JIMMY R. AUGUSTIN, APPELLANT, v. UNITED STATES, APPELLEE.
No. 17-CF-906
DISTRICT OF COLUMBIA COURT OF APPEALS
October 29, 2020
Argued October 2, 2019
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (CF2-19807-16)
(Hon. Patricia Broderick, Trial Judge)
Anna B. Scanlon for appellant.
Ann M. Carroll, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the case was argued, and Elizabeth Trosman, John P. Mannarino, and Jennifer Loeb, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and THOMPSON, Associate Judges.
I.
Appellant was convicted after a bench trial in the Superior Court. He did not testify or call any witnesses in his defense. Except as indicated below, the material facts are undisputed and may be summarized as follows.
In the fall of 2016, when appellant was a thirty-three-year-old athletic trainer and teacher at a Washington, D.C., parochial high school, he became infatuated with A.G., one of the student athletes he had taught and advised. She was then in her senior year, just a few months shy of her eighteenth birthday, and she had what she called a “crush” on appellant. In mid-September, appellant began asking A.G. to visit him in his school office. She did so, almost daily. During several of these visits, appellant hugged her closely and affectionately. The MSA-M charges were based on these embraces. During a few visits appellant kissed A.G., including once on the lips. The simple assault charge was for the kissing.
A.G. testified at trial that during the approximately month-long period in September and October when they were meeting in appellant‘s office, he hugged her a total of approximately eight or ten times, and he kissed her about five times in all. Usually they were alone in the office, but sometimes others were present, including a student who worked there with appellant and observed some of the hugs.
Appellant‘s hugs initially were brief and casual in nature, but over time, A.G. said, they became “slightly longer,” up to four to five seconds in duration. A.G. characterized three or four of appellant‘s embraces as “intense,” and “intimate,” and like “the kind of hugs [one] would exchange with [one‘s] boyfriend.” Appellant held her tightly and firmly in these hugs, with his hands around her shoulders and sometimes, “momentarily,” on the small of her back above her waistline. They both remained fully clothed. Their upper bodies, stomachs, hips, and lower areas were all in contact. Appellant did not rub or move his body against A.G.‘s. He did not caress or fondle her, nor did he ever put his hands on her breasts or anywhere below her waist. During one hug, appellant kissed A.G. on the cheek. They both remained fully clothed. A.G. did not testify that appellant had an erection or otherwise appeared to become sexually aroused. Appellant may have told A.G. she looked pretty or complimented her on her appearance, but she did not testify that he spoke to her in any more sexually heated or provocative way during these hugs.
A.G. testified that she and appellant scheduled times when they could meet up to kiss. In early October, appellant kissed A.G. once on the lips while they were sitting in his office. As A.G. described it, “[h]e leaned in and then [she] leaned in,” he kissed her, and she kissed him back. It lasted less than two seconds. A.G. felt “shocked, a little nervous, [and] a little excited” by the kiss. She did not object to it. On another occasion, A.G. recalled, appellant kissed her on her neck about an inch or two below her ear. A.G. denied that this happened during any of appellant‘s hugs, and she did not recount at trial the circumstances in which it occurred.
A.G. acknowledged at trial that she had a “crush” on appellant and had told him so. She said he responded that he felt the same way about her. He also told A.G. he loved her, did not expect his marriage to last, and wanted to be in a long-term relationship
Appellant and A.G. exchanged text messages during their relationship that were flirtatious and that became more sexually explicit. In one message, appellant told A.G. it was “about time I picked you up[,] put you up against the wall[,] [g]ot right up against you[,] felt you breathing and looked you right in your eyes.” A.G. responded “Yes yes yes” and the exchange of text messages continued in a provocative vein. In another communication, A.G. told appellant that she wanted to have sex with him, and he responded, “it‘s on!” In other messages, appellant told A.G. he “crave[d]” her and that he was going to “sex [her] like it‘s [his] last meal.” Appellant sent A.G. a photograph of himself with his shirt off, and A.G. sent appellant a photograph in which her midriff was exposed.
Appellant‘s liaison with A.G. came to an abrupt end after only a few weeks. A.G. incautiously had shared screen shots of some of appellant‘s text messages in a group chat with her high school friends. On October 23, one of those friends, who had worked at school with appellant, inadvertently sent the screen shots to appellant‘s phone. Appellant called her early the next morning and denied having a relationship with A.G. because, as he told her, “she wasn‘t of age.” Later that day, appellant‘s wife contacted the sender of the screen shot and another of A.G.‘s friends to find out what was going on. One of them, accompanied by the student who worked in appellant‘s office and had observed some of the hugging there, then reported the matter to the school administration. Appellant was placed on leave and the police were called in.
Appellant was charged by information with MSA-M and simple assault.3 The trial judge convicted him of one count of MSA-M based on his “intimate and intense” hugging of A.G., and of the simple assault count based on his kissing of A.G.4 The judge explained her guilty verdict on these two counts as follows:
From the facts that I‘ve heard in this case I do find that the defendant was older, that he was in a legally defined significant relationship. And that the complainant was 17 years of age. I find that between the dates of September and October of 2016, the defendant hugged the minor[,] A.G., in an intimate and intense way. He held her very close so that there was a touching of the breast and genitalia area. Mainly breast area, however. And he did that while also kissing her on the neck and did it for sexual gratification and possibly arousal. So, I find him guilty of count one[,] [misdemeanor sexual abuse of a minor].
. . . .
[C]ount four refers to the assault. And that refers to the kiss. I find the kiss by a person of significant relationship, teacher, with power over the person in a closed office with no one else there during school time to be an assault in the same manner. So, I find him guilty. She has no consent. I find—and he knew she
had no consent. I find him guilty of count four.
II.
A.
In the Anti-Sexual Abuse Act of 1994 (the ASAA), which is codified in Chapter 30 of Title 22 of the D.C. Code, the Council “revamped the sex offense laws of the District of Columbia.”5 The ASAA groups sex offenses into four categories. The first category consists of several offenses involving the commission of a “sexual act” or “sexual contact” (as defined) against the victim‘s will or without the victim‘s consent (typically by means of force or threats, or by taking advantage of the victim‘s incapacitation or impairment).6 “[T]he offenses in the other ASAA categories address particular situations and relationships in which the victims are deemed incapable of giving meaningful consent, and for which coercion accordingly is presumed.”7 One of these categories, as originally enacted, described sexual offenses against child victims, a “child” being defined as “a person who has not yet attained the age of 16 years.”8 This category of child victim offenses is now codified in
In 2007, the Council amended the ASAA. In doing so, it expanded the child victim category by adding new offenses prohibiting the sexual abuse of “minors” by persons in a “significant relationship” with them.10 The amendments defined a “minor” to mean “a person who has not yet attained the age of 18 years,”11 and a “significant relationship” to encompass a minor‘s relationship with any “person in a position of trust with or authority over” the minor, specifically including school teachers, coaches, and other school employees.12
One of these new minor-victim offenses, to which consent is not a defense, is MSA-M. As set forth in
the term “sexually suggestive conduct” means engaging in any of the following acts in a way which is intended to cause
or reasonably causes the sexual arousal or sexual gratification of any person: (1) Touching a child or minor inside his or her clothing;
(2) Touching a child or minor inside or outside his or her clothing close to the genitalia, anus, breast, or buttocks;
(3) Placing one‘s tongue in the mouth of the child or minor; or
(4) Touching one‘s own genitalia or that of a third person.14
Appellant‘s challenge to the sufficiency of the evidence to convict him of MSA-M for hugging A.G. focuses on both the actus reus and the mens rea components of “sexually suggestive conduct.” He argues that the government‘s proof was insufficient to establish either (1) that he engaged in an act of “touching” A.G.‘s breast or other specified private parts within the meaning of
on a factual finding not supported by the evidence, to wit, that he was “kissing her on the neck” while he was hugging A.G.
The first, actus reus, question turns on a threshold issue of statutory interpretation that we review de novo.17 Appellant contends that, by using the word “touching” in
out for purposes of ‘feeling.‘”18 Thus, appellant argues, evidence of hugging alone is not enough to prove the actus reus of MSA-M set forth in
We agree that
The ASAA does not define the term “touching.” “When the terms of a statute are undefined and not recognized terms of art, we presumptively accord them their ordinary meaning in common usage, taking into account the context in which they are employed.”19 The dictionary is a “useful starting point.”20 But “individual words of a statute are to be read in the light of the statute taken as a whole, and where possible, courts should avoid constructions at variance with the
policy of the legislation as a whole.”21 Hence “[w]e consider statutory context and structure, evident legislative purpose, and the potential consequences of adopting a given interpretation.”22
The primary dictionary definition of the word “touch,” when it is employed as a transitive verb (as it is in
arouse“; “to lay hands upon“; and “to put hands upon in any way or degree.”24 There is clearly a broad range of transitive verb usage of the word “touch.”
For three reasons, we are not persuaded that the Council meant to use the word “touching” only in its more restrictive (even if primary) sense of feeling or tactile sensing.
First, the “sexually suggestive conduct” prohibited in
Second, that indication is reinforced by the fact that the ASAA also employs the transitive verb “touching” when it defines “sexual contact” as “the touching with any clothed or unclothed body part or 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.”25 Here, too, the prohibited conduct includes touching that does not necessarily involve the tactile sense; indeed, because the touching may be with “any object,” the actor does not have to feel or sense the contacted part of the victim at all.26 We have no reason to suppose that the Council intended the word “touching” to have different meanings in the two places it is used in the ASAA.
Third, adopting the restrictive definition of “touching” that appellant proposes would tend to undercut the overriding legislative policy of the ASAA to protect children, minors, and other persons from all kinds of sexual abuse.27 We
see no reason the Council would have wanted to withhold that protection in cases where the perpetrator could commit the abusive conduct without tactile “feeling.”
But as we have said, this does not mean
“In challenging the sufficiency of the evidence, appellants face a difficult burden.”29 Viewing the evidence, as we must, in the light most favorable to sustaining the factfinder‘s verdict, we will overturn a conviction on insufficient proof grounds only if there was “no evidence” adduced at trial “upon which a reasonable mind could find guilt beyond a reasonable doubt.”30 In bench trials, we thus
Yet if our review of the sufficiency of the evidence is deferential, it is not “toothless.”33 “We have an obligation to take seriously the requirement that the
evidence in a criminal prosecution must be strong enough that a [factfinder] behaving rationally really could find it persuasive beyond a reasonable doubt.”34 This “means more than that there must be some relevant evidence in the record in support of each essential element of the charged offense. The fact that evidence is relevant does not automatically make it sufficient to support a criminal conviction.”35 There is an “important distinction between concluding that given evidence would reasonably permit a [factfinder] to infer [guilt] and concluding that the same evidence is by itself sufficient to establish [guilt] beyond a reasonable doubt.”36
As appellant contends, it appears the trial judge based her guilty verdict in part on a factual finding that was plainly wrong and without support in the evidence the finding that while appellant hugged A.G. on one occasion, he also kissed her on the neck. This was contrary to A.G.‘s own testimony that the kiss on her neck did not occur during a hug, and there was no evidence that it did.37
According to A.G., whom the judge credited, appellant gave her a few tight, “intense” and “intimate” body-to-body hugs lasting several seconds, during which his chest pressed against her breasts, and areas somewhere in the vicinity of their genitals also made physical contact. Appellant may have complimented A.G. on her appearance while doing so. If we were to view A.G.‘s description of the hugs in isolation, as it were, we doubt we could deem it sufficient by itself to support a finding with the requisite degree of certainty that appellant embraced A.G. for purposes of sexual gratification or arousal. To be sure, appellant crossed a line he should not have; but the patent inappropriateness of his conduct is not enough to establish that the specifics of MSA-M were sufficiently proved. There was no testimony that appellant spoke to A.G. in a sexually provocative way during these hugs; that he had an erection while hugging her; that he caressed A.G. or kissed her in a passionate or intimate manner; that he rubbed his chest against her breasts (or any other part of his body against hers); that his hands touched or went near any of the parts of A.G.‘s body protected by the MSA-M statute; or that appellant performed
There was additional evidence beyond the mere descriptions of the hugs, however. The relationship between appellant and A.G. was not merely friendly; it was unabashedly and overtly amorous. Appellant‘s text messages unambiguously expressed his strong “crav[ing]” to consummate it sexually with her as soon as possible. Appellant also evinced his frustration that A.G. was not yet eighteen; he eagerly anticipated and fantasized about the day when she would be “legally old enough.” As appellant argued at trial, his sexually explicit communications with A.G. may have come later in their relationship than the embraces at issue, rather than being exactly contemporaneous with them. Perhaps that fact might diminish somewhat the probative value of the sexually tinged communications. Even so, we think that a trier of fact, taking the overall nature of the relationship and their communications into consideration, reasonably could have inferred that at least some of appellant‘s physically intimate and intense hugs of A.G. were motivated by his sexual craving, and that he did press his body against A.G.‘s breasts and genital areas during those hugs in order to derive sexual arousal or gratification from that contact. It could be inferred that these prolonged body-to-body hugs were indeed a manifestation of appellant‘s implicitly sexual desire to “put [A.G.] against the wall” and “[ge]t right up against [her],” and that they were the closest experiences he thought he could have with A.G. to appease his sexual desires until she turned eighteen.
Such inferences are plausible enough that we conclude the government did present sufficient evidence to permit, if not compel, a court to find appellant guilty of MSA-M. That conclusion comes with a caveat, however. The inferences are not for this court to draw. They are for the factfinder to consider and decide what weight to give them under the totality of the circumstances.38 In this case, the trial judge did not explicitly address them, nor did she discuss the import of the text messages in her findings.39 Furthermore, the judge cited few specific facts in support of her verdict, and one of the few facts the judge did mention and appear to
rely on as proof of appellant‘s intent to obtain sexual gratification—that appellant kissed A.G. on the neck while he hugged her—was not supported by the evidence.
Where, as here, the evidence is sufficient to support a verdict of guilty in a bench trial, but the trial judge appears to have grounded the verdict on a mistaken view of the facts without (apparently) having considered and rejected the permissible factual basis, the proper course is for this court to remand the case for the trial judge to weigh the evidence afresh.40
B.
Appellant also contends there was insufficient evidence for the trial court to
We have construed our simple assault statute,
In Mungo we said that “[n]on-violent sexual touching assault . . . is committed by the voluntary touching of another in a sexually sensitive or ‘private’ area without consent,” and we added that it “need only consist of a touching that could offend a person of reasonable sensibility.”43 Thus, “the proscribed act—the actus reus of non-violent sexual touching can be less intimate than the behavior” defined in the ASAA as a “sexual act,” “sexual contact,” or “sexually suggestive conduct.”44 Moreover, as we also explained in Mungo, there is a “fundamental difference” in the respective mens rea requirements of the common law offense of non-violent sexual touching assault and the sexual abuse offenses defined in the ASAA, in that the simple assault offense requires only “the intent to do the proscribed act.”45 It does not require proof of an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.46 So while simple non-violent sexual touching assault may be a lesser-included offense of some ASAA offenses,47 the essential elements of such a misdemeanor assault by
themselves do not add up to any violation of the ASAA.
Although the prosecution generally must prove the absence of valid consent to secure a conviction for simple non-violent sexual touching assault (or other sexual assaults), it has been the “longstanding rule that a child is legally incapable of consenting to sexual conduct with an adult. . . . because [children] ‘do not understand what is happening to them.‘”48 Thus, “[i]f the complainant was a child
at the time of the assault, . . . the defense of consent is unavailable.”49 We have understood “the age of consent”50 for non-violent sexual touching assault and other common law sexual assault offenses to be sixteen years. So, for example, in Jenkins v. United States, 506 A.2d 1120 (D.C. 1986), where the prosecution was for a sexual assault against a seventeen-year-old complainant, we held that the trial court had erred in refusing to instruct the jury on the proffered defense of consent.51
From its inception in 1995, the ASAA incorporated the sixteen-year-old age of consent rule and precluded consent as a defense in prosecutions under the child-specific provisions of the ASAA.52 The ASAA said nothing about whether or when consent is a defense to non-ASAA sex offenses such as simple assault based on non-violent sexual touching. For that and any other such offenses, the Council left the common law rule unaltered.
In 2007, when the Council amended the ASAA and added MSA-M and the other new offenses extending limited protections to minors aged sixteen and seventeen, it amended the consent-defense preclusion to
But that does not mean the Council raised the age of consent in a simple assault prosecution for a non-violent sexual touching of a minor. In
Accordingly, we agree with appellant that sixteen years is the age of consent for the non-violent sexual touching prosecuted as simple assault in this case, and that the trial judge‘s ruling that seventeen-year-old A.G. lacked the legal capacity to consent to appellant‘s kisses was legal error. To convict appellant of simple assault, it was the government‘s burden at trial to prove he kissed A.G. without her consent. As its fallback position in the event of that conclusion, the government has asked us to remand for the trial judge to make specific factual findings as to whether A.G. gave valid consent. Although we are remanding for findings regarding appellant‘s intent in hugging A.G., we decline to do so for this additional purpose. Such a remand would be appropriate only if the existing evidentiary record could support a finding that the government sufficiently proved lack of consent.55 But the record could not support
III.
For the above reasons, we vacate appellant‘s conviction for misdemeanor sexual abuse of a minor, reverse his conviction for simple assault, and remand for further proceedings in accordance herewith.
So ordered.