Before Terry, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Patricia A. Wynn, Trial Judge)
Appellant was convicted of aggravated assault while armed, in violation of D.C. Code §§ 22-504.1 and 22-3202 (1996), *fn1 for breaking a beer bottle on the face of a bouncer at a local night club. In his opening brief on appeal, he challenged his conviction on three separate grounds. He claimed that the trial court's failure to instruct the jury on the definition of the phrase "serious bodily injury," as used in the aggravated assault statute, section 22-504.1, rendered the statute unconstitutionally void for vagueness. He also contended that the aggravated assault statute applies only to unarmed assaults, and that his motion for judgment of acquittal based on that ground should therefore have been granted. Finally, he asserted that the means by which an aggravated assault is committed, in this case a beer bottle, cannot also establish the "while armed" element of the enhancement statute, section 22-3202. We find all of these arguments meritless.
Shortly after appellant and the government had filed their briefs, this court issued its opinion in Nixon v. United States, 730 A.2d 145, rehearing denied, 736 A.2d 1031 (D.C. 1999), in which we adopted the definition of "serious bodily injury" set forth in the recently enacted sexual abuse statute, D.C. Code § 22-4101 (7), for the purposes of the aggravated assault statute. Appellant then filed his reply brief, challenging, for the first time on appeal, the sufficiency of the government's proof of serious bodily injury. After oral argument, we directed the parties to submit supplemental briefs on the issues raised by our decision in Nixon. Now, having considered those supplemental briefs, we hold that the trial court erred in failing to instruct the jury on the definition of "serious bodily injury" and that the error requires us to reverse the conviction. However, since we find no other error, and since the only error that we do find involves an element of aggravated assault (serious bodily injury) which is not an element of its lesser included offense, assault with a dangerous weapon (ADW), on remand appellant shall stand convicted of ADW unless the government elects to retry him on the original charge.
On June 28, 1996, appellant Thomas Gathy and his son Andrew, residents of Ohio, were visiting Mr. Gathy's other son, Gregory, who lived in Arlington, Virginia. That evening all three of the Gathys, along with Gregory's roommate, went out to a late dinner and then decided to visit a strip club in downtown Washington known as the 1720 Club. When they arrived there shortly after midnight, Mr. Gathy and his sons went in to get a table while the roommate parked the car. At the door, the club's manager, Chris Bretherick, asked Gregory and Andrew for identification. Bretherick noticed that the picture on Andrew's identification card was marred, so he asked Andrew for a second form of identification. According to Bretherick, Andrew "started giving [him] an attitude," but eventually he produced another identification document. Concerned about the group, Bretherick admitted them into the club but instructed two security employees, José Segura and Jeffrey Nilson, to "keep an eye on them because of the attitude they had displayed at the door."
Once inside, the Gathys were directed to the back of the room, where they ordered a round of beers from a waitress named Mary Davis. Ms. Davis returned with four bottles of beer. As she was leaving the table, Ms. Davis noticed Gregory standing on either a chair or a banister, attempting to climb up to the second level of the club in order to tip a dancer who was on the second floor stage. A bouncer -apparently Mr. Segura - motioned to Gregory to get down. Gregory began to explain that he was trying to tip one of the dancers, but Segura grabbed his arm and pulled him down. Gregory attempted to release his arm from Segura's grasp, but Segura pushed Gregory's arm behind his back and forced him toward the front door. Alerted by the commotion, the other bouncer, Jeffrey Nilson, quickly approached the group. Appellant Gathy, who believed Nilson was "gonna harm my son or me," lunged upward and swung his beer bottle at Nilson's face. The bottle broke, and Nilson was cut and began to bleed. Other club employees came forward from other parts of the club and ushered the group out the front entrance. The altercation continued and escalated outside, with blows apparently delivered both by Gathy's group and by club employees.
Nilson was bleeding profusely when the police arrived. He received forty-eight stitches on his face, and doctors shaved a chipped piece of bone from his nose. Despite attempts by hospital personnel to clean the glass from his hair, Nilson cut his hands on "thousands of particles of glass" when he washed his hair at home later that night. Two large photographs of Nilson's injuries were admitted into evidence at trial. The first was taken on the night of the incident and showed Nilson's face covered with blood and a deep cut across his nose and between his eyes. The second picture, taken a week later, showed the scars and stitches on Nilson's face. During his testimony Nilson pointed out to the jury where the stitches had been, but no other evidence was presented as to the extent of the scarring. The court concluded that the cuts had left no permanent scars.
Gathy noted this appeal from his conviction, arguing inter alia that the aggravated assault statute, D.C. Code § 22-504.1, was unconstitutionally vague because the term "serious bodily injury" was not defined in the statute with sufficient clarity. *fn2 Shortly after the government filed its brief, we issued our opinion in Nixon v. United States, supra, in which we adopted the definition of "serious bodily injury" that appears in D.C. Code § 22-4101 (7), the sexual abuse statute, *fn3 to determine whether the government had met its burden to prove "serious bodily injury" under the aggravated assault statute.
Thereafter, in his reply brief, Gathy raised a new argument challenging the sufficiency of the government's proof of serious bodily injury and citing our holding in Nixon. At oral argument counsel for both parties discussed, at some length, the applicability of Nixon to this case. Believing that the issues merited further exploration, we issued an order directing the parties to file supplemental briefs addressing three questions:
1. What is the effect on this case, if any, of this court's recent decision in Nixon v. United States . . . ?
2. May appellant now contend that the evidence of aggravated assault while armed was insufficient, when that issue was not raised in his original brief but was first mentioned in his reply brief? See, e.g., Stockard v. Moss, 706 A.2d 561, 566 (D.C. 1997) ("this court [does] not . . . consider arguments raised for the first time in a reply brief") (citing cases); Herbert v. National Academy of Sciences, 297 U.S. App. D.C. 406, 410, 974 F.2d 192, 196 (1992) (same) (citing cases). To ...