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Pinckney v. United States

August 31, 2006

KEVIN B. PINCKNEY, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (M-11150-01) (Hon. John M. Campbell, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued June 6, 2003

Before RUIZ and REID, Associate Judges, and TERRY, Senior Judge.*fn1

Following a bench trial, appellant was found guilty of misdemeanor sexual abuse*fn2 and one count of attempted lewd acts.*fn3 On appeal, he contends that the evidence was insufficient to convict him of misdemeanor sexual abuse because the government failed to present evidence that he touched the victim's "genitalia, anus, groin, breast, inner thigh, or buttocks," as required by the statute, see D.C. Code § 22-3001 (9), -3006 (2001), and that the evidence also was insufficient to support a conviction of attempted lewd acts. In addition, appellant contends that the trial court committed reversible error when it failed to inquire into whether he had knowingly and voluntarily waived his Fifth Amendment privilege against self-incrimination before he testified. We hold that the misdemeanor sexual abuse statute refers equally to the offensive touching of the enumerated areas of the abuser's body, as well as the victim's body, and that the evidence more than sufficed to prove that appellant solicited sex from and caused a child to touch his penis, thereby committing the offenses, respectively, of attempted lewd acts and misdemeanor sexual abuse. We also conclude that there was no need for a Boyd*fn4 -type inquiry and affirm the convictions.

I.

In early summer of 2000, then thirteen-year-old S.P. was staying at her grandmother's house. S.P. testified at trial that one day in June, she received a phone call from a caller who threatened to tell S.P.'s grandmother about Devin, "a boy . . . that [she] had intercourse with." Fearing that the caller would tell her grandmother, S.P. confided in appellant, who is her uncle, about the call. Appellant responded by telling S.P., "Don't worry about it. As long as you know you didn't do it." Later that day, appellant discovered S.P. upstairs with a boy. Appellant told her to come with him so they could talk, and asked S.P. to accompany him on a drive to her Uncle Reggie's house. On the way back to her grandmother's house, while Uncle Reggie was pumping gas, appellant gave S.P. some of the spiked lemonade he was drinking.

At her grandmother's house that evening, while S.P. and appellant had dinner, appellant motioned to her to lower her top. S.P. asked appellant, "What you talking about?," to which appellant responded, "I know you know what I'm talking about." Appellant then motioned with both his hands for S.P. to flip open her top and expose her chest. S.P. refused, and appellant went upstairs. When he came back downstairs he had a condom in his hand, which he held slightly open for S.P. to see. He then sat next to S.P., and rubbed her leg in a way that S.P. said "didn't feel like a touch your uncle would give you," and asked her to go downstairs with him. When she asked him why, he told her to "be quiet" because her grandmother was in the other room. Appellant then took a piece of paper upon which S.P. had been scribbling and wrote "Let's go downstairs."

S.P. accompanied appellant to the basement, where he asked her for "a hug." When S.P. hugged her uncle, she felt the appellant's genitals "rub[] up against [her],"*fn5 and heard him ask her, both before and after he did that, whether she wanted to "do it." Noting her reticence, appellant asked, "Why, you don't want to do it?," to which S.P. responded: "No, because you're my uncle." Appellant said that he must have had too much to drink that day, and S.P. went back upstairs. A while later, appellant cautioned her that "Whatever goes on that's between you and me."

S.P. testified that she told her cousins about the occurrence the next day. She also told her cheerleading coach, Nakia, and Nakia's sister, Tiara, and another friend, Sydney.*fn6 She did not immediately tell her mother because she was afraid that, if she did, appellant would tell her mother about Devin.

Appellant testified on his own behalf and generally denied S.P.'s accusations. Several character witnesses testified as to his reputation as an honest, truthful and law-abiding person, but all admitted that they had no personal knowledge of the alleged incident with S.P.*fn7 During cross-examination, appellant conceded that, prior to the Summer of 2000, he had a good relationship with S.P. and that she had no reason to lie about him.

At the close of the government's case in chief, and again at the close of the evidence, appellant moved for judgment of acquittal, arguing that the government had failed to prove that appellant had touched S.P.'s inner thigh or any of the other enumerated private areas of the body identified in the misdemeanor sexual abuse statute. He also argued that the government had failed to prove lewd acts. The trial court concluded, however, that viewing the evidence in the light most favorable to the government, a trier of fact could find that appellant's conduct violated the statute because it encompasses appellant's touching his genitals with any part of S.P.'s body. Crediting S.P.'s testimony, the trial court found appellant guilty of both charges.

II.

Appellant challenges the sufficiency of the evidence to conclude that he committed the offenses of misdemeanor sexual assault and attempted lewd acts. In reviewing sufficiency claims, we view the evidence and draw all inferences in the light most favorable to the government. See Speight v. United States, 671 A.2d 442, 454-55 (D.C. 1996). This court defers "to the fact finder's right to weigh the evidence, determine the credibility of the witnesses, and draw ...


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