                             District of Columbia
                              Court of Appeals

No. 14-CF-297
                                                                      MAR - 2 2017
ENRIQUE MENENDEZ,
                                           Appellant,

       v.                                                               CF1-13583-11

UNITED STATES,
                                           Appellee.

              On Appeal from the Superior Court of the District of Columbia
                                   Criminal Division


       BEFORE: GLICKMAN and THOMPSON, Associate Judges; and REID, Senior Judge.


                                     JUDGMENT


               This case came to be heard on the transcript of record and the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed this
date, it is now hereby

              ORDERED and ADJUDGED that the judgment of the trial court is affirmed.

                                           For the Court:




Dated: March 2, 2017.

Opinion by Senior Judge Inez Smith Reid.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

              DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 14-CF-297                           3/2/17

                         ENRIQUE MENENDEZ, APPELLANT,

                                          v.

                             UNITED STATES, APPELLEE.

                       Appeal from the Superior Court of the
                               District of Columbia
                                 (CF1-13583-11)

                        (Hon. Russell F. Canan, Trial Judge)

(Argued May 17, 2016                                         Decided March 2, 2017)

       Fleming Terrell, Public Defender Service, with whom Samia Fam, and James
Klein, were on the brief, for appellant.

      Stephen F. Rickard, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and
Lindsay Suttenberg, Assistant United States Attorneys, were on the brief for
appellee.

      Before GLICKMAN and THOMPSON, Associate Judges, and REID, Senior Judge.

      REID, Senior Judge: A jury found appellant, Enrique Menendez, guilty of

first-degree child sexual abuse; the jury also responded to two questions on the

verdict form, finding that at the time of the offense, (a) the victim was under the age
                                         2

of twelve, and (b) the victim was under the age of eighteen and “[Mr.] Menendez

had a significant relationship to [the victim] in that [Mr.] Menendez was [the

victim’s] uncle.” Mr. Menendez argues on appeal that (1) the amount of uncharged

abuse evidence introduced at trial far exceeded that allowed in this jurisdiction as

context for the charged crime, and (2) the government violated his constitutional due

process rights by failing to disclose the bias of an important witness. 1 For the

reasons stated below, we affirm the judgment of the trial court.



                             FACTUAL SUMMARY



      The record shows that Mr. Menendez was indicted on one count of child

sexual abuse (penetration of the anus), with aggravating circumstances; the sexual

act occurred in the Northwest quadrant of the District of Columbia, sometime
      1
          This second issue – involving the circumstances of government witness
D.T.’s appearance at trial, cross-examination for bias, and the government’s alleged
failure to disclose material evidence favorable to Mr. Menendez under Brady v.
Maryland, 373 U.S. 83, 87 (1963) – is presented for the first time on appeal. Mr.
Menendez asserts that “[t]he defense did not learn of the material witness warrant or
the detention of D.T.’s father” until sealed ex parte bench conferences and a sealed
bench warrant application “were unsealed for review in the preparation of this
appeal.” Because the record is insufficient for appellate review of the Brady claim,
we decline to consider this second issue until after a D.C. Code § 23-110 motion has
been filed in the trial court and a suitable record has been compiled for appellate
review.
                                         3

between January 1, 2009 and May 16, 2009. The victim was Mr. Menendez’s

nephew, C.G. C.G. was born in February 1999. To prove the charge against Mr.

Menendez, the government called several witnesses.



      C.G. was the primary government witness. Prior to the incarceration of his

father, C.G. lived in Germantown, Maryland with his father, his mother (Kristeen),

his younger brother (Z.), and his mother’s middle sister (Sharon). When C.G.’s

mother and aunt no longer could afford the residence in Germantown after C.G.’s

father was incarcerated, they moved to the Laurel, Maryland home of their oldest

sister (Kathryn) and her husband, Mr. Menendez. Also occupying the Menendez

home were Kathryn’s two minor sons – D. and J.; D. is Mr. Menendez’s son, and J.

is his stepson. Mr. Menendez, his wife, and their son D. slept in one bedroom;

Sharon and J. shared a bunk bed in another bedroom; and C.G., his mother, and his

brother slept on a mattress in the living room. Mr. Menendez worked at an optical

shop in the District of Columbia.



      During his testimony, C.G. first related earlier acts of uncharged sexual abuse

that took place in Maryland. Mr. Menendez began performing sexual acts against

C.G. at his Laurel, Maryland home – in the living room, Mr. Menendez’s bedroom,
                                           4

the bathroom, the back yard, the kitchen, and J.’s bedroom. In the living room

incident, C.G. was alone, had on boxer shorts and a tank top, and was in bed, with

the lights off. His mother was at work, his brother was in the room that his aunt

Sharon shared with J., and his aunt Kathryn was asleep in her room. His uncle

came into the living room, “pulled [C.G.’s] body up into a bending-over position and

took off [C.G.’s] clothes.” C.G. felt Mr. Menendez’s private part enter into “his

butt.” Mr. Menendez was moaning, groaning, and moving; he moaned the loudest

before releasing C.G. C.G. “felt like something in his butt was bleeding.” He

went to the bathroom to see if he was bleeding but detected no blood. He did not

tell his mother or anyone else what had happened because he was “scared and

confused [and] didn’t know what to do.” Mr. Menendez “was like a father figure to

[his] cousin [J.] and [C.G.] didn’t want [J.] to lose that.”



      Mr. Menendez performed other sex acts on C.G. in the bedroom that he and

his wife shared. These acts happened while other members of the family were out

shopping. Mr. Menendez would play DVDs of people engaging in sex acts such as

the one he performed on C.G. in the living room. He would tell C.G. to touch

himself; Mr. Menendez would touch himself and then anally penetrate C.G. while

the sex DVD was playing. When he engaged in the sex act, Mr. Menendez would
                                               5

wear a black object, “with silver like circles around it”; it had the shape of a ring.

“[P]arts of it felt like metal” . . . , and it was like leathery, and then like the little

circles around it were metal.” Mr. Menendez would put a yellow object on C.G.’s

private part that had “a jelly-ish feeling.”



      C.G. recalled that Mr. Menendez had him perform oral sex twice, once in the

bathroom. To perform oral sex the second time, Mr. Menendez awoke C.G., and

took him to the backyard while everyone else was asleep. After oral sex, Mr.

Menendez removed C.G.’s clothing and anally penetrated him. While C.G. was in

the kitchen on one occasion, and while he was in J.’s bedroom on another occasion,

Mr. Menendez touched himself. He told C.G. to block the door so no one would

come in. As Mr. Menendez touched himself, he moaned and ultimately said, “fire

in the hole; semen is coming.” Mr. Menendez thanked C.G. for blocking the door

and then left the room.



      After the sex acts, Mr. Menendez would ask C.G. if he liked it. He instructed

C.G. not to tell anyone or he, Mr. Menendez, would get into trouble.                C.G.

interpreted the statement to mean that Mr. Menendez would go to jail.
                                          6

      When C.G. was in the fourth grade, he had a friend named D.T. who lived in

Maryland. While C.G. was sleeping over at D.T.’s home, Mr. Menendez called

C.G. on C.G.’s cell phone. D.T. and D.T.’s brother heard Mr. Menendez tell C.G.

to go to the bathroom, put Vaseline on his private part, and “put it in D.’s butt.” The

boys laughed. C.G. laughed because he “didn’t want to like show like (sic) [he]

was scared,” because he “didn’t know what to do.”



      Before C.G. related what occurred during the sex act in the District of

Columbia, the trial court ruled that the prosecutor could ask C.G. about two poems

he wrote – “I Hurt” and “Life Has No Meaning.” Mr. Menendez’s trial counsel

moved for a mistrial. He argued that “‘other crimes’ evidence has overwhelmed

this trial in a more prejudicial than probative way,” and that “[i]t has been

completely unfair.” The trial court denied the motion, and C.G. responded to

questions about the incident that happened in the District.



      C.G. also was in the fourth grade when the charged incident occurred. On

the day of the incident, Mr. Menendez drove family members to C.G.’s

grandmother’s house. On the way there, C.G. fell asleep. When he awoke, he was

alone in the van with Mr. Menendez. Mr. Menendez drove to the optical office
                                          7

where he worked; he went there to make eyeglasses for one of his sons.2 He took

C.G. to a small room with a big chair and another chair that was black and circular.

He closed the door, removed C.G.’s pants and underwear, and he took off one leg of

his own jean overalls and lowered the other to his ankle. Mr. Menendez sat on the

big chair and instructed C.G. to bend over. He put his private part inside C.G.’s

butt, began moving his hips, told C.G. to hold onto the black circular chair to support

his stomach, began moaning, and after an “extra loud” moan, he stopped. He asked

C.G. if he “liked it.” C.G. did not answer. C.G. did not tell anyone about the

incident because “he was scared [and] confused” and he “didn’t know what to do.”

Eventually he told his mother about the incident, but she “didn’t believe [him] at

first, because [he] said it out of anger.” After Mr. Menendez put C.G., his mother,

Aunt Sharon, and his brother out of his home because he was angry with C.G., C.G.

again told his mother about the incident, and later spoke with the police.



      At the end of his direct testimony, C.G. identified the notebook containing the

poems he had written. He wrote the poems when he was in the fourth grade. He

read the poems before the jury. The poem, “I Hurt,” stated: “When I get mad, I

      2
          Roberto Conte managed the optical office where Mr. Menendez worked.
He testified that Mr. Menendez had a key to the office, sold glasses and frames, and
fabricated lenses.
                                         8

keep it inside, but sometimes I just push it aside. One day I kept the hurt inside. I

hate the hurt.” The second poem, “Life Has No Meaning,” said: “[I]t just makes

you mad. Some people kill themselves because they’re so sad. I think of doing

that sometimes in my mind, but I push back, so it’s hard to find. Life has no

meaning.” C.G. did not remember exactly why he wrote the poems, but he “was

feeling sad, so [he] had to let something out, and wrote [the poems].” He did not

feel that way before he moved into Mr. Menendez’s home.



      The government presented other witnesses. D.T., who knew C.G. in the

fourth grade, testified that C.G. told him that Mr. Menendez had “raped” him. He

admitted on cross-examination that he told the grand jury that C.G. said Mr.

Menendez was “touching him,” but he explained on redirect examination that when

he said “raped” he meant “touched,” that “basically . . . rape mean[s]” touching.

D.T. remembered that during a sleepover at D.T.’s home, C.G. received a call on his

cell phone. C.G. put the call on the speaker. D.T. heard a male voice telling C.G.

to put Vaseline on his butt.



      Sharon, who took care of the children who resided in the Laurel home,

recounted an experience she had upon entering the living room where C.G., his
                                          9

mother, and brother Z. slept. C.G.’s mother was out late so Sharon had taken Z. to

her bedroom. C.G. was on the mattress when she left. When Z. fell asleep, she

went to return Z. to the living room. The light was off and she did not turn it on.

She “kind of felt something” when she tried to put Z. on the mattress. She said,

“oops,” and “heard [Mr. Menendez] say, just put Z. down.” Sharon did not expect

Mr. Menendez to be there, but he was on the mattress. Mr. Menendez got up and

went to the backyard. When he returned, he did not say anything to Sharon.



      According to Sharon, the initial relationship between Mr. Menendez and C.G.

was “really close” and C.G. “treated [Mr. Menendez] as his dad.” However, one

night Sharon observed that C.G. “was really, really mad” because Mr. Menendez

“scolded him about something.” C.G. “burst[] into tears and then said something.”

Sharon heard C.G. say, “he molested me.” C.G. told his mother, who also was

present at the time, that his father should not be incarcerated; rather “it should be”

Mr. Menendez. When his mother asked why C.G. “was saying that,” he replied,

“because he molested me.”       C.G.’s relationship with Mr. Menendez changed.

“[C.G.] would be really, really mad,” and “he kept his distance” from Mr.

Menendez. After C.G., Z., his mother, and aunt moved to the hotel, C.G. “became
                                         10

better,” and “little by little, he would open up to [his mother and aunt] and talk

about” the molestation.



      The government presented other relevant evidence. The Laurel City Police

Department began a criminal investigation of C.G.’s situation. On May 28, 2009,

Sgt. Erik Lynn, then assigned to the criminal investigation division of the

Department, received a fax from Child Protective Services of Prince George’s

County regarding a child sexual assault of a ten-year old boy, C.G., at the hands of a

forty-five-year old male, C.G.’s uncle – Mr. Menendez. Sgt. Lynn conducted a

recorded interview with C.G. on June 8, 2009, in the presence of Stephanie Cook, an

investigator with Child Protective Services. C.G. responded to routine questions

with eye contact, but when he described what Mr. Menendez did, he avoided eye

contact, “continuously looked at the ground,” and played with his hair. The trial

court ruled that the government could play the videotape of the interview in which

C.G. identified Mr. Menendez as the person who performed the sexual acts about

which he testified.
                                          11

      Sue Ellen Beckman, a nurse who formerly worked at the Sexual Assault

Center at Prince George’s County Hospital, saw C.G. on June 2, 2009. C.G. was

“very withdrawn.” He said his uncle put his private part in his (C.G.’s) butt.



      After his interview with C.G., Sgt. Lynn contacted the Metropolitan Police

Department in the District to report on the investigation of Mr. Menendez. In

addition, on August 18, 2009, Sgt. Lynn participated in the execution of a search

warrant at the Menendez home.           The search produced electronic devices,

pornographic flyers, a pillow, and a mattress cover.3 Sgt. Donald Winstead of the

Laurel Police Department also participated in the search of the Menendez home.

Among the items he recovered from the basement of the home was a black rubber

ring used by a male in the performance of sexual acts.




      3
          Kathryn Busch, a forensic scientist in the biology unit of the Maryland
State Police forensic sciences division, testified as an expert witness in the field of
DNA analysis and serology. She received a piece of a mattress cover and a pillow.
She also received DNA from Mr. Menendez, J., C.G., Mr. Menendez’s wife, Sharon,
and C.G.’s mother. A stain on the mattress cover revealed the presence of semen.
Testing of the pillow produced negative results. Ms. Busch obtained a DNA profile
from the mattress cover stain. She could not draw any conclusions about the minor
contributor DNA profile. The minor contributor could have been “multiple”
persons. However, she determined that “[t]o a reasonable degree of scientific
certainty, the major contributor [was] [Mr.] Menendez.”
                                          12

      In addition to claiming that a mistrial should be granted because the “other

crimes” (uncharged) evidence was “overwhelming” and more prejudicial than

probative, Mr. Menendez presented his case through the cross-examination of

government witnesses, and through the testimony of Mr. Menendez’s main witness,

Edgar Ocon, who worked at the optical store with Mr. Menendez. The central

defense theory was that C.G. fabricated the allegations against Mr. Menendez

because of his deep-seated anger after Mr. Menendez banished C.G., his mother, and

his aunt from the Menendez home.



      Through the cross-examination of C.G. and Sharon, counsel for Mr.

Menendez emphasized aspects of C.G.’s background to set the stage for the

fabrication theory based on C.G.’s anger. These aspects included C.G.’s father’s

incarceration and transfer from a Virginia jail to a Louisiana prison, precluding visits

by C.G.; C.G.’s family’s homelessness; C.G.’s building anger over being scolded for

misbehavior; and C.G.’s failure to report any abuse by Mr. Menendez until after Mr.

Menendez told C.G., his mother, and his aunt to leave his home. Defense counsel

also endeavored to establish that Sharon said C.G. complained about Mr. Menendez

in Spring 2008, not in 2009; C.G. did not use the word “molest” when he complained

about his uncle to Sharon; Sharon “didn’t think anything of it” when she
                                        13

encountered Mr. Menendez on the mattress where C.G. slept; and Sharon never saw

Mr. Menendez touch C.G.



      At the time of his testimony, Mr. Ocon had known Mr. Menendez for about

eleven or twelve years.     Mr. Menendez gave Mr. Ocon his first job and,

subsequently, they became good friends. Mr. Ocon was present at the optical office

on the day of the charged incident against Mr. Menendez. He arrived at the office

before Mr. Menendez and C.G. Because Mr. Ocon was more specialized in rimless

glasses than Mr. Menendez, he did the work. While the two men were in the work

area, C.G. was in the lobby having fun. Mr. Ocon testified that he “had sight of

[Mr. Menendez and C.G.] pretty much the whole time” they were in the optical

office.



          THE PARTIES’ ARGUMENTS REGARDING THE MARYLAND
                     SEXUAL ABUSE EVIDENCE


      Mr. Menendez contends that “[t]he prosecution presented far more evidence

of the Maryland abuse than was necessary to provide a context to explain C.G.’s

behavior during and after the [District of Columbia] assault.” He claims that the

prosecution could have achieved its goals of “providing background to explain [Mr.]
                                        14

Menendez’s sexual proclivity and why C.G. reacted as he did to the charged assault

. . . by having C.G. testify about what happened in [the District of Columbia] and

then asking him whether similar assaults had ever happened before, and generally to

describe how long such abuse went on and why he reported it when he did and not

sooner.”   He argues that his conviction should be reversed because “the

overwhelming volume and inflammatory detail of the government’s presentation on

the Maryland allegations – especially when viewed against its spartan presentation

of evidence on the charged incident – made for a much greater likelihood that the

jury would convict [Mr.] Menendez, either on the impermissible presumption that

because he had abused C.G. on other occasions, he must also have done so on the

charged occasion . . ., or simply to punish [Mr.] Menendez for what he did in

Maryland . . . .” Moreover, Mr. Menendez maintains, the jury’s note during

deliberations (asking “how much consideration should we give to alleged incidents

that took place in Maryland”) and before any instruction had been given on how to

view that evidence, was followed by a verdict the next day.



      The government contends that Mr. Menendez argued in the trial court “that

the government should be required to prove each prior sexual assault by clear and

convincing evidence and that the government would be unable to do so,” but on
                                          15

appeal makes an argument that “is inconsistent with the position [he] took before the

trial court.” The government argues that “[b]ecause [Mr. Menendez] urged the trial

court to demand that the government produce substantial evidence of the Maryland

offenses at trial, this [c]ourt should not now entertain any claim that too much such

(sic) evidence was introduced,” and that if this court does review the appellate claim,

it should be for plain error.



      The government further asserts that the Maryland evidence provided the

context to an understanding of the charged sexual abuse in the District, and hence,

was “pivotal” under this court’s decision in Koonce v. United States, 993 A.2d 544

(D.C. 2010). The government asserts that it was “pivotal” and “essential” because

(a) “the ongoing ‘random’ and repeated abuse would enable the government to

dispel any negative inference associated with C.G.’s imprecise testimony”; (b) it

“explained C.G.’s compliance with [Mr. Menendez’s] commands at the time of the

charged abuse”; (c) it “explained C.G.’s delayed reporting of the abuse”; (d) it “was

important in explaining C.G.’s gradual change in behavior and increasing anger

towards [Mr. Menendez]”; (e) given certain evidence such as that pertaining to the

rubber ring used by Mr. Menendez in performing certain sexual acts, and that

pertaining to D.T.’s testimony, it was “relevant to corroborate that [the] ‘pivotal’
                                           16

continuing course of abusive conduct actually occurred”; and (f) as permitted by

case law, “it demonstrated [Mr. Menendez’s] ‘predisposition to gratify special

desires with that particular victim,’” that is, C.G.



      Finally, the government argues that the jury’s note during deliberations

“dispels any prejudice by showing that [it] recognized it had to decide only whether

[Mr. Menendez] had committed the charged (District) offense while making limited

use of the Maryland evidence.” The government maintains that the trial court’s

“correct response” (stating, in part, “[y]ou may use this evidence only for the limited

purpose of deciding whether it shows the defendant’s predisposition to gratify

special sexual desires with [C.G.] specifically, and to place the District of Columbia

charge in an understandable context”) “further dispelled any risk of unfair

prejudice.”



      In his reply brief, Mr. Menendez contends that the claim now before this court

was properly raised in the trial court, and that the issue should be reviewed for abuse

of discretion, rather than not be considered or be reviewed for plain error. He

argues that he raised the claim in his written opposition to the government’s first

motion in limine, and in his response to the government’s supplemental motion. He
                                          17

insists that the trial judge was aware of the issue on which he was being asked to rule

– “Was all of the proffered Maryland evidence pivotal context for the charged

assault and admissible under Koonce, as the prosecution argued, or only some or

none of that evidence, as the defense argued?” Mr. Menendez asserts that “even if

the issue had not been preserved pretrial, the trial court’s refusal to grant a mistrial

and failure to limit the subsequent presentation of the Maryland evidence after

C.G.’s non-pivotal testimony about the uncharged abuse overwhelmed the trial[,]

should be reviewed for abuse of discretion.”           He further claims that “[b]y

challenging the Maryland evidence as not sufficiently reliable to be admitted, [he]

was asserting his right to have it excluded in its entirety, not inviting the government

to pile on even more of that evidence before the jury.”



      Mr. Menendez vigorously argues that the government failed to satisfy the

Koonce factor that requires the uncharged evidence to be “pivotal to the

prosecution’s case because proof of context is required.” The gravamen of his

argument is that the admission of numerous graphic details about the alleged sexual

acts in Maryland defeated Koonce’s goal of “ensur[ing] that the prejudicial impact

of [the prior abuse evidence] will not significantly outweigh [its] probative value.”

Mr. Menendez insists that “[a] few questions to C.G. about whether he had
                                          18

experienced other similar assaults, when they occurred relative to the charged

incident, and why he did not report them sooner would have struck the right balance

of providing explanatory context for the charged incident while cabining the risk

that the jury would convict on the impermissible basis of the Maryland abuse.” He

maintains that the trial court’s error in allowing into evidence so much graphic detail

about the Maryland abuse was not harmless, and that his conviction must be

reversed under Koonce.



                                    ANALYSIS



      Standard of Review



      “‘We review a trial court’s decision to admit or exclude evidence for abuse of

discretion.’” United States v. Morton, 50 A.3d 476, 482 (D.C. 2012) (quoting

Riddick v. United States, 995 A.2d 212, 216 (D.C. 2010)). “‘[W]e recognize that

the evaluation and weighing of evidence for relevance and potential prejudice is

quintessentially a discretionary function of the trial court, and we owe a great degree

of deference to its decision.’” Id. (quoting Johnson v. United States, 683 A.2d

1087, 1095 (D.C. 1996) (en banc)). Moreover, “‘[a] trial court has broad discretion
                                          19

to make evidentiary rulings because of its familiarity with the details of the case and

expertise in evidentiary matters.’” Travers v. United States, 124 A.3d 634, 639

(D.C. 2015) (quoting Richardson v. United States, 98 A.3d 178, 186 (D.C. 2014)).

“In determining whether the trial court properly exercised its discretion, we consider

inter alia whether the court ‘failed to consider a relevant factor.’” Morton, supra,

50 A.3d at 482 (citation omitted).



      Applicable Legal Principles



      In cases of a sexual nature, this jurisdiction has long recognized an exception

to “the general rule that a person cannot be convicted of a specific crime by proof

that he has committed other crimes.”4 Dyson v. United States, 97 A.2d 135, 137

(D.C. 1953). Relying on Hodge v. United States, 126 F.2d 849, 75 U.S. App. D.C.

332, Dyson recognized that because there is a probability that an “emotional

predisposition or passion” of a sexual nature “will continue,” “[e]vidence of prior

[sexual] acts between the same parties is admissible . . . as showing a disposition to
      4
         Early D.C. Circuit cases followed the general rule articulated in Dyson.
See Bracey v. United States, 142 F.2d 85, 87, 79 U.S. App. D.C. 23, 25; see also
Drew v. United States, 331 F.2d 85, 89, 118 U.S. App. D.C. 11, 15 (“[E]vidence of
one crime is inadmissible to prove disposition to commit crime, from which the jury
may infer that the defendant committed the crime charged.”).
                                         20

commit the act charged.” Id. at 138; see also Bracey, supra, 142 F.2d at 88, 79 U.S.

App. D.C. at 26.



      The specific contours of the exception to the general rule in sexual abuse

cases began to evolve in Pounds v. United States, 529 A.2d 791 (D.C. 1987) (per

curiam).5 This court declared that “in the circumstance of ongoing sexual abuse of

the complainant by appellant, several factors combine to render the probative value

of the evidence so high as to outweigh its potential for prejudice.” Id. at 794

(citation omitted). The factors are: (1) “the evidence of sexual contact occurred

between the same parties”; (2) “the contact was incestuous”; (3) “the contact

involved continuing conduct, beginning when complainant was a very young child”;

and (4) “knowledge of the contact was pivotal, in some degree, to a determination of

innocence or guilt[,]” because “part of appellant’s defense was that the story told by

his daughter in the absence of certain physical manifestations, or an earlier

complaint, was ‘impossible.’” Id. This court affirmed the trial court’s admission

of “the evidence of prior bad conduct on the basis that it tended to show


      5
         In Pounds, a father was convicted of rape, carnal knowledge, and incest.
He had sexually abused his daughter beginning when she was six or seven years old.
His wife, the mother of the girl, did not believe that the abuse had occurred.
Pounds, supra, 529 A.2d at 793, 795 n.5.
                                           21

‘gratification,’ i.e. ‘the predisposition to gratify special desires with that particular

victim’”; we concluded that without the evidence of the prior sexual acts, the child’s

“lack of hysteria or trauma” in reporting the later sexual abuse, and “her failure to

inform her mother, would be difficult to understand without the context of facts

showing longstanding abuse by her father.” Id. at 795 (footnote omitted). Relying

on Toliver v. United States, 468 A.2d 958, 960 (D.C. 1983), we determined that

“[t]he circumstances [in Pounds] are somewhat akin to those situations where we

have found that the evidence was inextricably interwoven with the crime and

therefore not Drew evidence.” Id. In Graham v. United States, 746 A.2d 289, 296

(D.C. 2000), we summarily applied Pounds and Toliver in a sexual abuse case where

a girl had been sexually abused since age six by the man who lived with her mother

(and whom she called her stepfather); we mentioned two of the factors in Pounds –

the sexual abuse involved the same parties, and there was “a continuous course of

conduct beginning when the complainant was very young.”



      This court further refined the narrow sexual abuse exception to the admission

of propensity evidence in Koonce v. United States, 993 A.2d 544 (D.C. 2010). We

held “that prior abuse evidence may be admitted under this narrow exception if (1)

the sexual abuse involves a defendant and the same victim; (2) the relationship
                                         22

between the alleged abuser and the victim constitutes or approximates a close

familial connection; (3) the pattern of sexual abuse started when the victim was very

young and occurred at reasonably short and regular intervals without meaningful

interruption; and (4) the evidence is pivotal to the prosecution’s case because proof

of context is required.” Id. at 556 (referencing Pounds, supra, 529 A.2d at 794).

We added that “there must be clear and convincing evidence that the prior abuse

occurred.” Id. (citing Groves v. United States, 564 A.2d 372, 374 (D.C. 1989).)



      Pretrial Rulings Regarding Prior Uncharged Acts of Sexual Abuse



      Prior to trial, the parties engaged in extensive motions pleading regarding the

admissibility of Mr. Menendez’s uncharged prior acts of sexual abuse of C.G. 6 In

response to these pleadings, the initial trial judge held several hearings on the

uncharged prior acts. On February 8, 2013, the trial court made preliminary

findings on the admissibility of the uncharged acts. On June 7, 2013, the trial court

found that the government had met the first three Koonce factors and that, assuming

that the government’s proffer was satisfied by clear and convincing evidence, the

      6
         The initial trial judge, the Honorable Robert Morin, handled the pretrial
hearings and decisions. The case was transferred to the Honorable Russell F.
Canan for trial.
                                         23

government also satisfied the fourth Koonce factor. The court considered the

government’s evidentiary proffer at hearings on June 28, November 15, and

November 22, 2013. Subsequent to the court’s ruling that uncharged prior acts of

sexual abuse could be admitted at trial, Mr. Menendez filed a “motion to reconsider

admissibility of defendant’s other crimes and prior bad acts.”



      The trial court held a hearing on the reconsideration motion on December 2,

2013. The court was particularly concerned as to whether the government had

expanded the uncharged conduct to include Mr. Menendez’s acts with other

children, because that would be “overwhelming the limited purpose” for which

evidence of uncharged acts is used. The government indicated that its evidence

would not include acts with other children. The trial court determined that the

government’s evidence of uncharged prior acts of sexual abuse was “much more

limited in nature” and generally would be allowed to prove context with respect to

C.G.’s reaction to the sexual abuse act in the District of Columbia. With respect to

evidence pertaining to the ring used during the sexual acts, the court ruled it

admissible because of its probative nature, subject to the government’s proffer

regarding its prejudicial effect.

      Discussion
                                          24



      To determine whether the trial court abused its discretion by admitting prior

uncharged acts of sexual abuse, we review this case from the backdrop of two of our

precedents – Koonce, where we reversed appellant’s conviction for first-degree

child sexual abuse and remanded the case for a new trial because the Koonce factors

were not met, and Steward v. United States, 6 A.3d 1268, 1274 (D.C. 2010), where

we applied the Koonce factors and affirmed “the trial court’s denial of [appellant’s]

motion for a judgment of acquittal and its admission of the evidence of [appellant’s]

prior sexual contact” with the child.



      The appellant in Koonce was convicted of first-degree child sexual abuse

(anal penetration) of his girlfriend’s niece in 1999, in the District of Columbia. The

trial court admitted evidence of an alleged earlier act of anal penetration of the child

by appellant in 1996 or 1997, in Maryland. This court determined that (1) the

relationship between appellant and the child was neither incestuous, “nor

sufficiently familial to fall within the slightly expanded meaning” of “close familial

connection; (2) the third Koonce factor was not met because the Maryland alleged

incident occurred in 1996 or 1997 and the District of Columbia incident in 1999, and

therefore, the Maryland incident was not “part of a continuing course of conduct”
                                           25

because “[a] single incident followed by a break in conduct of as much as two or

more years is not ‘so persistently repeated at short intervals as to constitute virtually

an unbroken series’ of events”; and (3) the rationale for introducing evidence of the

Maryland incident – “we need a starting point” – did not satisfy the fourth Koonce

factor, that is, that the evidence was “pivotal” to the prosecution’s case. Id. at

556-57.



      In Steward we held “that the evidence of [appellant’s] prior sexual contact

with his [fifteen year-old stepdaughter] [fell] squarely within the parameters of our

explication in Koonce of [the] narrow [sexual abuse] exception, and therefore the

trial court did not abuse its discretion by admitting the evidence at trial.” Id. at

1271. The first two Koonce factors were met because appellant, the child’s mother,

and the child had been living together for years at the time of the prior sexual abuse

and “a sufficiently close familial relationship existed between” the child and

appellant. Steward, supra, 6 A.3d at 1272. The third Koonce factor was met

because the sexual abuse “began when [the child] was very young [eight or nine

years old] and continued without meaningful interruption for years [until the child

was fifteen years old].” Id. The fourth Koonce factor was satisfied because

“without information about [appellant’s] history of sexual contact with [the child], it
                                          26

would be impossible to explain why [the child] felt the need to tell [others] about the

[later sexual abuse],” and “the prosecution would not be able to prove [appellant’s]

intent to gratify his sexual desires . . . without establishing that [appellant] had a

history of abusing [the child] for that very purpose.” Id.



      There is no doubt that this case involves Mr. Menendez’s “emotional

predisposition or passion” of a sexual nature, Dyson, supra, 97 A.3d at 138, and

“ongoing sexual abuse” of C.G., Pounds, supra, 529 A.2d at 794. Hence, the

Koonce factors apply.



      The first Koonce factor, sexual contact between the same parties – Mr.

Menendez, the defendant and abuser, and C.G., the victim and the abused –

obviously is met in this case. With respect to the second factor concerning the

relationship between Mr. Menendez and C.G., Mr. Menendez’s relationship to C.G.

was much closer than the boyfriend of the abused child’s mother in Koonce.

Indeed, it is at least as close as that between the stepfather and stepdaughter in

Steward. Here, the trial court found that there was a close relationship between

C.G. and his uncle by marriage because Mr. Menendez disciplined C.G. and acted as

a father figure to C.G. Testimony at trial supports this finding, as well as the jury’s
                                        27

specific finding that at the time of the offense Mr. Menendez “had a significant

relationship to [C.G.] in that [Mr.] Menendez was [C.G.’s] uncle.” Trial testimony

revealed that three sisters lived in Mr. Menendez’s home: one his wife, another the

mother of C.G., and a third sister who cared for the children in the household.

Sharon testified that the initial relationship between Mr. Menendez and C.G. was

“really close” and C.G. “treated [Mr. Menendez] as his dad”; Mr. Menendez also

“scolded” C.G. when he thought C.G. did something wrong. Consequently, the

record shows that the second Koonce factor was met because the sisters, together

with their children or nephews, occupied the same home with Mr. Menendez, in a

family setting; the relationship between Mr. Menendez and C.G. thus

“approximate[d] a close familial connection.” See Koonce, supra, 993 A.2d at 556.



      The third Koonce factor – “the pattern of sex abuse started when the victim

was very young and occurred at reasonably short and regular intervals without

meaningful interruption” – also is satisfied in this case.    See id.   Unlike the

situation in Koonce, there was no multi-year gap between Mr. Menendez’s acts of

sexual abuse in Maryland, and his act of sexual abuse in the District of Columbia.

In fact, this case is akin to Steward where there was no meaningful interruption in

appellant’s sexual abuse of the victim. The jury here could reasonably conclude
                                          28

that the sexual abuse of C.G. by Mr. Menendez occurred between early January

2009 and mid-May 2009, a discrete period of time. Moreover, as in Steward, Mr.

Menendez’s pattern of abuse began when C.G. was very young. Indeed, the jury

specifically found that at the time of the offense C.G. was under the age of twelve.



      Mr. Menendez has insisted throughout this case that the government failed to

satisfy the fourth Koonce factor – “the evidence is pivotal to the prosecution’s case

because proof of context is required.” See id. He claims that the Maryland

evidence was “overwhelming” and the amount of that evidence far exceeded the

amount allowed as context for a charged crime.



      During the pretrial phase in this case the trial court carefully scrutinized the

parties’ pleadings and arguments, and the proffer pertaining to the fourth Koonce

factor before concluding that the government’s proof at trial would satisfy that

factor. Clearly this case is not like Koonce where the government’s rationale

regarding the fourth factor was that it “need[ed] a starting point” for introducing the

evidence of sexual abuse relating to the charged offense. See id. at 557 (internal

quotation marks omitted).      The government took the position throughout the

pretrial and trial proceedings in this case that the evidence of Mr. Menendez’s
                                         29

uncharged prior Maryland acts of sexual abuse against C.G. was essential because it

served as context for the charged act of sexual abuse in the District of Columbia, to

explain C.G.’s apparent lack of reaction or expressed concern, complaint or report of

the abuse.   The government also asserted that the evidence substantiated Mr.

Menendez’s intent to gratify his unusual sexual preference and desires. As the

government argues on appeal, the Maryland evidence enabled the jurors to

comprehend why C.G. simply complied with Mr. Menendez’s instructions and

actions of sexual abuse in the District “without surprise,” delayed telling anyone

about the acts of sexual abuse, became increasingly angry with Mr. Menendez’s

discipline, and was subjected to Mr. Menendez’s efforts to convince him that the

sexual acts he performed with C.G. were “normal” and that C.G. liked them. On

this record where the trial court scrutinized and limited the evidence of the Maryland

uncharged acts of sexual abuse, and properly instructed the jury in response to its

question during deliberations about the limited purpose for which the Maryland

evidence was introduced, we cannot say that the trial court erred or abused its

discretion in ruling that the government’s proffer and proof satisfied the fourth

Koonce factor.7


      7
        After review of the record, we agree with Mr. Menendez that the question
of whether the trial court admitted too much evidence about the Maryland sexual
                                                                  (continued…)
                                         30

      Beyond the four Koonce factors, Mr. Menendez contends that the trial court

improperly concluded that the government presented clear and convincing evidence

of Mr. Menendez’s uncharged prior acts of sexual abuse against C.G. in Maryland.

We disagree. The trial court paid particular attention to the clear and convincing

standard during the pretrial proceedings before ruling that the Maryland evidence

could be admitted.



      To “determin[e] whether the government provided clear and convincing

evidence [of Mr. Menendez’s prior bad acts], the trial court was permitted to base its

ruling on a detailed proffer from the government.” Medley v. United States, 104

A.3d 115, 129 (D.C. 2014) (citing Daniels v. United States, 613 A.2d 342, 347 (D.C.

1992) (internal quotation marks omitted). At a hearing on June 28, 2013, the

government proffered documents whose contents would establish Mr. Menendez’s

prior bad acts. In response, defense counsel argued that the government’s proffer

should be limited to documents reviewed by an administrative law judge (“ALJ”)

who found that C.G.’s allegations against Mr. Menendez about the Maryland sexual




(…continued)
abuse was properly preserved, and hence, the abuse of discretion standard applies.
                                         31

abuse incidents were not substantiated.8 However, the trial court ruled that the

government was not limited to the ALJ’s findings in making its clear and convincing

evidence proffer. Consequently, the government identified the documents that

would constitute its proffer, and the trial judge gave defense counsel, as well as the

court itself, time to examine the documents.



      On November 15, 2013, the trial court held a hearing on the clear and

convincing evidence requirement. The trial judge indicated that he had examined

the contents of the following documents proffered by the government, some of

which were not seen or referenced by the ALJ: (1) the June 9 (sic), 2009 Laurel

police interview of C.G.; (2) the June 16, 2009, interview between Sgt. Lynn and

Sharon regarding her discovery of Mr. Menendez in bed with C.G.; (3) the August


      8
         At a hearing on February 8, 2013, Mr. Menendez’s trial counsel first
mentioned an administrative hearing in Maryland by the Department of Social
Services where the ALJ applied a preponderance of the evidence standard and the
complaints against Mr. Menendez were found to be unsubstantiated. In its
supplemental motion in limine relating to Mr. Menendez’s Maryland sexual acts
against C.G., filed on March 26, 2013, the government identified the administrative
hearing case as Enrique Menendez v. Prince George’s County Department of Social
Services. The government further discussed the hearing, held on two days, May 19,
2011, and June 6, 2011. At that hearing the ALJ heard telephone testimony from a
social worker and testimony from Mr. Menendez and his wife. However, there was
no testimony from C.G., C.G.’s mother, the sexual assault nurse examiners, or other
persons who occupied Mr. Menendez’s home at the time of his sexual abuse of C.G.
                                          32

17, 2009, Children’s Advocacy Center interview with C.G.; (4) the August 18, 2009,

Laurel police search warrant return; (5) the DNA report; and (6) the May 26, 2009,

interview of C.G.’s mother, and her work records. The trial judge informed counsel

that he had watched several hours of interviews between C.G. and the various

interviewers and concluded that C.G.’s “description is generally consistent and

detailed.” The judge also referenced the government’s supplemental motion in

limine, to which Mr. Menendez filed an opposition. After listening to further

arguments of defense counsel and the prosecutor, the trial court ruled that it was

“satisfied that the government’s proffer provides clear and convincing evidence, if

the evidence supports the proffer, clear and convincing evidence of the existence of

the other acts.”



      In light of the record of the trial court’s careful and methodical examination of

the government’s detailed proffer, we conclude that the trial court properly ruled that

the government’s proffer satisfied the clear and convincing evidence standard. In

addition, based on the trial testimony of C.G. and that of other government

witnesses, reasonable jurors could conclude that C.G. was a credible witness in

recounting the Maryland acts of sexual abuse despite his inability to recall precise

dates of each abusive act, and that the government presented ample and compelling
                                          33

evidence to convict Mr. Menendez beyond a reasonable doubt of the charge against

him. Further, it was the jury’s responsibility to weigh the testimony and evidence

presented by both the government and defense, and the jury also was responsible for

determining the credibility of all of the witnesses. After review of the record in this

case, we are satisfied that there was no trial court abuse of discretion with respect to

the clear and convincing standard of proof.



      Mr. Menendez also emphasizes his arguments at trial, especially those that

accompanied his motion for a mistrial, that the prejudicial impact of the Maryland

evidence substantially outweighed the probative value of that evidence. On this

record, there is no doubt that the Maryland evidence, including that pertaining to the

p-ring used by Mr. Menendez in anal sex with C.G., had probative value, as the trial

court ruled during pretrial proceedings. To avoid undue prejudice, the trial court

limited the Maryland evidence that could be presented, and the court spent

substantial time ensuring that the evidence admitted satisfied the Koonce factors, as

well as the clear and convincing evidence standard. Furthermore, in light of Mr.

Menendez’s defense theory – that C.G. fabricated the District of Columbia charge –

and in light of the trial court’s “‘broad discretion to make evidentiary rulings

because of its familiarity with the details of the case and expertise in evidentiary
                                         34

matters,’” Travers, supra, 124 A.3d at 639 (citation omitted), we cannot say that the

trial court abused its discretion in rejecting Mr. Menendez’s arguments about the

prejudicial effect of the uncharged Maryland prior acts of sexual abuse that the trial

court admitted into evidence. To be sure, the details were not pretty, but the

government was required to present clear and convincing proof that the Maryland

sexual abuse actually took place. Moreover, the trial court’s admission of the

Maryland evidence at Mr. Menendez’s trial fell squarely under the legal principle

that where there is a probability that an “emotional predisposition or passion” of a

sexual nature “will continue,” “[e]vidence of prior [sexual] acts between the same

parties is admissible . . . as showing a disposition to commit the act charged.”

Dyson, supra, 97 A.2d at 138.



      In short, we hold that the trial court properly exercised its discretion, and

considered all relevant factors, before admitting evidence of Mr. Menendez’s prior

acts of sexual abuse against C.G.; “‘we owe a great degree of deference to its

decision.’” Morton, supra, 50 A.3d at 482 (quoting Johnson, supra, 683 A.2d at

1095).
                                  35

Accordingly, for the foregoing reasons, we affirm the trial court’s judgment.



                                       So ordered.
