Mattete v. United States , 2006 D.C. App. LEXIS 359 ( 2006 )

WASHINGTON, Chief Judge:

After a bench trial, appellant Patrick C. Mattete (“Mattete”) was found guilty of misdemeanor sexual abuse¹ and simple assault.² The trial court acquitted Mattete of attempted threats.³ On appeal, Mattete contends: (1) the evidence was insufficient to support his convictions; (2) a detective’s testimony at trial exceeded the permissible scope of the report-of-rape rule; (3) the trial court erred in erroneously attributing testimony to Mattete; and (4) his conviction for simple assault merges into his conviction for misdemeanor sexual abuse. We agree with Mattete that his conviction for simple assault merges into his conviction for misdemeanor sexual abuse, and remand his case to the trial court solely for the purpose of vacating his assault conviction. As to all other claims, we affirm.

ANALYSIS

A. Sufficiency of the Evidence

When reviewing a claim of insufficiency of the evidence, “[w]e view the evidence in the light most favorable to the government, recognizing the province of the trier of fact to weigh the evidence, determine the credibility of the witnesses and to draw reasonable inferences from the testimony.” Dickerson v. United States, 650 A.2d 680, 683 (D.C.1994); see also Gibson v. United States, 792 A.2d 1059, 1065 (D.C.2002). The government “must present ‘at least some probative evidence on each of the essential elements of the crime.’” Price v. United States, 746 A.2d 896, 899 (D.C.2000) (quoting Robinson v. United States, 506 A.2d 572, 573 (D.C.1986)). Furthermore, in reviewing bench trials, “this court will not reverse unless an appellant has established that the trial court’s factual findings are plainly wrong or without evidence to support [them].” Mihas v. United States, 618 A.2d 197, 200 (D.C.1992) (internal quotation marks and citation omitted); D.C.Code § 17~305(a) (2001).

To support a conviction for misdemeanor sexual abuse, the government must prove beyond a reasonable doubt “(1) that the defendant committed a ‘sexual act’ or ‘sexual contact’ as defined in D.C.Code § 22-4101;⁴ and (2) that the defendant knew or should have known that he or she did not have the complainant’s permission to engage in the sexual act or sexual contact.” Mungo v. United States, 772 A.2d 240, 244-45 (D.C.2001).

Mattete argues on appeal that the evidence was insufficient to convict him of misdemeanor sexual abuse because there was no evidence that Mattete touched the complainant’s inner thigh, as required by D.C.Code § 22-3001(9). He contends that “[t]he only part of the body that [the complainant] testified to being touched by Mr. Mattete was her leg and thigh outside of her clothing.” Accordingly, he argues, the government failed to prove the elements for this conviction beyond a reasonable doubt.

The record reflects that the complainant testified at trial and, on more than one occasion, demonstrated for the court how Mattete touched her on her thigh. During one demonstration, the court articulated what the complainant had described: “And the way she demonstrated, that his hands came from, she had her hand coming from the knee up her thigh.... So the way she demonstrated came all the way up her thigh.”

During the complainant’s cross-examination, the trial court again asked the complainant:

Q: In describing the rubbing that took place on the couch, I think ... you said it went all the way up and you demonstrated it all the way up to the top of your thighs, right?

A: Yes, Your Honor.

The complainant also testified that the appellant continuously rubbed her legs and attempted to undress her by grasping at the clasp on the side of her skirt. Mattete neither objected to the complainant’s demonstration nor argued at any point in the trial that the complainant’s demonstration was insufficient.⁵ In order for us to reverse, we would have to presume that the complainant’s demonstrations failed to reflect the touching of the inner thigh and that the prosecutor, defense counsel, and trial court were all unaware of the requirement under D.C.Code § 22-3001(9). Because the trial court’s judgment comes before us with a presumption of correctness, and there is no evidence that the parties and the court were unaware of the requirement that there be a touching of the inner thigh when the complainant made her in-court demonstration, we are satisfied that the evidence, viewed in the light most favorable to the government, was sufficient to sustain Mattete’s conviction.⁶ See Bell v. United States, 806 A.2d 228, 232 (D.C.2002) (quoting Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982)).⁷

We note that, to some extent, this case is similar to our decision in Carter v. United States, 826 A.2d 300 (D.C.2003). In Carter, we upheld the appellant’s conviction for misdemeanor sexual touching of the complainant’s inner thigh. Although the complainant never testified that the appellant touched her inner thigh, we found the evidence sufficient to support Carter’s conviction. Specifically, we found that the complainant’s testimony that Carter was attempting to push his hand through her clenched legs toward her vagina was sufficient to show that there was touching of the inner thigh. Despite the fact that there was no affirmative acknowledgment by the trial court that a touching of the inner thigh was a necessary element of the crime, we nonetheless concluded that there was “no appreciable possibility” that the trial judge, who held the book containing the misdemeanor statute in her hand, failed to read the statute. Carter, 826 A.2d at 309. Although not factually identical to this case, Carter does support the contention that trial court judgments, which come to us with a presumption of correctness, should be upheld when there is no indication in the record that the trial court was unaware of the law’s requirements.

B. Report-of-Rape Rule

Mattete argues that the trial court abused its discretion in allowing Detective Andrews, a witness for the government, to testify beyond the scope of admissible testimony under the report-of-rape rule. Mattete argues that “Detective Andrews should [] only have been permitted to testify as to what touching Mr. Mattete allegedly did in the apartment, and what threat he allegedly made in the apartment,” as opposed to the events occurring before and after the incident. Mattete contends that, in addition to the Detective’s testimony exceeding the scope, the government and the trial court improperly used the testimony to corroborate the complainant’s testimony.

Under the report-of-rape rule, “a witness may testify that the complainant stated that a sexual crime occurred and may relate the detail necessary to identify the crime.” Galindo v. United States, 630 A.2d 202, 209 (D.C.1993). “Under the report-of-rape rule, testimony that the complainant reported that she was the victim of a sexual assault was admissible ‘not for the truth of the matter asserted, but merely for the fact that the statement was made.’” Battle v. United States, 630 A.2d 211, 216-17 (D.C.1993) (quoting Fitzgerald v. United States, 443 A.2d 1295, 1304 (D.C.1982) (en banc)).

In this case, even assuming the trial court erred in allowing Detective Andrews to testify beyond the scope of the report-of-rape rule, we are satisfied that the error was harmless. On appeal, Mat-tete does not challenge Detective Andrews’ testimony about the incidents which occurred at Mattete’s house. Rather, Mat-tete complains that Detective Andrews should not have been allowed to testify as to why Mattete picked the complainant up and why the two went to his house, as well as to the events which occurred after the alleged sexual abuse. Even assuming this was error, however, Mattete has failed to show how the “extraneous” testimony prejudiced him. See Galindo, 630 A.2d at 209. The complainant’s testimony was sufficient to convict Mattete, and the trial court credited and properly relied on this testimony. See id. Finally, Mattete’s argument that the trial court improperly relied on Detective Andrews’ testimony to “corroborate” the complainant is without merit. See Williams v. United States, 756 A.2d 380, 386 n. 6 (D.C.2000) (stating that “use of the term ‘corroborate’ does not imply that the content of [complainant’s] statements [ ] was admissible for its truth,” but simply implies that the complainant’s disclosure tends to support the complainant’s testimony regarding the defendant’s crimes).⁸

C. Merger

Finally, we agree with both Mattete and the government that Mattete’s conviction for simple assault merges into his conviction for misdemeanor sexual abuse. See Mungo, 772 A.2d at 246. Accordingly, we remand Mattete’s case to the trial court solely for the purpose of vacating his conviction for simple assault.

As to all other claims, the judgment of the trial court is

Affirmed.

1 . In violation of D.C.Code § 22-3006 (2001).

2 . In violation of D.C.Code § 22-404 (2001).

3 . In violation of D.C.Code § 22-407 (2001).

4 . This section was recodified in D.C.Code § 22-3001(9) (2001). The statute defines "sexual contact” as "the touching with any clothed or unclothed body part of any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

5 .Our dissenting colleague infers from this testimony that Mattete only touched the complainant’s outer thigh area as he reached for the clasp. While that testimony explicitly established that the appellant touched the complainant's outer thigh, it also raised a reasonable inference that he also touched the inner thigh, especially given the complainant's testimony that appellant was rubbing all the way up her leg. Dissent, note 2.

6 . Unfortunately, this case was made significantly more difficult to review because the prosecutor failed to describe the demonstration fully for the record and the trial court did not insist that the prosecution do so.

7 . We need not address whether the evidence was sufficient to support Mattete’s conviction for simple assault because, as we address below, that conviction merges with his conviction for misdemeanor sexual assault and will be vacated on remand.

8 . We are also unpersuaded by Mattete's arguments that he was prejudiced by the trial court’s improper attribution of testimony to him regarding why he invited the complainant to his house. He also states that the Detective’s testimony on this issue, which he claims went beyond the scope of the report-of-rape rule, "poison[ed] the Judge’s general assessment of the parties’ credibility.” Although it appears that the trial court made an erroneous factual finding when it stated that Mattete asked the complainant to his home to meet his sister, this finding was not, as Mat-tete argues, the key factor in the trial court's decision, but one of numerous findings upon which the trial court relied on in making its final judgment. Because the trial court relied, inter alia, on the demeanor and believability of the complainant, the unbelievability of Mattete’s testimony, and their past encounters with each other, we are satisfied that no prejudice flowed from the trial court’s erroneous recollection of Mattete’s testimony on the issue of why the two of them went to Mat-tete's house.