Concussion Protocol: (Head) Injury + Manifest Risk of Grave, Long-Term (Head) Injury + Diagnostic Testing to Evaluate the Danger and Need for Treatment = Significant Bodily Injury

Cheeks v. UnitedStates (decided September 7, 2017)

Players: Glickman and Fisher, Associate Judges, Reid, Senior Judge. Opinion for the Court by Judge Glickman. Majority opinion by Judge Fisher (joined by Judge Reid). Dissenting opinion by Judge Glickman. PDS for appellant. Trial Judge Yvonne Williams.

Facts: Appellant was prosecuted for assault with significant bodily injury (ASBI) and other offenses in connection with the stabbing and beating of the complainant. The complainant testified that he was walking home one evening, when a man got out of a truck, accused the him of stealing a cell phone, and stabbed him with a knife. The complainant fled around the corner, where he encountered appellant and an unknown second man, who, rather than helping, punched the complainant in the face and head. The first, knife-wielding man caught up and stabbed the complainant from behind. The complainant eventually fell, whereupon appellant and the unknown second man kicked and stomped him.

When the three abandoned their attack, the complainant called the police and was taken to the hospital. The treating physician testified that upon arrival, the complainant required stitches, staples, and antibiotics for his four stab wounds, as well as pain relievers and diagnostic tests for internal injuries, including CAT scans that revealed a nasal fracture but no brain injury. The complainant was discharged four hours after arrival and had no follow-up treatment.

The government prosecuted appellant for armed ASBI under the theory that he aided and abetted the stabbing but also asked for an instruction on unarmed ASBI, in case it had not proved that appellant was aware of the stabber’s knife. Appellant argued that without the stab wounds, the complainant’s injuries were not serious enough to be “significant.” The government argued that the CAT scan made the non-puncture injuries “significant.” The court agreed and instructed on unarmed ASBI.

The court initially instructed the jury on the mens rea required to aid and abet armed ASBI but failed to instruct on the mens rea for aiding and abetting unarmed ASBI. During deliberations, the jury sent a note asking the court to “clarify instructions on the specifics of aiding and abetting, specifically for the [unarmed] assault w[ith] significant injury.” Appellant asked the court to instruct consistent with its armed ASBI instruction, that for the unarmed version, “regardless of whether the defendant [is charged] as an aider or abettor, the government must prove beyond a reasonable doubt that [he] personally acted with the intent or knowledge.” The court refused, stating that it was “in the instruction already” and instead instructed the jury that “Instruction 3.2 aiding and abetting applies to every offense with which the defendants are charged.” Unbeknownst to the parties, at the top of the jury’s note, someone had crossed out a question: “Does the aiding & abetting apply to [unarmed] assault w/ significant injury?”

The next day, after further deliberation, the jury found appellant not guilty of armed ASBI but guilty of unarmed ASBI.

Issue 1 (Opinion by Judge Glickman): Was there was sufficient evidence to instruct the jury on unarmed ASBI?

Holding 1: Yes. “[A]lthough a ‘significant bodily injury’ is one calling for professional medical treatment to prevent long-term physical damage or avert severe pain, it also may be an injury that poses a manifest risk of such harm and requires diagnostic testing to evaluate the danger and need for treatment – even if testing reveals that treatment is unnecessary.” Slip Op. at 13-14. The complainant’s treating physician described extensive bodily injuries that required a CAT scan to diagnose brain damage, broken bones, and internal injury. As in Blair v. United States, 114 A.3d 960 (D.C. 2015), this testimony supported a finding that the injuries required diagnostic testing to evaluate the need for treatment.

Issue 2 (Opinion by Judge Fisher): Did the trial court err in responding to the jury note asking it to “[c]larify instructions on the specifics of aiding & abetting[,] specifically for the [unarmed] assault w[ith] significant injury”?

Holding 2: No. The jury could have been seeking clarification on whether the theory of aiding and abetting applied to both armed and unarmed ASBI or, specifically, whether the mens rea for aiding and abetting applied to both offenses. By instructing that “Instruction 3.2 aiding & abetting applies to every offense with which the defendants are charged,” the court effectively addressed both issues. A reasonable jury would have applied the sentence about mens rea from Instruction 3.2 to unarmed ASBI, consistent with the defense’s proposal. The jury also received other, correct instruction on the mens rea required for unarmed ASBI.

Of Note: This opinion recognizes an exception to the rule that “significant bodily injury” excludes injuries for which treatment and diagnosis are ultimately unnecessary, in that “the victim would not suffer additional harm by failing to receive them,” Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C. 2013), where an injury poses manifest risk of grave, long-term injury and, as such, requires diagnosis to rule out the need for treatment. Going forward, whether an injury posed manifest risk of grave, long-term injury may depend on the type of injury involved. Notably, this case involved significant head trauma, and in deciding it, the court relies on two others (Blair and Quintanilla) that specifically addressed significant head trauma.

Judge Glickman dissents from the court's opinion as to Issue 2.

WC

Read the full opinion here.

That Seems Like a Strange Way to Commit a Robbery…

Gray v. United States (decided March 16, 2017)

The Players: Associate Judges Beckwith and McLeese, and Senior Judge Farrell.  Opinion by J. Beckwith, concurrence by J. Farrell, and dissent by J. McLeese. Sydney J. Hoffmann for Mr. Gray. Trial Judge: William M. Jackson.

Facts: Security-camera footage showed a man, identified by the complaining witnesses as Mr. Gray, enter a convenience store one evening and “engage in a series of bizarre acts.”

According to the footage and witness testimony, he approached two women and their children (two of whom were in strollers), first reaching into one of the strollers, and then gesturing towards the group, holding his hands in front of his body while forming a diamond shape with his thumbs and forefingers.  He next touched the two women and one of the children on the forehead with his palm. Then, he reached into the second stroller, pulled a bottle out of the mouth of the baby in the stroller, and told the mother not to give the baby the bottle because the baby would die.

After this strange sequence of events, he then picked up a wallet the one of the mothers had left on it. He then sat down, rummaged through the wallet and removed $7. He tossed the wallet back on the counter, stood up, and walked out of the store. As he left, he pointed to the owner, and said something like “you’re going to die.”

Mr. Gray was convicted at trial of one count of robbery, one count of threats to do bodily harm, and three counts of simple assault. The defense’s request that the jury be instructed on the lesser-included offense of second-degree theft was denied.

Issue 1: Did the trial court err in not giving an instruction on the lesser included offense of second-degree theft because the evidence would have supported a finding by the jury that the assaults and taking of the complainant’s money were distinct from one another.

Answer: Yes. On the “unusual facts of this case,” the DCCA held that the evidence supported a rational conclusion that Mr. Gray neither assaulted the complainants with the intent of effectuating a subsequent taking, nor consciously exploited the fear created by the assaults when taking the money.

The DCCA found that based on the evidence presented—particularly the camera footage—the jury could rationally have concluded that “the assaults and the theft were not connected but rather resulted from a series of separate, erratic impulses.”  In other words, Mr. Gray’s behavior was so strange that the jury could well have believed that the theft of the $7 dollars was spontaneous and unconnected to this touching the complainants with the palm of his hand.

Note: The majority opinion draws two important legal conclusions about the robbery statute in the course of its analysis on this point. First, while case law makes clear a defendant can commit a robbery when she takes advantage of the fear created by assaultive acts that were committed with no robbery in mind, the defendant must purposefully take advantage of that fear, not simply coincidentally benefit from it.  The second is that simply taking something from a victim’s “immediate actual possession” (as opposed to the victim’s person) does not constitute robbery because “such a principle would completely nullify the ‘by force or violence’ element of robbery.”

Judge Farrell’s concurrence also stresses the unique facts of this case, and the unlikelihood that a similar scenario would present itself.

Issue 2: Was the failure to give the lesser-included offense harmless?

Answer: No. The error was not harmless for two reasons. First, the instruction would have lent credence to the defense’s claim in closing that the assaults were not intended to effectuate a robbery. Second, by giving the jury a middle ground between robbery and acquittal, the instruction would have prevented the jury from making the decision to convict simply because it was all or nothing—either convict for robbery or allow obviously illegal behavior to go unpunished.

Other Issues: Mr. Gray also challenged the sufficiency of the evidence on the robbery charge, as well as the voluntariness of his waiver of his Fifth Amendment privilege not to testify. The DCCA denied both challenges.  CP

Read the full opinion here.

You can burglarize a coal yard or a lumber yard, but not a construction site.

George Sydnor v. United States (decided January 14, 2016)

Players: Associate Judges Fisher and Easterly, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Sydnor. Trial Judge: John McCabe.

Facts: Mr. Sydnor entered a fenced-in construction site owned by Nicholson Construction Company and took six steel pipes. He was arrested shortly thereafter, and was charged with and convicted of burglary.

Issue 1: Did Mr. Sydnor's actions constitute burglary, where a person who breaks and enters a "yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade" with the intent to commit an offense is guilty of burglary? More specifically, was the construction site a place where goods or chattels were kept "for the purpose of trade?"

Holding 1: The construction site was not a place where goods or chattels were kept "for the purpose of trade," and so Mr. Sydnor could not be guilty of burglary for his actions there. The Court, in its de novo analysis of the meaning of that clause of the burglary statute, held that "for the purpose of trade" means goods that will eventually be bought or sold. It rejected the interpretation that the government urged: that any goods used in business -- i.e., a trade -- were covered. Applying the principle of "ejusdem generis," the Court held that by naming lumber and coal, Congress indicated that the "goods or chattels" in such a yard had to be commercial objects, like lumber or coal, that would be bought and sold. In this case, none of the items in the construction site were intended for commercial sale; they were stored there to be used in the construction project. Mr. Sydnor's conviction for burglary therefore must be vacated.

Issue 2: Was Mr. Sydnor nevertheless guilty of unlawful entry?

Holding 2: The court seemed to doubt that unlawful entry was a lesser-included offense under the Blockburger test, but because Mr. Sydnor had requested an unlawful entry instruction at trial the Court found that Mr. Sydnor was precluded from raising that argument on appeal. The Court then analyzed the sufficiency of the evidence that Mr. Sydnor committed unlawful entry and found it sufficient. It remanded the case for the court to enter a judgment of guilty on unlawful entry. SN

Read full opinion here.

Attempted Second-Degree Theft by Deception Is a Lesser Included Offense of Second-Degree Fraud

Michael J. Warner v. United States (September 17, 2015)

The players: Judges Glickman and Fisher, Senior Judge Farrell.  Opinion by Judge Glickman.  Regina Michaels for the Mr. Warner.  Trial Judge:  Patricia A. Wynn.

The Facts: The appellant was charged with misdemeanor second-degree fraud. In a bench trial, the judge acquitted him of that offense but convicted him of what she believed was a lesser-included offense, attempted second-degree theft. Appellant was leasing an apartment in the American University area and had no money to pay his rent or security deposit. He decided to make some money by advertising for a roommate on Craigslist. He accepted $800 from one woman, with an oral agreement that she would move in in December on a month to month basis to see if it worked out, and if it did, she would stay on the whole semester. Simultaneously, he was trying to sublease to another woman. After the first woman realized there was something fishy, she asked for her money back, but she never got it back. He testified that he intended to return the money as soon as he earned some.

The trial judge accepted the appellant’s testimony that he intended to permit the first woman to move in and live in the apartment in December and January, and thus rejected the government’s theory that he meant to scam her and never let her move in. Thus, she had doubt about the fraud charge, but questioned whether theft was a lesser included offense, that would permit conviction on the ground that he took the money and never gave it back. Without explaining her basis, or which statutory variant of theft she was relying upon, the judge ultimately convicted of attempted second-degree theft.

Issue 1: Is attempted second-degree theft a lesser-included offense (“LIO”) of second-degree fraud?

Holding 1:  While not every type of attempted second-degree theft is an LIO of second-degree fraud, one type is: attempted second-degree theft by deception. The elements of attempted second-degree theft by deception are: an overt act in furtherance of the offense, committed with the intent to obtain the property of another by deception. The mens rea for attempted theft by deception (though articulated in different words) is the same as for second-degree fraud, and the extended conduct required for fraud will always include an act sufficient for attempted theft by deception. Thus one is an LIO of the other. Further, that there are alternative means of committing attempted second-degree theft that would not be LIOs of second-degree fraud does not matter.

Issue 2:  Was the evidence sufficient to support a conviction for attempted second-degree theft?

Holding 2:  The evidence was sufficient to permit a finding beyond a reasonable doubt that that appellant induced the first woman to give him 800 dollars by implicitly promising that she could stay on in the apartment past January if she wanted, but he had intended from the inception to look for other roommates and kick her out sooner than she might have wanted. The woman who sent the 800 dollars was deceived because she sent the money laboring under a material misrepresentation.

However, a remand was required because although the evidence permitted the above inferences, the judge did not make clear that she actually found the facts in this manner, and may have relied on a different form of theft that is not an LIO of second-degree fraud. Because appellant had asked for the judge to make findings on this question and she did not, he was entitled to a remand.  SF

Read full opinion here.