Olafisoye v. US, No. 01-CM-566.

• Decision Date: 09 September 2004
• Docket Number: No. 01-CM-566.
• Citation: 857 A.2d 1078
• Parties: Leslie OLAFISOYE, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

857 A.2d 1078

Leslie OLAFISOYE, Appellant v. UNITED STATES, Appellee.

No. 01-CM-566.

District of Columbia Court of Appeals.

Submitted December 3, 2002.

Decided September 9, 2004.

William C. Claiborne, III, appointed by the court, was on the brief for appellant.

Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Roy W. McLeese, III, Catherine J. Motz, and Michael T. Truscott, Assistant United States Attorneys, were on the brief for appellee.

Before TERRY, Associate Judge, STEADMAN, Associate Judge, Retired,¹ and BELSON, Senior Judge.

TERRY, Associate Judge:

Appellant was charged with four counts of misdemeanor sexual abuse and one count of possession of marijuana. After a non-jury trial, he was found guilty on two of the four counts of misdemeanor sexual abuse and guilty on the marijuana charge. On appeal he raises several claims of error; we reject them all and affirm his convictions.

I

Appellant, the owner of a janitorial service company, had a contract to provide services at the Embassy of Botswana. While working there, he came into contact with Marie Yanick Cilaire, who had worked as an office cleaner at the embassy for the past twelve years. Ms. Cilaire testified that while she and appellant were both working at the embassy, he would sometimes touch her breasts when the two were in the elevator or the hallways. She told him to stop, but he complied only temporarily. These actions, she said, occurred sometime in late May or early June of 2000. In a separate incident in July of 2000, appellant put a vacuum cleaner hose up Ms. Cilaire's dress which touched her vaginal area. As he did so, he commented that his new vacuum cleaner was "powerful enough [to] vacuum [her] ass."

At first, Ms. Cilaire was hesitant to tell her supervisor about these incidents. However, after a threatening verbal exchange with appellant a month or so later, she finally reported his conduct to the supervisor. When the supervisor told Ms. Cilaire that she could not deal with the matter, Ms. Cilaire went to the police.

Between the time appellant initially grabbed Ms. Cilaire's breasts and the incident with the vacuum cleaner, she asked appellant to accompany her to see a loan officer about obtaining a mortgage. In explaining why she was willing to be in appellant's company even after his unwelcome touching of her breasts, Ms. Cilaire testified that appellant would apologize after each episode and that she never really took him seriously. After the vacuum cleaner incident and the heated verbal exchange, however, Ms. Cilaire felt that appellant had "transformed" and grew increasingly wary of him. She specifically stated that she "never" developed any kind of a personal relationship with appellant away from the job, and that she never told him where she lived or gave him her phone number.²

Sergeant Michael Baltzley of the United States Secret Service³ became familiar with appellant's case after he spoke with Ms. Cilaire by telephone. Ms. Cilaire later went to Secret Service headquarters, where Sergeant Baltzley conducted a formal interview. He described her as "nervous and upset" during that interview when she recounted the events at the embassy.

After a warrant was issued for appellant's arrest, Sergeant Baltzley and Secret Service Officer Stretmader pulled him over as he drove out of the embassy parking lot. Officer Stretmader placed him in the police car and took him to the Metropolitan Police Third District station for questioning, while Sergeant Baltzley drove appellant's car to the Third District station so that appellant could use it when he was released. After parking the car on the street outside the station, Sergeant Baltzley looked under the seats for weapons. He found none, but he did find a metal container under the right front seat. Baltzley opened it and found a green leafy substance that appeared to be marijuana, whereupon he called the station house and requested a crime scene technician to come outside and conduct a field test on the substance in the container. Defense counsel stipulated that marijuana was found in the car, and both the marijuana and the container were admitted into evidence without objection.

Appellant testified that he never had anything more than a working relationship with Ms. Cilaire. He acknowledged going with her to apply for a mortgage and claimed that if he could help her obtain one, she said she would "make it up to [him]." Her mortgage application, however, was eventually denied. Appellant could not specifically remember whether he touched Ms. Cilaire's breasts, but he acknowledged that "sometimes we play around.... If I touch her on the breast, it's one of those times we were having good times together." He denied ever touching Ms. Cilaire with a vacuum cleaner hose.

II

Appellant argues that he should have been granted a jury trial because of the additional penalties of deportation and having to register as a sex offender that would be imposed if he were convicted of misdemeanor sexual abuse. He maintains that the availability of these penalties changed the nature of his offense from "petty" to "serious" and therefore required a jury trial.

The Sixth Amendment to the Constitution provides for a jury trial "in all criminal prosecutions." The Supreme Court has held, however, that while federal and state courts must provide jury trials for all "serious crimes," trials for offenses that are regarded as "petty" do not require the same treatment. See Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)

. The factor that distinguishes a serious offense from a petty offense is the "maximum authorized period of incarceration." Blanton v. City of North Las Vegas, 489 U.S. 538, 541-542, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). The Court in Blanton established a presumption that crimes punishable by incarceration of six months or less⁴ were not deemed serious for jury trial purposes. Id. at 542-543, 109 S.Ct. 1289; see Day v. United States, 682 A.2d 1125, 1128 (D.C.1996). This presumption can be rebutted only by a showing that "additional statutory penalties" elevate the crime from petty to serious. Blanton, 489 U.S. at 543,

109 S.Ct. 1289.

Appellant's claim that he should have been granted a jury trial fails for two reasons. First, his assertion that he would be deported and would have to register as a sex offender is based on an incorrect reading of the applicable statutes. Second, even if appellant were subject to these penalties, the administrative or collateral consequences of conviction, unless they are considered an intrusive infringement on liberty, do not implicate one's constitutional right to a jury trial. See, e.g., United States v. Nachtigal, 507 U.S. 1, 5, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993)

(holding that a sentence which included five years of probation was not an infringement on liberty that required a jury trial under the Sixth Amendment).

A. Deportation

While appellant is correct that an alien⁵ can be deported after being convicted of a crime of domestic violence, his actions in this case do not fit the definition which makes a person deportable. See 8 U.S.C. § 1227(a)(2)(E)(i) (2000). In defining the term "crime of domestic violence," this statute requires that the criminal act be committed "by a current or former spouse of the [victim] ... [or] an individual with whom the [victim] shares a child in common ... [or] an individual who is cohabiting with or has cohabited with [the victim] as a spouse." Appellant fits into none of these categories. In his brief appellant claims that he had an "intimate" relationship with Ms. Cilaire, but that type of relationship, without more, does not make a person deportable under the statute. Moreover, any type of intimacy was denied by both appellant and Ms. Cilaire in their testimony,⁶ and there is no other evidence that they were intimate. Finally, even if appellant could be deported for his conviction, administrative deportation proceedings do not raise an otherwise petty offense to the level requiring a jury trial. See Foote v. United States, 670 A.2d 366, 372 (D.C.1996)

.⁷

B. Sex Offender Registration

Appellant also claims that his conviction of misdemeanor sexual abuse required him to register as a sex offender under D.C. Code § 22-4014 and thus elevated his crime from "petty" to "serious," thereby necessitating a jury trial. Once again appellant misreads the relevant statute. Under D.C. Code § 22-4016(b)(3) (2001), a "misdemeanor offense committed against an adult" does not require registration unless sex offender registration was part of a plea agreement. Because Ms. Cilaire was a forty-two-year-old adult, and because appellant's conviction did not involve a plea bargain of any kind, his conviction imposes no obligation on him to register. His claim of entitlement to a jury trial on this ground is thus entirely without foundation.

III

Appellant asserts that the trial court erred in rejecting his attempt to suppress the marijuana seized from his car. Defense counsel did not make a motion to suppress until the very day of trial, however, and when he sought to do so, his only stated reason for the delay was his discovery that the Supreme Court "yesterday" had granted certiorari in a case with allegedly similar facts.⁸ Because the denial did not result in a violation of appellant's rights, and because the untimeliness was not based on any permissible exception to the requirement that motions be filed before trial, the court committed no error in refusing to allow appellant to make an untimely motion. See, e.g., Brown v. United States, 289 A.2d 891, 892-893 (D.C.1972)

.

Both the D.C. Code and the Superior Court Criminal Rules require that motions to suppress be filed before trial. See D.C. Code § 23-104(a)(2) (2001); Super. Ct. Crim. R. 12, 47-I(c). The Code and Rule 12 do not prescribe a specific time for filing (each says only that a motion to...