Appeal from the Superior Court of the District of Columbia (M-27-00) (Hon. Linda Kay Davis, Trial Judge)
Before Washington, Associate Judge, and Newman and Nebeker, Senior Judges.
The opinion of the court was delivered by: Nebeker, Senior Judge
Submitted November 7, 2002
Edin Guzman appeals from a bench trial conviction of one count of malicious destruction of property. This case is now before us for review upon appellant's contention that, because the government adduced insufficient evidence, the trial court erred in failing to grant appellant's motion for judgment of acquittal. We agree with appellant's contention and reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant's conviction was the product of an altercation between appellant and his brother, Lisiadro Guzman, with whom he had previously lived. Shortly after midnight on January 2, 2000, appellant went to his brother's home. Lisiadro was alone. Intoxicated and bellicose, appellant entered the apartment and began striking the wall. In an effort to calm appellant, Lisiadro approached him to restrain him, whereupon appellant struck his brother in the nose, causing it to bleed. A melee ensued, and in the heat of the struggle, a table was knocked over, and the fish tank perched upon it fell to the floor and broke. Afterward, Lisiadro went to a neighbor, Ms. Ventura, to call the police. When the police arrived, they took Lisiadro's statement, with Ventura acting as interpreter, and arrested appellant.
Appellant was charged with one count of simple assault, D.C. Code § 22-504 (a) (1981), and one count of malicious destruction of property, D.C. Code § 22-403 (1981), recodified as D.C. Code §§ 22-404 (a) (2001) and -303 (2001), respectively. At trial, the government elicited testimony from Lisiadro, who, through an interpreter, gave his account of the incident. *fn1 He testified that when appellant had come to the apartment, appellant "was too drunk," and that he "was hitting the wall." Lisiadro went on to testify that appellant had struck him, that the fish tank had gotten broken, that the two men were the only individuals present in the apartment at the time, and that Lisiadro did not break the fish tank; however, Lisiadro never testified to having seen appellant break the fish tank. When the government asked Lisiadro if he saw the fish tank break, his response was, "Yes, because the water spread all out." However, when asked how it happened, Lisiadro replied, "I don't know. I can't explain to you." The government then attempted to clarify by eliciting testimony from Lisiadro, in relevant part, as follows:
Q: Who was present in the apartment at the time that the fish tank was broken?
Q: Did you break the fish tank?
On cross-examination, counsel for appellant first established that Lisiadro made first physical contact with appellant, and that appellant's striking him was an accident incident to his attempt to fend off Lisiadro's hold on appellant. Appellant's counsel then went on, in relevant part, to make much of Lisiadro's inability to state with certainty that it was appellant who had actually broken the fish tank. On re-direct, Lisiadro confirmed his earlier testimony that, on the night in question, appellant was highly intoxicated and bellicose, having struck the wall and Lisiadro. He also confirmed that the fish tank broke as a result of the melee. Then on re-cross, appellant's counsel elicited the following testimony:
Q: Mr. [Lisiadro] Guzman, you never saw your brother breaking the fish ...