Robles v. United States

• Decision Date: 23 August 2012
• Docket Number: No. 11–CM–243.,11–CM–243.
• Citation: 50 A.3d 490
• Parties: Enrique ROBLES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

50 A.3d 490

Enrique ROBLES, Appellant,
v.
UNITED STATES, Appellee.

No. 11–CM–243.

District of Columbia Court of Appeals.

Argued May 15, 2012.
Decided Aug. 23, 2012.

[50 A.3d 491]

Lee R. Goebes, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

John P. Tavana, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time, and Mary B. McCord and Jeffrey T. Cook, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY and THOMPSON, Associate Judges, and FARRELL, Senior Judge.

FARRELL, Senior Judge:

Appellant Enrique Robles was charged with two counts each of misdemeanor sexual abuse of two women, S.L. and M.V., in violation of D.C.Code § 22–3006 (2001).¹ Following a bench trial, the judge found Robles guilty of the two counts relating to S.L. and acquitted him of the counts relating to M.V. On appeal, Robles argues mainly that the judge erroneously denied his motion to sever the counts pertaining to M.V. from those related to S.L., concluding—mistakenly—that evidence of the two sets of charges would be mutually admissible in separate trials to show his intent to have sexual contact with the complainants, without their permission, to gratify his sexual desire. Although the judge's meticulous findings of guilty and not guilty on the respective charges make this a very close case whether Robles was

[50 A.3d 492]

prejudiced by the continued joinder of the charges, we agree with Robles that the refusal to sever charges was erroneous and unfairly prejudicial in the circumstances of the case, and therefore reverse his convictions.

I.

Both alleged pairs of assaults took place at the Ronald Reagan Building in Washington, D.C., where Robles supervised M.V., employed as a dishwasher, and S.L., who was a steward. On an occasion in June 2009, Robles asked M.V. to help him in a storeroom. There he closed and locked the door and, over her resistance, repeatedly touched her sexually by, among other things, pressing his clothed penis against her genitalia and asking her to disrobe. In August 2009, Robles engaged in similar behavior in the storeroom, where he touched M.V. on the buttocks and vagina and, when she pushed him away, grabbed her hand and placed it on his clothed penis and tried to show it to her.

S.L. began experiencing Robles's advances in 2008 when he flirted with her and “tried to touch her and other stuff.” One day in May 2009, unable to arrange transportation home from work, she accepted his offer of a ride home. During the ride Robles told her he wanted to have sex with her and, despite her refusal, pushed his hand into her crotch and tried to touch her genitalia through her clothes. He made clear his desire to have sex with her, and to her question of how he intended to do that replied, “you'll see.”

One day in June 2009 during an evening shift, Robles led S.L. to the storeroom, closed the door behind them, and repeatedly forced himself on her, restraining her and pulling at her clothing. Eventually he pinned her against the wall, pulled her pants down, and forced his penis between her thighs and between her labia. She struggled and broke free, but for a time he prevented her from leaving the room, telling her that his “life [was] in [her] hands,” which she understood to mean he would lose his job if she reported the assault.

S.L. initially did not report either incident to management or the police, but in February 2010 she related the assaults to another work supervisor, from whom she wanted help in finding another job. She also reported them to her daughter and sister, as well as to M.V. Robles was interviewed that same month by agents of the Federal Protective Service; he at first denied any sexual contact with S.L. but eventually insisted that the sexual encounter was consensual.

Following trial, the judge acquitted Robles of the two counts of sexual abuse of M.V.,² but found him guilty of both counts of misdemeanor sexual abuse against S.L. Crediting S.L.'s description of each of the assaults and her explanations for the delay in reporting them, and doubting the credibility of some of Robles's statements to investigators denying unconsented sexual contacts, the judge found beyond a reasonable doubt that Robles had engaged in the charged sexual contacts, in each instance without permission and with the requisite intent to gratify his own sexual desire.

[50 A.3d 493]

II.

When Robles moved before trial to sever the two sets of offenses under Super. Ct.Crim. R. 14,³ the government replied that severance was unnecessary because evidence of the crimes would be mutually admissible in separate trials under Drew v. United States, 331 F.2d 85 (D.C.Cir.1964), and its progeny to show, inter alia, Robles's intent to commit each offense. The trial judge agreed, stating her belief that each charged count “involves either a specific intent crime or a possible raising of a consent defense.” ⁴ On the basis of the proffered evidence, the judge found that “not only [are] there similarities” between the two sets of counts, but that the “similarities go to the defendant's intent to have sexual contact against [the] complainants without their consent,” and—owing to the expected consent defense—also “[go] to motive ... and absence of mistake or accident.”

A.

On appeal, the government in its brief scarcely defends this ruling, in a single footnote sentence stating without elaboration (and with but one citation) that it “does not concede that the trial court's finding of mutual admissibility was in error” (Br. for Appellee at 19 n. 12). At oral argument, similarly, when asked its position on the ruling, counsel for the government said nothing to support it but passed directly to the argument made almost exclusively in the government's brief—and which we discuss below—that, in any case, the judge in this bench trial never in fact amalgamated the evidence of the two sets of charges, even as to Robles's intent or the defense of consent, in finding him guilty of sexual abuse of S.L.

Although we thus could treat as conceded the error in the judge's ruling of mutual admissibility, see Rose v. United States, 629 A.2d 526, 535–36 (D.C.1993),⁵ the government is wise not to advocate for the ruling in any event. “The Drew exceptions for intent, motive, and absence of mistake are applicable only when the defendant's state of mind is a material or genuine issue in the case and not merely a formal element of the crime charged.” Howard v. United States, 663 A.2d 524, 528 n. 6 (D.C.1995) (emphasis in original). The intent required by § 22–3006 was only that Robles had sexual contact with the complainants intending (as relevant here) to “gratify [his] sexual desire.” See note 1, supra. Robles, with one exception, did not dispute that intent.⁶ As to both M.V. and S.L., his defense instead was that the complainants had been willing participants in sexual activity. Section 22–3006 further

[50 A.3d 494]

requires proof that the defendant “should have knowledge or reason to know that the act was committed without th[e] other person's permission” (emphasis added), but that objective mental state also was not genuinely at issue: everyone agreed that if the complainants were believed in their testimony that they repeatedly spurned Robles's advances, there was no room for Robles to misunderstand their withheld permission.

Additionally, the fact that M.V. may not have consented showed nothing as to whether S.L. consented to sexual activity with Robles. See Hurst v. Maryland, 400 Md. 397, 929 A.2d 157, 163–64 (2007) (rejecting argument that the prior complainant's “testimony that she did not consent to sexual relations with [Hurst wa]s relevant to [Hurst's] defense that [the complainant in this case] consented to sexual activity with him”; “[e]vidence that a third party did not consent to sexual intercourse with [the defendant] in the past has no bearing on whether [the complainant in the instant case] consented to sexual activity”); accord, e.g., Lovely v. United States, 169 F.2d 386, 390 (4th Cir.1948); State v. Christensen, 414 N.W.2d 843, 847 (Iowa Ct.App.1987).

In short, given Robles's defense and the limited proof requirements of § 22–3006, his intent or state of mind was not “a material or genuine issue in the case,” Howard, 663 A.2d at 528 n. 6, and the judge's ruling that the facts of the M.V. encounters...