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05/31/90 MICHELLE RAY v. UNITED STATES

May 31, 1990

MICHELLE RAY, APPELLANT,
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Robert S. Tignor, Trial Judge

Terry and Steadman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Terry

Appellant was convicted of assault *fn1 for spitting in the face of a police officer who had just arrested her for a narcotic offense. *fn2 The principal issue on appeal is whether spitting on another person constitutes an assault. Although this is an issue of first impression in the District of Columbia, we find ourselves in full agreement with courts in other jurisdictions which have held that spitting on another person is indeed an assault. Accordingly, we affirm the conviction.

I

The evidence showed that Officer James Shieder and three fellow officers saw appellant Ray on a street corner, in broad daylight, engaging in what appeared to be a drug transaction. As Ray handed a small white object to a man with whom she had been talking, the officers converged on the two of them. The man struggled with the officers, and in the course of the struggle he swallowed the white object. Meanwhile, Ray started to walk away, at the same time placing another white object into her mouth. Officer Sheider tried to prevent her from swallowing it, but he was unsuccessful. Ray then became "very agitated, very loud," swinging her arms and kicking at the police officers. As they grappled, both she and Officer Shieder lost their balance and fell to the ground. Another officer, Holloday Atkins, then saw Ray reach into the front of her slacks and retrieve a small vial in a plastic bag, which she tried to conceal under her as she sat on the ground. Officer Atkins recovered the vial, however, and its contents were later tested and found to be cocaine.

Although the officers eventually subdued Ray and handcuffed her, she continued to yell obscenities at them. As Officer Shieder placed her in the patrol wagon to be taken to the station house, she turned toward him and spat in his face, hitting him in the eyes. Shieder testified that Ray "was in a wild state all the way until we got into the station, the whole time, still screaming obscenities . . . ." At the station she spat again at Officer Shieder, but this time she missed. After he took her into the drug enforcement office, she looked back at him and said, "I hope you get AIDS." While she was being processed, she also spat on another officer.

To the drug charge Ray presented a defense of misidentification, stating that a different woman had sold cocaine to the man on the corner. The object she placed in her mouth, she said, was a piece of chewing gum. She denied possessing the vial of cocaine which Officer Atkins recovered from the ground beneath her.

Ray also asserted that she "didn't really mean to" spit in Officer Shieder's face. "My throat was kind of dry," she said, "so I as he was shutting the door. That is how he got it in his face." She characterized the spitting as a reaction to being choked by the officers: "I must have had a nasty taste my mouth." She admitted that at the station she spat at another officer but denied that she intended to do so.

II

Our assault statute, section 22-504 of the Code, was enacted in 1901 and has never been amended. In its entirety, it states:

Whoever unlawfully assaults, or threatens another in a menacing manner, shall be fined not more than $500 or imprisoned not more than twelve months, or both.

Because the statute does not define the elements of the crime, the courts have concluded that "the assault contemplated by Section 22-504 is a common law assault." Guarro v. United States, 99 U.S. App. D.C. 97, 99, 237 F.2d 578, 580 (1956) (citation omitted). This court, citing Guarro and other precedents, has identified "three essential elements" of the crime of assault:

First, there must be an act on the part of the defendant; mere words do not constitute an assault . . . . The act does not have to result in injury [;] . . . it can be either an actual attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure, on the part of the defendant . . . . Secondly, at the time the defendant commits the act, the defendant must have the apparent present ability to injure the victim . . . . Finally, at the time the act is committed, the defendant must have the intent to perform the acts which constitute the assault.

Williamson v. United States, 445 A.2d 975, 978 (D.C. 1982) (citations omitted); see Robinson v. United States, 506 ...


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