Appeal from the Superior Court of the District of Columbia, (DVM-2185-05) (Hon. Zinora M. Mitchell-Rankin, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before NEWMAN, TERRY, and SCHWELB, Senior Judges.
After a non-jury trial, appellant was convicted on two counts of misdemeanor sexual abuse, in violation of D.C. Code § 22-3006 (2001). Appellant argues that the trial judge, by assuming the victim's testimony to be truthful, violated his right as a criminal defendant to be presumed innocent. He also contends that the two acts of abuse for which he was convicted constituted only one offense, and thus he claims that he was convicted twice for the same conduct in violation of the Double Jeopardy Clause of the Constitution. Appellant's first contention has no merit, and because appellant engaged in two distinct "sexual acts" under the statute, each the product of a fresh criminal impulse, the offenses do not merge. Accordingly, we affirm both convictions.
On the evening of September 27, 2004, the victim, eleven-year-old D.O., was at home sleeping in her mother's bed along with her two younger half-sisters and appellant.*fn1 D.O.'s mother, who was in the hospital at the time, had asked appellant to come over and watch the children in her absence.
D.O. testified that appellant woke her from her sleep and said she should go into the living room because her sisters were kicking her. Initially D.O. fell back asleep on the living room floor, but later she moved to a mat that appellant brought out for her. Some time later appellant directed her to go into her own room, where they would be alone, and to lie down on her bed, which she did. Appellant then told D.O. to take her clothes off, and she complied. Appellant removed his own sweatpants and boxer shorts, put Vaseline on his penis, and lay on top of D.O. He instructed her to open her legs and proceeded to place his penis into her vagina. D.O. testified that appellant penetrated her three times, but did not ejaculate. Appellant then removed his penis and inserted his index finger into her vagina.
After appellant withdrew his finger, he instructed D.O. to "go take a shower or wash off." She took a shower, put her clothes back on, and returned to the room where her sisters were asleep. Appellant also returned to the same bed, but D.O. slept inbetween her sisters so that appellant "wouldn't do anything else." D.O. woke up at around 4:00 o'clock in the morning, and again at 7:00, with appellant lying on top of her.
D.O. got up the next day "pretend[ing] nothing happened." When she started crying at school, however, a school counselor spoke with her. D.O. was crying "violently," but when she became somewhat calmer, she told the counselor that her stepfather had gotten into bed with her and had put his penis "inside of [her] . . . the night before." D.O. was promptly taken to the Children's National Medical Center, where a sexual assault nurse examiner conducted an examination of her. The nurse, Kristin Young Anderson, testified that during the examination D.O. said that appellant had "put his goods in me and then he put his finger in me, and then I went in my mother's room and stayed." Ms. Anderson stated that her examination of D.O. was "normal," meaning that she showed "no injuries" to her genitals and her hymen was intact.
Appellant's defense consisted largely of calling D.O.'s testimony into question by highlighting inconsistencies between her testimony and certain out-of-court statements. The police detective with whom D.O. first spoke about the incident, for example, testified as a defense witness that D.O. had told her that appellant did not have any "liquid or gel on his private part." The detective also said that D.O. told her in her first interview that she was in her mother's room watching a western movie, but in the second interview she said she was in the living room, watching television with her sisters and appellant. In addition, the defense focused on inconsistencies in D.O.'s statements as to whether appellant had taken off all his clothes or just his pants and underwear, and whether she took a shower after the assault for just a few minutes or a longer shower lasting fifteen or twenty minutes.
The trial court interrupted the closing arguments of both the prosecutor and defense counsel to pursue colloquies with each of them. During the prosecutor's summation, the court interjected to describe, at length, the consistencies and inconsistencies it perceived in the evidence and invited the prosecutor to respond to its questions. After the prosecutor had completed her argument, the court summarized the perceived inconsistencies in D.O.'s testimony and invited defense counsel to address those inconsistencies in her closing argument. The court explained to defense counsel:
I want you to help me understand why the inconsistencies you believe loom so large that they could cause this Court to discredit her entire testimony . . . . I'm trying to figure out, when all is said and done, how this Court is supposed to determine . . . that this child had a motive to lie and that she did in fact lie, based on the inconsistencies which obviate or negate the validity of really very significant detail.
Later the court again pressed defense counsel to explain how the various inconsistencies in D.O.'s statements undercut her credibility. Counsel responded that she doubted whether one inconsistency "in and of itself is that significant," but added that "in total, when the court . . . looks at all of these relatively minor inconsistencies, they should give the court pause as to the whole story . . . ."
After the closing arguments were completed, the court found appellant guilty on two counts of sexual abuse*fn2 and ...