Cardozo v. United States

Notice: 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. 17-CF-774 SERGIO W. VELASQUEZ CARDOZO, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. Appeal from the Superior Court of the District of Columbia (CF1-15152-16) (Hon. Lynn Leibovitz, Trial Judge) (Argued September 17, 2020 Decided July 29, 2021) Matthew B. Kaplan, with whom Joseph Virgilio was on the briefs, for appellant. Nicholas Coleman, Assistant United States Attorney, with whom Jessie K. Liu and Timothy J. Shea, United States Attorneys at the time the briefs were filed, and Elizabeth Trosman, Peter Taylor, Bianca M. Forde, and Kristina L. Ament, Assistant United States Attorneys, were on the briefs, for appellee. Before MCLEESE and DEAHL, Associate Judges, and STEADMAN, Senior Judge. Opinion for the court by Associate Judge MCLEESE. Concurring opinion by Associate Judge DEAHL at page 22. 2 MCLEESE, Associate Judge: Appellant Sergio Velasquez Cardozo appeals from his convictions for kidnapping and several sexual-abuse offenses, arguing that the evidence was insufficient to support his convictions and that certain of his convictions should merge. We affirm in part, reverse in part, and remand for further proceedings. I. Viewed in the light most favorable to the verdict, the evidence at trial was as follows. At around 1:00 a.m. one night in September 2016, E.R. was walking home. A police officer patrolling in the area saw E.R. walking hurriedly, and also saw Mr. Cardozo walking behind E.R., closing the distance between them. The officer then saw Mr. Cardozo “bear hug” E.R. Mr. Cardozo appeared to put one or both of his hands on E.R.’s breasts, move his hands along E.R.’s body, and then rub his hands on E.R.’s buttocks. When Mr. Cardozo grabbed E.R., she stopped for a “split second.” After stumbling, she shrugged her shoulders and moved her elbows back, apparently to get away, at which point Mr. Cardozo turned around and walked in the opposite direction. 3 E.R. described having been grabbed from behind. She had been unaware that she was about to be grabbed, and she had no prior opportunity to indicate that she did not wish to be touched by Mr. Cardozo. As Mr. Cardozo was holding her, she felt a hand reach across her chest and touch her breast, and she also felt a touch on her buttocks. E.R. moved her elbows to get away, and said “no.” Mr. Cardozo said “[s]omething to the effect of ‘you want this’ or ‘do you want this.’” E.R. was momentarily stopped from walking home while Mr. Cardozo grabbed her and held her back, but after she shrugged him off she was able to resume walking. The officer approached E.R. and asked her if she knew Mr. Cardozo. When E.R. said that she did not, the officer stopped Mr. Cardozo and noticed that Mr. Cardozo’s pants …

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