Brown v. US, No. 99-CF-1544 to 99-CF-1546.

• Decision Date: 08 January 2004
• Docket Number: No. 99-CF-1544 to 99-CF-1546.
• Citation: 840 A.2d 82
• Parties: Larry D. BROWN, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

840 A.2d 82

Larry D. BROWN, Appellant v. UNITED STATES, Appellee.

Nos. 99-CF--CF-1546.

District of Columbia Court of Appeals.

Argued October 14, 2003.

Decided January 8, 2004.

Matthew C. Leefer, Boonsboro, MD, appointed by the court, for appellant.

Rozella A. Oliver, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Barbara J. Valliere, and Julieanne Himelstein, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and REID, Associate Judges, and NEWMAN, Senior Judge.

TERRY, Associate Judge:

After a jury trial, appellant was convicted of six counts of first-degree child sexual abuse,¹ one count of escape from a halfway house while on pretrial release,² and one count of failure to appear in court when required, a violation of the Bail Reform Act ("BRA").³ There were three complainants in the sexual abuse counts; two were appellant's stepdaughters, and one was his wife's niece. Before this court, appellant contends (1) that the trial court erred in admitting the complainants' statements to police officers and medical personnel that identified him as their assailant; (2) that the court abused its discretion by limiting the cross-examination of one of the victims (the niece) about her prior sexual activity and about her knowledge of sexual assault accusations made by another witness (the victims' twelve-year-old cousin) against a third party; (3) that the court abused its discretion by admitting testimony that appellant beat one of the complainants and testimony about a medical examination of one of the stepdaughters; and (4) that the court abused its discretion by denying appellant's request for a special jury instruction on the testimony of a child witness.⁴ We reject each of these contentions and affirm all of the convictions.

I.

D.T.⁵ has three daughters, Sh. T., S.T., and E.T. Sometime in the late 1980s D.T. married appellant, and she, the children, and appellant lived together as a family from that point on, with the children calling appellant "Daddy." In September 1993 appellant began having sexual intercourse with twelve-year-old S.T. The following year, appellant began having sexual intercourse with E.T.; she was then ten years old.⁶

After these initial encounters, sex between appellant and his two youngest stepdaughters occurred regularly. Usually, appellant would call S.T. or E.T. (but never both at the same time) into their mother's bedroom and demand sex, saying, "You know what I want from you." Appellant also had sex with his stepdaughters in the basement, the kitchen, and the living room. Neither S.T. nor E.T. reported these incidents to anyone — even to each other — out of fear. Appellant told S.T. that he would kill her "and throw [her] dead body in the trash can" if she said anything to anyone. E.T. testified that appellant would say, "If you tell anyone, I am going to kill you." S.T. particularly heeded appellant's threats because she knew that he kept a gun under his mattress.⁷ The last time appellant had sex with S.T. was in August of 1996, and with E.T. on September 12, 1996.

On September 13, 1996, appellant asked his three stepdaughters to clean the basement when they came home from school. During the conversation, and apparently in defiance of the request to clean the basement, S.T. walked away. Appellant chased her and slapped her, causing her face to bruise. Later that same day, S.T. went to the police and reported that appellant "had beaten her and had been having sex with her." After receiving this complaint, the police retrieved E.T. from her school and brought both girls to Children's Hospital for a physical examination.

D.T.'s mother, R.T., raised C.G. after adopting her when she was several months old from another family member. C.G. referred to R.T. as her mother⁸ and to appellant, her aunt's husband, as "Tim" or "Timmy." When C.G. was six years old and in the first grade,⁹ R.T. would regularly drop her off at appellant's house very early in the morning before going to work. Later in the morning,¹⁰ C.G. would walk to school or be taken to school by appellant. Shortly after C.G. began to be dropped off at D.T.'s house, appellant started to have sexual intercourse with her. Appellant told C.G. that this activity was their secret and that she should not tell anyone about it, so C.G. refrained from reporting these incidents to any adult for fear that she would get herself in trouble.¹¹ She did, however, relate her encounters with appellant to her cousin W.T.,¹² who had previously told C.G. that appellant was also having sex with her. Later, after appellant was arrested, C.G. finally informed R.T. about the abuse, and R.T. took her to the police on September 22, 1996. C.G. was then taken to Children's Hospital for a physical examination.

Dr. Beverly Lindsay, a board-certified pediatrician at Children's Hospital, specializes in dealing with children who make allegations of sexual or physical abuse. After reviewing the medical records of both C.G. and E.T., Dr. Lindsay testified that in her expert opinion C.G. had been sexually abused on numerous occasions. In forming this opinion, the doctor relied specifically on several facts: that C.G.'s vaginal area was irritated and inflamed in a manner consistent with injury; that her hymen was perforated and irregular; that she tested positive for chlamydia; and that she disclosed to medical personnel that she had been molested. As to E.T., Dr. Lindsay testified that E.T.'s vaginal examination was positive for the presence of semen, and that E.T. had an irregular hymen and a rectal tear. Given these facts, Dr. Lindsay said she "would be concerned that [E.T.] was sexually abused by someone, that something was introduced into her vagina."

Agent Richard Guerrieri of the FBI Laboratory testified as an expert in the field of forensic DNA analysis. Agent Guerrieri examined the vaginal swabs and the semen samples taken from E.T.'s panties when she visited Children's Hospital. After analyzing the DNA in those samples, he concluded that appellant was "a potential source of what was found in the semen from the underwear," while ruling out approximately 99.66% of the applicable population as a potential source.

Testifying in his own defense, appellant denied having sex with any of the three girls. He stated that he and his stepdaughters had "a good family life" and that the members of the family always got along together. He admitted, however, that he had an argument with S.T. on September 13 (the day she went to the police) about the cleanliness of the basement. He said that S.T. was disrespectful of him, so he spanked her with his belt.

Appellant also testified that he had an affair with T.T., his wife's sister, during the summer of 1996.¹³ He speculated that his stepdaughters and niece concocted the sexual abuse allegations at his wife's instigation when she learned of the affair with T.T. from her brother. Appellant said that he first heard of the allegations against him when he called his cousin, Officer John Savory of the Metropolitan Police.¹⁴

Stephanie Toney, a former co-worker of S.T. during the summer of 1996, testified that on one occasion during that summer S.T. tried to persuade her to lie to authorities by saying that appellant had molested her. S.T. stated to Toney that "they probably won't believe me [if I report the sexual abuse]." Tiffany Reaves, appellant's nephew's girl friend, testified that during the summer of 1996, she saw C.G. having sex with a boy nicknamed "Juicy" at her house (i.e., R.T.'s house) in Southeast Washington. In rebuttal, R.T. testified that at the time Reaves said she saw Juicy having sex with C.G., C.G. was not living at her house. Her testimony was meant to suggest that Reaves must have seen some other girl having sex with Juicy.

II

Appellant contends that the victims' various statements to police officers and medical personnel that were admitted at trial under exceptions to the hearsay rule were not properly admissible as substantive evidence without limitation. We hold that all of the challenged statements were admissible under either the prior identification exception or the medical diagnosis exception to the hearsay rule.

Evidentiary rulings by a trial court are reviewed for abuse of discretion and will be reversed only if the court's exercise of discretion is clearly erroneous. E.g., Pickett v. United States, 822 A.2d 404, 405 (D.C.2003)

; Malloy v. United States, 797 A.2d 687, 690 (D.C.2002). Determining whether a statement falls within an exception to the hearsay rule, on the other hand, presents a question of law which this court considers de novo. See Doret v. United States, 765 A.2d 47, 62 (D.C.2000),

cert. denied, 532 U.S. 1030, 121 S.Ct. 1980, 149 L.Ed.2d 772 (2001). In this case defense counsel failed to object when E.T.'s statements to medical personnel were admitted into evidence, and also failed to request a limiting instruction about the statements made to medical personnel by both E.T. and C.G. We therefore review the trial court's rulings only for plain error. See Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992); Williamson v. United States, 445 A.2d 975, 980 n. 5 (D.C.1982). We find no plain error; indeed, we find no error at all.

A. The Prior Identification Exception

The prior identification exception to the hearsay rule allows the admission of out-of-court statements through the testimony of either the identifier or a third party who was present when the identification was made. Morris v. United States, 398 A.2d 333, 336 (D.C.1978); Clemons v. United States, 133 U.S.App. D.C. 27, 39-40, 408 F.2d 1230, 1242-1243 (1968) (en banc). The prior identification exception originated in case law and is now also codified in D.C.Code § 14-102(b)(3) (2001).¹⁵ Mercer v. United States, 724 A.2d 1176, 1195 (D.C.1999); see ...