Appeal from the Superior Court of the District of Columbia; Hon. Robert S. Tignor, Trial Judge
Belson and Terry, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Mack
After a jury trial, appellant was acquitted of assault (D.C. Code § 22-504 (1989 Repl.)), and convicted of carrying a dangerous weapon (D.C. Code § 22-3204 (1989 Repl.)). He challenges his conviction, noting that it was based upon his possession of an in-operable air pistol which resembled a .357 magnum handgun. He contends that the trial court's denial of his motion for judgment of acquittal was improper because there was insufficient evidence that the air pistol was a "dangerous weapon" for purposes of § 22-3204. We agree with appellant and reverse.
On the afternoon of October 13, 1988, appellant was conversing with friends at a local pizza shop. Three high school girls arrived at the shop, and as they entered they heard appellant making raucous comments about the appearance of a female customer. They also noticed that what appeared to be the handle of a gun was protruding from the front right pocket of appellant's pants. One of the girls testified at trial that she was frightened by this sight because she knew that appellant often spoke in a threatening manner. Soon thereafter, appellant turned his attention to the girls, making unflattering comments, and obstructing the passage of one who was returning to her seat from the food counter. As this girl was leaving the store, appellant reached out his hand and struck her on the backside. The girl struck back, and an exchange of blows followed.
After the altercation appellant left the pizza shop and walked to a nearby establishment where he began playing video games. He was approached by a police officer who had received a "lookout" reporting that appellant had just assaulted a student. The officer instructed appellant to place his hands on a nearby window. As appellant complied with the request, an inoperable air pistol fell out of his pocket, *fn1 whereupon the officer drew his service weapon. Appellant was placed under arrest and charged with assault and carrying a dangerous weapon. D.C. Code §§ 22-504, -3204 (1989 Repl.).
At trial appellant testified in his own defense. He testified that in the pizza shop, he and others were laughing and joking about the appearance of the female customer. His testimony regarding his reasons for carrying the air pistol was as follows:
Q. (defense counsel): Why were you carrying it [the air pistol]?
A. (appellant): Well, it wasn't intended to hurt the girls. . . . It was intended -- two hustlers jumped me one night . . . and I intended to keep in my pocket, just in case they do come up, they pull a baseball bat and hit me again in my legs and --
MR. PROZAN (prosecutor): I would like to object, Your Honor.
A. (appellant): -- show them that --
THE COURT: Excuse me. What's the basis for the objection?
MR. PROZAN: Relevancy issue, ...