207 A.3d 594
D.C.2019Background
- After a World Cup match, Perez Hernandez touched Tarawallie despite Tarawallie's request that he stop; witnesses differ on whether the contact was to the arm or the eye and whether it was a poke or mere touch.
- Tarawallie pushed Perez Hernandez, who allegedly hit Tarawallie with a beer bottle; the trial court found insufficient proof of the bottle strike or eye poke but found a post-warning touch on the body occurred.
- The government prosecuted for simple assault under an attempted-battery theory but at times argued the unwanted touch itself was assault; the trial court convicted Perez Hernandez based on the touching.
- On appeal Perez Hernandez challenged sufficiency of the evidence for attempted-battery assault under D.C. law; the court reviewed de novo whether a single nonviolent touch can satisfy the actus reus "with force or violence."
- The majority held that attempted-battery requires an act "with force or violence," and a single nonviolent, nonforceful unwanted touch (here, an arm touch after a warning) does not meet that element, so conviction was reversed.
- The dissent argued the common-law meaning of "force" can include the slightest offensive touching and that intentional repeat contact after a warning can be objectively offensive and criminally punishable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a single unwanted touch after a warning can support simple assault under attempted-battery theory | Government: an unwanted touching can be an assault; jury instructions define "injury" to include offensive touching | Perez Hernandez: single, nonviolent touch lacks the required actus reus of "force or violence" for attempted-battery | Held: No. Attempted-battery requires an act "with force or violence;" a nonforceful touch is insufficient |
| Whether D.C. caselaw supports treating nonviolent offensive touching as attempted-battery | Government: precedents (e.g., Ray, Mahaise) allow conviction for offensive touching or treat battery as unconsented touching | Perez Hernandez: precedents consistently require force/violence; nonviolent sexual-touching was a distinct exception because sexuality supplies the violence element | Held: Precedent does not support erasing the force/violence requirement; exceptions exist (nonviolent sexual touching) but do not expand attempted-battery |
| Whether the jury instructions permit proving assault by proving an "injury" defined as offensive touching | Government: instruction equates "injury" to any offensive touching, so attempted-battery can be proven without physical harm | Perez Hernandez: instruction still requires the conduct element of force/violence; "injury" definition does not eliminate actus reus requirement | Held: The instruction’s definition of "injury" does not displace the separate element that the defendant acted with force or violence |
| Whether the Court should expand assault law or defer to the Council for legislative change | Government/Dissent: law can be read broadly to include slight offensive touchings; common law supports such a reading | Majority: expansion is a policy choice better left to the Council; court should not create a new category here | Held: Court declines to expand the attempted-battery offense; statutory or legislative action is the appropriate path |
Key Cases Cited
- Ray v. United States, 575 A.2d 1196 (D.C. 1990) (discusses assault as an attempt with force or violence; treats spitting as an application of force)
- Sousa v. United States, 400 A.2d 1036 (D.C. 1979) (articulates attempted-battery as attempt with force or violence to do corporal injury)
- Guarro v. United States, 237 F.2d 578 (D.C. Cir. 1956) (quoted formulation of attempted-battery elements)
- Harris v. United States, 201 A.2d 532 (D.C. 1964) (upheld assault conviction where defendant jostled victim; suggested forceful contact required)
- Mahaise v. United States, 722 A.2d 29 (D.C. 1999) (noted that battery may be any unconsented touching but did not resolve attempted-battery element question)
- Comber v. United States, 584 A.2d 26 (D.C. 1990) (en banc) (described simple assault as protecting against offensive touching among other harms)
- Johnson v. United States, 559 U.S. 133 (U.S. 2010) (discusses common-law meaning of "force," including the view that slight offensive touching can qualify)