Thе trial court found appellant, C.D. (who was seventeen at the time of the incident), guilty of taking indecent liberties with a child under the age of sixteen. See D.C.Code 1973, § 22-3501(a).
I.
The government filed the following petition against appellant:
That said child appears to be in need of care or rehabilitation AND that said child, on or about September 20, 1979, at Harriet Tubman Elementary School in the District of Columbia, had carnal knowledge of [M.A.], a female child age 10, forcibly and against her will, in violаtion of 22 D.C.Code 2801.
The government, in its opening statement at trial, indicated that appellant was “charged with carnal knowledge against [M.A.]” Appellant’s counsel then pointed out that the petition alleged rape, and she questioned whether the government was “seeking to amend that petition to allege carnal knowledge.” D.C.Code 1973, § 22-2801. See note 2 supra. The government responded, “No; the petition is worded in terms of carnal knowledge with respect to forcible rape.” Appellant’s counsel then asserted that the petition as phrased was duplicitous: “It’s unclear to me whether it’s charging carnal knowledge or whether it’s charging rape.” The government insisted
Following a short recess to сonsider the point raised by appellant’s counsel, the court concluded that carnal knowledge is a lesser included offense of rape. The court stated that appellant was charged with rape. The court made it clear to apрellant, however, so that he could not “be surprised” and would “know [] what the evidence against him should be,” that if the government failed to prove rape, the court still might find appellant guilty of carnal knowledge.
II.
The government introduced the following evidence аt trial. On September 20, 1979, appellant and a companion, R. B., both juveniles, prevented a ten-year-old girl, M. A., from leaving the girls’ bathroom in her elementary school. R. B. told appellant to “go out there and see if anybody is coming.” Appellant went outside the bathroom. R. B. hit M. A. across the face and she hit him back. At this point, R. B. shouted to appellant, who briefly had reentered the bathroom, “Hey man, Shorty hit me.” Appellant laughed and again left the bathroom. R. B. then pushed M. A. into a bathroom stall and raped her. While R. B. was in the act of raping M. A., appellant reentered the bathroom, stood on a toilet bowl in an adjacent stall, and briefly saw what was happening. Appellant then turned off the bathroom lights as he again left the bathroom. Soon thereafter appellant reеntered the bathroom, turned the lights back on, and told R. B. to “come on.” At this point, M. A.’s teacher came into the bathroom and called out M. A.’s name. Realizing that something was wrong, she went to get help. When she returned, appellant and R. B. were leaving the bathroom.
Aрpellant testified in his own defense. He stated that he did not see R. B. strike M. A. and that he had no idea that M. A. had not consented to have sex with R. B. He thought M. A. was “around 14, because she was big” for her age. Appellant’s description of what happened otherwise was fаirly close to the description given by M. A. Appellant testified, however, that when he left the bathroom he did not do so to act as a lookout for R. B. On cross-examination, he conceded that it was wrong for him to enter the girls’ bathroom and that he knew R. B. and M. A. were doing something wrong in the bathroom (even if consensual). But, appellant denied aiding R. B. in any way.
After carefully evaluating the evidence, the trial court acquitted appellant of aiding and abetting in the rape because the court was not “convinced that [аppellant] knew or was aware that [R. B.] was going to rape or intended to rape the complaining witness.” The trial court, however, found appellant guilty of aiding and abetting the taking of indecent liberties with a child under sixteen. The trial court placed aрpellant on probation for two years. This appeal followed.
III.
Appellant’s first contention — /. e., that his conviction must be vacated because the charge of rape did not include the offense of taking indecent liberties with a child — involves the interplay of three separate offenses: rape, carnal knowledge, and taking indecent liberties with a child. See notes 1 and 2 supra.
Indecent liberties is a lesser included offense of carnal knowledge. Allison v. United States,
In contrast, “[t]he prohibition against common law rape is to protect females capable of consent (i. e., sixteen years old and above) from forcible sexual intercourse . . .. ” Id. Accordingly, in Ballard, we held that carnal knowledge is not a lesser included offense of rape. Id. at 485. The same logic compels our conclusions here that taking indecent liberties is not a lesser included offense of rape.
As a result, if appellant is correct that the government charged him only with rape, the trial court erred in finding him guilty of the separate, uncharged offense of taking indecent liberties. See In re W.B.W., D.C.App.,
We conclude that the government charged and tried appellant for both rape and carnal knowledge. We further conclude that the government’s petition charging rape and carnal knowledge in a single count was duplicitous and that the trial court erred in not forcing the government to amend its petition. We hold, nonetheless, that under the circumstances the trial court’s error was harmless.
IV.
The government’s initiаl petition charged appellant both with rape and with carnal knowledge in a single count. It charged rape in that it asserted force had been used; it charged carnal knowledge by alleging that M. A. had been under sixteen years of age at the time of the incident. Accordingly, the government’s petition was duplicitous. See Murray v. United States, D.C.App.,
The trial court ruled that the government’s petition did not require amendment. Instead, based on its understanding that carnal knowledge was a lesser included offense of rape,
Although the trial court erred in allowing the government to go forward on
V.
We turn to appellant’s claim that the trial court erred in admitting as substantive evidence R. B.’s statement to appellant to “go out there and see if anybody is coming.”
A statement by one individual to another is admissible to show the state of mind of the listener. See Cooper v. United States, D.C.App.,
VI.
Appellant’s final contention, that there was insufficient evidence to support a finding of guilt, is equally without merit. An individual is liable “for the acts of the actual perpetrator if his conduct in any way furthered the common scheme to commit the crimes charged.” Matter of D.M.R., D.C.App.,
Affirmed.
Notes
. D.C.Code 1973, § 22-3501(a) provides:
Any person who shall take, or attempt to tаke any immoral, improper, or indecent liberties with any child of either sex, under the age of sixteen years with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person аnd such child, or who shall commit, or attempt to commit, any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child shall be imprisoned in a penitentiary, not more than ten years.
. D.C.Code 1973, § 22-2801 provides:
Whoever has carnal knowledge of a female forcibly and against her will or whoever carnally knows and abuses a female child under sixteen yеars of age, shall be imprisoned for any term of years or for life. (Emphasis added.)
The emphasized portion of the statute is the provision against rape. See Ballard v. United States, D.C.App.,
.This is a consolidated apрeal. In addition to appealing his conviction, No. 80-303, appellant also appealed on constitutional grounds the trial court’s decision to confine him at Cedar Knoll pending trial. Appellant did not raise this issue, however, in his briefs or at oral argument. Accordingly, we dismiss with prejudice the appeal in No. 80-91. See D.C.App.R. 14.
. But cf. United States v. Heard,
. The law against carnal knowledge is limited to carnal knowledge against females. See note 2 supra. The prohibition against taking indecent liberties, by contrast, includes acts against children of either gender. See note 1 supra.
. Super.Ct.Juv.R. 7(e) provides:
Amendment of the Petition. The Division may permit a petition to be amended at any time prior to the conclusion of a factfinding hearing if no additional or different offense is charged and if substantial rights of the respondent are not prejudiced. The Division shall grant the Corporation Counsel, the child, and his parent, guardian or custodian notice of the amendment and, upon request of any party for good cause shown, a reasonable time to prepare.
See In re J.R.G., D.C.App.,
.The trial court relied on Criminal Jury Instructions for the District of Columbia, No. 4.74 at 258 (3d ed.1978). The trial court made its decision well before our decision in Ballard, supra..
