286 A.3d 990
D.C.2022Background
- At a July 8, 2014 World Cup watch party, appellant Winston Perez Hernandez repeatedly touched Alimamy Tarawallie after Tarawallie warned him to stop; a second deliberate poke occurred after an explicit warning.
- The interaction escalated into a physical altercation in which Tarawallie sustained visible head and facial injuries; police responded and appellant later surrendered and claimed self-defense.
- At a bench trial the judge acquitted appellant of striking Tarawallie with a bottle but found that appellant intentionally "poked" Tarawallie after being told not to and convicted him of simple assault under D.C. Code § 22-404(a)(1).
- A division of this court initially held the evidence legally insufficient (treating the conduct as mere unwanted touching lacking "force or violence"); the en banc court granted rehearing.
- The en banc court held that a nonviolent, nonsexual offensive touching can constitute assault (as a completed battery), adopted Model Penal Code concepts of purpose and knowledge for the mens rea of offensiveness, declined to decide whether recklessness suffices, and remanded for express findings on whether appellant knew the touching would offend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a nonviolent, nonsexual offensive touching can be a criminal assault | Government: yes; common-law assault includes even the slightest offensive touching and a completed battery supports assault conviction | Perez Hernandez: unwanted touchings are not necessarily assault; proof must show more than mere touching | Yes: offensive (nonsexual) touching may constitute assault as a completed battery under D.C. law |
| Mens rea required for offensiveness element | Government: proof may show purpose, knowledge, or recklessness; Model Penal Code mental states apply | Perez Hernandez: offensiveness requires at least subjective intent to offend (not mere recklessness) | Court: offensiveness can be proved by purpose or knowledge (adopting MPC-purpose/knowledge); left recklessness undecided |
| Sufficiency of the evidence in this case | Government: evidence of deliberate second touching after warning sufficed to show offensiveness and mens rea | Perez Hernandez: the contact was playful/acquaintance-to-acquaintance and not objectively offensive | Court: evidence was sufficient to support an offensive-touching assault, but trial court must make explicit findings about appellant's knowledge that the touching would offend; remand ordered |
| Whether the change in government theory or lack of Rule 23(c) findings prejudiced defendant | Perez Hernandez: alleged prejudicial variance and requested special factual findings | Government: information tracked statute; defendant was not surprised and did not request continuance; trial court made findings later | No prejudice; no reversible variance; no remand for additional Rule 23(c) findings (defense invited the trial course) |
Key Cases Cited
- Lamb v. State, 613 A.2d 402 (Md. Ct. Spec. App. 1992) (common-law assault is a fluid concept varying by factual setting)
- Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc) (courts may borrow Model Penal Code mens rea terms when clarifying codified common-law crimes)
- Johnson v. United States, 559 U.S. 133 (2010) (common-law meaning of "force" included the slightest offensive touching)
- Castleman v. United States, 572 U.S. 157 (2014) (discussing common-law meaning of "force" as including offensive touching)
- Patterson v. Pillans, 43 App. D.C. 505 (D.C. Cir. 1915) (traditional formulation of assault as attempt with force or violence)
- Mobley v. United States, 101 A.3d 406 (D.C. 2014) (reiterating assault elements and general-intent character of attempted-battery assaults)
- Dunn v. United States, 976 A.2d 217 (D.C. 2009) (shove upheld as assault despite no physical injury)
- Ray v. United States, 575 A.2d 1196 (D.C. 1990) (spitting held an assault as highly offensive contact)
- Comber v. United States, 584 A.2d 26 (D.C. 1990) (en banc) (simple assault protects against "all forms of offensive touching")
- Elonis v. United States, 575 U.S. 723 (2015) (presumption of mens rea for elements that separate innocent from wrongful conduct)
- X-Citement Video, Inc. v. United States, 513 U.S. 64 (1994) (age as a crucial element separating innocent from criminal conduct; scienter presumption)
- Vines v. United States, 70 A.3d 1170 (D.C. 2013) (upholding an assault conviction based on reckless conduct in a high-risk driving context)