United States v. Terry, No. 22547.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: WILBUR K. MILLER, Senior Circuit , and WRIGHT and TAMM, Circuit
• Citation: 422 F.2d 704,137 US App. DC 267
• Docket Number: No. 22547.
• Decision Date: 14 January 1970
• Parties: UNITED STATES of America v. Tyrone TERRY, Appellant.

137 US App. DC 267, 422 F.2d 704 (1970)

UNITED STATES of America
v.
Tyrone TERRY, Appellant.

No. 22547.

United States Court of Appeals, District of Columbia Circuit.

Argued September 22, 1969.

Decided January 14, 1970.

Petition for Rehearing Denied February 10, 1970.

422 F.2d 705

Mr. Charles E. Yonkers, Washington, D. C. (appointed by this court) for appellant.

Mr. Donald B. Nicholson, Special Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee. Messrs. David G. Bress, U. S. Atty. at the time the record was filed, John A. Terry and Theodore Wieseman, Asst. U. S. Attys., also entered appearances for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and TAMM, Circuit Judges.

TAMM, Circuit Judge:

Appellant was charged in a two-count indictment with taking indecent liberties with a minor child (22 D.C.Code § 3501 (1967)) and assault with intent to commit carnal knowledge (22 D.C.Code § 501 (1967)). He was tried by a jury in the district court and found guilty on both counts; however, the trial judge set aside the verdict on the indecent liberties count because the jury had been instructed not to consider this charge if it found him guilty on the assault count. Appellant subsequently was sentenced to imprisonment for three to nine years, and in due course he prosecuted this appeal. We affirm.

I. CORROBORATION OF THE CORPUS DELICTI

Appellant's principal assertions of error in this appeal are based upon the sufficiency of the evidence which the Government introduced as corroboration for the complainant's testimony. It has long been the rule in this jurisdiction that no person may be convicted of a sex offense when the only evidence against him is the testimony of the alleged victim. The reason underlying this doctrine is simple and of ancient lineage:¹ it has been felt, whether rightly or wrongly, that the risk of unjust conviction is particularly high in the prosecution of sex offenses, and thus the corroboration requirement has been added to the Government's burden of proof as an additional safeguard for the defendant. In this jurisdiction the corroboration doctrine has evolved through the years into a twofold requirement that the prosecution introduce independent evidence showing both the commission of the corpus delicti and the identity of the defendant as the perpetrator of the offense. See generally Coltrane v. United States, 135 U.S.App.D.C. 295, 418 F.2d 1131 (1969). Appellant contends that the evidence adduced by the Government in this case failed to satisfy either half of the corroboration requirement.

A. The Evidence Adduced at Trial

The complainant, a fourteen-year-old girl, testified that she visited a record shop on her way home from school on the afternoon of October 3, 1967. As she left the shop, she was accosted by a man, later identified as the appellant, who "touched her on the behind" and attempted to engage her in conversation (Tr. 119). She further testified that the appellant followed her for several blocks, disregarding her repeated entreaties to leave her alone, and then hit her in the face with his fist and forced her into the basement of an apartment building. At this point the appellant told her that he wanted to kiss her,

422 F.2d 706

pushed her to the floor, pulled off her underpants, and unzipped his trousers. She managed to resist his advances and escape, but sustained a kick in the eye before the encounter terminated

An officer from the Metropolitan Police Department testified that the complainant reported the incident to the Sixth Precinct station between four and five o'clock that same afternoon, accompanied by her mother; at that time she was "very nervous, fast talking and nervous and generally upset" (Tr. 146). She had visible bruises and contusions on her face which were photographed by the police, and these photographs were introduced into evidence at the trial (Tr. 144-45). After the complainant calmed down, she gave the police a description of her assailant.

The defense chose not to contest the complainant's version of the assault,² but rather relied primarily upon the reliability of the complainant's identification of appellant as the one who had attacked her. The appellant testified on his own behalf, advancing an alibi defense. Although he professed no personal recollection of the afternoon in question, appellant stated that he customarily walked to his home, which was located near the scene of the crime, after leaving his job at two o'clock in the afternoon, and then slept until seven or eight o'clock in the evening (Tr. 176-78, 198-99). He further testified that he went to the record shop where the complainant said the attack began "just about every day" (Tr. 177) but that he had not seen the complainant until he was accused of this offense. Appellant called no other witnesses on his behalf.

B. Sufficiency of the Corroboration

Appellant contends that there was insufficient corroboration of the intent element to sustain his conviction for assault with intent to commit carnal knowledge, relying primarily upon Allison v. United States, 133 U.S.App.D.C. 159, 409 F.2d 445 (1969). The Allison opinion held that every material element of the corpus delicti must be corroborated,³ and that there was insufficient corroboration for the intent to commit carnal knowledge even though the Government had produced evidence showing the complainant's prompt reporting of the incident, distraught emotional condition, and lack of motive to fabricate, together with the testimony of an eyewitness who said that the appellant was "on top of" the screaming complainant. In the instant case, the appellant contends, the only evidence corroborative of the corpus delicti — complainant's prompt reporting, distraught emotional condition, facial bruises, and lack of motive to fabricate — must be deemed insufficient corroboration of his intent

422 F.2d 707

under Allison. This syllogism is appealing but we think that it rests upon a misconception of the manner in which the corroboration requirement must be applied

As a basic principle, it seems clear that corroboration in a case involving an alleged sex offense is any evidence, outside of the complainant's testimony, which has probative value — any evidence which could convince the trier of fact that the crime was committed. This fundamental proposition was forcefully stated in Borum v. United States, 133 U.S.App.D.C. 133, 147, 409 F.2d 433, 439, cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969):

Even where the effort is to prove a fact, rather than less arduously to corroborate testimony, "the competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry * * *." As Dean Wigmore has put it, "the general and broad requirement for Relevancy is that the claimed conclusion from the offered fact must be a possible or a probable or a more probable hypothesis, with reference to the possibility of other hypotheses."

Although these tenets are well established, it must be admitted that some of our decisions have required a greater quantum of corroborative proof than others. At least part of this inconsistency can be traced to the rationale underlying the corroboration requirement: the desire to protect defendants from the risk of being convicted on fabricated or mistaken charges. Clearly, this risk will vary markedly depending upon the age and sex of the complainant, the existence of a previous relationship between complainant and defendant, and other circumstances of the case; thus it is well established in this jurisdiction that "the need for corroboration depends upon the danger of falsification." Thomas v. United States, 128 U.S.App. D.C. 233, 234, 387 F.2d 191, 192 (1967).

The factual element of the corroboration requirement looms even larger when the defendant's intent is a material fact in the offense alleged. As the standard jury instruction in this jurisdiction recognizes, proof of intent is largely a matter of inference and deduction which is usually committed to the jury as trier of fact:

Intent ordinarily cannot be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind. But you may infer as to the defendant\'s intent from the surrounding circumstances. You may consider any statement made and act done or omitted by the defendant, and all other facts and circumstances in evidence which indicate his state of mind.⁴

Thus it would seem to follow that when the issue is corroboration of the intent element, the jury's role is, if...