Grady W. HAILSTOCK, Appellant,
UNITED STATES, Appellee.
Submitted Dec. 17, 2013.
[Copyrighted Material Omitted]
James Klein, Jaclyn S. Frankfurt and Lee R. Goebes, Public Defender Service, were on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Shane Waller and Gilead I. Light, Assistant United States Attorneys, were on the brief for appellee.
Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
THOMPSON, Associate Judge.
Following a bench trial, appellant Grady Hailstock was convicted of one count of attempted misdemeanor sexual abuse (" MSA" ) and one count of assault. In this appeal, he contends that the government (1) failed to prove that he possessed the requisite mental state and (2) also failed to prove that he came dangerously close to completing the offense of MSA, and thus did not meet its burden of proof as to " attempt." In addition, he asserts that his simple assault and attempted MSA convictions merge and that one of the convictions therefore must be vacated. We affirm the judgment of the trial court but, agreeing with appellant's merger argument, remand for the trial court to vacate one of his convictions.
The government presented the only evidence at appellant's trial. Complainant C.W., who was 17 at the time of the charged offenses, testified that appellant, who was a " very close family friend" of her grandfather and who had known C.W. since she was a child, frequently came to the house where she lived to " work [ ] on something in the house."  C.W. had a " family type of relationship" with appellant and " called him [her] uncle." On April 17, 2012, C.W. was ill and stayed home from school. She was upstairs lying in her mother's bed when appellant opened the bedroom door, walked into the bedroom, and shut and locked the door. Appellant then walked towards the bed and climbed onto it. When C.W. asked him what he was doing, appellant responded that he was going to " get down." C.W. began pushing him and said " no, no." Appellant then " grabbed [C.W.'s] robe" and in the process, " kind of touched [her] breast." C.W. " tried to get off the bed." At that point, appellant " stopped ... [and] got down" and left the room, saying, " I guess I'll get back to work." C.W. was " shaking" and " nervous" and could see appellant still standing outside the room, looking through the doorway. When she left the room and walked by appellant, he " made a noise, like, ‘ ooh.’ "
When C.W. went downstairs, her brother noticed that she had been crying. He asked her what was wrong and she told
him what had happened. Thereafter, C.W.'s brother asked to speak with appellant outside. When the brother asked appellant what happened, appellant smirked and said that C.W. " wanted it." Later that day, Metropolitan Police Department Officer Cheryl Sentino responded to the report of a " disturbance" at C.W.'s residence. She encountered C.W. who was " teary-eyed, and looked like she had been crying, and upset" and who explained what had happened. As captured on a police videotape of appellant's post-arrest interrogation (and as summarized by the trial court), appellant told a detective that " his intent was to have sexual intercourse, as that term is commonly understood, with [C.W.] if she consented."
In finding appellant guilty of the charged offenses, the trial court stated that appellant's " intentions, as indicated by his actions and his later statements, were to have sexual intercourse with [C.W.]" and that he " knew or should have known that he did not have consent to take these actions." The court found that appellant's " actions ... were reasonably adapted to accomplishing the alleged misdemeanor sexual abuse, and he came dangerously close to committing the alleged misdemeanor sexual abuse[,]" and that " at the time when [appellant] attempted the sexual act named in the information [,] ... he should have known that he was proceeding without the consent of the complaining witness."  The court further found that C.W. did not in any way provoke or induce appellant's sexual advances or " suggest to him that she was interested in any kind of sexual contact with him." The court found " beyond a reasonable doubt that [appellant] attempted to commit a sexual act with [C.W.], the sexual act of his penis— contact between his penis and her vagina, when he should have known that she had no interest in that and that she wasn't consenting and it wasn't reasonable for him to think that she would consent." However, the court was " not able to find beyond a reasonable doubt" " that it was [appellant's] intention to have sexual intercourse with [C.W.] without her consent" ; that he " intended to have intercourse ... without her consent[,] that is, that he intended to force her to ...