Evans v. United States, 6427.

• Decision Date: 08 January 1973
• Docket Number: No. 6427.,6427.
• Citation: 299 A.2d 136
• Parties: Collie L. EVANS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 136

299 A.2d 136

Collie L. EVANS, Appellant, v. UNITED STATES, Appellee.

No. 6427.

District of Columbia Court of Appeals.

Argued October 4, 1972.

Decided January 8, 1973.

Russell S. Bernhard, Washington, D. C., by this court, for appellant.

Lawrence H. Wechsler, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John T. Kotelly, Asst. U. S. Attys., were on the brief, for appellee.

Before GALLAGHER and NEBEKER, Associate Judges, and HOOD, Chief Judge, Retired.

NEBEKER, Associate Judge:

This appeal from convictions under a three-count indictment charging the taking of indecent liberties with minors¹ presents evidentiary questions respecting use of an admission made shortly after the arrest, the sufficiency of corroborative evidence, and evidence respecting specific intent. A question raised at oral argument and then addressed in supplemental memoranda also merits discussion. That question is whether it was plain error to instruct in terms of the statute respecting specific intent to arouse or gratify, inter alia, the sexual desires of the defendant or the victims when the indictment charged only a self-serving specific intent. We find no error and affirm.

The complainants' testimony in this case shows that appellant Evans brought the three female children of high school age (Tawana, Denise and Cynthia) to his apartment, with parental consent, for the asserted purpose of giving them their first karate lesson. Karate is a Japanese system of self-defense without the use of a weapon. The lesson began with a few preliminary exercises in the living room. When Tawana could not do one of these exercises properly, Evans massaged her. She testified that during the course of the massage he opened the top buttons of her blouse and put his hand inside her brassiere and "started messing around with [her] breasts." She also testified that Evans put his hand inside her shorts and underpants and "put his finger up [her] vagina."

Testimony also revealed that Evans next began to massage Denise. She testified that he put his hand wider her blouse and brassiere and felt her breasts. He then put his hand in her shorts and felt her pubic hair, at which point she pushed his hand away.

Evans then massaged Cynthia who similarly testified that he placed his hand under her shirt and brassiere and felt her breasts. He also placed his hand inside her pants "close" to her vagina. These actions as to each girl were also observed and testified to by one or both of the other two.

Upon completion of the exercises, Evans demonstrated karate to the girls. As part of the demonstration, he gave Cynthia a karate chop in the side, causing her to cry. Cynthia testified that Evans then took her into his bedroom and told her to lie on the bed. He then started toward her as if he were going to lie on top of her, but she pushed him out of the way and ran out of the room. At another point, Evans took Tawana alone into the den for a massage. She testified that he told her to take off her shorts and he then massaged her. He then took her into the bedroom, directed her to lie on the bed and took out his penis and started toward her. Tawana kicked him twice and when he fell, she ran into the living room.

When Evans drove the girls home he warned them not to discuss the lesson and threatened them if they disclosed his actions. The mothers of two of the girls testified that their daughters appeared to be disturbed upon arriving home and that they stated they did not want to take any further lessons. The girls testified that they were frightened and thus did not reveal the incidents to their mothers until the following day, at which time the police were notified.

The arresting officers testified that they went to Evans' apartment and informed him that he was under arrest for indecent acts on minors, and advised him of his Miranda rights.² On the way to the police station, Evans acknowledged during a conversation that he had some girls in his apartment for karate instructions on the evening in question. He stated that as part of the instructions he massages them "everywhere". He specifically stated that part of the massage included placing his finger in the vagina. The officers stated that Evans later said he had also massaged the breasts as part of the instruction.

Evans' testimony corroborated the fact that he had the girls at his apartment for karate instructions and that he had given each of them a massage as part of the instructions. He specifically denied, however, massaging their vaginas. Although he admitted taking Tawana into a room by herself for a massage, he denied exposing his penis, trying to get on top of her, and being kicked by her. He stated that he did not tell Tawana to take off her pants, but on cross-examination he admitted that he told her to unzip her pants so he could massage her. However, he stated that he provided her with a robe so that she would not be exposed. He denied ever putting his hand under Denise's brassiere or into her pants. He also denied taking Cynthia into the den after he struck her and caused her to cry. Evans also asserted that the arresting officers had not advised him of his rights. Significantly, he denied making any statement to them after his arrest, but we note that at a pretrial hearing he stated that he was aware of his right to remain silent, his right to counsel after arrest, and the fact that anything he said after he was arrested might be used against him.

I

To ensure that an accused is aware of his constitutional rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), requires that the police advise an accused of his rights prior to any interrogation. Once this knowledge is imparted to the accused, he may make a voluntary and intelligent waiver of those rights. In determining whether the accused has made such a waiver, an objective standard is applied.

"By objective standard we mean that the validity of any Miranda waiver must be determined by the court's inspection of the particular circumstances involved, including the education, experience and conduct of the accused as well as the credibility of the police officer(s) testimony. The court will then objectively assess all the aforementioned factors and determine whether the waiver was valid. . . ." [Pettyjohn v. United States, 136 U.S.App.D.C. 69, 72 n. 7, 419 F.2d 651, 654 n. 7 (1969).]

The courts have particularly relied on education and experience as major factors to consider in applying this standard. Pettyjohn v. United States, supra; Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963); Scarbeck v. United States, 115 U.S.App.D.C. 135, 317 F.2d 546 (1963); cf. United States v. Howard, 470 F.2d 406 (D.C.Cir., decided October 10, 1972).

In the instant case there was conflicting testimony at the pretrial hearing between the police officers and appellant as to whether the Miranda warnings were given at the time of the arrest. The ruling of the trial court judge reveals that he found the officers did give the warnings. There was substantial evidence to support this factual finding and we are therefore bound by it. The record shows that Evans had two years of college education and that he merely engaged in conversation while proceeding to the precinct. There is no contention that he was coerced in any way. The only issue raised was whether the required Miranda warnings were given. The statements were, therefore, properly admitted by the trial court.

Evans also argues that these statements made to the police should not have been admitted since there was an apparent inconsistency in the officers' testimony at the pretrial hearing and at the trial as to appellant's exact statements. The matter of credibility of witnesses is not a matter within the province of the appellate court. Blitz v. Hobbs, D.C.Mun.App., 160 A.2d 803 (1960). This issue was appropriately one for resolution by the jury.

II

In sex crimes, corroboration of the testimony of the alleged victim is required before any person may be convicted. Allison v. United States, 133 U.S.App.D. C. 159, 409 F.2d 445 (1969). In cases involving young children the courts have been particularly conscious of the requirement for corroboration of the child's testimony. Coltrane v. United States, 135 U. S.App.D.C. 295, 418 F.2d 1131 (1969); Allison v. United States, supra; Wilson v. United States, 106 U.S.App.D.C. 226, 271 F.2d 492 (1959). The corroboration that is required need not be direct evidence but may consist of circumstances which tend to support the victim's testimony. Allison v. United States, supra at 162, 409 F.2d at 448; Bailey v. United States, 132 U.S. App.D.C. 82, 405 F.2d 1352 (1968); Walker v. United States, 96 U.S.App.D.C. 148, 223 F.2d 613 (1955). Circumstantial evidence clearly may be used for corroboration. Coltrane v. United States, supra. In Borum v. United States, 133 U.S.App.D.C. 147, 152, 409 F.2d 433, 438 (1967), the court stated:

"While the matter of corroboration is...