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In Re D.W.

September 1, 2011

IN RE D.W., APPELLANT.


Appeal from the Superior Court of the District of Columbia DEL 1483-07 (Hon. Patricia A. Broderick, Trial Judge)

The opinion of the court was delivered by: Schwelb, Senior Judge:

Argued May 26, 2011

Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

Opinion for the court by Senior Judge SCHWELB.

Concurring opinion by Senior Judge SCHWELBat p. 14.

Dissenting opinion by Associate Judge THOMPSONat p. 18.

Following an evidentiary hearing in this juvenile delinquency case, D.W. was adjudicated guilty of incest, in violation of D.C. Code § 22-1901 (2001). He appeals, contending that the evidence was insufficient to establish that D.W. and the victim were related "within . . . the fourth degree of consanguinity," as required under the statute. Because the uncontradicted testimony supports the trial judge's finding of guilt, we affirm.

I.

The underlying charges of incest and of first degree sexual abuse, in violation of D.C. Code § 22-3002 (1) (2001), stem from a single incident of sexual intercourse between D.W., then aged 14, and D.S., then aged 11, which occurred in August of 2006 at the home of Willie Jones, the children's grandfather.*fn1 A pregnancy resulted, and D.S. gave birth to a baby boy at Washington Hospital Center on April 26, 2007. Genetic testing established a probability of 147,501,000 to 1 that D.W. was the father of the child.

At the evidentiary hearing resulting in his adjudication, D.W. did not dispute that the intercourse between him and D.S. took place. Rather, he moved for a judgment of acquittal (MJOA) at the close of the District's case, arguing that the evidence that D.W. and D.S. were related by blood was insufficient as a matter of law to establish his guilt of incest beyond a reasonable doubt. The trial judge denied the motion and, after the defense had presented its evidence, none of which was directed to contesting the incest charge, the judge found D.W. guilty of incest.*fn2 D.W. filed a timely appeal.

II.

At the evidentiary hearing, Donald Berry testified that he has five children, including the respondent, D.W. and the complaining witness, D.S. When he was asked whether he is the biological father of both children, Mr. Berry stated that "I have not [taken] a blood test, so I'm not positive that I'm the father, but yes, I'm considered the father."

D.S., the complainant, testified that she and D.W. have the same father and that D.W. is her brother. Referring to the sexual episode between her and D.W., D.S. explained that although D.W. "was my brother and I didn't want to do that with my brother," she also "didn't want nothing bad to happen to my brother." D.S. also testified that her baby son does not live with her, but with her father (i.e., Mr. Berry).

Keisha Simmons, the mother of D.S., confirmed that Mr. Berry is D.S.' father, and also stated that D.W. is Mr. Berry's son with another woman.*fn3 Willie Jones, who was called as a defense witness, testified that D.W. lives with him, and that both D.W. and D.S. are his grandchildren. No evidence contrary to any of the foregoing testimony was ...

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