In re C. D.

437 A.2d 171
CourtDistrict of Columbia Court of Appeals
DecidedAugust 13, 1981
DocketNos. 80-91, 80-303
StatusPublished
Cited by10 cases

This text of 437 A.2d 171 (In re C. D.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C. D., 437 A.2d 171 (D.C. 1981).

Opinion

FERREN, Associate Judge:

The 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).1 Appellant raises three issues on appeal. First, he contends that the government charged him with rape, see id. § 22-2801,2 and, because taking indecent liberties is not a lesser included offense of rape, his conviction must be vacated. Next, appellant urges that the trial court erred by admitting into substantive evidence a statement by appellant’s companion telling appellant to “go out there and see if anybody is coming.” Finally, appellant asserts that even with the statement, there was insufficient evidence to support the conviction. Finding no reversible error, we affirm.3

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 violation 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 [173]*173that its petition was correctly stated and that it was charging appellant with rape, not carnal knowledge. In response to the court’s inquiry, however, the government agreed that if it was unable to prove the element of force, the court could still find appellant guilty of carnal knowledge (presumably under a lesser included offense theory).

Following a short recess to consider 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 appellant, 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 at 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 reentered 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.

Appellant 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 fairly 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 [appellant] 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 appellant 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, 133 U.S.App.D.C. 159, 165, 409 F.2d 445, 451 (1969); Younger v. United States, 105 U.S.App.D.C. 51, 52, 263 F.2d 735, 736, cert. denied, 360 U.S. 905, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959).4 Both offenses [174]*174are “intended to protect [children]5 below the age of sixteen, regardless of the use of force or consent, from any sexual relationship.” Ballard v. United States, D.C.App., 430 A.2d 483, 486 (1981) (citation omitted) (discussing carnal knowledge prohibition only).

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., 397 A.2d 143, 147 (1979); D.C.Code 1973, § 16-2305(d). On the other hand, if the government charged appellant with both rape and carnal knowledge, the trial court properly could have found appellant guilty of taking indecent liberties, a lesser included offense of carnal knowledge.

We conclude that the government charged and tried appellant for both rape and carnal knowledge.

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Matter of CD
437 A.2d 171 (District of Columbia Court of Appeals, 1981)

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Bluebook (online)
437 A.2d 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-c-d-dc-1981.