Appeal from the Superior Court of theDistrict of Columbia (F-4202-03) (Hon. Craig Iscoe, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before WASHINGTON, Chief Judge, FARRELL, Associate Judge, and SCHWELB, Senior Judge.
The sole question presented on this appeal is whether Steven V. Ellison's two convictions for misdemeanor sexual abuse, one based on his vaginal intercourse with then eleven-year-old Q.M., and the second based on attempted anal intercourse a short time later, merge. We hold that they do not, and we affirm both convictions.*fn1
The principal prosecution witness at Ellison's non-jury trial was Q.M., the complainant. Q.M. testified that on March 17, 2003, at about 2:30 a.m., Ellison and a companion named Larry came over to the apartment at which Q.M. lived with her grandmother, her mother, her older brother, Todd, and her older sister Bianca. Bianca had apparently met Larry at a shopping mall and had invited him over.
After Ellison and Larry had been in the apartment for some time, Ellison asked Q.M. where the bathroom was located. Q.M. led him to the hallway bathroom, which Ellison then entered. Q.M. testified that shortly thereafter, as Ellison was leaving the bathroom and Q.M. was walking along the hallway, Ellison grabbed her shirt and pulled her into the bathroom.*fn2 Once the two of them were inside, Ellison pulled down Q.M.'s pajama pants and underwear, and he told her to lie on her back on the floor. According to Q.M., Ellison pulled down his own jeans and, from a kneeling position, inserted his penis into Q.M.'s vagina. Ellison then lay on top of Q.M. and engaged in sexual activity for six to eight minutes.
Next, Ellison sat down on the toilet seat, grabbed Q.M.'s waist, and put the girl on top of him. With his penis inside Q.M.'s vagina, Ellison moved her up and down. Q.M. testified that she felt pain as a result of this activity, which continued, by Q.M.'s estimation, for approximately four minutes. She stated that she was crying.
Ellison then stood up and moved Q.M. to a position in which she was leaning over the sink. Q.M. testified that Ellison then tried to "put his penis in my butt" but that he "didn't get nowhere at that time." Ellison's penis touched the outer surface of Q.M.'s anus, but (as the government acknowledges) there was no penetration.*fn3
The trial judge explicitly credited Q.M.'s testimony, and he rejected the notion that it had been fabricated. The judge noted that Q.M., whom he described as "a fairly young looking eleven," was under the age of sixteen, and that she was therefore incapable of giving legal consent. Accordingly, the judge found Ellison guilty of all four charges. See note 3, supra. Specifically, the judge found that Ellison had vaginally penetrated Q.M. and that he had had "anal sexual contact with her."
In denying Ellison's motion for judgment of acquittal, the judge had previously rejected the defense contention that the charges were multiplicitous. Viewing the record, and drawing all reasonable inferences, in the light most favorable to the government, the judge concluded that one might reasonably find that one act had been completed and a new and separate sexual desire was being acted upon with fresh impulse at the end of the vaginal intercourse and [at] the beginning of the attempted anal intercourse.
Ellison contends that his convictions for misdemeanor sexual abuse merge because, according to him, the entire incident constituted "a single course of unconsented sexual activity." Citing Cullen v. United States, 886 A.2d 870 (D.C. 2005), Ellison argues that the fact that he directed his assault at different parts of the victim's body did not convert his conduct into two separate offenses. Ellison also asserts that there was no appreciable length of time between the vaginal intercourse and the attempt to penetrate ...