Appeal from the Superior Court of the District of Columbia (M-5405-00) (Hon. José M. López, Trial Judge)
Before Schwelb, REID,*fn1 and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge.
Following a bench trial, Reina Alfaro was convicted of three counts of simple assault, in violation of D.C. Code § 22-504 (1996);*fn2 three counts of attempted second-degree cruelty to children, in violation of D.C. Code § 22-901 (b) (1996);*fn3 and three counts of attempted possession of a prohibited weapon (APPW (b)) (telephone cord), in violation of D.C. Code § 22-3214 (b) (1996).*fn4 The trial judge imposed concurrent sentences of imprisonment for 180 days on each count of simple assault; concurrent sentences of imprisonment for 180 days on each count of attempted second-degree cruelty to children, consecutive to all other sentences; and concurrent sentences of imprisonment for 180 days on each count of APPW (b), consecutive to all other sentences. The judge suspended execution of each of the sentences, however, and Ms. Alfaro was placed on probation for two years.
On appeal, Ms. Alfaro does not challenge her convictions of attempted second-degree cruelty to children. She claims, however, that simple assault is a lesser included offense of attempted second-degree cruelty to children, and that her assault convictions therefore merge into her attempted cruelty convictions. Ms. Alfaro further contends that the evidence was insufficient to support her convictions of APPW (b).*fn5
In conformity with our recent decision in Bradley and for additional reasons set forth below, we conclude that simple assault is not a lesser included offense of attempted second-degree cruelty to children, and we therefore affirm Ms. Alfaro's assault convictions. We further conclude, however, that the evidence of APPW (b) was insufficient to support her convictions of that offense.
THE TRIAL COURT PROCEEDINGS
On February 6, 2000, three of Ms. Alfaro's sons - K.A., then twelve years of age; J.A., then eleven; and D.A., then ten -- were whipped with a wet telephone cord while naked. The whipping was apparently administered because the boys returned too late to their mother's home from a weekend visit to their father, from whom Ms. Alfaro was separated. The boys were then given a cold shower, which one of them described as "like freezing."
At trial the prosecution presented evidence which, if credited, showed that Ms. Alfaro was the person who beat the boys and ordered that they be given an icy shower. The defense claimed that Ms. Alfaro's oldest son (the victims' half-brother), M.L., aged sixteen, was the person who disciplined the youngsters. Indeed, M.L. testified that it was he who had beaten the boys with the cord, and he claimed that he had done so in order to punish them for being disrespectful to their mother.
During the weekend following the beatings, the victims' father noted their injuries and took his sons to the police. The boys were subsequently examined at Children's Hospital. There were loop-shaped markings, "reddish pink" in color, on various parts of the boys' bodies. These markings remained visible two weeks after the whipping took place.
At the conclusion of the trial, the judge resolved the credibility issues in favor of the prosecution.*fn6 He found Ms. Alfaro "guilty beyond a reasonable doubt of assaulting these three boys with a telephone wire while they were naked." Turning to the attempted second-degree cruelty charges, the judge found that "when you take it to a higher level, where you go ahead, wet the wire, make them go naked, and then force them to go take a cold, freezing shower after that beating, that is cruelty." Finally, with respect to the APPW (b) charges, the judge found that "a telephone cord . . . is a wire wrapped with insulation," and that Ms. Alfaro wetted the cord and then used it to hit the children while they were naked, "with all due care [to make sure] that they were hurt." The judge ruled that, in these circumstances, the telephone cord "clearly would be considered" a dangerous weapon, and that Ms. Alfaro was guilty of APPW (b).*fn7
A. Ms. Alfaro's claim of merger.
Ms. Alfaro contends that every act of attempted second-degree cruelty to children is necessarily also an assault, that assault is a lesser included offense of attempted cruelty to children, and that her convictions of both attempted second-degree cruelty to children and assault, on the basis of the same conduct, subjected her to double jeopardy in violation of the Fifth Amendment. See Brown v. United States, 795 A.2d 56, 63 (D.C. 2002) ("The Double Jeopardy Clause . . . prohibits multiple punishments for the same offense.") (Citations and internal quotation marks omitted.) Although counsel for Ms. Alfaro makes a spirited argument in support of this contention and presents a number of points not raised or addressed in Bradley, we do not agree with her claim, rejected in Bradley, that every act of attempted second-degree cruelty to children necessarily constitutes an assault. Specifically, we are of the opinion that an attempt to inflict mental or emotional pain or suffering upon a child, if sufficiently extreme or unreasonable, constitutes attempted second-degree cruelty to ...