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            DISTRICT OF COLUMBIA COURT OF APPEALS

                               No. 12-CM-1741

                      GRADY W. HAILSTOCK, APPELLANT,

                                      V.

                          UNITED STATES, APPELLEE.

                        Appeal from the Superior Court
                         of the District of Columbia
                               (CMD-6661-12)

                      (Hon. Ronna Lee Beck, Trial Judge)
(Submitted December 17, 2013                             Decided March 6, 2014)

      James Klein, Jaclyn S. Frankfurt and Lee R. Goebes, Public Defender
Service, were on the brief for appellant.
      Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,
Chrisellen R. Kolb, Shane Waller and Gilead I. Light, Assistant United States
Attorneys, were on the brief for appellee.
      Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior
Judge.
      Opinion for the court by Associate Judge THOMPSON.
      Opinion by Senior Judge SCHWELB concurring in the judgment at page 13.


      THOMPSON, Associate Judge:     Following a bench trial, appellant Grady

Hailstock was convicted of one count of attempted misdemeanor sexual abuse
                                           2

(―MSA‖) and one count of assault. In this appeal, he contends that the government

(1) failed to prove that he possessed the requisite mental state and (2) also failed to

prove that he came dangerously close to completing the offense of MSA, and thus

did not meet its burden of proof as to ―attempt.‖ In addition, he asserts that his

simple assault and attempted MSA convictions merge and that one of the

convictions therefore must be vacated. We affirm the judgment of the trial court

but, agreeing with appellant‘s merger argument, remand for the trial court to vacate

one of his convictions.




                                           I.




      The government presented the only evidence at appellant‘s trial.

Complainant C.W., who was 17 at the time of the charged offenses, testified that

appellant, who was a ―very close family friend‖ of her grandfather and who had

known C.W. since she was a child, frequently came to the house where she lived to

―work[] on something in the house.‖1 C.W. had a ―family type of relationship‖

with appellant and ―called him [her] uncle.‖ On April 17, 2012, C.W. was ill and

stayed home from school. She was upstairs lying in her mother‘s bed when

      1
          Appellant was 57 years old at the time of trial.
                                          3

appellant opened the bedroom door, walked into the bedroom, and shut and locked

the door. Appellant then walked towards the bed and climbed onto it. When C.W.

asked him what he was doing, appellant responded that he was going to ―get

down.‖ C.W. began pushing him and said ―no, no.‖ Appellant then ―grabbed

[C.W.‘s] robe‖ and in the process, ―kind of touched [her] breast.‖ C.W. ―tried to

get off the bed.‖ At that point, appellant ―stopped . . . [and] got down‖ and left the

room, saying, ―I guess I‘ll get back to work.‖ C.W. was ―shaking‖ and ―nervous‖

and could see appellant still standing outside the room, looking through the

doorway. When she left the room and walked by appellant, he ―made a noise, like,

‗ooh.‘‖




      When C.W. went downstairs, her brother noticed that she had been crying.

He asked her what was wrong and she told him what had happened. Thereafter,

C.W.‘s brother asked to speak with appellant outside. When the brother asked

appellant what happened, appellant smirked and said that C.W. ―wanted it.‖ Later

that day, Metropolitan Police Department Officer Cheryl Sentino responded to the

report of a ―disturbance‖ at C.W.‘s residence. She encountered C.W. who was

―teary-eyed, and looked like she had been crying, and upset‖ and who explained

what had happened. As captured on a police videotape of appellant‘s post-arrest

interrogation (and as summarized by the trial court), appellant told a detective that
                                           4

―his intent was to have sexual intercourse, as that term is commonly understood,

with [C.W.] if she consented.‖



      In finding appellant guilty of the charged offenses, the trial court stated that

appellant‘s ―intentions, as indicated by his actions and his later statements, were to

have sexual intercourse with [C.W.]‖ and that he ―knew or should have known that

he did not have consent to take these actions.‖ The court found that appellant‘s

―actions . . . were reasonably adapted to accomplishing the alleged misdemeanor

sexual abuse, and he came dangerously close to committing the alleged

misdemeanor sexual abuse[,]‖ and that ―at the time when [appellant] attempted the

sexual act named in the information[,] . . . he should have known that he was

proceeding without the consent of the complaining witness.‖2 The court further

found that C.W. did not in any way provoke or induce appellant‘s sexual advances

or ―suggest to him that she was interested in any kind of sexual contact with him.‖

The court found ―beyond a reasonable doubt that [appellant] attempted to commit a


      2
         The trial court reiterated and clarified its findings several times, both at the
conclusion of the trial on October 9, 2012, and during the October 19, 2012,
sentencing proceeding. Thus, for example, the court stated in addition that
appellant ―certainly intended to commit the sexual act, and he certainly had no
reason for believing that he had the consent of the complaining witness.‖
Appellant acknowledges that the court‘s ―findings of fact and conclusions of law
did not differ substantively between the two days[.]‖
                                           5

sexual act with [C.W.], the sexual act of his penis — contact between his penis and

her vagina, when he should have known that she had no interest in that and that she

wasn‘t consenting and it wasn‘t reasonable for him to think that she would

consent.‖ However, the court was ―not able to find beyond a reasonable doubt‖

―that it was [appellant‘s] intention to have sexual intercourse with [C.W.] without

her consent‖; that he ―intended to have intercourse . . . without her consent[,] that

is, that he intended to force her to have intercourse[,]‖; ―that it was his intention

. . . to proceed to have sex with her against her will‖; ―that it was his intention . . .

to proceed [to commit the sexual act] whether or not she consented[,]‖; or ―that it

was his intention from the beginning to engage in sex that was non-consen[s]ual,‖

i.e., ―[w]here there was affirmative rejection of the interest in sex.‖



                                           II.



      The MSA statute prescribes a penalty for ―[w]hoever engages in a sexual act

or sexual contact with another person and who should have knowledge or reason to

know that the act was committed without that other person‘s permission[.]‖ D.C.

Code § 22-3006 (2012 Repl.).          To obtain a valid conviction for MSA, the

government must prove beyond a reasonable doubt that the accused
                                          6

             (1) committed a sexual act or sexual contact; (2) intended
             to abuse, humiliate, harass, degrade, or arouse or gratify
             the sexual desire of any person; and (3) knew or should
             have known that he or she did not have the complainant‘s
             permission to engage in the sexual act or sexual contact.


Nkop v. United States, 945 A.2d 617, 619–20 (D.C. 2008) (italics added, internal

quotation marks omitted); see also Robles v. United States, 50 A.3d 490, 493–94

(D.C. 2012) (explaining that the statute ―requires proof that the defendant should

have knowledge or reason to know that the act was committed without the other

person‘s permission‖) (alterations and internal quotation marks omitted).           As

relevant to the charged offense here, a ―sexual act‖ requires penetration of the anus

or vulva. D.C. Code § 22-3001 (8). ―[S]exual contact‖ refers to the ―touching

with any clothed or unclothed body part . . . of the genitalia . . . of any person with

an intent to . . . arouse or gratify the sexual desire of any person.‖ D.C. Code § 22-

3001 (9).



      In this case, appellant was charged by information with ―attempt[ing] to

engage in a sexual act or contact with C.W., that is, contact between [appellant‘s]

penis and C.W.‘s vagina, where [appellant] knew or had reason to know that the

sexual act or contact was without C.W.‘s permission.‖ To prove an attempted

offense, ―the government must prove the defendant (1) intended to commit the

crime, and (2) committed an overt act towards the completion of the crime that (3)
                                           7

came within dangerous proximity of completing the crime.‖ Nkop, 945 A.2d at

620 (internal quotation marks omitted).



                                          III.



      Appellant contends that to prove the requisite mens rea for attempted MSA,

the government was required to prove both that he intended sexual contact or a

sexual act with C.W. and ―that he meant to do so without regard to [her] lack of

consent.‖ He argues that because the trial court was unable to find beyond a

reasonable doubt that he had that mental state, his conviction for attempted MSA

must be reversed.



      We are not persuaded by this argument. First, we do not read the court‘s

findings as indicating that the court could not find beyond a reasonable doubt that

appellant intended sexual contact (i.e., as charged in this case, penis-to-vagina

contact) without regard to C.W.‘s consent. We recognize that, at least at one point,

the court was not careful to distinguish the terms ―sexual act‖ and ―sexual
                                          8

contact‖3 even though, as defined by § 22-3001 (8), the former, but not the latter,

requires penetration of the vagina by the penis. But each time that the court

described what it was unable to find beyond a reasonable doubt, it used the terms

―sexual intercourse,‖ ―intercourse,‖ ―sex‖ or ―the sexual act‖ to describe the act

that it could not find appellant intended even if C.W. would not consent.4 Because,

as we read the transcript, the court did not decline to find that appellant intended to

have penis-to-vagina sexual contact with C.W. without regard to her consent, we

reject appellant‘s argument that the trial court findings preclude a holding that he

had the requisite mental state.



       Further, even assuming that appellant is correct that the trial court was

unable to find beyond a reasonable doubt that he intended to have penis-to-vagina

sexual contact with C.W. regardless of her consent, we agree with the government

that the evidence and the court‘s factual findings nevertheless were sufficient to

support appellant‘s conviction of attempted MSA.            An ―attempted‖ offense

      3
          We are referring to the court‘s statement that it found ―beyond a
reasonable doubt that [appellant] attempted to commit a sexual act with [C.W.], the
sexual act of . . . contact between his penis and her vagina‖ (italics added).
      4
         Appellant appears to recognize this, arguing that ―the government did not
prove that [appellant] intended to go through with the planned sexual intercourse
without regard to C.W.‘s consent[.]‖ This interpretation is consistent with the
court‘s summary that appellant told a detective that ―his intent was to have sexual
intercourse, as that term is commonly understood, with [C.W.] if she consented.‖
                                         9

―requires an intent to commit the crime being attempted.‖ Buchanan v. United

States, 32 A.3d 990, 1002 (D.C. 2011) (Ruiz, J., concurring); see also Nkop, 945

A.2d at 620 (same); Brawner v. United States, 979 A.2d 1191, 1194 (D.C. 2009)

(the government was required to prove that the defendant ―intend[ed] to commit

the underlying offense‖).     The elements of MSA, the crime appellant was

convicted of attempting, are commission of a sexual act or sexual contact, with the

intent to gratify the defendant‘s sexual desire, when the defendant knew or should

have known that he did not have the complainant‘s permission to engage in the

sexual act or sexual contact. Therefore, the specific intent required for attempted

MSA is the intent to commit a sexual act or sexual contact in order to gratify the

defendant‘s sexual desire, when the defendant either knew or should have known

that he did not have the complainant‘s permission to engage in the sexual act or

sexual contact.



      Here, the trial court found — and the evidence supports its finding — that

appellant had precisely that intent.5 The court found that appellant‘s ―intentions

. . . were to have sexual intercourse with [C.W.]‖ and that he ―attempted the sexual

      5
         That appellant intended to have sexual contact with C.W. for his own
sexual gratification was not in dispute; appellant admitted as much to the police.
Further, appellant does not challenge the court‘s conclusion that he should have
known that C.W. would not consent to sexual contact or a sexual act with
appellant.
                                        10

act named in the information‖ (―a sexual act or contact with C.W., that is, contact

between [his] penis and C.W.‘s vagina‖) ―at [a] time when . . . he should have

known‖ that he did not have ―the consent‖ of C.W. Appellant‘s claim (which the

trial court was unable to reject beyond a reasonable doubt) was not that he lacked a

reason to know that C.W. would not consent, but that he intended to complete the

sexual act only if C.W. did consent. We think this claim must be interpreted to

mean that appellant intended to have sex with C.W. only if he perceived that C.W.

consented (or, stated differently and using the trial court‘s expression, appellant

intended to have sex with C.W. unless he perceived C.W.‘s ―affirmative rejection

of the interest in sex‖). So understood, appellant‘s not-discredited claim was not a

bar to conviction because, to repeat, what was required to convict him of the

offense of attempted MSA was that he took the requisite overt steps at a time when

he should have known that he did not have C.W.‘s consent for the acts he

contemplated.



      Appellant‘s alternative argument is that even if the mens rea for attempted

MSA was satisfied, his conviction cannot stand because the trial court could not

reasonably find that he came ―dangerously close‖ to completing the sexual act or

sexual contact. He asserts that because his intent (which, again, the trial court

could not discredit beyond a reasonable doubt) was to proceed to completion only
                                         11

if C.W. consented, ―the completed crime of MSA was never going to occur‖ —

i.e., there was no ―close proximity of completion[.]‖ Nkop, 945 A.2d at 620. We

reject this argument as well.



      The test of ―dangerous proximity‖ of completing a crime is met where,

―except for some interference,‖ a defendant‘s overt acts ―would have resulted in

commission of the completed crime,‖ Evans v. United States, 779 A.2d 891, 894

(D.C. 2001), or where the defendant has taken a ―substantial step toward

commission of the crime,‖ In re Johnson, 48 A.3d 170, 173 n.8 (D.C. 2012)

(citing In re Squillacote, 790 A.2d 514, 521 (D.C. 2002)). The evidence in this

case satisfied these tests. Appellant entered the bedroom where C.W. was resting

and got onto the bed with her. Even after C.W. said ―no‖ to appellant‘s expressed

intent to ―get down‖ with her and even after she pushed him away, appellant

continued in his efforts, pulling on her robe and touching her breast in the process.

These actions behind a closed and locked door constituted substantial steps toward

the sexual contact that appellant intended.6 In addition, viewed in the light most


      6
        This court has observed that ―[t]he line between preparation and attempt is
often indistinct, especially in the area of attempted sexual abuse.‖ In re Doe, 855
A.2d 1100, 1107 n.12 (D.C. 2004) (citing the following cases in which courts
―found criminal attempts to commit sexual assaults‖ on the basis of conduct that
did not progress as far as even touching the victim, but instead involved only the
defendant‘s traveling to an agreed-upon location with the intent to engage in sexual
                                                                      (continued…)
                                         12

favorable to the government, the evidence was that it was only upon the

interference of C.W.‘s continued active resistance that appellant desisted in his

efforts to have sexual contact with her. Contrary to appellant‘s argument, C.W.‘s

active resistance satisfied the requirement that the interference be from an external

source or ―external to the defendant,‖ rather than the defendant‘s ―own intent.‖

See Davis v. United States, 873 A.2d 1101, 1107 (D.C. 2005) (citing defendant‘s

daughter‘s act of ―fle[eing] instead of submitting to his request‖ after he ―exposed

himself to her and asked her to rub his penis‖ as the interference that kept

defendant‘s conduct from resulting in a completed crime).




 (…continued)
intercourse with a child or with an individual whom the defendant believed to be a
child: State v. Townsend, 20 P.3d 1027 (Wash. Ct. App. 2001), aff’d, 57 P.3d 255
(Wash. 2002) (en banc); Dennard v. State, 534 S.E.2d 182 (Ga. 2000); People v.
Scott, 740 N.E.2d 1201 (Ill. 2000); People v. Patterson, 734 N.E.2d 462, 470 (Ill.
App. Ct. 2000); Van Bell v. State, 775 P.2d 1273 (Nev. 1989)).

      Appellant likens his actions to the non-criminal actions of a law firm
associate who approaches a law firm partner at a party, touches her arm and makes
an ―unrealistic request[] for sexual interaction[,]‖ unreasonably hoping that she
will consent. This hypothetical is not analogous to the facts here because
appellant‘s actions on the bed with C.W. and behind a closed and locked door went
beyond a mere unreasonable solicitation of consent. Distinguishing appellant‘s
hypothetical, one might say that even if there is no crime entailed in asking, that
does not mean there is no crime entailed in trying.
                                           13

                                          IV.



      As appellant asserts, ―simple assault is a lesser-included offense of

attempted misdemeanor sexual abuse[,]‖ Nkop, 945 A.2d at 621, and a defendant

may not stand convicted of both crimes for the same behavior. Accordingly, we

agree with appellant (and the government concedes) that we must remand to the

trial court for it to vacate one of appellant‘s convictions.



                                         ***



      For the foregoing reasons, we conclude that the trial court did not err in

convicting appellant of attempted MSA. We affirm the judgment of conviction,

but remand for the court to vacate either that conviction or the simple assault

conviction.

                                         So ordered.




      SCHWELB, Senior Judge, concurring in the judgment:       I concur in the

judgment dubitante. Although Hailstock obviously did not intend to have sexual

intercourse with the complaining witness if she turned him down, and although he

departed ignominiously, soon uttering preposterous boasts about his implied
                                        14

supposed prowess after she did refuse him, I am (barely) prepared to join my

colleagues in affirming the MSA conviction because under all of the

circumstances, Hailstock‘s earlier actions, including locking the door and

assaulting the victim on the bed, were arguably sufficient under the statute. See,

also, maj. op. at 11 note 6, and authorities there cited. I also vote to affirm the

assault conviction.
