Appeal from the Superior Court of the District of Columbia (FEL-7242-04) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before REID, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
Following a ten-day trial before the Honorable Judith Retchin, a jury convicted appellant Melvin Watts of one count of carjacking (D.C. Code § 22-2803) (2001); one count of kidnapping (D.C. Code § 22-2001) (2001); one count of felony threats (D.C. Code § 22-1810) (2001); one count of first-degree sexual abuse (D.C. Code § 22-3002 (a)(1)) (2001); one count of third-degree sexual abuse (D.C. Code § 22-3004 (1)) (2001); one count of armed aggravated assault (D.C. Code §§ 22-404.01, -4502) (2001); and one count of armed assault with intent to kill (D.C. Code §§ 22-401, -4502) (2001). We affirm the judgments of conviction.
K.H., the primary prosecution witness, described to the jury her violent encounter with appellant on November 17, 2004. At about 5:30 a.m., she was sitting in her car with her five-year-old daughter and her seven-year-old son, waiting for the engine to warm up before she dropped the children off at her mother's house and drove to work. Appellant, whom K.H. had seen "a few times" in her neighbor's yard, "came out of nowhere and got into the front seat" of the car. In an angry voice, he ordered her to drive off and, frightened, she complied. When they reached a dead-end, appellant put a knife to her throat and ordered her to put the children in the trunk. K.H. refused and, after a struggle, succeeded in getting the knife away from appellant. The children, crying at this point, let themselves out of the back passenger-side door. Appellant shifted to the driver's seat, held K.H. in the car and drove off. Speeding, the car got into an accident moments later, but appellant continued to drive with his left hand while holding K.H. down in the back seat with his right hand and threatening to kill her. They eventually stopped at a recreation center parking lot, and appellant pulled K.H. out of the car by her collar and forced her into the trunk before driving off again. At their final stop, appellant took K.H. out of the trunk, ripped off one leg of her pants and her underwear, and began rubbing his penis against her crotch. Eventually, he got K.H. onto the ground and began "humping and humping" with his penis penetrating her vagina. Thereafter, appellant took a metal bar out of the trunk and hit K.H. in the head several times until she blacked out. K.H.'s next memory was of finding herself alone in the woods, slowly walking towards the street to get help, and ultimately collapsing on the stairs of a house, where she remained until police and an ambulance arrived.
Mary Pinn, a sexual assault nurse examiner, examined K.H. on the day of the incident and also interviewed her about the assault, recording K.H.'s answers on a Victim's Medical History and Assault Information form ("the VMHAI form").*fn1 K.H. told Pinn that a man whom she did not know had vaginally penetrated her with his penis and hit her with a tire iron.*fn2 Although Pinn observed that K.H. had suffered numerous non-genital injuries, she found no symptoms of trauma to K.H.'s genitalia. Pinn swabbed Homes's vaginal and anal areas, and, upon analysis, the swabs tested positive for semen. DNA analysis showed that appellant was the source of the semen.
The defense theory of the case was that appellant and K.H. not only knew one another prior to the November 17 incident, but had previously been involved in a consensual sexual relationship. In particular, the defense argued that, although K.H. had a boyfriend, she engaged in consensual intercourse with appellant on November 15, 2004, on which occasion appellant deposited his semen in her body. Two days later, according to the defense, K.H. started to give appellant a ride to his job (at a construction site) at about 5:30 in the morning. The November 17 meeting began amicably, but the couple soon started fighting in the car, and appellant (by his own admission) beat K.H. with a tire iron. But aside from that assault, the defense contended, appellant committed no offenses against K.H.. The defense argued that K.H. fabricated the sexual assault and other charges to hide from her boyfriend the fact of her affair with appellant.
Appellant did not testify, but, in support of the defense theory, defense counsel focused on a number of inconsistencies between K.H.'s trial testimony and her prior statements to detectives and to the grand jury about the details of the assault. The defense also presented evidence that, while appellant was visiting his sister in South Carolina during October 2004, several calls had been placed to K.H.'s phone number from appellant's sister's cell phone, including one call that was eighteen minutes long.*fn3 In addition, in cross-examining the government's DNA expert Kristina Losquadro, defense counsel elicited testimony that the only semen found on K.H.'s vaginal and anal swabs was that of appellant. Losquadro agreed that "if someone had consensual intercourse with ejaculation within a three-day period [prior to the taking of a vaginal swab], you would expect to find some male DNA in a vaginal swab" because "once intercourse has taken place, semen remains for . . . approximately 72 hours." She added that this would "depend on the circumstances of the intercourse or sexual activity" such as "[i]f the individual wore a condom; if the individual had a vasectomy, obviously you're not going to find any semen in that vaginal cavity."
Appellant further sought to present K.H.'s statement, on the VMHAI form in response to Question 15, that she had engaged in "consensual coitus" without a condom on the morning of November 15, 2004. Judge Retchin excluded this evidence, however, and precluded defense counsel from cross-examining K.H. about the statement, concluding that such evidence was inadmissible under the District of Columbia's "Rape Shield Law" (D.C. Code § 22-3022 (2001)). K.H.'s answer to Question 15 was redacted from the copy of the VMHAI form that was admitted into evidence.
Appellant first argues that the trial court committed reversible error in refusing to admit K.H.'s statement that she engaged in unprotected "consensual coitus" on November 15 (i.e., two days before the November 17 incident). He contends that K.H.'s statement, combined with (1) testimony by the government's expert that semen usually remains inside a woman's body 72 hours after being deposited, and (2) the absence of evidence of another man's semen on K.H.'s vaginal swab obtained on November 17, identifies appellant as K.H.'s November 15 consensual-sex partner.*fn4 Appellant argues that the excluded statement would thus have provided the jury with an innocent explanation for the presence of his DNA on K.H.'s (uninjured) genitalia: the possibility that appellant left his semen in K.H.'s body during a November 15 consensual act, not during the November 17 assault.*fn5 Accordingly, appellant contends, the excluded prior-sexual-act evidence was "critical" to his defense and implicated his Fifth Amendment right to due process and his Sixth Amendment right to confrontation, such that it should have been admitted under the "constitutionally required" exception to the Rape Shield Law's general prohibition against admitting evidence of a victim's sexual history. See D.C. Code § 22-3022 (a)(1).
The Rape Shield Law generally precludes introduction of "evidence of a [sexual assault] victim's past sexual behavior." D.C. Code § 22-3022 (a) (2001). Evidence of past sexual behavior may be admissible, however, if it is "constitutionally required to be admitted,"*fn6 D.C. Code § 22-3022 (a)(1), and if the procedural requirements of D.C. Code § 22-3022 (b) have been satisfied. Section 22-3022 (b) requires a criminal defendant seeking to put such evidence before the jury to make a written motion seeking admission, accompanied by a written offer of proof, which entitles the defendant to an in camera hearing on the issue if the judge determines that the written offer of proof "contains evidence described in subsection (a) of this section." D.C. Code § 22-3022 (b)(2) (2001). Defense counsel's burden at this hearing is to "precisely demonstrate" the probative value of the evidence it seeks to present. See Scott v. United States, 953 A.2d 1082, 1088 (D.C. 2008) (quoting (Larry) Brown v. United States, 840 A.2d 82, 92 (D.C. 2004) ("Evidence of prior sexual activity by the victim in a sexual abuse case should not be admitted except in the most unusual cases where the probative value of the evidence is precisely demonstrated") (citation and internal quotation marks and brackets omitted)).
Thus, the defendant must explain how the proffered sexual-history evidence would "undercut" the government's case. Brown, supra, 840 A.2d at 93. And, where the relevance of the proffered evidence "depends upon the fulfillment of a condition of fact," the defense's burden includes offering sufficient evidence at the in camera hearing to support a finding that the pertinent condition is satisfied. D.C. Code § 22-3022 (b)(2). This "evidentiary foundational requirement is the bedrock of the protection of victims of sexual assault[,] because it ensures that ...