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Tornero v. United States

Court of Appeals of Columbia District

June 22, 2017

Emero Sanchez Tornero, Appellant,
United States, Appellee.

          Argued January 21, 2016

         Appeal from the Superior Court of the District of Columbia (CF1-4009-11) (Hon. Ronna L. Beck, Trial Judge)

          Joshua Deahl, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

          John Cummings, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Sharon Donovan, and Lindsay Suttenberg, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman, Associate Judge, and Washington [*] and Reid, Senior Judges.

          Washington, Senior Judge

         On June 7, 2011, a grand jury indicted Emero Judge Washington was Chief Judge at the time of argument. His status changed to Senior Judge on March 20, 2017. Sanchez Tornero ("Appellant") on several counts related to three separate incidents of kidnapping and sexual assault occurring in May 2005, January 2006, and November 2008 involving R.G., N.R., and C.A., respectively.[1] On January 7, 2013, a jury convicted appellant on all but one count of second-degree sexual abuse related to C.A. Appellant challenges the trial court's denial of his motion to sever the trials and contends that the trial court lacked jurisdiction over the rape of C.A. Appellant also contends that the government failed to introduce sufficient evidence to sustain his convictions for the rape of R.G. and the kidnapping of C.A.

         We agree with appellant that the trial court erred in denying his motion to sever the trials. We conclude that the error was not harmless with respect to appellant's convictions in the R.G. case and reverse his convictions for the kidnapping and sexual assaults of R.G. because the evidence of appellant's guilt was insufficient. With regard to the C.A. case, we reverse appellant's convictions for the kidnapping and sexual assault of C.A. because the trial court lacked jurisdiction over those charges. Finally, although appellant should have been granted a separate trial on the charges involving N.R., the denial of his severance motion did not prejudice him with respect to those charges; we, therefore, affirm his convictions relating to N.R.

         I. Factual Background

         These consolidated cases arose out of a series of kidnappings and sexual assaults allegedly committed by appellant over a three-and-a-half-year period of time. The victim in each case was a female passenger who was sexually assaulted in the back seat of a taxi cab that operated in and around the District of Columbia. In each instance, the rear doors of the taxi cab could not be opened from the inside, thus preventing the women from escaping. The relevant facts particular to each of the assaults are recounted below.

         A. The Kidnapping and Sexual Assault of R.G.

         On May 10, 2005, a 23-year-old Latina woman, R.G., and her four-year-old daughter flagged down a white taxi with black lettering at the corner of 9th & N Streets, Northwest, in Washington, D.C. After they entered the taxi, R.G. gave her phone to the driver so that her sister could provide directions to her home in the District. While en route, R.G. noticed that the driver was going the wrong way. R.G. called her sister again for her to provide the driver with further directions. After the driver handed the phone back to her, R.G. stayed on the line with her sister.

         Suddenly, the driver pulled into a large parking lot and drove past a barrier onto a closed road. The driver tried to grab the telephone out of R.G.'s hand as R.G. repeatedly yelled her sister's name. Her sister heard the driver, who she said had an Ethiopian accent "or something like that, " yelling at R.G. and her daughter to shut up. Then the phone went dead.

         At approximately 12:00 p.m., the cab driver stopped the car and R.G. tried to open the rear door to get out. However, the doors would not open when she pulled the handles. The taxi driver, who was wearing black fingerless gloves, grabbed R.G.'s daughter around the waist and put her in the front seat of the cab. He moved into the back seat of the taxi where he forcibly removed R.G.'s pants, pulled his pants down, and put on a condom. He then forced R.G. to engage in oral sex. Later, while the driver was adjusting his condom, R.G. reached into the front of the taxi, opened the driver's side-door, and pushed her daughter out of the car. She then climbed over the front seat and escaped through the same door. She grabbed her daughter and ran to a nearby warehouse where a woman called the police for her.

         R.G. described her attacker as a black male with a light-complexion, approximately 30 years of age, with thin and light facial hair, a moustache, and a beard. She later helped police create a computer-generated composite image of her attacker.[2] At no time, either inside or outside the courtroom, did R.G. identify appellant as her attacker.

         B. The Sexual Assault of N.R.

         On January 7, 2006, a 28-year-old Latina woman, N.R., went to Langley Park Plaza in Hyattsville, Maryland, to take a taxi to work. She entered the rear of a silver car marked "taxi" and gave the driver her work address in College Park, Maryland. N.R. soon realized that the car was heading towards D.C. and not College Park. When N.R. told the driver he was going the wrong way, he simply turned up the radio. When they stopped at a red light, N.R. tried to open the rear doors and windows but could not.

         The assailant drove to an isolated warehouse in the District and parked the car. He reached into a bag, removed a sheathed dagger, pulled the dagger out of the sheath, and then pulled out a medium-sized, dark handgun with "brown tones." He then put on black fingerless gloves and moved to the back seat, pointed the gun at N.R., and told her to remove her boots and jacket, speaking with an "African or Jamaican" accent. N.R. removed all of her clothing and the assailant put on a condom.

         The assailant then tried to force N.R. to have oral sex with him but she was able to resist his efforts. He forced her to lie down and he had vaginal intercourse with her. After the assailant satisfied himself, he removed the condom and placed it in a brown bag. He then placed his hands and mouth on her breasts.

         After the assailant got back into the driver's seat and while N.R. was getting dressed, he drove N.R. to College Park, Maryland where he pulled into a laundromat parking lot. The assailant got out of the car and opened the rear door so N.R. could get out. N.R. could not find anyone to help her, so she walked to work and called her aunt, who then called the police. N.R.'s supervisor testified that she was crying and that she said that a taxi driver had raped her.

         When the police arrived N.R. described her attacker, whom she identified at trial as appellant, for a composite drawing. At trial, she described her assailant as "somewhat tall, thin . . . a beard, not much of one . . . and then on the side of his face, I don't remember which side, he had, like, something on his face." The report of the Sexual Assault Nurse Examiner ("SANE") who examined N.R. and prepared the rape kit noted that while N.R. had an abrasion at the bottom of her vaginal canal, no semen was found in or on N.R.' s body. However, appellant was identified as the sole source of male DNA recovered from nipple swabs performed on NR's breasts.

         C. The Sexual Assault of C.A.

         On November 28, 2008, C.A. and her sister went to The Park nightclub in D.C. They arrived at The Park between 10:30 p.m. and midnight and continued drinking with three men they met at the club. By around 1:00 a.m., C.A. was so visibly drunk that a security guard asked the two sisters to leave the Club. C.A. became upset, started arguing with her sister, and then left the club without her. Her sister tried calling C.A. on multiple occasions but C.A. never said more than "Hello."

         Sometime later that morning, C.A. awoke in the back seat of a taxi cab that was lined with newspapers. No one else was in the car. She testified that the door near her feet was open and that she saw a person standing there, however, shortly thereafter, she passed out again. She next remembers waking up in the same taxi as a male voice from the front driver's side of the taxi called her name. C.A. did not see the man but she heard him say that he would be back in thirty minutes and she also heard him say something about the Metro opening. After he closed the door, C.A. sat up to look for her purse. She noticed that the meter on the taxicab read $103. She could not find her purse, but she found ...

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