Appeal from the Superior Court of the District of Columbia (F-6166-99) (Hon. Lee F. Satterfield, Trial Judge)
Before Terry, Steadman, and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
After a non-jury trial, appellant Gerald Smith was convicted of attempted second-degree cruelty to children. His sole argument on appeal is that the evidence was insufficient to prove that he had the necessary intent required for a conviction. We affirm.
Appellant and Antonia Kral are the parents of Victoria Kral, who was born on December 24, 1997. Sometime in 1999 Ms. Kral ended her romantic relationship with appellant and began dating another man. Despite this turn of events, however, Ms. Kral and appellant maintained a "parental friendship."
On August 23, 1999, while appellant was visiting Ms. Kral at her home, the two of them became involved in a heated argument. Several nearby residents saw appellant, Ms. Kral, and twenty-month-old Victoria outside Ms. Kral's home and heard the two adults quarreling. When Rose Scott, one of those neighbors, went outside to ask them to lower their voices, she saw appellant holding the child and tossing her in the air while Ms. Kral repeatedly demanded that he "give me my child." Appellant was not tossing the child very high, but Ms. Scott thought that it was "enough so where he shouldn't have been doing that." Ms. Scott also thought appellant was drunk because she saw beer cans nearby and noticed that his speech was slurred. The third time Ms. Scott saw appellant toss Victoria in the air, he dropped her. The child hit the ground with her knees, head, and hands.
A short time later Officer Oscar Mouton was flagged down by another neighbor. When he came on the scene, the officer saw appellant holding the child in his arms like a football. She was crying and had what appeared to be a fresh abrasion on the left side of her forehead. Officer Mouton took the child away from appellant, placed him under arrest, *fn1 and called for an ambulance to have the child examined.
Appellant and Ms. Kral admitted having an argument about who would watch Victoria while Ms. Kral was working the next day. They both claimed, however, that the abrasion on Victoria's head occurred when she lost her balance and fell out of appellant's lap while he was trying to tie her shoelaces. Appellant said that this happened earlier in the day and that he was not arrested until he came back to Ms. Kral's house later that evening. He stated that he had "a beer, a couple" in the interim.
The court found appellant guilty of attempted second-degree cruelty to children. It credited the government's witnesses and found that the testimony of appellant and Ms. Kral was "not believable." The court said it did not believe appellant intended to drop the child, nor did it think that simply tossing a child in the air itself was a violation of the law. The court found, however:
When you put the conduct together with the fact of his emotional state, his drinking, that he's holding the child, and his actions with the child even after the child had been dropped, holding the child like a football while the child cried for its mother, when you put that behavior together, his anger, his drinking, his behavior with the child after the incident, it rises to the level in the court's view as recklessness as required by law.
Appellant challenges the sufficiency of the evidence against him, arguing that he did not have the required mental state to be convicted of attempted second-degree cruelty to children.
Under D.C. Code § 22-1101 (b)(1) (2001), *fn2 a person who "intentionally, knowingly, or recklessly . . . maltreats a child or engages in conduct which causes a grave risk of bodily injury to a child" is guilty of second-degree cruelty to children. The trial court found that appellant violated this statute by acting recklessly when, in the circumstances presented here, he tossed Victoria into the air. Appellant, however, was charged only with attempted second-degree cruelty to children under D.C. Code § 22-1803, which makes it a crime to attempt to commit another crime. *fn3 He now contends that because the trial court found he was acting recklessly and did not intend to harm Victoria, he did not have the specific intent ...