NATHANIEL COUSART v. UNITED STATES, 144 A.3d 27

On Sept. 13, 2013, Darfus Barrett was stabbed in an alley; Barrett identified Nathaniel Cousart as the assailant.
After the stabbing Cousart followed Barrett; security guard Trever Edelin chased Cousart, who then turned, took a threatening step toward Edelin while holding a knife; Edelin drew his gun and Cousart discarded the knife and was restrained.
Cousart was convicted by a jury of aggravated assault while armed (AAWA), assault with a dangerous weapon (ADW), and carrying a dangerous weapon; he appealed challenging jury instructions and sufficiency for ADW.
On AAWA, the trial court used model jury instructions that included the sentence “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife.” Cousart contended that this amounted to a partial directed verdict on a disputed factual element.
On ADW, the court omitted the model’s optional element that the defendant had the apparent ability to injure; Cousart argued plain error from the omission and also argued insufficiency of evidence for attempted-battery ADW (Option A) and that the court should have instructed on intent-to-frighten ADW (Option B).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the AAWA instruction improperly told the jury Cousart "was armed" (partial directed verdict)	The instruction’s sentence stated as fact that Cousart had a knife, removing an essential factual issue from the jury	The instruction followed the model, elsewhere told jury it was sole factfinder, and explained jury must decide dangerousness and availability	No plain error: read in context instruction did not relieve jury of its factfinding role and was not a clear-directed verdict
Whether omission of "apparent ability to injure" from ADW instruction was plain error	Omission deprived jury of an essential element of ADW Option A	Even if element is essential, the record shows appellant’s conduct demonstrated apparent ability; omission not prejudicial	No plain error: omission did not reasonably affect outcome; jury could find apparent ability
Whether evidence was insufficient to support attempted-battery ADW (Option A)	Evidence only showed intent to frighten; not an attempt to injure	Testimony that Cousart turned and stepped threateningly with a knife, and prior stabbing, supported attempt to injure	Evidence sufficient under deferential review; conviction on instruction given stands

Minor v. United States, 475 A.2d 414 (D.C. 1984) (trial judge cannot remove an essential element from jury by declaring it a matter of law)
Johnson v. United States, 520 U.S. 461 (1997) (plain-error standard applies to unpreserved jury-instruction errors)
Olano v. United States, 507 U.S. 725 (1993) (framework for plain-error review of unpreserved errors)
In re Taylor, 73 A.3d 85 (D.C. 2013) (elements of plain-error standard in D.C. Court of Appeals)
Anthony v. United States, 361 A.2d 202 (D.C. 1976) ("apparent ability to injure" is an element relevant to certain ADW instructions)
Mobley v. United States, 101 A.3d 406 (D.C. 2014) (plain-error review and instructional omission analysis)