Tornero v. United States (decided June 22, 2017)
Players: Associate Judge Glickman and Senior Judges Washington and Reid. Opinion by Judge Washington. Trial Judge Ronna L. Beck. PDS for Mr. Tornero.
Facts: Appellant was convicted of various charges involving three sexual assaults, all of which occurred in the back seat of a taxi cab with rear doors that would not open from the inside.
The first victim, R.G. was assaulted in the middle of the day, by a taxi driver who had picked up her and her four-year-old daughter. After driving to a secluded location, the driver forcibly moved the child to the front seat, and moved to the back where he forced R.G. to perform oral sex. She and her daughter escaped out the front door of the cab. R.G. never identified Appellant, either out of court or in court, although she did provide the police with a description from which they produced a composite sketch.
N.R. was assaulted when a taxi driver drove her to a warehouse in the District against her will, threatened her with a knife and gun, told her to remove her clothing, and forced her to have vaginal intercourse. He then drove her to Maryland, where he had picked her up, and released her in a parking lot. DNA recovered from N.R.’s body was identified as Appellant’s.
C.A. was assaulted after a night in which she had become very intoxicated at a club in D.C. She left the club at about 1:00 am. She awoke in the back seat of a taxi cab, lined with news papers. She saw the door near her feet was open and a person standing there, but then became unconscious again. When she awoke again, she heard a man in the front of the cab tell her he would be back in 30 minutes, and something about the metro opening. She felt pain in her vaginal area, and her purse (but not her cell phone) was gone. The rear doors would not open, but she got out of the taxi and was helped by a passer-by. She was in Virginia. DNA recovered from C.A. was identified as Appellant’s.
Cell tower data showed that C.A. had been transported from the club in the District to Maryland, but then several hours later showed her at approximately the same location in Virginia from 6:15 am to 7:38 am (when she called 911). Cell tower information placed Appellant near the club in the District at around 9:47 pm, and near the location in Virginia around 6:40 am.
Issue 1: Did the trial court err in denying Appellant’s motion to sever?
Answer: Yes, the court erred as a matter of law (1) when it allowed evidence from the N.R. and C.A. cases to prove appellant’s identity in the R.G. case, and (2) when it allowed evidence of the R.G. case into the N.R. and C.A. cases.
First, the three cases did not fit either the identity or common scheme or plan exceptions to the prohibition on other crimes evidence, such that the N.R. and C.A. cases (where DNA evidence established identity) would be admissible to prove identity in the R.G. case. Although all three women were sexually assaulted in the back seat of taxi cabs whose rear doors would not open, the descriptions of the assailant’s face and accent were different, there was nothing distinctive about the way the sexual assaults were accomplished, the use of weapons varied, one victim was accompanied while the others were alone, and two attacks took place during the day and one at night. The attacks also occurred over the course of three years, in different parts of the city. Finally, because virtually nothing was known about the attack against C.A., because she was unconscious when it occurred, the Court found that it was “inhibited” from conducting the necessary analysis.
Second, because there was no identification in the R.G. case (discussed further below), the government could not establish that Appellant had committed that assault by clear and convincing evidence, rendering it inadmissible in the N.G. and C.A. cases.
Issue 2: Was there sufficient evidence to convict Appellant of the R.G. assault.
Answer: No. There was no in court or out of court identification of Appellant as R.G.’s assailant, and no physical evidence tying him to the assault. The Court rejected the government’s argument that the trial court’s finding that the composite sketch prepared by the police in R.G.’s case and the composite sketch prepared by the police in N.R.’s case looked similar was enough to support the verdict, citing In re R.H.M., 630 A.2d 705 (D.C. 1993) for the proposition that the a witness’s claim a defendant looks “familiar” is not enough to support a conviction.
Issue 3: Did the trial court’s severance error prejudice Appellant as to his convictions for assaulting N.R.
Answer: No. The combination of the DNA evidence and N.R.’s testimony were overwhelming, such that the error was harmless.
Issue 4: Did evidence in the C.A. case establish jurisdiction in the District.
Answer: No. Based on the government’s evidence, which did not establish that Appellant and C.A. were ever in the District at the same time, the jury would have had to speculate that Appellant was the individual who transported C.A. from the District to Maryland, rather than having encountered her later in Virginia.
Of Note: The Court also rejected the government’s argument that so long as Appellant formed the intent to commit sexual assault while in the District, that would be sufficient to give jurisdiction over a sexual assault committed elsewhere. Second degree sexual assault does not require premeditation, but rather focuses on the defendant’s mental state at the time the assault takes place. CP
Read the full opinion here.