Appeal from the Superior Court of the District of Columbia (CF1-11420-07) (Hon. Herbert B. Dixon, Jr., Trial Judge)
The opinion of the court was delivered by: Fisher, Associate Judge:
Before REID and FISHER, Associate Judges, and KRAVITZ, Associate Judge, Superior Court of the District of Columbia.*fn1
After a jury trial, appellant Darryl T. Gaynor was convicted of two counts of first degree sexual abuse with aggravating circumstances*fn2 and one count of incest.*fn3 Appellant now challenges his convictions for first degree sexual abuse, arguing that the instructions regarding the affirmative defense of consent unconstitutionally shifted the burden of proof to appellant to disprove the element of force. During deliberations the jury expressed confusion about these instructions, and we conclude that the trial judge's supplemental instructions failed to clear away this confusion. Because there is a reasonable likelihood that the jury applied the consent instructions in an unconstitutional manner, we reverse appellant's convictions for first degree sexual abuse and remand the case for a new trial on these counts.
I. Factual and Procedural Background
Appellant and his 72-year-old aunt, N.J., lived in a one-bedroom apartment in the Northeast quadrant of the city. Ms. J slept in the bedroom, and appellant slept on the couch. It is undisputed that on May 17, 2007, sexual acts, including intercourse and oral sex, occurred between appellant and his aunt. At a trial that began on November 5, 2007, Ms. J testified that appellant pushed her into the bedroom, threatened her, and forced himself upon her. Appellant contended that Ms. J initiated and willingly participated in the sexual acts.
Because the central issue was whether Ms. J was a willing participant, the trial court proposed, and the government supported, giving a jury instruction on the affirmative defense of consent. At that time, D.C. Code § 22-3007 (2001) (since amended) stated that "[c]onsent by the victim is a defense, which the defendant must establish by a preponderance of the evidence . . . ." In Russell v. United States, 698 A.2d 1007 (D.C. 1997), we upheld the constitutionality of this statute, but cautioned "that the jury should be expressly instructed that it may consider the affirmative defense evidence when it determines whether the government has met its burden to prove all the elements of the offense beyond a reasonable doubt." Id. at 1015-16.
The standard Redbook instruction on the consent defense to sexual abuse, which the trial judge proposed to give in the instant case, had been modified in light of Russell to include the following language: "You may consider evidence of consent in deciding whether the government has proved beyond a reasonable doubt that the defendant used [force] [or] [a threat . . .] . . . ." Criminal Jury Instructions for the District of Columbia, No. 4.61 (4th ed. rev. 2007) (brackets in original). However, adhering to the statutory command, the instruction still explained that the defendant bore the burden of proving consent by a preponderance of the evidence.
Appellant's trial counsel objected to the instruction, asking the trial court to eliminate the reference to appellant's burden of proving consent. Counsel argued that the instruction and the statute violated appellant's due process rights by placing on him the burden to disprove force, which was an element of the offense of first degree sexual abuse and something that the government had to prove beyond a reasonable doubt. On November 7, 2007, at the close of the evidence, the trial court gave the proposed instruction regarding the affirmative defense of consent.
On November 8 at 11:45 a.m., after deliberating for an hour on November 7 and a couple of hours on the morning of November 8, the jury sent a note indicating that it was hopelessly deadlocked on the first degree sexual abuse counts but had reached a unanimous decision on the charge of incest, the only count for which consent was not a defense. Appellant's counsel moved for a mistrial on the two counts of first degree sexual abuse, but the trial judge denied appellant's request and sent the jury back for additional deliberations.
At 2:15 p.m. the jury sent another note which stated: "We need
clarification on Rule 4.6.1.B (see underlined passage).*fn4
Plus, if the defense cannot prove consent; does this lack of
proof allow us to conclude that a force/threat took place?" Over
multiple objections by appellant, the trial court provided
supplemental instructions, which we will discuss in more detail below.
The jury returned to its deliberations at 4:00 p.m. Twenty minutes
later, the jury informed the judge that it had reached a unanimous decision
on all counts. The jury found appellant guilty of both counts of first
degree sexual abuse with aggravating circumstances and one count of
Appellant asserts that the instructions likely confused the jury, leading it to believe that, if appellant failed to prove consent by a preponderance of the evidence, the jury could conclude that there was force -- thereby unconstitutionally eliminating or alleviating the government's burden to prove the element of force beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970) (holding that the due process clause requires the government to prove all elements of an offense beyond a reasonable doubt). Where, as here, the issue has been preserved for appeal, "the proper inquiry is whether there is a reasonable likelihood that the jury did apply the instruction in an unconstitutional manner." Russell, 698 A.2d at 1013 (emphasis in original) (explaining parenthetically the holding in Victor v. Nebraska, 511 U.S. 1, 6 (1994)). While the challenged instructions should not be viewed in isolation but rather in the context of the instructions as a whole and the complete trial record, Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citation omitted), "[t]he general jury instruction on the government's burden to prove the elements of the offense beyond a reasonable doubt is not necessarily sufficient, by itself, to overcome other confusing or ambiguous instructions on the burdens of proof." Russell, 698 A.2d at 1013 (citing Sandstrom v. Montana, 442 U.S. 510, 518-19 & n.7 (1979)).
In its initial instruction regarding the consent defense, the trial court described a two-step process that the jury should follow in evaluating evidence of consent. The jury should first determine whether the government had proven all elements of first degree sexual abuse, including force, beyond a reasonable doubt, and in making this determination, it could consider evidence of consent. Only if the jury found that the government had met its burden of proving all elements beyond a reasonable doubt should it move to ...