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In re L.L.

July 2, 2009

IN RE L.L., APPELLANT.


Appeal from the Superior Court of the District of Columbia (DEL131-05) (Hon. Zoe Bush, Trial Judge).

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

Argued January 29, 2009

Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.

Appellant asks us to reverse the adjudication finding him involved in first degree child sexual abuse. D.C. Code § 22-3008 (2001). Because the trial court abused its discretion by admitting the victim's hearsay statements, we reverse and remand for possible further proceedings.

I. Statement of Facts

A. The Sexual Encounter

In late August or early September2004, seventeen-year-old L.L. was living with his five-year-old sister (the victim, A.L.F.) and the rest of his family in Washington, D.C. C.L., their cousin, also lived at the same address, along with his mother. On the day in question, C.L. went with his cousin T. (L.L.'s brother) to an upstairs bedroom. The door was closed, but C.L. peeked through a hole where "the knob was missing." He saw L.L. "on the bed," "on his back," not wearing any clothing except socks. He also saw A.L.F., who was naked, sitting on L.L.'s "groin area." A.L.F. was facing L.L. and "had her legs on both sides of him," so that their groin areas were touching. L.L.'s hands were on A.L.F.'s hips, and he was moving her "up and down." L.L.'s brother T. "kicked the door open." L.L. then "jumped up... picked up A.[L.F.] and [] kind of like shielded himself with her." C.L. clarified that L.L. sat up on the bed and held A.L.F. in front of him by the hips, so that her feet were dangling above the floor. A.L.F. was not wearing any clothes at this time.

C.L. went downstairs and told his mother, S.L., what he had seen. S.L. then saw A.L.F. at the top of the stairs wearing no pants or underwear, and looking "nervous." Eventually, A.L.F. came downstairs wearing "pants and a shirt." C.L. thought she seemed "scared" because "she was sitting there all quiet and playing with her hands." L.L. was in the bathroom during this time. The water in the bathroom was running, and L.L. called out, "I'm in the bathroom. I'm in the tub."

On September 11, 2004, Joanna Hudson, a Child and Family Services Agency (CFSA) social worker who had previously been assigned to the family, visited the home. S.L. told Ms. Hudson that L.L. had sexually abused A.L.F. A.L.F. herself never told Ms. Hudson about the abuse. When A.L.F. was medically screened (the exact date of the screening is unclear), "[t]here were no medical findings."

B. The Statements

A.L.F. did not testify, but two of her out-of-court statements were admitted at trial. As a result of Ms. Hudson's report to the CFSA, A.L.F. was sent to live with a foster mother, M.C.C., who happened to be a sergeant with the Metropolitan Police Department. M.C.C. testified that on March 7, 2005, A.L.F. commented that she wanted to live with M.C.C. forever. M.C.C. asked if she would miss her family, and A.L.F. said that she would not miss her older brother, L.L. When M.C.C. inquired why she would not miss her brother, A.L.F. responded that he was a bad boy, but did not want to say anything else. After M.C.C. said that A.L.F. could trust her because M.C.C. was a police officer, A.L.F. started "really crying hard," "covering her face" and "visibly shaking." A.L.F. finally explained, "'we were in the bedroom and he pulled his pants down and he pulled my pants down and when he was done he ran into the bathroom.'" M.C.C. reported this conversation in an email to A.L.F.'s doctor.

On March 22, M.C.C. took A.L.F. to see her doctor. After the visit, M.C.C. asked A.L.F. whether she had remembered to tell her doctor about the incident with L.L. A.L.F. was "real short with [her] and she didn't really want to talk about it." M.C.C. asked whether A.L.F. knew what incident she was talking about, and A.L.F. replied "'yes, I remember when [L.L.] humped me.'"

C. The Trial Court's Findings

The trial court credited the testimony of the government's witnesses, noting that C.L.'s testimony was corroborated by A.L.F.'s statements, and found that "L.L., beyond a reasonable doubt, is involved in first degree child sex abuse." However, the trial judge never explicitly found that L.L. had engaged in "penetration, however slight, of the [] vulva of another by a penis," as required by D.C. Code ยง 22-3001 (8)(A) (2001). Instead, the court found "that L.L. put his penis against the ...


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