Appeal from the Superior Court of the District of Columbia (No. F-2445-02) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before RUIZ, GLICKMAN and KRAMER, Associate Judges.
Appellant James Swinton beat and, allegedly, raped his girlfriend. He was tried on charges of first-degree sexual abuse, aggravated assault, and lesser offenses. The jury was unable to reach a verdict on the sexual abuse charge but found Swinton guilty of aggravated assault. Because the evidence of "serious bodily injury" was insufficient to support this felony conviction, we reverse and remand for entry of a judgment of conviction on the lesser- included misdemeanor offense of simple assault.*fn1
According to the government's evidence, Swinton attacked his girlfriend, J.G., while he was visiting her in her apartment. Swinton, who had been drinking heavily, became angry with J.G. and began to abuse her, first verbally and then with his fists. J.G. testified that an enraged and apparently intoxicated Swinton punched her on her arms and legs and forced her to have sexual intercourse with him against her will. J.G. escaped after Swinton eventually fell asleep. She sought refuge the following morning with a friend, who summoned the police on her behalf. J.G. reported that she had been beaten and raped. The police took her to Howard University Hospital's Rape Crisis Center, where a nurse performed physical and gynecological examinations of her and photographed her injuries. Those injuries, which the responding police officer described as "minor," consisted solely of three or four bruises, a few or several centimeters in diameter, on her left arm and inner thighs. After being examined, J.G. was told to treat her bruises with ice packs and was discharged from the hospital. She was not given or prescribed any pain medication.
Five months later, J.G. testified at trial that she was "hurt bad" and had screamed in pain as Swinton pummeled her with his fists, and that she was still "hurting badly" hours later, when she went to the hospital. At one point during her cross-examination, J.G. remarked that she was "still bruised up to this day." She did not display her bruises to the jury, and she was not asked to describe her residual injuries further. The government presented no other evidence as to the nature, extent or duration of J.G.'s injuries.
Swinton argues that the foregoing evidence was insufficient to permit a reasonable trier of fact to find that he inflicted "serious bodily injury," an essential element of the statutory crime of aggravated assault. See D.C. Code § 22-404.01 (a) (2001).*fn2 The term "serious bodily injury" has a restrictive meaning. We have construed it to denote only "bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty." Nixon v. United States, 730 A.2d 145, 149, 150 (D.C. 1999) (reversing aggravated assault convictions because government failed to establish that victims' bullet wounds met the definition of "serious bodily injury"); see also Zeledon v. United States, 770 A.2d 972, 977 (D.C. 2001) (noting that "even injuries such as knife or gunshot wounds are not per se 'serious bodily injury'"). Our decisions since Nixon have emphasized "the high threshold of injury" that "the legislature intended in fashioning a crime that increases twenty-fold the maximum prison term for simple assault." Jenkins v. United States, 877 A.2d 1062, 1069 (D.C. 2005) (internal quotation marks and citations omitted). The cases in which we have found sufficient evidence of "serious bodily injury" to support convictions for aggravated assault thus have involved grievous stab wounds,*fn3 severe burnings,*fn4 or broken bones, lacerations and actual or threatened loss of consciousness.*fn5 The injuries in these cases usually were life-threatening or disabling. The victims typically required urgent and continuing medical treatment (and, often, surgery), carried visible and long-lasting (if not permanent) scars, and suffered other consequential damage, such as significant impairment of their faculties. In short, these cases have been horrific. Until now we have not had a case of "serious bodily injury" predicated on an unarmed assault in which the victim's only physical injuries were bruises. Without minimizing either J.G.'s ordeal or Swinton's culpability, we are compelled to recognize that the harm J.G. suffered does not appear to be of the same order of magnitude as that suffered by the victims in all our other aggravated assault cases.
That observation is not dispositive. Notwithstanding the uniqueness of this case, the government asks us to uphold Swinton's conviction for aggravated assault. The government argues that it presented sufficient evidence at trial that Swinton inflicted "serious bodily injury" within the meaning of the aggravated assault statute because the jury reasonably could find that J.G.'s injuries involved (in the words of the definition adopted in Nixon) either "protracted and obvious disfigurement" or "extreme physical pain." In each respect, however, we disagree. Even viewing the evidence in the light most favorable to preserving the jury's verdict, we conclude that there was sufficient evidence of neither "protracted and obvious disfigurement" nor "extreme physical pain."*fn6
First, though we do not dismiss even ordinary bruises as inconsequential, it is open to debate whether contusions of the kind and number that J.G. received on her arm and inner thighs should be deemed disfigurements within the meaning of the aggravated assault statute. "To disfigure is to make less complete, perfect or beautiful in appearance or character." Perkins v. United States, 446 A.2d 19, 26 (D.C. 1982) (internal quotation marks and citations omitted). Without some qualification, however, that definition is too broad to suit the purposes of the aggravated assault statute, for it would encompass even the most minor bruises, scratches and scrapes. Every black eye, for example, surely is not to be equated with "serious bodily injury." In Nixon, we stated that our definition of "serious bodily injury" is "consistent with that followed in the majority of jurisdictions," which require "a serious permanent or physical disfigurement" (emphasis added). 730 A.2d at 150. We also have said that "[t]o be permanently disfigured" for the cognate crime of malicious disfigurement "means that the person is appreciably less attractive or that a part of his [or her] body is to some appreciable degree less useful or functional than it was before the injury." Perkins, 446 A.2d at 26. Plainly, it is difficult to be precise about the degree of seriousness required, but we think it fair to conclude that only more severe and extensive bruising than J.G. sustained should be treated as disfigurements for purposes of the crime of aggravated assault; to do otherwise likely would be to trivialize the statute and to disregard the "high threshold of injury" it erects. Jenkins, 877 A.2d at 1069; cf. Stroman v. United States, 878 A.2d 1241, 1246 (D.C. 2005) (holding, in a prosecution for attempted possession of a prohibited weapon, that a cut on the forehead requiring fifteen stitches, "though more than a mere bruise," was not shown to be a "protracted and obvious disfigurement").
Even assuming, though, that J.G.'s bruises qualify as disfiguring, there was a dearth of evidence that her disfigurement was "protracted and obvious." The word "protracted" conveys a sense of prolongation beyond a short recovery period,*fn7 and "obvious" surely indicates a degree of genuine prominence.*fn8 But bruises fade, often rapidly. J.G.'s unelaborated comment that she was "still bruised up" five months after her altercation with Swinton was not enough to establish whether or how long her bruises remained prominent, or even visible. Cf. Hart, 863 A.2d at 875 (victim displayed her scars to the jury, demonstrating that her stabbing injuries were protracted and obvious). The government presented no other evidence that J.G. suffered "protracted and obvious disfigurement."
There likewise was insufficient evidence that J.G. endured "extreme physical pain." The term is regrettably imprecise and subjective, and we cannot but be uncomfortable having to grade another human being's pain. Nonetheless, the adjective "extreme" -- typically defined as "existing in the highest or the greatest possible degree"*fn9 -- unambiguously indicates that the level of pain must be exceptionally severe if not unbearable. Cf. Nixon, 730 A.2d at 150 (referring to "immobilizing pain"). In Alfaro v. United States, for example, this court held that even the "vicious" whipping of a naked child with a wet telephone cord did not create "the kind of 'extreme' pain that can reasonably be compared to or equated with any of the categories of serious injury enumerated by the legislature and adopted by this court in Nixon." 859 A.2d 149, 162 (D.C. 2004).*fn10 The extremity of the victim's pain must be established by probative evidence, not left to the jury's untethered speculation. The burden imposed on the government by this requirement is not an unreasonable one. A victim need not use the specific word "extreme" to describe her pain, and even absent graphic descriptions of suffering from the victim herself or other witnesses, a reasonable juror may be able to infer that pain was extreme from the nature of the injuries and the victim's reaction to them. See Anderson, 857 A.2d at 464; Gathy, 754 A.2d at 918. But in the present case, as in Alfaro, "the government has not drawn our attention to any evidence that the pain was extreme or unbearable." 859 A.2d at 162 n.13. There is no dispute, of course, that J.G. suffered significant physical pain; she testified that she "hurt bad" and screamed in pain when Swinton punched her, and undoubtedly her bruises were both painful in themselves and evidence of the pain she endured. But that is all the evidence we have. Comparable evidence could be presented in virtually any prosecution for assault and battery, as indeed it was in Alfaro.*fn11 Without more, such evidence is not enough to support a finding beyond a reasonable doubt that J.G.'s pain was not merely significant, but "extreme."*fn12
For lack of sufficient evidence that Swinton inflicted "serious bodily injury" within the meaning of D.C. Code § 22-404.01 (a), we reverse his conviction of aggravated assault and remand the case for entry of a superseding judgment of conviction on the lesser included offense of simple assault, with re-sentencing as appropriate. See Willis v. United States, 692 A.2d 1380, 1383 (D.C. 1997); Jennings v. United States, 431 A.2d 552, 555 (D.C. 1981).