D.C. Court of Appeals: Don't try to pick up women if you know or should know they will turn you down. Also, the DCCA creates a new standard for attempt.

Grady Hailstock v. United States, No. 12-CM-1741 (decided March 6, 2014)

The Players: Judges Fisher, Thompson, and Schwelb.  Opinion by Judge Thompson.  Concurrence (dubitante) by  Judge Schwelb.  PDS for appellant. Trial Judge: Ronna Beck.

The Facts:  Mr. Hailstock was charged with one count of attempted misdemeanor sexual abuse and one count of assault. He was tried in a bench trial before the Honorable Ronna Beck. The complainant, C.W., testified that Hailstock, who was a family friend, came into her room while she was sick in bed, shut and locked the door, and climbed into bed with her.  He told C.W. that he was going to “get down.”  C.W. pushed him away and said “no,” at which point Hailstock grabbed her robe and touched her breast.  When C.W. moved away, Hailstock stopped, got out of bed, and left the room.  When questioned by the police later, he stated that his intent was to have sex with C.W., but only “if she consented.”

The trial court’s ruling: Judge Beck convicted Hailstock on both counts.  She found that Hailstock intended to have penis-to-vagina contact with C.W., and that when Hailstock got into C.W.’s bed and touched her, he knew or should have known that C.W. would not want to engage in a sexual act with him.  She also found that Hailstock came “dangerously close to committing the alleged misdemeanor sexual abuse.” 

Critically, Judge Beck noted that she could not find beyond a reasonable doubt that Hailstock intended to have sex with C.W. without her consent or that “it was his intention from the beginning to engage in sex that was non-consen[s]ual,” i.e., “where there was affirmative rejection of the interest in sex.”  Nonetheless, she convicted Hailstock of attempted misdemeanor sexual abuse.

Issue 1:  Was there sufficient evidence that Hailstock intended to commit the planned sexual contact with an actual understanding that he lacked permission or with an objectively unreasonable disregard as to the circumstances showing a lack of permission?

Holding: Yes.  

The Court first concluded that Judge Beck’s findings were limited to whether Hailstock intended to have sexual intercourse without C.W.’s consent.  According to the Court, Judge Beck never opined on whether Hailstock intended to have sexual contact – which only requires penis-to-vagina contact – without her consent.  The Court acknowledged that she used these two phrases interchangeably throughout her ruling, but nevertheless concluded that she was only referring to Hailstock’s intent to have intercourse.  Her findings, therefore, did “not preclude a holding that [Hailstock] lacked the requisite mental state.”

Next, the Court concluded that even if Judge Beck found that Hailstock never intend to have sexual contact without C.W.’s consent, he was still guilty of attempted MSA.  So long as he intended to have sexual contact with C.W. and formed that intent at a time when he should have known she would not consent, he was guilty of attempt MSA.  The Court rejected defense counsel’s argument that the government had to establish that Hailstock would have recklessly proceeded without regard to C.W.’s consent. 

Issue 2:  Did Hailstock come “dangerously close” to committing the sexual act or contact?

Holding: Yes.  The Court held that to commit an attempted crime, the government must prove that “except for some interference,” a defendant’s overt acts “would have resulted in commission of the completed crime,” or that the defendant has taken a “substantial step toward commission of the crime.”  The Court stated that Hailstock took substantial steps.  He went into her bedroom, got into bed with her, and tried to touch her even after she said no.  The court also stated that C.W.’s resistance is what stopped Hailstock from pursuing the sexual contact, not Hailstock’s own intent. 

Judge Schwelb’s Concurrence (dubitante):  Judge Schwelb stated that he was “barely” prepared to join his colleagues, but he found that Hailstock’s earlier actions – locking the door and assaulting C.W. on the bed – were “arguably sufficient under the statute.”

Of Note:

The Court altered the requirements to prove attempt.  Under this Court’s previous cases, the government must show that the defendant came “dangerously close” to completing the offense to prove attempt.  In other words, the government must show that but for some external interference, he would have committed the crime. Under the Hailstock Court’s analysis, the government must show only that the defendant has taken “substantial steps” toward committing the crime.  The Court cites no criminal opinions from the DCCA standing for this novel proposition.  Rather, it cites disbarment cases that cite to federal law.  

Counsel should argue that this Court’s earlier opinions control under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).  Under those cases, a defendant is not guilty of attempt unless the government proves that the defendant came “dangerously close” to committing the crime.  Evans v. United States, 779 A.2d 891, 894 (D.C. 2001).  JB.

Read full opinion here.