Argued November 1, 2012
Appeal from the Superior Court of the District of Columbia (DVM-1368-10) (Hon. José M. López, Trial Judge)
Christine A. Monta, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.
Kristina L. Ament, 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 Elizabeth Trosman and Jeffrey Cook, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Thompson, Associate Judges, and Terry, Senior Judge.
Glickman, Associate Judge:
Appellant Garibay was convicted in a bench trial of misdemeanor sexual abuse of a minor based on the testimony of the complainant and a detective who had interviewed her a week after the alleged abuse. Appellant now argues that, in finding him guilty, the trial court improperly relied on the substance of the complainant's report to the detective, as shown by the fact that the court attached significance to the detective's description at trial of the complainant's demeanor during her interview. In addition, appellant contends the court infringed his Sixth Amendment right of confrontation by precluding him from questioning the complainant about a previous allegation of sexual assault that he had a good faith basis to believe might have been false. While we are not persuaded by appellant's first argument, we remand with instructions to allow him the opportunity he seeks to conduct a limited voir dire examination of the complainant to probe the veracity of her prior allegation.
B.F., the complaining witness, testified at trial that appellant, who is her mother's uncle, sexually assaulted her when he was visiting her apartment one evening in the last week of May 2010. B.F. was twelve years old at the time. Her mother had gone to bed and B.F. was in the living room with appellant when it happened. According to B.F., as she was putting a movie in the DVD player, appellant came up behind her, put his arms around her, and slipped his hand into her pajamas and touched her vagina. B.F. tried to push him away, but he did not move. Eventually, though, he removed his hand and abruptly left the apartment. Later that week, when appellant was again at the apartment, he came up behind B.F. as she was washing dishes in the kitchen and whispered in her ear that she looked "sexy."
B.F. testified that she had been afraid to report appellant's behavior. The following week, however, she told a friend that her uncle had molested her. At her friend's urging, B.F. informed a school counselor, who called her mother, and the police were notified.
On June 3, B.F. was interviewed by Detective Darryn Robinson. At trial, Robinson briefly summarized what B.F. reported to him: that in the first incident, appellant "walked up behind her and he stuck his hands inside of her pants in the front of her pants feeling her vagina, " and in the second incident he "walk[ed] up to her whispering in her ear telling her that she looked sexy." When B.F. told him these things, the detective testified, she was "upset" and "in shock, " not crying or "showing any emotion, " but "broken down" and "defeated." B.F told Robinson she had not reported the sexual assault incident earlier because she "didn't know how to tell anybody." Robinson understood B.F. to mean she was embarrassed and scared.
During pretrial discovery in this case, appellant learned that B.F. previously had made a complaint of inappropriate sexual touching against her teenage cousin. Appellant requested the opportunity to conduct a pretrial voir dire examination of B.F. or her mother to determine whether this complaint had been investigated and ...