## District of Columbia Court of Appeals
No. 14
- CO
- 0955 SINATRA V. SUTTON, Appellant,

v. CMD
- 13532
- 13

UNITED STATES, Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division
BEFORE: F ISHER and T HOMPSON , Associate Judges; and R UIZ , Senior Judge

. J U D G M E N T

This case was submitted to the court on the transcript of record, the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the o pinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment on appeal is affirmed.
For the Court:

Dated: June 23, 2016. Opinion by Senior Judge Vanessa Ruiz. JUN 23 2016Notice: 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

- CO

- 0 955
S INATRA V. S UTTON , A PPELLANT ,

v. U NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CMD

- 13532

- 13 ) (Hon. Harold Cushenberry, Jr. , Trial Judge) ( Submitted June 16 , 2015 Decided June 23, 2016)
Richard S. Stolker was on the brief for appellant.
Ronald C. Machen Jr ., United States Attorney at the time the brief was filed, and Elizabeth Trosman , Nicholas G. Miranda and Edward G. Burley , Assistant United States Attorneys, were on the brief for appellee.
Before F ISHER and T HOMPSON , Associate Judge s , and R UIZ , Senior Judge

. R UIZ , Senior Judge : A ppellant , Sinatra V. Sutton , was convicted , following a bench trial, of one count of misdemeanor sexual abuse of a child and one count of attempted misdemeanor sexual abuse. On appeal, he argues that the trial court erred by permitting the government to amend its superseding information on the day of trial, and by denying his motions for judgment of acquittal and new trial

. 6/23 /162

He also contends that his consecutive sentences for the two convictions violate his rights under the D ouble J eopardy C lause of the Fifth Amendment

. Although we concur with appellant that the trial cour t erred in permitting the amendment to the information, we conclude that the error does not warrant reversal. We also conclude that the evidence was sufficient to support the convictions and that they do not merge. Therefore, w e affirm.

I.

Appellant’ s convictions arise from a complaint made by fifteen

- year - old V.A. During the summer of 2013, V.A. was employed as part of the Summer Youth Development P rogram at the Manor Village Apartment Complex in Southeast Washington, D.C. On August 2, 2013, V.A. w as assigned to assist appellant with a cleaning project at a shopping center.

At approximately 10:00 a.m., 1 appellant and V.A. took a break from their

1 Appellant generally denied V.A.’s accusations and presented an alibi defense

. H is friend Joseph McCray testified that appellant visited him at his home between 10:30 and 10:45 a.m. and stayed for approximately forty

- five minutes. Mr. McCray was impeached with statements he made during a previous interview , in which he told a government investigator that “he was pretty positive that ( continued

. . .)3

work a nd went to a nearby storage site. Appellant sat in a chair, took out his cell phone, and began watching a pornographic film. Appellant tried to show V.A. the film by putting his phone close to V.A.’s face.

Appellant then suggested that he and V.A. move to a room at the back of the storage site, and the two went to the room and sat near each other on milk crates. Appellant continued to watch pornography on his cell phone. At one point, appellant asked V.A. to hold the phone while he left the room; when he returned, appellant sat down next to V.A., took back the phone, unzipped his pants, a nd began to masturbate.

After some time, appellant grabbed V.A.’s left wrist and moved V.A.’s left hand toward his penis. V.A.’s hand came within one inch of appellant’s penis before V.A. was able to pull his hand back.

Appellant then stood up, grabbed V.A. by the collar of his jacket, and forced V.A. to stand up and turn around, with his back facing appellant. Appellant put

________________________________ (.

. . continued ) [appellant] was not there before 11:00” a.m. and “couldn’t have stayed more than 45 minutes.”4

both of his arms around V.A. in a “ hugging position

. ” V.A. testified that he felt something push ing into his back, approximately four inches above his buttocks, which he assumed was appellant’s penis. V.A. managed to break the embrace and ran away, encountered two fellow employees, and told them what happened. V.A. also reported the incident to h is manager, who took V.A. to the Manor Village Apartments office to make a report.

On August 3, 2013, a ppellant was charged by information with two counts
of misdemeanor se xual abuse (MSA) of a child, D.C. Code § 22

- 3010.01, for

“ touching his own penis in front of [ V.A. ]” (Count 1) and touching V.A. “close to the buttocks” (Count 2)

. A superseding information was filed September 9, 2013 , charg ing appellant with a third count , attempted MSA of a child, for attempting to
touch V.A. “ outside h is clot h ing, close to the genitalia, anus, breast or
buttocks

. . .” 2 Before trial began o n the morning of January 30, 2014, the trial court granted the government ’s oral mo tion to amend C ount 3 , instead charging appellant with attempted MSA, D.C. Code § 22

- 3006, predicated on his attempt

2 The G overnment’s “Notic e of Intent to File Superseding Information,” filed the s ame day , specifies that the new coun t is based on appellant’s “attempt to grab the minor child’s penis” when appellant “wrapped his arms around him.”5

“ to get [ V.A. ] to touch [ appellant’s ] penis .” 3 The trial court granted appellant’s motion for judgment of acqui ttal of C ount 2 (touching V.A. from behind with his penis) because V.A. only assumed

— without a ctually knowing

— that appellant
had touched V.A. ’s back with his penis. After the defense presented a n alibi witness and appellant took the stand in his defense, t he trial court found appellant guilty of the two remaining counts of the information : Count 1 for MSA of a child; and Count 3 for attempted MSA. Appellant was sentenced to incarceration for 120 days with respect to each conviction, to be served consecutively, and to 10

- years mandatory registration as a sex offender. Appellant filed a time ly notice of appeal.

II.

A. Sufficiency of the Evidence

Appellant contends that the evidence presented at trial is insufficient to support his convictions for MSA of a child and attempted MSA. Appellant argues
that his convictions rest solely on V. A.’s testimony and statements he made at the

3 The actual document with the a mended Count 3 was presented after the government presented its cas e, at which time appellant was arraigned on the amended third court. Appellant pleaded not guilty and asserted “all constitutional rights.”6

time he reported the incident that appellant claims were unreliable because they

were motivated by V.A.’s desire to find a way out of his job

. He points out that the government presented no other eyewitness testimony or expert testimony from
medical doctors , psychologi sts or psych ia trists

.

On appeal, we review the evidence in the light most favorable to supporting
a conviction and according to the principl e that it is the trier of fact’s prerogative to assess the credibility of witnesses and draw reasonable inferences from the
evidence. Long v. United States , 940 A.2d 87, 99 (D.C. 2007) . In a bench trial,

t he appellate court will not reverse a conviction unless “the trial court’s factual findings were ‘plainly wrong’ or ‘without evidence to support [them].’” Id

. (alteration in original) (quoting D.C. Code § 17

- 305 (a) (2001)). Reversal for insufficiency of the evidence is warranted only if there i s “no e vidence upon which a reasonable [ fact

- finder ] could find guilt beyond a reasonable doubt.” Olafisoye
v. United States , 857 A.2d 1078, 1086 (D.C. 2004) (citation and internal quotation marks omitted).

T he testimony of a single identifying witness who is credible is sufficient to support a conviction , see Mattete v. United States , 902 A.2d 113, 115

- 16 (D.C. 2006) , as corroboration is no longer necessary in sex offense cases, Gary v. United7

States , 499 A.2d 815, 834 (D.C. 1985) (e n banc) . Therefor e, V.A.’s testimony that appellant both touched his penis in front of V.A. and tried to force V.A. to touch appellant’s penis, if credited, is sufficient to support appellant’s convictions. The trial court credited V.A.’s testimony, and we defer to that e valuation of V.A.’s credibility on appeal. See Jenkins v. United States , 902 A.2d 79, 87 n.12 (D.C. 2006) (noting that the trial court’s evaluation of a witness’s credibility is “virtually unreviewable”). We , therefore , conclude that the evidence present ed at trial
suffic es to support appellant’s convictions for MSA of a child and attempted MSA.

B. Amendment of Information

Appellant also contends that the trial court erred by permitting the government to amend the information on the day of trial. He argues that the government did not seek merely to amend the information as the government

asserts

— to change count three from attempted MSA of a child to attempted MSA
based on the same facts

— but added a new charge (attempted MSA) “tailored to
fit the evidence [ , ] ” which constituted a constructive amendment to the information that prejudiced appellant.8

A trial court “ may permit an information to be amended at any time before
verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Super. Ct. R. Crim. P. 7 (e) ; see Dyson v. United States , 485 A.2d 194, 197 (D.C. 1984) (affirming trial court’s decision to
allow amendment to information where no additional or different offense was charged and no prejudice to defense could result)

. We review a trial court’s decision to permit an am endment to an information under Rule 7(e) for abuse of
discretion. District of Columbia v. Van Nuys , 282 A.2d 550, 55 1 (D.C. 1971). 4

The first question that must be asked in considering a request to amend an information pursuant to Rule 7(e) is whether the proposed amendment changes the original charge or adds a charge. Here, the misconduct the United States sought to capture with the amendment to Count 3 was appellant’s attempt to place V .A.’s
hand on appellant’s exposed penis, and not appellant’s attempt to touch V.A.’s

4 We distinguish an amendment to an information, which is subject to the requirements of Superior Court Rule of Criminal Procedure 7(e), from an amendment to and variance from an indictment, the right to which is safeguarded by the Fifth Amendment of the Constitution. See Dyson , 485 A.2d at 497 (noting that “the restrictive rules about the amendment of an indictmen t do not apply to an information, which ‘may be amended in either form or substance”’) (quoting 1C W RIGHT F EDERAL P RACTICE AND P ROCEDURE : C RIMINAL 2 D § 128 at 430 (1982))); c f

. Carter v. United States , 826 A.2d 300, 303 (D.C. 2003) (noting that amendment of indictment infringes on a defendant’s constitutional right and reversal per se is mandated without showing of prejudice).9

penis , as was indicated by the original language of Count 3

. See note 2 supra. The superseding information that added Coun t 3 charged attempted MSA of a minor
under D.C. Code § 22

- 3010.01 (a) (2012 Repl.) , which provides that the offense occurs when someone “being 18 years of age or older and more than 4 years older than a child . . . engages in sexually suggestive conduct with that child. . . .”

“ S exually suggestive conduct” is defined as: “ (1) [t]ouching a child or minor inside his or her clothing; (2) [t]ouching a child or minor inside or outside his or her clothing close to the genita lia; (3) [p]lacing one’s tongue in the mouth of the child or minor; or (4) [t]ouching one’s own genitalia or that of a third person.” Id

. at (b). By contrast , the information amended on the day of trial charged attempted
MSA under D.C. Code § 22

- 3006 (2012 Repl.) , which provides that MSA occurs when one “engages in a sexual act or sexual contact with another person
and

. . . should have knowledge or reason to know that the act was committed
without that o ther person’s permission.” D.C. Code § 22

- 3001 (9) defines “ sexual

contact ” as “the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

In seeking to amend the superseding information, the prosecutor explained10

that although the amend ment to Count 3 was ba s ed on appellan t’s actions with the same complainant and “the same basic facts , ” he was unsure whether appellant’s attempt to have V.A. touch appellant’s penis was adequately captured by the definition of “sexually suggestive conduct” employed in D.C. Code § 22

- 3010.01 ( b) for MSA of a minor. Appellant objected to the amendment, arguing that the
amended information charging MSA was “a completely different offense , and doesn’t go with this case ” because the complainant was a child. The trial court
overruled the defense objection and allowed the United States to proceed on the
amended information , reasoning that under Rule 7(e) amendment was permit ted any time before the verdict such that the government could “pret t y freely amend” so long as it did not result in prejudic e to the defendant’s substantial rights at trial.

It is clear that the amended Cou n t 3 charged a different statutory offense, attempted MSA , D.C. Code § 22

- 3006, instead of attempted MSA of a child , D.C. Code § 22

- 3010.01, and that the conduct it specif ied also was different from what had been described in the two previous information s

— appellant’s attempt to have
V.A. touch him , rather than vice versa. The trial court did not recognize that th e change to a different offense meant that amendment was foreclosed by Rule 7(e), which requires both that there be no cha n ge or added charge and that the amendment not result in prejudice to the defendant’s substantial rights. Instead,11

the trial court considered only whether a ppellant would be prejudiced by the amendment and concluded that no substantial prejudice would result. Because the trial court did not apply the two separate elements of Rule 7(e), its consideration of the government’s motion to amend was inherently flaw ed.

The trial court’s error in permitt ing the cha n ge to attempted MSA, however, does not require that appellant’s conviction for that offense be reversed

. Cf. Jones
v. United States , 124 A.3d 127, 132 n.10 (D.C. 2015) (holding on plain error
review tha t amendment of charged offense from threats to attempted threats does not constitute reversible error under Rule 7(e) because amending information to charge a lesser

- included offense is a “technical violation of Rule 7(e) but harmless”) (citing Dyson , 485 A.2d at 197, and quoting Gov’t of the Canal Zone v. Burjan , 596 F.2d 690, 692

- 93 (5th Cir. 1979)). This court’s appellate jurisdiction requires that we “give judgment after an e x amination of the record without regard
to error or defects which do not affec t the substantial rights of the parties.” D.C. Code § 11

- 721 (e) (2012 Repl. ). S everal fact or s lead us to conclude that no prejudice to appellant’s substantial rights resulted from th e amendment that would

warrant reversal of appellant’s conviction of attempted MSA

. First, w e perceive no prejudice to appellant from the change of the offense to attempted MSA. Even if the government’s burden was reduced in that it did not need to prove V.A. was a12

child for MSA , tha t fact appears to have been undisputed, and the government retained the burden with respect to Count 1, of which appellant was convicted. The specific conduct charged in the amendment , though slightly different from
what had been described in Count 3 of t he superseding information , involved the same incident, with the same complaining witness, at the same time and place.

A ppellant claims he was prejudiced because the amended Count 3 was not the charge on which he was initially arraigned and it is the pu rpose of arraignment to advise a defendant of the charges against him. “The purposes of a criminal information are to notify the defendant of the charges he must meet at trial and to allow him to avoid dangers of double jeopardy.” Clemons v. United State s , 400 A.2d 1048, 1051 (D.C. 1979)

. T he record does not support , however, that appellant was confused by or uncertain about the amend ed charge . The amended Count 3 was clear as to the offense charged and the conduct on which it was based. Appellant does not claim otherwise. Appellant was separately arraigned on that charge and he entered a plea of not guilty. Nor does the record support that appellant was surprised ; defense counsel did not request a continuance when the trial court granted the governme nt’s motion to amend the information

. See
Williams v. United States , 756 A.2d 380, 388

- 89 (D.C. 2015) (failure to move for continuance defeats claim of surprise at trial even in light of variance from13

indictment). Nor does the record support that t he ame ndment impede d appellant’s trial strategy

. A ppellant’s defense at trial was that V.A. fabricated the allegation
because he wanted to leave the summer job and that appellant had an alibi that showed he was not present where and when V.A. said the sexual mi sconduct
occurred. Neither of these defense theories was impacted by the amendment to Count 3

. Thus, w e conclude that there was no prejudice to appellant’s substantial rights in the trial that was had.

Moreover, even if we take into account how the trial would have proceeded without the amendment, we perceive no prejudice to appellant’s substantial rights. Jeop ardy had not yet attached in appellant’s case because the motion to amend Count 3 was made, and granted, before the trial judge, sitting without a jury,
received evidence. Lyles v. United States , 920 A.2d 446, 447 n.2 (D.C. 2007) ( stating the general rule that jeopardy attaches in non

- jury trial “ when the first
witness is sworn and begins testif ying” ) ( quoti ng District of Columbia v. Whitley , 640 A.2d 710, 712 (D.C. 1994 )). As such, if the trial court had denied the motion
to amend Count 3

— as required by Rule 7 (e)

— the government could still have voluntarily dismissed th e charges and filed a new informat ion. See United States v.
Foster , 226 A.2d 164, 166 (D.C. 1967) ( stating that trial on new information following entry of nolle prosequi not prohibited by double jeopardy). Further still,14

even if the trial court had denied the government’s motion to amen d Count 3 and
convicted him of the unamended count of MSA of a child, and we reversed that conviction on appeal for the reason that concerned the prosecutor (i.e., that the conduct did not come within the definition of “sexually suggestive conduct” )

— an i ssue we do not resolve

— the government could still have charged appellant with a new information alleging attempt ed MSA, as that constitutes a different offense than attempted MSA of a child. See Abney v. United States , 431 U.S. 651, 661 (1977) (“The Double Jeopardy Clause provides ‘a guarantee against being twice put to trial for the same offense.’”) (emphasis in original). As we discuss below, MSA and attempted MSA of a child are not the same offense for double jeopardy
purposes. 5

F inally, the amendment from attempted MSA of a minor to attempted MSA did not expose appellant to any greater statutory penalties , c ompare D.C. Code § 22

- 3010.01(a) (up to 180 days and $1000) with D.C. Code § 22

- 3006 (same), or
to different registration requiremen ts as a sex offender, see D.C. Code § 22

- 4001

5 The double jeopardy bar would preclude retrial of MSA of a child if the conviction were reversed for insufficiency of the evidence, see Burks v. United States , 437 U.S. 1, 18 (1978), but the concept of “continuing jeopardy” would permit retrial if the re versal were for some other reason, see Evans v. United States , 987 A.2d 1138, 1141 (D.C. 2010) (quoting Price v. Georgia , 398 U.S. 323, 326

- 27 (1970)).15

(8) (A) (defining “registration offense” as including an offense under Chapter 30)
& (D) (including “ any offense .

. . that involved sexual contact with a minor”).

We , therefore , conclude, after “examination of the record,” that the trial court’s error in permitting the government to amend the information did not affect appellant’s substantial rights. D.C. Code § 11

- 721 (e).

C. Merger

Finally, appellant argues that the trial court erred by imposing consecutive sentences for MSA of a child and attempted MSA because the convictions arose from a single continuous act and , therefore , merge. Appellant argues that imposition of consecutive sentences violate s his double jeopardy rig hts because the government’s evidence “failed to indicate that any time passed between” the events underlying the convictions, i.e. appellant’s masturbating and attempting to force V.A. to touch his penis.

The court reviews de novo whether two convict ions merge for double jeopardy purposes. Kaliku v. United States , 994 A.2d 765, 787 (D.C. 2010). Although the Double Jeopardy Clause prohibits multiple punishments for the same16

offense, “[t]here is no double jeopardy bar to separate and cumulative punish ments for separate criminal acts, even if those separate acts do happen to violate the same criminal statute.” Brown v. United States , 795 A.2d 56, 63 (D.C. 2002) (citation and internal quotation marks omitted). Offenses do not merge if they “arise out of separate acts or transactions.” Reeves v. United States , 902 A.2d 88, 89 (D.C. 2006). Consequently, “[i]f at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive intentions make him subject to cumulative punishment.” Spain v. United States , 665 A.2d 658, 660 (D .C. 1995).

Here, appellant was convicted of MSA of a child and attempted MSA.
T hese are different offenses for double jeopardy purposes; MSA of a child has age requirement s for the victim and perpetrator , while attempted MSA has a knowledge

- of

- lack

- of

- co nsent requirement. See Blockburger v. United States , 284 U.S. 299, 304 (1932) (noting that two offenses are different, for double jeopardy purposes, if “each requires proof of a fact which the other does not”). Moreover, the conduct underlying each convi ction represents a discrete criminal act for which appellant can properly be punished separately. Appellant’s MSA of a child
conviction was premised on appellant masturbating in front of V.A., while his attempted MSA conviction was premised on his attempt to force V.A. to touch17

appellant’s penis. Appellant not only reached a “fork in the road” between these two actions, at which he could have chosen to not try to force V.A. to touch his penis, but the conduct was markedly different as well; one conviction involved appellant touching himself, while the other was based on appellant’s attempt to force V.A. to touch him. We are satisfied that appellant was convicted of two different statutory offenses and that the criminal conduct on which each conviction

was predicated represented a discrete act for which appellant could be punished separately

.

III.

We conclude that the evidence presented at trial is sufficient to support appellant’s convictions for MSA of a child and attempted MSA and that the
convictio ns do not merge. We also conclude that the trial court ’s error in allowing amendment of the information does not warrant reversal of appellant’s convictions. Accordingly, the judgment is Affirmed.