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Green v. United States


May 22, 2008


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

Argued March 2, 2006

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.

I. Trial Proceedings

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 that appellant had "sexually molested" her. As a result, Officer Jackson took S.F. to the Children's National Medical Center for a sexual-abuse examination.*fn4

In addition to E.F. and S.F.'s testimony, the government presented testimony from Monica Avenc and Carolyn Cross, appellant's neighbors. They testified that in late spring of 2002, they heard S.F. yelling as they walked by appellant's apartment. Ms. Cross testified that she heard S.F. say, "Stop. Get off of me. Leave me alone." Ms. Avenc heard her scream, "Get your hands off of me. I'm tired of you . . . touching me. Just leave me alone." Ms. Cross was unconcerned and thought that appellant might just be disciplining S.F. Ms. Avenc, on the other hand, was very concerned because S.F. sounded afraid, but she did not contact the police.

Appellant, who did not testify, called only one witness, Detective Andre Davis, the lead detective in the case. Davis testified that, subsequent to appellant's arrest, he learned that appellant had a camper outside of the apartment building that he used for storage. By the time Detective Davis obtained a search warrant for the camper, however, it had been "stripped-down" and "destroyed."

In closing argument, defense counsel attacked the credibility of the witnesses, particularly appellant's daughters. Focusing on inconsistencies in their stories brought out under cross-examination, counsel argued that the girls manufactured the stories of molestation and nude photography because they did not like appellant and did not wish to continue seeing him.

II. Failure to Instruct on Intent Element of Child Sexual Abuse Count

In the District of Columbia, an individual commits the offense of Second-Degree Child Sexual Abuse when he or she, "being at least four years older than a child [defined as 'a person who has not yet attained the age of 16 years,' D.C. Code § 22-3001(3) (2001)], engages in sexual contact with that child or causes that child to engage in sexual contact." D.C. Code § 22-3009 (2001). "Sexual contact" is defined as "the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." Id. § 22-3001(9) (emphasis added).

At the close of the evidence, the trial court instructed the jury as follows with respect to the charges of Second-Degree Child Sexual Abuse: "The essential elements of second degree child sexual abuse, each of which the government must prove beyond a reasonable doubt are . . . that the defendant knowingly touched the breasts, thighs, and buttocks of [the complainants], and that the defendant was at least four years older than the complainant[s]." Although the jury instruction failed to include any instruction with respect to the intent element of the crime, appellant neither brought this to the attention of the court nor objected to the instructions as given.

In United States v. Olano, 507 U.S. 725, 731 (1993), the Supreme Court examined the scope of Federal Rule of Criminal Procedure 52(b), identical to Superior Court Rule of Criminal Procedure 52(b), which reads, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the Court." Quoting Yakus v. United States, 321 U.S. 414, 444 (1944), the Court noted that "'a constitutional right' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" Olano, 507 U.S. at 731. As the Court explained, when a right has not been asserted through objection stated to the court or otherwise, we must apply the plain error test to our review of the claim. In order to prevail under the plain error test, an appellant must show (1) error, (2) that is plain or obvious, (3) that affected the appellant's substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of judicial proceedings. See id. at 731-38; see also Johnson v. United States, 520 U.S. 461, 466-467 (1997).*fn5

As an initial matter, we note that the failure to instruct on an element of an offense does not per se satisfy the plain error test. In Johnson,the Supreme Courtanalogized the error of the trial judge - in taking the issue of materiality from the jury - to the error of failing to instruct on an element of an offense. It concluded that, even assuming that the failure to submit materiality to the jury "affect[s] [a] substantial right," it did not "seriously affect[] the fairness, integrity or public reputation of [the] judicial proceedings." Johnson, supra, 520 U.S. at 469-70. Two years later, in Neder, supra, note 4,527 U.S. at 1, the Supreme Court wrote: "[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id. at 4.

Indeed, this court has had several occasions to confront the issue of whether the failure to instruct on an element of an offense automatically requires reversal of a conviction. In White v. United States, 613 A.2d 869 (D.C. 1992) (en banc), we held that unless an objection is made at trial to the instructions as given, a failure to instruct on an element of an offense will not be the cause for a reversal at least where . . . the relevant facts are so closely related that no rational jury, shown by its verdict to have found the facts necessary to convict the defendant under the instructions as given, could have failed, if fully instructed on each element, to have found in addition the facts necessary to comprise the omitted element.

Id. at 870; cf. Jenkins v. United States, 877 A.2d 1062, 1069-70 (D.C. 2005) (reversing under harmless-error analysis where appellant contemporaneously objected to erroneous jury instruction).

Applying this rule in Bellamy v. United States, 810 A.2d 401 (D.C. 2002), we upheld the appellant's convictions for distributing cocaine in a drug-free zone, in that case within 1000 feet of a school, and possession of cocaine with intent to distribute in a drug-free zone, despite the trial court's failure to instruct the jury on the drug-free zone element of the charges. Id. at 402. In affirming the convictions, we found it critical that "the government's evidence showed that the crimes took place within 1000 feet of the school, and appellant did not dispute it." Id. at 407. Rather, the appellant's only defenses were his denial that he had sold any drugs and his assertion that the bags of cocaine found at his feet belonged to someone else or had been planted by the police. Id. at 403. Because the jury in Bellamy obviously did not believe the appellant's defense, and the only evidence in the case as to the proximity to the school was the undisputed testimony of the government's witnesses, we reasoned that, given the overwhelming evidence, no rational jury could have failed to find that the crimes occurred within a drug-free zone and therefore that "the error did not seriously affect 'the fairness, integrity or public reputation of judicial proceedings.'" Id. at 407 (quoting Johnson, supra, 520 U.S. at 470).*fn6

Having demonstrated that the omission of an element of the offense from the jury instructions does not warrant automatic reversal, and that it does not per se satisfy the plain error test, we now analyze the issue before us under that test. The government concedes that the trial court committed error when it failed to instruct the jury on the intent element of Second-Degree Child Sexual Abuse. It further concedes that the error was plain or obvious. Thus, we address whether the error affected the appellant's substantial rights and whether this error seriously affected the fairness, integrity or public reputation of judicial proceedings. We conclude that it did not.

In order to show that the non-structural error in this case affected his substantial rights, appellant must show a reasonable probability that the error had a prejudicial effect on the outcome of his trial. See United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) ("In cases where the burden of demonstrating prejudice (or materiality) is on the defendant seeking relief, we have invoked a standard with similarities to the Kotteakos [v. United States, 328 U.S. 750 (1946)] formulation in requiring the showing of a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different." (second alteration in original) (internal quotation marks omitted)). Just as the appellant in Bellamy did not seriously dispute whether the element of the offense omitted from the instructions - i.e., whether his actions took place in a drug-free zone - had been met, Bellamy, supra, 810 A.2d at 407, here appellant submitted no evidence nor made any argument to the jury contesting his intent.*fn7 In contrast, the government's evidence overwhelmingly supported the conclusion that appellant's actions were taken with the intent of gratifying himself sexually. Both daughters testified that appellant touched their thighs, buttocks, breasts and vagina, and both testified that the touching made them feel "uncomfortable." E.F. further testified that appellant told her that she needed to "comb [her] pubic hair," that he continued to try to touch her vagina even as she tried to stop him, and that he looked at her as a girlfriend rather than as a daughter. S.F. gave similar testimony concerning appellant's disregard for her requests that he stop touching her. She also testified that appellant would repeatedly state, "See how you do me" while he touched her, a statement that the jury could reasonably infer was an expression of appellant's sexual arousal.*fn8 E.F. testified that appellant took nude photographs of her "more than 20 times," directing her to "get up on the bed and . . . show your butt," "turn around and smile," and "pose like the girls in porno magazines."

Given this evidence, we conclude, in accord with Bellamy, that no rational jury could have found that appellant touched his daughters in a way consistent with the trial court's jury instruction on Second-Degree Child Sexual Abuse without also finding the requisite intent.*fn9 Just as the appellant in Bellamy never argued that he was not within a drug-free zone, the issue of intent in this case "was essentially uncontroverted at trial." Johnson, supra, 520 U.S. at 470.*fn10 Appellant's trial counsel put it bluntly while discussing jury instructions, "They believe her if they believe her. If they don't, they don't." Here, it is clear that the jury believed the daughters' accounts that their father touched them for inappropriate reasons. Indeed, with no evidence to the contrary, a logical jury could not have concluded on this record that appellant lacked the requisite intent. Therefore, it cannot have affected appellant's substantial rights, and reversal for plain error is unwarranted.

III. Failure to Define the Term "Lewd"

As his second claim of error, appellant, having not raised this issue before the trial court, now argues that the trial judge erred in failing to define the term "lewd" in the Sexual Performance Using a Minor statute. We conclude that the trial judge did note err in instructing the jury on this offense.

An individual is guilty of Sexual Performance Using a Minor "if knowing the character and content thereof, he or she employs, authorizes, or induces a person under 16 years of age to engage in a sexual performance." D.C. Code § 22-3102 (1) (2001). "Sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a person under 16 years of age." Id. § 22-3101 (6). A "performance" is defined to include photographs. Id. § 22-3101 (3). "Sexual conduct" is defined to include a "lewd exhibition of the genitals." Id. § 22-3101 (5)(E).

The instruction given by the trial court gave substantial guidance to the jury concerning the meaning of the term "lewd," a word that in any event is known in common parlance. The judge began by explaining, "In this case sexual conduct means a lewd exhibition of the genitals," and further instructed the jury that genitals "are defined as reproductive organs, in this case, the vagina." Next, he explained that the "lewd exhibition of the genitals means that the minor's genital or pubic area must be visibly displayed" and "mere nudity is not enough." Further, the trial judge noted that "the exhibition must have an unnatural or unusual focus on the minor's genitalia regardless of the minor's intention to engage in sexual activity or whether the viewer is sexually aroused." Thus, we conclude that the trial judge, while not specifically telling the jury that he was defining "lewd" for them, did a commendable job of explaining the meaning of the statute and giving them the guidance necessary to reach an informed verdict. We reject the idea that in order to define "lewd" adequately, the judge must use terms such as "'lewd' means" or "the definition of 'lewd' is . . . ."*fn11

Citing to the legislative history of the District of Columbia Protection of Minors Act of 1982, D.C. Code §§ 22-3101--3104 (2001), and to Black's Law Dictionary 927 (8th ed. 2004), appellant argues that "lewd" is a synonym for "obscene," and therefore the trial court should have instructed the jury that they could find the photographs "lewd" only if the government showed that "the average person, applying contemporary community standards to a work taken as a whole, could conclude that the [photographs appealed] to the prurient interest in sex, portrays sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value." D.C. Council, Capsule Legislative History, Bill 4-305, at 3-4 (1981) (citing Miller v. California, 413 U.S. 15, 24 (1972)). In arguing for this definition of lewd, however, appellant ignores the entire purpose of the law, which was to provide greater protection to children by following the example of many states that had "enacted statutes similar to the promised measure, which do not require proof that material is obscene, but simply prohibit using or permitting children to be filmed, photographed, or displayed while engaged in specifically defined sexual conduct." Id. at 4 (emphasis added). The Committee of the Judiciary noted before passage of the Act that the Supreme Court had recently held such measures constitutional. Id. at 4-5 (citing New York v. Ferber, 458 U.S. 747 (1982); see also Kongs, supra, note 10, 37 Cal. Rptr. 2d at 331. We decline appellant's invitation to adopt a definition of "lewd" at odds with the expressed intent of the legislature and conclude that there was no error in the instruction.


Appellant's final contention is that there was insufficient evidence to support his conviction for Sexual Performance Using a Minor. In reviewing this claim, we must "view[] the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Gibson v. United States, 792 A.2d 1059, 1065 (D.C. 2002) (internal quotation marks omitted). It is only where there is "no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt" that the evidence is insufficient to support a conviction and the trial court should grant judgment as a matter of law. Id. at 1065 (quoting Williams v. United States, 357 A.2d 865, 867 (D.C. 1976)).

Appellant's primary contention is that "[t]here was no evidence of a lewd exhibition of the genitals, only evidence that nude pictures were taken of a minor." This assertion is inaccurate. E.F. testified that appellant photographed her nude on twenty separate occasions, and that he specifically photographed her genitals on five of those occasions.*fn12 Furthermore, E.F. testified that appellant told her to "show [her] butt," turn around and smile, and "pose like the girls in porno magazines," who E.F. thought posed in "very disgusting" fashions. Examined in the light most favorable to the government, this testimony supports a reasonable inference that at least five of the pictures appellant took of E.F. focused on her genitalia. Pursuant to the jury instructions discussed above, this evidence was sufficient to support appellant's conviction.*fn13 For the foregoing reasons, appellant's convictions are Affirmed.

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