Bolanos v. United States

SCHWELB, Associate Judge,

concurring in the judgment:

I join in the judgment of affirmance. I write separately, however, to explain my view that the evidence of the beating was admissible to show that M.A. did not consent to sexual relations with the defendants and that the conduct in question was not voluntary intercourse but rape.

In this case, as in Bailey v. United States, 699 A.2d 392, 398 (D.C.1997), nobody suggested that there was no sexual intercourse between the defendants and the complainant, and “the sole contested issue was whether [Guzman and Bolanos] forced [M.A.] to have sex with [them] against her will.1 For all practical purposes, the question for the jury was whether [M.A.] consented.” “[F]orce and consent [are] flip sides of the same coin....” Hicks v. United States, 707 A.2d 1301, 1305 (D.C.1998) (paraphrasing counsel).

Guzman’s attorney first alluded to the “consent” defense in his opening statement. Guzman also introduced into evidence M.A.’s “recantation,” in which she told Guzman’s counsel that she had sex with the two men willingly and that Bolanos was her boyfriend at the time. Both defense attorneys attempted to persuade the jury in closing argument, largely on the basis of the recantation, that M.A.’s trial testimony was false, that the young people were really “partying,” that the sexual activity was consensual, and that there was therefore no rape.2

In such a context, the relevance of evidence that the defendants beat M.A. with a stick only a week or so before the alleged *542rape appears to me to be quite obvious. “Consent” is meaningless when it is given under duress. A young woman obviously feels a great deal less free to withhold sexual favors if she can expect severe physical retribution if she declines to go along. Proof of such a beating thus illuminates the question whether any purported consent was voluntary or coerced.

Moreover, M.A.’s testimony that the defendants beat her was not “other crimes” evidence of the kind that is subject to the strictures of Drew v. United States, 118 U.S.App. D.C. 11, 331 F.2d 85 (1964). In Drew, the evidence of an uncharged attempted robbery was unrelated to the robbery for which the defendant was being tried, and it shed light primarily, if not exclusively, on the defendant’s criminal predisposition. Here, the beating, if it occurred, involved the same dramatis personae as the alleged rape, and bore directly on the question whether there was a rape.

This court, sitting en bane, has explained that

Drew does not apply where ... evidence [of another crime] (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.

(William) Johnson v. United States, 683 A.2d 1087, 1098 (D.C.1996) (en bane). The present case falls squarely within the third of these categories, almost certainly within the first,3 and at least arguably within the second category as well.

In my opinion, the exclusion of evidence of the beating would have extracted from its context, and placed in an incomplete and inaccurate light, the dispositive question whether the sexual activity which precipitated these prosecutions was forced upon M.A. against her will. “Events obscure, ambiguous, or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive, and informative when considered in relation to other action.” Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 n. 6, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960) (citation omitted). This is particularly true where, as in this case, the principals knew each other, and where their relationship had a history. “An attempt to restrict the evidence in a case of this kind to the events of the [day of the crime] would unreasonably cramp the inquiry, to the detriment of the search for truth.” Clark v. United States, 593 A.2d 186, 195 (D.C.1991).4

Many courts throughout the country have held that evidence of the kind here at issue is admissible on the question of consent. See Stevenson v. State, 94 Md.App. 715, 619 A.2d 155, 160-62 (1993) (collecting authorities). I agree with those decisions, and I conclude that the convictions must be affirmed.

. The rape of which the defendants were convicted occurred in December 1993 prior to the adoption of the Anti-Sexual Abuse Act of 1995. See D.C.Code § 22-4101 et seq. (1996). Under the law applicable to the defendants, see D.C.Code § 22-2801 (1981), the prosecution was required to prove that the accused "ha[d] carnal knowledge of a female forcibly and against her will.” See Russell v. United States, 698 A.2d 1007, 1009 n. 4 (D.C.1997) (discussing 1995 amendment).

. Although Bolanos’ counsel made this argument somewhat obliquely, there can be no doubt that this was his basic point.

. One might quibble whether the alleged beating was "direct” evidence of lack of consent, but the relevance and potential persuasiveness of proof of the uncharged conduct seems to me to be readily apparent.

. We have held that where uncharged criminal conduct is "inextricably intertwined with evidence of the charged offense,” evidence of the contemporaneous conduct is directly admissible without the necessity for a cautionary Drew instruction. Toliver v. United States, 468 A.2d 958, 961 (D.C. 1983). The basis for the admission of the evidence of the beating in this case could be described as a sort of “vertical Toliver” doctrine.