March 8, 2017
from the Superior Court of the District of Columbia
(CF1-9213-14) (Hon. Michael Ryan, Trial Judge)
S. Harawa, Public Defender Service, with whom Samia Fam and
Jaclyn S. Frankfurt, Public Defender Service, were on the
brief, for appellant.
S. Smith, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman, Suzanne Grealy Curt, Danny Nguyen, and Rebekah
Holman, Assistant United States Attorneys, were on the brief,
Blackburne-Rigsby, Chief Judge, [*] McLeese, Associate Judge,
and Ferren, Senior Judge.
BLACKBURNE-RIGSBY, CHIEF JUDGE.
a jury trial, appellant Angel Bernal was found guilty of
sexually abusing, over the course of a year-and-a-half, E.A.,
the minor daughter of appellant's common law
wife. The government's evidence included
testimony from appellant's common law wife, Jacqueline
Alvarez, and E.A., and DNA evidence that matched semen found
on E.A.'s perianal-buttocks and external genitalia to
appellant's saliva recovered from a police buccal swab.
Appellant's sole argument on appeal is that the trial
court erred in granting the government a one-week continuance
prior to trial. The continuance gave the government enough
time to procure a second buccal swab of appellant and match
his DNA to semen recovered from E.A. after the trial court
had suppressed the first buccal swab on Fourth Amendment
grounds. We conclude that the trial court did not err, and
accordingly did not abuse its discretion, in granting the
government a one week continuance. We affirm.
was in an eight-year relationship with Ms. Alvarez and lived
in the same household as Ms. Alvarez and E.A. since E.A. was
one year old. E.A. refers to appellant as "my dad."
According to E.A., appellant sexually abused her about
"twice a week" starting in the second grade. The
abuse included both oral and vaginal
penetration. Ms. Alvarez did not know about the abuse
because it always occurred at night when Ms. Alvarez was at
work at a nearby restaurant. However, Ms. Alvarez discovered
the abuse on May 23, 2014, when she left work at around 11:00
p.m. without first texting or calling appellant, as she
normally would do. When she got home, she noticed that the
bedroom door was locked and, upon unlocking the door with a
key, Ms. Alvarez saw appellant lying with E.A. on the bed.
According to Ms. Alvarez, she saw that appellant "had
his hands spread out on E.A.'s abdomen," and that
E.A. was pulling up her pajamas. Ms. Alvarez also noticed
that appellant, who was wearing nothing but shorts, had an
erect penis as he stood up. Ms. Alvarez testified that she
was in a state of "shock" and was
morning of May 24, E.A. told Ms. Alvarez that appellant had
vaginally penetrated her the night before. In response, Ms.
Alvarez called 911. The police took E.A. to Children's
National Medical Center, where a medical examination was
conducted. The medical examination revealed semen present on
E.A.'s perianal-buttocks and external genitalia.
Police Department ("MPD") Detective Jonathan
Rosnick arrested appellant at his place of employment in the
afternoon of May 24. Appellant, who was from El Salvador and
of limited English-language proficiency, was interviewed by
Detective Rosnick at the Fourth District with the assistance
of Officer William Vega, a certified Spanish-language
interpreter. In Spanish, Officer Vega read appellant his
Miranda rights through the Spanish version of
MPD's PD-47 form. In response to question three, "Do
you wish to answer any questions?", appellant answered
that he did not want to answer questions. Nonetheless, the
police continued their interrogation. The government concedes
that the government's failure to respect appellant's
decision violated his Miranda rights. During the
subsequent interrogation, appellant confessed to sexually
appellant's confession, appellant was moved to the
Central Cellblock at MPD Headquarters; at around 6:00 p.m.,
Detective Rosnick, alone, visited appellant for a buccal swab
sample. In English and without the presence of a Spanish
interpreter and without first securing a warrant, Detective
Rosnick asked appellant for a saliva sample and ...