Proctor v. US

• Decision Date: 07 November 1996
• Docket Number: No. 93-CF-739.,93-CF-739.
• Citation: 685 A.2d 735
• Parties: Marshall PROCTOR, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

685 A.2d 735

Marshall PROCTOR, Appellant, v. UNITED STATES, Appellee.

No. 93-CF-739.

District of Columbia Court of Appeals.

Argued September 19, 1996.

Decided November 7, 1996.

Richard Greenlee, Washington, DC, Public Defender Service, with whom James Klein and Gretchen Franklin, Public Defender Service, were on the brief, for appellant.

Anjali Chaturvedi, Washington, DC, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Mark J. Ehlers, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN, SCHWELB, and FARRELL, Associate Judges.

FARRELL, Associate Judge:

A jury found appellant guilty on two counts each of enticing a minor and sodomy on a minor (D.C.Code §§ 22-3501(b), -3502 (1989)), and six counts of taking indecent liberties with a minor (id., § 22-3501(a)). All of the acts were alleged to have been committed on the same victim, seven-year-old L.B., in September and December of 1992. On appeal, appellant contests the sufficiency of the evidence supporting the sodomy convictions, claims reversible error in the combined effect of two changes which the trial judge made in the reasonable doubt instruction, and assigns other errors in the conduct of the trial. Finding merit in the first two contentions, we reverse.

I.

L.B. first met appellant on her way to school on the first day of school in September 1992, when he was giving away candy to children in front of Martin Luther King Elementary School. L.B. went over to appellant and received some bubble gum from him, and also received gum from him the next day. That same month, she was on the way to school one morning when appellant stopped her and asked her to go with him. Thinking he would give her candy again, she followed him to the rear of a building near the school. After they went down a stairwell, appellant told her to pull down her pants, which she did, and he pulled down his own pants. He then rubbed his penis against her vagina and touched her vagina with his finger. He told her to "put her mouth on his penis" and to place her hand on his penis; she complied with both demands. When these acts were done he gave her some bubble gum.

Appellant repeated these acts another morning in the same place, and "the same thing" also happened several times later after school. Confirming L.B.'s testimony that some of her meetings with appellant made her late for school, attendance records showed that she was late for school on September 11 and September 22, 1992.

The final acts took place in December 1992 when L.B. saw appellant after school and he told her to come with him. This time they went down some steps and entered a front door of the building behind which the earlier acts had occurred. There, the child testified, appellant "pulled down his pants and I pulled down mine. He told me to put my — put my mouth on his penis and touch it, and he put his penis — rubbed it against my vagina and he put his hands there, too." He then gave her a stick of bubble gum.

When L.B. was late returning home from school that December day, her mother went looking for her. She located the child walking towards home and asked her where she had been. L.B. told her she had been at school finishing her work. When her mother asked about the gum, the child stated that a teacher had given it to her, then that "a little girl" had done so. The next day, when asked again, she told her mother that a man had given her the gum. She described him to her mother and her stepfather, including the fact that he "walked with a limp,"¹ and told them about the assaults.

After hearing the description of the man who assaulted her, the stepfather took L.B. downstairs to appellant's apartment. Appellant denied knowing the child, and on the way back to their apartment L.B. told her stepfather that appellant was not her attacker. L.B. testified that, though she had recognized appellant that day as the man who had assaulted her repeatedly, she lied to the stepfather because she was afraid, since appellant had warned her not to tell and threatened to take her "far away" if she did.

On December 8, 1992, the child's mother saw appellant at their apartment building and noticed that he fit the description L.B. had given of her attacker. She took the girl downstairs to appellant's apartment and asked her to tell her if Proctor was the man who had assaulted her. On seeing him L.B. replied yes, and when asked if she was sure, again identified appellant as her attacker.

L.B. later made a showup identification of appellant, and again identified him in court as her assailant. When a police detective took her around the neighborhood, she pointed out the locations where appellant had assaulted her and a candy store they had gone to after some of the assaults.

II.

Appellant was found guilty of two counts of sodomy, one in September and one in December of 1992. As the trial judge instructed the jury, "both of those charges relate to the allegation that the defendant placed his penis in the mouth of the complaining witness." Appellant contends the evidence was insufficient to support these convictions because it failed to establish that he placed his penis in the mouth of L.B., and so did not show penetration as required by the then-existing crime. We agree.

The sodomy statute, at the time of appellant's conduct, stated in relevant part as follows:

(a) Every person who shall be convicted of . . . placing his or her sexual organ in the mouth . . . of any other person . . . shall be fined not more than $1,000 or if having committed such act with a person under the age of 16 be imprisoned for a period not exceeding 20 years.

(b) Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary.

D.C.Code § 22-3502 (1989) (emphasis added).² Therefore, as the trial judge told the jury (elucidating his earlier-quoted statement), the government had to prove "that the defendant placed his penis into the mouth of the complaining witness" (emphasis added). Of course, the judge also explained that "any penetration, however slight," is enough to meet that requirement and that "proof of ejaculation is not required." But while the "slight penetration" requirement is undemanding, see Barrera v. United States, 599 A.2d 1119, 1125 n. 4 (D.C.1991) (on appellate review, "any evidence tending to show the slightest penetration ... is sufficient to require denial of a motion for judgment of acquittal"), it remains a differentiating feature between sodomy and crimes punished less severely such as taking indecent liberties.³ In ordinary use, the verb "to penetrate" means "to pass into or through." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1670 (1986). Decisional law reflects this meaning by providing that, while slight penetration is enough, "a mere touching does not make out the offense." 70A AM. JUR. 2D Sodomy § 23 (1987). See, e.g., Ashby v. Commonwealth, 208 Va. 443, 158 S.E.2d 657, 658 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 884, 21 L.Ed.2d 808 (1969) (where evidence showed only that victim was "told to `put my mouth on his penis,'" proof of sodomy was insufficient); People v. Angier, 44 Cal.App.2d 417, 112 P.2d 659, 660 (1941) (kissing not sufficient evidence of penetration). In this case, then, there must have been evidence that the penis "passed into or through" the lips of the victim, even slightly, or the statutory requirement of a "placing . . . in the mouth" was not met.

In describing the September acts, however, L.B. testified only that she "put her mouth on his penis." She described the December incident in the same way through leading questions: she saw appellant's penis, and agreed that she "put her mouth there." The prosecutor asked no questions further clarifying the point, and did not ask the child to demonstrate at all the contact between her mouth and the penis. Cf. State v. Walker, 252 Kan. 117, 843 P.2d 203 (1992) (complainant made in-court demonstration of how penis touched her lips, saying "just right there" and pointing; since record was "devoid of any amplification by defense of her demonstration," court could not exclude reasonable inference by jury that penis penetrated victim's lips). Though we agree with the government, both anatomically and legally, that "the lips constitute the entrance to, and are a part of, the mouth," id., 843 P.2d at 217 (quoting instruction),⁴ still there was no evidence from which the jury could reasonably find that the contact with appellant's penis had been made with enough pressure to cause the child's lips to part, even slightly, amounting to an entry into (a "placing in") the mouth. The government's argument thus comes down to the assertion that, given a cylindrical object like the penis shaft, any oral contact between it and the mouth inferably would have caused the lips to open. That seems to us a matter of surmise and not a rational inference beyond a reasonable doubt from the fact alone that the victim placed her lips "on" the penis.⁵ The evidence was insufficient to sustain appellant's convictions for sodomy.⁶See Ashby v. Commonwealth, supra.

III.

In two material respects, the trial judge altered the standard jury instruction on reasonable doubt in this jurisdiction. Appellant argues that, under recent decisions of this court, these combined changes were reversible error. We agree.

The judge's instruction on reasonable doubt was as follows:

Reasonable doubt, as the name implies, is a doubt based on reason. It is a doubt for which you can give a reason. It is such a doubt as would cause a juror after careful and candid and impartial consideration of all of the evidence to be so undecided that he or she cannot say that they have an abiding or deep-seated belief of the defendant's guilt. Reasonable doubt is not a fanciful doubt, nor a doubt based on fantasy, nor a doubt based on a whimsical doubt,

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