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Ethiopian Birth Certificate Is Insufficient to Establish Victim’s Age—Appeals Court
Opinion Says Prosecution Failed to Prove Birth Date Beyond a Reasonable Doubt
By a MetNews Staff Writer
The prosecution failed to establish beyond a reasonable doubt that the victim of sexual abuse was under the age of 14 at the time of the assaults, as required by the charged offenses, where the only evidence admitted as to age was based upon an Ethiopian birth certificate, Div. One of the Fourth District Court of Appeal held yesterday.
The age of the victim, who had been adopted from Ethiopia by a U.S. family as a young boy, was the only disputed issue at the trial of a defendant accused of lewd acts against a child under the age of 14 in violation of Penal Code §288(a), among other crimes.
The unpublished opinion, which reverses the defendant’s convictions as to four counts and reduces the remaining six counts to lesser offenses, was authored by Acting Presiding Justice Joan K. Irion. Justices William Dato and Julia C. Kelety joined in the opinion.
Appealing his convictions was Anthony Roberts, who was charged in an indictment alleging 10 sexual acts that took place between Aug. 1, 2019 and March 2020. Based on his U.S. birth certificate, the victim (identified in the opinion as “Boy”) was born in June 2006, adopted when he was three-and-a-half years old, and was 13 at the time of the offenses.
The U.S. record relied on the Ethiopian certificate for the victim’s birth date.
Jury Trial
During the jury trial, the defendant called an expert in Ethiopian adoptions who testified that the nation does not have a birth registration system and that most persons in Ethiopia do not know the exact day on which they were born as the day is not culturally relevant or celebrated.
According to the expert, if an Ethiopian person needs a birth certificate for some reason, such as obtaining a passport or facilitating an adoption, the record is generated based on a “guesstimate” of the person’s age. The expert also said that orphanages will sometimes say a child is younger than is so to promote an adoption.
Roberts also called the child’s pediatrician, who testified that the boy was extremely tall for his age and that he could be the age stated on his birth certificate or up to one year older.
The prosecution presented no evidence related to the actual date on which the victim was born, did not attempt to discredit the testimony of the defense expert, and argued that the jury should simply accept as true the date of birth on the official record.
Roberts was found guilty by a jury of the four counts of lewd acts against a child and six other sex offenses against a child under the age of 14. San Diego Superior Court Judge Aaron Katz ordered entry of judgments of conviction against Roberts as to the 10 crimes and sentenced him to 18 years in prison.
Birthday Rule
Roberts challenged his convictions on the ground that there was insufficient evidence as a matter of law as to the victim’s age.
Irion noted that “[e]ach of the offenses that Roberts was found guilty of committing required the People to prove, as an element, that the victim was under the age of 14” and that the prosecution was obligated “to prove to the jury, beyond a reasonable doubt, that Roberts engaged in sexual conduct with Boy before the 14th anniversary of Boy’s birth.”
She acknowledged that “[i]n the vast majority of criminal prosecutions, a person’s age will not be disputed because that person will have been born in a country that keeps records of births,” but said it will be treated like any other material fact, and may be proven by either direct or circumstantial evidence.
Evidence of Age
The justice explained that physical appearance may be sufficient to determine whether a person is a child or an adult, but was less probative as to a person’s exact age, saying:
“Common experience teaches that appearance is only an approximate indicator of age, especially in the case of teenagers. Indeed, the pediatrician agreed in his testimony that children grow at [] different rates. Where, as here, the jury must make a precise determination of a close call about the age of a teenager, appearance alone provides only a speculative basis to determine beyond a reasonable doubt that the victim is a specific age.”
She continued:
“It would have been purely speculative for the jury to rely on Boy’s physical appearance to infer that Boy was, in fact, his stated age of 13 years and three months to 13 years and eight months during the relevant time frame rather than having turned 14 years old either before or during that period.”
The justice reasoned that the only other evidence offered as to the victim’s age was similarly weak, saying:
“The only other relevant evidence of Boy’s age was the Ethiopian birth certificate, which was then used to generate the American birth certificate…. The uncontradicted expert testimony presented by the defense established that the Ethiopian birth certificate did not provide reasonable, credible and solid evidence of Boy’s actual birth date.”
Not Without Options
Concluding that the prosecution was “not without options to attempt to prove” his actual age, she wrote:
“They could have presented their own medical expert, who may have attempted to rely on certain developmental factors or other approaches to determining a child’s age….They could have asked Boy’s mother during her testimony to authenticate family photographs showing Boy at a number of different stages of his childhood to help the jury assess whether Boy’s stated birthdate was accurate. They could have asked Boy’s mother, with experience raising two other sons who were slightly older than Boy, whether Boy’s stated birthdate seemed to be accurate based on developmental milestones she witnessed during his childhood.”
Under these circumstances, Irion remarked that “[t]he People’s approach, although apparently persuasive to the jury, was not based on the law, which requires a finding as to a victim’s actual age.”
The case is People v. Roberts, D081739.
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