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July 28, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. George H. Goodrich, Trial Judge)

Before Rogers, Chief Judge, and Ferren, Terry, Steadman, Schwelb, Wagner and King, Associate Judges.

The opinion of the court was delivered by: Steadman

On Rehearing En Banc

STEADMAN, Associate Judge: A key part of any criminal jury trial is the trial court's instruction to the jury setting forth the elements of the offense of which the defendant stands accused. Occasionally, as in the proceeding on appeal, the trial court will omit an essential element, and the omission is not called to the court's attention by either party. *fn1 The issue now before us en banc is what consequence should ensue when the omission is first raised at the appellate level as an asserted ground of reversible error. We hold that in such circumstances, the omission will not be the cause for a reversal at least where, as here, the relevant facts are so closely related that no rational jury, shown by its verdict to have found the facts necessary to convict the defendant under the instructions as given, could have failed, if fully instructed on each element, to have found in addition the facts necessary to comprise the omitted element.


The facts are set forth at length in the panel opinion, 582 A.2d 774 (D.C. 1990), *fn2 and need only be briefly summarized here. Appellant Dorothea White cashed ten different checks on which her employer's signature had been forged and an eleventh check which had been altered in amount. *fn3 Eight of the forged checks were for $1,000 and the remaining two checks for $2,000. The altered check was originally for $350 and raised to $3,050.

White was indicted for one count of theft, eleven counts of forgery, and eleven counts of uttering. Each forgery count in the indictment specifically stated that it related to "a bank check having a value of $250 or more," and bore a photostatic copy of the check in question. Each uttering count incorporated by reference the copy of the check set forth in the related forgery count.

At the trial, the checks themselves were introduced into evidence. Furthermore, the verdict form, sent to the jury room, specified with respect to each check its exact amount. The jury recorded on that form a verdict of guilty on all counts.


The difficulty leading to this en banc rehearing arose because of an oversight in the instructions by the trial court to the jury; viz., the failure to make any mention of the need for the jury to make a finding that each of the allegedly forged or uttered checks was or purported to be of a value of $250 or more.

The relevance of this omission flowed from the provisions of the statute defining the offenses of forgery and uttering. Those provisions in effect create a three-level hierarchy of offenses based upon the types of writings involved or the value of those writings. The highest level, providing for a maximum fine of $10,000, 10 years imprisonment or both, applies to, inter alia, forgeries of written instruments which purport to have a value of $10,000 or more. D.C. Code § 22-3842(a) (1989). The intermediate level covers written instruments which have or purport to have a value of $250 or more, and provides for a maximum fine of $5,000 or five years imprisonment. Id. § 22-3842(b). Finally, there is a lowest "catchall" level applying to all forgeries, and providing for a maximum fine of $2,500 or three years imprisonment. Id. § 22-3842(c).

The indictment charged White with violations of the intermediate level of forgery, citing § 3842(b), and the trial court's judgment and commitment order found the defendant guilty of the offenses charged. Although appellant made no objection at trial to the instructions as given, she now claims on appeal that the failure to instruct the jury on the need to make a finding that the value of each check was $250 or more was per se reversible "plain error," precluding a valid conviction under § 3842(b).

The panel of this court which first heard the appeal agreed, deeming itself bound by the panel decision in Kind v. United States, 529 A.2d 294 (D.C. 1987). Accordingly, the panel reversed the conviction under § 3842(b) and remanded for entry of judgment of conviction under § 3842(c), finding that there was ample evidence to support a finding of guilt under this catchall provision. *fn4 The government petitioned for a rehearing en banc, urging the full court to examine the validity of the rule of per se reversal applied in Kind. We granted that petition. 592 A.2d 480.


In Kind, appellant was convicted of possession of a prohibited weapon, in violation of D.C. Code § 22-3214(b) (1989). The case proceeded under the theory that the prohibited weapon was, as the subsection provides, *fn5 a "knife with a blade longer than 3 inches." However, the trial court simply instructed the jury that it should convict if it found first, "the defendant possessed a knife, and second, at the time he possessed the knife he had the specific intent to use it unlawfully against any other -- against another person." 529 A.2d at 295 n.2. The instructions said nothing about a blade in excess of three inches.

We deemed ourselves bound by existing case law *fn6 establishing that "the failure to instruct the jury on every essential element of the crime is per se reversible 'plain error,' notwithstanding a defendant's failure to object to the instructions as given." Id. at 295. We identified the Sixth Amendment right to a trial by jury as the underpinning of the doctrine. We also noted the "element of centrality" of the requirement of knife length, part of ...

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