Appeal from the Superior Court of the District of Columbia (M-1233-05) (Hon. Jeanette Jackson Clark, Trial Judge).
The opinion of the court was delivered by: Pryor, Senior Judge
Submitted February 13, 2008
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR, Senior Judge.
Appellant Clement Nkop appeals from his convictions after a bench trial for two counts of attempt misdemeanor sexual abuse*fn1 and two counts of simple assault*fn2 arising from the inappropriate sexual touching of two female patients at a skilled nursing facility. Specifically, appellant contends the trial court erred in failing to recognize that the attempt misdemeanor sexual abuse convictions merged with the convictions for simple assault. We conclude that simple assault is a lesser-included offense of attempt misdemeanor sexual abuse, and therefore remand solely for the purpose of vacating two of the convictions and for resentencing consistent with the charges that remain.
A. The Government's Evidence
Appellant worked as a certified nursing assistant (CNA) at the Washington Home and Hospice (Washington Home) in Northwest Washington. On the morning of March 7, 2005, appellant entered the room of the first complaining witness at about 1:30 a.m. to change her diaper. The complainant testified that appellant put on a pair of gloves, took a wipe, and then stroked the inside of her thighs several times. Appellant then opened the complainant's diaper, cleaned her with a wipe, and then "started rubbing circles on [her] clitoris" for about two minutes with the wipe in hand. Appellant moved his hand down to the complainant's vagina and repeated the same motion "just barely on the inside of [her] vagina."
Later that same morning, between 3:00 a.m. and 4:00 a.m., the second complaining witness rang the bell in her room to have her diaper changed. Although she usually asked for a female CNA, the second complainant testified that she was "exhausted" and did not make the request that morning. Thus, appellant, who had not previously changed her diaper, responded to her call. Appellant, without putting on gloves, removed the second complainant's old diaper, rubbed the inside of her legs in her upper-thigh area, stroked the top of her pubic hair twice with his fingers, and touched the "outside of [her] vagina." The second complainant told appellant, "Please don't do that." After appellant put a new diaper on the second complainant, he began rubbing her legs again, and she again said, "Please don't do that." Both complainants testified they had not given appellant permission to touch their private areas and that no other male CNA had ever touched them in this manner while changing their diapers. When the first and second complainants discovered appellant had touched both of them inappropriately, they reported the incidents to the unit manager, Jackie Omatoshow.*fn3
Johanna Ramsammy, a CNA at the Washington Home, trained appellant and had over twenty years of experience as a CNA. Ramsammy testified about perineal care of incontinent residents like the complainants and explained that it was inappropriate to rub a patient's thighs before putting on a new diaper. She also testified that it was inappropriate to stroke a patient's pubic hair without using a wipe. On cross-examination, Ramsammy testified that no other residents had complained about appellant prior to March 7, 2005.
Appellant was the only defense witness. He testified that he had worked at the Washington Home for three years prior to March 7, 2005, and had been a CNA for twelve years. He knew both complainants as residents of the Washington Home and had previously provided them with assistance.
Appellant described the first complainant as a "[v]ery demanding" patient and said she became upset with him about two weeks before March 7, 2005, because her care was interrupted by a cell phone call from appellant's wife and by a call to assist another resident. He also explained how he had changed the first complainant's diaper on March 7, 2005, and denied touching her in any inappropriate manner.
Appellant also testified about his interaction with the second complainant on that same morning. He testified that at about 3:15 a.m., the second complainant signaled for assistance. Appellant responded and told the second complainant that the woman who was taking care of her that morning was on break and offered to change her himself. He said there was nothing unusual about the second complainant's care that morning, and he denied touching her in any inappropriate manner. Finally, appellant testified that ...