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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 12-CF-1351

                        SHEPARDSON R. BLAIR, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF1-18057-11)

                    (Hon. Thomas J. Motley, Motion Judge)
                      (Hon. Ronna Lee Beck, Trial Judge)

(Argued April 9, 2014                                      Decided May 7, 2015)
     Daniel Gonen, Public Defender Service, with whom James Klein, Public
Defender Service, was on the brief, for appellant.
      Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Amy H. Zubrensky Cassidy K. Pinegar and Ann K.H. Simon, Assistant
United States Attorneys, were on the brief, for appellee.
     Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and
STEADMAN, Senior Judge.


      THOMPSON, Associate Judge:      In this matter, appellant Shepardson Blair

was convicted of kidnapping, first-degree sexual abuse with an aggravating
                                          2

circumstance,1 and assault with significant bodily injury (felony assault). He seeks

reversal of all of his convictions, arguing that the government obtained his DNA

that tied him to the crimes pursuant to an invalid warrant. The warrant was invalid,

appellant contends, because the government sought it and the court granted it on

the basis of tainted information: a report received from the FBI about a match

between (1) DNA left on the sexual-abuse victim and (2) DNA taken from

appellant without statutory authorization, and in alleged violation of his Fourth

Amendment rights, while he was incarcerated in 2005 on a theft conviction. We

reject appellant’s claim for relief because we conclude that the judge who granted

the government’s warrant application on the basis of the DNA match did not err in

declining to apply the exclusionary rule and that the DNA evidence obtained

through the warrant was properly admitted at trial.




      Appellant also raises two insufficiency-of-the-evidence claims: He contends

that the evidence at trial did not establish that there was penetration of the victim’s

vulva and that the evidence therefore was insufficient to support a conviction for

the completed offense of first-degree sexual abuse. In addition, he argues that his

      1
         The court determined that there was an aggravating circumstance (a prior
sexual assault conviction) after the jury found appellant guilty of first-degree
sexual abuse.
                                            3

felony assault conviction must be reversed because the evidence was insufficient to

prove that the victim sustained significant bodily injury. For the reasons explained

below, we reject both arguments. Accordingly, we affirm appellant’s convictions.




                                   I.      Background




      At trial, the government presented evidence that as the victim C.H. was

walking home on the evening of July 14, 2003, an assailant — identified through

DNA evidence as appellant2 — grabbed her by the throat and started to strangle

her, dragged her through the grass, pulled her into some bushes, repeatedly

slammed her face into the ground, and then pulled down her pants and underwear

and tried to push his penis into her vagina.          C.H. was eventually taken by

ambulance to a hospital, where an emergency department doctor collected samples

from her using a sexual assault kit.




      2
          At trial, C.H. was unable to identify appellant as her assailant.
                                        4

      The DNA profile obtained from the sexual assault kit samples was entered

into the Combined DNA Index System (“CODIS”).3 Initially, no match was found

in the system, and the case went “cold” for several years. In the meantime, on July

28, 2005, while appellant was incarcerated at a federal prison in Maryland as a

result of a District of Columbia conviction for first-degree theft, a Bureau of

Prisons (“BOP”) employee drew a sample of appellant’s blood (the “2005

sample”) so that his DNA profile could be included in CODIS.             However,

apparently because of a “significant backlog of samples,” the DNA profile from

appellant’s blood sample was not uploaded into CODIS for over four years. On

November 20, 2009, after FBI personnel had finally uploaded the profile into

CODIS, they discovered that appellant’s DNA matched the DNA profile obtained

from C.H.’s sexual assault kit. By letter dated May 5, 2010, the FBI Laboratory

Director reported that result to the Metropolitan Police Department (“MPD”)

Crime Laboratory. The letter also explained that the blood sample had been

obtained from appellant without authority of the DNA Analysis Backlog




      3
         CODIS is “a national project to standardize collection and storage of DNA
profiles” authorized by Congress in 1994 and supervised by the Federal Bureau of
Investigation (“FBI”). Maryland v. King, 133 S. Ct. 1958, 1968 (2013). It
“connects DNA laboratories at the local, state, and national level,” and generally
“collects DNA profiles provided by local laboratories taken from arrestees,
convicted offenders, and forensic evidence found at crime scenes.” Id.
                                       5

Elimination Act of 2000, Pub. L. 106-546, § 4, 114 Stat. 2726, 2730 (the “DNA

Act” or the “Act”).




      The DNA Act requires the Director of the BOP to “collect a DNA sample

from each individual in the custody of the Bureau of Prisons who is, or has been,

convicted of a qualifying Federal offense,” 42 U.S.C. § 14135a (a)(1)(B), or of a

“qualifying District of Columbia offense,” 42 U.S.C. § 14135b (a)(1). The Act

further requires the Director of the Court Services and Offender Supervision

Agency for the District of Columbia (“CSOSA”) to do the same with “each

individual under the supervision of [CSOSA] who is on supervised release, parole,

or probation who is, or has been, convicted of a qualifying District of Columbia

offense.” 42 U.S.C. § 14135b (a)(2). In addition, the Act provides that “[t]he

government of the District of Columbia may determine those offenses under the

District of Columbia Code that shall be treated . . . as qualifying District of

Columbia offenses.” 42 U.S.C. § 14135b (d).




      The May 5, 2010, FBI letter explained to the MPD that at the time the BOP

obtained the blood sample from appellant, appellant “d[id] not have a conviction

for a qualifying federal and/or District of Columbia offense” under the DNA Act.
                                         6

The felony theft conviction for which appellant was incarcerated in a BOP facility

was not a qualifying offense because the Council of the District of Columbia (“the

Council”) had not included theft on its list of “qualifying District of Columbia

offenses.”4 The FBI letter advised that nevertheless,

            [T]here is no information known to the FBI Laboratory
            that indicates the sample was collected and entered in
            other than a good faith belief that entry was appropriate
            and authorized by law. Therefore, based upon the facts
            and circumstances of this case, it has been determined
            that the offender’s personally identifying information
            may be released to your laboratory, for its investigative
            lead value and any other action that you deem
            appropriate.



      The letter provided identifying information for appellant, but further stated

that “[a]n administrative removal” of the sample would be performed, “requir[ing]

the destruction of the sample and its deletion” from CODIS.




      4
          See D.C. Law 14-52, codified at D.C. Code § 22-4151 (2001). By
contrast, in 2004, Congress had “expanded the definition of ‘qualified Federal
offense’ to include ‘[a]ny felony.’” Banks v. United States, 490 F.3d 1178, 1181
(10th Cir. 2007) (alteration in original) (citing 42 U.S.C. § 14135a (d)(1)
(reflecting an amendment made by Justice for All Act of 2004, Pub. L. No. 108-
405, 118 Stat. 2260).
                                         7

      On the basis of the FBI/CODIS match lead, appellant was arrested and, after

a probable cause hearing, detained in the instant case in September 2011. By that

time, the Council, through 2009 legislation, had expanded the list of qualifying

District of Columbia offenses to include “[a]ny felony.” See Omnibus Public

Safety and Justice Amendment Act of 2009, Act 18–189, codified as amended at

D.C. Code § 22-4151 (a) (1).5 On June 18, 2010, appellant was convicted of

another “qualifying” felony offense: attempted burglary in the second degree. He

was sentenced to 14 months’ imprisonment and was again in BOP custody until his

release on March 11, 2011. Thereafter, he was under CSOSA supervision from

March 13, 2011, until March 13, 2012. Thus, appellant was once again under

CSOSA supervision at the time of the preliminary proceedings in this case in the

fall of 2011.




      5
         Thus, by the time of the proceedings in the instant case, felony theft, the
offense for which appellant was incarcerated when the 2005 sample was obtained,
had become a qualifying District of Columbia offense under the DNA Act.
Appellant was under CSOSA supervision as a result of that felony theft conviction
until September 20, 2010. Accordingly, under the DNA Act and the amended
District of Columbia “qualifying offense” statute, CSOSA had an obligation to
obtain a DNA sample from appellant pursuant to 42 U.S.C. § 14135b (a)(2).
According to a government proffer, CSOSA did not do so because it “had not yet
been informed by the FBI that the sample had been destroyed, so [it] thought
[appellant’s] sample had already been taken.”
                                        8

      In connection with appellant’s incarceration for attempted second-degree

burglary and his subsequent CSOSA supervision, the DNA Act mandated that a

sample of appellant’s DNA be obtained. Nevertheless, it appears that neither BOP

nor CSOSA had obtained a post-2005 DNA sample from appellant by the time of

the proceedings in this case.6




      On September 29, 2011, the government filed a motion in this case in which

it asked the court to order appellant to submit to “the taking of a blood sample.”

The government explained that, as part of its standard practice in cases in which a

defendant has been identified through a CODIS match, it seeks a DNA sample in

order “to confirm the results of the CODIS match” and to meet evidentiary

requirements at trial. The government also explained that it sought a sample of

appellant’s DNA to allow for the testing of additional samples taken from C.H.

      6
          The prosecutor proffered at the hearing on the government’s warrant
application that neither the BOP nor CSOSA was aware at the relevant times that
the 2005 sample was no longer in the CODIS database. The prosecutor indicated,
however, that CSOSA was “subsequently . . . notified by the FBI that the 2005
sample was destroyed” (not indicating when this notification occurred). The
government argues that both agencies acted “in conformity with their legal
obligations as they would have understood them in light of the condition of the
government’s databases.” It also asserts that “[a]bsent [the] initial mistake in
collecting appellant’s DNA in 2005, appellant’s DNA inevitably would have been
collected by BOP when appellant returned to [BOP custody] in July 2010 on his
2010 burglary conviction.”
                                         9

during the sexual assault examination. Appellant opposed the motion, and after a

hearing on the matter on October 13, 2011, the court (the Honorable Thomas

Motley) granted the government’s motion and ordered appellant to submit to DNA

testing. The government’s motion conceded that the taking of the 2005 sample

“constituted a violation of the DNA Act, specifically of 42 U.S.C. 14135b

(a)(1)[,]” and Judge Motley agreed with the parties that the 2005 sample “was

taken in violation of the statutory framework . . . at the time that it was taken.”7

Judge Motley reasoned, however, that nothing in the DNA Act required

suppression of the 2005 sample. He further reasoned that, even assuming (as

appellant argued) that the taking of the 2005 sample constituted a Fourth

Amendment violation, application of the exclusionary rule in this case would “not

deter conduct.” Judge Motley noted that appellant had an eligible conviction (the

attempted burglary conviction for which, as noted above, he was then under

CSOSA supervision), cited the “inevitability of [appellant’s] DNA being compared

to CODIS” as “clearly evidenced by the facts of this case,” and reasoned that the

testing authorized by statute “will go on[.]” He stated that even if there was a

Fourth Amendment violation in the taking of the 2005 sample, he “believe[d] the


      7
          In fact, however, while 42 U.S.C. §§ 14135a and 14135b mandate the
collection of DNA samples from individuals convicted of qualifying federal or
District of Columbia offenses, the Act nowhere prohibits the collection of DNA
samples from individuals who have been convicted of non-qualifying offenses.
                                         10

police acted in good faith” and that he would “not exclude the CODIS hit” or

“suppress the use of the DNA obtained in this case.”




      Acting on the warrant issued by Judge Motley, an MPD detective obtained a

sample of appellant’s saliva through a buccal swab on October 19, 2011 (the “2011

sample”). The DNA extracted from the sample matched the sample obtained from

C.H.’s sexual assault kit. The 2011 sample was introduced as evidence at trial, and

appellant was convicted on all counts.




          II.   Appellant’s Arguments Regarding the DNA Samples




      Appellant’s argument as to why he is entitled to reversal of all of his

convictions can be summarized as follows:       The BOP took the 2005 sample

without a warrant, without individualized suspicion, and, unlike in Maryland v.

King,8 without statutory authorization or mandate. Therefore, the taking of the


      8
         See 133 S. Ct. at 1970 (“The Maryland DNA Collection Act provides that,
in order to obtain a DNA sample, all arrestees charged with serious crimes must
furnish [a DNA] sample . . . . The DNA collection is not subject to the judgment of
officers whose perspective might be colored by their primary involvement in the
often competitive enterprise of ferreting out crime. . . . [I]n light of the
standardized nature of the tests and the minimal discretion vested in those charged
                                                                      (continued…)
                                         11

sample — a “search” within the meaning of the Fourth Amendment9 — violated

appellant’s Fourth Amendment right not to be subjected to an unreasonable search

or seizure.10    Because the 2005 sample was taken unconstitutionally, the




(…continued)
with administering the program, there are virtually no facts for a neutral magistrate
to evaluate. Here, the search effected by the buccal swab of respondent falls within
the category of cases this Court has analyzed by reference to the proposition that
the touchstone of the Fourth Amendment is reasonableness, not individualized
suspicion.”     (citations    and     internal    quotation     marks      omitted)).
      9
         It is well-established that “the taking of a blood sample is a search” for
Fourth Amendment purposes. Everett v. Napper, 833 F.2d 1507, 1511 (11th Cir.
1987) (citing Schmerber v. California, 384 U.S. 757, 767 (1966)).
      10
           See, e.g., Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) (citing the
“importance of requiring authorization by a neutral and detached magistrate before
allowing a law enforcement officer to invade another’s body in search of evidence
of guilt” unless a recognized exception to the warrant requirement applies)
(internal quotation marks omitted). The Supreme Court explained in New York v.
Burger, 482 U.S. 691 (1987), that a statutory inspection program that serves a
substantial government interest may provide a “‘constitutionally adequate
substitute for a warrant’” if, in terms of the “certainty and regularity of its
application,” it “limit[s] the discretion of the inspecting officers.” Id. at 702-03.
Distinguishing that case and King, appellant argues that the government did not
have a “substantial interest” in collecting his DNA in 2005 because the Council
had not designated the crime for which he was incarcerated as a qualifying offense
under the DNA Act. Appellant relies on Koch v. Lockyer, 340 F. App’x 372, 374
(9th Cir. 2009) (reasoning that forcible extraction of Koch’s DNA violated his
Fourth Amendment rights where his offense was not a qualifying offense, meaning
that the state legislature had not expressed an interest in obtaining his DNA at the
time it was collected).
                                           12

exclusionary rule11 was applicable, meaning that the government should have been

precluded from using the information derived from the 2005 sample (i.e., the

CODIS match) to establish probable cause for the warrant permitting the

government take the 2011 sample.12              Appellant further contends that the


      11
          See, e.g., Wong Sun v United States, 371 U.S. 471, 484 (1963) (“In order
to make effective the fundamental constitutional guarantee[] . . . of . . . inviolability
of the person, . . . this Court held nearly half a century ago that evidence seized
during an unlawful search could not constitute proof against the victim of the
search. The exclusionary prohibition extends as well to the indirect . . . products of
such invasions.”) (citation omitted). Citing United States v. Edelen, 529 A.2d 774,
783 (D.C. 1987) (rejecting “the government's argument that the violation of a
statutory rule does not permit suppression of evidence”), appellant also argues that
even if the taking of 2005 sample did not violate his Fourth Amendment rights, the
exclusionary rule applies because of the (alleged) statutory violation. In addition,
citing In re Dominic W., 426 A.2d 432, 434 (Md. Ct. Spec. App. 1981) (applying
the exclusionary rule with respect to the fruits of a search by a school assistant
principal), and other cases, appellant urges us to reject the government’s argument
that the exclusionary rule applies only to the fruits of police misconduct and does
not support exclusion of evidence obtained by other types of government officials.
But see, e.g., Michigan v. Tucker, 417 U.S. 433, 447 (1974) (“The deterrent
purpose of the exclusionary rule necessarily assumes that the police have engaged
in . . . conduct which has deprived the defendant of some right.”) (emphasis
added).
      12
         Appellant relies on James v. United States, 418 F.2d 1150, 1151-52 (D.C.
Cir. 1969) (“When an affidavit in support of a search warrant contains information
which is in part unlawfully obtained, the validity of a warrant and search depends
on whether the untainted information, considered by itself, establishes probable
cause for the warrant to issue.”). But see United States v. Thomas, 736 F.3d 54,
59-60, 66 (1st Cir. 2013) (in which the court, which like “[m]ost other circuits”
follows the rule announced in James, see United States v. Dessesaure, 429 F.3d
359, 366 (1st Cir. 2005), agreed that “the obtaining of [a 2005] buccal swab [from
Thomas was] a violation of the Fourth Amendment” and noted the government’s
concession that without the DNA profile from the 2005 sample, the police would
                                                                           (continued…)
                                        13

government cannot show that an exception to the exclusionary rule applied.13 The

government may not rely on the good-faith exception,14 appellant argues, because

the prosecution did not show, and the trial court had no basis for finding, that the

2005 sample was obtained through an isolated act of negligence by BOP personnel

rather than as a result of a malicious or arbitrary targeting of appellant or a

deliberate violation of his rights.15 For the same reason, appellant argues, the




(…continued)
not have been able to link Thomas to the charged offense or to supply probable
cause for the warrant that enabled them to search his home, arrest him, and obtain a
new DNA sample from him in 2011, but reasoned that these facts did not “dictate
the result of [its] exclusionary rule analysis” and held that “application of the
exclusionary rule would be outweighed by the resulting costs to the criminal
justice system”).
      13
          Appellant cites Barnett v. United States, 525 A.2d 197, 200 (D.C. 1987)
(“[T]he burden is on the government to go forward with evidence that will bring
the case within one or more exceptions to the exclusionary rule.”).
      14
              Under the good-faith exception to the exclusionary rule,
unconstitutionally obtained evidence need not be suppressed if law enforcement
officials had an objectively reasonable belief that their conduct was lawful. See
United States v. Leon, 468 U.S. 897, 919-20 (1984).
      15
         Appellant asserts that “[a]ny reasonable person who examined the statute
in 2005 would have understood that [appellant] did not have a conviction for a
qualifying offense and, thus, that the statute did not authorize taking his DNA.”
                                         14

government cannot show that application of the exclusionary rule would have no

deterrent effect.16




       Nor, appellant urges, did the inevitable discovery doctrine apply. “The

inevitable discovery doctrine provides that, even though the police have obtained

evidence as a result of illegal conduct, the evidence still may be admitted ‘[i]f the

prosecution can establish by a preponderance of the evidence that the information

ultimately or inevitably would have been discovered by lawful means.’” (Willie)

Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999) (quoting Nix v. Williams,

467 U.S. 431, 444 (1984)). Appellant emphasizes that application of the doctrine

is confined “to cases in which discovery of the evidence is truly inevitable,” such

that “the court is persuaded with certainty that the evidence would have been

discovered lawfully.” United States v. Allen, 436 A.2d 1303, 1310 (D.C. 1981)

(internal quotation marks omitted); see also Hilliard v. United States, 638 A.2d

698, 707 (D.C. 1994) (“The facts of this case fall within the parameters of the

[inevitable discovery] rule” because “discovery of the weapon was certain[.]”).


       16
          Appellant notes that even though the Council amended the list of District
of Columbia qualifying offenses to include all felonies, it has not mandated the
collection of DNA samples from everyone convicted of a crime in the District of
Columbia, and thus opportunities for malicious sample collection still exist.
                                          15

Appellant cites the Supreme Court’s explanation that the doctrine “involves no

speculative elements but focuses [instead] on demonstrated historical facts capable

of ready verification or impeachment.”         Nix, 467 U.S. at 444-45 n.5.      Thus,

appellant contends, for the government to avail itself of the doctrine, courts have

required it to prove through the presentation of evidence (and not through mere

argument or proffer) that the “evidence inevitably would have been found.” See id.

at 450.17 Appellant also invokes this court’s statement that “the lawful process


      17
          See also id. at 448-49 (describing the testimony by an agent of the Iowa
Bureau of Criminal Investigation establishing that, before defendant Williams told
police that the victim’s body could be found in a culvert in Polk County, the agent
had “organized and directed some 200 volunteers who were searching for the . . .
body” and had instructed them to “‘check all the roads, the ditches, [and] any
culverts’” and that “if the search had not been suspended because of Williams’
promised cooperation, [the volunteers’ search] would have continued into Polk
County,” a map of which the agent had obtained; ultimately concluding that “[o]n
this record it is clear that the search parties were approaching the actual location of
the body . . . and the body inevitably would have been found”); McFerguson v.
United States, 770 A.2d 66, 75-76 (D.C. 2001) (agreeing that on the record before
the court the prosecutor had not eliminated speculation about whether officers’
warrantless search of a bag and retrieval of its stolen contents entered into their
decision to summon the complainant to the scene, and remanding for further fact-
finding based on the testimony, and a possible re-opening of the evidentiary
hearing, to determine the government had met its burden of showing inevitable
discovery); Haynes v. State, 127 S.W.3d 456, 463-64 (Ark. 2003) (upholding the
denial of a motion to suppress DNA evidence in a case in which Haynes’s blood
was illegally taken in 1997 while he was incarcerated for nonpayment of child
support, a non-qualifying offense, and in which the sample yielded a DNA profile
that generated a positive “hit” in the State’s DNA database, was relied on by the
State to show probable cause to obtain a sample of blood and other bodily fluids
from Haynes, and led to the trial evidence that linked Haynes to the rape and
burglary of which he was convicted; reasoning that because Haynes had been
                                                                         (continued…)
                                         16

which would have ended in the inevitable discovery [must] have . . . commenced

before the constitutionally invalid seizure.” Douglas-Bey v. United States, 490

A.2d 1137, 1139 n.6 (D.C. 1985); see also United States v. Johnson, 777 F.3d

1270, 1274 (11th Cir. 2015) (stating that for the inevitable discovery doctrine to

apply, “[t]he government must . . . establish that the lawful means which made

discovery inevitable were being actively pursued prior to the occurrence of the

illegal conduct” and explaining that “the purpose of the requirement of active

pursuit is to exclude evidence that was not being sought in any fashion”) (internal

quotation marks omitted).18



      The inevitable discovery doctrine does not apply in this case, appellant

argues, because “the only ‘demonstrated historical facts’ are that the government

(…continued)
convicted of residential burglary in 2000, and because the State DNA Act was
amended in 2001 to require a DNA sample from any person convicted of burglary,
it was inevitable that Haynes’s DNA would have been taken and a DNA match
obtained, since, according to testimony by the supervisor of the Forensic Biology
Section of the State Crime Lab, “even in 1997, blood samples had been taken from
all the prisoners” (emphasis in the original)).
       18
          See generally 6 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 11.4 (a), at 363-65 (5th ed. 2012) (citing authority that
“[c]ircumstances justifying application of the ‘inevitable discovery rule are most
likely to be present if these investigative procedures were already in progress prior
to the discovery via illegal means” or “where the circumstances are such that,
pursuant to some standardized procedures or established routine a certain
evidence-revealing event would definitely have occurred later”).
                                        17

has repeatedly made errors in the DNA collection process and failed to lawfully

take Mr. Blair’s DNA when it had the opportunity to do so.”              Appellant

emphasizes that the government relied solely on proffers and predictions by the

prosecutor that BOP or CSOSA would have taken a sample of appellant’s DNA if

the 2005 sample had not been taken, and presented no evidence that either BOP or

CSOSA adhered to a practice of always or almost always collecting DNA samples

as mandated by law, i.e., no evidence that, at the time the 2005 sample was taken,

or even thereafter, either agency was actively pursuing full compliance with the

Act’s DNA-collection mandate.19 Appellant asserts that “[t]he best evidence that

the government would not have inevitably taken [his] DNA is, simply, that they

did not take his DNA,” even though it was undisputed that, at some point before

the October 13, 2011, hearing, both agencies had learned that there was no DNA

sample on file for him.20


      19
         Appellant cites United States v. Achana-Suaso, 568 F. App’x 627, 631-32
(10th Cir. 2014) (“[T]he government cannot carry its burden [of proving that the
evidence would have been discovered without the Fourth Amendment violation]
where there is no evidence to support its position.”).
      20
           Nor, appellant argues, does the “independent source” doctrine apply in
this case. Citing Murray v. United States, 487 U.S. 533, 542 (1988), he argues that
even in light of the statutory mandate for CSOSA to collect DNA from appellant in
2011, if a “decision to exercise that statutory authority was . . . motivated by
knowledge gained solely from the illegal 2005 search,” the search would not be
independent of the illegality, and the exclusionary rule would still apply.
                                         18



      Accordingly, appellant argues, because Judge Motley was obligated to

disregard the CODIS match, and because the government had no other basis to

suspect appellant of the charged offenses, Judge Motley erred in granting the order

compelling him to submit to the taking of the 2011 sample. Further, appellant

asserts, because his convictions were based on the DNA match between sexual

assault kit samples and the 2011 sample, the convictions may not be sustained.21




                                  III.   Analysis




      We need not address all of appellant’s arguments because even assuming

(without deciding) that they all are meritorious as far as they go, we conclude that

this is not a case in which the trial court was required to apply the exclusionary


      21
          See, e.g., In re K.H., 14 A.3d 1087, 1092 (D.C. 2011) (“Evidence derived,
directly or indirectly, from violation of a defendant’s Fourth Amendment rights is
subject to exclusion at the defendant’s trial unless the prosecution demonstrates
that the chain of causation proceeding from the unlawful conduct has become so
attenuated or has been interrupted by some intervening circumstance so as to
remove the taint imposed upon that evidence by the original illegality.”) (internal
quotations marks omitted). Appellant did not file a motion to suppress the 2011
confirmatory DNA sample, but argues that given Judge Motley’s ruling (“the
[c]ourt will not suppress the use of the DNA obtained in this case”), such a motion
would have been futile and a “pointless waste of time.”
                                          19

rule, i.e., to exclude the evidence that was the fruit of the 2005 DNA sample. In

other words, we discern no error in Judge Motley’s ruling that he would “not

exclude the CODIS hit” or “suppress the use of the DNA obtained in this case.”




      The exclusionary rule is a “prudential rather than constitutionally mandated”

rule, which is “applicable only where its deterrence benefits outweigh its

‘substantial social costs.’” Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S.

357, 363 (1998) (explaining that “the rule does not ‘proscribe the introduction of

illegally seized evidence in all proceedings or against all persons,’ . . . but applies

only in contexts ‘where its remedial objectives are thought most efficaciously

served[.]’” (quoting Stone v. Powell, 428 U.S. 465, 486 (1976))); see also Illinois

v. Krull, 480 U.S. 340, 347 (1987) (“[A]pplication of the exclusionary rule

properly has been restricted to those situations in which its remedial purpose is

effectively advanced.”). As the United States Court of Appeals for the Second

Circuit has observed, “[t]he Supreme Court has restricted application of the

exclusionary rule to those circumstances where its deterrent effect would most

likely be ‘substantial and efficient,’” and “has cautioned that any extension of the

rule beyond its core application — normally, barring use of illegally seized items

as affirmative evidence in the trial of the matter for which the search was

conducted — must be justified by balancing the ‘additional marginal deterrence’ of
                                          20

the extension against the cost to the public interest of further impairing the pursuit

of truth.” Tirado v. Commisioner of Internal Revenue, 689 F.2d 307, 310 (2d Cir.

1982) (quoting United States v. Janis, 428 U.S. 433, 453 (1976)). Thus, exclusion

is not “a necessary consequence of a Fourth Amendment violation.” Herring v.

United States, 555 U.S. 135, 141 (2009).         “Where suppression fails to yield

‘appreciable deterrence,’ exclusion is ‘clearly . . . unwarranted.’” (Willie) Davis v.

United States, 131 S. Ct. 2419, 2426-27 (2011) (quoting Janis, 428 U.S. at 454).

“For exclusion to be appropriate, the deterrence benefits of suppression must

outweigh its heavy costs.” Id. at 2427.




      As the Supreme Court further explained in Herring, the exclusionary rule

“serves to deter deliberate, reckless, or grossly negligent conduct, or in some

circumstances recurring or systemic negligence” as opposed to “mistakes [that] are

the result of negligence.” 555 U.S. at 144, 147. “An error that arises from

nonrecurring and attenuated negligence is . . . far removed from the core concerns

that led [the Court] to adopt the rule in the first place.” Id. at 144.22 The Court has


      22
          The Herring majority did not explain what it meant by “attenuated
negligence.” However, Professor LaFave has suggested that courts are “well-
advised” in applying Herring to interpret the term as a reference to negligence
involving a mistake in law enforcement records involving personnel other than the
law enforcement employee who actually conducted the search. 1 Wayne R.
                                                                         (continued…)
                                         21

“never applied the rule to exclude evidence obtained in violation of the Fourth

Amendment, where the police conduct was no more intentional or culpable than

[that].” Id.; see also Davis, 131 S. Ct. at 2427-29 (admonishing that when police

“conduct involves only simple, isolated negligence, the deterrence rationale loses

much of its force, and exclusion cannot pay its way” and that the exclusionary rule

is not “to become a strict-liability regime” (internal citations and quotation marks

omitted)); United States v. Wright, 777 F.3d 635, 642 (3d Cir. 2015) (“[T]he

Supreme Court has unequivocally held that deterring isolated negligence is not

worth the social cost of excluded evidence. Only if mistakes of this nature recur

with some frequency will a criminal defendant be in a position to argue that the

calculus has changed.”) (citation omitted). Thus, “[t]o trigger the exclusionary

rule,” the conduct that was violative of a defendant’s rights must be both

“sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently




(…continued)
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.6 (i) at 297,
311 (5th ed. 2012). The United States Court of Appeals for the Ninth Circuit has
employed a similar interpretation. See United States v. Camou, 773 F.3d 932, 945
(9th Cir. 2014) (noting that in Herring, the officer who executed the arrest warrant
was not negligent himself and that the negligence was “two degrees removed from
the officer,” and reasoning that the holding in Herring should be read as applying
to the situation where “an officer reasonably relies on incorrect information that
was the result of another individual’s ‘isolated’ and ‘attenuated’ negligence,” id. at
945 n.3 (emphasis in original)).
                                          22

culpable that such deterrence is worth the price paid by the justice system.”

Herring, 555 U.S. at 144.23




       “[T]he deterrent effect of the exclusionary rule must be judged at the point

of the constitutional violation, and the culpability of the actors involved then.”

United States v. (Whitley) Davis, 690 F.3d 226, 253 (4th Cir. 2012).                “In

evaluating the need for a deterrent sanction, one must first identify those who are

to be deterred” and whose “conduct . . . is to be controlled.” Janis, 428 U.S. at

448.    “Determining when the likelihood of substantial deterrence justifies

excluding evidence requires some assessment of the motives of the officials who

seized the challenged evidence.” Tirado, 689 F.2d at 310. “If it is not likely to

occur to potential wrongdoers as they seize the challenged evidence to care about

its use for the particular purpose later in issue, then removing the possibility of that

use is unlikely to deter them from unlawful conduct.”           Id. at 310-11.    “The

deterrent purpose of the exclusionary rule would not be significantly advanced by


       23
           Applying this instruction, the United States Court of Appeals for the
Third Circuit recently affirmed that even where a warrant is facially invalid, “the
Supreme Court’s . . . recent decision in Herring . . . require[s] an additional
analytical step before the exclusionary rule [can] be applied.” Wright, 777 F.3d at
638 (applying the holding in United States v. Wright, 493 F. App’x 265, 273 (3d
Cir. 2012), that “a court must always analyze whether the exclusionary rule should
apply before suppressing evidence.”).
                                         23

. . . suppress[ing] . . . illegally seized evidence in a [proceeding] in which the

offending police officers could not possibly have had an interest at the time they

conducted the illegal search.” United States v. Rea, 678 F.2d 382, 389 (2d Cir.

1982). “Thus, in order to decide whether application of the exclusionary sanction

is likely to have a significant deterrent effect, the key question is whether the

particular challenged use of the evidence is one that the seizing officials were

likely to have had an interest in at the time – whether it was within their

predictable contemplation and, if so, whether it was likely to have motivated

them.” Tirado, 689 F.2d at 311 (noting that “[s]ince we cannot read the minds of

the officers and lack the guidance of sound empirical models, we must rely,

instead, on our own assumptions of human nature and the interrelationship of the

various components of the law enforcement system” (internal quotation marks and

alterations omitted)). “It would be unsound to invoke the exclusionary rule on the

assumption that officers of one federal agency [who committed the violation] have

such a strong motivating interest in all federal law enforcement concerns that broad

application of the rule will achieve significant marginal deterrence.” Id. at 313.




      In this case, Judge Motley found that government officials had acted in good

faith and that application of the exclusionary rule in this case would “not deter

conduct.” Although there was a limited basis for that “good faith” assessment (the
                                        24

statements in the FBI’s letter, and the government’s candor about the unauthorized

2005 sample that was the basis for the CODIS match), we see no reason to reject

it24 and a number of reasons to accept it. The first is that appellant’s counsel

acknowledged at the October 13, 2011, hearing that he did not “know of any” bad

faith in this case. Nor on appeal does appellant argue that the BOP employees who

drew his blood in 2005 did so with “knowledge, or may properly [have been]

charged with knowledge, that the search was unconstitutional under the Fourth

Amendment.” Herring, 555 U.S. at 143 (internal quotation marks omitted) (stating

that absent such knowledge or constructive knowledge, evidence should not be

suppressed because “[t]he extent to which the exclusionary rule is justified by

these deterrence principles varies with the culpability of the law enforcement

conduct”); see also Thomas, 736 F.3d at 61 (declining to apply the exclusionary

rule where the court saw “no evidence . . . that the postal inspectors involved in

obtaining and executing the subpoena [for a DNA sample in 2005] knowingly

engaged in any misconduct”).



      24
          Cf. United States v. Humbert, 336 F. App’x 132, 136 (3d Cir. 2009)
(holding that it was not error to use Humbert’s original blood sample to support a
probable cause determination to obtain a new sample even if his DNA was
obtained in violation of Pennsylvania law, noting there was “no evidence that there
was ‘recurring or systemic negligence’ in how the [Pennsylvania DNA] database
was maintained or in how Pennsylvania obtained the samples”).
                                          25

      Further, although the theft conviction for which appellant was incarcerated

in 2005 was not a District of Columbia qualifying offense at the time the 2005

sample was taken, under then-recently-amended federal law, all felonies were

qualifying federal offenses.    See 42 U.S.C. § 14135a (d)(1) (as amended on

October 30, 2004 by § 203(b) of Pub. L. 108-405). The fact that BOP personnel

obtained a blood sample from appellant in 2005 is more suggestive of a negligent

failure to recognize the differing treatment of appellant’s offense under District and

the amended federal “qualifying offense” law (or of a negligent failure to

recognize that appellant was a District of Columbia, rather than a federal, offender)

than it is of a flagrant disregard of the law or of prisoners’ rights. See Leon, 468

U.S. at 911 (“[I]n deciding whether exclusion is appropriate in a particular case . . .

an assessment of the flagrancy of the police misconduct constitutes an important

step in the calculus.”).




      In addition, while the record reveals nothing about the 2005 actors, case law

suggests that the conduct of whichever BOP employee took appellant’s blood

sample was an act of attenuated negligence, i.e., that that employee relied on

mistaken information from another employee. See United States v. Carmichael,

343 F.3d 756, 758 (5th Cir. 2003) (citing BOP policy, described in a 2002

memorandum, that “offenders in [BOP] custody are to be screened by local
                                         26

Community Corrections Management Offices to determine whether they are

qualified offenders under the DNA Act” and that “[o]nce an inmate arrives at his

designated [BOP] correction facility, the facility’s Health Services staff will

arrange to collect a DNA sample during the routine physical examination”); cf.

Camou, 773 F.3d at 945 n.3 (reasoning that the rule of Herring applies where “an

officer reasonably relies on incorrect information that was the result of another

individual’s ‘isolated’ and ‘attenuated’ negligence” (emphasis in original)).




      Moreover, there are several reasons why we agree with Judge Motley’s

reasoning that application of the exclusionary rule in this case would “not deter

conduct.”25 A major reason is that, in the wake of the change in District of

Columbia law to include “any felony” as a District of Columbia qualifying offense,

there is no need to apply the exclusionary rule to deter BOP personnel from again

making the mistake (if that is what it was) that occurred regarding appellant’s

blood sample. Cf. Davis, 690 F.3d at 256 (declining to apply the exclusionary rule

because “[t]here is nothing in the record to suggest that the acts here are likely to

reoccur”). Another reason is that six years had passed between the unauthorized

      25
           The government emphasizes the Supreme Court’s statement in Leon that
“the exclusionary rule is designed to deter police misconduct.” 468 U.S. at 916
(italics added). For purposes of our analysis, we assume without deciding that it is
not only police misconduct that can trigger possible application of the rule.
                                         27

conduct by BOP personnel in 2005 and the October 2011 hearing on the

government’s motion for a blood order (and now, ten years have passed). While it

is true that the 2010 CODIS match and the 2012 trial evidence in appellant’s case

were the fruit of the 2005 sample, case law supports an assumption that the passage

of time has attenuated any deterrent effect of excluding the fruit of the 2005

sample. See United States v. Ceccolini, 435 U.S. 268, 279 (1978) (citing the

“[s]ubstantial periods of time [that] elapsed between the time of the illegal search”

and the follow-up contact with the witness whose inculpatory statement resulted

from the search, as one basis for holding that “the degree of attenuation was . . .

sufficient to dissipate the connection between the illegality” and the witness’s trial

testimony); Thomas, 736 F.3d at 62 (reasoning that the “hypothesized deterrent

effect is simply too attenuated to justify applying the exclusionary rule” since

“[t]he underlying conduct that violated the Fourth Amendment took place six or

seven years ago”); United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir.

1984) (“We hold that the additional measure of deterrence that might be provided

by the exclusion in the 1982 trial of statements from the 1974 arrest is too small to

outweigh the cost to society of the loss of relevant and probative evidence in the

1982 proceeding.”).26


      26
         See also (Adonis) Hicks v. United States, 705 A.2d 636, 641 (D.C. 1997)
(recognizing that one of the “several factors for consideration in determining
                                                                        (continued…)
                                         28




      Furthermore, it appears that the FBI’s practice — evidenced in the instant

case (through the FBI’s May 5, 2010, letter) as well as in Kadri v. Bureau of

Prisons, No. 05-0517, 2006 WL 581249, at *1 (D.D.C. Mar. 9, 2006) (noting that

the FBI destroyed the prisoner’s wrongfully taken DNA sample and removed his

DNA profile from the DNA database) — is to remove DNA profiles from the

CODIS database when the profiles were determined to have been taken in error

and to release DNA match results to police departments only where “information

. . . indicates the sample was [not] collected . . . other than [in] good faith.” That

practice provides a disincentive to deliberately taking unauthorized samples that

further obviates deterrence through application of the exclusionary rule.         Cf.

Thomas, 736 F.3d at 62 (reasoning that “[i]t is difficult to see why” application of

the exclusionary rule in a later and unforeseen prosecution would act to deter the

law enforcement agents who committed the Fourth Amendment violation “any

more than they would have already been deterred” by exclusion of the results of

their search at a point closer in time). And, to the extent that the BOP personnel

might nevertheless be overzealous in pursuing the goals of the DNA Act (“solving


(…continued)
whether the primary taint of illegal police conduct has been purged” is “the
temporal proximity of the illegal seizure and the discovery of the contraband”).
                                         29

past and future criminal investigations, exonerating the innocent and deterring

recidivism,” United States v. Sczubelek, 255 F. Supp. 2d 315, 323 (D. Del. 2003)),

there is no particular reason to think that exclusion of DNA evidence from future

criminal trials would deter them from collecting DNA samples that they may think

could at least be used to exonerate innocent persons or to deter recidivism.




      Finally, we discern no basis for believing that application of the

exclusionary rule in this case would have a significant effect on the BOP personnel

who took appellant’s 2005 DNA sample while he was incarcerated for first-degree

theft or on their current counterparts. Although the BOP is a law enforcement

agency as that term is broadly defined, it may be presumed that BOP personnel

involved in taking appellant’s blood sample in 2005 and forwarding it for inclusion

of his DNA profile in CODIS were “not adjuncts to the law enforcement team

engaged in the often competitive enterprise of ferreting out crime.” Arizona v.

Evans, 514 U.S. 1, 15 (1995). The parties agree that no one then suspected

appellant of the sexual assault of C.H.,27 the BOP staff were not authorized to


      27
          Thus, the circumstance here was quite different from that in Lewis v.
Brazell, Nos. 4:12-cv-04100 & 4:12-cv-04139, 2015 WL 1138650, at *1, 3, 7
(W.D. Ark. Mar. 13, 2015), in which a nurse, acting “at the request of the Criminal
Investigation Division of Miller County Sheriff’s Office,” unlawfully collected a
DNA sample from plaintiff Lewis while he was in jail on a charge of rape.
                                         30

conduct criminal investigations using the DNA samples they collected ,28 and we

have no reason to think that possible admission of DNA evidence in a future

criminal proceeding was “important enough to [them] to encourage them to violate

Fourth Amendment rights” by taking unauthorized DNA samples.29 Janis, 428

U.S. at 458 n.35 (reasoning that where use of improperly seized evidence “falls

outside the offending officer’s zone of primary interest,” “the deterrent effect of

the exclusion of relevant evidence is highly attenuated,” and “imposition of the

exclusionary rule . . . is unlikely to provide significant, much less substantial,

additional deterrence,” id. at 457-58). For that reason, “[t]he threat of exclusion of

evidence could not be expected to deter such individuals” from taking

unauthorized DNA samples. Evans, 514 U.S. at 15; see also People v. Casillas,

No. 12CA0703, 2015 WL 795765, at *6 (Colo. App. Feb. 26, 2015) (concluding

that suppression of the cheek-swab DNA evidence obtained from a juvenile by his


      28
          “The DNA Act does not authorize . . . the Bureau of Prisons . . . to
conduct criminal investigations of supervisees using the DNA samples.” United
States v. Reynard, 220 F. Supp. 2d 1142, 1167 (S.D. Cal. 2002). Rather, BOP
turns the DNA samples over to the FBI. See Kaemmerling v. Lappin, 553 F.3d
669, 673 (D.C. Cir. 2008).
      29
         The Maryland BOP personnel who took the 2005 sample had no obvious
incentive to compete to solve cold, District of Columbia cases; they are quite
unlike the police detective whose conduct is described in Friedman v. Boucher,
580 F.3d 847 (9th Cir. 2009), who forcibly took a detainee’s DNA sample because
he “simply wanted the sample as an aid to solve cold cases.” Id. at 851.
                                          31

probation officer in violation of the Fourth Amendment would have no deterrent

value because the juvenile “was neither suspected of violating a term or condition

of his deferred adjudication nor suspected of committing a crime” and thus the

probation officer “was performing nothing more than a supervisory function under

the direction of the juvenile court” and had “no stake in the outcome of criminal

prosecutions”).




      In light of all the foregoing, we find it difficult to believe that application of

the exclusionary rule would have any significant deterrent effect on the BOP

officials who took the 2005 sample or on their current counterparts. And, even if

there is some slight deterrent effect to be achieved by applying the exclusionary

rule in this case, 30 we think it would not be “worth the price paid by the justice

system.”   Herring, 555 U.S. at 144 (i.e., the price of effectively foreclosing

appellant’s conviction of the first-degree sexual abuse of C.H., since he became a




      30
          To decline to apply the exclusionary rule, a court need not find that it
would have no deterrent effect whatsoever; rather, Supreme Court jurisprudence
requires that any deterrence “be weighed against the substantial social costs
exacted by the exclusionary rule.” Herring, 555 U.S. at 144 n.4 (internal quotation
marks omitted).
                                         32

suspect only because of the 2005 sample).31 Accordingly, we can find no error in

Judge Motley’s determination not to apply the exclusionary rule and to issue the

warrant on the basis of the CODIS match. He could reasonably conclude that in

this case, the exclusionary rule “cannot ‘pay its way.’” Davis, 131 S. Ct. at 2428

(quoting Leon, 468 U.S. at 907 n.6).




      Although “it is clear that in some circumstances [an] officer will have no

reasonable grounds for believing that [a] warrant was properly issued[,]” “‘a

warrant issued by a magistrate normally suffices to establish’ that a law

enforcement officer has ‘acted in good faith in conducting the search.’” Leon, 468

U.S. at 922-23 (quoting United States v. Ross, 456 U.S. 798, 823 n.32 (1982)).

“[T]he officer’s reliance on the [court’s] probable-cause determination and on the

technical sufficiency of the warrant [the court] issues must be objectively

      31
          As noted above, see supra note 20, appellant appears to argue that any
future effort by law enforcement to take a sample of appellant’s DNA motivated by
knowledge gained from the 2005 search would be of questionable legality,
notwithstanding statutory authority for the search. Thus, if appellant’s position is
taken to its logical end, law enforcement officials would be deterred from urging
CSOSA and BOP to comply with their obligations under the DNA Act. Yet, the
objective of the exclusionary rule is not to “put the police in a worse position than
they would have been in absent any error or violation.” Nix, 467 U.S. at 443.
“The cost of permanently [rendering appellant’s DNA off-limits] is too great for an
evenhanded system of law enforcement to bear in order to secure such a
speculative and very likely negligible deterrent effect.” Ceccolini, 435 U.S. at
279-80.
                                        33

reasonable[.]” Id. at 922. Here, because Judge Motley reasonably declined to

apply the exclusionary rule even after having been informed about the “violation of

the statutory framework” entailed in obtaining the 2005 sample, it was objectively

reasonable for the MPD to rely on Judge Motley’s order as authority to do so. We

therefore reject appellant’s sub silentio claim that the 2011 DNA evidence — the

fruit of the 2005 sample — was required to be excluded at trial.




                        IV.   Sufficiency of the Evidence




      We turn next to appellant’s insufficiency-of-the-evidence claims. When

reviewing a claim that the evidence in a criminal trial was insufficient to support

the conviction, we “view the evidence in the light most favorable to the

government, mindful of the jury’s right to determine credibility, weigh the

evidence, and draw justifiable inferences of fact.” Robinson v. United States, 506

A.2d 573 (D.C. 1986). “In order to establish a claim of insufficient evidence,

appellant must show that the government failed to provide evidence from which a

reasonable mind might fairly infer guilt beyond a reasonable doubt.” Derosiers v.

District of Columbia, 19 A.3d 796, 798-99 (D.C. 2011) (internal quotation marks
                                         34

omitted). This is a “heavy burden.” Schools v. United States, 84 A.3d 503, 508

(D.C. 2013).


      A. The evidence was sufficient to show that appellant penetrated C.H.’s
      vulva.


      Appellant contends that “[t]he government failed to prove beyond a

reasonable doubt that, in attempting intercourse, [appellant] actually penetrated any

part of [C.H.’s] body with his penis.” Specifically, appellant argues that while the

evidence was that there was contact between appellant’s penis and C.H.’s vulva, it

“d[id] not necessarily establish penetration of the vulva.”




      An individual commits first-degree sexual abuse if he “causes another

person to be engaged in . . . a sexual act . . . [b]y using force against that other

person.” D.C. Code § 22-3002 (a) (1) (2012 Repl.). As defined by D.C. Code §

22-3001 (8) (A), and as pertinent here, a “sexual act” includes “[t]he penetration,

however slight, of the . . . vulva of another by a penis.” “[T]he government need

not prove full penetration since the offense is committed if the male organ enters

only the labia of the female organs.” Graham v. United States, 746 A.2d 289, 297

n. 8 (D.C. 2000) (internal quotation marks omitted).
                                          35

      At trial, C.H. testified that she felt her assailant pushing “into [her] vagina”

and told the jury that he “tried several times to push himself further inside of [her]”

with his non-erect penis. Dr. Jeffrey Smith, director of the emergency department

at George Washington University Hospital, who examined and treated C.H. after

the incident, explained at trial that the vulva includes “all the external area” of a

woman’s genitalia, including “the clitoris[,] . . . [and] the labia minor and majora,”

Dr. Smith testified that he found a “significant amount of” debris, dirt, and plant

material in C.H.’s vulva, including in the introitus that leads to the vaginal canal

and “right around . . . the labia majora and labia minora,” “[o]uter and inner

area.”32




      Although appellant argues that C.H. was using the term “vagina”

imprecisely and may have been referring to her external genital area rather than her

vaginal canal, we are satisfied that the foregoing evidence was sufficient to permit

the jury fairly to infer that appellant’s penis penetrated C.H.’s vulva, if not her

vagina. Her testimony that her assailant pushed “into” her and then tried to push

himself “further inside” of her permitted the jury to infer that appellant penetrated,


      32
          Dr. Smith referred to Government Exhibit 17, a drawing of the external
vaginal area and rectal area and used it to show the jury where the plant and dirt
material was found around the vaginal opening.
                                         36

at least, C.H.’s labia majora, which Dr. Smith described as the “outer” area of her

vulva. Additionally, given the evidence jurors heard about the violent nature of the

attack, they could have also reasonably inferred that appellant’s pushing was

forceful, resulting in penetration of at least the outer labia. See In re L.L., 974

A.2d 859, 867 (D.C. 2009) (“Penetration of the female organs may be proved by

circumstantial evidence.”) (internal quotation marks and alteration omitted). In

that “[t]he slightest penetration . . . is sufficient to sustain a conviction,” see

Graham, 746 U.S. at 297 (internal quotation marks omitted), a conviction for the

completed offense of first-degree sexual abuse was well-supported here.


      B. The evidence was sufficient to prove that appellant caused C.H.
      “significant bodily injury.”


      The felony assault statute provides that “[w]hoever unlawfully assaults, or

threatens another in a menacing manner, and intentionally, knowingly, or

recklessly causes significant bodily injury to another shall be fined . . . or be

imprisoned not more than 3 years, or both.” D.C. Code § 22-404 (a)(2) (2012

Repl.) (emphasis added). Appellant contends that the evidence was insufficient to

show that C.H. sustained significant bodily injury during the attack. He asserts

that, although C.H. was hospitalized, “there [was] no evidence that [she] needed

treatment to prevent ‘long-term physical damage’ or any kind of ‘permanent

injury,’” or that the medication she was provided “required a prescription.”
                                            37




      “[S]ignificant bodily injury” is defined in the statute as “an injury that

requires hospitalization or immediate medical attention.” D.C. Code § 22-404

(a)(2). This court’s opinion in In re R.S., 6 A.3d 854 (D.C. 2010), established that

there is significant bodily injury where:



             there is an injury to the body that necessitates the
             individual being taken to the hospital or receiving
             medical treatment shortly after the injury was inflicted.
             Hospitalization or medical treatment is required where it
             is necessary to preserve the health and well-being of the
             individual, e.g., to prevent long-term physical damage,
             possible disability, disfigurement, or severe pain.



Id. at 859 (holding that an ear injury that required four to six stitches qualified as

significant bodily injury) (ellipses omitted). We noted in R.S. that “the threshold

for significant bodily injury is markedly less severe than that required for

aggravated assault” and that the focus is not on whether the injury was “so grave as

to require transport by ambulance to a hospital” but rather “on the nature of the

injury itself and the practical need in the ordinary course of events for prompt

medical attention.” Id.
                                         38

      Subsequently, in Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C.

2013), we clarified the meaning of “significant bodily injury.” The victim in

Quintanilla suffered injuries to her head and hand during a robbery. Id. at 1262.

She testified that after the robbery, her head throbbed for “a week and a half,” she

had swelling from her right eye to behind her right ear, some of the fingers on her

injured hand “stayed swollen for about three weeks,” the injury to her index finger

caused “a lot of pain” and rendered the finger “almost unusable for about two

months,” and she had bruising on her legs. Id. When an ambulance arrived, the

“EMTs on board” took the victim into their ambulance, “‘checked [her] out,’” and

provided “‘some cold compresses for [her] head and hand,’” but did not offer

medication. Id. at 1263. The EMTs also checked for a concussion but told her that

she was “fine” and that they didn’t think she had one and also told her that her

finger probably was not broken. Id. She “declined transportation to the hospital,”

never took any medication, other than aspirin, for her injuries, and she “just kept

icing” her fingers. Id.    We held that the victim’s injuries did not constitute

“significant bodily injuries,” id. at 1262, explaining that the term does not include

injuries that are “seemingly significant enough to invite medical assistance,” but

that “do not actually ‘require’ it, meaning the victim would not suffer additional

harm by failing to receive professional diagnosis and treatment.” Id. at 1265. We

further instructed that “everyday remedies such as ice packs, bandages, and self-
                                        39

administered over-the-counter medications, are not sufficiently ‘medical’ to qualify

under the statute, whether administered by a medical professional or with self-

help.” Id.33




      Perhaps because the victim in Quintanilla did not receive hospital-level

services, we focused our analysis on the meaning of “medical attention,”

explaining that it means the treatment that is “necessary to preserve or improve the

victim’s health,” id. at 1264 n.18; that “the ‘attention’ required — ‘treatment’ —

is not satisfied by mere diagnosis,”; and that “[t]reatment of a higher order,

requiring true ‘medical’ expertise, is required” for there to be significant bodily

injury. Id. at 1264-65. We added — reading the “e.g.” in the test laid down in R.S.

to mean “i.e.” in the case of medical treatment — that “treatment, to be ‘medical,’

must be aimed at preventing ‘long-term physical damage’ and other potentially

permanent injuries — or at least to abating pain that is ‘severe.’” Id. at 1265.34


      33
          Teneyck v. United States, No. 12-CF-939, 2015 D.C. App. LEXIS 104, at
*7 (D.C. Apr. 2, 2015) (considering whether the evidence was sufficient to prove
significant bodily injury and explaining that the focus must be on “whether a
medical professional was required to remove the glass [from the victim’s hand]
because [the victim] could not have safely removed it himself – for example, with
tweezers or another self-administered remedy”).
      34
        See also Nero v. United States, 73 A.3d 153, 158-59 (D.C. 2013) (holding
that “wounds created by a bullet are not per se significant bodily injuries” and
                                                                      (continued…)
                                        40

We distinguished “hospitalization,” which we called “the alternative basis for

finding ‘significant’ bodily injury,” observing that it may be entailed in “fluid

situations,” involving “immediate then prolonged monitoring, coupled with

testing,” that may (or may not) “eventuate in treatment.” Id. at 1264 n.18.




      In the instant case, C.H. testified that during the attack — which she told

hospital personnel happened at about 10:30 p.m. — her assailant “kept banging

[her] head against the ground,” causing her to have “ringing” in her head and to

feel “very disoriented” and causing her head to “hurt extremely.” After the attack,

she “got up and . . . just ran [a block and a half] towards [her] house.” One of her

housemates called 911, and police and an ambulance arrived. The ambulance took

her to a hospital emergency room, where she arrived after midnight and remained

“over night”; she was “released the next morning.” Dr. Smith testified that when

C.H. arrived at the hospital shortly after midnight, her heart rate was slightly

elevated and “she complained of a severe headache, neck pain and jaw pain where

she said she was hit.” Dr. Smith saw “multiple abrasions . . . all over [C.H.’s]

(…continued)
concluding that there was no significant bodily injury where “[t]he only medical
treatment” received by one victim, who had been shot or grazed in the shoulder but
did not even realize it at the time, was “diagnostic tests, pain medication, and
wound care” and where the treating physician testified that if the victim had not
been treated, “probably not much” would have happened).
                                         41

body,” including her face, around her eye, her neck, all four extremities, her feet

and wrist, her back and shoulders, her abdomen, her buttocks, and her inner thighs,

and “soft tissue swelling and bruising to her face and around her eye.”35 Noting

that C.H. had “evidence of trauma around her eyes” and “a lot of jaw tenderness,”

and “concerned” that she had a “significant head injury,” Dr. Smith ordered CAT

scans of her head, face and mandible as well as an X-ray of her neck to rule out

bone injury. He found no evidence of any “bony fractures of the extremities” but

just “scratches, abrasions, [and] bruising.” C.H. testified that she was “given

medicine for the pain in [her] head,” but neither Dr. Smith nor C.H. testified about

whether the medication ordered for C.H.’s pain was prescription-strength.




      Whether the government proved, on this evidence, that C.H. suffered

significant bodily injury might be less than obvious. C.H. was able to run to her

home after the attack. At the hospital, she underwent professional diagnostic

screening — CAT scans and an X-ray — but, as in Quintanilla, no evidence was

presented that she received professional treatment to avert additional harm or

prescription medication for her pain. And, although she was taken to the hospital,

her overnight stay appears to have been the result, at least in part, of how long the

      35
           Officer Koenig and Detective Spriggs also observed “injuries” or
“multiple lacerations” to C.H.’s face.
                                           42

testing and evidence collection took rather than necessarily an indicator that she

required inpatient hospital care for her injuries.36




      Nevertheless, we have previously noted that there is a continuing “question

as to where the line [should be] drawn between monitoring or testing and treatment

in . . . fluid situations” such as one involving “a head injury that may or may not

have resulted in a concussion,” “where no ‘treatment’ is ultimately necessary to

preserve or improve the victim’s health.” Quintanilla, 62 A.3d at 1264 n.18. In

addition, in considering the injury threshold for “significant bodily injury,” we are

mindful that during the Council of the District of Columbia hearing on the

legislation that established the offense of felony assault, the Attorney General of

the District of Columbia endorsed the legislation as responding to “the need for an

intermediary felony assault to cover the ‘many assault cases involv[ing] a victim

who has been seriously beaten, sometimes leaving the victim with black eyes,

lacerations, broken bones, or serious bruising all over the body.’” R.S., 6 A.3d at

858 (emphasis added) (quoting Public Health Hearing on B13-247: The Omnibus

Public Safety Act of 2005, 16th Sess. (D.C. 2005), at 15 (statement of Robert J.


      36
           See Teneyck, 2015 D.C. App. LEXIS 104, at *7 n.4 (explaining that
“‘hospitalization’ under the statute requires more than being admitted for
outpatient care”).
                                         43

Spagnoletti, Attorney General) [hereinafter Spagnoletti Testimony]).              As

understood by the Attorney General, the bill creating the offense of felony assault

would cover assaults “that are more egregious than a simple assault[.]” Spagnoletti

Testimony at 16. Both of our first two opinions discussed above, dealing with the

definition of significant bodily injury,” quoted this language from the Attorney

General. R.S., 6 A.3d at 858; Quintanilla, 62 A.3d at 1264.




      As with every challenge to the sufficiency of evidence, we must view the

evidence in the light most favorable to the government and reverse only where the

government has “failed to provide evidence from which a reasonable mind might

fairly infer guilt beyond a reasonable doubt.” Nero, 73 A.3d at 157 (internal

quotations omitted). While not every blow to the head in the course of an assault

necessarily constitutes significant bodily injury, see Quintanilla, 62 A.3d at 1262,

we conclude that where, as here, the defendant repeatedly struck the victim’s head,

requiring testing or monitoring to diagnose possible internal head injuries, and also

caused injuries all over the victim’s body, the assault is sufficiently egregious to

constitute significant bodily injury.   Because the testimony and photographic

evidence in this case showed that appellant “kept banging [C.H.’s] head against the

ground” with the result that she felt disoriented; that the hospital emergency room

physician ordered a CAT scan and X-ray of her head and neck to determine
                                        44

whether she sustained internal injuries; and that C.H. sustained multiple abrasions

and bruising all over her body, including trauma around her eye, we hold that the

evidence was sufficient to allow a reasonable jury to conclude beyond a reasonable

doubt that C.H.’s injuries were significant and thus to support appellant’s

conviction of felony assault. See Nero, 73 A.3d at 159.


                                V.    Conclusion

      For the foregoing reasons, appellant’s convictions are




                                             Affirmed.
