Cardozo v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: McLeese, Associate Judge
• Citation: Cardozo v. United States, 255 A.3d 979 (D.C. 2021)
• Decision Date: 29 July 2021
• Docket Number: No. 17-CF-774,17-CF-774
• Parties: Sergio W. Velasquez CARDOZO, Appellant, v. UNITED STATES of America, Appellee.

255 A.3d 979

Sergio W. Velasquez CARDOZO, Appellant,

v.UNITED STATES of America, Appellee.

No. 17-CF-774

District of Columbia Court of Appeals.

Argued September 17, 2020

Decided July 29, 2021

Matthew B. Kaplan, Arlington, VA, with whom Joseph Virgilio was on the briefs, for appellant.

Nicholas Coleman, Assistant United States Attorney, with whom Jessie K. Liu and Timothy J. Shea, United States Attorneys at the time the briefs were filed, and Elizabeth Trosman, Peter Taylor, Bianca M. Forde, and Kristina L. Ament, Assistant United States Attorneys, were on the briefs, for appellee.

Before McLeese and Deahl, Associate Judges, and Steadman, Senior Judge.

Concurring opinion by Associate Judge Deahl at page 988.

McLeese, Associate Judge:

Appellant Sergio Velasquez Cardozo appeals from his convictions for kidnapping and several sexual-abuse offenses, arguing that the evidence was insufficient to support his convictions and that certain of his convictions should merge. We affirm in part, reverse in part, and remand for further proceedings.

I.

Viewed in the light most favorable to the verdict, the evidence at trial was as follows. At around 1:00 a.m. one night in September 2016, E.R. was walking home. A police officer patrolling in the area saw E.R. walking hurriedly, and also saw Mr. Cardozo walking behind E.R., closing the distance between them. The officer then saw Mr. Cardozo "bear hug" E.R. Mr. Cardozo appeared to put one or both of his hands on E.R.’s breasts, move his hands along E.R.’s body, and then rub his hands on E.R.’s buttocks. When Mr. Cardozo grabbed E.R., she stopped for a "split second." After stumbling, she shrugged her shoulders and moved her elbows back, apparently to get away, at which point Mr. Cardozo turned around and walked in the opposite direction.

E.R. described having been grabbed from behind. She had been unaware that she was about to be grabbed, and she had no prior opportunity to indicate that she did not wish to be touched by Mr. Cardozo. As Mr. Cardozo was holding her, she felt a hand reach across her chest and touch her breast, and she also felt a touch on her buttocks. E.R. moved her elbows to get away, and said "no." Mr. Cardozo said "[s]omething to the effect of ‘you want this’ or ‘do you want this.’ " E.R. was momentarily stopped from walking home while Mr. Cardozo grabbed her and held her back, but after she shrugged him off she was able to resume walking.

The officer approached E.R. and asked her if she knew Mr. Cardozo. When E.R. said that she did not, the officer stopped Mr. Cardozo and noticed that Mr. Cardozo's pants zipper was undone.

Mr. Cardozo testified that he had not been wearing his glasses, that he bumped into E.R. accidentally, that he did not grab E.R. for the purpose of sexual gratification, and that he had been unaware that his zipper was down.

The jury found Mr. Cardozo guilty of kidnapping, sexual abuse in the third degree (touching of clothed breast), sexual abuse in the fourth degree (touching of clothed breast), and misdemeanor sexual abuse (touching of clothed buttock).

II.

We turn first to Mr. Cardozo's challenges to the sufficiency of the evidence to support his convictions. We review de novo whether the evidence was sufficient,

viewing the evidence in the light most favorable to sustaining the judgment, and making no distinction between direct and circumstantial evidence. Judicial review is deferential, giving full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. The evidence need not compel a finding of guilt beyond a reasonable doubt, and it need not negate every possible inference of innocence. Rather, proof of guilt is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Fitzgerald v. United States , 228 A.3d 429, 436-37 (D.C. 2020) (brackets, citations, ellipses, and internal quotation marks omitted). We conclude that the evidence was sufficient to support Mr. Cardozo's convictions for kidnapping and third-degree sexual abuse but was insufficient to support Mr. Cardozo's conviction for fourth-degree sexual abuse.

A. Kidnapping

Among other things, D.C. Code § 22-2001 (2012 Repl.), generally referred to as the kidnapping statute, makes it a crime to "seiz[e]" another person and "hold[ ] or detain[ ]" that person "for ransom or reward or otherwise." D.C. Code § 22-2001 (2012 Repl.). Mr. Cardozo argues that the evidence is insufficient to support his conviction under § 22-2001. We conclude to the contrary.

Most of Mr. Cardozo's arguments at bottom rest on the theory that the incident was too transitory to amount to kidnapping. That theory is foreclosed by binding authority. See, e.g. , Ruffin v. United States , 219 A.3d 997, 1005 (D.C. 2019) ("This argument is not a new one. It has been made to us before, and we have rejected it. ... [T]he argument is foreclosed by binding precedent.") (internal quotation marks omitted) (citing Richardson v. United States , 116 A.3d 434, 438-39 (D.C. 2015) (kidnapping statute "contains no exception for cases in which the conduct underlying the kidnapping is momentary")).

Mr. Cardozo relies on Chatwin v. United States , 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198 (1946), a case interpreting the federal kidnapping statute. In that case, the Supreme Court reversed a kidnapping conviction, holding that there had been no evidence that the alleged victim had at any point been restrained against her will. Id. at 460, 66 S.Ct. 233. The Supreme Court also stated that kidnapping "necessarily implies an unlawful physical or mental restraint for an appreciable time ." Id. (emphasis added). Although the discussion in Chatwin does provide support for Mr. Cardozo's argument, that discussion is not a holding that is binding on us. Moreover, this court's subsequent cases require us to conclude in this case that the momentary nature of the seizure, holding, or detention is not a defense to a charge of kidnapping.

Mr. Cardozo also argues that he did not commit kidnapping because his conduct was coextensive with and incidental to his sexual assault on E.R. That argument is also contrary to binding authority. See, e.g. , Spencer v. United States , 132 A.3d 1163, 1173 (D.C. 2016) (court's decisions "expressly den[y] that the incidental nature of a detention is relevant to the sufficiency of a kidnapping conviction in the District"); Richardson , 116 A.3d at 439 ("The plain language of the statute contains no exception for cases in which the conduct underlying the kidnapping is ... incidental to another offense.").

Although Mr. Cardozo argues that cases such as Ruffin and Spencer are not controlling authority, we disagree. It is true that some of our prior cases addressing these issues arose in the context of deciding whether kidnapping and various other offenses were the same offense for purposes of the Double Jeopardy Clause. E.g. , Parker v. United States , 692 A.2d 913, 915-16 (D.C. 1997). That circumstance, however, does not undermine the binding nature of our conclusions as to the elements of kidnapping. See, e.g. , Seminole Tribe v. Fla. , 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.") (internal quotation marks omitted). In any event, both Ruffin and Spencer involved challenges to the sufficiency of the evidence. Ruffin , 219 A.3d at 1002, 1005-06 ; Spencer , 132 A.3d at 1172-73.

Mr. Cardozo also argues that cases such as Ruffin and Spencer are not binding authority because they are contrary to prior controlling authority, such as Sinclair v. United States , 388 A.2d 1201, 1204 (D.C. 1978) (indicating that separate conviction for kidnapping will not lie if kidnapping is coextensive with and incidental to other crime of conviction). This court, however, overruled Sinclair and similar cases in Byrd v. United States , 598 A.2d 386 (D.C. 1991) (en banc). See, e.g. , In re D.W. , 989 A.2d 196, 206 (D.C. 2010) ( Sinclair and similar cases have "been superseded by our more recent decision in Byrd "). Those cases thus are no longer good law. See, e.g. , M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971) (en banc court can overrule prior decisions of court).

Finally, Mr. Cardozo argues that there was insufficient evidence to permit the jury to find that he intended to seize, hold, or detain E.R. We conclude otherwise. The jury could reasonably infer that, when he intentionally "bear hugged" E.R. as she was walking, Mr. Cardozo intended to seize, hold, and detain E.R., at least briefly. See generally, e.g. , Corbin v. United States , 120 A.3d 588, 591 n.3 (D.C. 2015) ("[T]he jury was entitled to infer that appellant intended the natural and probable consequence of his acts knowingly done ....") (brackets and internal quotation marks omitted).

B. Sexual Abuse

We also conclude that the evidence was sufficient to support Mr. Cardozo's conviction for third-degree sexual abuse but insufficient to support Mr. Cardozo's conviction for fourth-degree sexual abuse.

1. Sexual contact

Third-degree sexual abuse and fourth-degree sexual abuse both require proof that Mr. Cardozo engaged in or caused "sexual contact" with E.R. D.C. Code §§ 22-3004 and - 3005 (2012 Repl.). Sexual contact is defined as "the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." D.C. Code § 22-3001(9) (2012 Repl.). The United States thus was required to prove that Mr. Cardozo acted "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any...