WINSTON PEREZ HERNANDEZ, APPELLANT, v. UNITED STATES, APPELLEE.
No. 15-CM-130
DISTRICT OF COLUMBIA COURT OF APPEALS
December 29, 2022
Argued December 17, 2019
Appeal from the Superior Court of the District of Columbia (2014-CMD-013406) (Hon. Patricia A. Wynn, Trial Judge)
Alice Wang, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant.
Chrisellen R. Kolb, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, Elizabeth Trosman, and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Rosalyn Calbert Groce, Deputy Solicitor General, and John D. Martorana, Assistant Attorney General, filed a brief for amicus curiae, the District of Columbia, in support of appellee.
Opinion for the court by Senior Judge FISHER.
Opinion by Chief Judge BLACKBURNE-RIGSBY, with whom Associate Judge SHANKER joins, concurring in part, at page 38.
Opinion by Associate Judge EASTERLY, concurring dubitante, at page 39.
FISHER, Senior Judge: Over the last century, this court and its predecessors have tried many times, with mixed success, to define the common law crime of assault; some of the things we have said are difficult to reconcile. This case, which began with allegations that appellant had committed an assault with a beer bottle but morphed into something quite different, presents a fresh challenge. We must decide whether an offensive touching, performed with minimal force and not of a sexual nature, may be a criminal assault. We conclude that it may.
A. The Altercation on July 8, 2014
On July 8, 2014, a group of men — including appellant — gathered at the apartment of Alimamy Tarawallie to watch a World Cup soccer game. After the game, the group moved outside; someone went to a nearby store and returned with a large bottle of Guinness. While drinking beer from the bottle, appellant approached Mr. Tarawallie and began to speak with him. Mr. Tarawallie testified that appellant “used to be my friend, in fact, I think [of] him as my little brother.”
Mr. Tarawallie explained that appellant “came and the bottle was spilling, you know, from the bag they put it [in]. Then he came, he was talking to me and touching me at the same time. I told Mr. Winston [referring to appellant by his first name] not to touch me while he‘s talking to me. You know because it‘s almost — by touching me the smell will stay on my attires.” Appellant seemed to be offended and suggested that the request was racially motivated. Mr. Tarawallie replied that “it‘s nothing about color. You‘re black, me black. I told you to stop touching me if you talk. Just talk and I‘ll listen to you.” Mr. Tarawallie also
In the meantime, appellant stepped away and spoke to his friend Oscar in Spanish, a language Mr. Tarawallie did not understand. Appellant then walked back and demanded to know, “If I touch you, what you going to do [to] me?” Mr. Tarawallie answered, “if you touch me, I‘ll push you.”1 He testified (and demonstrated) that, in response, appellant placed “his finger [or fingers] on my face, . . . right in my eyes, like this.” Mr. Tarawallie reacted by pushing appellant, who then took the Guinness bottle he was holding and “smashed it . . . on [Mr. Tarawallie‘s] head.” Both men ended up in a tussle on the ground, during which appellant banged Mr. Tarawallie‘s head against the sidewalk. Appellant then “ran away” and Mr. Tarawallie called 911. Officer William Schoppmann and Detective Ryan Savoy responded to the call.
The witnesses who remained on the scene were not cooperative. Officer Schoppmann testified about the location of the beer bottle (found on the grass, some distance away from where they were interviewing Mr. Tarawallie) and about
During the bench trial, Mr. Serrano Baez — who attended the gathering and saw part of the altercation — testified that Mr. Tarawallie was upset by the outcome of the soccer game and that, after they moved outside, appellant repeatedly mentioned the loss, telling Mr. Tarawallie that he should not feel bad because he had not lost any money. Mr. Baez heard Mr. Tarawallie warn appellant “don‘t touch my arm or you‘re going to see what is going to happen to you.” Mr. Baez explained that appellant did touch Mr. Tarawallie again, at which point Mr. Tarawallie “reacted violently and . . . punched” appellant. Mr. Baez testified that the men ended up in a scuffle on the ground during which Mr. Tarawallie‘s head hit the pavement. In Mr. Baez‘s estimation, Mr. Tarawallie “was the one who attacked first.” Appellant did not testify.
In his closing argument, defense counsel attacked Mr. Tarawallie‘s credibility, asserting that he “made up” the blow with the beer bottle in an effort to explain how he sustained injuries. Counsel offered a different explanation. “Mr. Perez Hernandez was being playful, was being jocular and kind of pushing.” When appellant touched him again, Mr. Tarawallie “escalat[ed] it into an actual fisticuffs fight.” But that was an overreaction. “A touch, itself, did not warrant that, . . . it was not an offensive touch in and of itself based on their prior history together as friends . . . .” Perhaps appellant exercised bad judgment. “Was it an assault? No.”
During rebuttal, the prosecutor responded that “[t]he touch by Mr. Perez Hernandez is not why we are here. That isn‘t assault, it‘s an unwanted touching.” The government urged the court to find that appellant assaulted Mr. Tarawallie when he struck him with a beer bottle. After questioning from Judge Wynn, however, the government asserted that the touching of Mr. Tarawallie (at least the second touching) was an assault. “[A]n unwanted touching is standard textbook assault.” Following further discussion, the court said it would look at the cases
Ultimately, Judge Wynn was not persuaded “beyond a reasonable doubt that the defendant hit the complaining witness with a bottle” or that “the defendant poked the complaining witness in the eyes.” The court did find, however, that appellant “poked” Mr. Tarawallie “somewhere in his body” despite being admonished not to do so. The court also found “that the parties were at least acquaintances and maybe could even be described as friends.”
The trial court reasoned that “a poke” would not usually result in an assault charge. “I think if we had one poke that it would not meet the requirements of something that would be objectively offensive to a person of reasonable sensibility . . . .” However, a second poke following a warning was different. “[N]ot only does that indicate that this person objectively [sic] finds the poking offensive, but also that objectively a person reasonably would find that intentional contact after the warning to be objectionable and offensive.” Regarding the element of intent, the trial judge explained, “I think that there has to be an intent to do the touching, but there does not have to be an intent to be offensive. It‘s simply
C. The Appeal
On appeal, the division majority concluded that the evidence was legally insufficient to sustain appellant‘s conviction for simple assault under an attempted battery theory. The government had proven no more than an unwanted touching, but “there must be proof that the defendant acted with ‘force or violence.‘” Perez Hernandez v. United States, 207 A.3d 594, 601 (D.C. 2019). “A touch is inherently neither ‘forceful’ nor ‘violent’ within the common understanding (or even legal understanding) of those terms.” Id. at 600 (footnote omitted). Nor did appellant‘s conduct fit within the category of cases treating a nonviolent sexual touching as an assault. Id. at 602 n.17.
The court decided to rehear the appeal en banc, and the opinions of the division were vacated. See Perez Hernandez v. United States, 207 A.3d 605 (D.C. 2019). Following supplemental briefing and oral argument before the court sitting en banc, we now hold that the evidence was sufficient to support a conviction for assault but remand for the trial court to make additional findings in light of this opinion.
II. Legal Analysis
With ample justification, a distinguished jurist from Maryland has cautioned that “[c]ommon law assault . . . is a chameleon concept that no one should attempt to describe too precisely. It takes on different colorations in different factual settings.” Lamb v. State, 613 A.2d 402, 411 (Md. Ct. Spec. App. 1992) (opinion for the court by Moylan, J.). Duly cautioned, and informed by our own experience, we forswear any effort to articulate a new definition that encompasses all types of assault. We focus instead, in the common law tradition, on deciding the case before us. See Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 812 (D.C. 2011) (en banc) (“The development of common law proceeds on a case-by-case incremental basis, and it is on that solid factual ground that judicial opinions build on a framework for analysis based on certain general precepts.“).
Our statute prohibiting simple assault provides that “[w]hoever unlawfully assaults, or threatens another in a menacing manner, shall be fined not more than the amount set forth in § 22-3571.01 or be imprisoned not more than 180 days, or both.”
B. Our Authority
In 1901 “Congress codified the law of the District of Columbia” and, in doing so, recognized that “[t]he common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly
While we will focus much of our inquiry on common law understandings, that decisional law was neither uniform nor static, but differed from place to place and evolved as courts faced new factual scenarios. We emphasize, in addition, that “when the Maryland common law was incorporated into this jurisdiction, it was ‘not a bar to the exercise of our inherent power to alter or amend the common law.‘” Ashby v. United States, 199 A.3d 634, 665 (D.C. 2019) (quoting Williams v. United States, 569 A.2d 97, 100 (D.C. 1989)). “This court . . . has repeatedly rejected the view that the common law of the District of Columbia was ‘frozen’ in
We cannot, of course, create new crimes, and we are not doing so. Congress codified the crime of assault in 1901, and, as explained above, we have long construed the statute to prohibit the common law offense of assault. “The parties agree that common-law simple assault encompasses ‘even the slightest offensive touching.‘” Reply Brief for Appellant at 3 (quoting Johnson v. United States, 559 U.S. 133, 139 (2010)). Here, as in Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), we exercise our authority to clarify the elements of a crime created by the legislature. See id. at 319-20 n.12.4
“[I]n the early law a criminal assault was an attempt to commit a battery and that only.” Rollin M. Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn. L. Rev. 71, 72 (1962). Foundational case law in the District of Columbia defined common law assault as “an attempt with force or violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.” Patterson v. Pillans, 43 App. D.C. 505, 506–07 (D.C. Cir. 1915). Although Patterson was a civil case, this definition of assault has also been used in criminal cases. See Guarro v. United States, 237 F.2d 578, 580 (D.C. Cir. 1956) (quoting Patterson). Indeed, the Patterson court adopted the definition, which it characterized as “comprehensive,” from a criminal case. See Hays v. People, 1 Hill 351 (N.Y. Sup.Ct. 1841).5 Over time, the concept of a criminal assault has evolved to incorporate principles from the law of torts.6
The three elements of assault are: (1) an act on the part of the accused (which need not result in injury); (2) the apparent present ability to injure the victim at the time the act is committed; and (3) the intent to perform the act which constitutes the assault at the time the act is committed. . . . The intent element requires a general intent to perform the act, rather than specific intent. . . . The assailant, therefore, need not [have] a conscious purpose to inflict injury.
Mobley v. United States, 101 A.3d 406, 419 n.10 (D.C. 2014) (quoting or citing Ruffin v. United States, 642 A.2d 1288, 1295 (D.C. 1994); Smith v. United States, 593 A.2d 205, 207 (D.C. 1991); and Sousa v. United States, 400 A.2d 1036, 1044 (D.C. 1979)).
Even oft-repeated definitions have proven to be imprecise, however. Although we have defined assault as “an attempt with force or violence to do a corporal injury to another[,]” Patterson, 43 App. D.C. at 506, “‘violence’ in its ordinary meaning is not a necessary element of assault.” Harris v. United States, 201 A.2d 532, 534 (D.C. 1964) (“the jostling of [the victim by a pickpocket robber], the fumbling with his trouser cuffs, and the impact at the area of his hip pocket constituted sufficient evidence” of assault). And no physical injury need have resulted. Dunn v. United States, 976 A.2d 217, 222 (D.C. 2009) (“[U]nder our established law, Dunn‘s shove was an assault even if it did not cause Agneu any physical harm.“).
Our assault statute also forbids “threaten[ing] another in a menacing manner.”
Our precedent also recognizes that “non-violent actions involving sexual misconduct may constitute assaults.” Guarro, 237 F.2d at 580.7 We have referred to “non-violent sexual touching assault as a distinct type of assault,” Mungo, 772 A.2d at 245, but an offensive sexual touching might be more accurately described as a battery, prosecutable in this jurisdiction as an assault. See Brief for Appellant at 10 n.7 (non-violent sexual touching “was considered a battery at common law“).
We have said that it does, and we have held that it does. See Comber v. United States, 584 A.2d 26, 50 (D.C. 1990) (en banc) (the crime of simple assault “is designed to protect not only against physical injury, but against all forms of offensive touching“); Dunn, 976 A.2d at 211 (conviction for assault affirmed because shove by defendant was offensive to victim); Ray, 575 A.2d at 1199 (spitting on someone is an assault because it is “highly offensive“). These and other rulings recognize that such touchings not only offend a person‘s reasonable sense of personal dignity, but also may trigger a breach of the peace, as happened here. These cases also are consistent with the common law understanding of battery, “which held th[e] element of ‘force’ to be satisfied by even the slightest offensive touching.” Johnson v. United States, 559 U.S. 133, 139 (2010); see also id. at 146 (Alito, J., dissenting) (“The term ‘force,’ as the Court correctly notes, had a well-established meaning at common law that included even the ‘slightest offensive touching.‘“); accord, United States v. Castleman, 572 U.S. 157, 162 (2014) (referring to “the common-law meaning of ‘force‘— namely, offensive touching“).
The District of Columbia does not have a separate statute criminalizing the common law offense of battery. This omission apparently has had little or no practical effect, but it undoubtedly has led to difficulty in defining the offense of assault. “Experience reflects that th[e] offense [of assault] is most often charged in circumstances involving violent behavior.” Mungo, 772 A.2d at 245. In other words, completed batteries have been routinely prosecuted as assaults.8 In Ray v. United States, 575 A.2d 1196 (D.C. 1990), and again in Mahaise v. United States, 722 A.2d 29 (D.C. 1998), we explained that it makes no legal difference whether the facts underlying a conviction for assault show “not just an attempted battery but a completed battery.” Ray, 575 A.2d at 1199; see also Mahaise, 722 A.2d at
E. The Positions of the Parties
In response to our request for supplemental briefing, the parties have addressed the elements required to prove simple assault in this type of case. “The parties agree that common-law simple assault encompasses ‘even the slightest offensive touching,‘” Reply Brief for Appellant at 3 (quoting Johnson, 559 U.S. at 139), “‘even though it causes or threatens no actual physical harm to the victim.‘” Id. (quoting Ray, 575 A.2d at 1199).
Moreover, both parties urge us to employ the mental states of knowledge and purpose used in the Model Penal Code.10 At this point, the harmony ends.
Appellant Perez Hernandez argues that “a subjective intent to injure is an essential element of attempted-battery assault,” meaning that it is necessary to have “an intent to harm or offend, and not merely ‘an intent to do the touching.‘” He advocates an objective standard of offensiveness: “[t]o qualify as ‘offensive,’ . . . a touching must be not only unwanted, but offensive to a person of reasonable sensibility . . . under the surrounding circumstances.” Thus, appellant asserts, “to constitute a simple assault, an unwanted touching must be both objectively and intentionally offensive.” The government agrees that, “as a general matter, the test is what would be offensive to an ordinary person not unduly sensitive as to…continued
Some of the disagreement between the parties undoubtedly is produced by the difficulty inherent in rephrasing the familiar (but elusive) terms “specific intent” and “general intent” to satisfy the modern preference for the mental states employed in the Model Penal Code. Further divergence stems from disagreement about what the elements of simple assault are, or should be. Our goal in this case will be to adapt and to clarify, not to forsake our pertinent common law rulings.
F. Making The Linguistic Transition
We historically have categorized an attempted battery (or completed battery) assault as a “general intent” crime, meaning that the government must prove that “a defendant intended to do the acts which constitute the assault.” Smith v. United States, 593 A.2d 205, 207 (D.C. 1991). See also Lewis v. United States, 938 A.2d 771, 783 (D.C. 2007) (“[t]o convict someone of assault under
We recognize, however, that the historical categories of general intent crimes and specific intent crimes have been subject to much criticism. See, e.g., United States v. Bailey, 444 U.S. 394, 403 (1980) (the “venerable distinction” in the common law between general intent and specific intent has been “the source of a good deal of confusion”). While sitting en banc in 2017, we voiced our “concern about the use of ‘general’ and ‘specific’ intent” in lieu of “more particularized and standardized categorizations of mens rea.” Carrell v. United States, 165 A.3d 314, 323–24 (D.C. 2017) (footnote omitted). We added that, “in the absence of a
But the absence of statutory direction does not give us latitude to design as we please. For more than a century, our common law decisions have supplied the mens rea required for the various forms of assault; we therefore do not write on a blank slate. Moreover, when interpreting criminal statutes that are silent with respect to the required mental state, we read into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Elonis v. United States, 575 U.S. 723, 736 (2015) (quoting Carter v. United States, 530 U.S. 255, 269 (2000)). We also recognize that “basic principles of statutory construction in the criminal law context . . . necessitate[] proof of mens rea with respect to both its conduct and result elements.” Carrell, 165 A.3d at 320 (citing Elonis, 575 U.S. at 738-39).
Our examination of mens rea cannot end here, however. “[T]he presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).15 In circumstances like these, what makes the contact a crime is the offensive nature of the touch.16 Cf. Elonis, 575 U.S. at 737 (“Here
Appellant emphasizes that some common law sources referred to touching another “in anger,” see Cole v. Turner, 90 Eng. Rep. 958; 1 William Hawkins, A Treatise of the Pleas of the Crown at 263-64 (6th ed. 1788); “in an angry, or revengeful, or rude, or insolent manner,” see Hawkins, id.; or “willfully or in anger,” see Robert Desty, A Compendium of American Criminal Law § 130e, at 417 (1882), but these precedents do not oblige us to use words such as “angry” or “rude” or to treat an offensive touching assault as if it were (in the old style) a “specific intent” crime. Many of the reported decisions are too cryptic to be helpful in our present undertaking, and it seems from our current vantage point that the judges who wrote them (or the reporters who summarized oral rulings from the bench) were no more successful than we have been in articulating the nuances of
We therefore hold that the mens rea requirement for the offensiveness of a touch may be satisfied by applying the Model Penal Code concepts of purpose and knowledge. See generally Carrell, 165 A.3d at 324 (explaining that, with regard to the “result element” of our threats statutes — which lack an explicit mens rea requirement, “the government may carry its burden of proof by establishing that the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat”). See Model Penal Code § 2.02(2)(a)(i) (a person acts purposely with respect to a result of his conduct if it is “his conscious object . . . to cause such a result”). Similarly here, touching someone for the purpose of offending him clearly would satisfy the mens rea requirement. But while a purposeful state of mind surely will suffice, it is not necessary; actions taken with knowledge that the touching will be offensive also “separate wrongful
“A person acts knowingly with respect to a material element of an offense when: . . . if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.” Model Penal Code § 2.02(2)(b)(ii). Such awareness may be proven by direct or circumstantial evidence. Contrary to appellant’s argument, it is not necessary to adopt the formulation “subjective intent to offend” in order to avoid “criminalizing inadvertent rudeness.” See Borden v. United States, 141 S. Ct. 1817, 1823 (2021) (plurality opinion) (“A person who injures another knowingly, even though not affirmatively wanting the result, still makes a deliberate choice with full awareness of consequent harm.”).17
Furthermore, in assessing the offensive nature of the contact, the finder of fact must consider the totality of the circumstances. A touching is offensive if it
G. Recklessness Deferred
Although the parties have briefed the issue, we do not need to decide whether recklessness will suffice as the mens rea for an offensive touching assault.19 The trial court did not base its finding of guilt on recklessness.
Moreover, cases where the evidence shows only recklessness, but not purposeful or knowing conduct, should be rare, and it is challenging to create realistic and helpful hypotheticals. “[W]e prefer to make a more informed judgment on the question whether recklessness suffices in the context of a factual situation that concretely presents the issue . . . .” Carrell, 165 A.3d at 325. “Such prudence is nothing new.” Elonis, 575 U.S. at 741; see id. at 740 (declining to address whether the mental state of recklessness would be sufficient to prove the crime of communicating a threat under
III. The Evidence Was Sufficient
When the charge of assault is based on an offensive touching, it is fruitless to think of the crime as “an attempt with force or violence to do a corporal injury to another.” Quoting Patterson, 43 App. D.C. at 506. Instead, we should recognize that the conduct is an assault because it is a completed battery. The government must prove that the defendant (1) touched another; (2) that he did so purposely, not by accident; (3) that the touching offended the other person;21 (4) that the touching would offend a person’s reasonable sense of personal dignity; and (5) that the
Appellant does not dispute that he touched Mr. Tarawallie deliberately or “purposely.”23 Furthermore, in the circumstances of this case, a reasonable fact-finder could conclude that the touching was offensive. Although Judge Wynn did not use terms from the Model Penal Code, she found facts sufficient to permit the conclusion that appellant knew the victim would find the contact offensive but touched him nevertheless.
Nevertheless, the court did not expressly state that appellant “knew” that Mr. Tarawallie would be offended, and it is not clear that such a finding is implicit in what the court said. Under these circumstances, we remand the case to the trial court for further findings on whether appellant knew when he acted that the touching would offend Mr. Tarawallie.
A. Factual Findings
In addition to contesting the sufficiency of the evidence, appellant asserts that his conviction must be reversed because the trial court relied upon two clearly erroneous factual findings. Brief for Appellant at 30 (“The trial court’s findings that appellant ‘poked’ the complainant, and that the two were ‘not close’ friends, were clearly erroneous.”). We are not persuaded either that the findings were clearly erroneous or that they would affect the court’s finding of guilt if they were.
Because the amount of force used does not matter, nothing turns on whether appellant “poked” Mr. Tarawallie instead of “touched” him. Appellant told Detective Savoy that he touched Mr. Tarawallie on the arm again, and Mr. Baez testified that he saw appellant touch Mr. Tarawallie again after being told not to do so. The court knew that the two men “were at least acquaintances and maybe could even be described as friends.” The closeness of their relationship might be material if appellant Perez Hernandez did not anticipate that Mr. Tarawallie would find his actions offensive, but the trial court found that Mr. Tarawallie gave an explicit warning before appellant touched Mr. Tarawallie again.
In his original brief appellant raised two additional issues that the division did not reach. We address those issues now instead of referring them back to the division.
Appellant argues first that there was a prejudicial variance because the government changed its theory of the case during rebuttal argument. We are not persuaded. Using the language of the statute, the information charged that appellant “unlawfully assaulted and threatened Alimamy Tarawallie in a menacing manner.” “The government did not specify in the information the means by which the assault was committed, but it had no obligation to do so.” Burgess v. United States, 681 A.2d 1090, 1096 (D.C. 1996). Appellant did not move for a bill of particulars.
The affidavit in support of the arrest warrant (for assault with a dangerous weapon — the bottle) explained that appellant kept touching Mr. Tarawallie, who asked appellant to stop. The affidavit also mentioned that appellant placed his finger in the victim’s eye, hit him with a beer bottle, and struck him with closed
The prosecutor previewed the evidence in her opening statement. Before appellant struck Mr. Tarawallie with the beer bottle, she said, appellant touched Mr. Tarawallie with his finger and was told to stop; Mr. Tarawallie also told others nearby that he didn’t want appellant touching him. Nevertheless, appellant approached, put his finger in Mr. Tarawallie’s eye, and “basically said what are you going to do?” In response, Mr. Tarawallie pushed appellant with both hands, and appellant struck Mr. Tarawallie with the bottle. The witnesses discussed all of these aggressive actions.
When the prosecutor shifted her focus from the beer bottle to the offensive touching, as described above, defense counsel did not seek a continuance, request a mistrial, or ask to reopen the evidence, perhaps because he did not dispute that the touching occurred. Instead, he argued at some length that the touching was not a crime. Before the court ruled, counsel filed a legal memorandum agreeing that an offensive touching could constitute assault, but repeating his argument from closing that the context of the interchange made this touching friendly and not offensive.
We also observed that Mr. Burgess’s claim would fail even if he could demonstrate that a variance occurred. 681 A.2d at 1097 n.8. “When asserting a variance, a defendant has the affirmative obligation to show prejudice to the
C. Rule 23(c) Findings
Appellant also asserted that we should remand the case to the trial court “to provide findings compliant with Rule 23(c) as requested by defense counsel before trial.” We decline to do so.
Before the first witness was called, defense counsel informed the court that “we’re asking for [Rule 23(c)] findings at the conclusion of the trial as always.”24 Counsel did not specify what findings he wanted the court to make. Twenty days later, before announcing that it found appellant guilty of assault, the court made extensive findings, some of which are detailed above. It then asked the parties whether they had “any questions about the factual findings or the verdict, anything that you want me to clear up in case another court is looking at this at some point” in the future? Appellant’s counsel said “No, Your Honor.” Under these
V. Conclusion
The evidence was sufficient to prove the elements of an offensive touching assault, but we vacate the judgment and remand the case for the trial court to make explicit findings on whether appellant knew when he acted that the touching would offend Mr. Tarawallie.
So ordered.
BLACKBURNE-RIGSBY, Chief Judge, with whom SHANKER, Associate Judge, joins, concurring in part: I join the opinion of the court, except to the extent that the court concludes that a remand is necessary. The trial court implicitly concluded that appellant “knew” that his touch would offend Mr. Tarawallie. Here, appellant poked Mr. Tarawallie two times, one of which came “after a
once the person says don’t poke me, or if you do that again I’ll punch you, or do it and see what happens, not only does that indicate that this person objectively finds the poking offensive, but also that objectively a person reasonably would find that intentional contact after the warning to be objectionable and offensive.
The trial court further explained that “[i]t’s simply a question of whether the person who is being touched, whether that person is reasonable in finding the touching to be offensive.” These findings are sufficient under the standard set forth in the majority opinion that the trial court must find that “appellant knew when he acted that the touching would offend Mr. Tarawallie.” Therefore, in my view, a remand is not necessary. In all other respects, I join.
EASTERLY, Associate Judge, concurring dubitante: At first blush, the question presented in this case—whether the act of touching another person after being asked not to do so is an assault—may seem inconsequential and not worth the extensive amount of time devoted to its consideration. But answering this question, which invites consideration of where the outer boundaries of the criminal law lie and when law enforcement should be used to enforce social norms, has
I am reluctant to sign on to the decision of the en banc court for four reasons:
- a beating or whipping (or at the very least slapping that led to bleeding) (Mostyn v. United States, 64 F.2d 145 (D.C. 1933); Landrum v. United States, 63 F.2d 990 (D.C. 1933); Delaney v. United States, 190 A.2d 100 (D.C. 1963); Lee v. United States, 831 A.2d 378 (D.C. 2003); Alfaro v. United States, 859 A.2d 149 (D.C. 2004); Lewis v. United States, 938 A.2d 771 (D.C. 2007); Contreras v. United States, 121 A.3d 1271 (D.C. 2015));
- rape, attempted rape, and other forms of sexual assault, including against children (Beausoleil v. United States, 107 F.2d 292 (D.C. Cir. 1939); Ingram v. United States, 110 A.2d 693 (D.C. 1955); Guarro v. United States, 237 F.2d 578 (D.C. Cir. 1956); In re A.B., 556 A.2d 645 (D.C. 1989); Smith v. United States, 593 A.2d 205 (D.C. 1991); Mungo v. United States, 772 A.2d 240 (D.C. 2001));
- pointing a gun at or shooting another (Robinson v. United States, 506 A.2d 572 (D.C. 1986); Ruffin v. United States, 642 A.2d 1288 (D.C. 1994); Mobley v. United States, 101 A.3d 406 (D.C. 2014));
- shoving a security guard (Dunn v. United States, 976 A.2d 217 (D.C. 2009));
- crashing a car into another car (Vines v. United States, 70 A.3d 1170 (D.C. 2013));
- spitting (Ray v. United States, 575 A.2d 1196 (D.C. 1990));
- pickpocketing or attempted robbery (Harris v. United States, 201 A.2d 532 (D.C. 1964); Anthony v. United States, 361 A.2d 202 (D.C. 1976));
- taking a phone and a cigarette from another’s hand (Mahaise v. United States, 722 A.2d 29 (D.C. 1998)).
Second, I question our judicial crime-creation authority. In particular, I am skeptical that when Congress codified the common law of assault such as it existed in 1901 it intended to delegate to judges the perpetual power to revise and expand upon this crime in whatever way we saw fit. But see ante at 12. It is likewise unclear to me that
While I recognize that we have decided that we have the power to continue to develop the criminal common law, see ante at 12, there is a difference in my view between interpreting the common law with a purpose to ensure due process and double jeopardy guarantees are realized1 and announcing new grounds for criminal conviction. The former seems well within our judicial role to uphold the Constitution, but at least in the modern era “[i]t is the responsibility of the legislature, not the Court, . . . to define a crime, and ordain its punishment.” Bond v. United States, 572 U.S. 844, 867 (2014) (Scalia, J., concurring) (internal quotation marks omitted). Since Congress granted the District home rule, the Council of the District of Columbia has spoken for the people of this jurisdiction, deciding whether certain conduct is a crime and, if so, how to categorize, define, and punish it.
Fourth, our venture into common-law crime creation is inopportune. Recognizing that, in contrast to the majority of states around the country, the District failed to modernize its criminal laws in the mid or late 20th century, the Council created the Criminal Code Reform Commission in 2016 to rewrite many of our criminal laws and directed it, inter alia, to “use clear language,” “apply consistent, clearly articulated definitions,” “describe all elements, including mental