 'at least some probative evidence on each of the essential elements of the crime.'" Price v. United States, 746 A.2d 896, 899 (D.C. 2000) (quoting Robinson v. United States, 506 A.2d 572, 573 (D.C. 1986)). Furthermore, in reviewing bench trials, "this court will not reverse unless an appellant has established that the trial court's factual findings are plainly wrong or without evidence to support [them]." Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992) (internal quotation marks and citation omitted); D.C. Code § 17-305 (a) (2001).
To support a conviction for misdemeanor sexual abuse, the government must prove beyond a reasonable doubt "(1) that the defendant committed a 'sexual act' or 'sexual contact' as defined in D.C. Code § 22-4101;*fn5 and (2) that the defendant knew or should have known that he or she did not have the complainant's permission to engage in the sexual act or sexual contact." Mungo v. United States, 772 A.2d 240, 244-45 (D.C. 2001).
Mattete argues on appeal that the evidence was insufficient to convict him of misdemeanor sexual abuse because there was no evidence that Mattete touched the complainant's inner thigh, as required by D.C. Code § 22-3001 (9). He contends that "[t]he only part of the body that [the complainant] testified to being touched by Mr. Mattete was her leg and thigh outside of her clothing." Accordingly, he argues, the government failed to prove the elements for this conviction beyond a reasonable doubt.
The record reflects that the complainant testified at trial and, on more than one occasion, demonstrated for the court how Mattete touched her on her thigh. During one demonstration, the court articulated what the complainant had described: "And the way she demonstrated, that his hands came from, she had her hand coming from the knee up her thigh . . . . So the way she demonstrated came all the way up her thigh."
During the complainant's cross-examination, the trial court again asked the complainant:
Q: In describing the rubbing that took place on the couch, I think . . . you said it went all the way up and you demonstrated it all the way ...