Roundtree v. United States

STEADMAN, Associate Judge:

Appellant was convicted by a jury on one count of sodomy, D.C.Code § 22-3502 (1989), and one count of tampering with physical evidence, id. § 22-723. On appeal, he challenges the trial court’s refusal to permit him to cross-examine the complaining witness about her previous allegations of sexual assaults by other men. Additionally, appellant claims that the trial court improperly excluded evidence about the condition of the genitalia of the complaining witness, who was allegedly suffering from a venereal disease at the time of the incident. He also contends that the trial court improperly instructed the jury as to the elements of the crime of sodomy. We affirm.1

I

On May 12, 1985, appellant, a correctional officer, was on duty at the D.C. Jail. According to Karen Brock, another correctional officer at the Jail, appellant was quite forward that day about his fondness for cunnilingus. Brock testified that she overheard appellant telling a woman named Sheila over the telephone how much he had enjoyed “going down” on her, which Brock understood to mean performing oral sex on her,2 during the past weekend. Later, according to Brock, appellant, who was “[vjery flirtatious” and “[cjoming on to” her, said that “going down” on a woman “really turns him on,” and that he would like to do so with Brock.3 Brock rebuffed appellant’s advances.

After this rebuke by Brock, appellant’s attention apparently shifted to seventeen-year-old W.D., the complaining witness in this case. W.D. was the sole female prisoner in custody in that area of the D.C. Jail at the time.4 Appellant asked a male prisoner near the female section of the jail if he knew how old the “young lady across the hall” was. He then entered the portion of the jail where W.D. was being held, and, upon his return, said to the male prisoner, “I’ve got to have her.”

W.D. testified that she had been asleep when appellant came to her cell in the female section of the jail, ostensibly to inquire whether she wanted to be released from her cell for some recreation time. After he unlocked and opened W.D.’s cell door, however, appellant grabbed W.D. and started kissing her face and neck. Despite W.D.’s efforts to push him away, appellant lifted her nightshirt, placed his lips around her vagina, and licked her genitalia with his tongue.5 After engaging in this activity *318for “a couple of minutes,” appellant took out his penis, put W.D.’s hand on it, and moved her hand back and forth until he ejaculated into a nearby trash can. After-wards, appellant wiped himself clean, threw the soiled tissues into the same trash can, and left the female section of the jail.

A few minutes later, W.D. reported the incident to other jail officials, and an investigation ensued. Three jail officials testified that they saw semen and tissues in a trash can near W.D.’s cell. One of the prison officials retrieved the liner from the trash can and placed it in a brown paper bag, which he then stapled shut and la-belled “evidence.” The official placed the bag on top of a file cabinet in an administrative office in the jail. Soon after, in that same office, appellant was interviewed by his supervisors; they confronted him with the evidence in the bag. At the conclusion of their interview, however, the jail officials left appellant alone in the office with another correctional officer, also appellant’s union representative, who did not know of the bag containing evidence. The union representative testified that he saw appellant stumble over a desk in the office and gather up, among other things, a brown bag which had been stapled shut and had writing on it. Another jail official later saw appellant walking by himself with a folded brown bag in his back pocket. Before long, officials discovered that the evidence bag had disappeared, and it was never found. However, during a strip search conducted in an effort to locate the missing evidence, investigating officials did discover semen stains on appellant’s underpants.

Appellant’s defense was a total denial. Though he admitted entering the female section of the jail and speaking with W.D., he denied having had any sexual contact with her. He also denied having propositioned Officer Brock or having had the phone conversation with Sheila described by Brock. Appellant admitted having a brown paper bag, but claimed he was carrying a chicken sandwich in it. He contradicted himself as to whether the bag had staples in it, and could not remember whether the bag bore any writing on it. His girl friend testified that she and Roundtree had made love during the lunch hour, and he claimed that this explained the presence of semen on his clothing. The prosecutor, who conducted a probing and highly professional cross-examination of Roundtree, exposed numerous contradictions in his account, severely damaging Roundtree’s credibility.

II

Appellant first alleges that the trial court’s refusal to permit him to inquire during cross-examination of W.D. about her past allegations of sexual assaults by other men violated his constitutional rights under the confrontation clause of the sixth amendement, or alternatively was an abuse of discretion.

A. The factual background

During discovery in a civil lawsuit in federal court by W.D. against appellant and the District of Columbia arising out of this incident, appellant learned of and obtained copies of W.D.’s juvenile records from her home state of Minnesota. Those records revealed that W.D. had claimed to have been raped or sexually abused by different men on at least eight occasions. Several allegations involved sexual abuse by family members or boyfriends of family members; others involved sexual assaults committed by pimps.6 In at least one instance, after initially telling a social worker that she had been sexually abused by her brother Hank, W.D. later denied that any such sexual abuse had occurred.7 She also gave inconsistent accounts of how frequently her brother had sex with her. On *319the other hand, the Minnesota records provide partial corroboration of at least some of W.D.’s claims. In May of 1983, W.D. claimed during a medical examination that she had been sexually assaulted by a friend of her sister’s. The examining physician’s report" noted the presence of a “semen-like substance on [the] thighs, mons pubis, and within [the] vagina” of W.D. Additionally, medical tests conducted after a sexual assault which W.D. alleged occurred on January 11, 1985, indicated the presence of sperm on W.D.

The most fully documented incident in the record involved a claim by W.D. that a male counselor at a facility for teen-aged mothers called Juvenile Horizons had placed his hand on her buttocks in an inappropriately sexual manner, a claim denied by the counselor. During the course of a Ramsey County Human Services Department investigation into the matter, two members of the Juvenile Horizons staff and two social workers familiar with W.D. indicated that they did not believe W.D.’s allegation.8 The Human Services Department officials who investigated the allegation concluded that they were “unable to substantiate” W.D.’s charge, although they felt “that there was reason to suspect that the incident may have occurred.”

After the parties had reviewed the contents of the Minnesota records, the government moved in limine to preclude any inquiry by the defense into W.D.’s prior allegations of sexual abuse. In response, appellant argued that the prior allegations were probative of W.D.’s credibility.9 After inspecting the Minnesota materials, the trial court indicated that there was “no basis for inquiry into prior accusations” because there had been no “firm determination” as to whether any of W.D.’s allegations “were false or true.” Nevertheless, *320before making a final decision on the issue, the trial court decided to inquire about the prior allegations during a voir dire examination of W.D.

On voir dire, W.D. testified that she had been sexually abused by her brother Hank; she explained that she had later recanted that charge “because I didn’t want my mom to find out and I didn’t want the police involved.” She reaffirmed her earlier allegation, documented in the Minnesota records, that she had been sexually abused by a friend of her mother’s, but explained that she did not report the matter to the police because “my mom was going though a lot of problems and I didn’t feel that she would trust me or believe me.” W.D. also reasserted that several of the other sexual assaults mentioned in the Minnesota’s records, including the incident with the Juvenile Horizons counselor, had in fact occurred.

At the conclusion of the hearing, the trial judge decided to preclude cross-examination about the prior allegations. She made clear that she would have permitted such inquiry had the prior allegations been fabricated. On the basis of the documents and her assessment of W.D.’s testimony, however, the trial court found that “there is no substantial basis for concluding that these assaults are fabrication.” Following the trial judge’s oral ruling, appellant filed a motion seeking reconsideration. In a brief written order denying that motion, the trial judge emphasized that appellant had failed to “show convincingly” that W.D.’s allegations were false.

B. Admissibility of evidence of prior allegations of sexual assault

Appellant sought to impeach W.D.’s credibility through cross-examination about specific instances of prior conduct — specifically, her prior allegations of sexual assault by other men.10 He argues that the trial court’s failure to permit such cross-examination constituted reversible error. In assessing appellant’s contention, we first consider whether the trial court was constitutionally required by the confrontation clause of the sixth amendment to permit inquiry into W.D.’s prior allegations. Finding no such constitutional mandate, we next examine whether the trial court committed an abuse of discretion in precluding cross-examination about those allegations.

1. Constitutional concerns: The confrontation clause

Appellant argues that the trial court’s failure to permit him to cross-examine W.D. about her prior allegations violated his rights under the confrontation clause of the sixth amendment.11 Appellant’s argument appears to be that where a witness who testifies that he or she is the victim of a crime has in the past claimed to be a victim of similar crimes, those prior claims are so probative of the credibility of the witness that the confrontation clause therefore requires the trial court to allow cross-examination about them.

The sixth amendment “guarantees to a defendant in a criminal prosecution the right to be confronted with the witnesses against him.” Lawrence v. United States, 482 A.2d 374, 376 (D.C.1984) (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)), and the opportunity to cross-examine government witnesses is central to that right. Id. Nevertheless, a criminal defendant’s constitution*321al right to cross-examine adverse witnesses “is not without limits.” Reed v. United States, 452 A.2d 1173, 1176 (D.C.1982), cert. denied, 464 U.S. 839, 104 S.Ct. 132, 78 L.Ed.2d 127 (1983). For instance, the proposed line of cross-examination must be relevant to the issues involved in the case. Gibson v. United States, 536 A.2d 78, 82 (D.C.1987) (“[t]here is no constitutional right to present irrelevant evidence”).12

In this case, as the trial court correctly noted, W.D.’s past allegations would be probative of her credibility only if they were fabricated.13 See Sherer v. United States, 470 A.2d 732, 738 (D.C.1983) (alleged perjury in another trial probative only if the perjury actually took place), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984); Hughes v. Raines, 641 F.2d 790, 792 (9th Cir.1981) (any probative conclusions drawn from rape victim’s previous accusation of rape depend on whether the other charge was false).14 In contrast, if the prior accusations were true, they would not serve as a relevant basis for impeachment. Because the constitution does not require confrontation of witnesses with irrelevant evidence, the very applicability of the confrontation clause in this case depends on W.D.’s prior allegations being false. Under these circumstances, “ ‘the confrontation clause does not prevent the trial court from weighing the [defendant’s] offer of proof to determine its probative value to the trier of fact.’ ” Sherer, supra, 470 A.2d at 738 (citation omitted).

Where an accused seeks to impeach the credibility of a witness by offering evidence that the witness has made a false claim under similar circumstances, the confrontation clause mandates that the trial court give defendant leave to cross-examine about the prior claim only where it is “shown convincingly” that the prior claim is false. Id. at 739 (citation omitted).

In Sherer, the trial court refused to permit the defendant to cross-examine a witness concerning an alleged incident of perjury. Sherer, supra, 470 A.2d at 739. In sustaining this ruling, the Sherer court specifically agreed with the confrontation clause analysis employed in Hughes v. Raines, supra. In Hughes, a rape case, the defendant wanted to demonstrate that the victim had previously made a false accusation of rape. The court found that the trial court’s denial of the defendant’s request did not offend the confrontation clause because the offer of proof failed to show convincingly whether the prior accusation was false: “[A]ny conclusions drawn from [the fact of a prior accusation] that would bear on this case would depend upon whether it could be shown convincingly that the other charge was false.” Hughes v. Raines, supra, 641 F.2d at 792.

This court’s opinion in Lawrence v. United States, supra, 482 A.2d 374, does not compel a different conclusion. In Lawrence, the court, relying on the confrontation clause, found reversible error in a trial court’s refusal to permit the defendant to *322cross-examine a witness to a sexual assault on a minor about “prior false accusations of sexual activity made by [the witness] against other family members.” Id. at 376. Admittedly, the court in Lawrence did not discuss the question of the showing a defendant must make as to the falsity of prior allegations.15 However, it does not appear that the Lawrence court saw itself as deciding a case in which the veracity of the prior allegations was substantially disputed. As the court explained, the issue was whether the trial court violated the defendant’s confrontation clause rights by, as argued by the defendant, “preventing exploration into prior false accusations” made by a witness, or whether, as the government responded, that the denial was an appropriate exercise of discretion. Id. (emphasis added). In other words, we read Lawrence as a case premised on the assumption that the allegations at issue were indeed false.16

Our conclusion that Lawrence did not modify the “shown convincingly” standard articulated in Sherer is buttressed by the fact that the Lawrence court was aware of, and even cited, the Sherer opinion. Lawrence, supra, 482 A.2d at 377. To read Lawrence otherwise would suggest that the division of the court which decided Lawrence had revisited the question decided in Sherer about the showing required before a defendant is constitutionally entitled to cross-examine a witness about prior accusations of others. Under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971), however, the court in Lawrence was bound by the decision in Sherer and could not reconsider that question. We think the best interpretation of Sherer and Lawrence, read together, is that where a witness has previously made allegations similar to those he or she testifies to at trial, cross-examination about those prior allegations is constitutionally mandated only where they are “shown convincingly” to be false.

In this case, after reviewing the Minnesota records and observing W.D.’s testimony first hand, the trial court concluded that appellant had not “convincingly” shown that W.D.’s prior allegations of sexual assault were false.17 We agree that appellant’s proffer fell far short of the standard required to sustain a contention that cross-examination about those allegations was constitutionally mandated.18

2. Trial court discretion

Having determined that the refusal to permit appellant to cross-examine W.D. *323about her prior allegations did not violate the confrontation clause, we next consider whether the trial court’s ruling was otherwise erroneous. Here, because evidence of-W.D.’s prior allegations would have been probative only if the allegations were false, appellant’s request to cross-examine about those allegations must be doctrinally analyzed in the context of the evidentiary rules governing impeachment of witness credibility with specific instances of bad conduct. For purposes of this analysis, W.D.’s allegedly false prior accusations would constitute the bad conduct. Our evidentiary rules on the impeachment of witness credibility provide that a witness may be cross-examined about a prior bad act that has not resulted in a criminal conviction only where, at a minimum:

(1) the examiner has a factual predicate for such question, and (2) the bad act “bears directly upon the veracity of the witness in respect to the issues involved [in] the trial.”

Sherer, supra, 470 A.2d at 738 (citations omitted).19 The two-part Sherer standard constitutes a minimum threshold for the admissibility of proposed cross-examination into alleged prior bad acts, and evidence which fails to satisfy the Sherer test may not be admitted.

In applying the rules pertaining to the impeachment of witnesses with specific instances of bad conduct, the trial court is vested with broad discretion. First, notwithstanding the fact that a party proposing cross-examination claims to have a “factual predicate” for inquiry into prior bad acts, the trial court may assess the questioner’s offer of proof to determine whether such a factual predicate exists. See Sherer, supra, 470 A.2d at 739 (trial court did not abuse discretion in precluding cross-examination into prior testimony where defendant’s offer of proof that the statements were false was “scanty”); of. Hollingsworth v. United States, 531 A.2d 973, 981 (D.C.1987) (“trial court has broad discretion when ruling on the relevance of evidence”). Second, even where proposed cross-examination satisfies the two-part Sherer test, in the absence of confrontation clause concerns, the trial court retains its “broad discretion” generally to control the scope and extent of cross-examination. In re C.B.N., 499 A.2d 1215, 1218 (D.C.1985); see also Reed, supra, 452 A.2d at 1176; Smith v. United States, 392 A.2d 990, 993 (D.C.1978). In the exercise of this discretion, the court has wide latitude to “impose reasonable limits” on cross-examination “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, supra note 12, 475 U.S. at 679, 106 S.Ct. at 1435. With regard to prejudice, the court may preclude’ a proposed line of cross-examination “if it appears that the danger of unfair prejudice will outweigh its probative value.” Lee, supra, note 10, 454 A.2d at 775. See also Goldman v. United States, 473 A.2d 852, 856 (D.C.1984); Brown v. United States, 409 A.2d 1093, 1099-1100 (D.C.1979). And as is true even in confrontation clause situations, the trial court may also weigh the “probable effect on fair and efficient conduct of the trial.” Sherer, supra, 470 A.2d at 738 (citation omitted). This court will not reverse such decisions unless the trial court abuses its discretion. Brown, supra, 409 A.2d at 1100.

In exercising discretion whether to permit cross-examination into prior allegations of sexual assault, the precise probative value of such evidence, even where it clears the “factual predicate” component of the Sherer threshold, will depend upon the degree of certainty with which the trial court can conclude that the prior allegations were false.20 The stronger the evidence *324that the allegations are false, the greater the probative value. As a countervailing concern, cross-examination into prior allegations of sexual assault is likely to generate considerable prejudicial consequences. First, some prejudice results whenever cross-examination “probes into the private life” of a complainant in a sexual assault case. See Meaders v. United States, 519 A.2d 1248, 1254 (D.C.1986). See also State v. Anderson, supra, 211 Mont. at 286, 686 P.2d at 201 (evidence of prior allegations “place[s] a prejudicial stamp on [the complainant’s] general character and reputation”). Second, evidence of a complainant’s prior allegations of sexual assault “diverts the jury’s attention to collateral matters.” McLean, supra note 10, 377 A.2d at 77.21 See also State v. Johnson, supra, 102 N.M. at 118, 692 P.2d at 43 (“the focus would be on whether the prior charges were ‘unsubstantiated,’ in effect putting the complainant on trial as to the truthfulness of any complaint to the police which did not result in arrest or conviction”).

Here, the trial judge acted within her discretion in precluding cross-examination about W.D.’s prior allegations of sexual assault.22 As indicated, the trial court determined, following voir dire, that there was “no substantial basis” for concluding that W.D. had fabricated her prior claims of sexual assault. As a result, the proposed line of impeachment was of limited probative value at best.23 The prejudicial *325effect of the proposed inquiry, in comparison, was considerable. The cross-examination sought by appellant would have probed into extremely private and potentially humiliating aspects of W.D.’s life. Moreover, in this case the risk of distracting the jury with collateral matters was particularly acute. Appellant's proposed line of cross-examination would have diverted the jurors’ attention away from the incident in the D.C. Jail and would have invited them instead to focus their energies on assessing the veracity of each of W.D.’s prior claims of sexual assault.24 Accordingly, we conclude that the trial court acted within its discretion in precluding appellant from inquiring on cross-examination about W.D.’s prior allegations of sexual assault.25

We do not think that this position necessarily conflicts with the opinion in Mintz v. Premier Cab Ass’n, 75 U.S.App.D.C. 389, 127 F.2d 744 (1942). In Mintz, the trial court permitted the defendant in a personal injury action to ask the plaintiff on cross-examination whether she had “made claim for injuries” in two previous unrelated accidents. 75 U.S.App.D.C. at 389, 127 F.2d at 744. The appellate court affirmed the trial court’s decision to admit evidence of prior *326claims under the claim-minded plaintiff principle. We read Mintz as permitting, not requiring, the trial court to allow cross-examination under this principle where it determines that the proffered evidence “may create prejudice but is believed to be worth more than it costs.” Id. at 390, 127 F.2d at 745.26

Furthermore, the dictum in Mintz suggesting the principle’s application to sexual assault cases is of dubious validity today.27 In the era when the Mintz court suggested application of its cost-benefit calculus to sexual assault cases, the legal system operated under the assumption that it was also “worth more than it costs” in effect to put the victim on trial in rape cases; the rules of evidence at the time permitted a defendant, under the guise of cross-examination on the issue of consent, to grill his victim about virtually her entire sexual history and reputation. See Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 12-15 (1977); see also, e.g., Packineau v. United States, 202 F.2d 681, 684-87 (8th Cir.1953) (holding that trial court erred in excluding evidence of complaining witness’ “concupiscence — of her having sexual lust and unlawfully indulging in it” with another man). As this court’s opinion in McLean v. United States makes clear, courts today accord much more weight to the prejudicial aspect of inquiry into a rape victim’s sexual history than did courts a half-century ago; in this jurisdiction, such prejudicial inquiry is no longer deemed to be worth more than it costs. McLean, supra note 10, 377 A.2d at 77-78. For similar reasons, we think that, absent confrontation clause concerns, the prejudice inherent in cross-examination about a complainant’s prior allegations of sexual assault28 precludes us from requiring the trial court under the Mintz principle to allow cross-examination of the victim in a sexual assault case about her prior allegations of sexual assault regardless of their truth or falsity.29

In sum, under all the circumstances of this case, we conclude that the trial judge committed no reversible error in precluding appellant from cross-examining W.D. about her prior allegations of sexual assault.

Ill

Appellant next contends that the trial court abused its discretion in refusing to permit a physician to testify about the results of a medical examination he conducted on W.D. Appellant intended to have the doctor testify that the examination revealed no “bruises, redness, swelling, [or] lacerations” on W.D.’s genitalia. Appellant also sought to show through the doctor’s testimony that W.D. was suffering from a venereal disease, and that a symptom of that disease was the presence of a “cheesy white extrudance” or a “heavy discharge” in her genital area. The trial court excluded as irrelevant medical testimony “concerning any disease.”

*327Before us, appellant urges that such evidence “could have influenced the jury’s mind on the creditability [sic] of [the complaining witness].” At trial, however, appellant did not make clear precisely for what purpose he offered the evidence of W.D.’s medical condition. Initially, during pre-trial proceedings, appellant had sought leave to introduce evidence that he was aware of the fact that W.D. was in the D.C. Jail following her arrest on prostitution charges. This was relevant, appellant argued, on the theory that he would not have engaged in any sexual acts with W.D. because “he knew that prostitutes many times carry venereal diseases and this would in his own mind create the idea that he would not want to do this to her.” It was in this context that appellant first mentioned evidence that W.D. was suffering from a venereal disease at the time of the incident: “[T]he truth of the matter,” defense counsel argued, “is that according to the medical records she had some sort of infection at the time that this happened. So, [appellant’s] thought that she might be diseased or unclean is not a fanciful thought.” In other words, appellant initially suggested to the trial court that evidence of the mere presence of the disease was relevant as proof of his state of mind —namely, that his fear of contracting diseases often carried by prostitutes would have deterred him from seeking to engage in any sexual conduct with W.D.

Later, at trial, prior to the presentation of the defense case, appellant again raised the question of W.D.’s medical condition. This time, defense counsel indicated he wished to have the doctor’s testimony include “the condition of her sexual organ.” Defense counsel’s proffer as to the relevance of evidence of the “cheesy white extrudance,” however, was still somewhat unclear: “[T]he Government would have the jury believe [Mr. Roundtree] came in there, committed the act without even — according to the doctor, my conversation with the doctor, the doctor agrees that there was a heavy discharge.” The trial court ruled that it “would exclude testimony concerning any disease and finds as represented that it would appear to be irrelevant in this case.”

Contrary to appellant’s initial assertion before the trial court, in light of his defense at trial, the presence in W.D. of a venereal disease would not have been relevant on the issue of appellant’s state of mind — i.e., whether he feared W.D. suffered from a venereal disease and thus would be unlikely to sexually assault her. Throughout trial, appellant consistently maintained that he never had any physical contact with the victim. Because he claimed that he was never in a situation where he could have observed symptoms manifesting the fact that W.D. had a venereal disease, the actual presence or absence of such a disease or its symptoms would have had no bearing on his state of mind.30 Nor would the fact that W.D. actually suffered from a venereal disease be relevant as to the reasonableness of appellant’s ex ante belief that she might suffer from such a disease. Thus, given appellant’s defense at trial, to the extent he offered the evidence of W.D.’s disease and its symptoms to prove that his fear of contracting a venereal disease would have dissuaded him from sexually assaulting W.D., the evidence was irrelevant.

Evidence of the physical appearance of W.D.’s genitalia, regardless of cause, might have been relevant, however, on the question of her credibility. This is true even in light of appellant’s defense at trial. If, as appellant suggests, the symptoms of W.D.’s disease would have made oral sex unpleasant and therefore unlikely to occur, this evidence could be somewhat probative of the credibility of her account of the sodomy. As such, it might have made a jury somewhat more likely to believe appellant’s version of events, i.e., that no oral sexual contact occurred.31

*328Here, appellant’s proffer did not make entirely clear to the trial judge that he was not merely reiterating his request to introduce evidence of the ■presence in W.D. of a venereal disease as proof of his state of mind, for which it was irrelevant, but was instead seeking to introduce the evidence of the physical appearance of the disease to challenge W.D.’s credibility, for which it could be relevant. Cf. Jones v. United States, supra note 9, 516 A.2d at 517 (affirming trial court’s restriction on cross-examination about a witness’s bias because of an insufficient factual proffer).32 The nature of appellant’s proffer perhaps explains the trial court’s ruling that “the Court would exclude testimony concerning any disease and finds as represented that it would appear to be irrelevant in this case.”33 Nevertheless, because we ordinarily do not require an “ ‘exhaustive proffer’ ” as a prerequisite to the admission of evidence, id. (citation omitted), we will assume the issue of the admissibility of the external appearance of W.D.’s genitalia on the issue of her credibility was sufficiently presented to warrant appellate review.

An evidentiary ruling by a trial judge on the relevancy of a particular item is a “highly discretionary decision” that will be upset on appeal only upon a showing of “grave abuse.” Mitchell v. United States, 408 A.2d 1213, 1215 (D.C.1979) (citations omitted). See also Mosby, supra note 26, 495 A.2d at 305. However, even on the assumption that the relevancy ruling was in error in its application to the physical appearance of the genitalia, we do not perceive grounds for reversal, since we think we can say with fair assurance that any such presumed trial court error did not substantially influence the jury’s determination. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 *329L.Ed. 1557 (1946).34 As indicated above, the appellant never suggested that he in any way saw the appearance of W.D.’s genitalia. His defense was a flat denial of all the significant events testified to by the prosecution witnesses: the conversation with the female prison guard about his particular sexual desires, the sodomy of W.D., the masturbation event, and the destruction of evidence. W.D.’s was not the only testimony to contradict appellant’s story. That he lied as to three of these events was convincingly shown by the evidence apart from W.D.’s testimony. Thus, appellant stood as a largely discredited witness, and no reason was apparent why W.D. would have told the truth as to part of appellant’s actions and lied about the cunnilingus.

The marginal relevance of the evidence is further illustrated by appellant’s own difficulty in articulating any legitimate basis for its admission, as indicated above. Moreover, the record on appeal contains no significant elaboration of the proposed testimony beyond the sketchy description orally given to the trial court.35 And although the trial court never explicitly reached the issue, a ruling excluding the evidence on a balancing of prejudice versus probative value could have been sustained. See, e.g., Swinson v. United States, 483 A.2d 1160, 1164 (D.C.1984).

In sum, in light of all the circumstances, we do not think that the trial court’s ruling with respect to the proffered testimony warrants appellate reversal for a new trial.

IV

Appellant next asserts that cunnilingus,36 at least on the evidence here, does not violate the D.C. sodomy statute.37 For over fifteen years, it has been established *330in this jurisdiction that “cunnilingus is a sodomitic act which is within the purview of § 22-3502.” United States v. Cozart, supra, 321 A.2d at 343 (footnotes omitted). This holding, of course, is binding upon us as a division, and we must proceed from that postulate. M.A.P. v. Ryan, supra, 285 A.2d at 312.38 Appellant contends, however, that even if cunnilingus does constitute sodomy, penetration is a necessary element of the offense. Under appellant’s interpretation, the trial court would be required to instruct the jury that to prove the offense of oral sodomy on a woman, the government must prove either that the defendant placed his or her tongue within the labia or inside the vagina of the complaining witness, or that her genitalia penetrated the defendant’s mouth.39 We do not read the statute as imposing such a requirement.40

Appellant’s argument relies heavily on D.C.Code § 22-3502(b), which provides: “Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary.” However, that provision does not mandate the interpretation pressed by appellant. The reference to “emission” in section 3502(b) indicates that that provision refers to forms of sodomy involving a penis.41 In contrast, where a defendant is charged with performing oral sodomy on a woman’s genitalia, the “penetration” language of section 3502(b), is inapplicable. Consequently, section 3502(b) does not require the government in such cases to prove either that the complaining witness’s genitalia penetrated the mouth of the defendant, or that the defendant’s tongue penetrated the complainant’s genitalia.42 Nor, given that under Cozart cunnilingus *331constitutes a violation of the sodomy statute, and considering the realities of female anatomy, can we agree that the phrase “taking into” in section 3502(a) requires entry into the mouth by the female sexual organ. As the North Carolina Supreme Court noted in a similar context, “[t]o adopt this view would saddle the criminal law with hypertechnical distinctions.” State v. Ludlum, supra note 42, 303 N.C. at 672, 281 S.E.2d at 162. On the facts of this case, the sodomy instruction here was sufficient.43

V

Appellant’s other contentions warrant little discussion. First, the trial court did not err in granting the government’s motion in limine to preclude appellant from impeaching the complainant’s credibility by inquiring into her activities as a prostitute. Because the complainant had no convictions or adjudications of delinquency for prostitution, she could not be impeached under D.C.Code § 14-305 (1989), which permits impeachment with evidence of misdemeanors involving dishonesty. Cf. Brown v. United States, 518 A.2d 446, 447 (D.C.1986) (per curiam) (ruling that “soliciting for prostitution is an impeachable conviction”). Sexual activity not resulting in a felony conviction is not relevant for impeachment of general credibility. McLean, supra note 10, 377 A.2d at 78. This rule ordinarily applies even where the prior sexual activity includes prostitution. Cf. Brewer, supra note 21, 559 A.2d at 321 (evidence in rape case of complainant’s pri- or prostitution activities not relevant on issue of consent and inadmissible).

Second, the trial court did not abuse its discretion in refusing to grant a mistrial after the prosecutor, in his rebuttal argument, directed the jury’s attention to the absence of any evidence that the complaining witness had been convicted of a prostitution charge. The remark, though literally true, invited the jury to infer something that was false — i.e., that the complaining witness was not a prostitute. Nevertheless, even if the prosecutor’s remarks amounted to misconduct, the misconduct was not grave. Additionally, the trial court gave the jury a corrective instruction. We therefore conclude that appellant did not suffer “substantial prejudice” as a result of the prosecutor’s argument. Dyson v. United States, 450 A.2d 432, 437 (D.C. 1982). As such, the refusal to grant a mistrial was not an abuse of discretion. Beale v. United States, 465 A.2d 796, 799 (D.C.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984).

Affirmed.

. We address appellant’s other contentions, which do not warrant extended discussion, in Part V, infra. Because the parties have not raised the issue of the legality of appellant’s sentence for tampering with physical evidence, we do not rule on the matter. Appellant remains free, however, to file a motion for correction of sentence under Super.Ct.Crim.R. 35(a) (1989).

. "go down on” — "Slang [Vulgar] to perform fellatio or cunnilingus on.” Random House Dictionary of the English Language, Unabridged (3d ed. 1987); accord R. Chapman, New Dictionary of American Slang (1986).

. Brock’s direct examination testimony included the following exchange:

Q: When you say he explained to you what he had done with Sheila that weekend—
A: Yeah, that he had gone down on her and that he had ate her, and this is the kind of sexual things that he likes to do, and this is how — what really turns him on, and he would like to do the same thing to me.

. W.D. was in custody on charges of solicitation of prostitution. After learning that W.D. was a juvenile, whom the United States had no authority to prosecute, the United States Attorney’s Office referred the solicitation charges to the District of Columbia Corporation Counsel. For reasons unrelated to this case, Corporation Counsel ultimately dismissed the charges against W.D.

. W.D.’s direct examination testimony included the following exchange:

Q: _ You said he went down on you.
What physically did he do?
A: He started eating me.
Q: What do you mean by that, physically, what did he do with his body?
A: He was licking on me.
Q: With his tongue?
A: Yes.
Q: What was he licking?
A: My vulva.
Q: Excuse me?
A: My vulva.
*318Q: What part of your body is that?
A: My vagina.
Q: Where were his lips when he started licking around your vagina?
A: Around the outside of my vagina.

. The Minnesota records indicate that W.D. began working as a prostitute at a young age.

. In denying that the abuse had occurred, W.D. told the social worker “that she did not want police involvement in [the] matter.”

. However, any characterization that all the individuals interviewed in the course of the Department of Human Services investigation disbelieved W.D.’s allegation of sexual assault would overstate the case. Undoubtedly, the psychiatrists and psychologists who interviewed W.D. portrayed her as a deeply troubled person. In their reports, various doctors characterized W.D. as "very angry,” “hostile,” and prone to "aggressivity and blaming." One doctor indicated that W.D.’s "objective and reality testing is very tenuous and at least moderately impaired,” and another stated that W.D. had "lied to the [Juvenile Horizons] staff several times in the past.” None of these doctors, however, indicated whether he or she believed or disbelieved W.D.’s claim that a Juvenile Horizons staff counselor had touched her in an inappropriately sexual manner. Nor did Mr. Sabre, a county child protection worker familiar with W.D. and the Juvenile Horizons incident, express disbelief about her claim.

. As we read it, appellant's credibility argument consists of two components. First, he argued that W.D.’s prior allegations were probative of her character for veracity in making claims of sexual assault. Appellant also argued that the prior allegations were probative of W.D.’s bias against male "authority figures” such as appellant, a prison guard. As we understand it, appellant's bias argument is that W.D.’s prior allegations evidence a desire on her part to wrongly accuse male authority figures of sexual assault, which in turn evidences a bias against such authority figures.

In our view, appellant's bias argument is subsumed within the argument that cross-examination about W.D.'s prior allegations of sexual assault would be probative of her character for veracity in matters of the sort involved in this trial. As is the case with the character for veracity issue, prior allegations of sexual assault would be probative of bias against authority figures only if those allegations were fabricated. See Jones v. United States, 516 A.2d 513, 517 (D.C.1986) (questioner must proffer facts sufficient to permit the trial judge to evaluate whether a proposed question is, in fact, probative of bias). Moreover, we find the bias argument considerably less persuasive than the character for veracity argument. For one, the notion that W.D.’s prior allegations, even if false, stem from a bias against male authority figures is extremely tenuous. See Hawkins v. United States, 461 A.2d 1025, 1034 (D.C.1983), cert. denied, 464 U.S. 1052, 104 S.Ct. 734, 79 L.Ed.2d 193 (1984) (characterizing as "tenuous” the theory underlying attempt by appellant, a taxicab driver on trial for murder, to cross-examine a witness about a prior accident claim she had filed against another taxicab driver in order to show her bias against taxicab drivers). Moreover, we observe that only one of the assault incidents documented in the Minnesota records — the incident involving the Juvenile Horizons counsel- or — involves an “authority figure" comparable to appellant. Accordingly, for purposes of this appeal, in discussing appellant’s attempt to challenge W.D.’s credibility, we focus on whether the trial court erred in precluding appellant from impeaching W.D.'s character for veracity by inquiring into her prior allegations of sexual abuse.

. Even if appellant had made the showing which would have entitled him, as a constitutional matter, to use W.D.’s prior allegations to impeach her credibility, he could not have used the prior allegations as substantive evidence that W.D. had falsely accused him in this case. The law generally "disfavors the admission of evidence of a person’s character in order to prove conduct in conformity with that character” in the matter at issue. McLean v. United States, 377 A.2d 74, 77 (D.C.1977); see also Lee v. United States, 454 A.2d 770, 775 (D.C.1982), cert. denied, 464 U.S. 972, 104 S.Ct. 409, 78 L.Ed.2d 349 (1983). Such evidence is admissible only for purposes of impeaching a witness's character for veracity, Lee, supra, 454 A.2d at 775, and only under the narrow circumstances described below. i

. The confrontation clause of the sjxth amendment provides: "In all criminal prosecutions, the accused shall enjoy the right .to be confronted with the witnessed against him...." U.S. Const. amend. VI. /

. Additionally, even where a proposed line of inquiry .is relevant, the trial court ”retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).

. Indeed, if the allegations were true, and W.D. had been sexually assaulted in the past, inquiry into those episodes would violate the rule that a defendant may not cross-examine a witness about prior sexual acts with others in an attempt to impeach the complainant’s general credibility. See McLean, supra note 10, 377 A.2d at 78.

. See also People v. Neely, 228 Cal.App.2d 16, 18, 39 Cal.Rptr. 251, 252 (1964) (prior rape complaints not relevant if true); People v. Makela, 147 Mich.App. 674, 685-86, 383 N.W.2d 270, 276 (1985) (evidence of prior rape accusation not relevant unless falsely made); State v. Johnson, 102 N.M. 110, 118, 692 P.2d 35, 43 (N.M.Ct.App.1984) (prior rape complaints against seven individuals "must be demonstrably false” to pass test for relevance); State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984) (prior charge of rape must "necessarily have been false” to be relevant); State v. Demos, 94 Wash.2d 733, 736, 619 P.2d 968, 969 (1980) (evidence of prior reports of rape “did not prove falsity and therefore was irrelevant”).

. The court simply quoted the discretion-guiding standard for permitting cross-examination into a witness’s prior bad acts, discussed below. Lawrence, supra, 482 A.2d at 377.

. Our review of the briefs filed with this court in the Lawrence case confirms that the government took the position that the trial court exclusion of cross-examination about the witness’s prior accusations of sexual misconduct would have been proper even if those accusations were in fact false. The government’s understanding of the issue in Lawrence, as indicated in its brief, was whether “the trial court’s refusal to permit cross-examination ... relating to prior false accusations of sexual misconduct by [a witness] denied [appellant] his Sixth Amendment right to confront the witnesses against him.” Brief for Appellee at 11-12, Lawrence, supra (No. 82-1404) (emphasis added). Without suggesting that the accusations were in fact true, the government rejoined by arguing that "the trial court properly exercised its discretion in excluding such collateral evidence because it had little or no probative value.” Id. at 12 (emphasis added). In its elaboration of this contention, the government argued that “even if the jury could have concluded that the prior charge was false, ‘the relevance of that conclusion to the case is slight,' ” id. at 14 (citation omitted), and suggested that ”[e]ven if [the witness] had made the allegedly false accusations ... the prejudicial effect of the proposed cross-examination would have clearly outweighed its probative value.” Id. at 15. Given the manner in which the parties presented the issues, and the fact that the trial court made no determination about the truth or falsity of the witness’s accusations, we believe that the Lawrence court perceived itself as deciding whether a trial court’s decision to preclude as collateral cross-examination about concededly false prior allegations of sexual misconduct constituted reversible error.

. Indeed, the trial court found that defendant’s proffer failed to establish even a "substantial basis” for concluding that W.D. had fabricated her prior claims of sexual assault.

. See also State v. Anderson, 211 Mont. 272, 284, 686 P.2d 193, 200 (1984) (confrontation clause not violated by requirement that prior sexual assault allegations be proven false before defendant may cross-examine about them).

. "These impeachment rules should not be confused with the analytically distinct doctrine that restricts the introduction, as substantive evidence, of an accused’s prior crimes or bad acts.” Sherer, supra, 470 A.2d at 738 n. 5 (citing Campbell v. United States, 450 A.2d 428 (D.C.1982); Drew v. United States, 118 U.S.App.D.C. 11, 15-16, 331 F.2d 85, 89-90 (1964)).

. Of course, if the degree of certainty is such that the defendant has shown convincingly that the prior allegations are false, the confrontation clause mandates that the defendant be allowed to inquire about those allegations.

. McLean, which presumptively proscribes examination of the complaining witness about her sexual history and reputation, does not deal with the issue of other allegations of sexual assault and therefore, as the trial court recognized, does not in itself preclude questioning in that area. Cf. Commonwealth v. Bohannon, 376 Mass. 90, 95, 378 N.E.2d 987, 991 (1978) (rape-shield statute does not apply to prior allegations of sexual assault). McLean does, however, illustrate the need for special sensitivity in deliberating on the question of prejudice in the decision whether to allow such interrogation and the scope thereof. See also Brewer v. United States, 559 A.2d 317, 320-21 (D.C.1989), cert. denied, — U.S. ——, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990); Meaders, supra, 519 A.2d at 1254.

. We would not agree with a suggestion that the trial judge was insufficiently cognizant of her discretion when she precluded cross-examination about W.D.’s prior allegations. A trial judge abuses discretion where he or she fails "to exercise choice in a situation calling for choice.” Johnson v. United States, 398 A.2d 354, 363 (D.C.1979). Throughout the several bench conferences and in her written order denying the motion for reconsideration, the trial judge reflected an awareness of discretionary factors. The trial judge, in orally ruling against cross-examination, noted that there was “no substantial basis” for concluding that W.D. fabricated her account of prior sexual assaults. She clearly implied, however, that she might have permitted the proposed cross-examination had appellant established some further factual basis of falsity, even though, as the trial court knew, the Sherer standard requires cross-examination only where-a defendant shows "convincingly” that a witness's prior allegations are false. (It is worth noting that the trial court’s comment that the defendant had not "show[n] convincingly” that the reports were false was made in dealing with a motion for reconsideration and was thus consistent with the test of when their use was mandated.) The fact that the trial judge indicated she would have allowed cross-examination about W.D.’s prior allegations under circumstances in which Sherer does not compel such cross-examination demonstrates both the trial judge’s awareness of her “right to exercise choice” and the actual exercise of that choice. Id. As such, the trial judge’s ruling was made in the exercise of discretion, not under an assumption that cross-examination about W.D.’s prior allegations was precluded as a matter of law. Moreover, the trial judge recognized that McLean and Sherer did not set absolute preclusion-ary limits. In both her oral ruling and the written order denying reconsideration, she ruled that the proposed cross-examination "should” not be made. Finally, in both the oral discussions and in the written order, the trial judge expressed concern about other factors which would properly inform a discretionary decision, including the likelihood that inquiry into W.D.’s "apparently troubled adolescence” would result in prejudice to her, as well as the danger that the proposed inquiry would go "afield to another event and another time" or "divert jury attention from the instant case.”

.We need not decide whether appellant’s proffer in this case established a "factual predicate” to satisfy the Sherer threshold. Nor need we decide whether the trial court, in deciding whether a factual predicate exists, is to make its own factual determination, see D.C.Code § 17-305(a) (1989) (trial court finding binding unless plainly wrong or without evidence to support it), or is simply to determine what a reasonable jury might find, cf. Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988) (trial court may discretionarily admit evidence of defendant’s prior bad act if there is sufficient evidence to support a jury finding that defendant committed the act); but see Groves v. United States, 564 *325A.2d 372, 375 & n. 5 (D.C.1989), modified, 574 A.2d 265 (D.C.1990). Even assuming that a factual predicate existed in this case, the trial court nevertheless acted within its discretion in prohibiting the proposed cross-examination in view of its limited probative value and the danger of prejudice and distraction it posed. See supra note 22.

. During pretrial proceedings, defense counsel made clear that his proposed digression from events in the D.C. Jail would go well beyond merely cross-examining W.D. about her prior allegations of sexual assault. For example, he sought leave from the trial court to call the Juvenile Horizons counselor as a witness so the counselor could deny W.D.’s allegation that he touched her in an inappropriately sexual manner. The trial court expressly noted its concern about going "afield to another event and another time” on such collateral issues. Because we hold that the trial court acted within its discretion in precluding cross-examination about W.D.’s prior allegations, we need not resolve whether such extrinsic evidence could have been presented. Lawrence, supra, 482 A.2d at 377.

. It is true that courts in several jurisdictions apparently require inquiry into prior allegations whenever the defendant demonstrates only a good faith factual basis for concluding that the allegations are false, see, e.g., Bohannon, supra note 21, 376 Mass. at 95, 378 N.E.2d at 991. We note that in many other jurisdictions, however, courts have affirmed discretionary trial court refusals to allow cross-examination where the defendant failed to provide sufficient evidence to establish that prior allegations were in fact false. See, e.g., Covington v. State, 703 P.2d 436, 442 (Alaska Ct.App.) (defendant "did not establish the falsity of the alleged prior complaints”), partially reversed on rehearing on other grounds, 711 P.2d 1183 (Alaska Ct.App.1985); State v. Hutchinson, 141 Ariz. 583, 587, 688 P.2d 209, 213 (Ariz.Ct.App.1984) (defendant failed to produce "sufficient facts to show that the prior charge was unsubstantiated’’); People v. Alexander, 116 Ill.App.3d 855, 861, 72 Ill.Dec. 338, 342, 452 N.E.2d 591, 595 (defendant was "unable to show prior complaints were unfounded’’); State v. Anderson, supra note 18, 211 Mont. at 285, 686 P.2d at 200 (defendant's proffer did not "establish whether there is sufficient support for the contention that the prior allegations are false”); State v. Kringstad, supra note 14, 353 N.W.2d at 311 (defendant did not produce “quantum of evidence sufficient to establish the falsity of the previous charge”); State v. Johnson, supra note 14, 102 N.M. at 117, 118, 692 P.2d at 42, 43 (defendant's evidence did not establish that prior allegations were “demonstrably false”); State v. Sieler, 397 N.W.2d 89, 92 (S.D.1986) (defendant failed to establish that prior charges were “demonstrably false”); State v. Padilla, 110 Wis.2d 414, 426, 329 N.W.2d 263, 270 (Wis.Ct.App.1982) (defendant established “no proof of prior untruthful allegations”). Courts have employed a similar approach in cases involving introduction of evidence of — not cross-examination into — prior allegations of sexual assault. See, e.g., Little v. State, 413 N.E.2d 639, 643 (Ind.Ct.App.1980) (complainant’s other accusations of rape were not “demonstrably false”); State v. Demos, supra note 14, 94 Wash.2d at 736, 619 P.2d at 969 (evidence of prior allegations “did not prove [their] falsity”). Indeed, even in Massachusetts, where the Bo-hannon case was decided, courts have upheld trial court refusals to permit cross-examination about prior allegations, despite the fact that the defendant had a good faith basis for such inquiry: “While counsel had what to him was a good faith reason to seek inquiry [about two allegedly false accusations made by the complainant against others], the judge acted within his discretion in rejecting the offer of proof as insufficient to merit further inquiry.” Commonwealth v. Hicks, 23 Mass.App.Ct. 487, 492, 503 N.E.2d 969, 973 (1987) (emphasis in original). See generally Annotation, Impeachment or Cross-Examination of Prosecuting Witness in Sexual Offense Trial by Showing that Similar Charges Were Made Against Other Persons, 71 A.L.R.4th 469 (1989).

. As we stated in United States v. Mosby, 495 A.2d 304, 305 (D.C.1985): "Although the government cites cases where courts found no abuse of discretion in the admission of certain evidence, those holdings cannot be read to mean that the trial courts were required to admit the evidence in those instances."

. In dicta illustrating the scope of permissible inquiry under the “claim-minded plaintiff’ principle, the Mintz court suggested that "the prosecuting witness in a rape case may be asked whether she has made similar charges against other men.” Mintz, supra, 785 U.S.App.D.C. at 389-90, 127 F.2d at 744-45.

. See supra p. 324.

. The Mintz court, without any empirical justification, included sexual assault among a category of "[f]ortuitous events [which] are less likely to happen repeatedly than once.” Mintz, supra, 75 U.S.App.D.C. at 389, 127 F.2d at 744. Under this view, the mere fact that a woman reports a sexual assault on more than one occasion gives rise to an inference that she has fabricated those reports. For someone in W.D.’s circumstances, at least, we find this assumption extremely dubious. W.D., who was described by one Minnesota school official as "one of the most severe victims of chronic emotional and physical neglect I have ever encountered," grew up in an obviously troubled home environment and had resorted to prostitution at a young age. In light of W.D.’s family situation and her circle of associates, the mere number of sexual assaults she has reported does not readily give rise to any inference that those assaults did not occur.

. Our conclusion might be different if appellant had contended that he approached the complainant, discovered the symptoms of her illness, and was then dissuaded from performing sodomy, or otherwise had an opportunity to observe the appearance of W.D.’s genitalia.

. Such evidence may be relevant for this purpose even though appellant contends he never *328had any contact with W.D.'s genitals. Consider an analogous case. Imagine that Plaintiff alleges that Defendant assaulted him by grabbing him and pinning him to the ground for an hour. Plaintiff alleges that the incident occurred on January 1, 1990, on the grounds near the Washington Monument. Defendant, a person of average size, claims that he was in his apartment all day on January 1, that he never went near the Washington Monument, and that he never even saw Plaintiff, much less pinned him to the ground. Defendant’s theory is that Plaintiff has fabricated the entire account. At trial, Defendant seeks to introduce the testimony of Witness, who will state that Plaintiff, unbeknownst to Defendant at the time of the alleged assault, is a world class wrestler who won an Olympic gold medal in his weight division. Defendant does not claim he sought to pin Plaintiff but was unable to do so because of Plaintiffs wrestling prowess. Nevertheless, evidence of the Plaintiffs wrestling ability makes it more unlikely that events occurred in the manner claimed by Plaintiff; it makes Defendant’s version of events on January 1 more credible.

In this hypothetical, Witness's evidence affects Plaintiffs credibility because it suggests Defendant would have been incapable of committing the acts alleged. The medical evidence proffered in this case, in contrast, affects W.D.'s credibility because it suggests appellant would have been disinclined to commit the acts alleged. While evidence of a defendant’s disinclination to commit an offense is certainly less probative of a plaintiff’s credibility than is evidence of a defendant’s inability to commit an offense, it nevertheless may be sufficiently probative to be deemed relevant. See E. Cleary, McCormick on Evidence § 185, at 542 (3d ed. 1984) (evidence is relevant if it "could reasonably show that a fact is slightly more probable than it would appear without that evidence”); see also Fed.R.Evid. 401 (relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").

. Cf. Miller v. Avirom, 127 U.S.App.D.C. 367, 370, 384 F.2d 319, 322 (1967) ("points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spurned on appeal” (footnote omitted)).

. However, the court left the ruling subject to revision and stated that defense counsel could renew his motion to introduce the evidence at a later time.

Defense counsel, without expanding on the proffer, twice renewed the motion. The second time, the motion immediately followed this exchange between appellant and his lawyer:

Q: Do you commit oral sex on prostitutes?
A: No, I don’t.
Q: Any particular reason why not?
A: I don't commit oral sex, period. I mean,
I do have some godliness about myself, you know.

The trial court ruled: "It appears, particularly in light of the last answer, that the doctor’s testimony will not be relevant." Even then, defense counsel did not amplify the rationale for his proffer.

. Although acknowledging that the question is one of "abuse of discretion,” appellant asserts a "fundamental right to call witnesses in his own behalf,” citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1975), Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and Brown v. United States, 409 A.2d 1093 (D.C.1979). We are presented here, however, with a common sort of relevancy ruling in a trial in which the defendant presented a wide range of evidence. We do not think the trial court’s ruling implicates the asserted "fundamental right” which would call into application the constitutional standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Giles v. United States, 432 A.2d 739, 746 and n. 13 (D.C.1981) (applying Kotteakos non-constitutional error review in case where trial court erroneously permitted use of hearsay evidence and defendant contended that admission of the evidence "violated the confrontation clause of the Sixth Amendment”). See also California v. Green, 399 U.S. 149, 173, 186, 90 S.Ct. 1930, 1943, 1949, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring) (observing that neither confrontation nor due process clause has been or should be seen to consti-tutionalize evidentiary rules of hearsay). Cf. Springer v. United States, 388 A.2d 846 (D.C.1978) (once defendant has been afforded opportunity for sufficient cross-examination, trial court’s evidentiary rulings fall within its discretion and are not subject to constitutional error review).

. The relevant portions of the proffer were as follows: "There was a cheesy white extrudance (sic) on the — I cannot read that word.” Trial counsel was apparently reading from a medical report, not included in the appellate record. Subsequently trial counsel referred to "that cheesy extrusion on the vulva” and stated that "according to the doctor, my conversation with the doctor, the doctor agrees that there was a heavy discharge.”

. In United States v. Cozart, 321 A.2d 342 (D.C.1974), the court adopted the definition of cunnilingus as " 'an act of sex perversion committed with the mouth and the female sexual organ.' ” Id. at 343 n. 3 (quoting Black’s Law Dictionary 456 (4th ed. 1968)). See also 70A Am.Jur.2d Sodomy § 22, at 1053 n. 29 (1987) (defining cunnilingus as "oral vaginal contact or the touching of the female organ with the mouth or tongue”) and cases cited therein.

. D.C.Code § 22-3502 (1989) provides, in pertinent part:

(a) Every person who shall be convicted of taking into his or her mouth or anus the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth or anus of any other person or animal, or who shall be convicted of having carnal copulation in an opening of the body except sexual parts with another person, all be fined not more than $1,000 or be imprisoned for a period not exceeding 10 years.... [I]n any indictment for the commission of any of the acts, hereby declared to be offenses, it shall not be necessary to set forth the particular unnatural or perverted sexual practice with the commission of which the defendant may be charged, nor to set forth the particular manner in *330which said unnatural or perverted sexual practice was committed....
(b) Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary.

. Prior to 1948, sodomy was not statutorily defined in the District of Columbia, and prosecutions for the offense proceeded under the common-law definition. S.Rep. No. 1377, 80th Cong., 2d Sess., reprinted in 1948 U.S.Code Cong. Serv. 1714, 1717 (incorporating House Report) ["Senate Report"]. At common law, the offense of sodomy among human beings was limited to anal copulation. See 3 C. Torcia, Wharton’s Criminal Law § 295, at 77 (14th ed. 1980); Rose v. Locke, 423 U.S. 48, 53, 96 S.Ct. 243, 246, 46 L.Ed.2d 185 (1975) (Brennan, J., dissenting). Both the language of the current sodomy statute and its legislative history, however, indicate that Congress, in enacting section 3502, sought to expand the class of prohibited sexual practices. The statute itself contains the phrase "unnatural or perverted sexual practice,” a category of acts broader than those proscribed by the common-law offense. Additionally, according to the Senate Report accompanying the statute at the time of its enactment, one of the reasons for codifying the definition of sodomy was to expand the crime to encompass “the action per os.” Senate Report, supra, at 1717.

. In this case, the trial court’s instruction to the jury on the offense of sodomy provided:

In the law, sodomy is the commission of an unnatural sexual act with another person or with an animal. Specifically, the allegations in this case are that the defendant performed the act of cunnilingus on the complainant [W.D.]. Cunnilingus is the act of placing the mouth on the female sexual organ and the touching of the sexual organs with the lips and/or the tongue.
You must determine in this case whether the Government has proved beyond a reasonable doubt that the defendant placed his mouth or tongue on or in the sexual organ of the complainant or that he put the sexual organ of the complainant on or in his own mouth, and second, that he intended to do that act.

. Even if penetration were a requirement, the evidence presented here might very well have supported an inference of penetration. See supra note 5.

. Under the common law, penetration of the anus by the penis was required to prove sodomy among human beings. See Canter v. State, 224 Md. 483, 484-85, 168 A.2d 384, 384 (1961) (per curiam); State v. Pettijohn, 541 S.W.2d 74, 76-77, 77 n. 1 (Mo.Ct.App. 1976); 81 C.J.S. Sodomy § 6, at 654 (1977).

. Courts in some other jurisdictions have held that oral contact with any part of a woman’s genitalia without penetration by the tongue constitutes a violation of prohibitions against cunnilingus. See Parris v. State, 43 Ala.App. 351, 353, 190 So.2d 564, 565 (1966) (defendant "placed his mouth upon the sex organ” of complainant); People v. Hunter, 158 Cal.App.2d 500, 505, 322 P.2d 942, 945 (Dist.Ct.App.1958) (“[a] person is guilty of violating the [sodomy] statute when he has placed his mouth upon the genital organ of another”); Gilmore v. People, 171 Colo. *331358, 360, 467 P.2d 828, 828 (1970) ("placing ... mouth on the vagina” of victim); Carter v. State, 122 Ga.App. 21, 23, 176 S.E.2d 238, 240 (1970) ("all that is required [to prove cunnilingus] is some contact" (emphasis in original)); State v. Thompson, 574 S.W.2d 432, 434 (Mo.Ct.App.1977) ("any contact between the mouth or its component parts and the vulva is sufficient to constitute the offense of cunnilingus”); State v. Ludlum, 303 N.C. 666, 672, 281 S.E.2d 159, 162 (1981) ("stimulation by the tongue or lips of any part of a woman's genitalia” constitutes cunnilingus); State v. McParlin, 422 A.2d 742, 745 n. 6 (R.I.1980) (evidence of "oral-genital contact alone, without penetration,” is sufficient to establish cunnilingus).

. Appellant’s related argument that the sodomy statute fails to give notice that it encompasses cunnilingus does not merit relief. Cf. Rose v. Locke, supra note 38, 423 U.S. 48, 96 S.Ct. 243 (per curiam) (ruling that statute prohibiting "crime against nature" gave adequate warning that cunnilingus was a prohibited act). This is particularly true in light of the language in our Cozart opinion.