Argued: October 21, 2014.
Appeal from the Superior Court of the District of Columbia. (CF1-23783-11). (Hon. William M. Jackson, Trial Judge).
Joshua Deahl, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant.
Margaret E. Barr, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Sharon Marcus-Kurn, and Mervin Bourne, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER, THOMPSON, and EASTERLY, Associate Judges.
Fisher, Associate Judge.
After a jury trial, appellant Darweshi McRoy was convicted of thirteen counts of first-degree and second-degree child sexual abuse with aggravating circumstances. On appeal, he argues that the trial court should not have allowed the government to " impeach" one of its own witnesses with a videotaped statement. In addition, he contends that the court should have granted a mistrial when a witness revealed that appellant had spent time in jail, and that the evidence was insufficient to support one of his convictions. For the following reasons, we affirm in part and reverse in part.
I. Factual and Procedural Background
A. Initial Allegations
From 2004 until 2010, appellant lived in a series of houses in the District of Columbia with A.J. and her ten children. During that time, appellant stayed at home to take care of the children while their mother worked. Appellant is the biological father of six of the children and stepfather to the remaining four.
In 2008, twelve-year-old D.J., one of appellant's stepdaughters, wrote in her diary that appellant had made her " hump him" in 2005 when she was nine. She later retracted that allegation in a signed statement to the police. Then, in May 2010, D.J. and M.J., another one of appellant's stepdaughters, told their mother that appellant had been touching them. She called the police, who told her to take the girls to the Bundy Child Advocacy Center (the " CAC" ). Forensic interviewers at the CAC conducted separate, videotaped interviews of both girls on May 25, 2010. In part of her interview, D.J. described the first instance of abuse in 2005, where appellant forced her to sit on his lap and moved back and forth against her.
In her grand jury testimony on October 26, 2011, D.J. stated that what she said in her CAC interview was true. However, it does not appear from the record that the tape of that interview was played for the
grand jury, or that it had been played for D.J. before she was asked to affirm the truth of statements she made seventeen months earlier.
On April 24, 2012, appellant was indicted on nine counts of first-degree child sexual abuse and eight counts of second-degree child sexual abuse. The indictment alleged that between July 2004 and May 2010, appellant sexually abused D.J., M.J., and two of their friends on numerous occasions. Each count identified a single victim and alleged a specific time period and type of sexual act. For example, count two alleged that appellant touched M.J.'s breast sometime between 2005 and 2007.
B. Evidence at Trial
D.J., who was fifteen at the time of trial, was very reluctant to testify. She did not appear after being subpoenaed by the government, and marshals eventually brought her to the courthouse. After some introductory questions, the prosecutor asked D.J. about the first time appellant abused her. In response, she shook her head and said more than once that she did not want to talk about it, explaining that she did not " want to keep bringing it back up."
The government then asked D.J. if she had been interviewed at the CAC. D.J. responded that she had spoken to a lady at the CAC in 2010 and told the lady the truth. The government introduced the video of that interview over appellant's objection, and played the portion in which D.J. described the 2005 abuse. After viewing and listening to the recording, D.J. reaffirmed that everything she said in it was true. She did not give any further testimony about the first time appellant abused her, but did answer questions relating to at least four later instances of abuse. On cross-examination, she answered all the questions appellant's counsel asked her.
M.J., who was seventeen at the time of trial, testified that appellant abused her on numerous occasions between 2005 and 2010. Among other things, she said that appellant had rubbed her breast on numerous occasions starting in 2009, after the family moved to a residence on Shepherd Street.
The mother of D.J. and M.J. also testified. On direct examination, the government asked her a series of questions about periods of time when she was separated from appellant and had children with other men. She testified that she had four children when she was separated from appellant, and that she and appellant had " started getting back involved with each other when he was released from jail in 2000." That testimony prompted a motion for a mistrial, which was denied.
The jury convicted appellant of seven counts of first-degree and six counts of second-degree child sexual abuse. Two of the original counts were dismissed at the government's request, and the jury deadlocked on the two remaining counts.
II. D.J.'s CAC Interview
Appellant first contends that it was error to admit D.J.'s videotaped interview at the CAC. We review the trial court's evidentiary rulings for abuse of discretion. Diggs v. United States, 28 A.3d 585, 594 n.11 (D.C. 2011).
A. Admissibility of the Video
The portion of D.J.'s CAC interview which described the abuse charged in count nine was admitted as substantive evidence at trial. The government defends this ruling by relying primarily on D.C. Code § 14-102 (b)(1), which provides that a statement is not hearsay if (1) the declarant testifies at trial and is subject to cross-examination concerning the statement, (2) the statement is inconsistent with
the declarant's testimony, and (3) the statement was made under oath. Such a prior statement is substantive evidence. D.C. Code § 14-102 (b) (2001). As we understand the record, however, the trial court initially admitted the video only to impeach D.J.'s credibility and show her demeanor at the CAC. It later allowed the tape to be treated as substantive evidence because, after the video was played in court, D.J. stated under oath that what she said there was true. See Williams v. United States, 859 A.2d 130, 138 (D.C. 2004) (videotape of CAC interview properly treated as substantive evidence because witness adopted those portions of the CAC video used to impeach her).
We put aside the precise basis for treating the videotaped statement as substantive evidence because both the statute and the common law rule require, as a preliminary matter, that the statement be inconsistent with the witness's testimony at trial. See Perritt v. United States, 640 A.2d 702, 706 (D.C. 1994) (noting common-law requirement that a prior statement be inconsistent with trial testimony before it can be used for impeachment). We ultimately conclude that the government did not satisfy this threshold requirement.
1. Refusal and Inconsistency
The parties vigorously contest whether D.J.'s trial testimony was inconsistent with her statements in the video. The government contends that D.J. refused to testify and that her refusal was inconsistent with the statements in her CAC interview. Appellant contends that because D.J. did not give any trial testimony related to the first time she was abused, there was no testimony for her prior statement to be inconsistent with. If anything, he argues, D.J.'s testimony was consistent with her CAC interview. Before the video was played to the jury, D.J. affirmed the truth of her statements at the CAC and testified, without giving specific details, that appellant had touched her body. It is, of course, well-settled that " [p]rior consistent ...