Appeal from the Superior Court of the District of Columbia; (Hon. Harriett R. Taylor, Trial Judge)
Before Steadman and Sullivan, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Sullivan
SULLIVAN Associate Judge : Appellant was convicted by a jury of four offenses: assault on a police officer with a dangerous weapon, a pistol (D.C. Code § 22-505 (b) (1989)); *fn1 possession of a firearm during a crime of violence (D.C. Code § 22-3204 (b) (1992 Supp.)); *fn2 carrying a pistol without a license (D.C. Code § 22-3204 (a) (1989 and 1992 Supp.)); and willful failure to appear in court (D.C. Code § 23-1327 (a) (1989)). *fn3
Appellant makes three principal contentions on appeal. First, he challenges the denial of his motion for judgment of acquittal and contends that the evidence was insufficient to sustain his conviction for assault on a police officer with a dangerous weapon, a pistol. Second, appellant challenges his conviction of assault on a police officer with a dangerous weapon, a pistol, on the ground that the trial court failed to instruct the jury that it was required to reach a unanimous verdict as to which type of assault he committed, i.e., an intent-to-frighten assault or an attempted-battery assault. Third, he challenges his conviction for possession of a firearm during a crime of violence on the ground that the predicate offense of assault on a police officer with a dangerous weapon is not listed as a crime of violence as defined in D.C. Code § 22-3201 (f) (1989 and 1992 Supp.). We affirm.
According to the government's evidence, Sergeants Harvey Van Buren and Jesse Millhouse, after several attempts in their marked police cruiser, stopped the four-door vehicle with expired tags that appellant was driving. Appellant was accompanied by two passengers, Anthony Feggins in the front seat and Derrick Johnson in the rear driver's side seat.
Sergeant Van Buren, who was in full uniform, immediately approached appellant and asked him for his driver's license and vehicle registration. At the same time, Sergeant Millhouse approached the front passenger's door and shined his flashlight inside the vehicle. When appellant failed to produce either the license or registration, Sergeant Van Buren radioed the police dispatcher to determine whether those documents were validly on file.
Sergeant Jude Waddy arrived to provide assistance shortly after appellant's car was stopped. He went to the driver's side rear door to ask Johnson to step out; Johnson refused to do so. Waddy then opened the rear door and leaned in, over Johnson, toward the back of the front seat. Sergeant Waddy testified that while he was leaning into the car, he observed appellant grab the steering wheel with his left hand and place his left foot on the brake. Waddy then observed appellant, in one continuous motion with his right hand: start the car, put it in gear, reach straight down his leg to the floor, retrieve a pistol from under the seat, lean to his right, and bring the gun back up in his hand. Waddy stated that appellant never took his eyes off of Sergeant Van Buren, who remained standing outside the driver's door with a note pad in one hand and a radio in the other. Sergeant Waddy also testified that appellant gave no indication that he knew of Waddy's presence.
When Sergeant Waddy saw appellant raise the pistol up to his knee, he yelled, "Stop!" and pulled his head back from the car while simultaneously drawing his service revolver. Before the car moved, Waddy fired at appellant. In response to a question by the prosecutor as to why he fired, Sergeant Waddy replied: "I thought he was going to shoot Sergeant Van Buren." After Waddy fired at him, appellant fled in his vehicle. The vehicle was later found abandoned several blocks down the street, and the pistol was recovered from under the gas pedal. Although appellant escaped, he was subsequently arrested.
Sergeant Van Buren testified that he did not see the driver reach down as though he was going to retrieve anything; that he did not see the rear driver's side door open; and that he never saw Sergeant Waddy draw his revolver.
Sergeant Millhouse testified that he never saw appellant's gun until it was removed from the vehicle following his escape. Millhouse testified further that after appellant turned the vehicle on, he "pulled the [front seat passenger] out of the car. I guess we maybe stepped back about a foot or so when a shot rang out. And the vehicle coasted forward and then the vehicle sped off." *fn4
THE MOTION FOR JUDGMENT OF ACQUITTAL
On the facts here and consistent with the government's theory that an assault had occurred, in order to convict appellant of the crime of assault on a police officer with a dangerous weapon, a pistol, the government had the burden of proving beyond a reasonable doubt: 1) each of the elements of the criminal offense of simple assault; 2) that appellant knew or should have known that the victim was a police officer engaged in the performance of his official duties; and, 3) that appellant used a dangerous weapon, a pistol, during the assault. See Carter v. United States, 531 A.2d 956, 960 n.12 (D.C. 1987), and cases cited therein.
This court applies the same standard used by the trial court in determining whether the evidence was sufficient to support a conviction. See Curry v. United States, 520 A.2d 255, 263 (D.C. 1987). Accordingly, we must "review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence." Id. (citation omitted). Reversal of the trial court's denial of appellant's motion for judgment of acquittal is warranted only where the evidence "is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime." Id. (citation omitted). Thus, this court may overturn the conviction only if it finds the evidence insufficient because "the jury required to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation." Id. (citation omitted).
The concept of criminal assault has been expanded in this jurisdiction, as in most jurisdictions, *fn5 to include not only the common law attempted-battery theory but also the intent-to-frighten theory adopting certain aspects from the civil law of torts. *fn6 See Anthony v. United States, 361 A.2d 202, 204-05 (D.C. 1976).
We have defined attempted-battery assault as follows:
Attempted-battery assault requires proof of an attempt to cause a physical injury, which "may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person."
Robinson v. United States, 506 A.2d 572, 574 (D.C. 1986) (quoting Patterson v. Pillans, 43 App. D.C. 505, 506-07 (1915)). See also (Joseph A.) Smith v. United States, 601 A.2d 1080, 1082 (D.C. 1992); McGee ...