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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CM-1461

                            JAMES MILLER, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (DVM-64-13)

                         (Hon. José M. Lopez, Trial Judge)

(Argued April 22, 2015                                     Decided May 21, 2015)

      Lisa D. Chanel 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, Chrisellen R. Kolb, and Jason Park, Assistant United States Attorneys,
were on the brief for appellee.

    Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and
NEWMAN, Senior Judge.

      NEWMAN, Senior Judge:           Miller was convicted on three counts of

misdemeanor sexual abuse of a child, his now-teenage step-daughter, in violation
                                          2

of D.C. Code § 22-3010.01 (2001).1 He appeals, contending that the trial court

committed constitutional error in preventing his expert witness from testifying

because of a violation of the disclosure requirements of Super. Ct. Crim. R. 16

(b)(1)(C). He also contends that the evidence against him was insufficient. We

affirm.



      The case proceeded to a bench trial on July 11, 2013, before the Honorable

José M. Lopez. The complainant J.G. testified to the charged incidents. Her

mother also testified for the prosecution, corroborating elements of J.G.’s

description of dynamics in the home, and also testifying to incriminating

statements that Miller made to her after J.G. reported her abuse. On November 18,

2013, Judge Lopez convicted Miller, and sentenced him to 180 days of

incarceration on each count, execution suspended, with counts 2-3 to run

concurrently with credit for time served, and count 4 to run consecutively, without

credit for time served.2 Miller was also required to register as a sex offender, and

to pay $150 to the Victims of Violent Crime Compensation Fund.




      1
         An additional count was dismissed by the government at the close of its
case-in-chief.
      2
          Miller had apparently been incarcerated in January of 2013, and was
released from pretrial detention on August 13, 2013, at the close of trial, and so his
time served became a factor in sentencing.
                                          3

                       I.   Exclusion of Expert Testimony



      Miller argues that the trial court erred in refusing to let his expert witness

testify concerning the likelihood of penetration injuries, in violation of the Sixth

Amendment. He also alleges, albeit in passing, that “[t]he government was

given sufficient notice . . . that the defense intended to call Dr. Rotolo as an

expert witness.” He fails to establish that the trial court erred either in its

application of Super. Ct. Crim. R. 16, or in its interpretation of the scope of his

Sixth Amendment right to present witnesses in his defense.



      A. Standard of Review



      We review the trial court’s interpretation of Rule 16 de novo because “a

party’s compliance with . . . Rule 16 disclosure requirements is a question of

law.” Murphy-Bey v. United States, 982 A.2d 682, 688, 689 (D.C. 2009). If a

defendant violates Rule 16, the trial court has discretion to impose sanctions,

including exclusion of evidence not disclosed, and we review the decision to do

so for abuse of discretion. Id. at 689.
                                        4

      B. Waiver



      The prosecution takes the position that “Appellant does not appear to

contend that his expert notice complied with the specific requirements of Rule

16,” and thus any such argument should be waived, citing Walker v. United

States, 982 A.2d 723, 742 n.36 (D.C. 2009) (“Issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are

deemed waived.”) (citation omitted). Miller does make a limited argument on

this point. After an extended discussion of the notice that his trial counsel

provided the prosecution, he claims that “[t]he government was given sufficient

notice prior to the July 2013 trial that the defense intended to call Dr. Rotolo as

an expert witness on behalf of Miller.” That is the entirety of Miller’s argument

on Rule 16, if indeed he intended to make that argument–he does not cite to

Rule 16 itself, and could be making the “sufficient notice” point as part of his

Sixth Amendment argument.



      But even if Miller has waived the question of compliance with Rule 16,

we must still consider whether excluding the testimony of his expert witness

comports with the Sixth Amendment.          And even if he is deemed to have

adequately raised the point, for the reasons that follow, his Rule 16 argument
                                        5

fails on the merits.    Accordingly, although Miller may have waived any

argument that he complied with Rule 16 in this case, we need not address the

question of waiver in deciding this case.



      C. Rule 16



      Rule 16 requires defendants to “disclose to the government a written

summary of testimony of any expert witness that the defendant intends to use as

evidence at trial,” upon request, if the defendant had requested that the

government made the same disclosure.         D.C. Super. Ct. R. Crim. P. 16

(b)(1)(C). Once the disclosure obligation is triggered, the defendant’s summary

of the expert testimony must “describe the witnesses’ opinions, the bases and

reasons for those opinions, and the witnesses’ qualifications.” Id. Miller made

such a request, and the government made a reciprocal request, thus triggering

his obligation under 16 (b)(1)(C).



      We have held that where the expert disclosure constitutes “a list of topics

that fails to summarize the expert’s expected testimony, [and] fails to describe

the expert’s actual opinions, . . . [it] cannot be considered an adequate

disclosure.” Murphy-Bey v. United States, 982 A.2d 682, 688 (D.C. 2009).
                                          6

Here, Miller’s letter describing Dr. Suzanne Rotolo’s expected testimony stated,

in most pertinent part, that “I expect that Dr. Rotolo will testify that if a child of

the complainant’s age reported forced penetration in the manner that the

complainant has previously described, this [activity, if it occurred] would

increase the likelihood of penetration injury.”3          This summary does not

communicate the substance of what Dr. Rotolo’s opinion would be concerning

the actual likelihood of penetration injury in P.G.’s case, where she reported her

assault two years after it allegedly occurred. This letter thus does not give the

government sufficient notice of Dr. Rotolo’s actual opinions, such that they

could prepare for her testimony.



      We have held this type of notice insufficiently specific before. Murphy-

Bey v. United States, 982 A.2d 682, 685 (D.C. 2009), was an aggravated assault

case in which the defendant claimed self-defense against an allegedly violent

victim under the influence of crack cocaine and marijuana. Murphy-Bey’s defense

counsel told the government in a pre-trial letter that “Dr. Norris may testify either

      3
          Miller relies upon a notice letter, included as Appendix 5 to his brief,
dated May 21, 2013. However, the government claims that this letter is not a part
of the appellate record, and that the only letter notifying the government of Dr.
Rotolo’s proposed testimony is dated July 15, 2013. This July 2013 letter is
apparently the only letter that defense counsel remembered when arguing the point
with the judge on July 22nd. In any case, the text of the two letters is identical, and
so regardless of whether the government received notice one week or one month
before trial, the substance of the notice they received is inadequate.
                                          7

by providing information or by rendering an opinion about . . . the effects of Crack

Cocaine and psychiatric drugs [and] marijuana on the human mind, the

combination of their use, the length of time of their effects[,] as well as the long

and short-term effects of their use.”     Id. at 687 (internal quotations omitted)

(brackets in original). When the government complained that the letter was not

sufficiently specific, the defense stated that “Dr. Norris will be able to offer an

opinion that while under the influence of the illegal drug crack cocaine and

coupled with the psychotic schizophrenic drugs, a person would be frantic,

nonsensical, agitated, overly hyper, and in a state of mania.” We stated that “[t]his

purported disclosure comes closer to summarizing Dr. Norris’s expected testimony

and her opinions, but it clearly still does not provide the bases and reasons for

those opinions, nor any details of them, and therefore hindered the government’s

ability to prepare for trial or cross-examine of Dr. Norris.” Murphy-Bey, 982 A.2d

at 689 (emphasis added). Our conclusion was that “[t]herefore, appellant did not

comply with Rule 16 and the trial court did not err in so finding.”



      In concluding as we did in Murphy-Bey, we drew upon our similar decision

in Ferguson v. United States, 866 A.2d 54, 57 (D.C. 2005), in which Ferguson’s

self-defense claim came into conflict with evidence that the victim had been shot in

the back. In Ferguson, the defense’s letter to the government “identifying Dr.

Anderson as [the government’s] medical expert [] point[ed] out that he would
                                          8

‘testify regarding (1) the gunshot wounds suffered by Mr. White [the victim] on

[the date of the shooting], (2) the severity of the physical injuries which resulted

from those gunshot wounds, and (3) the medical care provided to Mr. White

following the shooting.” Murphy-Bey v. United States, 982 A.2d 682, 688 (D.C.

2009) (internal quotation marks omitted) (brackets in original) (citing Ferguson,

866 A.2d at 64). We held that the letter “could not be interpreted, even remotely,

as a written summary of the testimony the doctor would give at trial. Nor did that

letter describe [Dr. Anderson’s] opinions . . . as Rule 16(a)(1)(E) requires.”

Ferguson, 866 A.2d at 64 (internal quotation marks omitted) (brackets in original).



      Although the letter submitted on Miller’s behalf can be generously read as

stating that Dr. Rotolo would opine that anal penetration of the type that J.G.

reported suffering would increase the likelihood of penetration injury symptoms,

this notice, like the notice in Murphy-Bey, does not provide the government with

the necessary details about how likely penetration injury would be, two years after

the trauma, and why Dr. Rotolo might advance such an opinion. This inadequacy

in Miller’s notice – allegedly given for the first time one week before the fifth trial

date – thus “hindered the government’s ability to prepare for trial or cross-

examin[ation].” Murphy-Bey, 982 A.2d at 689. “Therefore, appellant did not

comply with Rule 16.” Id.
                                          9

      “A trial court may impose sanctions for violating Rule 16,” Murphy-Bey,

982 A.2d at 689, including “prohibit[ting] the party from introducing evidence not

disclosed.” D.C. Super. Ct. R. Crim. P. 16 (d)(2). We review the trial court’s

decision in this matter for abuse of discretion. Murphy-Bey, 982 A.2d at 689.

“Where there has been a failure to make proper disclosure under Rule 16, among

the factors which the trial court must consider and weigh are: (1) the reasons for

the nondisclosure; (2) the impact of the nondisclosure on the trial of the particular

case; and (3) the impact of a particular sanction on the proper administration of

justice in general.” Ferguson, 866 A.2d at 59 (internal quotation marks omitted).



      Here, (1) the defendant proffered no good reason for being unspecific in

predicting Dr. Rotolo’s testimony, permitting a reasonable inference that the

testimony would be of no significant import. (2) Although defense counsel offered

to push the trial back to another date, or to delay the defense case in order to allow

adequate time for the prosecution to prepare, the prosecution had already faced

numerous delays in the trial, forcing them to have the complainant – a young

alleged sex assault victim – come to the courthouse many times, and at least one of

these delays had been explicitly charged to the defense. Finally, (3) the exclusion

of Dr. Rotolo’s testimony has a small, though negative impact on the

administration of justice. The evidence against Miller is strong, and from what we

can glean from the defense notice letter, Dr. Rotolo’s testimony about whether a
                                        10

complainant in J.G.’s situation would have sustained anal penetration injuries

visible two years later likely would not have had a meaningful impact on the

outcome of the trial.4 We conclude that the trial court did not abuse its discretion

in excluding her testimony. See Johnson v. United States, 398 A.2d 354, 361-67

(D.C. 1979).



      D. The Sixth Amendment Right to Present a Defense



      Miller also claims that the “trial court’s erroneous exclusion of defense

evidence constitutes a violation of the defendant’s Sixth Amendment rights.”

“Under the Sixth Amendment, a criminal defendant is guaranteed the right to

offer testimony of witnesses in his favor.” Feaster v. United States, 631 A.2d

400, 405 (D.C. 1993); see also Washington v. Texas, 388 U.S. 14, 23 (1967)

(“The Framers of the Constitution did not intend [in the Sixth Amendment] to

commit the futile act of giving to a defendant the right to secure the attendance

of witnesses whose testimony he had no right to use.”) “[T]he Constitution thus

prohibits the exclusion of defense evidence under rules that serve no legitimate

purpose or that are disproportionate to the ends that they are asserted to
      4
         Although the trial court appears to have based its ruling primarily on the
timing of the Rule 16 response, we need not decide whether that alone would
suffice to sustain the ruling. Here, the content of the Rule 16 disclosure is
inadequate as a matter of law. Thus, we need not consider remanding on that
point. Johnson v. United States, 398 A.2d 354, 361-67 (D.C. 1979).
                                          11

promote.”    Holmes v. South Carolina, 547 U.S. 319, 325-26 (2006) (the

constitutional right to “a meaningful opportunity to present a complete defense . . .

is abridged by evidence rules that . . . are arbitrary or disproportionate to the

purposes they are designed to serve.”).



      Rule 16 serves a “legitimate purpose,” and the exclusion of defense

evidence in this case was not “disproportionate to the ends that [Rule 16 is]

asserted to promote.” Id. Certainly the absence of visible injury, if such would

exist that long afterwards if she in fact suffered the trauma she described, would

have helped to establish Miller’s innocence. However, due to the nature of the

notice given, we cannot discern what Dr. Rotolo would have testified, and

whether that evidence would have been of meaningful significance.



      The discovery and trial preparation process in Miller’s case had dragged

on and on. J.G. had been forced to come to court on multiple occasions, and

then been sent home each time without testifying. Not only was the notice

deficient in its content, its timing also posed an impermissible burden on the

government. Finally, defense counsel all but conceded in closing arguments

that if J.G. had been raped as she alleged, two years earlier, forensic

investigation would not have been able to verify her story. In light of these
                                          12

facts, we cannot say that enforcing Rule 16 to bar Dr. Rotolo’s testimony was

“arbitrary,” or “disproportionate to the ends that [Rule 16 is] asserted to

promote.” Holmes, 547 U.S. at 326. Accordingly, the trial court’s decision to

exclude Dr. Rotolo’s testimony did not violate the Sixth Amendment. See

Chapman v. California, 386 U.S. 18 (1967).



                     II.   Denial of the Motion for Acquittal



      Miller’s remaining claim is that the evidence is insufficient to support his

convictions, and thus that the trial court erred in denying his motion for judgment

of acquittal.5 In reviewing sufficiency challenges, we view the evidence “in the

light most favorable to the government, giving full play to the right of the [fact-

finder] to determine credibility, weigh the evidence, and draw justifiable inferences

of fact.” In re R.S., 6 A.3d 854, 859-60 (D.C. 2010) (brackets in original). “The

government need not negate every possible hypothesis of innocence.” Cannon v.

United States, 838 A.2d 293, 297 (D.C. 2003). “It is only where the government

has produced no evidence from which a reasonable mind might fairly infer guilt


      5
          While “[w]e review a trial court’s denial of a motion for judgment of
acquittal de novo,” the underlying determination is whether the evidence was
sufficient to sustain the verdict, and thus our standard of review is identical to that
applied to a direct sufficiency challenge. Johnson v. United States, 756 A.2d 458,
461 (D.C. 2000); see also Curry v. United States, 520 A.2d 255, 262-63 (D.C.
1987).
                                       13

beyond a reasonable doubt that this court can reverse a conviction.” Gonzalez v.

United States, 859 A.2d 1065, 1067 (D.C. 2004).



      Here, J.G.’s credible testimony of Miller’s assaultive behavior, combined

with the corroboration of her mother’s testimony, and the incriminating statements

that J.G.’s mother heard Miller make, constitute sufficient evidence from which a

reasonable factfinder could infer beyond a reasonable doubt that Miller had three

times committed misdemeanor sexual abuse of a child. See D.C. Code § 22-

3010.01 (2001). Accordingly, the trial court properly denied Miller’s motion for

judgment of acquittal.



                                            Affirmed.
