Johnson v. United States, 21851.

• Decision Date: 23 March 1970
• Docket Number: No. 21851.,21851.
• Citation: 138 US App. DC 174,426 F.2d 651
• Parties: Barrington Joseph JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 US App. DC 174, 426 F.2d 651 (1970)

Barrington Joseph JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 21851.

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 1969.

Decided March 23, 1970.

Mr. William J. Lippman, Washington, D. C. (appointed by this court), for appellant.

Mr. Daniel E. Toomey, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, and Nicholas S. Nunzio, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, and ROBB, Circuit Judges, sitting en banc.

On Rehearing En Banc^*

PER CURIAM:

This appeal comes to us following Appellant's District Court jury trial conviction for rape. 22 D.C.Code § 2801. Appellant stresses the factually-oriented issue of consent and alleges the Government's failure to establish a prima facie case of lack of consent by the complaining witness.

I

At trial the emphasis was on the conflicting testimony offered by the Complainant and Defendant on the issues of the actual physical act and consent thereto.

The complaining witness testified that she met Appellant at a gas station in the early morning hours when her car stopped as she proceeded to work at St. Elizabeths Hospital. Appellant offered to push her car the short distance to the Hospital parking lot, and after he did, he pulled her into his car and left the area. Complainant testified that she was "scared to death" but made no attempt to scream at this point. She testified that Appellant kept repeating that he would not hurt her if she did not scream. Appellant stopped at another gas station to purchase gasoline, and he placed his arm around her neck again telling her not to scream. The Complainant, who at that time suffered from a hyperthyroid condition, testified that the pressure of the Appellant's arm against her thyroid gland made it more difficult for her to breathe. He thereupon drove to a deserted street saying that there was "no use screaming because no one would hear"; it was here that the attack took place. As to her mental and emotional state at the time, she related that: "During the whole time, I was scared to death because I really thought he was going to kill me. I never thought he would take me back to work." She did not cry out, although she testified that she kept begging him to take her back to work.

Thereafter, Appellant drove her back to St. Elizabeths Hospital. Complainant testified that she then, at the Appellant's demand, gave him her car keys and took from him a piece of paper containing his phone number and the name "Charles." Next she went into the hospital to report the incident to her supervisor and to the police who were summoned to the scene.¹ An examination was made at D. C. General Hospital. That afternoon she was returned to St. Elizabeths parking lot to identify Appellant who had returned to the lot in the same car that she had described that morning.²

To corroborate Complainant's testimony the Government called the director of the pathological department of D. C. General Hospital whose testimony confirmed recent relations; an FBI specialist in the microscopic examination of fibers and textile materials testified that he found numerous woolen fibers on Complainant's clothing having the same characteristics as the fibers of the sweater Appellant was wearing at the time of the attack.

The principal thrust of Appellant's case at trial was that although he admitted meeting the Complainant, pushing her car, and returning to the Hospital parking lot to help her start it that afternoon, she had never been in his car and he had no contact with her.³

Appellant admitted having Complainant's car keys at the time of his arrest but said that she had given them to him so that he could return to start her car. He also testified that he could not recall whether Complainant was wearing gloves that morning, and he had no recollection how her white gloves had come to be in his car at the time of his arrest.

II

As noted above, the focus of Appellant's case on appeal is his assertion that the Government failed to establish a prima facie case of lack of consent by the complaining witness. As an alternative to this proposition, he also contends that even if the trial court did not err in failing to take the case from the jury and directing a verdict of acquittal, the evidence in its totality was clearly insufficient to sustain the jury's verdict of guilty.

Before the Appellant can effectively challenge the trial court's decision to send this case to the jury, he must establish that at the point when the motion for acquittal was made the Government had not introduced

such evidence that reasonable persons could find guilt beyond reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the jury to reach a verdict of guilt by the requisite standard.

Crawford v. United States, 126 U.S.App. D.C. 156, 158, 375 F.2d 332, 334 (1967) (emphasis in original); accord, e. g., Thompson v. United States, 132 U.S.App. D.C. 38, 405 F.2d 1106 (1968); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

In challenging the validity of the trial court's determination, Appellant presents a staccato list of points which are said to militate against a finding of non-consent. Among those offered are the Complainant's failure to forcefully resist, her failure to scream out or attempt escape, the fact that she removed her own clothing, the absence of any weapon, and the fact that the Appellant later returned to the hospital parking lot to help her start her car. Indeed, like many records in rape cases, the evidence is not always clear-cut. Nevertheless, the evidence presented in the Complainant's testimony was not in itself incredible as was that of the complaining witness in Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1960), a case upon which Appellant places great reliance.

In denying the Government's petition for rehearing en banc in Farrar and thereby preserving this court's earlier reversal of a conviction for rape, then Chief Judge Prettyman explained that acquiescence may be deemed nonconsensual in the absence of force if the victim is put in genuine apprehension of death or bodily harm. The determinative factor in Farrar was that "the complaining witness rested her claim of fear upon a simple physical fact — a knife." Id. at 212, 275 F.2d at 876. "The only basis for fear advanced by the prosecutrix was the knife; she suggested no alternative cause for fear." Id. at 213, 275 F.2d at 877. When this court found it incredible that the complainant had been coerced by a knife for a two or three hour period and had "submitted" to multiple acts of intercourse, and yet never saw the knife, the conviction could not stand in the absence of any viable alternative cause for the prosecutrix' "fear" of her attacker. Indeed, the sitting division in Farrar found that her participation in the acts of intercourse were not induced by threats or "by words of any sort." Id. at 204, 275 F.2d at 868.⁴

In the instant case, the Complainant's relation that she was "scared to death because I really thought he was going to kill me" was not based on a nondiscoverable weapon or any other theory of fear which was incredible on the basis of her own testimony. It was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas, drove her to a deserted location, and told her it would be useless for her to scream because no one would hear. The Appellant was not unaware of complainant's fright; she testified that he had "said that he knew I was scared because I was so nervous." In these circumstances, this court's observations in Ewing v. United States, 77 U.S.App. D.C. 14, 16, 135 F.2d 633, 635 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943) (emphasis added), are worth reiterating:

There are cases, especially older ones from other jurisdictions, which seem to require resistance to the victim\'s ultimate physical powers in order to sustain conviction for this crime. But the law is no longer in this last-ditch stage. Whatever it may have been in other times, it is generally settled now that consent is not shown when the evidence discloses resistance is overcome by threats which put the woman in fear of death or grave bodily harm, or by these combined with some degree of physical force.

Therefore, despite Appellant's protestations of "an insurmountable evidentiary gap on the consent issue," we feel that the trial judge correctly viewed the evidence as such "that a reasonable mind might fairly have a reasonable doubt or might not have such doubt" on the question of consent. Crawford, supra, 126 U.S.App.D.C. at 158, 375 F.2d at 334 (emphasis in original). The District Judge was required to view the evidence at the close of the Government's case in the light most favorable to the Government's position.⁵ Having made this determination based on testimony which was not inherently incredible, the case was for the trier and not the trial judge, and the motion for directed verdict of acquittal was properly denied.

Appellant's contention that the totality of the evidence adduced at trial was insufficient to sustain the jury's verdict is also unavailing. Appellate counsel makes a concerted attack on the credibility of the Complainant, pointing out various specific inconsistencies between her testimony and that of other witnesses,⁶ and even raises a "number of nagging questions" concerning certain witnesses who were not called by the prosecution or defense.⁷ Admittedly, the trial and this record is not a model of symmetrical...