In re D.R., Appellant.
No. 11-FS-1320.
District of Columbia Court of Appeals.
Argued Sept. 18, 2013. Decided July 31, 2014.
Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.
Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.
FISHER, Associate Judge:
Appellant D.R., a juvenile, was found to be involved in four criminal offenses related to his possession and brandishing of a large knife or machete. On appeal, he claims that he was denied the effective assistance of counsel and that there was insufficient evidence to support three of the adjudications against him.
Following oral argument, we remanded the record to the trial court for findings on the ineffective assistance claim.1 After considering the trial record, Judge Broderick found that D.R.s trial counsel was ineffective and informed us that she would be inclined to grant a new trial. See Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir.1952). We now remand the case
I. The Factual and Statutory Background
In September 2011 fourteen-year-old D.R. was involved in a heated altercation between his family and their neighbors. According to evidence presented by the government, D.R. approached one of his neighbors, raised a large knife above his head, and angrily threatened to cut her insides out. In response, the neighbor lifted up her shirt (exposing her midriff) and told D.R. to “do what hes going to do.” The police never found the knife, but witnesses described it as a “sword” or “machete” — approximately eighteen to twenty-four inches in length with a wooden handle, a curved blade, and a pointed tip. Crediting this testimony, the trial judge determined that D.R. had been involved in four criminal offenses: assault with a dangerous weapon (“ADW“), carrying a dangerous weapon (“CDW“), possession of a prohibited weapon, and felony threats.
D.R.s main claim of insufficiency relates to the CDW charge.2 The statute defining that offense provides that “[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.”
When Congress enacted the CDW statute in 1932, the law applied only to weapons that were actually concealed. Act of July 8, 1932, Pub.L. No. 72-275, § 4, 47
This court has not yet had occasion to construe the statutory language referring to weapons “capable of being so concealed.”
It is not apparent to us why none of the defendants in these cases raised a claim like the one D.R. now advances. Perhaps a partial explanation may be found in the very name of the offense, “Carrying a Dangerous Weapon.” A weapon may certainly be classified as “dangerous” even if it is not capable of being concealed on or about a person. Thus, the legal scope of CDW is not as broad as its common name suggests. In any event, D.R.s claim presents us with an open question of statutory interpretation.
II. Construing the Statute
The language of the statute makes it clear, and this court has acknowledged, that to convict a defendant of CDW, the government must prove “that the weapon is capable of being concealed.” Wright v. United States, 926 A.2d 1151, 1154 (D.C.2007). Moreover, every successive version of the standard jury instructions for CDW has referred to the governments burden of showing that the weapon carried was concealable.5 Unfortunately, none of these pattern jury instructions explains how a weapons concealability is to be determined.
When
Here, as in the trial court, the government has relied on United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). In that case, the Supreme Court construed a federal law prohibiting the mailing of any firearm “capable of being concealed on the person.” Id. at 88, 91-94, 96 S.Ct. 316 (quoting
Although the CDW statute and the statute construed in Powell are similar in some respects, there are important differences between the two. Most noticeably, the statutes operate in distinct contexts by proscribing different types of conduct (carrying weapons as opposed to mailing them). When a violation of the CDW statute is in progress, the weapon at issue is necessarily located “on or about [the offenders] person.”
Indeed, if the Powell Court had not focused on “an average person,” it would have been left to question “whether the person referred to in the statute to measure capability of concealment was to be the person mailing the firearm, [or] the person receiving the firearm.” Id. at 93 (quoting United States v. Powell, 501 F.2d 1136, 1137 (9th Cir.1974)) (internal quotation marks omitted). And even if, hypothetically, one of those actual individuals could be identified as “the person referred to in the statute,” it would not be clear when “to measure capability of concealment” with respect to that person. Would it matter what the individual was wearing when the firearm was mailed? When it was received? When it was discovered? At any point while the firearm was in the mail stream? These difficult questions do not arise in an analysis focused on “an average person garbed in a manner to aid ... concealment of the weapons.”
Importantly, however, those difficult questions do not arise in the CDW context even when analysis of a weapons concealability focuses on an actual defendant. Aside from a hypothetical figure, the only “person” that
An even more important consideration is textual in nature. The Powell statute covers firearms “capable of being concealed on the person,” see id. at 318 (emphasis added), whereas our statute provides that no person shall carry a dangerous weapon capable of being concealed “on or about their person.”
In fact, the 1943 version of the statute — which stated that no person shall carry a weapon capable of being concealed “on or about his person” — also used the word “his” in an integrally related clause, creating an exception for anyone carrying such a weapon “in his dwelling house.” Act of Nov. 4, 1943, Pub.L. No. 78-182, 57 Stat. 586, 586. The phrase “his dwelling house” of course refers to the dwelling house of an actual person. Thus, to hold that the term “his person” refers to a hypothetical figure, we would need to conclude that Congress intended for the word “his” to have two different meanings within the same statutory sentence. We think such a reading would fail to give the “legislative words their natural meaning.” Grayson, 15 A.3d at 237.
Moreover, what legislative history we have shows that in 1943, when the relevant language was first adopted, Congress was responding to a concrete problem. The Attorney General of the United States had expressed concern that individuals were escaping conviction under the concealed carry statute by simply exhibiting their weapons whenever law enforcement officers approached. See H.R.Rep. No. 78-762, at 1 (1943); see also S.Rep. No. 78-408, at 1 (1943). In those circumstances, the weapon would actually have been concealed moments before the police arrived. Congress responded by prohibiting the carrying of such weapons “either openly or concealed,” provided the weapon was capable of being concealed “on or about” the person carrying it. Act of Nov. 4, 1943, Pub.L. No. 78-182, 57 Stat. 586, 586. This response, in our view, targets weapons that are capable of being concealed on actual persons, under particularized circumstances, and at the time the weapons are carried.
For the foregoing reasons, we conclude that the context, purpose, and plain language of
We emphasize that our holding today will have no effect on prosecutions for carrying a pistol without a license (“CPWL“), an offense set forth in
Additionally, we note that another criminal statute in the District of Columbia already prohibits the possession of any “dangerous weapon” (“with intent to use [it] unlawfully against another“) regardless of whether the weapon is capable of being concealed.
III. Applying the Statute
“In evaluating the sufficiency of the [governments] proof, we must view the evidence in the light most favorable to sustaining the judgment.” Shewarega v. Yegzaw, 947 A.2d 47, 52 (D.C.2008). However, “evidence is insufficient, if, in order to convict, the [finder of fact] is required to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation.” Curry v. United States, 520 A.2d 255, 263 (D.C.1987). In this case, the prosecutor paid scant attention to proving that the knife D.R. wielded was capable of being concealed on or about his person, and the court made no specific findings on that question. The government acknowledged in its closing argument that to prove CDW, it needed to establish that the knife was capable of being concealed. However, in arguing that it had carried that burden, the government offered little more than a broad invocation of the Supreme Courts decision in Powell.
Evidence presented during the trial established that the knife D.R. wielded was between eighteen and twenty-four inches long, but we have not found any testimony describing appellants size or what he was wearing on the day in question. We know from the record that the altercation took place in the early evening of September 3, which, if anything, supports an inference that D.R. was not wearing the type of heavy clothing that might have enabled him to conceal the knife on his person. Further, the fact that he was only fourteen years of age suggests that he was not yet fully grown. We therefore hold that D.R.s CDW adjudication was not supported by sufficient evidence. The double jeopardy clause bars a new trial of this offense. See Kelly, 639 A.2d at 88 (citing Burks, 437 U.S. at 18, 98 S.Ct. 2141).
Appellant has not challenged the sufficiency of the evidence to prove him guilty of possessing a prohibited weapon. We hold that there was sufficient evidence to sustain the adjudications against D.R. on the counts of ADW and felony threats. However, there was insufficient evidence to sustain the adjudication for CDW. We therefore vacate the CDW adjudication and remand the case for further proceedings consistent with this opinion.
It is so ordered.