Ballard v. United States, 79-917.
| Decision Date | 17 March 1981 |
| Docket Number | No. 79-917.,79-917. |
| Citation | 430 A.2d 483 |
| Parties | Calvin M. BALLARD, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Stephen H. Glickman, Public Defender Service, Washington, D.C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D.C., was on the brief, for appellant.
Regina C. McGranery, Asst. U. S. Atty. Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Carol E. Bruce, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.
Before KELLY, KERN, and PRYOR, Associate Judges.
Appellant was charged in a three-count indictment with rape, D.C.Code 1973, § 22-2801, carnal knowledge, D.C.Code 1973, § 22-2801, and taking indecent liberties with a minor child, D.C.Code 1973, § 22-3501(a). Having been convicted of carnal knowledge, appellant seeks reversal on two grounds. We are thus confronted with the following issues: (1) whether carnal knowledge is a lesser included offense of rape, and (2) whether the trial court committed reversible error when it instructed the jury on carnal knowledge after informing counsel prior to closing argument that it would not do so. For reasons set forth below, we conclude that carnal knowledge is not a lesser included offense of rape and that any error committed by the trial court was harmless. Therefore, we affirm.
At trial, the 14-year-old complainant testified that she encountered appellant while she and some friends were walking outside of her school during lunch hour. Appellant was operating a van. When he waved, she approached the vehicle because she knew him — the common law husband of her cousin, Evangeline — and had cared for the couple's young daughter on occasion. Appellant indicated that Evangeline was ill and had to be taken to a hospital; he asked the complainant if she could babysit for them. She agreed, told her friends, and got into the van. She waited in the vehicle while appellant delivered some boxes to several banks. Eventually they proceeded to appellant's apartment. Once inside, appellant suggested that the complainant watch television while he used the telephone. It soon became apparent that neither her cousin Evangeline, nor the baby were at home. When the complainant asked appellant to take her back to school, he told her that he wanted some "sugar." She testified that she was thrown on the bed, struck in the face, and raped. When the incident was concluded, the complainant was warned to say nothing of the matter and allowed to leave. She went to a girl friend's house and then home. Although the complainant was initially reluctant to tell anyone what had happened because of the threats made by appellant, she related the incident to both a friend and her sister later that day. After this disclosure, the complainant was taken immediately to the hospital where police officers were summoned.
The examining physician, Dr. John Ellicott, testified that he found an abrasion indicative of forcible intercourse, while a pathologist, Dr. Athens, testified that he found intact sperm in the complainant's vagina. Mr. Richard Reem, a Special Agent of the Federal Bureau of Investigation, also testified to the presence of seminal fluid on complainant's pants.
Appellant presented an alibi defense, thus denying having ever engaged in intercourse with the complaining witness.
At the close of all the evidence, defense counsel requested the court to withdraw the counts charging appellant with carnal knowledge and indecent liberties from the jury's consideration on the ground that they were lesser included offenses of rape and could only invite an irrational compromise by the jury. After considerable argument by counsel, the court ruled that it would submit neither the carnal knowledge nor indecent liberties counts to the jury. Accordingly, both government and defense counsel argued, in the main, the circumstances surrounding forcible intercourse to the jury.
Before final instructions were given to the jury, government counsel renewed the question of the appropriate charges to be considered. Pointing out that different elements of proof must be established in a rape case as compared to carnal knowledge, the court was requested to instruct the jury, in the alternative, as to rape and carnal knowledge. Over the objection of the defense, this course was followed.* A verdict was returned acquitting appellant of rape, but finding him guilty of carnal knowledge.
In support of his argument that carnal knowledge is a lesser included offense of rape, appellant relies heavily upon Lightfoot v. United States, D.C.App., 378 A.2d 670, 673-74 (1977), in which this court ruled that
`A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.' . . . [A] judge should not submit to the jury a lesser included offense over the objection of either the prosecution or the defense where the requisite disputed factual element is lacking. . . . `[A] defendant has the right to have a lesser-included offense, although charged as a separate count in the indictment, withheld from the jury's consideration when the jury rationally cannot return a verdict of not guilty of the greater offense but guilty of the lesser offense.' [Citations omitted.]
Appellant contends that the trial court erred in submitting the carnal knowledge instruction to the jury since his defense was alibi and no challenge was made to the age of the complainant or to the evidence that someone may have had relations with her. He concludes from this that he had the right to have the carnal knowledge charge withheld from the jury's consideration since, on the evidence presented, it would have been irrational to acquit him of rape and find him guilty of carnal knowledge.
In this instance, we hold at the outset that the offense of carnal knowledge is not a lesser included offense of rape. See United States v. Jacobs, 113 F.Supp. 203, 206 (E.D.Wis.), appeal dismissed, 346 U.S. 892, 74 S.Ct. 228, 98 L.Ed. 394 (1953) (). D.C.Code 1973, § 22-2801 provides:
Whoever has carnal knowledge of a female forcibly and against her will or whoever carnally knows and abuses a female child under sixteen years of age, shall be imprisoned for a term of years or for life.
Thus the elements necessary to establish what has traditionally been known as the offense of common law rape are (1) sexual intercourse with a female, (2) committed forcibly and against her will, while the elements required to establish the offense of carnal knowledge or statutory rape are (1) sexual intercourse with a female child, (2) under the age of sixteen regardless of whether force was used or assent given. In either case corroboration is necessary where the complainant is found to be an "immature female." Arnold v. United States, D.C.App., 358 A.2d 335 (1976) (en banc). Although the proscription against rape and carnal knowledge are contained in the same statute, which generally protects against illicit sexual behavior, they are intended to serve different purposes. The prohibition against common law rape is to protect females capable of giving consent (i.e., sixteen years old and above) from forcible sexual intercourse, cf. Commonwealth v. Goldenberg, 338 Mass. 377, 384, 155 N.E.2d 187, 191-92, cert. denied, 359 U.S. 1001, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959) (), while the statutory proscription against carnal knowledge is intended to protect females below the age of sixteen, regardless of the use of force or consent, from any sexual relationship. In re W.E.P., D.C.App., 318 A.2d 286, 290 (1974). As a result of the different statutory purposes served by § 22-2801 carnal knowledge cannot be viewed as a lesser included offense of rape. See United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971) () (emphasis added).
We disagree with appellant that, based on the evidence presented, the jury could not have rationally found him guilty of carnal knowledge while exonerating him of rape. This court's ruling in Lightfoot v. United States, supra at 673-74, as to when it is appropriate to give an instruction on a lesser included offense sought to prevent the possibility of a jury rendering a compromise or "merciful verdict" when, based on the evidence, it would be irrational to do so. In Lightfoot, appellant was indicted for armed robbery and robbery. Both counts were submitted to the jury, but it was instructed to consider the latter charge only if appellant was found not guilty of armed robbery. Confronted with the issue of whether appellant had the right to have the robbery offense withheld from the jury because it was a lesser included offense of armed robbery, the court stated that "[r]esolution of that question turns on whether the evidence was such that the jury could rationally find appellant guilty of the lesser offense but innocent of the greater; [i. e.,] . . . whether there was a reasonable basis on which the jury could find appellant guilty of the robberies yet entertain a reasonable doubt as to whether the robbers were armed." Id. at 673. The only additional element distinguishing robbery from armed robbery is proof that a weapon was involved. Since it was fairly inferable from the evidence that the robbers were in fact armed (appellant's defense was totally...
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