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Koonce v. United States

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Argued September 10, 2009

Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, andNEWMAN, Senior Judge.

David E. Koonce appeals from his conviction on a single count of first-degree child sexual abuse of his girlfriend’s niece (“S.W.”), whom a jury found he had anally sodomized when she was eight years old. He was indicted on four separate counts of the same charge, under D.C. Code § 22-3008 (2001),*fn1 but the jury deadlocked on two and acquitted on the fourth, apparently due in part to S.W.’s inconsistent and porous testimony and the lack of concrete physical evidence. On appeal, Koonce contends that: (1) there was insufficient evidence that a “sexual act” occurred as required for conviction under the statute; (2) a videotape (“CAC Tape”) of an out-of-court interview conducted with S.W. at the Child Advocacy Center (“CAC”) was improperly admitted to impeach S.W.’s testimony and as substantive evidence because it was neither sworn testimony nor adopted by her; and (3) evidence of a similar but uncharged prior act of sexual abuse (“Maryland incident”) was wrongfully and prejudicially admitted. We hold that sufficient evidence was presented to sustain Koonce’s conviction and that the CAC Tape was adopted as sworn testimony, and thus properly admitted at trial. However, because we also hold that the Maryland incident was wrongly admitted, prejudicing Koonce, we reverse and remand for a new trial.

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