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Argued March 2, 2011

Before REID and FISHER, Associate Judges, and KRAVITZ, Associate Judge, Superior Court of the District of Columbia.*fn1

After a jury trial, appellant Darryl T. Gaynor was convicted of two counts of first degree sexual abuse with aggravating circumstances*fn2 and one count of incest.*fn3 Appellant now challenges his convictions for first degree sexual abuse, arguing that the instructions regarding the affirmative defense of consent unconstitutionally shifted the burden of proof to appellant to disprove the element of force. During deliberations the jury expressed confusion about these instructions, and we conclude that the trial judge’s supplemental instructions failed to clear away this confusion. Because there is a reasonable likelihood that the jury applied the consent instructions in an unconstitutional manner, we reverse appellant’s convictions for first degree sexual abuse and remand the case for a new trial on these counts.

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