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In re E.H.

March 26, 2009

IN RE E.H., APPELLANT.


Appeal from the Superior Court of the District of Columbia. (J640-05). (Hon. John M. Mott, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued October 7, 2008

Before RUIZ, GLICKMAN, and FISHER, Associate Judges.

Following a bench trial, appellant, E.H., was found to have committed first-degree child sexual abuse, in violation of D.C. Code § 22-3008 (2001) formerly D.C. Code § 22-4108 (1981). We conclude that there was insufficient evidence of anal penetration, a required element of the "sexual act" charged in this case, and reverse appellant's conviction.

I.

On weekends, M.B., the then-six-year-old complainant in this case, lived with his mother, J.B., and his aunt, in his aunt's apartment next door to the apartment where then-fifteen-year-old E.H. lived with his family. On Saturday, January 29, 2005, E.H. came over to M.B.'s apartment and the two played a game in the living room. While the boys were playing, J.B. went into her sister's room to talk on the phone. A few minutes later she noticed that the living room had gone quiet and found that the boys were no longer playing there. J.B. went to E.H.'s apartment and knocked on the door, but received no response. She then returned to her apartment and called E.H.'s apartment but no one answered the telephone. Soon after, E.H. called from his apartment to say that he and M.B. were there. J.B. told E.H. to send M.B. home, but immediately went back to E.H.'s apartment, where she began banging on the door. M.B. appeared and J.B. took him home.

J.B. testified that when M.B. came to the door, he looked "afraid." Back home inside their apartment, M.B. told his mother that E.H. had "started humping on him." J.B. asked whether this had ever happened before and M.B. responded that previously "[E.H.] put his penis in [M.B.'s] butt," and that "[E.H.] put [his] penis . . . in [M.B.'s] mouth as well as . . . made [M.B.] put [his] penis in [E.H.'s] mouth."*fn1 J.B. testified that after this incident she noticed that M.B. became constipated, started having trouble at school, and seemed a little withdrawn from his family members.

At trial, M.B was at times a reluctant witness. He testified that E.H. came over to play on Saturday, January 29th (confirming the date as "[t]hat morning before the police came"). He said that while he and E.H. played, his mother was sleeping in his aunt's room. He would not say where he and E.H. went after leaving his apartment. When asked to identify the parts on a boy's body that people aren't supposed to touch, he said "mouth," "[p]rivate" (penis), and "[b]utt." Though he said nobody had touched his mouth or his private on January 29, he did say that E.H. had touched his butt with "[a] hand." M.B. also said that E.H. had touched the "skin" of his butt rather than the clothes on top of his butt. M.B. further testified that E.H. had previously touched both his butt and his private with his hand. When asked whether E.H. had touched the outside or inside of his butt, M.B. categorically said, "[o]ut." When asked whether E.H. had "ever" touched the inside of his butt, M.B. said, "no."

On Monday, January 30th, M.B. and his mother met with Dr. Wanda Thompson, a psychologist with the Children's National Medical Center. Dr. Thompson testified that J.B. reported to her that "E.H. had humped [M.B.], put his penis in [M.B.'s] butt, made [M.B.] put his penis in his mouth and then had [M.B.] do the same," without specifying when this had happened. Dr. Thompson recalled that M.B. merely confirmed that what his mother said was true, but did not himself describe anything that had happened between himself and E.H. -- either on January 29th, or any other day. M.B. also met with Christian Young-Anderson, a sexual assault nurse examiner with the Children's National Medical Center. Nurse Young-Anderson testified that upon conducting a physical examination of M.B., on January 31, she discovered a "laceration of his anus." She testified that "with a reasonable degree of medical and scientific certainty . . . [her] finding was consistent with [M.B.'s] disclosure of anal penetration." Though M.B. "told [the nurse] he didn't feel like discussing why he was [being examined,]" she had reviewed Dr. Thompson's report of the interview with M.B. and his mother prior to the physical examination.*fn2

II.

First-degree child sexual abuse is the most serious offense in the District's statutory scheme of graduated sexual offenses involving children. "Whoever, being at least 4 years older than a child, engages in a sexual act with that child or causes that child to engage in a sexual act shall be imprisoned for any term of years or for life and, in addition, may be fined an amount not to exceed $250,000." D.C. Code § 22-3008 (2001).*fn3 A "sexual act" is defined as:

(A) The penetration, however slight, of the anus or vulva of another by a penis;

(B) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or

(C) The penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse ...


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