Appellant asks us to reverse the adjudication finding him involved in first degree child sexual abuse. D.C.Code § 22-3008 (2001). Because the trial court abused its discretion by admitting the victim’s hearsay statements, we reverse and remand for possible further proceedings.
I. Statement of Facts
A. The Sexual Encounter
In late August or early September 2004, seventeen-year-old L.L. was living with his five-year-old sister (the victim, A.L.F.) and the rest of his family in Washington, D.C. C.L., their cousin, also lived at the same address, along with his mother. On the day in question, C.L. went with his cousin T. (L.L.’s brother) to an upstairs bedroom. The door was closed, but C.L. peeked through a hole where “the knob was missing.” He saw L.L. “on the bed,” “on his back,” not wearing any clothing except socks. He also saw A.L.F., who was naked, sitting on L.L.’s “groin area.” A.L.F. was facing L.L. and “had her legs on both sides of him,” so that their groin areas were touching. L.L.’s hands were on A.L.F.’s hips, and he was moving her “up and down.”
L.L.’s brother T. “kicked the door open.” L.L. then “jumped up ... picked up A.[L.F.] and [] kind of like shielded himself with her.” C.L. clarified that L.L. sat up on the bed and held A.L.F. in front of him by the hips, so that her feet were dangling above the floor. A.L.F. was not wearing any clothes at this time.
C.L. went downstairs and told his mother, S.L., what he had seen. S.L. then saw A.L.F. at the top of the stairs wearing no pants or underwear, and looking “nervous.” Eventually, A.L.F. came downstairs wearing “pants and a shirt.” C.L. thought she seemed “scared” because “she was sitting there all quiet and playing with her hands.” L.L. was in the bathroom during this time. The water in the bathroom was running, and L.L. called out, “I’m in the bathroom. I’m in the tub.”
On September 11, 2004, Joanna Hudson, a Child and Family Services Agency (CFSA) social worker who had previously been assigned to the family, visited the home. S.L. told Ms. Hudson that L.L. had sexually abused A.L.F. A.L.F. herself never told Ms. Hudson about the abuse. When A.L.F. was medically screened (the exact date of the screening is unclear), “[tjhere were no medical findings.”
B. The Statements
A.L.F. did not testify, but two of her out-of-court statements were admitted at trial. As a result of Ms. Hudson’s report to the CFSA, A.L.F. was sent to live with a foster mother, M.C.C., who happened to be a sergeant with the Metropolitan Police
On March 22, M.C.C. took A.L.F. to see her doctor. After the visit, M.C.C. asked A.L.F. whether she had remembered to tell her doctor about the incident with L.L. A.L.F. was “real short with [her] and she didn’t really want to talk about it.” M.C.C. asked whether A.L.F. knew what incident she was talking about, and A.L.F. replied “ ‘yes, I remember when [L.L.] humped me.’ ”
C. The Trial Court’s Findings
The trial court credited the testimony of the government’s witnesses, noting that C.L.’s testimony was corroborated by AL.F.’s statements, and found that “L.L., beyond a reasonable doubt, is involved in first degree child sex abuse.” However, the trial judge never explicitly found that L.L. had engaged in “penetration, however slight, of the [] vulva of another by a penis,” as required by D.C.Code § 22-3001(8)(A) (2001). Instead, the court found “that L.L. put his penis against the vulva, that is, the external parts of the female sex organs, of the complaining witness, A.L.F., his younger sister....”
II. Admitting A.L.F.’s First Statement to M.C.C. Was an Abuse of Discretion
A. A.L.F’s First Statement Was Not an Excited Utterance
Appellant argues that A.L.F.’s statement to M.C.C., in which she said L.L. “did bad things to me ... we were in the bedroom and he pulled his pants down and he pulled my pants down and when he was done he ran into the bathroom[,]” was erroneously admitted as an excited utterance over appellant’s hearsay objection. “Because the decision whether a statement is admissible as a spontaneous utterance depends on the particular facts of each case and is thus a discretionary matter, this court reviews such matters only for abuse of discretion.” Brisbon v. United States,
To satisfy the excited (or spontaneous) utterance exception, the following factors must exist:
(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant,
(2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.
Odemns v. United States,
When we apply the legal standard to this record, it becomes apparent that A.L.F.’s statement to M.C.C. should have been excluded. Although a youth perhaps may remain in a state of shock longer than an adult, see Beausoliel v. United States,
A.L.F.’s statement certainly was not “a calm narrative of a past event,” Alston,
The District of Columbia argues that because “A.[L.]F. was not upset prior to her statement, but rather became upset when she ‘reflected on what her brother had done to her,’ ” she was still under the emotional stress caused by the traumatic event. However, it is precisely because
A person surely may become distraught by “reliving” a traumatic experience, but that is because she has reflected on the event-she has revived bad memories. Our colleagues in the military have said it well:
There is a difference between the stress or excitement caused by the original event and that caused by the trauma of having to retell what happened after initially calming down. Only the former is admissible as an excited utterance. “The basis of the excited utterance exception is that the speaker is under the fresh emotional impact of a startling event, not that the speaker relives her emotions when later telling about the event.”
United States v. Green,
The government mistakenly relies on our decision in Price v. United States,
We affirmed, holding that “the indicia of nervous shock and spontaneity in the instant case were sufficient to sustain as a proper exercise of the trial court’s discretion the admission of the challenged statement as an excited utterance, particularly in a situation where such utterance, by incriminating a man whom the declarant professed to love, could scarcely be viewed as the product of reflection.” Id. at 1227. We concluded that “[i]n view of the romantic relationship between witness and victim, the discovery that the latter had been wounded and hospitalized might well have caused her to burst into tears and triggered the words exculpating herself and incriminating her other lover.” Id. at 1226. The spontaneity of the statements was confirmed by the declarant’s reluctance to incriminate the defendant at the police interview the following day, showing that “upon reflection, the witness had already regretted her disclosure.” Id. at 1227. The government relies on Price to argue that the length of time between the offense and A.L.F.’s statements to M.C.C. is irrelevant because A.L.F. made the statements in response to the stimulus of M.C.C. mentioning her brother, L.L. However, we have never held that the declar-ant’s thinking about a traumatic event is sufficient to trigger an excited utterance. See Smith,
Unlike the declarant in Price, A.L.F. did not receive any new and startling information from M.C.C. Instead, M.C.C. coaxed A.L.F. to describe the problem with L.L., even invoking her status as a police officer to elicit the explanation. As the trial court observed, “it was only when [A.L.F.] reflected on what had happened to her and what the respondent had done to her that she became distraught.” Contrary to the trial court’s interpretation and the government’s argument, the fact that A.L.F. made the statement as a result of reflection negates the conclusion that it was an excited utterance. See Price,
B. Admitting the Statement Was Not Harmless
Having decided that it was error to rely on the substance of A.L.F.’s statement “does not end our inquiry.... We must now address whether the error was reversible, and thereby an abuse of discretion.” Mercer v. United States,
When announcing its findings, the trial court expressly relied on A.L.F.’s statement, as related by M.C.C. Nevertheless, the government argues that admission of the statement was harmless because, “[w]hile [the trial court] found that M.C.C.’s testimony corroborated C.[]L.’s testimony, that does not necessarily mean it was used as substantive evidence.” According to the government, “A.[L.]F.’s statements did no more than establish that a sexual assault was reported.... ” This argument overlooks the fact that excited utterances normally are admitted for their substantive value.
III. The Evidence Was Not Sufficient to Convict L.L. of First Degree Child Sex Abuse
In an attempt to prevent the government from retrying him for first degree child sexual abuse, L.L. argues that the evidence was “insufficient to prove beyond a reasonable doubt the essential element of penetration.”
First degree child sexual abuse is defined as engaging in a “sexual act” with a child who is at least four years younger than the perpetrator. D.C.Code § 22-3008 (2001). A sexual act includes “[t]he penetration, however slight, of the anus or
The evidence at trial established that appellant was lying on his back, that A.L.F. was sitting on his groin area, with her legs on either side of his body, and that their groin areas were touching. Both children were naked. Appellant held A.L.F. by her hips and was moving her “up and down.” While a reasonable finder of fact could infer that L.L. was, at the very least, attempting to sexually gratify himself by creating friction between his penis and the groin area of his little sister, these facts by themselves do not support a finding of penetration beyond a reasonable doubt. A.L.F. did not testify about what had happened to her. C.L. did not testify that he saw L.L. penetrate A.L.F., nor did he provide sufficient descriptive detail to support that conclusion. There were no medical findings from the examination of A.L.F., nor was there any other forensic evidence suggesting penetration. While L.L. clearly was engaged in a sexual crime of some kind, there is not sufficient evidence that appellant had committed a “sexual act,” as opposed to a “sexual contact.”
IV. Conclusion
Because A.L.F.’s hearsay statement was admitted erroneously, and with prejudicial impact, we reverse the adjudication of de
So ordered.
Notes
. The court may have been misled by the charging document, which alleged that L.L. "put his penis in or against A.[L.]F.'s ... vagina, in violation of D.C.Code, 2001 Ed. § 22-3008.” Although the prosecutor seemed at times to be distinguishing between full penetration (which the government need not prove) and slight penetration, her argument was somewhat confusing:
The mere fact that L.L.'s penis was up against and moving against the outer por-lion of A.L.F.’s vaginal area is sufficient under the case law ... that in fact the outer part of the female organs, the labia, is all that the penis has to touch. And for those two parts to be together, they were touching and the up and down motion, the rubbing motion were enough to have him be in what is commonly called the lips of the vagina or vulva. And that's how it was charged in this case, in or against.
. See, e.g., Simmons v. United States,
. Because we conclude that admission of the first statement was an error requiring reversal, we do not reach appellant's argument that A.L.F.'s second statement was erroneously admitted under the report of rape rule. For the same reason, we need not decide whether admission of the statement also violated L.L.'s confrontation clause rights. See generally Crawford v. Washington,
. We review the claim of insufficiency by relying on the same evidence as the trial judge. See Thomas v. United States,
. As we noted in Proctor, "it is well settled that ‘entry of the anterior of the female genital organ, known as the vulva or labia, is sufficient penetration ... it is not necessary that the vagina itself be penetrated.... ’ ”
. "Sexual contact,” an element of second degree child sexual abuse, is defined 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.” D.C.Code § 22-3001(9) (2001).
. Our holding that there was insufficient proof of penetration neither expressly nor impliedly acquits appellant of charges that do not require such proof. See generally Anderson v. Mullin,
Appellant argues that second degree child sexual abuse is not a lesser included offense of first degree child sexual abuse, because the former contains an intent element that the latter does not. See note 6, supra. Therefore, maintains appellant, "this Court should not direct entry of adjudication for second-degree child sexual abuse.” We do not reach this question because the government has not challenged appellant’s analysis of the lesser included offense issue, nor has it asked us to enter judgment on second degree child sexual abuse or any lesser offense.