Appeals from the Superior Court of the District of Columbia (CF1-12704-08) (Hon. Frederick H. Weisberg, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge, Retired:
Before FISHER, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and FARRELL, Senior Judge.
Two appeals arising from the same criminal conviction are before the court. In 2008, an indictment was filed charging appellant with two counts of sexual abuse. Prior to trial, appellant filed a motion to dismiss one of the counts as violative of the Ex Post Facto Clause of the United States Constitution. He also filed a motion under Superior Court Rules of Criminal Procedure 8(a) and 14 to sever the two counts into separate trials. Both motions were denied. The case proceeded to trial and appellant was convicted of both counts of sexual abuse. Appellant filed a direct appeal, raising the same arguments he made in his two pretrial motions. Several months later, while the direct appeal was pending, appellant also filed a motion to vacate his sentence, under D.C. Code § 23-110 (2001), claiming ineffective assistance of counsel. This motion was denied without a hearing, and appellant has also appealed this denial. We conclude that appellant has suffered no deprivation of his constitutional rights under the Ex Post Facto Clause or the Sixth Amendment, and that the trial court did not abuse discretion in trying both counts in the same trial. We, therefore, affirm appellant's convictions.
Appellant was charged with two counts of first-degree sexual abuse, with aggravating circumstances (force), in violation of D.C. Code §§ 22-3002 and -3020 (a)(5) (2001). The counts related to sexual assaults against two different women; the first occurred in 2000, and the second in 2005.
In the first incident, a woman (C.M.) was waiting at a bus stop on the afternoon of July 17, 2000, when she was approached by a man whom she did not know. The man told her that he had drugs with him, and asked her whether she would like to "get high" with him nearby. C.M., a heavy user of crack-cocaine and heroin, agreed, and she followed the man to an apartment inside an abandoned building. They crawled through a hole and entered a room that was empty except for a mattress and a chair. Once they were inside, the man grabbed C.M. by the throat and pinned her down on the mattress. When she screamed, he told her to "shut up" and punched her in the mouth. The woman told appellant that she was pregnant and pleaded with him to "please [not] hurt my baby." She also pulled out a small knife that she had been carrying with her, in an attempt to fend off her attacker. The man overpowered C.M. and knocked the knife away, cutting her arm in the process. He then sexually assaulted her by penetrating her vaginally and ejaculating inside of her. The man left immediately thereafter. C.M. came out of the building, ran "up the street," and sought help from Elneta Chance, whom she encountered on the street. Ms. Chance promptly called the police, and an officer arrived at the scene within minutes. The officer saw that C.M. was bleeding from her left arm. C.M. took the officer to the abandoned building and showed him the room where the assault had occurred. C.M. was taken to the hospital, where a sexual assault examination was performed. The examining physician noted that C.M. had "a scratch on the right side of her face[,] . . . what appeared to be a stab wound on her left arm and a bruise on her right knee." In the course of the examination, a semen sample was obtained from a vaginal swab. This sample would eventually be matched to appellant's DNA eight years later.
A.M.H., the victim of the second incident, testified that she was home alone in her apartment on the evening of November 29, 2005, when appellant rang her doorbell and asked to see her "sister," "Nikki." A.M.H. recognized appellant from having smoked crack-cocaine with him once about a year before - at that time, she had met appellant on the street and invited him into her apartment to "smoke . . . crack cocaine"; he "propositioned [her] . . . to exchange sex for drugs," which she declined to do. A.M.H. allowed appellant into her apartment and offered to get Nikki's phone number for him while he waited. Appellant told A.M.H. that he was "going to purchase some crack" and she responded that she "no longer used" the drug. After giving appellant Nikki's phone number, and letting appellant use her bathroom, A.M.H. escorted appellant to the door. On the way to the door, appellant grabbed A.M.H. by the throat and threw her on to a bed in the living room. A.M.H. screamed. She then grabbed a broken T.V. antenna and stabbed appellant in the face with it. As the fight continued around the room, appellant attempted to choke A.M.H. several times. Appellant told A.M.H. to "shut up" and threatened to kill her if she did not submit to him. She eventually complied, and appellant sexually assaulted her, penetrating her vaginally and ejaculating inside of her. A.M.H. ran outside without any clothes on, and waited for appellant to leave her building. As appellant left the building, he walked by her and said, "Shut up, [b]itch, I don't know what you [are] crying for. I paid you." A.M.H. testified she "didn't know" what was meant by his statement. A.M.H. was let back inside her building by her neighbor's son and immediately went and knocked on the door of a neighbor's apartment. Upon opening the door, the neighbor saw A.M.H. naked, injured, and visibly shaken up. From the neighbor's apartment, A.M.H. phoned her husband, who returned home and called the police. He observed that their apartment was in total disarray, with a lamp broken and the T.V. knocked off of its stand. The police arrived and A.M.H., who was crying and upset and held a washcloth with ice on her cut lip, was taken to the hospital for a sexual assault examination. A nurse noted that A.M.H. had "bruises on [her] face and lip, scratches on [her] chest, reddened areas on [her] chest, an open area on [her] right hand, bruises [on] her left cheek and bruises on her left neck." A semen sample, which would later be identified as having come from appellant, was also obtained during the examination.
About two years later, on December 20, 2007, A.M.H. was eating at a Wendy's restaurant with her husband when she saw appellant enter the Wendy's. She recognized appellant as the person who had assaulted her in 2005 and told her husband, who went outside to inform a police officer. Appellant was formally interviewed by the police later that day and denied knowing A.M.H. He gave a blood sample to the police on December 27, 2007. The resulting DNA analysis matched the semen samples from the sexual assaults in 2000 and 2005. Appellant was charged with two counts of first-degree sexual abuse on April 9, 2008, and was arrested on June 4, 2008. A grand jury indicted appellant on August 27, 2008, and the two counts were joined for a single trial.
Prior to trial, appellant made a motion to dismiss the count relating to the assault that occurred in 2000. He claimed that, because in 2000 the statute of limitations for sexual abuse had been six years, the indictment in August 2008, eight years later, was barred as untimely. The statute of limitations for sexual abuse was extended to fifteen years in 2005, but appellant argued that, to the extent the longer limitations period applied retroactively, the extension violated the Ex Post Facto Clause of the United States Constitution. The trial court denied appellant's motion at a status hearing on December 19, 2008, ruling that the Ex Post Facto Clause had not been violated because the statute of limitations for the 2000 incident had not yet expired when it was extended in 2005.
Appellant also filed a pretrial motion to sever the two sexual abuse counts, arguing that they had been improperly joined under Rule 8 (a), or, in the alternative, that they should be severed under Rule 14 because he would be unduly prejudiced if he had to defend against both counts in the same trial. The government opposed the motion, arguing that the counts had been properly joined, and that they need not be severed because evidence of each crime would be admissible in a trial for the other to prove intent and identity. This motion also was denied at the status hearing.
A trial on both counts was held in January of 2009. At trial, appellant admitted to having sexual encounters with both women on the dates charged, but claimed he did not assault them. He testified that he had sexual intercourse with C.M. in the abandoned apartment building, but alleged that the intercourse had been a consensual money-for-sex transaction. He had said he would pay her $20, but had only given C.M. $10, which angered her and caused her to leave the building and accuse him of sexual assault. Appellant also admitted that he had gone to A.M.H.'s apartment hoping to have sex with her. According to appellant, they had had sex three times at the apartment prior to the day in question, and that on November 29, 2005, he had tried to have consensual sex with her, but had ejaculated on her prematurely before intercourse ever began. Appellant stated that he had then given her $50 to buy crack-cocaine for them to share, and in so doing, had warned her not to cheat him out of his half, as he asserted she had done in the past. This allegedly made A.M.H. angry and resulted in a physical confrontation, which he said explained the apartment's disarray and A.M.H.'s injuries.
Appellant was found guilty of both counts of first-degree sexual abuse, with aggravating circumstances, and was sentenced to thirty years' imprisonment followed by ten years of supervised release, and ordered to pay a $200 fine to the Victims of Violent Crimes Compensation Fund. He filed a timely notice of appeal.
In his direct appeal, appellant raises the two issues that formed the basis of his pretrial motions: (i) his motion to dismiss the count relating to the 2000 incident because the extension of the statute of limitations for sexual abuse violated the Ex Post Facto Clause; and (ii) his motion to sever the two counts because they were improperly joined under Rule 8, or, in the alternative, because they should have been severed under Rule 14.
On November 11, 2009, while his direct appeal was pending, appellant also filed a motion to vacate his sentence under D.C. Code § 23-110. He claimed that his trial counsel was ineffective for failing to present "a medical expert to serve as rebuttal evidence against the government's witnesses and their ability to recall due to their state of mind as crack cocaine users." On June 10, 2009, the trial court denied the § 23-110 motion without a hearing. Appellant's appeal of that denial was consolidated with the direct appeal of his criminal conviction. We consider the issues raised on the direct appeal first, and then discuss the § 23-110 motion.
II. Extension of Statute of Limitations and the Ex Post Facto Clause
As described above, one of the counts of first-degree sexual abuse arose from an assault that occurred on July 17, 2000. In 2000, the statute of limitations then in effect provided that, for most felonies, including sexual abuse, "a prosecution . . . is barred if not commenced within six (6) years after it is committed." D.C. Code § 23-113 (a)(2) (1981). Appellant was indicted on August 27, 2008, more than eight years after the offense was committed. See D.C. Code § 23-113 (c) (2001) ("A prosecution is commenced when: (1) an indictment is entered; (2) an information is filed; or (3) a complaint is filed before a judicial officer empowered to issue an arrest warrant; . . ."). Appellant argues that the prosecution was therefore violative of the Ex Post Facto Clause of the Constitution.*fn2 This is a legal question we review de novo. See United States v. McMillian, 898 A.2d 922, 930 (D.C. 2006).
A six-year statute of limitations for the charge of first-degree sexual abuse based on the assault on C.M. would have expired on July 17, 2006; however, effective May 10, 2005, prior to expiration of the six-year period, the statute was amended to increase the limitations period to fifteen years by the Felony Sexual Assault Statute of Limitations Amendment Act of 2004, 52 D.C. Reg. 1178 (2004) (the "Felony Sexual Assault Act"). See D.C. Code § 23-113 (a)(2) (2005 Supp.) ("A prosecution for the following crimes . . . is barred if not commenced within fifteen (15) years after it is committed: (A) first-degree sexual abuse. . . ."). The Felony Sexual Assault Act made clear that the new, longer limitations period would "apply to an offense committed before its effective date only if the statute of limitations for the offense has not ...