As sixteen-year-old D.P. was traveling home from school on a crowded Metrobus, she and two girlfriends started a fight with M.G., another girl from a different high school. The entire incident was captured on video by the Metrobus camera. From start to finish, the fight lasted approximately fourteen seconds. D.P. and her friends pushed through other passengers standing in the aisle to get at M.G., exchanged blows with M.G., and then got off the bus. M.G. stood her ground for most of the incident but, at the very end, disappeared from view. Apparently, she hit her head on a pole, and she was knocked unconscious. A friend of M.G.’s helped her into a seat, where she quickly revived. Minutes later, M.G. walked off the bus and declined to go to the hospital.
One of D.P.’s friends pled out to simple assault, a misdemeanor, and the other friend’s case was apparently never adjudicated. But D.P. went to trial. The trial court adjudicated her delinquent after finding her involved in the most severe form of assault in the District, aggravated assault, as well as its lesser included offense, assault with significant bodily injury, both felonies. D.P. now appeals, arguing that the evidence was insufficient to support a finding of her guilt of (or involvement in) either crime. We agree.
Fights on public transit are unquestionably a cause for concern, and D.P.’s actions cannot be condoned, but D.P. did not engage in felonious conduct in this case. As to aggravated assault, the evidence is at the very least inadequate to demonstrate that D.P. possessed the requisite mens rea under the government’s theory of the case: extreme indifference to human life, equivalent to the mental state required for second-degree murder. As to assault with significant bodily injury (“felony assault”), M.G.’s minimal bruising and brief unconsciousness do not, under this court’s binding precedent, amount to the kind of “significant” injury that would take this incident out of the realm of simple assault. Thus, we reverse and remand.
I. Facts
Around 3:35 p.m. on September 27, 2012, sixteen-year-old D.P. boarded a Metrobus along with several other teenage companions, including codefendants M.P. and I.C. The group, identifiable as students from the same school by their matching school uniforms, filed onto the bus and seated themselves in the rearmost several rows.
Then, around 3:45 p.m., fifteen-year-old M.G. boarded the bus with H.A. and another group of teenagers; they were also wearing school uniforms, but theirs were different from those of D.P. and her companions. M.G. and her schoolmates moved to the center area of the articulated (double-length) bus. By this time, the bus was quite crowded, and there were no more seats available. M.G. and H.A. squeezed in alongside other standing passengers, holding onto the bus railings.
M.G. noticed D.P. and her friends in the back of the bus; she testified that they were being “loud,” and were shouting for the students from M.G.’s school to come to the back of the bus. H.A. additionally testified that teenagers at the back of the bus were “yelling” that students from his and M.G.’s school were “bitches.” Neither M.G. nor H.A. knew D.P. or her friends.
After about two minutes of this, at about 3:47 p.m., D.P. and her friends stood up and, moving single file — with M.P. in the lead, followed by D.P. and then I.C.— pushed their way to the center of the bus where M.G. stood. Seemingly without warning, M.P. punched M.G. in the face.
A brief scuffle ensued. M.P. continued to hit M.G., who tried to fight back M.G., but initially hit only air (or each other) until they were able to push past two women who were standing in the aisle and partially blocking their path. For the next several seconds, D.P. and her friends swung at M.G., but because of the crowded conditions it is difficult to see on the video where their blows landed. M.G. described that “we were just going back and forth,” that she was “getting multiple hits,” and that she “was hitting back,” though she did not know whether any of her punches connected. Meanwhile, nearby passengers attempted to pull the girls apart or at least push them away.
After approximately fourteen seconds,
About two minutes later, M.G. stood up and walked unassisted to the front of the bus where she sat down again, with H.A. beside her. The bus driver told M.G. that an ambulance had been called to take her to the hospital, but M.G. told the driver that she did not want to go. Two emergency medical technicians (“EMTs”) subsequently entered the bus and spoke briefly to M.G. and H.A. before escorting them out the front door. M.G. testified that she went with the EMTs to their ambulance, where they “checked [her] blood pressure,” “checked [her] head,” and asked whether she was okay. From this examination, the EMTs apparently determined that M.G. did not need to go to the hospital, but they “made” her call her father.
The government presented no medical evidence regarding the nature of M.G.’s injuries, and M.G. provided no testimony that she had received any medical care after this incident. M.G. testified that “[t]he day after [she] had a headache,” and that “for like two, two/three days” after-wards she experienced “minor headaches,” but she did not go to the hospital. When asked if she had “any injuries, any swelling, anything at all” as a result of the incident,'the only injury she identified was “the one when I first got hit, that’s the only one I had,” referring to the right side of her face where she had first been punched by M.P.
The government charged M.P., I.C. and D.P. with aggravated assault and assault with significant bodily injury. M.P. pled out to simple assault. There is no indication in the Superior Court docket that delinquency proceedings against I.C. were ever pursued. D.P. alone went to trial.
The government’s theory at trial was that D.P. was involved in both crimes as an aider and abettor, and the government and the court correctly understood that the government was required to establish the same mens rea for D.P. as it would if she were the principal actor committing the offense.
II. Standard of Review
The only claims before us on appeal are challenges to the sufficiency of the evidence. We review sufficiency claims de novo, “view[ing] the evidence in the light most favorable to the prosecution, with due regard for the right of the ... trier of fact[ ] to weigh the evidence, to determine the credibility of witnesses, and to draw reasonable inferences.” Nero v. United States,
III. The Insufficiency of the Evidence to Support D.P.’s Conviction for Aggravated Assault
The District has a three-tiered classification system of assault. Simple assault is the lowest-level offense. A misdemean- or, it does not require that any actual injury be incurred and requires only general intent to perform the assaultive act.
D.P. argues that the government’s evidence in this case was insufficient to establish her guilt for aggravated assault both because there was no proof that she caused M.G. a “serious bodily injury,” and because there was inadequate proof that, manifesting extreme indifference to human life, she intentionally or knowingly created a grave risk of serious bodily injury under D.C.Code § 22-404.01(a)(2).
As we explained in Comber, depraved heart malice can be properly inferred
The circumstances of this case are not analogous, and the trial court could not fairly infer beyond a reasonable doubt the “heightened culpability,” see id. at 815, that aggravated assault requires. D.P. and her girlfriends did not act in a manner that manifested the requisite gross recklessness/depraved heart malice. D.P. and her friends were unarmed; they had no knives, no guns, and no other implements that could be recklessly employed. Their assaultive conduct was brief, lasting approximately fourteen seconds. A number of their blows did not even connect (at least not with M.G.). Their choice of venue meant that they would be on display and likely impeded in achieving any objective to injure M.G. — if not because concerned citizens would intervene to assist her, then because their fellow travellers would want to quickly quell the unrest to protect themselves. Indeed, it suggests that, more than inflicting injury, intimidation and harassment were their likely objectives. Without question, the fact that D.P. and her friends chose, seemingly on
The trial court determined, however, that it was enough that D.P. “partic-ipat[ed] in a group attack in which multiple blows were landed with force,” and the government seeks to defend that ruling.
The incident captured in the Metrobus video is disturbing, and we do not mean to suggest that it was not a frightening experience for M.G. But the scene of D.P. and her girlfriends throwing punches at M.G. for fourteen seconds and then walking away when M.G. was no longer fighting back, does not evoke the reckless disregard for human life or brutality we have held in other cases supported a conviction of aggravated assault. Thus we conclude that the government failed to prove that D.P. possessed the requisite mental state to support her conviction on this charge. Our holding is consistent with our three-tiered classification of assault crimes in the District, and reinforces the restricted application of aggravated assault to the worst cases where there is both “heightened culpability” at the level of gross reeklessness/depraved heart malice and serious bodily injury results. Perry,
IY. The Insufficiency of the Evidence to Support D.P.’s Conviction for Felony Assault
D.P. additionally argues that the evidence was insufficient to establish that she
As discussed above, the District now has a three-tiered classification system for assault crimes, but for many years the government had only two choices when considering a prosecution for assault: simple assault or aggravated assault. The Council added the crime of assault with significant bodily injury in 2006 to “fill the gap”
“Significant bodily injury” is defined in the felony assault statute as “an injury that requires hospitalization or immediate medical attention.” D.C.Code § 22-404(a)(2). This court’s decisions in Quintanilla v. United States,
As interpreted by this court, “immediate medical attention” refers to “treatment”; in other words, “the ‘attention’ required ... is not satisfied.by mere diagnosis.” Quintanilla,
Applying this standard in Quintanilla, this court considered whether the assault victim had received “medical attention” because she was “checked ... out” “by some EMTs” who responded to the scene with an ambulance. These EMTs “took pictures of [her] head where [she] told them [she] had been hit,”
This court again concluded that the government failed to prove an injury was “significant” in Teneyck,
By contrast, in Nero v. United States, this court determined that a gunshot wound was “significant” where the victim was “shot at close range and the bullet traveled through his bicep, causing ‘obvious pain’ and bleeding,” and the victim’s doctor “testified that similar wounds can be life-threatening.”
The injuries experienced by M.G. in this case are properly categorized with those described in Quintanilla and Ten-eyck, not Nero and Blair. Apart from bruising to the face, M.G. was briefly unconsciousness for a minute or less, and “for like two, two/three days” after the incident she experienced “minor headaches.” For these injuries she did not require or receive medical attention as we have defined that term. Immediately after the incident, the EMTs “checked [her] head” and her blood pressure, but then released her (after she called her father), apparently concluding that it was appropriate to send her home without any further evaluation or care. Cf Teneyck,
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We reiterate that the unprovoked assault of M.G. by D.P. and her friends cannot be condoned. But the government failed as a matter of law to prove either that D.P. had the requisite state of mind for aggravated assault, or that M.G. required medical treatment for her injuries such that they amounted to the requisite “significant bodily injury” for felony assault. This assault was simply not “of the same order of magnitude” as those we have held warranted an aggravated assault or, in the lesser alternative, a felony assault conviction. See Swinton,
So ordered.
Notes
. The government presented the following facts via testimony from the complainant, M.G. and her companion on the day of the assault, H.A., and the display of video footage from the Metrobus’s security camera. The government supplied a copy of this footage to the court. It shows video from the relevant timeframe from eight different vantage-points on the bus. The footage provides solely a visual record; there is no audio component.
. The government represented at oral argument that it was “about an eighteen-second assault” but, in its brief, it specifically identified "14:47:54” as the time on the tape when M.P. threw the first punch, and "14:48:08” as the time when the fight broke up.
. In its brief, the government inconsistently argues that D.P. and her friends "continued the assault until M.G. was knocked unconscious,” and that they "continued the assault even after [M.G.] fell to the floor.” But the government never made the latter argument at trial and the trial court never made a finding that the assault continued after M.G. was knocked down. Based on our review of the videotape it is impossible to see whether D.P. and her friends continued to hit M.G. after she hit her head and fell to the ground, and there is no other evidence in the record to support the government’s representation on appeal that they did.
. There appears to have been some miscom-munication between the government and D.P.'s counsel regarding an offer to permit D.P. to plead guilty to simple assault; on the day of trial, counsel for D.P. indicated that D.P. was willing to plead guilty to this charge, but the government stated that the plea offer was no longer available.
. See Perry v. United States,
. D.C.Code § 22-404(a)(1) (2012 Repl.); see also Macklin v. United States,
. D.C.Code § 22-404(a)(2) (2012 Repl.); see also Nero,
. D.C.Code § 22-404.01 (2012 Repl.).
. This was the only mens rea theory the government advanced at trial and the trial court accordingly determined that it was the only “basis the Government [had] s[ought] to proceed on” to establish D.P.'s involvement in the crime of aggravated assault. Because the evidence was clearly insufficient to show "knowledge] or purpos[e]” under D.C.Code § 22-404.01(a)(l), we limit our assessment of the sufficiency of the evidence to the second prong of the statute.
. In light of our conclusion that D.P. lacked the requisite mens rea for aggravated assault, we do not determine whether the complainant's brief loss of unconsciousness — from which she fully recovered without medical treatment and which did not amount to significant bodily injury, see infra Part IV — amounted to serious bodily injury. See Nixon v. United States,
. Inference is often necessary as “[i]t is the rare case where the defendant will clearly articulate his intent before he acts.” McKnight v. United States,
. The government also tries to argue that depraved heart malice is evident in this case as reflected by the fact that D.P. and her friends continued to beat M.G. after she was knocked unconscious, but as noted above, the record does not support this argument. See supra note 3.
. Undoubtedly the conduct in Owens would have reflected depraved heart malice, but since we had not yet decided Peny, we did not specifically consider the point. Owens,
.Nevertheless, In re D.E., like Owens and Perry, reflects a level of wanton violence not seen in this case. Appellant, with others, attacked the victim on a Metrobus and continued to beat her up after she fell onto the driver’s seat. D.E. then tried to pull the victim by her hair out of the bus driver’s window; as the victim was partially hanging out of the window, her attackers continued to beat her, resulting in severe injuries, including a fractured nose, severe bruising to her face, and lasting damage to her vision. See
. Medley v. United States,
. We must acknowledge a procedural oddity. Although the government vigorously argued in the trial court that D.P. could and should be convicted of felony assault, it did not respond to D.P.’s sufficiency challenge in its brief to this court, other than to assert that this conviction merges with D.P.'s aggravated assault conviction (an argument which presumes that there is a valid conviction to be merged). At oral argument, however, the court specifically inquired whether the government was conceding that it had failed to present sufficient evidence to support determination that D.P. was involved in an assault with significant bodily injury, and the government responded that it was not making any such concession. Thus we address this claim.
. Council of the District of Columbia, Comm, on the Judiciary, Report on Bill 16-247 at 6 (Apr. 28, 2006).
. Similarly, "hospitalization” under the statute requires more than admission for outpatient care. Teneyck,