Appeal from the Superior Court of the District of Columbia (M-11196-02) (Hon. Gerald I. Fisher, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and TERRY, Senior Judge.
After a non-jury trial, appellant Romero was convicted of one count of misdemeanor sexual abuse and one count of lewd, indecent, or obscene acts.*fn1 A few months after appellant noted this appeal from the judgment of conviction, his counsel filed in this court a motion to stay the briefing schedule and remand the record to the trial court "for reconstruction of the proceedings." The motion stated that the existing record was insufficient to permit meaningful appellate review because some parts of the trial transcript were missing. This court stayed the appeal on September 28, 2004, so that efforts could be made pursuant to D.C. Ct. App. R. 10 (c) to reconstruct those portions of the trial proceedings that had not been recorded because of a malfunction of the recording equipment in the courtroom.
At a hearing several months later, the trial judge took testimony from the trial prosecutor, heard argument from both parties, and read into the record his own notes which he had taken during trial.*fn2 Upon completion of these Rule 10 proceedings, this court vacated the stay, and the appeal proceeded to briefing and oral argument. Appellant's only contention on appeal continues to be that the record is insufficient to permit meaningful appellate review. We disagree and therefore affirm the judgment.*fn3
In its case in chief, the government presented only the testimony of the complaining witness, a sixteen-year-old girl whom we shall call Elena (not her real name),*fn4 and that of Michaela Kelaghan, an employee of the Latin American Youth Center, who had been assigned to work with Elena. In the only portion of Elena's direct testimony that was transcribed, she made a few introductory statements indicating that she had been living with her uncle (appellant), her aunt (Claudia Romero), and her young cousin in September 2002, because of a "problem" at home with her own mother. On cross-examination, in the only portion of her testimony that was transcribed, she agreed that appellant and her aunt had opened up their home to her, and that they were generally supportive of her.
Ms. Kelaghan testified that her work with Elena was mainly focused on completing her enrollment in school. However, during their meeting on September 27, 2002, Elena became agitated and told Ms. Kelaghan about two incidents involving appellant that had recently occurred. First, Elena reported that several days earlier, on or about September 15, while she was looking out the kitchen window, appellant had hugged her from behind, grabbed her breast, and "pushed his genitalia into her back." Second, she said that about a week later, approximately September 22, while she was asleep on the couch in the living room, appellant had come into the room, "lifted the covers, lifted her nightdress, and fondled her genitalia," and then dropped the towel that he was wearing and exposed himself to her. Elena was "visibly shaken" after recounting these events. Ms. Kelaghan explained to Elena that she would have to call the police to report these incidents, even though Elena never asked her to report them. Ms. Kelaghan was cross-examined, but her testimony was not significantly impeached.
The defense called Claudia Romero (appellant's wife), Rosa Hernandez, a "good friend" of Elena, and Pilar Romero (Elena's mother and appellant's sister). The record contains none of the direct examination of Claudia Romero, but it does contain a verbatim transcript of her cross-examination, redirect, and recross. On cross-examination, Mrs. Romero said that the day before Elena had spoken with "the social worker" (presumably Ms. Kelaghan), Elena had told her about the September 22 incident with appellant. Mrs. Romero testified that she had told Elena that she did not believe her and stated that she had never seen appellant do any of the acts described. She admitted, however, that on that date appellant had left the bedroom at about 11:00 p.m. to get a glass of water, and that he would have had to pass through the living room, where Elena was sleeping, in order to get to the kitchen. As for the incident on September 15, Mrs. Romero was certain that she and appellant and their daughter were shopping at a mall all day on that date, but she conceded that she had not kept any receipts from her purchases. The complete testimony of the other two defense witnesses was transcribed and is included in the record, but neither witness testified specifically about the two incidents in question.
In rebuttal, the government called a police investigator, Maria Flores, whose testimony was also transcribed in its entirety. Ms. Flores testified that when she interviewed appellant about the September 22 incident, he said that he had slapped Elena on the butt while she was lying on the couch because she was "sleeping with her legs opened," and that he had been wearing underwear under the towel that was wrapped around his waist. Ms. Flores also stated that when she interviewed Elena's mother, the mother told Ms. Flores that she had no reason to disbelieve what Elena was saying.
At the conclusion of the trial, the court made oral findings in which it found Elena "to be a credible witness." The court questioned the credibility of Rosa Hernandez, finding her generally "confused" about the dates of certain events, and specifically discredited Claudia Romero's testimony about what had happened on September 15. The court then found appellant guilty of two of the four acts charged: the touching of the breast on September 15, and the exposure of genitalia on September 22.
B. Reconstruction of the Record
During the Rule 10 hearing, the trial judge stated that he had taken detailed notes on Elena's testimony from beginning to end, and that he had a fairly good memory of the case. The judge then read into the record his own notes of Elena's testimony, which essentially mirrored ...