BARGDON v. U.S., 92-CF-648

• Decision Date: 30 November 1995
• Docket Number: No. 92-CF-648,92-CF-648
• Citation: 668 A.2d 403
• Parties: Anthony E. BRAGDON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

668 A.2d 403

Anthony E. BRAGDON, Appellant, v. UNITED STATES, Appellee.

No. 92-CF-648.

District of Columbia Court of Appeals.

Argued September 28, 1994.

Decided November 30, 1995.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, HARRIETT R. TAYLOR, J.

John D. Kirby, Washington, appointed by the court, for appellant.

Barbara A. Grewe, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese III, and Patricia Stewart, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL and KING, Associate Judges, and MACK, Senior Judge.

PER CURIAM:

A jury found appellant guilty of one count of assault with intent to rape while armed, as a lesser included offense of armed rape, and one count of possession of a firearm during a crime of violence. On appeal, appellant contends primarily that the trial court erred in (1) admitting into evidence a videotaped identification; and (2) instructing the jury on assault with intent to commit armed rape as a lesser included offense of armed rape. Rejecting the dissent's contention that appellant was entitled to "roll the dice" on the armed rape charge on the facts of this case, we affirm.

I.

With respect to the charge of rape while armed, the government presented the testimony at trial of the female complainant, C.F. She testified that one early afternoon as she was leaving school, appellant drove by in a truck and inquired if she wanted a ride. When she declined and continued to walk, appellant ordered her into the truck and threatened her with a pistol.¹ She complied. Appellant drove C.F. to his apartment and demanded that she go inside with him. C.F. said that, fearing for her life, she complied. Once inside, appellant walked toward a closet, and C.F. remained in the kitchen reading a newspaper.

C.F. further testified that after appellant told her "you might as well have a seat," she sat down in the living room, and the two began to talk. Appellant started touching her, and she told him to stop. Appellant retrieved his gun from the closet, pointed it at her, and told her to remove her pants. He then produced a condom, placed the gun on the arm of the sofa, and raped and sodomized her on a couch and the floor. C.F., pretending she was in pain, asked appellant for some ice or rubbing alcohol, and he complied. Thereafter, appellant robbed C.F. of ten dollars and drove her to a bus stop. C.F. went home and told a friend what had happened. The friend told C.F.'s mother who called the police. The police obtained a description of appellant and the truck from C.F. and took her to the hospital for a medical evaluation.

C.F. testified that appellant had vaginal and anal intercourse with her three times. She testified that she was positive appellant penetrated her each time but that appellant did not ejaculate at any time during the attack. The government also presented forensic evidence and testimony by the physician who examined C.F. at the hospital. We discuss that evidence in part III, infra, with respect to the propriety of a lesser included offense instruction.

II.

In this court, appellant challenges the admission of the victim's videotaped identification of him as her assailant. Appellant argues that because identification and consent were not issues in the case, the videotape had no probative value. Nevertheless, the determination of the relevance of proffered evidence along with the weighing of the probative and prejudicial nature of the evidence is within the sound discretion of the trial judge. Street v. United States, 602 A.2d 141, 143-44 (D.C. 1992). This court will only disturb the ruling upon a showing of the trial court's abuse of discretion. Id. at 144. In this case, the victim's emotional reaction upon identifying appellant is particularly relevant to appellant's defense of fabrication. In addition, the videotape falls below the level at which evidence is excluded as overly prejudicial or likely to sway improperly the jury's deliberations. See, e.g., Jones v. United States, 625 A.2d 281, 288 (D.C. 1993) (holding government counsel's repeated mentioning of appellant's homosexuality throughout the trial warranted a reversal due to the high risk of prejudicial impact on the jury and the pervasive nature of the statements and inquiries); Pounds v. United States, 529 A.2d 791, 794 (D.C. 1987) (allowing evidence of father's prior sexual relations with daughter to be admitted due to its probative value). We hold there was no abuse of discretion by thetrial judge in permitting the introduction of the videotape.²

III.

Appellant also challenges his conviction on the ground that the trial court erred in instructing the jury, over defense objection, on armed assault with intent to rape as a lesser-included offense of armed rape. He argues that the evidence presented, if believed, proved the armed rape offense to the exclusion of the lesser offense; thus, he was entitled to "take his chances on an all-or-nothing verdict," and the trial court improperly laid the foundation for an "irrational compromise verdict" by giving the lesser-included offense instruction to the jury. See Lightfoot v. United States, 378 A.2d 670, 673 (D.C. 1977); see also Price v. United States, 602 A.2d 641, 644 (D.C. 1992); Ballard v. United States, 430 A.2d 483, 487 (D.C. 1981). We reject that analysis of the evidence.

Before a judge may give a lesser-included offense instruction, two requirements must be met: "(1) the lesser offense must consist of some, but not every element of the greater offense; and (2) the evidence must be sufficient to support the lesser charge." Price, supra, 602 A.2d at 644. It is well settled in this jurisdiction that assault with intent to rape is a lesser-included offense of rape.³ The sole issue, therefore, is whether the jury could have rationally acquitted Bragdon of the armed rape charge, and then in turn found him guilty of the lesser offense of armed assault with intent to commit rape. Glymph v. United States, 490 A.2d 1157, 1160 (D.C. 1985); Lightfoot, supra, 378 A.2d at 673; Ballard, supra, 430 A.2d at 487. Resolution of that issue turns on an assessment of the evidence presented regarding penetration.

Appellant contends that the jury could only find him guilty of the lesser-included offense while entertaining reasonable doubt on the greater offense by a "bizarre reconstruction of the evidence." Walker v. United States, 617 A.2d 525, 528 (D.C. 1992) (citation and internal quotation omitted). It cannot be doubted that the testimony of the complaining witness, if believed, could only support a conclusion that penetration occurred. If no other evidence had been presented on this point, then appellant would be correct. The testimony of the examining doctor and some forensic evidence, however, provide the requisite basis for giving the lesser-included offense instruction.

The doctor who examined the complaining witness testified that she (the doctor) found no cuts, bruises or lacerations on the victim, or any signs in the genital area of forced sexual intercourse. Those observations, however, as the doctor acknowledged, were not conclusive on the question of either force or penetration because of the age and the recent birth experience of the victim. The doctor was then questioned, at considerable length, about a medical form she had completed at the time she initially examined the victim. On that form the doctor had checked a box reflecting that there had been no vaginal penetration. The doctor testified:

It could have been either way. She could have or she could not have [been penetrated]. The findings here were not conclusive. . . . [1] couldn't tell [one way or the other].

The contents of this form were admitted, at the government's insistence, for impeachment purposes only, and the jury was instructed to that effect. But while the information therefore could not be considered as substantive evidence, Brewer v. United States, 609 A.2d 1140, 1141 (D.C. 1992), cert. denied, 506 U.S. 1068, 113 S.Ct. 1019, 122 L.Ed.2d 166 (1993); Gordon v. United States, 466 A.2d 1226, 1231 (D.C. 1983), it assuredlycould be considered as weakening the corroborative force, such as it was, of the doctor's testimony that the victim could have been penetrated.

Moreover, during cross-examination, defense counsel made inquiry about the doctor's expectation of whether, under the particular circumstances of the victim's menstruation, blood should have been found on the floor where the offense is alleged to have occurred had there been penetration. The following exchange occurred:

Q. Now, [if there had been penetration] wouldn't it be likely that there would be some kind of seepage [of blood] onto the floor?

A. I would say so . . .

Q. So then, under those circumstances, you would expect to find blood on the floor?

A. I could, yes . . .

The forensic evidence on this point was unequivocal: there was no blood found on the floor. Thus a jury could fairly conclude that the absence of blood meant that there had been no penetration.

In weighing the evidence, the jury was free to credit some portions of the victim's testimony while discrediting others. See Whitaker v. United States, 616 A.2d 843, 854 (D.C. 1992) (jury could doubt complainant's testimony regarding the knife, but accept her testimony about the attack); Ballard, supra, 430 A.2d at 487 (jury could conclude that the defendant had intercourse with the victim but not necessarily in the manner in which she described it). Although the victim testified both that the sexual relations had been forcible and that she had been penetrated, the jury could disbelieve the latter portion of her testimony on the basis of the examining doctor's testimony and the forensic evidence supporting a reasonable doubt as to whether there had been penetration.⁴ We acknowledged that same reasonable possibility in Greene v. United States, 571 A.2d 218 (D....