Augustin v. United States, No. 17-CF-906

• Decision Date: 29 October 2020
• Docket Number: No. 17-CF-906
• Parties: Jimmy R. AUGUSTIN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

240 A.3d 816

Jimmy R. AUGUSTIN, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-906

District of Columbia Court of Appeals.

Argued October 2, 2019

Decided October 29, 2020

Anna B. Scanlon for appellant.

Ann M. Carroll, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the case was argued, and Elizabeth Trosman, John P. Mannarino, and Jennifer Loeb, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman and Thompson, Associate Judges.

Glickman, Associate Judge:

Mr. Augustin appeals his convictions for misdemeanor sexual abuse of a minor (MSA-M)¹ and simple assault.² His claims of error raise questions of statutory interpretation and sufficiency of the evidence.

We vacate appellant's conviction of MSA-M and remand for the trial judge to make new findings and render a new verdict on that count. We reverse appellant's conviction for simple assault.

I.

Appellant was convicted after a bench trial in the Superior Court. He did not testify or call any witnesses in his defense. Except as indicated below, the material facts are undisputed and may be summarized as follows.

In the fall of 2016, when appellant was a thirty-three-year-old athletic trainer and teacher at a Washington, D.C., parochial high school, he became infatuated with A.G., one of the student athletes he had taught and advised. She was then in her senior year, just a few months shy of her eighteenth birthday, and she had what she called a "crush" on appellant. In mid-September, appellant began asking A.G. to visit him in his school office. She did so, almost daily. During several of these visits, appellant hugged her closely and affectionately. The MSA-M charges were based on these embraces. During a few visits appellant kissed A.G., including once on the lips. The simple assault charge was for the kissing.

A.G. testified at trial that during the approximately month-long period in September and October when they were meeting in appellant's office, he hugged her a total of approximately eight or ten times, and he kissed her about five times in all. Usually they were alone in the office, but sometimes others were present, including a student who worked there with appellant and observed some of the hugs.

Appellant's hugs initially were brief and casual in nature, but over time, A.G. said, they became "slightly longer," up to four to five seconds in duration. A.G. characterized three or four of appellant's embraces as "intense," and "intimate," and like "the kind of hugs [one] would exchange with [one's] boyfriend." Appellant held her tightly and firmly in these hugs, with his hands around her shoulders and sometimes, "momentarily," on the small of her back above her waistline. They both remained fully clothed. Their upper bodies, stomachs, hips, and lower areas were all in contact. Appellant did not rub or move his body against A.G.’s. He did not caress or fondle her, nor did he ever put his hands on her breasts or anywhere below her waist. During one hug, appellant kissed A.G. on the cheek. They both remained fully clothed. A.G. did not testify that appellant had an erection or otherwise appeared to become sexually aroused. Appellant may have told A.G. she looked pretty or complimented her on her appearance, but she did not testify that he spoke to her in any more sexually heated or provocative way during these hugs.

A.G. testified that she and appellant scheduled times when they could meet up to kiss. In early October, appellant kissed A.G. once on the lips while they were sitting in his office. As A.G. described it, "[h]e leaned in and then [she] leaned in," he kissed her, and she kissed him back. It lasted less than two seconds. A.G. felt "shocked, a little nervous, [and] a little excited" by the kiss. She did not object to it. On another occasion, A.G. recalled, appellant kissed her on her neck about an inch or two below her ear. A.G. denied that this happened during any of appellant's hugs, and she did not recount at trial the circumstances in which it occurred.

A.G. acknowledged at trial that she had a "crush" on appellant and had told him so. She said he responded that he felt the same way about her. He also told A.G. he loved her, did not expect his marriage to last, and wanted to be in a long-term relationship with A.G. after her graduation. They looked forward to her upcoming eighteenth birthday when she would be "legally old enough."

Appellant and A.G. exchanged text messages during their relationship that were flirtatious and that became more sexually explicit. In one message, appellant told A.G. it was "about time I picked you up[,] put you up against the wall[,] [g]ot right up against you[,] felt you breathing and looked you right in your eyes." A.G. responded "Yes yes yes" and the exchange of text messages continued in a provocative vein. In another communication, A.G. told appellant that she wanted to have sex with him, and he responded, "it's on!" In other messages, appellant told A.G. he "crave[d]" her and that he was going to "sex [her] like it's [his] last meal." Appellant sent A.G. a photograph of himself with his shirt off, and A.G. sent appellant a photograph in which her midriff was exposed.

Appellant's liaison with A.G. came to an abrupt end after only a few weeks. A.G. incautiously had shared screen shots of some of appellant's text messages in a group chat with her high school friends. On October 23, one of those friends, who had worked at school with appellant, inadvertently sent the screen shots to appellant's phone. Appellant called her early the next morning and denied having a relationship with A.G. because, as he told her, "she wasn't of age." Later that day, appellant's wife contacted the sender of the screen shot and another of A.G.’s friends to find out what was going on. One of them, accompanied by the student who worked in appellant's office and had observed some of the hugging there, then reported the matter to the school administration. Appellant was placed on leave and the police were called in.

Appellant was charged by information with MSA-M and simple assault.³ The trial judge convicted him of one count of MSA-M based on his "intimate and intense" hugging of A.G., and of the simple assault count based on his kissing of A.G.⁴ The judge explained her guilty verdict on these two counts as follows:

From the facts that I've heard in this case I do find that the defendant was older, that he was in a legally defined significant relationship. And that the complainant was 17 years of age. I find that between the dates of September and October of 2016, the defendant hugged the ... minor[,] A.G., in an intimate and intense way. He held her very close so that there was a touching of the breast and genitalia area. Mainly breast area, however. And he did that while also kissing her on the neck and did it for sexual gratification and possibly arousal. So, I find him guilty of count one[,] [misdemeanor sexual abuse of a minor].

....

[C]ount four refers to the assault. And that refers to the kiss. I find the kiss by a person of significant relationship, teacher, with power over the person in a closed office with no one else there during school time to be an assault in the same manner. So, I find him guilty. She has no consent. I find—and he knew she had no consent. I find him guilty of count four.

II.

A.

In the Anti-Sexual Abuse Act of 1994 (the ASAA), which is codified in Chapter 30 of Title 22 of the D.C. Code, the Council "revamped the sex offense laws of the District of Columbia."⁵ The ASAA groups sex offenses into four categories. The first category consists of several offenses involving the commission of a "sexual act" or "sexual contact" (as defined) against the victim's will or without the victim's consent (typically by means of force or threats, or by taking advantage of the victim's incapacitation or impairment).⁶ "[T]he offenses in the other ASAA categories address particular situations and relationships in which the victims are deemed incapable of giving meaningful consent, and for which coercion accordingly is presumed."⁷ One of these categories, as originally enacted, described sexual offenses against child victims, a "child" being defined as "a person who has not yet attained the age of 16 years."⁸ This category of child victim offenses is now codified in D.C. Code §§ 22-3008 – 3012.⁹

In 2007, the Council amended the ASAA. In doing so, it expanded the child victim category by adding new offenses prohibiting the sexual abuse of "minors" by persons in a "significant relationship" with them.¹⁰ The amendments defined a "minor" to mean "a person who has not yet attained the age of 18 years,"¹¹ and a "significant relationship" to encompass a minor's relationship with any "person in a position of trust with or authority over" the minor, specifically including school teachers, coaches, and other school employees.¹²

One of these new minor-victim offenses, to which consent is not a defense, is MSA-M. As set forth in D.C. Code § 22-3010.01, this offense makes it a misdemeanor for anyone 18 years of age or older and in a significant relationship with a minor to engage in "sexually suggestive conduct" with that minor.¹³ "For the purposes of this section," subsection (b) of the statute explains,

the term "sexually suggestive conduct" means engaging in any of the following acts in a way which is intended to cause or reasonably causes the sexual arousal or sexual gratification of any person:

(1) Touching a child or minor inside his or her clothing;

(2) Touching a child or minor inside or outside his or her clothing close to the genitalia, anus, breast, or buttocks;

(3) Placing one's tongue in the mouth of the child or minor; or

(4) Touching one's own genitalia or that of a third person.¹⁴

Appellant's challenge to the sufficiency of the evidence to convict him of MSA-M for hugging A.G. focuses on both the actus reus and the mens rea components of...