Appeal from the Superior Court of the District of Columbia, (F3802-01), (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Argued September 10, 2009
Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, andNEWMAN, Senior Judge.
David E. Koonce appeals from his conviction on a single count of first-degree child sexual abuse of his girlfriend's niece ("S.W."), whom a jury found he had anally sodomized when she was eight years old. He was indicted on four separate counts of the same charge, under D.C. Code § 22-3008 (2001),*fn1 but the jury deadlocked on two and acquitted on the fourth, apparently due in part to S.W.'s inconsistent and porous testimony and the lack of concrete physical evidence. On appeal, Koonce contends that: (1) there was insufficient evidence that a "sexual act" occurred as required for conviction under the statute; (2) a videotape ("CAC Tape") of an out-of-court interview conducted with S.W. at the Child Advocacy Center ("CAC") was improperly admitted to impeach S.W.'s testimony and as substantive evidence because it was neither sworn testimony nor adopted by her; and (3) evidence of a similar but uncharged prior act of sexual abuse ("Maryland incident") was wrongfully and prejudicially admitted. We hold that sufficient evidence was presented to sustain Koonce's conviction and that the CAC Tape was adopted as sworn testimony, and thus properly admitted at trial. However, because we also hold that the Maryland incident was wrongly admitted, prejudicing Koonce, we reverse and remand for a new trial.
Evidence presented at trial established that during the summer of 1999 Koonce lived in a small one-bedroom apartment on Hobart Place in Washington, D.C., with his girlfriend Anita Pratt and her three children. Koonce was approximately twenty-seven years old at the time. In June of that year, financial troubles forced Alisa Pratt, Anita's sister and S.W.'s mother, to move from Maryland into the Hobart Place apartment with her infant son and then eight-year-old S.W., for approximately three months. The small apartment was crowded; in addition to Koonce, Anita and their three children, and Alisa and her two children, S.W.'s grandmother also moved into the apartment in July 1999, and friends of Koonce and various babysitters, including Koonce's mother, were often present. During that period, Anita and Alisa worked full time, but Koonce did not work during the day and was frequently at home when S.W. returned from summer camp in the afternoon.
It is during these afternoons that Koonce repeatedly sexually abused S.W., according to the prosecution.
The first time S.W. told anyone about the sexual abuse was in February 2001, when her Maryland elementary school played a videotape on bullying, prompting her to seek out the school's guidance counselor to talk about the sexual abuse from "last summer." The counselor testified that she asked S.W., who suffered from a speech impediment, whether "somebody [was] touching her in a way that was making her feel uncomfortable." S.W. did not answer immediately and then began to stutter what seemed to the counselor to be an affirmative response. After repeated "yes or no" questioning and use of a doll as a prop, which were necessary because S.W. was stuttering uncontrollably, she denied having been touched on the chest or vagina at all, or by a hand on her buttocks, but she answered "yes" to the question of whether a penis had been in her "behind." S.W.'s stuttering was extreme and uncharacteristic for her, according to the counselor, who referred the case to local Maryland police. The police determined on the basis of an interview with S.W. that the abuse took place exclusively in the District of Columbia, and referred the case to District authorities.
On February 22, 2001, S.W. underwent an initial medical examination to determine whether there were physical indications of sexual abuse. The examiner reported inconclusive findings of anal tags, possible genital warts, and some slight appearance of what might have been scarring. No definitive diagnosis was made as to the genital warts, and the examiner testified that she saw nothing else that indicated sexual abuse. During the examination, S.W., who would not verbally state what had happened to her, wrote on a piece of paper, "He put his peneis [sic] in my behind." According to the medical examiner's testimony, S.W. said the abuse was perpetrated by a family member named David. A second medical examination of S.W. took place in March 2001, and the second examiner reported that she saw no evidence of anal scarring, that S.W.'s anal tags were consistent with normally occurring anal features, and that she tested negative, though inconclusively, for genital warts. S.W. also tested negative for gonorrhea and syphilis, both of which Koonce was infected with, according to his testimony at trial. According to the second examiner, S.W. told her that "when [she] was eight [her] uncle touched her," though the examiner's contemporaneous notes do not mention the word "uncle." When asked where she was touched, she replied, "My butt," but then became too emotional to explain what she was touched with. The second medical examiner's report, relying upon and building off of the first examiner's report, expressed the opinion that S.W. had been sexually abused.
On March 23, 2001, the CAC recorded an unsworn interview with S.W. in which she revealed details of the incidents of sexual abuse to a detective. It was in the course of this hour and a half-long interview, during which she frequently paused but stuttered less than in most other interviews, that S.W. first mentioned an abusive event prior to the 1999 summer incidents. On the CAC Tape she communicated the following, though frequently by nodding or answering "yes" or "no" to the interviewing detective's questions: In Maryland, on unspecified date - S.W. stated that she was eight years old at the time, but the prosecution contended at trial that it was in 1996 or 1997, when she was approximately five or six years old - she was watching pay-per-view wrestling on television at night with Koonce, Anita, Alisa, and the other children. It is unclear whose residence this incident took place in, though it appears to have been her grandmother's apartment at the time. S.W. stated that her mother went to sleep in the bedroom with her infant brother, and her aunt Anita and her two cousins fell asleep in the living room, where she and Koonce were watching television. She remembered that she was wearing a Disney Little Mermaid nightgown. Koonce got up, went to the bathroom, and returned as S.W. was leaning over the back of the couch to retrieve a doll. Koonce asked her if she "want[ed] to be a big girl," to which she said, "Yes." She then "felt him pull down [her] panties," and "put... his penis in [her]" anus. The abuse took place behind the couch in the living room on which her relatives had fallen asleep. She spoke inconsistently about whether she saw his penis on this occasion, but stated clearly that she did not remember what it looked like. He did not tell her not to tell anyone, but she never told anyway. S.W. also expressed clearly that this was the first incident of sexual abuse by Koonce, and that all subsequent incidents of anal sodomy took place in the Hobart Place apartment in the District.
The CAC Tape also contained S.W.'s substantially less detailed statements that Koonce had done the "same thing" at the Hobart Place apartment in 1999, while she was playing Connect Four on the bed and grandma was over, and also once while she was watching cartoons after Koonce showered and called her into his bedroom. The only time Koonce told her not to tell, she said, was after the shower-cartoons incident. More generally, and not in reference to any specific incident, S.W. indicated that when she said "private" she meant "penis." She also stated that she never felt his legs or anything else touch her, though she heard him breathing heavily "like he was running," and her "behind" or "bottom" hurt afterward "sometimes." She never saw or felt blood or any other substance in her panties. She did feel a need to "go to the bathroom" after incidents, but nothing would happen when she sat on the toilet. An incident when she was wearing a red skort outfit was not mentioned, and she stated that no specific incident occurred while she was laying on the floor.
The entire CAC Tape was played to the grand jury during S.W.'s testimony in that proceeding. She commented on the tape while it was being played, adding information and correcting at least one fact recorded in the prior unsworn interview. Among the details added were Koonce's use of baby oil during a "red skort" incident and a feeling of wetness after an "on the floor" incident. Also, she added that when she sat on the toilet afterward something felt like it was dripping down. Additionally, she testified that she was rarely alone with Koonce, and that the Connect Four incident had been on the floor, not on the bed. It is unclear in the record whether she formally adopted the CAC Tape as her statement during the grand jury proceedings, though she did initial it, but she testified at trial that she knew the CAC Tape was her's because she signed it.*fn2
Finally, in reference to the "Connect Four" incident, S.W. was asked by the grand jury whether Koonce put his "private" "inside or outside of [her] bottom," and she responded that it was "[i]nside."
Koonce was indicted by the grand jury for, inter alia, four identical counts of first-degree child sexual abuse in violation of D.C. Code § 22-3008, arising from four specific incidents referred to during trial by identifying details: Count One "while watching cartoons"; Count Two "while wearing a red skort"; ...