White v. U.S., No. 06-CF-942.

Decision Date16 October 2008
Docket NumberNo. 06-CF-942.
Citation958 A.2d 259
PartiesRobert A. WHITE, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Mindy A. Daniels, appointed by this court, for appellant.

Perham Gorji, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, Roy W. McLeese III, Thomas J. Tourish, Jr., and Deborah L. Connor, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

A jury convicted appellant Robert White of first-degree sexual abuse of a ward. See D.C.Code § 22-3013 (2001). White challenges both his conviction and his sentence, arguing that the evidence was insufficient to support a finding of guilt and that his sentence is unlawful. We affirm.

I.

The government's evidence at trial was as follows. Complainant Timothy Jones1 testified that on November 19, 2004, she had been an inmate in Unit E-2-B at the District of Columbia Correctional Treatment Facility (CTF) for about a week. That morning, when returning from a visit to the law library, Jones requested appellant, who was a correctional officer at the CTF, to help her unlock her cell. Jones had never met White before that day, but she had spoken with him several times that morning, including when she was visiting Darnell Yates, another transgender inmate,2 and during the mid-morning count of prisoners. In response to the request, White asked Jones to step back into the shower area inside the bathroom next to Jones's cell. Jones complied, thinking that White was going to search her cell. Shortly thereafter, White approached Jones with his pants unzipped and his genitals exposed. White masturbated while looking at Jones, and he told Jones to step further back into the shower area. White then ordered Jones to bend down and open her mouth. Jones complied, and White "placed his hand on [Jones's] shoulder" and gave her a "slight tug" to coax her down. White then "stuck his penis in [Jones's] mouth ... [and] ejaculated in [Jones's] mouth."3 After ejaculating, White "pulled out" of Jones's mouth.

Jones returned to her cell and spit the semen from her mouth into a Styrofoam cup. Moments later, Correctional Officer Tocarra Rogers approached Jones's cell while conducting a "cross count," and Jones told Rogers that she needed to speak with her. When Rogers entered the cell, Jones told her that White had "sexually assaulted" her and showed her the cup containing semen. Jones also asked for permission to use the telephone and, when she received it, she called her mother and told her of the assault. A CTF official later escorted Jones off her unit and had her meet with Metropolitan Police Department ("MPD") investigators.

Correctional Officer Rogers testified that, when she was doing a cross-count of CTF Unit E-2-B on November 19, 2004, Jones asked to speak with her. Appearing "frantic" and "upset," Jones told Rogers that White had made her "have oral sex." Jones showed Rogers a white substance on her hand and in a cup. Although Jones asked her to keep the matter private, Rogers told her supervisor what Jones had reported. CTF Nurse Veraellyn Short testified that, on the day in question, Jones, who appeared "afraid" and "very anxious," had reported the incident to her. MPD Detective Lisa Adams-Williams also testified about Jones's report to her about the incident. Jones told Adams-Williams that she had observed that White was uncircumcised and wearing blue and white boxer shorts. Adams-Williams confirmed these observations during her own examination of White's underwear and genitalia.

Government experts testified that swabs from Jones's hand and the Styrofoam cup tested positive for semen. Of two swabs from Jones's mouth, only one tested positive for semen. DNA analyses revealed that the sperm cells present in the swabs of Jones's hand and the Styrofoam cup came from White. DNA analyses of Jones's mouth swabs (swabs Q3 and Q4), however, identified Jones as the only source of sperm and non-sperm cells and excluded White as a contributor.

Appellant White was the sole witness for the defense. He testified that, when investigating a loud noise that came from the bathroom beside Jones's cell, he discovered Jones in the bathroom shower stall with two books. He escorted Jones to her cell, and, puzzled as to why Jones had been in the shower, returned to the bathroom to inspect the area and make sure that Jones had not been hiding contraband. He discovered a pornographic picture affixed to the interior of one of the bathroom stalls. Aroused, White entered that stall and began masturbating. Just as he was in the process of ejaculating, he noticed that Jones had come back into the bathroom and was looking at White's exposed penis. Upon noticing Jones, White snatched the pornographic picture, crumpled it up, and flushed it down the toilet. He hoped that his semen had gone down the toilet but did not check to see whether it had. White let Jones use a different stall and left the bathroom. White denied having sexual contact of any nature with Jones.

On March 15, 2006, the jury convicted White as charged of first degree sexual abuse of a ward. See D.C.Code § 22-3013 (2001). On July 21, 2006, the trial judge (the Honorable Erik Christian) sentenced White to eighty-four months' imprisonment. Referencing section 5.2.2 of the District of Columbia Voluntary Sentencing Guidelines (the "Voluntary Sentencing Guidelines" or the "Guidelines"), Judge Christian stated that he was departing from the recommended sentence of one to three years' imprisonment in light of his finding that White knew or should have known of Jones's transgender status, which, the court reasoned, constituted a "reduced physical capacity." White timely appealed.

II.

We first consider White's challenge to the sufficiency of the evidence to support his conviction. We "review[ ] the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Scott v. United States, No. 04-CF-527, 2008 WL 3861363, at *8 (D.C. Aug. 21, 2008) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C.1987)). "[I]t is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." Florence v. United States, 906 A.2d 889, 893 (D.C.2006) (internal quotations and citations omitted). In this case, therefore, we must affirm the conviction if there was evidence from which reasonable jurors could fairly infer that White committed a "sexual act" against Jones, specifically, as charged, "contact between [Jones's] mouth and [White's] penis." D.C.Code § 22-3001(8)(B) (2001).

In arguing that the evidence was not sufficient to establish that a sexual act occurred, White first emphasizes that there were "no eyewitnesses" to the incident and that "Jones did not refer to actual contact between his mouth and White's penis." White acknowledges that a conviction may rest upon the credible testimony of one witness alone, but maintains that Jones's testimony was not credible because it was undermined by the witnesses' differing accounts of what Jones reported and by the DNA evidence (which, he contends, is "not inconsistent with the defense theory that Jones came upon White in the bathroom, caught him masturbating, and collected White's sperm for his own story").

White is correct that there were differences in the testimony of the government's witnesses about the incident reported by Jones. According to Rogers, Jones reported that White made Jones have "oral sex." Nurse Short testified that Jones said White made Jones "suck his thing." Detective Adams-Williams testified that Jones reported that White "forced [Jones] to suck his penis until he ejaculated." By contrast, in her testimony, Jones denied engaging in "oral sex," testifying instead that Rogers put his penis in her mouth and ejaculated. But, as we stated in Payne v. United States, 516 A.2d 484 (D.C.1986), "contradictions between witnesses at trial are inevitable...," id. at 495, and the jury, whose job it is to "resolve [contradictions] as they weigh all the evidence," id., could have reasonably found that any variation in the testimony was purely semantic or otherwise immaterial. Moreover, testimony is not inherently unbelievable simply "because it was inconsistent with the testimony of other government witnesses, [or] was at times, internally inconsistent." Id.

White further contends that, even taking Jones's testimony as true, the jury had no basis for finding that there was the "actual physical contact" required for conviction. White acknowledges that Jones testified to contact between Jones's mouth and White's semen. However, emphasizing Jones's denial of any "oral sex" between herself and White, White argues that Jones's testimony did not establish that there was contact between Jones's mouth and White's penis, as was required to convict White of the "sexual act" described in D.C.Code § 22-3001(8)(B). We reject this argument. Even if "mere" contact between Jones's mouth and White's semen falls outside the statutory definition of "sexual act"a proposition that we would be loathe to accept — Jones's testimony did describe contact between her mouth and appellant's penis. Jones's statement "he came in my mouth" could denote that White's penis, not just his semen, entered Jones's mouth. To the extent that this testimony was ambiguous as to the meaning of "came," the jury had the prerogative to resolve this ambiguity in favor of a finding of guilt. See Clark v. United States, 755 A.2d 1026, 1031 (D.C.2000) (deferring to the jury's finding that an ambiguous phrase constituted a threat under the circumstances).

Further, Jones testified...

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