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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 24-CF-0831
JAMES L. THOMAS, III, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2024-CF3-001632)
(Andrea L. Hertzfeld, Judge)
(Submitted April 8, 2026 Decided August 27, 2026)
Timothy Cone was on the brief for appellant.
Megan Abrameit, Assistant United States Attorney, with whom Edward R. Martin, Jr., United States Attorney at the time the brief was filed, and Chrisellen R. Kolb, Mark Hobel, and Caelainn Carney, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH, DEAHL, and HOWARD, Associate Judges.
DEAHL, Associate Judge: After James Thomas saw a woman leave a 7-Eleven
with cash in her back pocket, he followed her down the street and, upon catching up
to her, reached into that pocket. The woman testified that Thomas “grabbed [her]
buttocks and he grabbed the money” from her back pocket and walked away.
2
Thomas was arrested and charged with robbery, misdemeanor sexual abuse, and
unlawful possession of a controlled substance later recovered on him. A jury
acquitted Thomas of robbery but found him guilty of the other two offenses.
Thomas now challenges only his conviction for misdemeanor sexual abuse,
arguing there was insufficient evidence that he acted with “intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person.” D.C. Code
§ 22-3001(9). We agree. The only evidence from which the jury could infer
Thomas’s intent was the victim’s testimony, and she herself consistently described
this as a robbery in which Thomas did not otherwise touch her “inappropriate[ly].”
Her testimony was equally consistent with Thomas having incidentally grabbed her
buttocks while intending to steal her money absent any intent to abuse or gratify his
sexual desire. Without more, no rational factfinder could have concluded beyond a
reasonable doubt that Thomas acted with the intent to abuse or gratify his sexual
desire. We therefore reverse Thomas’s conviction for misdemeanor sexual abuse.
I. Background
One night, D.V. left the restaurant where she worked as the general manager
and walked to a nearby 7-Eleven. D.V. was carrying a smart phone and around $200
in cash in the back pockets of her jeans, which were “too tight to easily grab money
out of the pockets.” D.V. bought two bags of chips with a $20 bill, and as she
3
pocketed her change, she noticed a man outside the store looking at her. The man,
later identified as Thomas, was standing by the 7-Eleven’s entrance and holding two
large bags. D.V. had never seen him before.
D.V. soon exited the 7-Eleven and walked back toward the restaurant. Thomas
stared at D.V. for several seconds as she walked away, then put down his bags and
followed her down the block. Thomas repeatedly told D.V. to “stop” as he pursued
her and said, “I need to talk to you.” D.V. tried ignoring him at first, then “told him
[she] had nothing to say to him” and crossed the street. At that point, Thomas
“practically r[an]” across the street after D.V. and continued talking to her. Thomas
got “very close” behind D.V. and reached into her back pocket.
This case hinges on D.V.’s account of what happened when Thomas reached
into her pocket, so we discuss her testimony on that point in exhaustive detail. D.V.
first recounted that she “felt that [Thomas] grabbed my buttocks and he grabbed the
money.” She added that Thomas put his hand “on the back of [her] pocket to grab
the money” and “grabbed the money and moved his hand this way and turn[ed]
around.” Then, when asked if Thomas “grab[bed] or squeeze[d]” when he “put his
hand in [her] pocket,” D.V. said “yes.” When asked how she felt “when that was
happening to” her, D.V. said it made her “feel bad because it was the first time
something like that happened to” her. On redirect, when asked to describe “how it
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felt when [Thomas] put his hand on [her],” D.V. responded: “At the moment he
touched me, I felt that he grabbed me like this to pull the money out of my pocket.”
D.V. added that Thomas “pulled his hand all the way through [her pocket] to pull
out the money.” And finally, when asked if Thomas “appl[ied] any pressure” on her
buttocks, D.V. said “yes.” D.V. could see the cash in Thomas’s hands as he turned
to walk away.
D.V. reacted by throwing her phone at Thomas and yelling at him, calling him
“stupid.” Thomas laughed in response, then walked back to the 7-Eleven to pick up
his bags and proceeded to a nearby bus stop. D.V. followed Thomas in her car and
flagged down a nearby police officer. She told the officer that she had been robbed
and identified Thomas as the culprit. D.V. also told the officer that the way Thomas
had touched her “wasn’t inappropriate at all.” The officer then approached Thomas,
who was still at the bus stop talking with somebody whom he appeared to know.
Another police officer arrived at the scene moments later, responding to a
“call for a robbery.” She smelled the odor of phencyclidine (PCP) coming from one
of Thomas’s bags. She searched the bag and found a “wet cigarette,” a.k.a. a
“dipper,” that later tested positive for PCP. The officers did not find any cash on
Thomas’s person, in his bags, or anywhere in the area.
5
Thomas was arrested and charged with robbery, misdemeanor sexual abuse,
and unlawful possession of a controlled substance (PCP). After a jury trial where the
above facts were recounted, Thomas was acquitted of robbery but convicted of the
other two charges. He now appeals.
II. Analysis
The only issue in this appeal is whether the government presented sufficient
evidence to convict Thomas of misdemeanor sexual abuse. See D.C. Code
§ 22-3006. We review claims of insufficient evidence de novo. Nelson-White v.
United States, 323 A.3d 459, 464 (D.C. 2024). We view the evidence “in the light
most favorable to the verdict,” and we must affirm if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.
(quoting Wiley v. United States, 264 A.3d 1204, 1209 (D.C. 2021)). At the same
time, “it is our obligation to ensure that ‘the evidence in a criminal prosecution is
strong enough that a trier of fact behaving rationally really could find it persuasive
beyond a reasonable doubt.’” Wicks v. United States, 226 A.3d 743, 747 (D.C. 2020)
(quoting Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc)). “Where
evidence of guilt is in equipoise with evidence of innocence, it is perforce
insufficient for conviction by the constitutional standard, beyond a reasonable
6
doubt.” Williams v. United States, 314 A.3d 1158, 1189 (D.C. 2024) (per curiam)
(quoting Harris v. United States, 125 A.3d 704, 709 (D.C. 2015)).
A defendant commits misdemeanor sexual abuse if he “engages in a sexual
act or sexual contact with another person” and he “should have knowledge or reason
to know that the act was committed without that other person’s permission.” D.C.
Code § 22-3006(a). The parties agree that Thomas did not commit a “sexual act,”
and debate only whether he made “sexual contact.” See D.C. Code § 22-3001(8)-(9)
(defining the two terms). A sexual contact requires: (1) “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,” (2) “with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire
of any person.” Id. § 22-3001(9). There is no dispute that Thomas satisfied the first
of those prongs. So the question before us is whether the evidence was sufficient to
prove the second prong beyond a reasonable doubt, that Thomas acted “with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify” his sexual desires.
We agree with Thomas that the government presented insufficient evidence
that he did so. The evidence at trial, viewed in the light most favorable to the
government, showed that Thomas: (1) saw D.V. in a 7-Eleven with a phone and cash
in her back pocket; (2) followed her down the block; (3) told her to “stop” and said,
7
“I need to talk to you”; (4) pursued her across the street and got “very close” behind
her; (5) reached into her back pocket; (6) “grabbed [her] buttocks and . . . grabbed
the money”; (7) laughed when she threw her phone at him and called him stupid;
and (8) walked back to the 7-Eleven and then to a nearby bus stop.
Based on that sequence, no reasonable juror could have concluded beyond a
reasonable doubt that Thomas acted with the requisite intent for a sexual contact.
Notably missing was any evidence that Thomas made sexually suggestive remarks
to D.V. or any sounds or gestures of a sexual nature. There was likewise no evidence
that Thomas lingered when he reached into D.V.’s pocket, that he touched any other
part of her body, or that he took any other action suggestive of a sexual or abusive
intent. Instead, the evidence almost entirely points to a different reason why Thomas
pursued D.V. and reached his hand into her back pocket, which D.V. herself twice
identified: “to pull out the money” and steal from her.
Tellingly, D.V. framed the incident exclusively as a robbery when describing
it on the scene and at trial. When D.V. flagged down a patrolling officer after the
incident, she explained that “there had been a robbery,” and the officer later testified
that D.V. “seemed worried” because there was “money involved.” D.V. then told
another responding officer that the way Thomas had touched her “wasn’t
inappropriate at all.” And at Thomas’s trial, D.V. repeated her account that he
8
“pulled his hand all the way through [her pocket] to pull out the money” and
“grabbed me like this to pull the money out of my pocket.” Both in her on-scene
accounts and in her trial testimony, D.V. consistently recounted that she perceived
Thomas as intending to rob her, rather than as intending to sexually gratify himself.
See Jennings v. United States, 351 A.3d 1075, 1086 (D.C. 2026) (on sufficiency
review, we “must consider all of the evidence, including that favorable to the
defendant” (quoting Schools v. United States, 84 A.3d 503, 508 (D.C. 2013))). We
do not mean to suggest that the victim of an alleged sexual contact must have the
subjective experience of feeling abused or victimized for a defendant to be convicted
of misdemeanor sexual abuse. We mean only that D.V.’s perception of the incident
is relevant to whether a rational factfinder could infer, beyond a reasonable doubt,
that Thomas acted with an intent to gratify a sexual desire.
The government counters by emphasizing a single line of D.V.’s testimony—
“I felt that he grabbed my buttocks and he grabbed the money”—and claims the jury
could have “reasonably infer[red] that Thomas intended both to gratify himself and
to steal from D.V.” It is certainly a possibility that Thomas harbored both intentions,
but we fail to see how a rational factfinder could conclude beyond a reasonable doubt
that he did. D.V.’s testimony undoubtedly provides ample support for the conclusion
that Thomas did in fact grab her buttocks. But it in no way suggests that grab was
for sexual gratification, as opposed to being exclusively for accomplishing a theft.
9
One might quite naturally and incidentally grab somebody’s buttocks when reaching
into the back pocket of their jeans to grab and remove money, especially when the
jeans are “too tight to easily grab money out of the pockets,” as one of the responding
officers described them. A thief could take great care to avoid such an incidental
grab of any body part, no doubt, but their failure to do that could just as easily be
borne out of indifference to the contact than out of any intent to sexually gratify.
Proof of the act is not the same as proof of a particular intent, and we cannot collapse
the two statutory requirements together. See Chavez v. Bondi, 134 F.4th 207, 214
(4th Cir. 2025) (“It is elementary that where . . . the statute makes an offense consist
of an act combined with a particular intent, proof of such intent is as necessary as
proof of the act itself and must be established as a matter of fact.”); accord Ross v.
United States, 331 A.3d 220, 222 (D.C. 2025) (“Res ipsa loquitur is not a doctrine
in the criminal law.”). 1
1
Some contacts are of course so inherently sexual that a jury could reasonably infer a defendant’s intent to “arouse or gratify” based on the nature of the act itself, especially when—unlike here—there is no ready alternative explanation for the contact. In one case, for example, we opined that the “element of intent [for sexual contact] may be shown by virtue of touching or attempting to touch a complainant’s private area.” Nkop v. United States, 945 A.2d 617, 620 (D.C. 2008). But that case involved a male nursing assistant who “started rubbing circles on [the] clitoris” of a patient and touched “outside of [the] vagina” of another patient. Id. at 618-19. In that context, a rational juror could quite readily conclude—with nothing more—that the defendant acted to “arouse or gratify” their sexual desires. But cf. United States v.
10
The government tries to fill that evidentiary gap by pointing to the “totality of
the circumstances,” including Thomas’s “dogged pursuit” of D.V., his comments
toward her, and his laughter after grabbing D.V.’s buttocks. See Harkins v. United
States, 810 A.2d 895, 901 (D.C. 2002) (intent can be “inferred from the totality of
the circumstances”). It likens Thomas’s conduct to two cases involving sexual
contacts where a man similarly pursued a woman and touched her in a sensitive area.
See id.; Cardozo v. United States, 255 A.3d 979 (D.C. 2021), rev’d on other grounds
by 315 A.3d 658 (D.C. 2024) (en banc). But both Harkins and Cardozo had much
stronger circumstantial evidence of the defendant’s intent to arouse or gratify his
sexual desire. In Harkins, for instance, that intent could be reasonably inferred where
the defendant rubbed a woman’s leg and thigh on a Metro train, touched her buttocks
as she got up, then followed her as she left the train and said, “[g]ive me a call
sometime, baby.” See 810 A.2d at 901. And in Cardozo, that intent could be inferred
where the defendant touched a woman’s breast and buttocks, said “you want this”
or “do you want this,” and was later stopped with the zipper of his pants undone. See
255 A.3d at 983-84. In both cases there was strong circumstantial evidence of the
Goldesberry, 128 F.4th 1183, 1195-96 (10th Cir. 2025) (insufficient evidence that defendant touched daughter’s vagina knowingly rather than by accident while he was asleep). Grabbing somebody’s buttocks while removing cash from the back pocket of their tight-fitting jeans is not such an inherently sexual act that a rational factfinder could similarly discount the possibility, beyond a reasonable doubt, of an incidental grab.
11
defendant’s intent to sexually gratify himself, and there was no clear alternative and
nonsexual explanation for the contact.
Here, unlike in Harkins and Cardozo, all of the circumstances are just as
consistent with an alternative, nonsexual explanation—that Thomas pursued and
grabbed D.V. in furtherance of his intent to steal her money, just as D.V. believed:
(1) Thomas’s pursuit of D.V. was just as consistent with approaching to steal her
money as it was with approaching to sexually assault her; (2) his generic
comments—“stop” and “I need to talk to you”—were not sexual in nature and are
just as consistent with trying to stop his targeted theft victim from getting away;
(3) that Thomas “grab[bed]” D.V.’s buttocks is consistent with him incidentally
grabbing her while stealing cash from her back pocket; and (4) Thomas’s laughter
after he completed his theft and D.V. threw her phone at him and called him “stupid”
similarly does not in any way distinguish him as a sexual assailant as opposed to a
thief; he seemed to have been bemused at D.V.’s effort to confront him, which is
consistent with either explanation. We again recognize that the two potential
intentions are not mutually exclusive. Thomas might have had both the intent to steal
and the intent to gratify his sexual desires when he reached into D.V.’s pocket and
grabbed her money and buttocks. There was just no evidence from which a rational
factfinder could discount the reasonable possibility that he harbored only the first
intent and meant only to steal from D.V.
12
The evidence of Thomas’s intent to engage in a sexual contact with D.V. was
thus, at best, roughly in equipoise with the evidence that he intended only to steal
her money. When, after giving all due deference to the jury, evidence of a particular
criminal intent is in equipoise with an alternative, we have held that no rational
factfinder could conclude beyond a reasonable doubt that the defendant acted with
the requisite intent. See Harris, 125 A.3d at 708-09 (insufficient evidence of intent
to damage a door because evidence was “in equipoise” as to whether the defendant
intended to damage the door or only to break into the property). We are mindful of
our duty to give “full weight to the right of the fact-finder to determine credibility”
and “draw reasonable inferences” from the evidence. Contreras v. United States, 121
A.3d 1271, 1276-77 (D.C. 2015). And we do not doubt that a rational factfinder
could have concluded that Thomas possibly intended to gratify his sexual desire
when he grabbed D.V.’s buttocks, or even that he probably harbored that intention,
though that is a closer call. But it would “cross the bounds of permissible inference
and enter the forbidden territory of conjecture and speculation” to conclude beyond
a reasonable doubt that was the case. Rivas, 783 A.2d at 134 (quoting Curry v. United
States, 520 A.2d 255, 263 (D.C. 1987)); see also id. at 138 (noting that “a reasonable
doubt about [the defendant’s] guilt ineluctably remains” if he is only “probably
guilty”).
13
Our conclusion is not altered by the fact that Thomas was acquitted of robbery.
The government argues that “further strengthens the inference” that the jury simply
concluded that Thomas did not act with an intent to steal when he grabbed D.V.’s
buttocks, and thus acted only with the intent to sexually gratify himself. That is not
the most natural interpretation of the jury’s verdict, however. The far more likely
explanation for this split verdict is that while the jury was certain that Thomas had
an intent to steal, it simply doubted whether he succeeded, given that no money was
ultimately recovered on or near him. That was the focal point of the dispute between
the parties as to the robbery charge, with defense counsel stressing in closing that no
money was ever recovered on or near Thomas, and the government maintaining that
“it doesn’t matter that the money wasn’t found on him later.” The jury was simply
never instructed that it might convict Thomas of attempted robbery if it doubted
whether he succeeded in an attempt to take the money, and in our view that is the far
more likely reason why it acquitted him of robbery outright.
In any event, even if the jury had a reasonable doubt about whether Thomas
intended to steal anything from D.V., that would not permit the inference beyond a
reasonable doubt that he thus intended to sexually gratify himself. That is, while the
jury quite reasonably might have been unsure about whether Thomas had the intent
to steal or the intent to sexually gratify himself, that uncertainty would have
precluded it from convicting him of either robbery or misdemeanor sexual abuse.
14
That is not some perversion in the law that would permit Thomas to get off scot-free
owing to some uncertainty about which of two crimes he committed. The
government could have sought to have the jury instructed on a simple assault charge,
which would not have required it to prove that Thomas had either an intent to steal
or an intent to sexually gratify himself. It did not do that, however. 2
With all that said, we expressly reject two aspects of Thomas’s argument that
go far afield. Thomas twice claims in his brief that no reasonable juror could have
2
The government nonetheless asks us to “remand for entry of judgment on the lesser-included offense of simple assault” if, as we have concluded, the evidence was insufficient to sustain the sexual abuse conviction. See Maziarz v. United States, 312 A.3d 1234, 1245-46 (D.C. 2024) (“This court has adopted the principle that appellate courts may direct the entry of a judgment for a lesser-included offense when a conviction for a greater offense is reversed on grounds that only affect the greater offense.”) (emphasis added). We recognize that we retain the discretion to do that, even as to a lesser-included offense that the jury was not instructed on. See Robinson v. United States, 100 A.3d 95, 111 (D.C. 2014) (“[W]e have never held that this option is foreclosed if the jury was not instructed on the lesser-included offense. We perceive no reason that should make a difference, as long as we are assured that the jury, in convicting the defendant on the greater offense, necessarily and actually did find all the elements of the putative lesser offense.”). But we decline to exercise our discretion to direct entry of a simple assault conviction here, where not only was the jury not instructed on that offense, but it is also not entirely clear after Perez Hernandez v. United States, 286 A.3d 990 (D.C. 2022) (en banc), that simple assault is in fact a lesser included offense of misdemeanor sexual abuse. That is because, as the jury was instructed here, a misdemeanor sexual abuse charge can be proven with evidence that a defendant “should have known” that their sexual contact was unwanted. It is not clear to us and we have no briefing on whether, after Perez Hernandez, any variety of simple assault can be sustained upon a mere showing that a defendant acted negligently. We thus do not wade into that topic.
15
inferred his intent because sexual abuse is “typically” committed by someone
“acquainted with the victim before the incident.” We attach no significance to the
fact that Thomas and D.V. were strangers in our assessment of the sufficiency of the
evidence—people are quite capable of sexually assaulting strangers, and all too often
seem motivated to do so. See, e.g., Harkins, 810 A.2d at 901; Cardozo, 255 A.3d at
984. We likewise reject Thomas’s repeated suggestions that a sexual contact must
last longer than a “mere instant,” or that the brevity of the contact here somehow
cuts against Thomas acting with an intent to sexually gratify himself. A momentary
touch can quite clearly constitute a criminal sexual assault, see Cardozo, 255 A.3d
at 984, and the fleeting nature of the grab here likewise plays no role in our
assessment of the sufficiency of the evidence.
Ultimately, in our view, no rational factfinder could have concluded beyond
a reasonable doubt that Thomas acted with an intent to sexually gratify himself when
he reached into D.V.’s back pocket and grabbed her cash and buttocks. All of
Thomas’s actions were just as consistent with him having only the alternative,
nonsexual intent to steal. Because the evidence is in equipoise about whether
Thomas instead or additionally had the intent to sexually gratify himself, we reverse.
16
III. Conclusion
For the foregoing reasons, we reverse Thomas’s conviction for misdemeanor
sexual abuse.
So ordered.