Fоllowing a factfinding hearing in the Family Court of the Superior Court of the District of Columbia, P.F. was adjudicated guilty of aggravated assault while armed, in violation of D.C.Code §§ 22-404.01, - 4502 (2001), armed carjacking, in violation оf D.C.Code § 22 — 2803(b)(1), malicious destruction of property, in violation of D.C.Code § 22-303, and carrying a dangerous weapon, in violation of D.C.Code § 22M504(a), for events occurring on July 8, 2005. On appeal, P.F.’s only claim is that there was insufficient evidence of serious bodily injury to support an adjudication of guilt with respect to the aggravated assault while armed charge. We agree. Accordingly, we revеrse the adjudication of guilt on that charge and remand to the trial court with instructions to vacate the finding and to enter a finding of guilty on the lesser included offense of assault with a dangerous weаpon.
I.
In the early morning hours of July 8, 2005, the complainant, Dawn Marshall, was in her car driving to a Shop and Express convenience store, located at 14th and Chapin Streets, N.W. At a traffic light a short distance from the store, Marshall stopped behind a gold Toyota Camry from which P.F. and another male exited and approached Marshall’s car. P.F. struck
Marshall then walked one block to the Shop and Express parking lot where she located Metropolitan Police Officer Maurice Scott. Marshall was crying as she reported the attack to the officer. She complained that her shoulder was injured and she showed the officer a cut on her finger. Officer Scott then relayed Marshall’s description of the men and her vehicle over the police radio. Approximately fifteen to twenty minutes later Marshall’s car was located and Officer Scott drove Marshall to that locatiоn where she inspected the vehicle and determined that several items were missing.
Five days later, Marshall spotted the gold Camry in the parking lot of the Shop and Express. She then went to a neаrby gas station where she alerted police officers in a patrol car, who arrested P.F. and another male shortly afterward.
At the factfinding hearing, Marshall testified that she was struck with the basеball bats on her right shoulder blade, her right wrist and her right chest. The attack left her with “bad bruises” on her chest and back, a cut on her finger, and a swollen wrist. She testified that she sought treatment for her injuries at Washington Hospital Center, where she was X-rayed. Treatment included a splint for her wrist and a supply of painkillers, which she took for one week. There is no indication in the record, however, as tо the date or time Marshall went to Washington Hospital Center, how she was transported to the hospital, or whether the painkillers Marshall received were prescription strength or simply оver-the-counter medications. In addition to her testimony regarding the treatment she received at the hospital, Marshall testified that she suffered some inconvenience as a result of the injury to her wrist, including difficulty completing everyday tasks such as taking care of her children, driving her car, and getting around.
On September 26, 2005, the trial court adjudicated P.F. guilty of aggravated assault while armed, finding thаt Marshall’s injuries caused “extreme physical pain” and therefore amounted to “serious bodily injury,” which is an element of the offense of aggravated assault.
II.
An adjudication of guilt for aggravated assault requires that the government prove that a defendant “(1) caused serious bodily injury [to another person]; and (2) either ‘knowingly or purposely cause[d] serious bodily injury to [the person]’; or ‘[u]nder circumstances manifesting extreme indifference to human life, ... intentionally or knowingly engage[d] in conduct which ereate[d] a grave risk of serious bodily injury to [the person], and thereby causе[d] serious bodily injuryf.]’ ” Nixon v. United States,
The decisions of this court have emрhasized the “high threshold of injury” that the legislature intended for a crime involving serious bodily injury, referring to these types of cases as “horrific.” Id. at 775. Where a finding of serious bodily injury is based on extreme physical pain, as it was here, “the level of pain must be exceptionally severe if not unbearable.” Id. at 777. Furthermore, “the extremity of the victim’s pain must be established by probative evidence,” a burden which falls to the government, and “not left to the [factfinder’s] untethered speculation.” Id.
A victim need not use the word “extreme” to define the pain suffered; rather, the severity of the pain may be inferred from the nature of the injuries and the victim’s reaction to them. Id.; see also Jackson v. United States,
Moreover, a victim’s statements regarding pain are not alone sufficient to support a finding of serious bodily injury. Earl v. United States,
Based on the evidence presented at thе factfinding hearing here, we conclude that the government failed to show that Marshall suffered the type of extreme physical pain necessary to support a finding of serious bodily injury. At no time after the attack did Marshall state she was in extreme pain, nor did she ever lose consciousness or claim to have felt faint as a result of her injuries. In fact, just as the victim in Jackson did, Marshall walked аway from the scene of the attack on her own accord. When reporting the attack to Officer Scott, she gave no indication that her pain was severe or 'unbearable. Furthеrmore, there is no evidence that she sought immediate medical care; in fact, before seeking medical care, Marshall accompanied Officer Scott to the plaсe where her car was found, some twenty minutes after the initial assault. Finally, Marshall did not even mention to Officer Scott the injury to her wrist, arguably the most severe of her injuries, when she initially spoke to him.
Moreover, when Marshall eventually sought treatment — at a time not indicated
While Marshall’s injuries were certainly significant and we have no doubt that she experienced a frightening and painful unprovoked attack, her injuries and the pain she suffered do not meet the high standard of “extreme if not unbearable pain” required by our precedents. Because no reasonable factfinder could infer that Marshall’s injuries caused her extreme physical pain and therefore that she suffered serious bodily injury as a result of the assault, there was insufficient evidence to support an adjudication of guilt on thе aggravated assault charge. Accordingly, we reverse the adjudication of guilt on that charge and remand for entry of a finding of guilt on the lesser included offense of assault with a dangerous wеapon.
So ordered.
Notes
. The parties agree that if we conclude that there has been a failure of proof on the aggravated assault charge, there is sufficient evidence to prove assault with a dangerous weapon.