Lead Opinion
After a jury trial, appellant Daric Wilson was convicted of one count of assault with significant bodily injury
On the evening of February 10, 2012, appellant Daric Wilson, his girlfriend, and a coworker named Jason Schneider hailed a taxi in the Crystal City area of Arlington, Virginia. Mr. Wilson and his girlfriend had recently finished dinner and drinks, and they planned to spend the rest of the evening with Mr. Schneider and some other friends in the Adams Morgan neighborhood of Washington, D.C. Mr. Wilson and his companions got into Salim Abubakar’s cab, and from here Mr. Abuba-kar’s and Mr. Wilson’s accounts diverge.
Mr. Abubakar testified that Mr. Wilson, who appeared to be intoxicated, gave him imprecise and confusing instructions about where he wanted to go in the District. Mr. Abubakar explained that appellant eventually yelled at him to “stop, stop, stop” near the intersection of 18th Street and Florida Avenue, at which point the group exited the car. Mr. Schneider then attempted to pay Mr. Abubakar the fare,
In Mr. Wilson’s account, Mr. Abubakar, who seemed lost while driving through the District, “ignor[ed] [Mr. Wilson’s] instructions [and] [went] in different, wrong directions” after explaining that he was not familiar with several of the locations Mr. Wilson suggested as a place to be dropped off — the Adams Morgan neighborhood, 18th and U Streets, or 18th and 0 Streets. Mr. Wilson therefore asked Mr. Abubakar to pull over and let the group out. After the passengers exited the car at the intersection of 18th and Florida, Mr. Wilson and Mr. Abubakar started arguing about the fare. Mr. Wilson testified that he refused to pay the full amount because Mr. Abubakar had gotten lost. Contrary to Mr. Abubakar’s testimony, Mr. Wilson said that Mr. Abubakar, still in his car, insisted on the full fare while threatening to call the police. Mr. Wilson responded, “Great, call the police; I’ll wait right here.”
According to Mr. Wilson, Mr. Abubakar suddenly “lost it” and began screaming at him and the other passengers. When Mr. Abubakar left the cab, Mr. Schneider tried
Two Metropolitan Police Department officers also testified as to the extent of Mr. Abubakar’s injuries.
The second officer, Raeniel Castillo, testified that when he arrived on the scene, Mr. Abubakar “had cuts all over his face,” “blood dripping down from his face onto his clothes,” and “blood coming out of the injuries just pouring down his face.” Mr. Abubakar “couldn’t really talk that well,” and “[a]t one point, his jaw wouldn’t move.” Officer Castillo said the paramedics thought it might be broken, and they took Mr. Abubakar to the hospital after treating him in the ambulance. ' Officer Castillo characterized the volume of blood as a seven on a scale of one through ten.
The government presented no testimony from doctors or paramedics, but it did introduce into evidence a series of photographs taken when Mr. Abubakar was in the hospital. The photographs depict Mr. Abubakar in a hospital bed with lacerations and dried blood on his face, a brace around his neck, a cuff on his arm, and electrodes attached to his chest.
II.
In reviewing a conviction on sufficiency grounds, “we consider all the evidence in the light most favorable to the government, according deference to the fact-finder ‘to weigh the evidence, determine the credibility of the witnesses, and draw all justifiable inferences of fact.’” Jones v. United States,
III.
The District’s felony assault statute provides that “[w]hoever unlawfully assaults, or threatens another in a menacing manner, and intentionally, knowingly, or recklessly causes significant bodily injury to another shall'be fined .. or be imprisoned not more than 3 years, 'or both.” D.C.Code § -22-404(a)(2) (2012 Repl.). The statute defines “significant bodily injury” as “an injury that requires hospitalization or immediate medical attention.” Id, To satisfy this statutory definition, the “immediate medical attention must be aimed at one of two ends — ‘preventing long-term physical damage and other potentially permanent injuries’ or ‘abating pain that is severe instead of lesser, short-term hurts.’” Teneyck,
Although D.C.Code § 22-404(a)(2) remains a relatively new provision,
In contrast, this court determined' that there was insufficient evidence of significant bodily injury where the complainant — a robbery victim — received cold compresses from EMTs but no medical treatment. Quintanilla,
IY.
On appeal, Mr. Wilson contends that the government presented insufficient evidence- that Mr.' Abubakar suffered a significant bodily injury’within the meaning of D.C.Code § 22-404(a)(2). Mr. Wilson asserts that the pain, dizziness, and extensive bleeding Mr. Abubakar experienced do not qualify under the statute given the government’s failure to show “what — if any — treatment” Mr. Abubakar received for these injuries, “let alone that any treatment was immediately medically required.” We agree with Mr. Wilson and therefore revérse the conviction.
The government primarily argues that a jury reasonably could have found that Mr. Abubakar suffered a significant bodily injury based on "the “combined evidence” presented at trial. That evidence includes testimony about the blood “gushing” from Mr. Abubakar’s face, which the government contends could'lead a jury to-infer that the injury would' not be treatable with “everyday remedies such as ice packs [or] bandages,” Quintanilla,
However bad the injuries may seem, the government’s “combined evidence” fails to show that “immediate medical attention” was required to “ ‘prevent[ ] longterm physical damage and other potentially permanent injuries’ or ‘abat[e] pain that is severe’ instead of ‘lesser, short-term hurts.’ ”
The government places particular emphasis on the paramedics’ involvement in the incident — as recounted by the police officers — and on the photographs of Mr. Abubakar in the hospital wearing a neck brace, cuff, and electrodes. But such evidence, without more, does not show that Mr. Abubakar’s injuries required “immediate medical attention” within the meaning
This court’s recent decision in In re D.P.,
The government also argues, as an “alternative basis for finding significant bodily injury,” that even if a jury could not find that Mr. Abubakar’s injuries required “immediate medical attention,” the evidence supported a finding that the injuries required “hospitalization.” It is true that the statute defines “significant bodily injury” as requiring either “hospitalization or immediate medical attention.” D.C.Code § 22-404(a)(2) (emphasis added). In In re R.S., however, the court noted that “[i]t is not easy to envision a situation in which an injury might require hospitalization and yet not also require immediate medical attention.”
The evidence presented here falls short of the threshold set by these cases. The
Because the government failed to introduce sufficient evidence of significant bodily injury, we reverse the felony assault conviction and remand for the trial court to enter a judgment of conviction for simple assault. See Quintanilla,
So ordered.
Notes
. D.C.Code § 22-404(a)(2) (2012 Repl.).
. D.C.Code § 22-404(a)(l) (2012 Repl.).
. Mr. Abubakar testified that he never asked them to pay.
. Mr. Schneider testified that he “heard him hit the ground; it didn’t sound good," He also said that Mr. Abubakar’s fall produced “kind of a dull thud” that "sounded like it hurt.”
.The government also presented,the testimony of Sandy Pollock, who witnessed part of the incident from her second-floor apartment on the corner of 18th and Florida. Ms. Pollock testified that she heard a "very guttural, terrified scream,” as if someone were "absolutely getting pummeled.” Because her view was partly obscured, however, Ms. Pollock never actually saw anyone "strike the cab driver.”
. On this scale, ten was considered the bloodiest.
. As for Mr. Wilson’s injuries, Officer McGrail noticed "cuts” on the "back of his hands or on the knuckles.” Officer McGrail characterized these marks as “offensive injuries,” as they were located "in the striking area of the hand,” and so he decided to arrest Mr. Wilson. Officer Castillo similarly testified that Mr. Wilson had cuts on his elbows and hands.
. The Council of the District of Columbia enacted the statute in 2006 in order to "fill the gap” between simple assault, a misdemeanor that requires no physical injury and carries a maximum penalty of 180 days imprisonment, and aggravated assault, a felony that requires "serious bodily injury” and provides for a maximum term of ten years imprisonment. Quintanilla, 62 A,3d at 1263 (quoting Jackson v. United States,
. In this regard, the question is not, as the dissent suggests, whether Mr. Abubakar was in pain, or bleeding, or treated by paramedics, or taken to the hospital, or all of the above. The question is whether the government put on evidence showing that Mr. Abu-bakar ‘‘require[d]” immediate medical attention aimed at one of these two ends. Teneyck,
. We have never held that the only way for the government to carry its burden of proof is to present medical or other expert testimony.
.When asked at oral argument how it is possible to know, beyond speculating based on the photographs, what treatment (if any) Mr. Abubakar received at the hospital, counsel for the government stated that "there is no evidence as to what the treatment was at the hospital,” and that "the government admits that the record is not clear about the treatment.” At another point in the exchange, counsel agreed that the record was “silent” on the question of treatment. The court then asked the government why no paramedics were called to testify or hospital records adduced. Counsel's only response — the “best on appeal that the government can make of the record” — was that the trial focused mostly on the self-defense issue.
Dissenting Opinion
dissenting.
I do not agree that the evidence, viewed in the light most favorable to the government, was insufficient to convict appellant of felony assault. The physical attack by taxi passenger Daric Wilson on taxi driver Salim Abubakar was violent and obviously so severe that it could inflict significant injury, as defined in D.C.Code § 22-404(a)(2) (2012 Repl.) (“[T]he term ‘significant bodily injury means an injury that requires hospitalization or immediate medical attention.”). Incensed by what he considered the driver’s failure to take him and his fellow passengers to the desired location, Mr. Wilson viciously attacked. Mr. Abubakar, In the course of that attack, Mr. Wilson choked Mr. Abubakar and then struck him above his left eye, causing very severe bleeding. The blow made Mr. Abu-bakar dizzy. Mr.' Wilson, who is much larger than his victim, then leapt upon Mr. Abubakar’s back, wrapped his own legs around Mr. Abubakar’s legs, and drove him face forward to the ground. Mr. Abu-bakar hit the ground so hard, according to Miv Wilson’s fellow- passenger, that it caused a “dull thud” that “sounded like it hurt.”
A woman was watching from her apartment window as the encounter unfolded. She saw the driver get out of his cab and turn in the direction of Mr. Wilson and his companions. While it did not appear to her that the driver was acting aggressively, Mr. Wilson was very aggressive and was acting like a “schoolyard bully.” She said that the much smaller victim appeared intimidated, especially when Mr, Wilson yanked on the sleeve of his victim’s jacket and attempted to pull the jacket over his head. At that point, she decided to intervene, and, as she went outside, instructed her husband to call the police. On her way out, she heard “a very guttural terrified scream” as if someone was “absolutely getting pummeled.” Mr. Wilson accompanied his onslaught against Mr. Abubakar with racist comments that Mr. Abubakar found “hurtful.”
The police officers who responded to the scene testified to Mr. Abubakar’s profuse bleeding caused by Mr. Wilson’s attack. One officer also testified that at that time Mr. Abubakar could not really talk that well, that at one point his jaw would not move, and that the medical first responders thought his jaw might be broken. After putting Mr. Abubakar.in the ambulance and tending to him for about a half-hour, the paramedics took him to the hospital in the-ambulance.
There is no explanation in the record for the absence of testimony of hospital personnel and of hospital records.
The majority opinion states that' “However bad the injuries may seem, the government’s ‘combined evidence’ fails to show that ‘immediate medical attention’ was required to ‘prevent[} long-term physical damage and other potentially permanent injuries’ or ‘abat[e] pain that is severe’ instead of ‘lesser, short-term hurts.’ ” Ante at 1217-18 (quoting Teneyck v. United States,
The majority’s view of the injuries that Mr. Wilson inflicted on.Mr. Abubakar is contradicted by the conduct of the police officers and later the paramedics on the scene, as well as by the testimony of Mr. Abubakar himself. An ambulance was summoned. The accompanying paramedics tended to Mr. Abubakar for as long as half an hour at the scene, and decided to take him to the hospital for treatment. Clearly this was not a case of minor injuries which trained medical personnel thought could be treated by “everyday remedies such as ice packs, bandages, and self-administered over-the-counter medications .... ” Quintanilla v. United States,
Even without testimony of hospital personnel or the submission of hospital records, there was ample evidence before the jury to support its finding of significant injury. In particular, the photograph of Mr. Abubakar taken at the hospital showing him in a neck brace, obviously placed on him by medically-trained personnel, gives strong support to the verdict, Mr. Abubakar testified that the beating caused him “great pain.” The jury could infer on this record that immediate medical attention was needed to abate that pain. The decision of the paramedics to transport Mr.- Abubakar to the hospital after tending to him for about one half hour at the scene of his beating, and the attention he received at the hospital as evinced’ by the photographs in evidence stand in sharp contrast with the evidence in a case like Quintanilla, supra,
The trial judge properly instructed the jury that:
[Significant bodily injury means an injury that requires hospitalization or immediate medical attention- in order to preserve the health and well-being of the individual.... [Y]ou must consider the nature of the alleged injury itself and the practical need in the ordinary course of events for hospitalization or prompt medical attention in determining whether significant bodily injury occurred here;
The jury heard the evidence and was convinced beyond a reasonable doubt that it demonstrated that Mr. Abubakar had suffered a significant injury based oh his need for immediate medical attention and treatment. More specifically, the verdict is supported by evidence about the beating, the bleeding, the pain, the dizziness, as well as Mr. Abubakar’s inability to move his jaw, which a medical technician thought was broken, the subsequent decision by trained medical personnel to seek further medical treatment at the hospital after tending to Mr. Abubakar for a half-hour at the scene, and the medical decision to fit Mr. Abubakar with a neck brace.
The attached photo of the beaten Mr. Abubakar at the hospital serves to describe his physical injuries better than the proverbial “thousand words.” The jury learned that the beating had á profound effect on the life of Mr. Abubakar, who testified that he is no longer driving a taxicab “because of this man[,]” referring to Mr. Wilson.
This court’s opinions have offered various formulations or examples in recent years in an effort to differentiate between the types of assault that constitute aggravated assault (serious injury), felony assault (significant injury), and simple assault (lesser injuries, neither serious nor substantial.) Many such cases are quoted in the majority opinion. The examples and formulations they offer frequently arise out of the facts of a particular case before the court. These opinions must, of course, be considered when this court is called upon to evaluate the facts of each appeal as it comes before us, but they should not be applied in a way that trenches upon the authority of a jury to consider the facts of a case and apply the statute as embodied in the jury instructions. As the Supreme Court noted in Jackson v. Virginia,,
The facts before the jury in this case, including the nature of the injuries inflicted on Mr. Abubakar and the obvious “practical need in the ordinary course of events for hospitalization or prompt medical attention” (in the words of the instructions the jury was applying), led the jury to find that appellant inflicted a significant injury on Mr. Abubakar. See id. The same reality that led the police officers to assist in bringing Mr. Abubakar into the care of the paramedics and led them, in turn, to treat and then transport him to the hospital gives a firm evidentiary foundation to the jury’s verdict. This court should not overturn the jury’s verdict that found that Mr. Abubakar suffered “injury that requires hospitalization or immediate medical attention,” and, thus, that Mr. Wilson committed a felony assault under D.C.Code § 22-404(a)(2).
Appendix
. This court has not held that the need for immediate-medical attention can be proven only by medical or other expert witnesses.
. Another appeal involving the sufficiency of the evidence to establish felony assault is pending before a division of this court. Belt v. United States, No. 15-CF-324.