                             District of Columbia
                              Court of Appeals

No. 14-CF-1147
                                                                     DEC 15 2016
ALEXANDER HUGHES,
                                           Appellant,

       v.                                                              CF1-6536-13


UNITED STATES,
                                           Appellee.


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

       BEFORE: GLICKMAN and MCLEESE, 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 trial court’s judgment relating to
appellant’s convictions on the Lopez charges is affirmed; however, the trial court’s
judgment with respect to appellant’s convictions on Sanchez count 16, and his convictions
on Mohamud counts 19, 20, and 21, is reversed, and those counts are remanded to the trial
court for new trial.

                                           For the Court:




Dated: December 15, 2016.

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-1147                         12/15/16

                        ALEXANDER HUGHES, APPELLANT,

                                         v.

                            UNITED STATES, APPELLEE.

                       Appeal from the Superior Court of the
                               District of Columbia
                                 (CF1-6536-13)

                     (Hon. John Ramsey Johnson, Trial Judge)

(Argued February 3, 2016                             Decided December 15, 2016)

      Jason Kalafat for appellant.

       Timothy R. Cahill, Assistant United States Attorney, with whom Vincent H.
Cohen, Jr., Acting United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Amy H. Zubrensky, and Rebekah Holman, Assistant United
States Attorneys, were on the brief, for appellee.

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

      REID, Senior Judge: After trial on a twenty-six count indictment relating to

sexual abuse and other charges,1 a jury found Alexander Hughes guilty of fourteen


      1
         The indictment charged Mr. Hughes with two counts of kidnapping, five
counts of first-degree sexual abuse, five counts of second-degree sexual abuse, eight
                                                                      (continued…)
                                         2

of the charged counts.2 On appeal, he contends that (1) the trial court abused its

discretion by denying his pre-trial motion to sever the counts involving one

complainant from the counts concerning the other two complainants, thereby

resulting in substantial prejudice to him; and (2) the government’s evidence was

insufficient to convict him of the charges beyond a reasonable doubt. For the

reasons stated below, we affirm the trial court’s judgment relating to Mr. Hughes’s

convictions on the Lopez charges. However, we reverse the trial court’s judgment

with respect to Mr. Hughes’s convictions on misdemeanor sexual abuse counts 16,

19, 20, and destruction of property count 21, and remand those counts to the trial

court for a new trial.




 (…continued)
counts of misdemeanor sexual abuse, one count of attempted misdemeanor sexual
abuse, one count of assault, one count of destroying property, one count of attempted
lewd, indecent, or obscene acts, one count of third-degree sexual abuse, and one
count of assault with significant body injury.
      2
         Guilty verdicts were handed down on: one count of kidnapping, D.C.
Code § 22-2001 (2012 Repl.); one count of first-degree sexual abuse (force with
aggravating circumstances), D.C. Code § 22-3002 (a)(1); three counts of
second-degree sexual abuse (threats with aggravating circumstances), D.C. Code §
22-3003 (1); seven counts of misdemeanor sexual abuse (with aggravating
circumstances), D.C. Code §§ 22-3006, -3020 (a)(5); one count of destruction of
property (less than $1000), D.C. Code § 22-303; and one count of simple assault,
D.C. Code § 22-404 (a)(5).
                                        3

                            FACTUAL SUMMARY



      To prove its charges of sexual abuse in the workplace, the government

presented evidence showing that Mr. Hughes worked as a supervisor for FAME

Food Management and was assigned to the cafeteria at the Nebraska Avenue

Complex (“NAC”) of the federal Department of Homeland Security, Federal

Protective Service (“FPS”). All of the complainants worked at the NAC and were

supervised by Mr. Hughes. The government’s evidence was designed to show that

over the course of one year, December 1, 2011, through December 3, 2012, Mr.

Hughes committed twenty criminal acts against Suyapa Sorto de Lopez

(kidnapping; first-, second-, and third- degree sexual abuse; misdemeanor sexual

abuse; and assault); three against Rosa Sanchez (misdemeanor and attempted

misdemeanor sexual abuse, and assault); and three against Nasro Mohamud

(misdemeanor sexual abuse, and destruction of property).



      The first of the complainants to testify was Ms. Mohamud.3 She described

incidents involving Mr. Hughes and Ms. Lopez and Ms. Sanchez, as well as one

involving herself. On one occasion Mr. Hughes licked one of his fingers and put it

      3
         Mr. Hughes was her supervisor for about three years. She described him
as “a tough supervisor” whom she feared. Mr. Hughes would threaten employees
with termination if they did not perform their duties.
                                          4

in Ms. Sanchez’s ear; Mr. Hughes’s fingernail “punctured the ear” and “a little bit of

blood came out.” In 2012, Mr. Hughes hit both Ms. Sanchez and Ms. Lopez on the

buttocks with a wet, rolled-up towel. Mr. Hughes also hit Ms. Lopez on the

buttocks with a cooking utensil, a spatula. Ms. Lopez would complain about Mr.

Hughes hiding her shoes or her keys so that she could not leave at the end of her

shift. One morning Mr. Hughes kicked Ms. Lopez in her back while she was

cutting fruit, and later that same morning he hit her on the buttocks with a clipboard.

On another occasion, Mr. Hughes grabbed Ms. Lopez by the neck as she was passing

by him. Ms. Lopez tried to wiggle free, then turned around, slid Mr. Hughes’s

pants down and pushed him; Mr. Hughes pulled his pants up, and Ms. Lopez fell to

her knees. Mr. Hughes said he was sorry.



      One of the incidents involving Ms. Mohamud and Mr. Hughes occurred in

summer 2012 while Ms. Mohamud was cutting fruit and Mr. Hughes was cleaning

the doughnut station with bleach. Her back was to Mr. Hughes. He sprayed her

with the bleach from the top of her pants to her legs, including her buttocks. In

doing so, Mr. Hughes damaged her pants to such an extent that she had to borrow

another pair from a co-worker. Mr. Hughes apologized and offered her money to

replace the pants. Ms. Mohamud could not recall the date on which Mr. Hughes hit

her in the “[s]ame way as he hit [Ms. Sanchez],” that is on her buttocks with the wet,
                                           5

rolled-up towel. She “felt a little pain.” Ms. Mohamud was afraid of being fired;

nevertheless she told Mr. Hughes not to hit her again.



      The government’s second witness, Ms. Sanchez, worked for FAME at the

NAC until sometime in 2012, when she left because she felt “pressured” by Mr.

Hughes, and because he did not treat employees well. Once Mr. Hughes touched

his private part and commented on its size. At other times, he “would pull down his

pants” and show “his bottom.” While she was making sandwiches one day, Mr.

Hughes tried to touch her breast but she folded her arms. She had previously seen

Mr. Hughes try to touch Ms. Lopez’s breast. Mr. Hughes hit Ms. Sanchez on the

buttocks with a rolled-up, wet towel more than twice; he also hit other women with

the towel. He hit Ms. Lopez on the buttocks with a towel and a spatula “several

times” in 2012 as both women were cutting fruit. One day Mr. Hughes wet his

finger and then used it to scratch the interior of Ms. Sanchez’s ear, causing it to bleed

a little bit. Ms. Sanchez and Ms. Lopez informed Mr. Hughes that they wished to

speak with the owners of the business, but Mr. Hughes said he would never let them

talk to the owners.



      When Mr. Hughes asked Ms. Lopez for headache medicine or gum, she

would go to the room where the women changed their clothes and kept their purses.
                                          6

Mr. Hughes would insist that Ms. Lopez get the items for him, and he would follow

her into the changing room. They would be in the room for approximately ten

minutes. Once when Ms. Lopez returned from the area, she looked pale, she was

fixing her hair, and her eyes were red. Ms. Lopez said that Mr. Hughes “forced her

to do oral sex.” Another time when Ms. Sanchez was going to the refrigerator, she

saw Mr. Hughes in the hallway with his hands on Ms. Lopez’s hands, forcing and

pushing her against the wall. Ms. Lopez, who was angry and pale, was pushing to

get away. When Mr. Hughes saw Ms. Sanchez, he released Ms. Lopez. Mr.

Hughes hid Ms. Lopez’s shoes once “so that she wouldn’t leave” at the end of her

shift.



         Ms. Lopez was the third complainant to testify. She worked at the NAC for

four years, two years under Mr. Hughes’s supervision.4 Mr. Hughes began to touch

her buttocks with his hand, a towel, a spatula, or his private part. He would grab a

wet towel and hit her on her buttocks or her legs “many times.” He would hit her so

hard with the spatula or the towel that she would “run and get ice,” and the impacted

area “would get red and swollen.”         Mr. Hughes would “laugh and leave.”


         4
          After about one year of his supervision, Mr. Hughes “started to be
disrespectful and say that [the employees] were bad, . . . dumb, . . . stupid, that he
was the smart one.” Mr. Hughes “would scream” and called Ms. Lopez “stupid to
[her] face.”
                                          7

Sometimes Ms. Lopez would scream and sometimes she would laugh after these

incidents. She would scream because the blow hurt and she would laugh because

she did not know “what to do.” In 2012, Ms. Lopez saw Mr. Hughes hit both Ms.

Sanchez and Ms. Mohamud with a rolled-up towel. She never saw him hit the two

male employees.



      Ms. Lopez described instances of sexual abuse by Mr. Hughes. Sometime in

2012, around 10:40 a.m., while other employees were on break but she was still

working, she was walking to the refrigerator when Mr. Hughes grabbed her by her

hair and pushed her toward the room the women used to change their clothes. After

forcing her into the room he tried to pull her pants down, and she tried to pull them

back up. He pulled her pants down again, hit her with his hand, asked if she wanted

to lose her job, forced his private part into her anus, and ejaculated in her anus. Her

hair “had come all undone,” and she was crying, but managed to “put [herself]

together and [to go] back to work.” About one or two weeks later, Mr. Hughes

again accosted Ms. Lopez. She had gone to the back of the cafeteria to get a

container. He again grabbed her hair and pushed her into the changing room and

penetrated her.
                                          8

      On other occasions, Mr. Hughes forced Ms. Lopez to perform oral sex – in the

changing room, a closet where dry food was kept, the men’s room, and her car.

One morning she was on her way to the changing room to get her migraine

medication, and as she was bending down in the room to get her purse from on top of

a box, Mr. Hughes grabbed her by her hair, “h[e]ld [her] hard,” put his private part in

her mouth, and ejaculated into her mouth. She spit into a glove she was wearing

and threw it into the trash. Mr. Hughes tied up the trash bag and put it in a hole in

the changing room. Oral sex took place on more than one occasion, after which Ms.

Lopez would spit the result out into the trash and Mr. Hughes would put the trash in

the changing room hole or put it outside in the trash. Earlier, Ms. Lopez testified

before the grand jury that Mr. Hughes would threaten to fire her if she did not do

what he wanted. Sometimes he would hide her purse and keys so she could not

leave. As she put it, “many times he hid my personal things so that at the last

minute he could do what he wanted to do.” Oral sex happened in the dry goods area

“more than once.” As for the bathroom, early one morning around 5:45 or 6:00

a.m., Ms. Lopez was cutting up fruit when Mr. Hughes told her to “meet [him] in the

bathroom.” When she did not meet him there, he returned and told her he was

waiting for her. When she declined to follow him, he said, “do you want me to kick

you out? Do you want to lose your job?” She went to the bathroom and Mr. Hughes

put his private part in her mouth. She told Ms. Sanchez about the oral sex but was
                                          9

too embarrassed to mention the anal penetration. She did not tell her husband

because “he’s a very angry and abusive man.” He would have made her leave her

job, but she needed to work because “[h]e did not have a stable job.” She also “was

afraid he would kill [her].”



      Special Agent Marco Monteiro, a criminal investigator with the FPS, was

assigned to the team investigating Ms. Lopez’s complaint against Mr. Hughes.

When he went to the coat room (the changing room) at the NAC cafeteria and looked

into the crawl space in the ceiling, he discovered and collected as evidence plastic

bags containing different items. He placed these plastic bags in other bags, sealed

them and took them to the laboratory at the Metropolitan Police Department

(“MPD”). Officer Nathaniel Covington, a crime scene investigator for the MPD,

went through the bags and pulled out latex gloves; he and his team examined the

gloves using the alternate light source technique to determine which gloves

contained body fluids. They packaged and sealed these gloves. Jessica Skillman,

a forensic scientist at the Department of Forensic Sciences and an expert in serology,

examined the gloves for the presence of semen. Three of the gloves tested positive

for semen. She took samples of the three gloves for DNA testing. Ms. Skillman

also received reference samples in the form of buccal swabs from Ms. Lopez and

Mr. Hughes. She prepared a cutting of these samples for DNA testing. A forensic
                                        10

serologist and DNA analyst at the Department of Forensic Sciences, Christiana

Shoopman, developed a DNA profile from cuttings made by Ms. Skillman. Further

testing revealed that the semen from the three gloves tested by Ms. Skillman

matched the DNA profile obtained from the swab that came from Mr. Hughes.



      On the morning of December 3, 2012, Ms. Lopez was cutting up vegetables in

the back of the cafeteria when Mr. Hughes arrived at work. He was making body

movements and his private part was “erect.” He said he was “horny.” He went

into his office, came out later with a clipboard and hit Ms. Lopez’s buttocks. She

screamed and said she would “kick his butt” if he did it again. He laughed, returned

to his office, but emerged within five minutes, hit her either with his hand or the

clipboard, and laughed. Ms. Lopez was angry, entered Mr. Hughes’s office, and

“grabbed his shirt.” In turn, he grabbed her, pulled her toward the closet, held her

with one arm and touched her breasts with the other arm. She tried to free herself

and hit him. Eventually she broke loose, but he kicked her on the buttocks, and she

“fell down on one knee,” her right knee. She felt pain and began to cry. He

laughed and twice said she was “going to die.” He did not apologize or help her up.

She sought assistance from Ms. Mohamud who brought her ice for the knee. At the

end of the day, Ms. Lopez went to the infirmary at the NAC; she was treated later at
                                          11

the hospital, and by an orthopedic surgeon. She missed time from work due to

more than one surgery on her knee and physical therapy.5

      At the end of the presentation of the government’s evidence, defense counsel

moved to dismiss certain counts relating to Ms. Lopez on the ground of insufficient

evidence. The government acknowledged evidentiary problems with respect to

certain counts identified by defense counsel, and hence, the government moved to

dismiss certain counts involving kidnapping, first-degree sexual abuse and an

attempted lewd, indecent or obscene act by Mr. Hughes.6




      5
          Dr. Christopher Magee, the orthopedic surgeon who treated Ms. Lopez,
testified as a fact witness. Before he saw Ms. Lopez on December 12, 2012, she
had been treated on December 5, 2012, at Washington Adventist Hospital. Ms.
Lopez complained about pain in her right knee, and she told Dr. Magee that she had
been injured on December 3, 2012, when she was accosted by her supervisor. She
reported that her supervisor “pushed her and that she landed directly on her knees.”
After an MRI scan, Dr. Magee diagnosed a torn meniscus or cartilage in her knee.
He performed surgery on April 9, 2013, which revealed damage to the thigh bone
near the knee and floating cartilage. Complications developed following surgery
and Ms. Lopez was not able to return to work. One of Dr. Magee’s partners later
performed a procedure to transplant “healthy surface cartilage from one area of the
knee into the damaged surface of the knee.”
      6
          The dismissed counts were counts 4 (kidnapping), 5 (first-degree sexual
abuse – oral sex in changing room), 7 (first-degree sexual abuse – oral sex in pantry),
9 (first-degree sexual abuse – oral sex in a restroom), 11 (first-degree sexual abuse –
oral sex in a parking lot), and 22 (attempted lewd, indecent or obscene act –
exposure by Mr. Hughes of genitalia in public).
                                        12

      Mr. Hughes presented several witnesses who testified that Ms. Lopez did not

report oral sex or penetration by Mr. Hughes, and stated that she injured herself

when she twisted her ankle. Others indicated that Mr. Hughes and Ms. Lopez

“hors[ed] around” or teased each other by hitting each other’s buttocks. Other

witnesses talked about staff positions and administrative issues facing FAME, Mr.

Hughes’s schedule of work, or experiences with him at work that were inconsistent

with Ms. Lopez’s description of him.7 The jury found Mr. Hughes not guilty of

counts 8, 12, 24-26 (involving Ms. Lopez), and counts 17 and 18 (relating to Ms.

Sanchez).8 However, the jury convicted Mr. Hughes of the remaining counts –


      7
         During her testimony, Ms. Lopez acknowledged that she told the nurse at
the infirmary on December 3, 2012, that she had rolled her ankle, and that she
informed an FPS investigator that Mr. Hughes never touched anything on her
person, except her buttocks. When she sought a “Peace Order” against Mr. Hughes
in Maryland, and Mr. Hughes’s attorney questioned her, she said that she had never
engaged in any sexual acts with Mr. Hughes. Ms. Lopez explained that her
husband was present at the time. However, she declared that after she became
depressed, her brother died, and the doctor increased the dosage of her medication,
she reported the sexual abuse to law-enforcement authorities.

       Based on the testimony of his witnesses, Mr. Hughes states in his appellate
brief that his defense theory was: (1) Ms. Lopez fabricated the charged first and
second-degree sexual abuse incidents because (a) she feared her husband who had
threatened her about engaging in sexual acts with other men, and (b) she was upset
about the incident that caused damage to her knee; and (2) Mr. Hughes’s actions
constituted “horseplay” in the workplace, and he did not engage in horseplay with
employees who communicated that his actions were not welcome.
      8
          The not guilty verdicts involving Ms. Lopez were:               count 8
(second-degree sexual abuse – oral sex in a pantry), 12 (second-degree sexual abuse
                                                                     (continued…)
                                        13

counts 1-3, 6, 10, 13-15, 23, 26A (involving Ms. Lopez); count 16 (relating to Ms.

Sanchez), and counts 19-21 (concerning Ms. Mohamud).9



      SEVERANCE




 (…continued)
– oral sex in a parking lot), 24-26 (December 3, 2012, misdemeanor sexual abuse –
contact between Mr. Hughes’s hand and Ms. Lopez’s buttocks, third-degree sexual
abuse – contact between Mr. Hughes’s hand and Ms. Lopez’s breast, assault with
significant bodily injury – not guilty of the greater offense but guilty of the
lesser-included offense of battery assault). The not guilty verdicts involving Ms.
Sanchez were: count 17 (attempted misdemeanor sexual abuse – contact between
Mr. Hughes’s hand and Ms. Sanchez’s breast), and 18 (assault – Mr. Hughes’s
finger in Ms. Sanchez’s ear).
      9
          The guilty verdicts involving Ms. Lopez were: counts 1-3 (kidnapping,
first-degree sexual abuse – penetration of Ms. Lopez’s anus, second-degree sexual
abuse – penetration of Ms. Lopez’s anus), 6 (second-degree sexual abuse – oral sex
in the changing room), 10 (second-degree sexual abuse – oral sex in the restroom),
13 (misdemeanor sexual abuse – contact between Mr. Hughes’s hand and Ms.
Lopez’s buttocks), 14 (misdemeanor sexual abuse – contact between Mr. Hughes’s
hand with towel and Ms. Lopez’s buttocks), 15 (misdemeanor sexual abuse –
contact between Mr. Hughes’s hand with cooking utensil and Ms. Lopez’s
buttocks), 23 (misdemeanor sexual abuse – contact between Mr. Hughes’s hand with
clipboard and Ms. Lopez’s buttocks), 26A (December 3, 2012, lesser-included
offense of battery assault). The guilty verdict pertaining to Ms. Sanchez was count
16 (misdemeanor sexual abuse – contact between Mr. Hughes’s hand with a towel
and Ms. Sanchez’s buttocks). The guilty verdicts relating to Ms. Mohamud were:
counts 19 (misdemeanor sexual abuse – contact between Mr. Hughes’s hand with a
towel and Ms. Mohamud’s buttocks), 20 (misdemeanor sexual abuse – contact
between Mr. Hughes’s hand with a spray bottle filled with bleach and Ms.
Mohamud’s buttocks), and 21 (destroying property – Ms. Mohamud’s pants).
                                         14

             The Parties’ Appellate Arguments



      As he did in the trial court, Mr. Hughes argues on appeal that the trial court

should have severed the counts relating to Ms. Lopez from those pertaining to Ms.

Mohamud and Ms. Sanchez, due to prejudicial joinder under Super. Ct. Crim. R. 14.

He maintains that the trial court abused its discretion by denying his motion to sever

those counts “1) because the evidence of the multiple charges would likely be

amalgamated in the jury’s mind into a single inculpatory mass; and 2) even if

mutually admissible, the negligible probative value of the evidence related to [Ms.]

Sanchez and [Ms.] Mohamud would be substantially outweighed by the danger of

unfair prejudice.” In essence, he complains that the trial court failed to guard

against a conviction based upon allegations of his propensity to commit criminal

acts. Specifically, he contends that the trial court misunderstood or misapplied

precedents of this court and a precedent from the District of Columbia Circuit,10 and

that it “abused its discretion by failing to consider the cumulative effect from its

denial of severance based upon an erroneous conflation of a Drew exception to

support an alleged context of sexual abuse.” Moreover, he argues, the trial court

“abused its discretion, when having helped to invoke this pretextual environment of

      10
         The specific precedents are: Johnson v. United States, 683 A.2d 1087
(D.C. 1996) (en banc); Toliver v. United States, 468 A.2d 958 (D.C. 1983); and
Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964).
                                            15

sexual abuse, it failed to undertake any balancing of the enormous prejudicial effect

on Mr. Hughes of its refusal [to sever] against only minimal probative value.”



      The government responds that Mr. Hughes’s context argument under Johnson

and Toliver and his intent argument under Drew are subject to plain error review.

The government argues that “[t]he trial court . . . did not abuse its discretion when it

concluded that the risk of undue prejudice did not substantially outweigh the

‘powerful’ probative value of the evidence under either the Johnson/Toliver or Drew

rationales.”    The government further maintains that “[a]ny potential error in

denying severance does not rise to the level of reversible error where [as here]

evidence of appellant’s guilt is strong.”



      In his reply brief, Mr. Hughes takes issue with the government’s plain error

argument. He also emphasizes his prejudicial/probative argument and the trial

court’s and the government’s failure to examine the factors outlined in Johnson.



               The Factual Context for the Severance Issue



      Prior to trial, Mr. Hughes filed a motion to sever counts related to Ms. Lopez

from those related to Ms. Sanchez and Ms. Mohamud. He mainly argued that “the
                                        16

government’s purpose in joining these counts [was] to create a disposition of

criminal propensity regarding Mr. Hughes in the minds of the jury.” He contended

that the counts were “too similar to keep the offenses separate and distinct.” He

emphasized the prejudicial impact of the joinder of these counts, arguing that “even

if mutually admissible the probative value of the evidence related to [Ms.] Sanchez

and [Ms.] Mohamud would be substantially outweighed by the danger of unfair

prejudice.”



      The government opposed Mr. Hughes’s motion, contending that joinder was

proper under Super. Ct. Crim. R. 8 (a) because the offenses charged are of a similar

character. The government argued “that the proffered evidence relating to [the]

charges involving [Ms.] Mohamud and [Ms.] Sanchez is properly admissible in a

trial of the charges relating to [Ms.] Lopez under Johnson and Toliver”; that

“[e]vidence regarding [Mr. Hughes’s] sexual contacts with [Ms.] Mohamud and

[Ms.] Sanchez is closely intertwined with the evidence of the crimes involving [Ms.]

Lopez, and serves to place the latter crimes, and [Ms.] Lopez’s delay in reporting

them, in an understandable context”; and that “[w]hen each complainant testifies,

these experiences and interactions with [Mr. Hughes] are inextricably linked, as the

overall workplace environment sets the context for all of the conduct and each

complainant’s reluctance to report it.”      The government contended that “[i]n
                                          17

addition to being inextricably intertwined with the charged offenses involving [Ms.]

Lopez and putting those events in context, the . . . evidence of each offense involving

the other victims would be mutually admissible under Drew to prove [Mr. Hughes’s]

intent to use force or to place [the women] in fear, or in the case of the

misdemeanors, commit the sexual acts and contacts without their permission, in

committing each of the other sexual assaults.” Finally, the government asserted

that any tendency of the jury to “amalgamate all of the evidence into one mass,” as

well as any prejudice, could be minimized through a jury instruction indicating that

the offense pertaining to each victim, and the evidence, should be considered

separately.



      In his reply to the government’s opposition, Mr. Hughes took issue with the

applicability of Toliver, arguing that Toliver applies to uncharged conduct whereas

all of the conduct in this case is charged and therefore the government is proceeding

“improperly” with respect to Toliver. He contended that “[e]xposed for what it is,

the government’s conclusion that the presumed ‘intertwined’ evidence provides an

‘understandable context’ for all of the charged crimes, in reality, only creates

precisely the inference of guilt via propensity that the law forbids.” Mr. Hughes

reiterated and expounded upon his argument about Johnson’s treatment of prejudice,

and he asserted that the government “[did] not provide . . . any Johnson analysis.”
                                          18

He maintained, also, that the government failed to set forth the proper procedure for

a Drew analysis. Finally, he contested the government’s argument about the

minimization of prejudice, declaring that “it fail[ed] to show either the extent of the

probative value of the evidence or the extent of unfair prejudice that it inferentially

concede[d] need[ed] minimizing.”



      After hearing argument on the motion to sever, the trial court concluded that

the incidents alleged constituted “classic evidence, in terms of the context in which

something has happened,” and helps to explain “how the women would not have

wanted to report [the abuse], and didn’t for a long time.” Therefore, the evidence

was admissible, “under Johnson and Toliver, with an appropriate limiting

instruction.” The trial court also determined that the evidence was “also admissible

under Drew.” The court reviewed “[t]he Drew factors,” including “clear and

convincing” evidence, and concluded that the “probative value” of the evidence

regarding the charges relating to Ms. Sanchez and Ms. Mohamud was “powerful.”11


      11
          During argument on the motion to sever, the trial court said to the
prosecutor, “I guess you want to make a proffer, as would normally be done, about
using a clear and convincing standard.” The prosecutor responded that “the
[g]overnment can make the proffer or a detective could testify as to the proffer.”
However, the government asserted that if it proceeded under Toliver, its lead
argument, it would not have to satisfy the clear and convincing standard. Defense
counsel declared that because the conduct at issue was “charged conduct,” allowing
the evidence to come in based on a proffer, and despite a clear and convincing
                                                                     (continued…)
                                           19

The court acknowledged that “there is prejudice in the pure sense that it’s evidence

tending to show that [Mr. Hughes] committed the crime,” but that the court did not

“see” “undue or improper prejudice, or that the prejudice simply outweighs the

probative value so that there’s a real danger of propensity evidence coming in.”



             Standard of Review



       Super. Ct. Crim. R. 14 provides, in relevant part that, “[i]f it appears that a

defendant . . . is prejudiced by a joinder of offenses . . . in an indictment . . . or by

such joinder for trial together, the [trial] [c]ourt may order . . . separate trials of

counts, . . . or provide whatever other relief justice requires.” Super. Ct. Crim. R.

14 (2016 ed.). The denial of a motion under Rule 14 to sever counts “will not be

reversed on appeal unless the defendant can convince this court that there was a clear

abuse of [the trial court’s] discretion.” Arnold v. United States, 511 A.2d 399, 404




 (…continued)
standard, could result in the jury deciding that based on the proffer, “we think he did
the other crime too, which can occur with other crimes evidence.” Although the
trial court, defense counsel, and the prosecutor continued their discussion, it does not
appear that the government ever made a proffer under the clear and convincing
standard. Rather, the trial court simply stated, if the government’s “evidence
evolves as has been proffered through pleadings here, it would clearly go to Mr.
Hughes’s intent to use force in a sexual act context.”
                                          20

(D.C. 1986) (citations omitted); see also Bates v. United States, 51 A.3d 501, 506

(D.C. 2012).



      Super. Ct. Crim. R. 8 (a) permits the joinder of offenses for, “felonies or

misdemeanors, or both,” if they “are of the same or similar character.” Super. Ct.

Crim. R. 8 (a). “When joinder is based on the ‘similar character’ of the offenses, a

motion to sever should be granted unless (1) the evidence as to each offense is

separate and distinct, and thus unlikely to be amalgamated in the jury’s mind into a

single inculpatory mass, or (2) the evidence of each of the joined crimes would be

admissible at the separate trial of the others.” Arnold, supra, 511 A.2d at 404-05

(internal quotation marks and citation omitted) (emphasis in original); see also

Drew, supra, 331 F.2d at 91 (noting that there is “no prejudicial effect from joinder

when the evidence of each crime is simple and distinct, even though such evidence

might not have been admissible in separate trials”). To convince this court to

reverse a denial of a motion for severance under Rule 14, “the defendant must show

the most compelling prejudice . . . from which the [trial] court would be unable to

afford protection if both offenses were tried together . . . .” Arnold, supra, 511 A.2d

at 404 (internal quotation marks omitted).        “[T]he trial court’s discretionary

judgment regarding whether to grant a severance motion is entitled to great
                                         21

deference.” Bates, supra, 51 A.3d at 506 (internal quotation marks omitted) (citing

Bailey v. United States, 10 A.3d 637, 642 (D.C. 2010)).



             Applicable Legal Principles



      The government’s theory in the trial court, which is advanced on appeal, was

that the evidence of each charged crime would be admissible at the separate trial of

the other charged crime; that is, the evidence would be mutually admissible. For

example, if the first-degree sexual abuse charges – oral sex and penetration – (force

with aggravating circumstances) were tried separately, evidence of each of the

misdemeanor sexual abuse events, as well as evidence regarding destruction of Ms.

Mohamud’s property would be admissible at that trial.             Similarly, if the

misdemeanor sexual abuse charges, or the destroying property charge concerning

Ms. Mohamud were tried separately, evidence of the first-degree sexual abuse

events would be admissible at those trials. To support its mutual admissibility

theory, the government further relied on legal principles articulated in Toliver and

Johnson, and in the alternative, Drew.



      In analyzing the parties’ severance arguments on appeal, we are guided by the

following legal principles. The fundamental principle is “that evidence of one
                                         22

crime is inadmissible to prove disposition to commit crime, from which the jury may

infer that the defendant committed the crime charged.” Drew, supra, 331 F.2d at

89. To avoid “an improper inference” of criminal disposition, “courts presume

prejudice and exclude evidence of other crimes unless that evidence can be admitted

for some substantial, legitimate purpose.” Id. at 89-90. “The same dangers appear

to exist when two crimes are joined for trial, and the same principles of prophylaxis

are applicable.” Id. at 90. Thus, the same principle applies when the consideration

is “the admissibility of evidence of one charged crime in a trial with another charged

crime.” Holiday v. United States, 683 A.2d 61, 82 (D.C. 1996).



      One substantial, legitimate purpose in admitting evidence of other crimes

(uncharged or charged) is “to explain the immediate circumstances surrounding the

offense charged,” that is, to “plac[e] in context and mak[e] comprehensible to the

jury the circumstances surrounding the charged offense.” Toliver, supra, 468 A.2d

at 960-61. Moreover, “in cases where evidence of incidental, uncharged criminal

conduct is inextricably intertwined with evidence of the charged offense, evidence

of the uncharged criminal conduct is directly admissible without the necessity of a

cautionary Drew instruction.”     Id. at 961.    “[U]nder Toliver, the question is

whether evidence of each charged crime is part of the ‘immediate circumstances

surrounding’ the other, such that the evidence reflects [separate events] so
                                          23

‘intimately entangled’ that . . . each criminal event is not clearly explainable to the

jury without evidence of the other.” Holiday, supra, 683 A.2d at 82; see also

Johnson, supra, 683 A.2d at 1098 (“Drew does not apply where . . . evidence . . . is

closely intertwined with the evidence of the charged crime, or . . . is necessary to

place the charged crime in an understandable context.”).



      Johnson instructs, also, that Drew is not a bar to the admission of other crimes

evidence if it “is direct and substantial proof of the charged crime.” 683 A.2d at

1098. However, if evidence is to be admitted under Toliver or Johnson, it must

pass “the balancing [test] of probative value against the potential for unfair

prejudice.” Id. Under that test “evidence [otherwise relevant] may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice.”

Id. at 1099.



      Aside from its fundamental principle regarding evidence of criminal

disposition, Drew articulates another substantial, legitimate purpose for admitting

other crimes evidence: “[e]vidence of other crimes is admissible when relevant to

(1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme

or plan embracing the commission of two or more crimes so related to each other …,

and (5) the identity of the person charged with the commission of the crime on trial.”
                                        24

331 F.2d at 90. Significantly, “[w]hen the evidence is relevant and important to one

of these five issues, it is generally conceded that the prejudicial effect may be

outweighed by the probative value.” Id. Nevertheless,



            [b]efore evidence of other offenses probative of any of the
            allowable issues may be admitted, a trial court is required
            to find: i) that the defendant committed the other
            offenses by clear and convincing evidence; ii) that the
            evidence of the other offenses is directed to a genuine,
            material and contested issue in the case; iii) that the
            evidence is relevant to the issue beyond demonstrating the
            defendant’s criminal propensity; and iv) that the evidence
            is not more prejudicial than probative.


Parker v. United States, 751 A.2d 943, 948 n.14 (D.C. 2000) (citation omitted).



            Discussion



      Mr. Hughes’s vigorous argument that Toliver applies only to the admissibility

of uncharged criminal conduct and is not applicable to this case of charged crimes

against Ms. Lopez and against Ms. Mohamud and Ms. Sanchez, is unavailing. This

court considered a severance issue and arguments based on Toliver in Holiday,

supra, a case involving charged crimes – distribution of cocaine and weapons

offenses pertaining to a gun. 683 A.2d at 64-65. We recognized that Toliver

“dealt with the issue of admissibility of uncharged criminal activity in a case of
                                          25

another charged crime,” id. at 82, but that Holiday presented the issue of “the

admissibility of evidence of one charged crime in a trial with another charged

crime.” Id. “Thus, the question of inextricable linkage of the two for Toliver

purposes is a question of mutual inextricable linkage — i.e., linkage as seen from the

perspective of each offense at the time that it occurred — much like mutual

admissibility under a Drew analysis.” Id. Stated another way, “the question is

whether the evidence of each charged crime is part of the ‘immediate circumstances

surrounding’ the other, such that the evidence reflects two transactions (or a series of

transactions) so ‘intimately entangled’ that . . . each criminal event is not clearly

explainable to the jury without evidence of the other.” Id. Similarly, the question

in Mr. Hughes’s case is whether charged events concerning Ms. Lopez are

inextricably linked to the charged events involving Ms. Mohamud and Ms. Sanchez,

that is, whether what happened to Ms. Lopez at the hands of Mr. Hughes is not

clearly explainable to the jury without the evidence as to what happened to Ms.

Mohamud and Ms. Sanchez at Mr. Hughes’s hands.



      Given the evidence presented by the government regarding Mr. Hughes’s

behavior in the workplace at NAC and Mr. Hughes’s essential defenses that his

actions constituted horseplay and that Ms. Lopez fabricated the more serious

allegations of sexual abuse (penetration and oral sex), the evidence about 1) the fear
                                          26

of the women that they would be fired and Mr. Hughes’s categorical insistence that

the women could not speak to someone higher in the FAME Corporation, 2) the

women’s assertions that they did not want Mr. Hughes to touch them sexually, and

3) Mr. Hughes’s repeated sexual contact with the women while they were working

under his supervision, inextricably linked the charges involving the three women.

Moreover, the charges concerning each of the women were not clearly explainable

to the jury without evidence of the other. In short, the evidence of each charged

crime was part of the “immediate circumstances surrounding the other[s],” was

“necessary to place the charged crime in an understandable context,” and was

“closely intertwined with the evidence of [each] charged crime.” Holiday, supra,

683 A.2d at 82 (internal quotation marks omitted); Johnson, supra, 683 A.2d at

1098.

        Although we conclude that there is mutual inextricable linkage of the charged

crimes concerning Ms. Lopez, Ms. Sanchez, and Ms. Mohamud, we must address

another critical inquiry under Toliver and Johnson – whether Mr. Hughes has shown

“the most compelling prejudice . . . from which the [trial] court would be unable to

afford protection” if the charged offenses relating to Ms. Sanchez and Ms.

Mohamud respectively were tried together with the charged offenses relating to Ms.

Lopez. Arnold, supra, 511 A.2d at 404. We discern no compelling prejudice, in a

trial of the Lopez charged crimes, resulting from the introduction of evidence of Mr.
                                         27

Hughes’s misdemeanor sexual contact with Ms. Mohamud and Ms. Sanchez under

Toliver. Based on our review of the evidence in this case, we see no extreme risk

that Mr. Hughes would be convicted of the serious and heinous first and second

degree sexual abuse charges (accomplished with force and aggravating

circumstances), or the other serious crimes, because of evidence of events relating to

Ms. Mohamud and Ms. Sanchez. We think it unlikely that a reasonable jury would

infer a criminal disposition on Mr. Hughes’s part to commit first- and second-degree

sexual abuse and kidnapping, solely on the basis of the misdemeanor conduct

pertaining to Ms. Sanchez and Ms. Mohamud.



      We reach a different conclusion with respect to the introduction of the

evidence of the serious Lopez charged events at separate trials of the charged crimes

pertaining to Ms. Mohamud and Ms. Sanchez. The probative value of the evidence

of Ms. Lopez’s kidnapping, first- and second-degree sexual abuse, and significant

bodily injury would be substantially outweighed by the danger of unfair prejudice in

a separate trial of the three misdemeanor sexual contact counts relating to Ms.

Sanchez, and a separate trial of the two misdemeanor sexual contacts counts and the

destroying property (pants with bleach) count relating to Ms. Mohamud. We are

persuaded that no cautionary jury instruction could avoid “an extreme risk of
                                         28

prejudice.” Bright v. United States, 698 A.2d 450, 456 (citing Parks v. United

States, 656 A.2d 1137, 1140 (D.C. 1995)).



      If the Lopez evidence were introduced at the separate misdemeanor trials

involving events pertaining to Ms. Sanchez and Ms. Mohamud, the jury would be

left with images of Mr. Hughes’s forceful penetration of Ms. Lopez’s anus, or his

equally heinous insertion of his private part into Ms. Lopez’s mouth, and the jury

might well convict Mr. Hughes because of its perceived view that he had a criminal

disposition to commit the misdemeanor offenses. In a case where a defendant is

being tried for far less serious conduct, such as the misdemeanor offenses at issue in

this case and in Parks, the prejudicial effect of introducing evidence of graphic and

far more serious other crimes can “dwarf[]” any legitimate value the evidence might

have. Parks, supra, 656 A.2d at 1140. In short, the risk here – that evidence about

Mr. Hughes’s violation of Ms. Lopez would influence or impact the jury’s

evaluation of the evidence concerning the respective cases relating to Ms. Sanchez

and Ms. Mohamud – was “overwhelming.” Id. We acknowledge that the jury in

this case actually acquitted Mr. Hughes of two counts of misdemeanor sexual abuse

relating to Ms. Sanchez, perhaps suggesting that there was no risk of prejudice due

to the joinder of all of the offenses. Nevertheless, we cannot be sure, that the jury

would not have convicted Mr. Hughes of the Sanchez and Mohamed charges based
                                         29

on the conclusion that he had the criminal disposition to commit these offenses due

solely to the evidence of the Lopez sexual acts committed by Mr. Hughes. Put

another way, we are not satisfied that the trial court properly weighed the probative

value against the risk of prejudice and we are not persuaded that the error was

harmless, that is, that the judgment “was not substantially swayed by the error.”

Kotteakos v. United States, 328 U.S. 750, 765 (1946).



      In sum, we conclude that in a separate trial of the Sanchez and Mohamud

charged offenses, respectively, introduction of evidence pertaining to the Lopez

charged offenses posed an extreme and unacceptable risk of prejudice from which

no limiting jury instruction could protect Mr. Hughes. Therefore, the trial court

abused its discretion in failing to sever the Mohamud and Sanchez misdemeanor

counts and we are constrained to reverse Mr. Hughes’s Sanchez misdemeanor

conviction (count 16 – contact between Mr. Hughes’s hand with towel and Ms.

Sanchez’s buttocks). In addition, we reverse the three Mohamud convictions

(count 19 – contact between Mr. Hughes’s hand with towel and Ms. Mohamud’s

buttocks; count 20 – contact between Mr. Hughes’s hand with spray bottle of bleach

and Ms. Mohamud’s buttocks; and count 21 – destroying property – Ms.

Mohamud’s pants). However, since we are convinced that the same extreme and

unacceptable risk would not be present if evidence of the charged Sanchez and
                                        30

Mohamud offenses were introduced in a separate trial of the Lopez charged crimes,

we will affirm those convictions if we decide that the evidence was sufficient to

sustain those convictions beyond a reasonable doubt. See Parks, supra, 656 A.2d at

1140-41 (referencing Settles v. United States, 522 A.2d 348, 354 (D.C. 1987))

(“[M]isjoinder ‘may be partially harmless and require only a partial reversal’ where

‘offense B may be inadmissible in a trial for offense A, but offense A may be

admissible in a trial for offense B.’”); Bright, supra, 698 A.2d at 459 (this court

reversed an unlawful possession of ammunition conviction but affirmed first-degree

murder while armed convictions and a conviction on charge of carrying a pistol

without a license).12



      SUFFICIENCY OF THE EVIDENCE



             The Parties’ Arguments



      Mr. Hughes contends that his first-degree sexual abuse conviction

(penetration of anus) must be reversed because the government failed to “prove

beyond a reasonable doubt that Mr. Hughes used force against Ms. Lopez.” He

      12
           Given our conclusions relative to Toliver and Johnson, we deem it
unnecessary to consider the parties’ arguments pertaining to the government’s
alternative Drew theory.
                                        31

claims that Ms. Mohamud did not hear Ms. Lopez scream, Ms. Lopez “often flirted

with Mr. Hughes,” and “she voluntarily touched him.”



      With respect to his second-degree sexual abuse convictions (penetration of

anus and oral sex) Mr. Hughes argues that the government failed “to prove that Ms.

Lopez’s alleged fear [of being fired] was a reasonable fear as required by statute,”

and “that any fear Ms. Lopez had over her relationship with Mr. Hughes was a fear

of her husband’s reaction to finding out about her close, personal relationship with

Mr. Hughes.” Mr. Hughes also maintains that the government failed to prove the

“confinement or restraint” element of kidnapping, in part because Ms. Mohamud

heard no screams by Ms. Lopez and because there were no locks on the doors where

the alleged sexual abuse took place. As for the misdemeanor convictions, Mr.

Hughes asserts that the government’s proof failed to show anything more than

horseplay when Mr. Hughes used the towel or other objects, and that he stopped

when the employees asked him to do so. He contends that the evidence “simply

does not support the jury coming to a factual conclusion, beyond a reasonable doubt,

that the[] mutual contacts [between Mr. Hughes and Ms. Lopez] were not wanted by

Ms. Lopez.”
                                         32

      The government responds that it satisfied the force element of first-degree

sexual abuse through the testimony of Ms. Lopez that Mr. Hughes grabbed her by

the hair, pushed her in the changing room, and forcibly pulled down her pants twice.

The government further maintains that no corroboration is necessary, and that Ms.

Lopez’s testimony is not “inherently incredible.”       Moreover, the government

argues, any playful conduct at other times “cannot disprove, as a matter of law, [Ms.]

Lopez’s testimony that [Mr. Hughes] sexually abused her by force.” With respect

to the kidnapping conviction, the government contends that it met the confinement

or restraint requirement through testimony about Mr. Hughes grabbing Ms. Lopez’s

hair and pushing her to hold her. Finally the government asserts that even though

Ms. Lopez and Ms. Sanchez told Mr. Hughes not to hit them on the buttocks any

more, he continued to do so, and that in Ms. Mohamud’s case, he sprayed her

buttocks with bleach after she told him not to hit her again with the towel.



             Standard of Review



      Our review of sufficiency claims is de novo. Brown v. United States, 146

A.3d 110, 112 (D.C. 2016). “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.” Id. (internal quotation marks and
                                          33

citation omitted). Appellant bears a heavy burden to convince the court to reverse a

conviction on sufficiency grounds.       “Reversal of a conviction on insufficient

evidence grounds can only be ordered when the government . . . produced no

evidence from which a reasonable mind might fairly infer guilt beyond a reasonable

doubt.”   Koonce v. United States, 993 A.2d 544, 551 (D.C. 2010) (internal

quotation marks and citation omitted). “[W]hether the evidence is persuasive is a

determination left to the jury, and [i]t is axiomatic, that as assessors of a witness’

credibility, the jury is always free to accept parts of a witness’ testimony and reject

other parts.” Id. (internal quotation marks omitted). Moreover, “contradictions

among witnesses at trial are inevitable and are matters for the jury to resolve as they

weigh all the evidence.” Id. (internal quotation marks and citation omitted).



             Discussion



      We are not persuaded by any of Mr. Hughes’s sufficiency of the evidence

arguments. First-degree sexual abuse requires proof that a person “causes another

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

person.” Blair v. United States, 114 A.3d 960, 977 (D.C. 2015) (citing D.C. Code §

22-3002 (a)(1) (2012 Repl.)). The government introduced compelling evidence,

through the testimony of Ms. Lopez, that while other employees were on break, Mr.
                                           34

Hughes grabbed her by the hair as she was walking to the refrigerator, pushed her

toward the changing room, tried to pull down her pants and forced them down when

Ms. Lopez pulled them up. He asked her if she wanted to lose her job and then

forced his private part into her anus. This compelling testimony, if believed and

credited by the jury, as occurred here, satisfied the fear element of the statute beyond

a reasonable doubt.



      “Under [D.C. Code] § 22-3003 (1), a person commits second degree sexual

abuse if he ‘engages in or causes another person to engage in or submit to a sexual

act . . . [b]y threatening or placing that other person in reasonable fear (other than by

threatening or placing that other person in reasonable fear that any person will be

subjected to death, bodily injury, or kidnapping.)’”. Way v. United States, 982 A.2d

1135, 1136-37 (D.C. 2009). In Way, a second-degree sexual abuse case involving a

prostitute and appellant who was dressed in his “full police uniform,” we said that

the “reasonable fear” was the fear of arrest. Id. at 1135, 1137. In this case, the

government’s ample and strong proof showed that Ms. Lopez was in reasonable fear

of being fired. Indeed, Ms. Lopez testified that Mr. Hughes would threaten to fire

her if she did not do what he wanted. On one occasion Mr. Hughes ordered Ms.

Lopez to meet him in the restroom. When she did not comply, he again approached

her and asked, “do you want me to fire you? Do you want to lose your job?” If the
                                          35

jury believed that testimony, as it obviously did, the government satisfied the

element of “reasonable fear.” Moreover, while the jury may well have believed

that Ms. Lopez was afraid that her husband would find out that she had sex with Mr.

Hughes, the jury could simultaneously believe that Ms. Lopez was afraid of losing

her job and being able to support her family if she did not comply with Mr. Hughes’s

sexual demands.



      Under D.C. Code § 22-2001, a person is guilty of kidnapping if he “seiz[es],

confin[es] . . . and hold[s] or detain[s] . . . [an] individual for ransom or reward or

otherwise . . . .” D.C. Code § 22-2001 (2012 Repl.). “[T]he essence of the crime

of kidnapping” is “[t]he involuntary nature of the seizure and detention.” Pearsall

v. United States, 812 A.2d 953, 963 (D.C. 2002). In this case, there was strong and

compelling evidence, presented through the testimony of Ms. Lopez, that she was

detained against her will by Mr. Hughes. Mr. Hughes’s acts of grabbing Ms. Lopez

by the hair and pushing her toward the changing room indicate she was seized and

detained involuntarily by Mr. Hughes.



      Finally, D.C. Code § 22-3006 provides that “[m]isdemeanor sexual abuse

occurs when a person ‘engages in a sexual act or sexual contact with another person’

with ‘knowledge or reason to know that the act was committed without that other
                                         36

person’s permission[.]’” Pinckney v. United States, 906 A.2d 301, 305 (D.C. 2006)

(citing D.C. Code § 22-3006). We conclude that Mr. Hughes has not satisfied his

heavy burden to show that the government “produced no evidence from which a

reasonable mind might fairly infer [his] guilt beyond a reasonable doubt.” Koonce,

supra, 993 A.2d at 551. It is true that Ms. Lopez laughed at times when Mr. Hughes

hit her on the buttocks, but reasonable jurors could justifiably credit her testimony

that she laughed at times because she did not know “what to do,” that sometimes Mr.

Hughes would hit her so hard with the rolled-up wet towel or the spatula that she

would “run and get ice” and that the impacted area “would get red or swollen.”

Reasonable jurors also could credit Ms. Lopez’s testimony that Mr. Hughes hit her

so hard with a clipboard on December 3, 2012, that she screamed and said she would

“kick his butt” if he did it again. From these incidents, reasonable jurors could

reasonably and justifiably infer that Mr. Hughes did not have Ms. Lopez’s

permission to hit her on the buttocks, with his hand or other objects, and that his

conduct was unwanted.
                                              37

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

relating to Mr. Hughes’s convictions on the Lopez charges. However, we reverse

the trial court’s judgment with respect to Mr. Hughes’s convictions on Sanchez

count 16, and his convictions on Mohamud counts 19, 20, and 21, and remand those

counts to the trial court for a new trial.



                                             So ordered.
