Appeal from the Superior Court of the District of Columbia, (M-10067-02) (Hon. William M. Jackson, Trial Judge).
Before Farrell and Washington, Associate Judges, and Nebeker, Senior Judge.
Appellant Larry R. Bradley ("Bradley") was convicted in a bench trial of one count of simple assault*fn1 and one count of attempted second-degree cruelty to children*fn2 in connection with a beating that he gave his eight-year-old son, D.M., on May 4, 2001. On appeal, Bradley asks that we vacate his conviction for second-degree cruelty to children because that offense merges with simple assault. Alternatively, Bradley argues that the rule of lenity demands that his cruelty conviction be vacated. Bradley also alleges that he was denied his Fifth and Sixth Amendment rights to due process and a speedy trial because nearly twenty-one months passed between the incident for which he was charged and his trial. We affirm.
At trial, the government presented evidence that on May 4, 2001, D.M. had gotten into a fight with another child at school. D.M.'s mother testified that after the school informed her about the fight, she telephoned Bradley and asked him to discipline D.M. for the incident. Although Bradley was not living with D.M. or D.M.'s mother at the time, he came over to their house later in the day. D.M. testified that his father took him into his bedroom and made him stand in a corner. Then, according to D.M., his father began to beat him, striking him with a closed fist approximately seven times on the face and chest, and then kicking him after he fell to the floor. The beating left D.M. with a split lip and a number of bruises below his left eye, across his right temple, on his left cheek, and on his upper chest, arms, shoulders, and back.*fn3 D.M.'s mother testified that, the next day, she reported the incident to the police who directed her to bring D.M. to the hospital for an examination. In his defense, Bradley testified that he could not recall what had happened on May 4, 2001, and denied physically disciplining his son.
Although the court found that there was "considerable confusion" as to when D.M.'s mother discovered the injuries and how the case came to the attention of the police, the court credited D.M.'s testimony, finding "ample corroboration" for D.M.'s testimony that Bradley had beaten him. The trial court discredited Bradley's claim that he could not remember beating his son. With respect to the fight that had occurred that day at school, the court found it "highly . . . unlikely, that [D.M.] could have sustained all these injuries at school and nobody had done anything about them." Ultimately, the trial court convicted Bradley of simple assault and attempted second-degree child cruelty. Bradley noted the instant appeal.
The Double Jeopardy Clause of the Fifth Amendment to the Constitution "'protects against multiple punishments for the same offense.'" Byrd v. United States, 598 A.2d 386, 388 n.4 (D.C. 1991) (en banc) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). This constitutional guarantee is limited, however; it merely prevents the court from imposing a punishment in excess of what the legislature intended. Id. (citing Albernaz v. United States, 450 U.S. 333, 334 (1981)). Therefore, when two different legislative provisions criminalize one course of conduct, the court must determine whether the legislature intended to punish the conduct under both provisions. When we lack direct evidence of the legislature's intent to impose multiple punishments for a single act, we apply the rule adopted in Blockburger v. United States, 284 U.S. 299, 304 (1932). Byrd, 598 A.2d at 389. "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Id. (quoting Blockburger, 284 U.S. at 304) (emphasis added) (alteration in original). In the District of Columbia, the Blockburger rule has been codified in D.C. Code § 23-112 (2001).*fn4 See id.
In the instant case, we are called upon to determine whether Bradley's conviction for simple assault*fn5 merges with his conviction for attempted second-degree child cruelty.*fn6 Whether these two crimes merge is a question of first impression for this court. See York v. United States, 803 A.2d 1009, 1012 (D.C. 2002) (stating that we need not decide "whether assault is a lesser included offense of first and second degree cruelty to a child"). We review this issue de novo. See Nixon v. United States, 730 A.2d 145, 151 (D.C. 1999) (citing Spain v. United States, 665 A.2d 658, 662 n.5 (D.C. 1995)).
Blockburger, as codified in § 23-112,requires us to examine only the "statutorily-specified elements of each offense" rather than the specific facts of a given case. Byrd, 598 A.2d at 389. Accordingly, we turn now to the elements of simple assault and second-degree child cruelty. Although simple assault is not defined by the statute, analysis under the "elements" test for lesser-included offenses is still appropriate and the elements to be examined are those found in the common law definition of assault. See Mungo v. United States, 772 A.2d 240, 245 (D.C. 2001). As charged in the instant case, simple assault consists of three elements: "(1) an act*fn7 on the part of the accused (which need not result in injury); (2) the apparent present ability to injure the victim at the time the act is committed; and (3) the intent to perform the act which constitutes the assault at the time the act is committed." Ruffin v. United States, 642 A.2d 1288, 1295 (D.C. 1994) (citations omitted). The elements of second-degree child cruelty include: "intentionally, knowingly or recklessly . . .
[m]altreat[ing] a child or engag[ing] in conduct which causes a grave risk of bodily injury to a child." D.C. Code § 22-1101 (b)(1). Both simple assault and second-degree child cruelty are general intent crimes. See, e.g., Smith v. United States, 813 A.2d 216, 220 n.6 (D.C. 2002); Newby v. United States, 797 A.2d 1233, 1241 (D.C. 2002).
The two offenses do not merge because each requires an element of proof that the other does not. For instance, the cruelty offense requires proof that the act be committed upon a child, D.C. Code § 22-1101 (b), while simple assault has no such requirement. Ruffin, 642 A.2d at 1295. Conversely, simple assault requires an affirmative act involving "force or violence," or the threat thereof, while the cruelty offense may be committed by simply "[m]altreat[ing] a child." The word "maltreat" encompasses more than mere physical abuse. According to Webster's Dictionary, maltreat means "to treat roughly or unkindly; abuse." WEBSTER'S NEW WORLDDICTIONARYTHIRD COLLEGEEDITION 819 (1988). This broader definition of "maltreat" is consistent with the way the term is used in D.C. Code § 22-1101 (a), governing first-degree child cruelty. There, the word "maltreat" is not limited to physical torture or beating, as would constitute common law assaultive conduct, but includes any act of willful maltreatment. See D.C. Code § 22-1101 (a) (stating that "[a] person commits the crime of cruelty to children in the first degree if that person intentionally, knowingly, or recklessly tortures, beats, or otherwise willfully maltreats a child under 18 years of age . . . ."). Similarly, our neglect statute defines an "abused" child as one "whose parent . . . inflicts, or fails to make reasonable efforts to prevent the infliction of, physical or mental injury upon the child . . . ." D.C. Code § 4-1301.02 (1) (2001). The inclusion of "mental injury" in our neglect statute indicates that the drafters intended to prohibit more than physical violence or assaultive conduct. Compare Robinson, 506 A.2d at 574, with D.C. Code § 22-1101 (b)(1). Furthermore, simple assault must be established by showing that the defendant's actions would reasonably injure or frighten the victim at the time the act is committed, Ruffin, 642 A.2d at 1295, while the cruelty offense does not require that the defendant's act be contemporaneous with the risk of grave injury to the child. D.C. Code § 22-1101 (b)(1). To illustrate these distinctions, a mother could be charged with child cruelty for failing to provide adequate food and nutrition for her child over a period of many months, see generally Young v. United States, 745 A.2d 943 (D.C. 2000), but this failure would not constitute an "assault," at least not initially, because she lacks the "apparent present ability" to injure her child by withholding food. See Anthony v. United States, 361 A.2d 202, 205 (D.C. 1976) (stating that "at the time of the assault the surrounding circumstances must denote the intention and present ability to do immediate violence") (emphasis added). Furthermore, the failure to provide food is an omission which does not involve "force or violence" or the threat thereof. Therefore, the offense of second-degree cruelty to children does not merge with simple assault.
Bradley asks that we apply the rule of lenity in this case to sentence him concurrently rather than consecutively on his convictions for simple assault and attempted second-degree child cruelty. The rule of lenity operates to prohibit consecutive sentences when "a single act or transaction constitutes two criminal offenses, unless (1) the offenses are separate and distinct, and (2) there is a clear legislative intent to provide for consecutive punishment." Jones v. United States, 401 A.2d 473, 475 (D.C. 1979) (internal citations and quotation marks omitted) (emphasis added). We have described the rule of lenity as "a rule of statutory construction which requires a court to construe a penal statute so it will apply in the least onerous fashion when the statute is capable of more than one reasonable construction." Id. at 476 (citation omitted). Accordingly, in Nixon, 730 A.2d at 145, we applied the rule of lenity to our statute prohibiting the possession of a ...