Dodson v. United States

288 A.3d 1168

Thomas DODSON, Jr., Appellant,

v.UNITED STATES, Appellee.

No. 16-CF-238

District of Columbia Court of Appeals.

Argued December 13, 2017

Decided February 9, 2023

William Collins, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for appellant.

Michael E. McGovern, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Elana Suttenberg, and Ryan Creighton, Assistant United States Attorneys, were on the brief, for appellee.

Before Beckwith, Associate Judge, and Washington and Fisher,^* Senior Judges.

Dissenting opinion by Associate Judge Beckwith at page 1177.

Fisher, Senior Judge:

At his trial on charges of second-degree child sexual abuse and third-degree sexual abuse (both with aggravating circumstances), appellant Thomas Dodson Jr. argued that nine-year-old H.B.’s allegations were not credible because they were influenced by her fear of her hot-tempered father, John Bush. Appellant contends on appeal that trial court rulings limiting cross-examination of the father and excluding certain extrinsic evidence of his past behavior violated appellant's Sixth Amendment rights to confront his accusers and to present a complete defense. We reject appellant's arguments and affirm.

I. The Factual and Procedural Background

A. The Evidence

Appellant Dodson lived in a house with members of his extended family, including his niece Virginia Dodson and his nephew David Dodson. Virginia and her boyfriend, John Bush, slept in a bedroom on the second floor. Many other relatives, including their nine-year-old daughter, H.B., slept elsewhere within the home. The adult occupants of the house had a rule that nobody was supposed to be in anyone else's room "without them being there." Appellant Dodson, who is H.B.’s great uncle, slept on a couch in the living room. At trial, family members referred to appellant by his nickname, "Jupe."

H.B. testified that on July 6, 2015, she was in her parents’ bedroom watching "Criminal Minds" — a television show she watched regularly. (On cross-examination, H.B. acknowledged that the show deals with "people who do bad things," including "[b]ad sexual stuff ... [t]hings like rape.") H.B. said that she went downstairs to get a glass of water and saw appellant on the couch. Her mother, her father, and her uncle Dave were on the front porch. After she returned to the bedroom, appellant came into the room, "pushed [her] on her mother[’s] bed," and "laid on top of [her]." According to H.B., appellant moved "up and down" on her with the front of his body; she circled her "front private area" on a demonstrative drawing when asked where his body made contact with hers.

David Dodson testified that he and H.B.’s father, John Bush, were sitting on the front porch that afternoon drinking beer. Accompanied by his large pit bull, David went into the house to get some tools from his upstairs room. David explained that "[w]hen [the dog] run[s] through the house, you hear it shaking." "Soon as I came up the stairs," David said, "Jupe came running out the back room" and went "[r]ight to the bathroom." Recalling the rule against being in other people's rooms, David asked appellant "what he was doing back there." Appellant responded that he had been "playing with" H.B. David told H.B.’s father what he had seen and what appellant had said.

David denied that he told detectives that appellant had said he was "messing with" H.B. rather than "playing with" her, but also testified that he did not see any difference between the two terms. Mr. Bush testified that David told him Jupe had been "in [Mr. Bush's] room messing with [H.B.]."

After talking with David, Mr. Bush went upstairs and asked H.B. "why was Uncle Jupe in the room?" He told H.B. she was not in trouble, but she at first just stared at him and acted like "she ain't want to say nothing, but you know she was — something she wanted to say." She looked a "little bit" scared, and was "fidgeting with her fingers." Mr. Bush asked again, and H.B. said that Uncle Jupe was "on top of me and wouldn't let me up."

On cross-examination defense counsel pressed Mr. Bush about the phrasing of his questions to his daughter. Mr. Bush denied that he had asked "how Jupe had messed with her. ... I never asked her where Jupe touched her. I asked her why Jupe was in the room." Mr. Bush denied that he raised his voice when talking with H.B., but agreed that he had to ask her a second time and that she "had a look on her face like she thought she was going to get in trouble." Mr. Bush acknowledged that in July of 2015 he would yell at H.B. when she did "something wrong," but denied counsel's assertion that "[t]he main way that you interact with your daughter is through screaming [or] yelling."

Mr. Bush testified that he "was not mad" when he began questioning H.B. because he "didn't have a reason to be mad at that time, at first." However, when H.B. told him what had happened, Mr. Bush was "[b]eyond upset" and told Mr. Dodson he "was going to fuck him up." Mr. Dodson "went out the back door and [Mr. Bush] went out the back door behind him chasing him out the back door." Mr. Dodson was saying, "let's talk, let's talk," but Mr. Bush would not listen because his "daughter [was] not going to tell me something that's a lie."

H.B. left the house with her mother. H.B. testified that they saw Mr. Dodson down the street, and that he told H.B. to "tell your mom what had happened." The mother did not testify.

Both appellant Dodson and someone else called 911, and two detectives arrived on the scene and interviewed H.B. The following day, H.B. participated in a forensic interview at the Child Advocacy Center during which she said that Mr. Dodson "pushed her down onto a bed" and "humped her privates."

Appellant called Dr. Bradley McAuliff, a professor of psychology who testified as an expert on "child suggestibility and interviewing." According to Dr. McAuliff, the types of questions an adult asks can "dramatically influence" a child's relaying of information.¹ Dr. McAuliff also explained "source authority," which is the concept that a child may tell an adult incorrect or untruthful information primarily because a child is predisposed to "defer" to the perceived authority of that adult. In response to a hypothetical question about a father with a history of physical violence toward a child, Dr. McAuliff testified that "the history of physical violence increases [the father's] authority in a way that relates to the child just being scared of that individual and being more willing to acquiesce or go along with or agree with information there. ... That can enhance the child's suggestibility ...." Dr. McAuliff had not interviewed H.B. or any of the other witnesses in this case.

B. The Defense Theory

The defense theory was that nine-year-old H.B.’s testimony was not credible. In his opening statement, appellant's counsel asserted that H.B.’s father "went into the room where [H.B.] was, slammed the door behind him and confronted her. And he was angry. And you will hear that she was scared. He began confronting her, questioning her. And when he asked her whether my client, her uncle, had touched her, she acquiesced and said yes."

Counsel also asserted that H.B.’s "story as to what happened has changed over time. And it's changed because it's not her story. ... [S]he's saying these things because she thinks it's what her father and the other adults in this case want to hear." The jurors should not be persuaded, he said, because the government's case depended on the testimony of "a nine-year old child who was confronted by her angry father and who was scared; a nine-year old who had words put into her mouth; a nine-year old whose story changes upon every retelling."

In his closing argument, appellant's counsel emphasized the themes of fear and suggestibility.² "This case started when [H.B.’s father] came into that bedroom, when [he] asked [H.B.] how did Uncle Jupe mess with you? Where did Uncle Jupe touch you? This case started when [H.B.] acquiesced and told her father consciously or subconsciously what she thought he wanted to hear, and it snowballed from that bedroom right into this courtroom."

Counsel reminded the jurors that H.B.’s father has a temper. In the past he had "hit her in the face, hit her in the chest, hit her with a belt, hit her pregnant mom in the belly in front of her." H.B. "told us that that day, she didn't want her dad to be mad at her." Moreover, the defense expert, Dr. McAuliff, "told us ... that that was a recipe for disaster, a recipe for suggestibility. ... [T]hat history of violence, that fear she had of [her father] would only increase that phenomenon, only increase the likelihood of suggestibility." Furthermore, "the fact that [H.B.] has given different versions over time, that alone is a reason to doubt."

Finally, the court reminded the jurors in its instructions that "[i]t is the defense theory that Thomas Dodson did not sexually abuse [H.B.]. The defense maintains that [H.B.’s] allegation is the result of ... suggestive ... and repeated questioning by her father and others combined with her fear of her father, her prior exposure to sexualized content, and other factors suggesting to suggestibility [sic] that led to her false report."

II. Discussion

A. Additional Background

On cross-examination, H.B. confirmed that her father was angry when he came in the room, but she denied that she was "scared of him." However, answering "yes" to a series of leading questions, she agreed that her father "has a temper" and that he had hit her in the past; he had hit her "in the eye," "in the chest," and "with a belt." She had seen her father hit her mother when she was pregnant with H.B.’s baby sister.

H.B. acknowledged once more that her father "has that temper" and admitted that she didn't want him to be angry with her. After her father...