Boyd v. United States, 82-1625.

• Decision Date: 15 February 1984
• Docket Number: No. 82-1625.,82-1625.
• Citation: 473 A.2d 828
• Parties: Anthony D. BOYD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 828

473 A.2d 828

Anthony D. BOYD, Appellant, v. UNITED STATES, Appellee.

No. 82-1625.

District of Columbia Court of Appeals.

Argued January 5, 1984.

Decided February 15, 1984.

Randolph N. Stone, Public Defender Service, Washington, D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., at the time the brief was filed, James Klein, Public Defender Service, Holly R. Skolnick, Public Defender Service, Washington, D.C., at the time the brief was filed, and Johannes Williams, Public Defender Service, Washington, D.C., were on the briefs, for appellant. Judith Mroczka, Public Defender Service, Washington, D.C., also entered an appearance for appellant.

Regina C. McGranery, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEBEKER, PRYOR and BELSON, Associate Judges.

PRYOR, Associate Judge:

Appellant Anthony D. Boyd was convicted by a jury of armed robbery, D.C.Code §§ 22-2901, -3202 (1981); kidnapping while armed, id. §§ 22-2101, -3202, and armed rape, id. §§ 22-2801, -3202. His principal contentions on appeal are that there was insufficient evidence to support either the rape or "while armed" convictions, and that the prosecutor improperly commented to the jury about his refusal to take the stand in his own defense. We find appellant's arguments unpersuasive and therefore affirm his convictions.

I

The government based its case primarily on the testimony of the complaining witness. She testified that on a winter night she was at home watching television with her mother and two sisters. At about 10:00 p.m., she left the house to shop at a nearby convenience store. She purchased several items, including cookies and Kool cigarettes, and began walking back towards her home. As she approached the house, she observed two men dart across the street and stop under a street light directly in front of her house. The area was well lighted. One man appeared to be tying his shoelace. Complainant did not know the men by name, but she had seen them previously in her neighborhood.

Complainant walked by the men, on the way to her house, but one of them (later identified as appellant) grabbed her, put a knife to her throat, and asked for money. The other man took money from her pocket, and her small bag of groceries. While still holding the knife to her throat, appellant and his companion forced complainant to walk over to an adjacent house and sit on the front steps for twenty or twenty-five minutes.¹ Throughout this time, appellant held the knife to her throat and warned that he would stab and kill her if she screamed. Although complainant was near her own home, she did not cry out.

After some time, appellant required complainant to stand and forced her, at knife-point, to walk into a darkened alleyway in the vicinity. They walked very slowly in the alley for an extended period of time. Complainant stared "straight ahead" during this time, but at one point tried to move away. Appellant put the knife closer to her throat and once again threatened her. They stopped at a "dark corner" in a yard near the alley.

Still with the knife to her throat, complainant was ordered to remove her coat, which was placed on the ground. Appellant then told her to remove her clothing below the waist, and she complied. According to complainant's testimony, appellant then removed his own coat and pants and, still holding the knife, had intercourse with her for about fifteen minutes. He held the knife even when, at his companion's request, appellant reached behind and tossed a pack of cigarettes to his friend, who sat eating cookies nearby. Complainant closed her eyes and prayed during most of this time.

Later appellant ordered complainant to put her clothes on. Although the witness did as she was told, appellant punched her in the face and kicked her several times in the chest when she attempted to stand. After the men departed, complainant went to a nearby house and reported that she had been raped.² Police officers later discovered an abandoned pack of Kools at the scene; a fingerprint lifted from the pack matched appellant's fingerprint.

Approximately one month after the incident, complainant saw appellant at a neighborhood store. Appellant looked at her but continued shopping. Recognizing her assailant, complainant called police, who arrested appellant after complainant identified him.³

Appellant did not testify at his trial. The defense theory of the case was that although appellant did encounter the complainant on the night in question, no sexual intercourse occurred between them. In his opening statement, counsel proffered that complainant was acquainted with appellant and had voluntarily accompanied him into the alley in order to smoke marijuana. It was stated that a quarrel had erupted in the alley and that complainant had later levied unfounded charges of rape.

II.

Appellant first contends that there was insufficient evidence to convict him of rape, or alternatively, that there was insufficient evidence to sustain the "while armed" counts of the indictment. We cannot agree.

A.

At the core of appellant's argument is complainant's admission that, throughout the entire incident, she never saw the knife allegedly held to her throat. No knife was introduced at trial, and complainant was unable to describe it to the jury. There were no scratches or marks on complainant's neck when she was examined shortly after the incident. Complainant never expressly stated during trial that she "felt" a knife pressed to her throat. Given these circumstances, appellant contends that complainant's fear — her reason for yielding to her assailant's advances — stemmed solely from her assumption that the man had a knife. Since complainant's testimony did not reveal a rational basis for her assumption (i.e., she did not see or feel a knife), it is urged that the government failed to prove beyond a reasonable doubt that complainant "had at [the time of sexual intercourse] a reasonable belief induced by threats that [she] faced death or serious bodily harm." Arnold v. United States, 358 A.2d 335, 340 (D.C.App.1976) (en banc).

Appellant's argument fails because it presumes that complainant's fear during her assault was unreasonable simply because she did not see a knife, or testify expressly that she "felt" one pressed to her throat. This ignores common experience. In order to prove lack of consent, the government need not establish that the victim submitted to sexual intercourse solely because the accused had a weapon. It is enough that the victim's resistance was overcome through the use of physical force and threats, such that she reasonably believed that she would be harmed if she did not submit. Smith v United. States, 363 A.2d 667, 669 (D.C.App. 1976). In this case, the victim testified that appellant grabbed her around the neck from behind, held what she thought was a knife to her throat, and threatened to kill her if she did not accompany him. Viewing this testimony in its most favorable light, we think that complainant was justified in reasonably believing that she would suffer serious injury or death if she resisted.

Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1960), is not to the contrary. In that case, the complainant testified that a stranger accosted her on the street and forced her into his apartment by pressing a knife against her and threatening to kill her. The area was well lighted, but' complainant never saw a knife. Id. at 205, 275 F.2d at 869. In appellant's apartment, complainant had sexual intercourse with him, "[b]ut she did not testify that her taking part in intercourse was induced by . . . threats, or by words of any sort." Id. at 204, 275 F.2d at 868. The complainant in that case did not see the knife allegedly held to her neck during the intercourse, even though she did not close her eyes, looked directly at her attacker, and there was adequate light. Id. at 205, 275 F.2d at 869. The majority concluded that

It is nearly or quite incredible that appellant could have used a knife as extensively as the girl said he did without her ever seeing it. It is so nearly incredible that a reasonable inference, if not the only reasonable inference, from the testimony of the girl herself, is that appellant did not use a knife. And there is no evidence that her participation in intercourse was induced by any other kind of force or threat.

Id. (emphasis in original). The court reversed appellant's rape conviction concluding that the complainant's testimony lacked the inherent credibility necessary to sustain a conviction. See Konvalinka v. United States, 162, A.2d 778, 782 (D.C.Mun.App. 1960), aff'd, 109 U.S.App.D.C. 307, 308, 287 F.2d 346, 347 (1961); Johnson v. United States, 138 U.S.App.D.C. 174, 177, 426 F.2d 651, 654 (1970), cert. dismissed as improvidently granted, 401 U.S. 846, 91 S.Ct. 1258, 28 L.Ed.2d 523 (1971); see also United States v. Green, 139 U.S.App.D.C. 75, 79 n. 12, 429 F.2d 754, 758 n. 12 (1970).

Comparing Farrar to the present case, appellant argues that "[i]t is wholly implausible that during [the incident], the knife was held in such a position [that complainant] could not get a glimpse of it." We disagree. In the case at bar, complainant was with appellant in a well-lighted area for a relatively short period of time. After her money and groceries were taken, complainant was taken to the front steps of an abandoned house, and then into a darkened yard, where she was assaulted. She testified that she looked "straight ahead," and that appellant held her from behind. She closed her eyes during much of the rape. This testimony was sufficiently credible for the jury to find beyond a reasonable doubt that she did not consent freely to appellant's advances.

B.

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