Appeal from the Superior Court of the District of Columbia (F-4454-97) Hon. Judith E. Retchin, Trial Judge
Before Steadman, Reid and Washington, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
We are faced with yet another case in which the appellant alleges instructional error because the trial judge failed to define the element of "serious bodily injury" as it appears in our aggravated assault statute, D.C. Code § 22-504.1 (1996); 22-404.01 (2001). *fn1 Appellant Wesley P. Wilson, Jr. also challenges the trial court's denial of his motion for judgment of acquittal. We affirm, holding that Mr. Wilson did not properly preserve the instructional error issue; that the trial court did not commit plain error by failing to define "serious bodily injury"; and that the trial judge did not err by denying Mr. Wilson's motion for judgment of acquittal.
The government presented evidence concerning a physical altercation between Mr. Wilson and complainant Larry Daniel on May 28, 1997, at a convenience store, the Davis Market on Georgia Avenue in the Northwest quadrant of the District of Columbia. Before the altercation ended, Mr. Daniel's left eyeball had been cut by Mr. Wilson.
Mr. Daniel's testimony shows that around 6:30 p.m. on the day of the altercation, he went to the Davis Market to purchase a lottery ticket. While he was standing in the lottery line, Mr. Wilson asked him for a quarter. When Mr. Daniel stated that he didn't have a quarter, Mr. Wilson told him he would not win the lottery. The two men began to argue. Mr. Wilson soon pulled out a knife with a two inch blade, "said [he was] going to punch [Mr. Daniel] . . . and start[ed to] proceed towards [him]." When Mr. Wilson got within a foot of his presence, with "the knife right in front of him," Mr. Daniel kicked him in the groin. A second kick did not stop Mr. Wilson's advance; Mr. Daniel "grabbed [his]  hand and . . . pinned him against the window" of the lottery booth. The two men "struggled for a few minutes." After the lady behind the lottery window told the two to "take it outside," the struggle ceased; Mr. Daniel resumed his position in the lottery line; and Mr. Wilson moved toward the exit of the Davis Market.
Instead of leaving the store, Mr. Wilson turned and cut Mr. Daniel on his left eyeball. Mr. Daniel, who is legally blind in his right eye "felt the sharp stinging of the blade . . . ." Blood began to run from his face. Someone gave him paper towels but they soon were "soaked with [his] blood and blood was dripping all over [his] shirt." Mr. Daniel asked the lady in the lottery booth to call the police.
When the police did not come immediately, Mr. Daniel decided to go to his home to clean up. At the time of the incident, he lived within 50 to 75 feet of the store. As he arrived at his apartment building, he asked one of the other residents to call the police, and "went upstairs to clean up." Subsequently, two police officers arrived, and still later, an ambulance. While he spoke with the police officers, Mr. Daniel was still bleeding. The ambulance took him to the Washington Hospital Center emergency room and eventually he was transferred to the eye clinic at the hospital.
Dr. Cathy Shrader, the ophthalmologist at the Washington Hospital Center who treated Mr. Daniel, testified that "[h]is left eye had sustained a laceration, a cut, that appeared to be full thickness of the wall of the eye." The "cut . . . was located on the white part of the eye" and "was consistent with a sharp cut." Dr. Shrader described it as "a very serious injury[,] . . . a vision threatening injury." Because Mr. Daniel's injury "was a full thickness injury[,] [he] needed to be taken to the operating room." Surgical exploration established that neither the retina nor the vitreous jelly in the back of the eye had been "pulled into the cut." Therefore, Dr. Shrader and others were able to close Mr. Daniel's wound by placing four "interrupted" stitches on Mr. Daniel's eyeball. After the surgery, Dr. Shrader prescribed "eye drops for inflammation" and a patch for nighttime to avoid pressure on the eye and the reopening of the incision. In addition, the eye clinic monitored Mr. Daniel to make certain that he did not develop a retinal detachment or other complications.
Although Mr. Daniel was legally blind in his left eye the day following the surgery, due to inflammation, he regained "normal" vision in the eye. However, he missed three months of work due to the injury. In addition, the cut left him with lingering problems that he did not have prior to the incident. Instead of five minutes to read the newspaper, Mr. Daniel now requires 30 to 45 minutes. As he put it: "It takes me more than normal to read what I used to read for a few minutes. . . . [D]epending on how long I read, my eye becomes blurry."
In his statement to the police following the aggravated assault on May 28, 1997, Mr. Wilson acknowledged that he asked Mr. Daniel for a quarter; the two men "tussle[d]" and he cut Mr. Daniel. He maintained that he acted in self-defense. At trial, the only person to testify for the defense was Rev. Franklin Pryor who managed the apartment building where Mr. Wilson resided at the time of the incident. Rev. Pryor described himself as a "good friend" of Mr. Wilson. When asked whether he considered Mr. Wilson to be "peaceful," Rev. Pryor responded, "yes."
Mr. Wilson argues that the trial court committed plain error by not defining the term "serious bodily injury." Specifically, he contends that: "[I]f given the proper instruction, the jury could reasonably have determined that the government failed to meet its burden of proving beyond a reasonable doubt that Mr. Wilson caused `serious bodily injury' to Mr. Daniel, as that term is defined in the aggravated assault statute." *fn2 Furthermore, he maintains that, "in accordance with the Sixth Amendment, this Court should require an actual jury finding of guilt as to the omitted element of the offense." Thus, Mr. Wilson in essence regards the definition of "serious bodily injury" to be an integral part of one element of the aggravated assault statute. The government asserts that Mr. Wilson "correctly concedes the standard of review is plain error, as there was no request for an instruction on `serious bodily injury' and no objection (at any time) to the instructions as they were given by [the trial judge]." Furthermore, ...