In re D.W., 08–FS–761.

• Decision Date: 01 September 2011
• Docket Number: No. 08–FS–761.,08–FS–761.
• Citation: 27 A.3d 1164
• Parties: In re D.W., Appellant.
• Court: D.C. Court of Appeals

27 A.3d 1164

In re D.W., Appellant.

No. 08–FS–761.

District of Columbia Court of Appeals.

Argued May 26, 2011.Decided Sept. 1, 2011.

Mikel–Meredith Weidman, Public Defender Service, with whom James Klein, Public Defender Service, and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.John Woykovsky, Assistant Attorney General for the District of Columbia, with whom Peter J. Nickles, Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and Sidney R. Bixler, Assistant Attorney General, were on the brief, for the District of Columbia.Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.SCHWELB, Senior Judge:

Following an evidentiary hearing in this juvenile delinquency case, D.W. was adjudicated guilty of incest, in violation of D.C.Code § 22–1901 (2001). He appeals, contending that the evidence was insufficient to establish that D.W. and the victim were related “within ... the fourth degree of consanguinity,” as required under the statute. Because the uncontradicted testimony supports the trial judge's finding of guilt, we affirm.

I.

The underlying charges of incest and of first degree sexual abuse, in violation of D.C.Code § 22–3002(1) (2001), stem from a single incident of sexual intercourse between D.W., then aged 14, and D.S., then aged 11, which occurred in August of 2006 at the home of Willie Jones, the children's grandfather.¹ A pregnancy resulted, and D.S. gave birth to a baby boy at Washington Hospital Center on April 26, 2007. Genetic testing established a probability of 147,501,000 to 1 that D.W. was the father of the child.

At the evidentiary hearing resulting in his adjudication, D.W. did not dispute that the intercourse between him and D.S. took place. Rather, he moved for a judgment of acquittal (MJOA) at the close of the District's case, arguing that the evidence that D.W. and D.S. were related by blood was insufficient as a matter of law to establish his guilt of incest beyond a reasonable doubt. The trial judge denied the motion and, after the defense had presented its evidence, none of which was directed to contesting the incest charge, the judge found D.W. guilty of incest.² D.W. filed a timely appeal.

II.

At the evidentiary hearing, Donald Berry testified that he has five children, including the respondent, D.W. and the complaining witness, D.S. When he was asked whether he is the biological father of both children, Mr. Berry stated that “I have not [taken] a blood test, so I'm not positive that I'm the father, but yes, I'm considered the father.”

D.S., the complainant, testified that she and D.W. have the same father and that D.W. is her brother. Referring to the sexual episode between her and D.W., D.S. explained that although D.W. “was my brother and I didn't want to do that with my brother,” she also “didn't want nothing bad to happen to my brother.” D.S. also testified that her baby son does not live with her, but with her father ( i.e., Mr. Berry).

Keisha Simmons, the mother of D.S., confirmed that Mr. Berry is D.S.' father, and also stated that D.W. is Mr. Berry's son with another woman. ³ Willie Jones, who was called as a defense witness, testified that D.W. lives with him, and that both D.W. and D.S. are his grandchildren. No evidence contrary to any of the foregoing testimony was adduced by the defense. ⁴ As previously noted, the judge found D.W. guilty of incest.

III.

In assessing D.W.'s claim of evidentiary insufficiency, “this court must view the evidence in the light most favorable to the government, keeping in mind the right of the trier of fact to assess credibility and to draw reasonable inferences from the evidence.” Long v. United States, 940 A.2d 87, 99 (D.C.2007); see also Rivas v. United States, 783 A.2d 125, 134 (D.C.2001) (en banc); In re T.M., 577 A.2d 1149, 1151 (D.C.1990) (juvenile delinquency proceeding). “The government is not required to negate every possible inference of innocence.” Blaize v. United States, 21 A.3d 78, 82 (D.C.2011) (citations omitted). “It is only where there is no evidence upon which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction.” Id. (citations omitted); see also Kaliku v. United States, 994 A.2d 765, 786 (D.C.2010). Our review of the judge's findings is “deferential,” Rivas, 783 A.2d at 134, because

the judge had a front seat as the testimony unfolded. We, on the other hand, are limited to a paper transcript which, while capturing the words of a case, may often miss its heart and soul.

Combs v. District of Columbia Dep't of Employment Servs., 983 A.2d 1004, 1010 n. 3 (D.C.2009); see also In re S.G., 581 A.2d 771, 779 (D.C.1990). The sole question before us is whether, applying the foregoing standard of review, there is sufficient support in the record for the judge's finding that the District proved the requisite degree of consanguinity—here, that D.W. is the half-brother of D.S.—beyond a reasonable doubt.⁵ D.W. asks us to answer this question in the negative.

D.W.'s appellate counsel acknowledge in their reply brief that genetic testing is not required in every prosecution for incest. Nevertheless, they claim that in this case, in light of Mr. Berry's remark that in the absence of a blood test, he is not positive that he is the children's father, as well as the discrepancies as to how many children Mr. Berry has, scientific evidence was necessary in order to establish D.W.'s guilt. Specifically, counsel contend, and our dissenting colleague apparently agrees, that we should look for guidance to the statutory framework and body of case law addressing the adjudication of paternity in the civil context. Under the provisions of D.C.Code § 16–909(b–1) (2001), there are two ways to establish a “conclusive presumption of paternity”: either by an affidavit from an approved laboratory certifying a genetic test indicating a 99% probability that the putative father is the father of the child, or by the father's written acknowledgment of paternity. Counsel argue that what they describe as Mr. Berry's equivocal testimony would not satisfy the requirements for a written acknowledgment of paternity, and that the District should therefore have been required to introduce the results of a genetic test in order to satisfy its burden of proof of consanguinity.⁶

We do not agree with D.W.'s position. In our view, D.W. overstates the “equivocal” nature of Mr. Berry's testimony when that evidence is viewed in the light most favorable to the District. When asked how many children he has, Mr. Berry answered that he has five, and he listed both D.W. and D.S. as being among them. In response to this initial question, he expressed no doubt at all. It was only after he had made this categorical and unqualified statement that he indicated any uncertainty resulting from the lack of a blood test. It is at least a permissible construction of Mr. Berry's remark that he is not “positive,” when that comment is read in conjunction with his earlier testimony that both D.W. and D.S. are his children,⁷ to take the two statements together as meaning that so far as Mr. Berry knows, he is their father, but that he is aware that one cannot be absolutely certain of that fact without a blood test. Assuming, arguendo, that there was some ambiguity as to Mr. Berry's level of certainty, the judge, as the trier of fact, had the right to draw any reasonable inference, and she was not required to take Mr. Berry's testimony as meaning that the witness entertained any appreciable or reasonable doubt that he was the children's father, especially when he had named both D.W. and D.S. as being his children.

For an appellate court to substitute its interpretation of Mr. Berry's evidence for the trial judge's factual finding would be especially inappropriate in circumstances such as those presented here. Judge Jerome Frank could easily have had in mind a case just like this one when he opined that

[a] stenographic transcript correct in every detail fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the words signify. The best and most accurate record is like a dehydrated peach; it has neither the substance nor the flavor of the fruit before it was dried.

Broadcast Music v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir.1949) (quoting

Ulman, The Judge Takes The Stand 267 (1933)); see also Morris v. United States, 728 A.2d 1210, 1215 (D.C.1999) (quoting Broadcast Music ). Here, the trial judge was in a position to discern Mr. Berry's tone and the comparative emphasis that the witness placed on the two statements, while we are unable to do so because, to adapt Judge Frank's phrase, our peach is indeed dehydrated. To second-guess the trier of fact, where the outcome may depend on the inflection of the witness' voice or the stress which he may have placed upon a particular word or sentence, is not an acceptable appellate option.⁸

It is also significant that Mr. Jones, having been called to the stand by D.W.'s attorney, testified that both D.W. and D.S. are his grandchildren. If this defense testimony was true—and D.W.'s counsel did not contradict or impeach it ⁹—then D.W. and D.S. must have been either siblings or cousins, and there is no evidence at all that they were cousins. The record is likewise devoid of any testimony or other evidence tending to show, or even suggest, that someone other than Mr. Berry is the father either of D.W. or of D.S.¹⁰ Further, as previously noted, all reasonable inferences must be drawn in the District's favor, and it was not irrational for the trial judge to construe and assess Mr. Berry's statement of uncertainty as she evidently did. In particular, on this record, the judge could reasonably find to be minimal the possibility that all of the witnesses who testified that D.W. and D.S. are siblings...