Brake v. United States
494 A.2d 646
D.C.
1985
Check Treatment

*2 BELSON, Associ- Before FERREN and REILLY, Judge, Re- Judges, and Chief ate tired.

FERREN, Judge: Associate jury on a tried before a Appellant was including charges of indictment multi-count un- a female taking indecent liberties with assaulting her age of 16 and der the sodomy in violation intent to He -3502 of D.C.Code §§ count. In this on the latter was convicted court, challenges his conviction but he pursuant imposed enhanced sentence 22-104(a) (1981) D.C.Code § the trial Since prior sodomy conviction record of the sufficiently complete, in ap- our record on II.

peal, for this court to determine whether developing the same contention that conviction be used for enhance- appellant has drawn our attention to the ment analysis under the adopt wording 22-104(a). narrow Unlike here, we must proceed- remand for further many statutes, state recidivist which *3 ings. vide for stiffer persons sentences for con- past

victed in the any felony, 22-104(a) of § operates only subsequent if the conviction I. stems from virtually commission of the trial, government Before the had served same offense as the earlier one. To the formal notice of penalties additional relevant, under extent this subsection reads: the permitting statute more severe sen- (1) any person: If Is a convicted of crimi- tences for second offenders. Id. At the nal offense ... under a applicable law sentencing hearing, government exclusively Columbia; to the District of formed the trial court and previously was convicted of a offense, lant criminal had been tried offense ... which sodomy of the time of the conviction referred to in another female guilty and found of sodomy (1) ..., as, clause is the same consti- but rape. not The imposed court had a tutes, includes, or necessarily the of- prison suspended sentence but its execu- clause, fense referred into [such] during tion five-year period probation. person may imprison- be ... sentenced to present court, noting after ment for a term not more than one and that the assault offense for appellant which one-half times pre- the maximum ... just had been convicted occurred while he (Emphasis scribed for that conviction. probation, was still on sentenced him to a added.) prison months,1 term of 30 to observing: Appellant cites Leftridge v. United “I see mitigating no circumstances. You (D.C.1980) cu- public are a menace you have to be riam), where we construed that subsection long incarcerated for possible as as supporting as an enhanced sentence for public.” tect the attempted petit larceny ground on the In invoking the enhancement statute as a it was an offense “necessarily included” sentence, basis for rejected the court de- petit larceny, within a crime for he which argument 22-104(a) fense counsel’s that § previously had been convicted. In a foot- applicable. was not Counsel maintained opinion, note to that accepted that the offense must constitute or premise phrase “constitutes or necessarily include the offense and 22-104(a) includes” essen- § that the assault crime for which his client tially means “includes as a lesser included facing as, sentence was not the same offense,” although recognized of, or a lesser included offense “may congruent these terms two specifically, that, More argued counsel purposes.” all 410 A.2d at 1390 n. 4. contrast with “assault with intent to com- sodomy,”

mit a conviction for A. “sodomy” require does specific intent proceed, initially, We on the as and thus does not include the that, in sumption order to be available for assault crime. The court remarked that 22-104(a)purposes, assault with intent to § good point this was a appeal. to raise on must be a lesser included penalty 1. The maximum for the crime of which term which could last for seven and one-half appellant guilty (z.e., months) years was found in this case is five if the years’ imprisonment, D.C.Code 22-503 second kind offense cov- authority prison but the .court did have to set a ered that subsection. instruction). as In the case of assault 22-3502 tent D.C.Code offense, ap- analysis first as the substantive sexual consider well We crime, however, presented to now is an element of the pellant the trial court and intent (such appeal: ruling. a crime as permitting on a lesser included offense advances sodomy) intent re- assault with These differ as to intent offenses showing intent cannot quiring respect proof required extent of the necessary a lesser included offense of be deemed assur- to afford defendant (such sodomy) where evidence proved. that intent has been ance general to sustain intent sufficient agree.

conviction. We cannot B. felonies, involving In cases sexual application on A different implicitly, jurisdiction of this courts raised “lesser included” rubric is proposi explicitly, rejected and later *4 pursuant our supplemental briefs filed to States, 122 Johnson v. United In tion. sponte request. Appellant argues now sua 1, (1965) U.S.App.D.C. 350 784 F.2d or a that because force violence not curiam), assault with intent a conviction for necessary sodomy, of crime of element the rape ground that to affirmed on the was sodomy intent an assault such conduct was lesser included offense cannot be deemed lesser included offense in rape, charged of the indict the sodomy. of Similarly, in a ment. case where the assail knowledge, charged ant was carnal has arguably This merit. contention jury the that court sustained a instruction “assault,” word We have said the an assault with intent to commit carnal D.C.Code, e.g., used in the when §§ knowledge offense. was lesser included -508, -502, -503, -504, given be its should Heard, States v. United U.S.App.D.C. 137 meaning: attempt common law denied, cert. 60, 420 F.2d 628 397 bodily or to inflict harm. force violence 1252, 90 S.Ct. 25 431 U.S. L.Ed.2d States, v. United 401 A.2d 475 Jones (D.C.1979). Plainly, not such conduct was rulings sodomy in affirmed present Such not on an the were based States, 1205 Stewart v. United assumption specific intent ele in 364 A.2d is an argu the (D.C.1976), rejected we rape ment of the crimes of or carnal knowl where edge. Rather, participants engaging as court ment that adult the federal circuit mutual appeals noted, they acts consent premised public of later were homosexual Al that, privacy. pri right to on a conclusion for crimes have constitutional based in the indictment marily though cause the count on acts which themselves possibil suggests the great (such rape), appellant’s prior harm intent physical sodomy appellant in the for which culpability may ity to show sufficient be accomplished by 1979 themselves, convicted in was ferred from the acts was whereas force, not government the did to primarily crimes on sub resort related based some indica intent, prove this. There is jective physical where harm is have to the (to the extent (such rape), in the of that case less to tion record as assault with intent available) trial court intent, it not a “specific which is we that, they if found even greater offense, jurors requirement may act complainant had consented “de required” culpability to show out of a a not defense. sodomy, consent protect against convic such sire the individual certainly government v. event, evidence.” United States slight tion on jury instruction on 207, 210, 211, Thornton, U.S.App.D.C. 162 entitled Jury See Criminal Instruc 749, 752, (affirming sodomy count. 498 F.2d Columbia, 4.79 No. District objection trial for the rape conviction over tions 1978). (3d erroneously ed. had refused 22-104(a), Leftridge, see an assault 410 A.2d at 1390 sodomy with intent to commit has an ele n. we find possible it apply case to ment of necessarily force violence not language directly, the statute with- sodomy, in a criminal act of having out definitive resolution of an issue entirely necessarily thus does implications “consist jeopardy purposes. double of some all of but not the elements” of the prior Pendergrast v. conviction for C. (D.C. Leftridge, open left ques 1975) (citations omitted) added), (emphasis “constitutes, tion whether phrase is not a lesser included of includes” in always

fense of means “includes as a lesser included of fense.” A.2d at 1390 n. 4. We hold question The then whether becomes that, sodomy as to the assault crimes assault with intent to commit can phrase “necessarily in ever be a lesser included of sod cludes” be construed reference to omy. question If that were to be resolved crime, merely previous the facts solely by statutory reference to the ele statutory elements of that crime. crimes, ments of the two answer (and if) specifically, More if be no. See Albernaz United based solely conviction is on a 333, 336-39, 1137, 1140-42, violence, i.e., record force or if there is (1981); 67 L.Ed.2d 275 United States v. *5 sodomy no evidence that the was consensu Bridges, 392, U.S.App.D.C. 387, 230 717 supra al, 3, see sodomy — then note that denied, (1983), F.2d cert. may conviction be deemed to include an -, 79 L.Ed.2d 708 applying assault for 22- § (1984).2 But if the court were entitled to 104(a) and finding the assault with intent refer underlying sodomy to the facts “necessarily within it. include[d]” conviction, as did in we another context Arnold v. United 467 A.2d particular context of this (D.C.1983) curiam), would there be case, we conclude that words “consti (i.e., nonconsensual) room —in an assaultive tutes, includes” in 22- sodomy case3 —to characterize assault with 104(a) are not “congruent” with “lesser sodomy intent to commit as a includ lesser offense,” included as understood for double ed offense. purposes, jeopardy an confront unusual, We unique, need not resolve this included if Sodomy, lesser situation. question although offense rape, commonly for such is like forcible and violent. analysis ordinarily applying purpose is used in 22- It would frustrate of § case, 2. Our (adult). dissenting colleague proved concludes other must be In neither sodomy therefore, crime of assault with intent to commit is the assault crime less- person require proof with a does not sodomy, commonly a er included offense of violence; thus, applied of force or to a mi- non-assault crime. nor, equivalent attempt- this assault crime is to sodomy, sodomy ed included lesser offense If, example, charged a defendant with (the here). prior analy- conviction That sodomy person during rape and of the same acknowledges, sis is flawed. As the dissent sod- interpose same incident and did not a consent minor, omy attempt presumably any rape charge, his conviction for defense sodomy, commit such "amounts to an assault.” sodomy probably be deemed assaultive Post at 652. The fact that force or violence If, hand, purpose. for this on the other he was proved need not be been no does not there has mean only sodomy, court would be assault; rather, imputes the law (in pressed to conduct assaultive hard deem his touching attempt- assault to that amounts to light of the court’s instruction consent is sodomy ed of a minor. this case conclusive, defense) evidence is not a unless the does not differ from an “assault intent” alleged sodomy coupled only e.g., an forcible cases, involving case an adult victim. In both an alibi defense. (minor), there is an assault. One is deemed repeaters, can in- stiffer sentences for be 104(a) prior if conviction for forcible not at if the most recent conviction sodomy, when consent was voked violent indicated, could not be used to enhance offense or an of- all was based on same for a later “assault with “necessarily prior the sentence in the fense included” conviction, simply because consensual tent” agree I also that the crime of conviction. jury and the sodomy is also a crime 22-3502 as defined D.C.Code § instructed that force or violence need thus require any showing of does not proved. not be part force or violence on the of the ac- cused, affirmed convictions for for we have sodomy Appellant was convicted offense, notwithstanding evidence rape person in acquitted of the same conduct persons participating such previous prosecution. The limited record mutual consent. Stewart did so to the trial court— of that case available (D.C.1976). 364 A.2d 1205 appel and to us—does not show whether Thus, in the if the victim of the offense defense to the proffered lant a consent adult, us had been an I would before alleged rape charge and thus whether premise inclined to concur in the of the be If it was force or violence was contested. viz., majority, that an with intent to assault not, sodomy sodomy is not an offense necessar- pur enhancement used for § ily included in the evidence needed for a poses in the since assaultive conviction, despite a clearly consensual conduct would have been indicated. hand, jury alleged if the force or footnote to the standard instructions On the other Jury contested with some evidence Instructions for the Dis- violence was Criminal {see “ ‘ “any Columbia, (3d 1978)) evidence” of consent —indeed with No. 4.79 ed. trict of ” weak,’ Day v. United assault, ... however the effect D.C.Code States, (D.C.1978) (cita (1981), is a lesser-included 22-503 omitted) tions the result 22-3502. —with jury may have found reasonable doubt Quite question presented, a different be about but convicted *6 however, complainant in a sod- when the defense, cause consent was not a then the person age under the omy assault case is prior sodomy conviction cannot be used defining provision sod- of 16. The Code sentence; appellant’s here to enhance as- omy, treats the commission saultive conduct would be doubt. a more seri- act such a minor as Accordingly, we must remand the case to by prison punishable ous offense —one retrieving the trial court for years long as 20 sentence for as —than previous apply- the record of the trial and Moreover, pre- sodomy with an adult. ing foregoing analysis. section, forbidding indecent acts ceding

Remanded. children, consent of provides that the shall not be to such conduct a child REILLY, Retired, Judge, dissent- Chief defense, 22-3501(c) (1981). ing: States, case, Hall v. United In a recent my opinion, In the record this case (D.C.1979), an where the trial court committed no shows that of a violation both lant was convicted imposing the chal- error whatsoever a minor (indecent liberties that section lenged appeal sentence. assault, latter child) we described disposed should be affirmance. sodomy.” as a “lesser-included challenge in reviewing a Id. at 1064.1 conclusion, In reaching accept I on each con- statute, sentences Hall to consecutive majority view that the recidivist the consent of viction, observing that 22-104(a) (1981), authorizing after D.C.Code § contained a count. 1. The indictment charge the child to the indecent er liberties does not.” Blockburger v. [§ 22-3502] defense, was no we held the assault a United 299, 304, 284 U.S. offense, saying: lesser-included “It defies 180, 182, (1932) (emphasis 76 L.Ed. 306 imagination anyone could commit supplied). committing an indecent act without also

assault, especially given law the

victim cannot consent to the indecent act.” Accord, semble,

Id. at 1066. Whittaker v. U.S.App.D.C. (where

F.2d 631 accused was knowledge child, with carnal

jury instruction that an assault with intent knowledge

to commit carnal was a lesser- ADKINS, al., Appellants, Faith et offense, upheld). included perpetration If “any lewd or las- act,” 22-3501(a), MORTON, al., upon body Appellees.

civious Christanna et assault, a minor child amounts to an irre- No. 84-52. spective of whether force or violence is used, follows the com- Appeals. District of Court of Columbia graver indecency, mission of an act of even Argued Sept. 1984. viz., sodomy, upon person of a child Decided June also amounts to an assault. It is true that in the ease before us there was violence,2

some evidence of but it is also rationale,

clear from the Hall that such

testimony short, superfluous. threats,

use of force or violence is not an

element of the crime of assault person with a under 16. my analysis correct,

If majority

decision to remand the case rests on an premise. transcript

erroneous Even if the divulges interposing

of the earlier trial predicated upon

of a defense the consent of complainant, the enhanced sentence

should be allowed to stand. *7 proved

Since an assault need not be dealing attempted sodomy with the child, possibly how can it follow that statutory provision defining “requires the instant an additional which the oth- fact succeeded, witnesses, According prosecution he of course could have Had he lant, calling upon a female friend eve- one It is somewhat iron- been convicted ning, circumstances, year was admitted to her her 10 home in those ic to note that daughter having gone old mother out. He priety sentence could not be of the enhanced —the bedroom, girl placed then took the little into a being based on questioned convictions —both screams, one hand over her mouth to muffle offense, irrespective whether force the same attempted sodomy might with her. He well my colleagues employed I am sure —as objective girl's have succeeded in his had not the concede. grandmother entered the bedroom and sur- prised him.