Appeal from the Superior Court of the District of Columbia (F-5613-02) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN and KRAMER, Associate Judges, and SCHWELB, Senior Judge.*fn1
In a ten-count indictment, appellant was charged with various counts of Incest, First- and Second-Degree Child Sexual Abuse, Sexual Performance Using a Minor and Threats. The complainants were his daughters, E.F. and S.F., and, in one count, A.T., a friend of the daughters. The jury convicted appellant of two counts of Second -Degree Child Sexual Abuse, one relating to E.F. and one to S.F., and one count of Sexual Performance Using a Minor relating to E.F. Appellant was sentenced to seven years of incarceration on each charge of Second-Degree Child Sex Abuse and one year of incarceration on the charge of Sexual Performance with a Minor, all the periods of incarceration to run consecutively.
On appeal, appellant contends that the trial court's failure to instruct the jury on the element of intent required for conviction on the Second-Degree Child Sexual Abuse charges requires that those convictions be reversed. He also asserts that the court's failure to define the word "lewd" requires reversal of his Sexual Performance Using a Minor conviction, and that even if reversal were not required on that ground, the evidence was insufficient to sustain this conviction. While the government concedes error with respect to the court's failure to instruct on intent in connection with the Sexual Abuse charges and also concedes that it was plain (in the sense of obvious), it asserts that appellant has failed to meet the other elements of the plain error doctrine, that is, that the error affected appellant's substantial rights or the fairness of the trial.*fn2 The government denies any error in connection with the definition of "lewd" and maintains that there was sufficient evidence to convict appellant of Sexual Performance Using a Minor. We affirm.
The evidence at trial, viewed in the light most favorable to the government, established that S.F. and E.F. first met appellant, their biological father, in 1995, when they were eight and nine years old, respectively. E.F. lived with appellant on Green Street in the Southeast quadrant of the District from the end of 1995 until 1998, when she left to live with her grandmother. Though she did not live with appellant after 1998, E.F. made overnight visits to him on the weekends. E.F. did not enjoy these visits, but consented to them for fear that, if she refused, appellant would "either hit [her] or . . . catch one of his really bad tempers."
Appellant's Green Street apartment was in a building that was abandoned during most of E.F.'s visits there. The apartment itself was "in disarray, filthy and full of trash," and had "holes in the wall[s]."There was no running water and appellant provided water in buckets from a fire hydrant. The apartment also had a "make-shift kitchen," a rocking chair, and two mattresses placed on the floor that served as beds.
Though appellant had two mattresses, E.F. slept in the same bed with appellant when she visited. She generally slept at the opposite end of the bed from appellant because she did not trust him. This distrust arose from "the way he acted," including "say[ing] that [she] was his daughter" but "looking at [her] as if [she] was . . . a girlfriend," and taking nude Polaroid photographs of her.
E.F. testified that appellant took nude photos of her "more than 20 times" when she stayed at his apartment. She further testified that he photographed her genitals on at least five of those occasions. According to E.F., appellant took these pictures because "he felt [his daughters] were [more] beautiful . . . without clothing." When he took these pictures, appellant occasionally gave E.F. specific instructions, such as "get up on the bed and . . . show your butt," "turn around and smile," and "pose like the girls in porno magazines."*fn3 E.F. claimed that, on at least one occasion, appellant hit her when she refused to pose, and that other times he bribed her with small sums of money.
During this period, appellant also began touching E.F. in ways that made her uncomfortable. According to E.F., he touched her buttocks and breasts on multiple occasions and touched her vagina at least once. One night in July 2001, appellant joined E.F. in bed while she was watching television and started "messing with [her]." He rubbed her arms and commented on their roughness, he then went "down some more" and commented that E.F. "need[ed] to comb [her] pubic hair." After she fell partially asleep, appellant continued touching E.F., moving to her legs and inner thighs. E.F. awoke to realize that he was touching her vagina. She eventually fought him off and he stopped touching her. While E.F. did not contemporaneously tell anyone the specifics of this incident, she did tell her friend A.T. that her father had tried "to feel on her."
In 2001, the victims' grandmother refused to allow S.F, E.F.'s sister, to continue living in her home because of behavioral issues. At her mother's request, S.F. moved in with appellant. S.F. also shared the large mattress with appellant and when E.F. would visit them, all three slept in the same bed. After S.F. moved into his apartment, appellant began to "touch [her] in ways that made [her] feel uncomfortable." She testified that he touched her breasts, buttocks and vagina on multiple occasions. At times, while he touched her, he would repeatedly say, "See how you do me."
On one particular occasion when S.F. was home sick from school, S.F. awoke to appellant touching her feet. She kicked appellant and told him to stop, but instead he pulled her to the end of the bed, yanked on her clothes, and touched her vagina, buttocks and breasts, saying, "See how you do me?" S.F. testified that this incident ended after appellant inserted his penis halfway into her vagina. Like E.F., S.F. did not tell anyone of the specific instances of abuse, but she told her sister of her discomfort with appellant's touching. She also told her friend A.T. that appellant was "feeling on her," which A.T. understood to mean that appellant had touched S.F.'s "chest and private parts," including her vagina and buttocks.
On July 20, 2002, the girls' mother and S.F. spent the day together. When they returned to appellant's apartment the mother, her boyfriend and appellant had an argument in front of the building. The police were called to investigate a potential assault, and Officer Tracy Jackson saw S.F. hanging out of a window crying and yelling for her mother. Officer Jackson gained access to the building and saw that S.F. was unclean and that she appeared to have urinated on herself. Officer Jackson took custody of S.F., and on the way to the Child and Family Services Agency, S.F., visibly angry with her father, told Officer Jackson ...