Matter of J.W.Y.

• Decision Date: 09 September 1976
• Docket Number: No. 10138.,10138.
• Parties: In the Matter of J.W.Y.
• Court: D.C. Court of Appeals

363 A.2d 674

In the Matter of J.W.Y.

No. 10138.

District of Columbia Court of Appeals.

Argued August, 10, 1976.

Decided September 9, 1976.

COPYRIGHT MATERIAL OMITTED

William V. DePaulo, Washington, D.C., appointed by this court, for appellant.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellee.

Before KERN and HARRIS, Associate Judges, and HOOD, Chief Judge, Retired.

HARRIS, Associate Judge:

Appellant, a juvenile, was found guilty in a delinquency proceeding of aiding and abetting an act of carnal knowledge of a 13-year-old girl in violation of D.C.Code 1973, § 22-2801. See id. § 22-105. He appeals on three grounds: (1) that there was insufficient evidence as to penetration, a necessary element of the underlying offense; (2) that the trial court erroneously excluded certain evidence of the complainant's reputation for unchastity; and (3) that the court erred in quashing the subpoenas for several potential defense witnesses after they indicated that they would assert their Fifth Amendment privilege with respect to their alleged independent sexual experiences with the complainant. We affirm.

I

The case arose from events which transpired on the afternoon of June 2, 1975. The complainant and two girl friends, on their way back to school after lunch, stopped by the house of V.M., the alleged principal of the sexual assault. Also in the house at the time were appellant and two other youths, G.M. and T.G. All of the children apparently were acquainted with one another. The testimony of the complainant was that as she tried to leave, she was grabbed by V.M. and dragged to an upstairs bedroom. When she refused his sexual overtures, he directed appellant and the other boys to "get her ready". While G.M. held her arms and T.G. choked her with a towel, appellant removed her underpants and unsuccessfully attempted to have intercourse with her. V.M. returned and sexually assaulted her as she was held by the other three boys who, after the act commenced, retired from the room. Complainant testified that penetration was achieved. While the government produced no witnesses to the coital act, the complainant's account was supported by the testimony of other witnesses, including her two companions, her school's assistant principal, to which she reported the incident, and an examining physician.

Appellant acknowledged that he was in V.M.'s house on the afternoon in question, but claimed that he never touched the complainant or went into the room where the assault occurred. His account was that he overheard the complainant boasting to her friends that she would "show" V.M. that she was not afraid of sexual intercourse, and that she had entered the house and voluntarily withdrawn to the bedroom with V.M. He testified that at that point he and the other two boys had left the complainant and V.M. alone in the house, and that he then went to visit his girl friend.

The court permitted defense counsel to cross-examine the complainant as to her previous sexual experience. Several witnesses were produced to testify as to appellant's good character and to the poor reputations of the complainant and her companions for veracity. However, the court barred any exploration of the victim's reputation for unchastity. When defense counsel sought to introduce the testimony of two boys who purportedly had engaged in prior voluntary sexual acts with the complainant, the court appointed counsel to advise the witnesses of their potential criminal liability should they so testify. Upon subsequently learning from the youths that they would assert their Fifth Amendment privilege, the court quashed the subpoenas for their testimony.

Defense counsel made timely motions for acquittal on the grounds that the government had established neither the element of penetration nor appellant's participation in the assault. The motions were denied, and the court found appellant guilty of aiding and abetting the act of carnal knowledge committed by V.M.

II

Appellant's first argument rests upon the recognized principle that the offense of aiding and abetting is predicated upon a proper demonstration of all of the necessary elements of the underlying criminal act. See United States v. Wiley, 160 U.S.App.D.C. 281, 285, 492 F.2d 547, 551 (1973); D.C.Code 1973, § 22-105. In order to establish the act of carnal knowledge, the government must prove that the victim was under the age of 16 and that penetration was achieved. See United States v. Wiley, supra, at 284, 492 F.2d at 550; D.C.Code 1973, § 22-2801. While the age of the complainant (13) is undisputed, appellant asserts that there was insufficient corroboration of her testimony that penetration did occur during the assault by V.M. We disagree.

The law in this jurisdiction has held that an individual accused of a sex offense cannot be convicted solely upon the unsupported-testimony of the victim. See, e. g., Evans v. United States, D.C.App., 299 A.2d 136, 139 (1973); Coltrane v. United States, 135 U.S.App.D.C. 295, 298-301, 418 F.2d 1131, 1134-37 (1969). However, the requirement of independent evidence corroborating the complainant's testimony has long been under siege [see United States v. Wiley, supra, 160 U.S.App.D.C. at 286-90, 492 F.2d at 552-56 (Bazelon, C. J., concurring)], and has acquired flexibility by the evolution of the corollary principles (1) that the required corroboration may be shown by circumstantial evidence, and (2) that the amount of corroboration necessary in a case will depend on its particular circumstances (especially those pertinent to the danger of possible fabrication). See In re W.E.P., D.C.App., 318 A.2d 286, 288 (1974); Evans v. United States, supra, at 139; United States v. Jones, 155 U.S.App. D.C. 328, 332-33, 477 F.2d 1213, 1217-18 (1973); Thomas v. United States, 128 U. S.App.D.C. 233, 234, 387 F.2d 191, 192 (1967).

We recently took a major step toward placing the adjudication of sex offenses on a parity with that of other crimes in terms of the manner of proof required for conviction. In Arnold v. United States, D.C. App., 358 A.2d 335 (1976) (en banc), we sustained convictions for rape which had been challenged on the grounds that the trial court erroneously refused to charge the jury concerning the requirement of independent evidence corroborating the victim's testimony. However, as our decision in Arnold was issued after both the events and the trial which are the subject of the instant appeal, its holding is not dispositive of appellant's argument. See Wallace v. United States, D.C.App., 362 A.2d 120 at 121 n. 4 (1976). Moreover, the cases are significantly dissimilar. In Arnold we were confronted with the offense of rape, and we placed considerable emphasis on the fact that the victims there were adults whose maturity diminished the likelihood of fabrication or fantasy. The case before us involves the separate offense of carnal knowledge and a victim whose youth, it has been suggested, deprives her testimony of the same assurance of reliability. See United States v. Wiley, supra, 160 U.S.App.D.C. at 284, 492 F.2d at 550; Coltrane v. United States, supra, 135 U.S.App.D.C. at 298-99, 418 F.2d at 1134-35. See also Robinson v. United States, D.C.App., 357 A.2d 412, 415 (1976); Evans v. United States, supra, at 139. We need not, however, now decide whether we should expand the principles enunciated in Arnold to embrace a prosecution for carnal knowledge, for our review of the record convinces us that even under the requirements of the corroboration doctrine, the government adequately established the necessary element of penetration.

The complainant's testimony as to the fact of penetration was unequivocal. Her account was corroborated by Mrs. Bobbie Ricks, the assistant principal of the complainant's school, to whom she reported the assault after she fled V.M.'s house. Repeating the account given by the victim, Mrs. Ricks related details of the assault in a manner which clearly portrayed the occurrence of penetration. Cf. Wheeler v. United States, 93 U.S.App.D.C. 159, 163-64, 211 F.2d 19, 23-24 (1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954). Any risk that the child's report was the product of fabrication or fantasy was diminished by the fact that she had sought out the school official immediately after the attack, appearing, by the witness' description, as distraught, dirty, and disheveled, with her clothing torn and heavily soiled, especially on her back. Compare, e. g., United States v. Huff, 143 U.S.App. D.C. 163, 166, 442 F.2d 885, 888 (1971); United States v. Bryant, 137 U.S.App.D.C. 124, 128, 420 F.2d 1327, 1331 (1969). The government also produced the testimony of Dr. Winston Blake, who examined the complainant on the day of the assault. While the doctor acknowledged that he was unable to conclude that vaginal penetration had occurred,¹ he testified that he had found superficial bruises and redness in the area of the victim's fourchette or labia (i. e., the posterior end of the vaginal entrance) which could have been caused by an erect penis.

Specific corroboration of penetration is not a prerequisite to proof of carnal knowledge, for in the adjudication of sex offenses, "[a]ll that is required is evidence of circumstances which tend to support the victim's testimony."² Evans v. United States, supra, at 139. We believe the record contains sufficient evidence to have permitted the court, as the trier of fact, "to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication." In re W.E.P., supra, at 288, quoting United States v. Gray, 155 U.S.App.D.C. 275, 276, 477 F.2d 444, 445 (1973). See United States v. Jones, supra, 155 U.S.App.D.C. at 332-33, 477 F.2d at 1218-19; cf. Calhoun v. United States, 130...