Argued December 11, 2012.
Appeal from the Superior Court of the District of Columbia (CF1-15491-09) (Hon. Lynn Leibovitz, Trial Judge).
Christine A. Monta, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.
Chrisellen R. Kolb, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Peter V. Taylor and David A. Last, Assistant United States Attorneys, were on the brief, for appellee.
Before Fisher and Thompson, Associate Judges, and King, Senior Judge.
THOMPSON, Associate Judge:
In this case, we are confronted once again with the "perplexing" question of "when evidence of a particular criminal act [i.e., so-called "other crimes evidence"] may be admitted." Thompson v. United States, 546 A.2d 414, 415 (D.C. 1988). The question arises in this case because, in a trial in which appellant Ronnie Legette was charged with three counts of first-degree sexual abuse while armed (with a gun), kidnapping while armed, five counts of possession of a firearm during a crime of violence, armed robbery, felony threats, and possession of a firearm by a convicted felon, the trial court permitted the government to present testimony by a complainant who described how appellant, armed with a gun, had sexually assaulted her six years earlier under circumstances similar to those alleged in this case. The jury convicted appellant on all charges. Appellant assigns as error the trial court's ruling that allowed the government to present the prior-sexual-assault testimony. He argues that the testimony was not probative as to any "genuinely controverted" issue in the case except insofar as it supported "an impermissible propensity inference, " i.e., an inference that appellant "had a general predilection to rape people he encountered on the street."
We think the question whether the trial court erred in admitting the testimony requires a more nuanced answer. In light of appellant's consent defense, which his trial counsel asserted in her opening statement and thereafter pursued through his examination of witnesses, we conclude that the prior-sexual-assault testimony was admissible as "intent" evidence — specifically, as evidence tending to prove that appellant had the intent to engage in the charged sexual acts by force. At the same time, we conclude that the court's instructions to the jury erroneously permitted jurors to consider the prior-sexual-assault evidence as "motive" evidence. We conclude ultimately that the error was harmless because the testimony was legitimately probative of intent, the prejudicial effect of the testimony did not substantially outweigh that probative value, and admission of the testimony for an improper purpose added only marginally (if at all) to its prejudicial effect and does not alter the result of the balancing of probity against prejudice. Accordingly, we affirm the judgment of conviction.
J.S.,  the government's chief witness, testified that on May 14, 2006, shortly after 6:30 a.m., she was running late on her way to work and was waiting alone at a bus stop on Benning Road when a man, whom J.S. identified at trial as appellant, approached her, asked her whether she had been waiting long, and then told her that she was "very pretty." J.S. testified that she informed appellant that she is a man, and that "what happened next" was that appellant asked J.S. whether she wanted to "go somewhere" (a question she understood to mean, "Do you want to go somewhere and have sex with me right now?"). J.S. said that she had to go to work but would be free in the evening. Appellant "reacted angrily." Appellant then asked, "If I had a gun would you go?" At that point, appellant pulled out a gun, pointed it at J.S., and told her that if she ran, he would "blow [her] brains out." Appellant told J.S. to walk across the street, and he walked just behind her, until they turned into an alley and arrived at an abandoned house a block or so away. Appellant opened the door to the house by "unravel[ing]" a wire coat hanger that had been wrapped around the doorknob to keep it closed. Once inside the dark house, appellant asked J.S. what she was "willing to do for [her] life." Appellant then motioned or "point[ed] to his private area" and pulled down his pants, exposing his penis. Appellant placed his gun behind him on a nearby ledge, and J.S., fearing for her life, "performed oral sex on him." Afterwards, appellant "turn[ed J.S.] around, " pulled her pants and underwear down, and forced his penis inside her rectum. When that encounter ended, appellant grabbed the back of J.S.'s head, pulled it towards him, and made J.S. "suck the blood and feces off of his penis." Appellant then pulled his pants back up and "turned back pleasant" again, hugging J.S., kissing her on the forehead, and telling her that she did not have to be afraid of him. He also mentioned "not calling the police" and told J.S. that if she called the police, "nobody's going to believe a faggi anyway." Appellant took J.S.'s sunglasses, cell phone, and money, but gave her back a dollar to use as bus fare to get to work and told her to call her cell phone when she got off work and he would meet her at the bus stop and return it to her. Appellant and J.S. then exited the house and walked in opposite directions. J.S. saw appellant holding the cell phone to his ear as he walked away. The parties stipulated that cell phone records showed calls later that day from J.S.'s cell phone to appellant's mother and friends.
At the time of the incident, J.S. lived with her sister. The sister testified that at around 6:45 a.m., J.S. returned home and was banging on the door and screaming, and that when she opened the door, J.S. was crying and was "really, really upset." According to the sister, J.S. informed her that "a guy" had robbed her and forced her to have oral and anal sex. The sister stated that J.S. appeared to be in pain, explaining that J.S. sat on her side, as if it hurt to sit in a regular position. During the months after the incident, J.S., who had been an "outgoing person, a very funny person, " "just wasn't h[er]self, " but was "sad and depressed." The Metropolitan Police Department officer who responded to the sister's call described J.S. as "very distraught" and "shaking" as she described the incident.
Nichie Douglas, a sexual assault nurse examiner ("SANE nurse"), examined J.S., who informed Douglas that she had been sexually assaulted. Douglas collected oral, anal, and anorectal swabs. Douglas did not detect any injuries or any "obvious cuts or tears" on J.S.'s body, but testified that J.S. complained of pain in her rectal/anus area Douglas testified that J.S. appeared "sad and upset" and told Douglas that she "felt dirty."
The jury was read a stipulation that appellant became a suspect after a search of the FBI's DNA database revealed that the DNA profile from biological material obtained from J.S.'s rectal swabs matched the DNA profile of appellant. The jury was not allowed to learn that appellant's DNA profile was obtained in connection with an earlier sexual assault in 2000, or that, after a criminal proceeding in the Superior Court Juvenile Division, appellant (who was 17 years old at the time) had been found responsible as a juvenile for that sexual assault. However, the complainant in the 2000 sexual assault, J.W., testified as a government witness in the instant matter.
J.W. told the jury that on the evening of March 3, 2000, she was standing alone on Georgia Avenue, trying to hail a taxicab, when appellant (whom she recognized as a fellow student at Roosevelt High School) came across the street to where she was standing and began talking to her. Appellant had been standing with "a bunch of guys" across the street, but otherwise "there really wasn't anyone else outside that night, " only a few cars drove by, and the street was quiet. Appellant told J.W. that he had "always liked" her, and he offered to walk her home. When J.W. declined the offer, appellant walked further up Georgia Avenue towards an area of abandoned buildings. Very shortly thereafter, appellant returned to where J.W. was standing and told her that he had a gun and would shoot her if she screamed. J.W. saw the handle of a gun in appellant's coat pocket. Appellant told her to come with him and walked her to a back alley behind Georgia Avenue where there were two abandoned garages. There, appellant told J.W. to pull her pants down, stood behind her as she leaned on a wall, and penetrated her vagina with his penis. After that, J.W. testified, appellant made her get into an abandoned truck that was in the garage and made her perform oral sex on him. Appellant then directed J.W. to get on top of him in the truck, and he again penetrated her vagina with his penis. Afterwards, appellant "started talking to" J.W., saying that he "shouldn't have done this" and expressing concern that J.W. was "going to call the police and . . . going to tell everybody." Appellant got dressed and allowed J.W. to dress and to walk out of the alley, warning her not to scream or yell. J.W. went to the home of her boyfriend, where the boyfriend's mother called the police. The police took J.W. to a hospital, where she underwent a sexual assault exam (the collection vehicle for the DNA that produced the cold-hit match to DNA collected during J.S.'s sexual-assault examination). After the incident, J.W. felt "kind of paranoid, " "didn't want to be around people, " and broke up with her boyfriend.
Appellant did not testify, but defense counsel asserted in her opening statement that appellant had consensual, anal sex with J.S. on May 14 and took J.S.'s cell phone. Counsel told the jury that it was only after the anal-sex encounter that J.S. revealed to appellant, for the first time, that she is a biological male. Upon learning that fact, counsel asserted, appellant insulted and said hurtful things to J.S., and J.S. retaliated by falsely accusing him of rape. During the defense case, counsel called Joseph ("Demita") Armstrong, who described herself as transgendered and testified that she knew J.S. through "transgender outreach groups." Armstrong testified that in 2009, she overheard a conversation during which J.S. stated that "a guy" had "worked her" — which Armstrong understood to mean that J.S. "performed the sexual or whatever things with him, and he didn't give her the money" — and had robbed her of money and her cell phone, and for that, J.S. "got him locked up."
Upon the jury's guilty verdicts, the trial court sentenced appellant to an aggregate term of 540 months' incarceration. On appeal, the sole issue appellant raises is his claim that the trial court abused its discretion in admitting J.W.'s testimony. He argues that her testimony about a prior sexual assault "served only the impermissible purpose of showing that the appellant had a propensity to commit sex crimes[, ]" and that the evidence therefore was inadmissible under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964).
II. Applicable Law
"Although the fact that a person committed a crime on another occasion logically tends to show a disposition to commit a similar crime today, and thus perhaps to make it more likely that he committed the offense for which he is on trial, evidence of past misconduct is nevertheless inadmissible to prove his disposition to commit the similar crime, for the tendency of such evidence to prejudice the jury is thought to outweigh its probative value." Thompson, 546 A.2d at 418. While the rule is hardly universal,  it is well established in our jurisdiction that in the case of sex crimes as well as other crimes, "evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged." Drew, 331 F.2d at 89. "The propensity rule does not, of course, preclude the admission of evidence of other crimes when such evidence is relevant to issues other than the defendant's predisposition to commit the crime." Thompson, 546 A.2d at 418. "Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial." Drew, 331 F.2d at 90. These exceptions to the propensity rule "are not necessarily exhaustive." Thompson, 546 A.2d at 420 n.9.
Before a court may admit other-crimes evidence under one of the exceptions, the government must first establish (1) by "clear and convincing evidence that the defendant committed the other offense" (a burden that was met in this case since the Juvenile Court had found appellant responsible for the other crime); (2) that the other crimes evidence is "directed toward a genuine, material and contested issue in the case"; and (3) that the evidence is "logically relevant to prove this issue for a reason other than its power to demonstrate criminal propensity"; and (4) "the evidence must be more probative than prejudicial." Roper v. United States, 564 A.2d 726, 731 (D.C. 1989). "Regarding the last factor, the appropriate balancing test is whether the prejudicial impact of the evidence „substantially' outweighs its probative value." Bacchus v. United ...