Before Terry, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia
Hon. Noel Anketell Kramer, Trial Judge
Appellant was found guilty by a jury of aggravated assault while armed (D.C. Code §§ 22-504.1, -3202) (1996) and assault with a dangerous weapon (id. § 22-502). In her charge to the jury, the trial judge did not define "serious bodily injury," which the government had to prove appellant caused in order to convict him of aggravated assault. After the trial in this case, we held that the trial court must instruct the jury on the definition of serious bodily injury adopted in Nixon v. United States, 730 A.2d 145 (D.C. 1999). See Gathy v. United States, 754 A.2d 912, 914, 916 (D.C. 2000). The primary question on this appeal is whether the failure to define that element requires reversal of appellant's aggravated assault conviction, as it did the similar conviction of the appellant in Gathy. See id. at 916. *fn1 The government's main argument is that, unlike Gathy, appellant failed to preserve the claim of instructional error, and that under the appropriate "plain error" standard of review reversal is not warranted. Unpersuaded by that argument, and unable to agree with the government that the instructional error was harmless in any case, we reverse appellant's conviction for aggravated assault while armed. At the same time, we find no reason to reverse his conviction for assault with a dangerous weapon.
We reject at the outset appellant's contention that the evidence failed to support his aggravated assault conviction. *fn2 Viewed in the light most favorable to the government, the evidence permitted the jury reasonably to find that appellant had stabbed his wife repeatedly with a knife and caused her, among other things, arterial bleeding and a broken collarbone. Unlike in Nixon, supra, there was medical testimony that the bleeding was severe enough to have resulted in death if left untreated. Also, circumstantial evidence of the victim's condition (including her screaming) allowed the jury to conclude that she suffered extreme physical pain from the stabbings and broken collarbone. See Gathy, 754 A.2d at 918 ("[A] reasonable juror could infer from the nature of [the victim's] injuries, and from his reaction to them, that the pain was extreme"). Regarding the substantial risk of death, appellant points to the fact that the victim received timely treatment for her wounds, but we think it unlikely - in the extreme - that the legislature intended the "substantial risk" of death to depend on whether or not the victim was fortunate enough to receive medical care.
We therefore turn to appellant's claim that the failure to instruct on "serious bodily injury" requires reversal of that conviction.
The government's main argument, as pointed out, is that appellant did not adequately object to the trial judge's failure to define the statutory phrase. The court has held that
[i]n order to preserve an issue of jury instructions for appeal, a party must state "distinctly the matter to which [he] objects and the grounds of the objection." Super. Ct. Crim. R. 30. In other words, objections to jury instructions must be specific enough to direct the judge's attention to the correct rule of law; a party's request for jury instructions must be made with sufficient precision to indicate distinctly the party's thesis. Russell v. United States, 698 A.2d 1008, 1011 (D.C. 1997).
We examine the proceedings in light of this standard.
The issue first arose during the discussion of jury instructions when the trial judge asked the parties their views on whether serious bodily injury should be defined to the jury. The prosecutor was "uncomfortable about trying to define it" and said, "I think it's a jury question." Appellant's counsel disagreed and asked that the element be defined to the jury in terms of "substantial risk of death," pointing to what she thought was support for that definition in the legislative history of the statute. The judge, however, viewed the legislature's intent as having been to adopt "the kind of standard language that has been around as a jury question for decades." When defense counsel renewed her request "for an instruction that says . . . a substantial risk of death," the judge disputed that definition - correctly, see note 2, supra - as underinclusive, but affirmed her intention not to define the concept at all because it ...