In re D.W.

¶1dissenting:

¶2For several reasons, which I list below, I have found resolution of this appeal considerably more difficult than my colleagues have. In light of all the points that I discuss below, and with all due deference, I find myself unable to join in affirming the judgment of the trial court.

¶31. As Judge Schwelb’s opinion recounts, during the government’s case in chief, Donald Berry1 testified, “I have not took [sic] a blood test, so I’m not positive that I’m the father, but, yes, I’m considered the father” of both D.W. and D.S. Perhaps on a different record, Mr. Berry’s testimony could be read to mean only (as my colleagues suggest) that a man can never be absolutely certain that he is the *1174father of a child without a blood test. But, in my view, the record afforded a reason for hesitation about that interpretation that rendered impossible anything approaching “near certitude” 2 that D.W. and D.S., with whom D.W. had sexual intercourse, are related by blood. During the government’s case-in-chief, Mr. Berry testified that he has five children. Asked to give the names of his children, Mr. Berry named appellant D.W.; three other children who have the same mother as D.W.; and complainant D.S., who has a different mother (Keisha Simmons). The government’s next witness was Ms. Simmons, who testified that Mr. Berry is the father of three of her six children, including D.S.3 While Mr. Berry did list D.S. as one of his children when the prosecutor first asked about the matter, and while Ms. Simmons testified that Berry is the father of D.S., I believe their inconsistent testimony about whether he is the father of two of Ms. Simmons’s other children, as she claimed, demanded that the trial court interpret Mr. Berry’s statements that he is “not positive that [he is] the father” of D.S. and that he is “considered [her] father” as betraying some actual doubt about the matter.4 Accordingly, I cannot agree with my colleagues that the record is “devoid of any testimony or other evidence tending to ... even suggest [ ]” that Mr. Berry was not “the father either of D.W. or of D.S.” For much the same reason, I believe little weight can be accorded to the testimony of Willie Jones (purportedly the grandfather of both D.W. and D.S.) that D.S. is his granddaughter. The record provides no basis to doubt that he believes that he is D.S.’s grandfather, but his belief had even less probative value than Mr. Berry’s statement about D.S.’s parentage. The issue is not Mr. Jones’s or Mr. Berry’s veracity, but instead the basis of their knowledge.

¶42. I believe (contrary to the view that Judge Schwelb expresses in his concurring opinion) that no weight could be accorded to the fact that D.W.’s counsel did not mention the incest charge in her opening or closing statement. Apparently, counsel was alerted to the issue of whether Mr. Berry is actually the father of both D.S. and D.W. by Mr. Berry’s testimony during the government’s case-in-chief that he is “not positive” that he is D.S.’s father but is “considered the father,” and by the other discrepancies I have noted. See supra note 3. Defense counsel argued in her motion for judgment of acquittal that the government had failed to prove that D.S. and D.W. are related by consanguinity, and the court reserved its ruling until the trial was completed. In her closing argument, defense counsel asked the court to find D.W. not guilty “for the reasons stated in my previous motion.” I believe the court clearly erred in “see[ing] no dispute on the issue of the charge of incest.”

¶5*11753.As appellant notes in his brief, no evidence was presented that Mr. Berry had been married at any time to, or had attempted to marry, either D.W.’s mother or D.S.’s mother, and thus the record afforded no basis for applying a statutory presumption that Mr. Berry is the father of any of their children. See D.C.Code § 16 — 909(a)(1)—(3). There also was no evidence that Mr. Berry, after having been given “written and oral notice of the alternatives to, legal consequences of, and the rights and responsibilities that arise from signing the acknowledgment,”5 had acknowledged in writing that he is the father of either or both D.W. and D.S. Thus, the record afforded the trial court no basis for presuming paternity under D.C.Code § 16 — 909(a)(4) and (b-l)(2).

¶6When a child has no “presumed parent” under the criteria set out in the foregoing provisions, a “conclusive presumption of parentage shall be created ... [u]pon a result and an affidavit from a laboratory of a genetic test ... indicating a 99% probability that the person is the genetic parent of the child.” D.C.Code § 16-909(b-l)(l). Here, no genetic test results pertaining to D.S.’s or D.W.’s parentage were introduced.

¶7When unrebutted, the presumptions described above can enable a litigant to prove paternity by a preponderance of the evidence. See D.C.Code § 16-909(a). These presumptions “are not a comprehensive statement of the universe of possibilities for proving parentage” by a preponderance of the evidence. In re Estate of Glover, 470 A.2d 743, 750 (D.C.1983) (citation and internal quotation marks omitted). But, when the issue of paternity had been raised and none of these presumptions was in play, the government’s ability to prove paternity beyond a reasonable doubt — the standard that applied in D.W.’s trial— surely was called into question.

¶84. The majority opinion notes that courts of other jurisdictions have held that the testimony of relatives alone is sufficient to prove the blood relationship necessary for incest, citing in particular Lusby v. State, 217 Md. 191, 141 A.2d 893 (1958).6 For a couple of reasons, Lusbyis of limited help in resolving the matter before us. First, while the Lusbycourt did state that “[t]he testimony of the prosecutrix to the effect that the defendant was her father was sufficient proof of her pedigraic status,” id. at 896, the court also noted that this testimony was “not controverted.” Id. at 897. Second, the court relied on case law holding that “[i]t is certainly competent for one who, from his earliest recollection, has been a member of one’s family, given his name, and reared in the belief, and in all ways given to understand that he is a son in the household, to testify of his parentage” even though “[h]is testimony may not be satisfactory or conclusive of the fact.”7Id. at 896 (quoting Comstock v. State, 14 Neb. 205, 15 N.W. 355, 356 (1883)).

¶95. To be sure, in numerous cases where the results of scientific testing would have *1176been the best or most obvious way of proving an element of a crime, this court has held that the evidence was sufficient for conviction even in the absence of such scientific evidence. We have done so, for example, in cases involving driving while intoxicated or possession of an open container of alcohol, reasoning that police officers’ observations of a defendant’s demeanor, smell tests, and the like provided enough evidence to prove the charges beyond a reasonable doubt.8 On the other hand, we have repeatedly implied that a conviction of possession or distribution of a controlled substance may require at least evidence of the results of a chemical screening test rendering it probable that the substance in question is indeed a controlled substance, and that other, circumstantial evidence tending to indicate the identity of a substance alone will not suffice.9 However we might explain our somewhat disparate approaches in those two categories of cases, my observation is that neither category involves the same level of stigma that inheres in a charge of incest. As one recent law review article notes, “the very term ‘incest’ is a powerful way to provoke an almost visceral disgust.” 10 We have recognized that in administering juvenile justice, our courts should seek to avoid approaches that “may seriously impair the rehabilitative goals of the juvenile justice system” by “handicap[ping] the youths’ prospects for adjustment in society and acceptance by the public.” In re J.D.C., 594 A.2d 70, 76 (D.C.1991) (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 107-08, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) (Rehnquist, J., concurring)). Given the stigma associated with incest, the potential for an incest adjudication to impair substantially a juvenile’s prospects for adjustment and acceptance, and the “fluid and unsettled sense among the witnesses about who was related to whom” in this case, I believe we *1177should be guided by the second category of cases, rather than the first, in resolving this appeal.

¶106. As already noted, “[t]he reasonable doubt standard of proof requires the fact-finder to reach a subjective state of near certitude of the guilt of the accused.” Rivas, 783 A.2d at 133 (citation and internal quotation marks omitted). This not merely is “a guideline for the trier of fact,” but it also “furnishes a standard for judicial review of the sufficiency of the evidence.” Id. at 134. It is true that our judicial review must be deferential — i.e., we must give “full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “But this formulation does not mean that appellate review of sufficiency of the evidence is toothless.” Id. (citation and internal quotation marks omitted). Instead, “[w]e have an obligation to take seriously the requirement that the evidence in a criminal prosecution must be strong enough that [the finder of fact] behaving rationally really could find it persuasive beyond a reasonable doubt.” Id. “[I]f the evidence, when viewed in the light most favorable to the government, is such that a reasonable [fact-finder] must have a reasonable doubt as to the existence of any of the essential elements of the crime, then the evidence is insufficient and we must say so.” Id. (citation, internal quotation marks, and emphasis omitted).

¶11In this case, the government presented the results of DNA testing that confirmed that D.W. fathered the child to whom D.S. gave birth, but, as counsel confirmed at oral argument, that test did not establish that D.W. and D.S. are related by blood and no test to establish that (or to rule it out) was performed. To be sure, evidence was presented that individuals whom D.W. and D.S. know as father, mother, and grandfather consider the two to be siblings, and that D.W. and D.S. consider themselves to be siblings. The trial court also heard D.S.’s testimony that Mr. Berry named the son to whom D.S. gave birth, and that the child resides not with D.S. but with Mr. Berry. This can fairly be regarded as evidence of strong familial-like ties or affinity between Mr. Berry and D.S.11 If the charge here had been attempted incest — D.W.’s having had sexual relations with a girl he believed to be his sister — perhaps this omission would not matter. But on a charge that D.W. had sexual relations with a girl “related to [him] within ... the fourth degree of consanguinity,” D.C.Code § 22-1901, I would hold that the evidence presented in this case was not sufficient to prove the charge beyond a reasonable doubt. I therefore respectfully dissent.12