Court didn’t shift the burden when instructing the jury that it could consider lack of alibi evidence

Donnell Thomas v. United States (decided April 28, 2016).

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  Ron Earnest for Mr. Thomas.  Trial judges: Ronna L. Beck and Robert I. Richter

A brief note on a jury note case – The deliberating jury at Mr. Thomas’s trial sent a note asking whether it could consider the absence of alibi evidence when it was evaluating the government’s proof of Mr. Thomas’s presence at the scene of the crime.  The trial court didn’t err when it instructed the jury that yes, it could consider the lack of contradictory evidence presented by the defense.  In the same instruction, the court reminded the jury that the defense had no burden to present any evidence.  The DCCA reasoned that the instruction did not impermissibly shift the burden to the defense because the jury is permitted to consider whether the government’s evidence has been contradicted.   As the DCCA pointed out, the Redbook instruction on witness credibility “tells the jury that it ‘may consider whether the witness has been contradicted or supported by other credible evidence.’”  Slip op. at 6 (quoting Criminal Jury Instructions No. 2.200 “Credibility of Witnesses”).  NG

Read full opinion here.

Amendment of Information Was in Error Despite Lack of Prejudice, But Reversal Not Warranted Because of Lack of Prejudice

Sinatra V. Sutton v. United States (decided June 23, 2016)

Players:  Associate Judges Fisher & Thompson, Senior Judge Ruiz.  Opinion by Judge Ruiz.  Trial Judge:  Harold Cushenberry, Jr.  Richard S. Stolker for Mr. Sutton.

Facts:  A fifteen-year old, V.A., testified that Mr. Sutton masturbated in front of him, grabbed V.A.'s hand and tried to put it on his penis, and then put his arms around V.A. from behind in a "hugging position," at which point V.A. felt what he assumed to be Mr. Sutton's penis against his back near his buttocks.

The government charged Mr. Sutton by information with two counts of misdemeanor sexual abuse (MSA) of a child -- one for touching Mr. Sutton's own penis in front of V.A. and a second for touching V.A. close to the buttocks -- as well as a count of attempted MSA of a child for Mr. Sutton allegedly attempting to grab V.A.'s penis when he wrapped his arms around V.A.  On the day of trial, the government orally moved to amend the charge of attempted MSA of a child to attempted MSA, predicated on Mr. Sutton's alleged attempt to place V.A.'s hand on his own penis.

Issue 1:  Should the trial judge have allowed the government to amend the information?

Holding 1:  No, but the error does not require reversal.  Rule 7(e) allows the judge to "permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Super. Ct. R. Crim. P. 7(e).  Here, the government's amendment charged a "different offense" -- attempted MSA in place of attempted MSA of a minor, which are different crimes set forth in different sections of the Code and with different elements.  Hence, Rule 7(e) prohibited the amendment regardless of whether it prejudiced the defendant.

However, no reversal is required on appeal because there was no prejudice.  The defense did not request a continuance after the amendment, the change was irrelevant to the defense strategy, and, had the amendment been denied, the government could have achieved the same result by dismissing the information (jeopardy had not yet attached) and refiling the charges in a new information.

Issue 2:  Should convictions for MSA of a child and attempted MSA merge?

Holding 2:  No.  MSA of a child and MSA do not merge under the Blockberger test because each contains an element the other does not -- MSA of a child has age requirements, while MSA has an element that the defendant know that the complainant does not consent.  Moreover, the charges in this case arose from discrete acts:  the defendant masturbating in front of a child and attempting to put the child's hand on the defendant's penis.  These two acts were separated by a "fork in the road" at which point the defendant could have ceased his conduct, and separate convictions and punishments were therefore warranted.

Of Note:  The Court also rejected a sufficiency-of-the-evidence challenge under the familiar rule that the testimony of a single witness -- here, V.A. -- is sufficient to establish guilt beyond a reasonable doubt.  DG

Read full opinion here.

Rule 41(b) and the Fourth Amendment permit search warrants for DNA evidence from a witness or a victim to a crime.

 In re Grand Jury Witness G.B. (decided May 26, 2016).

Players: Associate Judges Easterly and Thompson, Senior Judge Nebeker. Opinion by Thompson. Concurrence by Nebeker. Trial Judge: Melvin Wright. Murad Hussain and Mary Kennedy for G.B.

Facts: Appellant, G.B. was a witness and victim to a stabbing. Police officers spoke to G.B. at the hospital and he told them the stabbing occurred at his apartment, that he knew he did it, but that he did not “want to do anything about being stabbed.” Police went to the apartment and saw blood on the floor and on a doormat. A witness told police he saw the incident and provided the name of the person he saw do the stabbing. Police found blood inside that person’s rental vehicle. The government then sought an indictment and asked G.B. to give a saliva sample to test for DNA. G.B. declined, so the government obtained a search warrant to take the sample by the buccal swab method to see if it matched the blood inside the vehicle. 

G.B. filed a motion to quash the warrant, emphasizing that his status as a victim made the warrant invalid. Judge Wright denied the motion but by that time the warrant had expired. The government indicated it would seek another warrant and G.B. said he would file a motion to quash any search warrant for his DNA. Judge Wright again denied the motion but ruled that the DNA sample would be restricted to use in this case only. G.B. noted this appeal to challenge that ruling and the government agreed not to seek a new warrant until the Court of Appeals decided the case. 

Issue:  Can an investigative search warrant issue to forcibly take the DNA of a witness who is not suspected of participating in the crime for which the DNA is sought?

Holding: Yes. First, the Court ruled that Super. Ct. Crim. R. 41(b) does provide a basis for the issuance of the warrant in this case. The Rule sets out the requirements for when a warrant may be issued and the Court ruled that G.B.’s DNA evidence constituted “evidence of the commission of a criminal offense,” within the meaning of 41(b)(1). The Court disagreed with G.B. that his DNA was “simply evidence that might lead to other evidence.” A warrant can issue under this provision if its collection “will aid in a particular apprehension or conviction.” Here, if the DNA is a match it would “aid” in a possible conviction and that is sufficient to meet the rule’s requirement. The Court also disagreed with G.B. that Rule 41 only authorizes the search of property and not the seizure of the person, which would be needed to take his DNA sample.  The Court, relying on Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), stated that “notwithstanding privacy expectations with respect to the human body, it is not always necessary to justify independently the momentary seizure of a person that occurs when the government takes samples of the person’s bodily fluids.” Also, even if taking of the sample required a “seizure,” it does not require independent justification because it is merely “incidental to the search authorized by the search warrant,” and the Fourth Amendment permits such seizures. See Michigan v. Summers, 452 U.S. 692, 696 (1981).

Next, the Court disagreed with G.B.’s argument that because he was just a witness there was not sufficient “probable cause of his guilt” to justify the issuance of the warrant. The Court said the probable cause needed for a search warrant only requires probable cause to “believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense.” There is no requirement that the evidence sought must be used against the person it is being sought from. “Nothing on the face of the [Fourth] Amendment suggests that a third-party search warrant should not normally issue[,] and “it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of a crime and is subject to arrest[.]”

Lastly, the Court ruled that the proposed search would be reasonable. The Court said there was probable cause to believe that the “things” to be searched for – the DNA – would be located on the property for which entry is sought and this search was not premised on obtaining evidence by “mere chance.” Also, it is reasonable to conclude that evidence relevant to the suspect’s guilt will be found. The government had obtained blood from the suspect’s rental vehicle and, based on statements from the witness, had reason to believe G.B.’s blood would be found inside the car. And, the Court ruled the search here – taking a swab from the inside of G.B.’s cheek – would be performed in a reasonable manner. The procedure involves “no risk, trauma, or pai[n].” And the procedure is quick and can be conducted “virtually anywhere” with “a minimum of inconvenience or embarrassment.” Another factor supporting the reasonableness of the search is the seriousness of the crime and that there are not less intrusive means of obtaining the evidence. And finally, the Court ruled the search was reasonable because Judge Wright had ordered that the sample only be used in this case and the order “prohibits” entering G.B.’s DNA into any database and requires the government to destroy any remaining DNA from G.B.’s sample at the conclusion of the instant case. 

Of Note:

• Judge Nebeker filed a concurring opinion where he agreed with the entirety of the Court’s ruling with the exception that he did not believe that Judge Wright’s order to limit the collection of G.B.’s DNA to this case should be a factor in the reasonableness determination. “Destroying the evidence does not make the search any more or less at the time it occurred or make the manner performed any more or less reasonable.” In relying on that factor, the majority pointed to language in Maryland v. King, 133 S. Ct. 1958, 1980 (2013), which found a statute subjecting those in custody for serious offenses to a buccal swab to collect DNA reasonable, in part, because the statute limited the purpose of the evidence to be collected to “identification only.”

• Judge Nebeker did not believe that the King opinion factored into its decision “whether limitations on future use of DNA evidence for identification purposes was a factor in determining the reasonableness” of the search. He wrote that the Supreme Court mentioned the limitation only as support for why the search itself would not subject the person to a further intrusion of privacy other than providing identification information, as compared to a more invasive search that would provide information such as genetic traits.  Because of that, he concluded it was “unnecessary” for the majority to rely on that factor in its analysis. Also, he wrote that preserving the evidence had “additional salutary effects” for its potential to exonerate those “wrongly convicted of crimes or even identifying human remains.” He wrote that to any extent a witness’s DNA sample should be destroyed, it should not be done by a court’s order but left to the legislature to make that determination on public policy grounds. BM

Read full opinion here.

Common law or not, element or term, “serious bodily harm” has a constant definition and a trial court must define it for the jury when asked.

Edward Brown v. United States (decided May 26, 2016).

Players: Associate Judges Easterly and Beckwith, Senior Judge Nebeker. Opinion by Easterly. Concurrence by Nebeker. Trial Judge: Ronna Lee Beck. PDS for Mr. Brown.

Facts: Torita Burt testified that Mr. Brown struck her on the head with the blunt end of a hatchet while she was visiting him in his apartment. She said he then pinned her to the bed by her throat and would not let her leave unless she would have sex with him. She agreed, and after they had sex, she was allowed to leave. Mr. Brown told a different story where he admitted hitting Ms. Brown in the head, but said he did so only after she had demanded money from him to buy drugs and had taken his cell phone. He said she swung the hatchet at him first, but missed. They then struggled over it and he wound up hitting her over the head with it. He denied ever demanding sex from her that night or grabbing her by her throat. In a phone call to his girlfriend after he was arrested, Mr. Brown said that he hit her because she was stealing from him. 

At trial, the jury was instructed on self defense and defense of property, based on the phone call.  Defense of property authorizes the use of reasonable, nondeadly force to repossess personal property. Deadly force is defined as “force that is likely to cause death or serious bodily harm.” The defense asked the court to define for the jury the term “serious bodily harm,” using the definition from the aggravated assault instruction, which states that serious bodily harm is an “injury that involves unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ or mental faculty or a substantial risk of death.” The trial court, however, refused to provide any definition, ruling that it was a “common law term . . . and that’s very different from a legislated definition for purpose[s] of defining a crime such as aggravated assault.”

The jury acquitted Mr. Brown of first-degree sexual abuse while armed and kidnapping while armed, but convicted him of assault with a dangerous weapon and assault with significant bodily injury.

Issue:  Did the trial court err in refusing to define the term “serious bodily harm,” as it is defined in the aggravated assault context, when defining defense of property for the jury?

Holding: Yes. The Court ruled that while it is an abuse of discretion standard when reviewing whether an instruction should be given, the court reviews de novo the content of the instruction actually given. The Court then ruled that the term “serious bodily harm” does have a “fixed meaning synonymous with ‘serious bodily injury’ as used in the context of aggravated assault.” “We see no reason the degree of serious bodily harm that establishes ‘deadly force’ and in turn precludes the defense-of-property defense should be quantitatively different from the degree of ‘serious bodily harm’ that sustains a conviction for aggravated assault.” The Court explained that although it does not want people using deadly force to protect property, a person should be able to use reasonable force that is more than just significant bodily injury. And, even though defense of property is a common law defense, that does not mean that the “proper application of the defense is left entirely to the jury’s unfettered discretion.” Thus, because “serious bodily harm” in the defense of property context is synonymous with “serious bodily harm” as defined in aggravated assault, the trial court should have defined the term for the jury. “This instruction would have helped the jury to locate the line between impermissible deadly force and permissible nondeadly force.”

But, the Court ruled that any error was harmless beyond a reasonable doubt. The Court, at footnote 28, writes that “[o]ur case law arguably does not resolve whether [instructional] error was constitutional (triggering review under Chapman v. California, 386 U.S. 18, 24 (1967), to determine if the error was harmless beyond a reasonable doubt) or non-constitutional (triggering review under Kotteakos v. United States, 328 U.S. 750, 765 (1946), to determine if we can say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error’).” The Court did not resolve the dispute, ruling that even if the Chapman standard applies that any error was harmless beyond a reasonable doubt. The Court noted that the defense at trial focused more on self defense, as compared to defense of property, and that striking someone in the head with a hatchet to retrieve a cell phone when that person was inside your apartment was not reasonably necessary, regardless of the definition of serious bodily harm a jury might have used. 

Of Note:

• The opinion makes clear that whether a phrase is considered a term or an element, or it is part of a common law defense or a statutorily defined crime, does not dictate whether the phrase should be defined for the jury. The key question is does the term have a consistent applicable definition that the jury needs to properly understand.

• The Court’s opinion, at footnote 26, while not expressly overruling Savage-El v. United States, 902 A.2d 120 (D.C. 2006), makes clear that Savage-El does not stand for the argument that a trial court does not have to define terms for a jury, as compared to elements. “To the extent that the court [in Savage-El] distinguished between elements and definitional terms, it did so to support its determination ‘that there was no meaningful risk of [jury] confusion or misunderstanding . . . in the context of the factual circumstances here’ and thus no instructional error.”

• Also, this case can be used to support an argument that a trial court should provide a defense instruction, even when the evidence in support is not overwhelming. At footnote 29, the Court acknowledges there was minimal evidence (one comment made by Mr. Brown during a phone call) to support the defense of property instruction but that was sufficient to meet the “some evidence” standard to give a defense instruction.

• Judge Nebeker wrote a concurring opinion where he agreed any error was harmless, but did not think the court should have reached any decision on the proper definition of serious bodily harm in the defense of property context, writing, “as a general rule this court will decide only such questions as are necessary for a determination of the case presented for consideration, and will not render decisions in advance of such necessity.” Judge Nebeker wrote that it is inconsistent with “judicial efficiency” to even identify an error if the court is going to conclude the error was harmless. The majority opinion, at footnote one, counters that “Our colleague expresses concern about judicial efficiency, but, in the appropriate case, clear explication of the law promotes that goal.” BM

Read full opinion here.

I'm NOT So Excited: Twelve-Minute 911 Call, During Which Caller Patiently and Rationally Answered Questions, Not Admissible as an "Excited Utterance"

Matthew Gabramadhin v. United States (decided April 28, 2016)

Players: Associate Judges Easterly and McLeese, Senior Judge Reid.  Opinion by Judge McLeese. PDS for Mr. Gabramadhin.  Trial Judge:  Russell F. Canan

Facts:  According to the complainant, M.H., Mr. Gabramadhin approached her as she was walking near Dupont Circle late one night.  He forced her into a nearby park where he assaulted her and stated that he wanted to have sex with her, but he eventually let her go.  M.H., a student at Georgetown, called the university's public safety department, spoke with an officer for several minutes, and was then transferred to a 911 operator, with whom she spoke for several more minutes.  M.H. stated during the call that she had been assaulted, answered numerous questions, and gave a description of her assailant.  M.H. testified that she was "very confused," "really afraid," and "could have been in shock" during this call.  A recording of the entire call was admitted at trial as an "excited utterance."

Mr. Gabramadhin gave a starkly different account of events.  He said that he and M.H. struck up a conversation, and went into a nearby park where they talked more and then began kissing.  M.H. eventually performed oral sex on him. Mr. Gabramadhin then told M.H. that he had a girlfriend, which made M.H. very angry and she followed him and shouted loudly that she hated him.

Issue:  Was the entirety of the 911 call admissible as an "excited utterance"?

Holding: No.  Several factors foreclosed a finding that M.H.'s statements during the call "were a 'spontaneous reaction to the exciting event' rather than 'the result of reflective thought.'"  First, the call lasted 12 minutes, and "lengthier statements are less likely to reflect spontaneity and lack of reflection."  Second, M.H. gave "detailed," "rational," and "patient" answers to questions during the call.  Third, M.H. initiated the call.  Fourth, upon a review of the recording, "the tone and contents of the call are consistent with a determination that M.H. was upset, but they are not consistent with a determination that M.H. was so upset that she was unable to reflect or was speaking reflexively."  Based on these combined factors, the call should not have been admitted as an excited utterance.

The error was not harmless in "a closely contested case that turned almost entirely on the respective credibility of M.H. and Mr. Gabramadhin."  The call went to the central issue at trial (consent), and the physical evidence and other testimony gave some support to both sides.  Although nothing in the call added information that was not in M.H.'s trial testimony, "the statements in the call might well have been more persuasive to the jury because of their temporal proximity to the incident and the level of detail they contained."  Finally, the call was a major feature of the prosecution case, and was both played for the jury and discussed during the government's closing argument.

Although the trial court had ruled that portions of the call were admissible as a present sense impression or statements of prior identification, the Court would not affirm on that basis.  Neither the trial court nor the government had identified the specific portions of the call that would have been admissible under either exception.  The government also mentioned these alternative hearsay exceptions only in a footnote in its brief, without providing specific legal or factual argument.  "In the absence of specific findings from the trial court and adequate briefing from the United States, we are unable to rely on these alternative hearsay exceptions as bases upon which to conclude that the erroneous admission of the call as an excited utterance was harmless."

Of Note:

• For appellate practitioners, the Court's harmless-error analysis holds a lot of promise.  The government's case was not weak, and the 911 call did not contain any information that was not already before the jury.  But the Court properly explains why, in a close case where credibility was key, the 911 call was prejudicial.

• The Court's refusal to address whether portions of the call were admissible under alternate theories is also notable.  Both the government and the trial judges often reference multiple hearsay exceptions without much elaboration.  The Court emphasizes that the proponent of hearsay bears the burden of establishing an applicable exception and specific findings are required.  DG

Read full opinion here.

Crying Wolf? Finding of Competency and Denial of Motion to Withdraw Affirmed in Light of Defendant’s Perceived Malingering and Bad Faith.

Christian D. Taylor v. United States (decided March 31, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Judge Nebeker. Nicholas B. Lewis, Anand V. Ramana, and Christopher D. McEachran for Mr. Taylor. Trial Judge: Thomas J. Motley.

Facts: Mr. Taylor was convicted on two counts of first-degree premeditated murder; four counts of felony murder, second-degree burglary while armed, and robbery while armed; and seven counts of possession of a firearm during a crime of violence (“PFCV”) for entering a store, demanding money at gunpoint, and shooting the cashier and his father, who co-owned the store.

Mr. Taylor refused to participate in his initial 24-hour competency screening. After a 45-day inpatient evaluation, the trial court found Mr. Taylor competent to stand trial. Mr. Taylor later complained of intermittent inability to speak and hear. Examiners at St. Elizabeth’s Hospital determined that he was malingering, and the court again found him competent.

Geoffrey Harris was appointed to represent Mr. Taylor with another attorney who later withdrew due to Mr. Taylor’s complaints about the representation and professed religious bias. Mr. Harris moved to withdraw, after Mr. Taylor filed a bar complaint against him. Having found that Mr. Taylor fienged his hearing/speech loss to avoid trial, the trial court similarly denied the motion to withdraw in light of perceived bad faith on Mr. Taylor’s part but appointed another attorney to act as co-counsel at trial. Mr. Harris twice renewed his motion to withdraw, including once, in light of Mr. Taylor’s alleged threats to his children. The trial court denied these motions, finding that they were also motivated by Mr. Taylor’s desire to avoid trial. The court declined to recuse itself from hearing these motions or presiding over the trial.

Issue 1: Whether the trial court abused its discretion in deeming Mr. Taylor competent to stand trial?

Holding 1: No. Mr. Taylor had no prior history of mental illness. He was deemed competent by two mental health professionals at St. Elizabeth’s Hospital. Lay testimony and the trial judge’s in-court observations further supported its finding. Mr. Taylor put forward no evidence to overcome the presumption that he was competent.

Issue 2: Whether there was an actual conflict of interest between Mr. Taylor and Mr. Harris that adversely affected Mr. Harris’ performance?

Holding 2: No. The court appropriately inquired into the potential conflict. Its remedy of appointing co-counsel for trial was sufficient to prevent any prejudice, as co-counsel took a lead role. Mr. Taylor has not complained about co-counsel’s performance and fails to identify any prejudice suffered as a result of Mr. Harris’ continued representation. Based on the record presented, the trial court correctly found that Mr. Taylor was just trying to avoid trial.

Issue 3: Whether the trial court erred in declining to recuse itself from presiding over the trial after presiding over Mr. Harris’ motion to withdraw?

Holding 3: No. The trial judge was in the best position to hear the motion to withdraw, having seen the relationship between Mr. Taylor and his attorneys, past and present. Efficiency may sometimes counsel preemptive recusal from a potentially prejudicial motion, but it is not necessary in all cases. The trial court was aware of its duty to self-recuse, if it became prejudiced. The record does not contradict its finding that there was no prejudice.

Issue 4: Whether the government presented sufficient evidence that the murders were premeditated and deliberate?

Holding 4: The issue is moot. Only one murder conviction per victim may stand. Because the sentence will be the same no matter which are vacated, the Court vacates the first-degree premeditated murder convictions and upholds only the two felony murder convictions predicated on robbery. (Mr. Taylor’s convictions for robbery merge with these felony murder convictions. Since the felony murder predicated on second-degree burglary is vacated, second-degree burglary does not merge.)

Issue 5: Whether Mr. Taylor’s PFCV convictions merge into a single conviction?

Holding 5: No. Mr. Taylor manifested a “fresh impulse” when he committed second-degree burglary, armed robbery, and then two first-degree murder.

Of note: The Court’s holding with respect to Mr. Harris’ motion to withdraw is best understood in the context of Mr. Taylor’s conduct throughout the case: “We agree with the trial court that appellant was malingering and that his attempt to manufacture a conflict of interest with his attorney was merely another effort to manipulate the court and avoid trial.” Attorneys facing threats to life or livelihood that may affect their representation should continue to bring those matters to the presiding judge’s attention, in ways that protect their client’s interests.  WC

Read full opinion here.

Misdemeanor threats to do bodily harm need not be “serious”

Mark E. Lewis v. United States (decided May 12, 2016)

Players: Associate Judges Blackburne-Rigsby and Thompson and Senior Judge Reid. Opinion by Judge Blackburne-Rigsby. Charles Burnham for Mr. Lewis. Trial Judge: Jennifer M. Anderson.

Facts: Following a bench trial, Mr. Lewis was convicted of second-degree theft and attempted misdemeanor threats to do bodily harm. The complaining witness testified that Mr. Lewis spent the night at her home and took money out of her wallet when she left the bedroom to answer the door. The complaining witness reported the money stolen when she returned to the bedroom to find Mr. Lewis gone and her wallet empty and displaced. The complaining witness testified that in a later phone call, Mr. Lewis denied the theft and demanded, “Stop playing with me, b****. I’ll smack the s*** out of you [and] get you f***ed up.”

Issue 1: Whether the evidence was sufficient to sustain a conviction for attempted misdemeanor threats to do bodily harm?/Whether the crime of misdemeanor threats requires a threat to do “serious bodily harm”?

Holding 1: Yes/No. Although the Court has sometimes stated that the crime of misdemeanor threats requires uttered words that “convey fear of serious bodily harm or injury,” the Court has never confronted the issue squarely. The statute itself does not use “serious” to qualify the type of harm that is punishable if threatened. The “serious bodily harm” language from the cases appears to be an artifact of the Redbook and an inversion of jurisprudence requiring that the promise of bodily harm be serious for a true threat to occur. Requiring “seriousness” in the context of verbally threatened, as opposed to completed, bodily harm would be unworkable in practice. Cf. D.C. Code § 22-3001(7) (defining “serious bodily injury” for purposes of aggravated assault).

Issue 2: Whether the evidence was sufficient to sustain a conviction for second-degree theft, in light of the fact that no one witnessed the alleged theft?

Holding 2: Yes. The circumstantial evidence presented was sufficient.

Of note:

• It is troubling that the Court’s reasons for declining to read “seriousness” into misdemeanor “threats to do bodily harm” apply with equal force to its felony counterpart, which is punishable by up to 20 years imprisonment. See D.C. Code § 22-1810. The DCCA has traditionally “interpreted the elements of this misdemeanor to be the same as those of its subsequently enacted felony counterpart.” United States v. Baish, 460 A.2d 38, 41 (D.C. 1983), abrogated by Carrell v. United States, 80 A.3d 163 (D.C. 2013), reh’g en banc granted, No. 12-CM-523, 2015 WL 5725539 (D.C. June 15, 2015). The implications of this opinion figure to extend beyond the misdemeanor statute.

• Following Joiner-Die v. United States, 899 A.2d 762 (D.C. 2006), and In re Z.B., 131 A.3d 351 (D.C. 2016), this case deepens the divide in how the statutes for threats and assault are interpreted, despite conceptual overlap between the two offenses. While the Court posits that it would be unworkable to require proof that the harm contemplated by uttered words is “serious” in the same sense that aggravated assault requires, it is conceivable that the government would face this exact burden in prosecuting attempted aggravated assault. The Court opined that it was “unclear and possibly unknowable” that a threat to “smack the s*** out of” someone or “get [him or her] f***ed up” would threaten “serious bodily injury.” This opinion may raise interesting sufficiency questions in the future.  WC

Read full opinion here.