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Savage-El v. United States

June 29, 2006

NADIR SAVAGE-EL, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F2052-03) (Hon. Rafael Diaz, Trial Judge).

The opinion of the court was delivered by: Greene, Senior Judge of the Superior Court of the District of Columbia

Argued January 26, 2006

Before FARRELL and KRAMER, Associate Judges, and GREENE, Senior Judge of the Superior Court of the District of Columbia.*fn1

On June 25, 2003, a grand jury indicted appellant on separate counts of arson (D.C. Code §22-301), malicious destruction of property (D.C. Code §22-303), threatening to damage property (D.C. Code §22-1810), and carrying a dangerous weapon (spray bottle with gasoline) outside her home or business (D.C. Code §22-4504 (a)) (hereinafter, "CDW"), ________________ as well as three counts of threatening to injure a person (D.C. Code §22-1810). Following a jury trial, appellant was convicted of the CDW count and acquitted of the remaining counts on August 20, 2003. She appeals her conviction, asserting that (1) the evidence at trial was insufficient as a matter of law to support the jury's finding that a spray bottle containing gasoline constituted a "dangerous weapon" under the circumstances here, and (2) the trial judge erred in declining appellant's request to define the term "great bodily injury" (used in the jury instruction defining "dangerous weapon") in the same manner as this Court has required that the element of "serious bodily injury" be defined in an aggravated assault (D.C. Code §22-4502) prosecution. See Nixon v. United States, 730 A.2d 145, 150 (D.C. 1999); cf. D.C. Code §22-3001(7).

For the reasons which follow, we reject appellant's contentions and affirm her conviction.

I.

The evidence adduced at trial established, inter alia, that since 2000, appellant had resided in apartment 31 on the third floor of the Park Morton Housing Complex, a public housing facility, at 617 Morton Street, N.W., in the District of Columbia. In January, 2003, the District of Columbia Housing Authority began instituting procedures to evict her. After receiving an eviction notice, appellant went to the property management office on numerous occasions in March, 2003, and "made a couple of threats" that "if they were going to set her out, then nobody was going to live in the building. She was going to blow the mother fucker up." At about the same time, appellant was seen in the area "walking around with a squirt bottle saying that she was going to squirt gasoline on people" or "going to get someone." After a number of delays, appellant's eviction was finally scheduled for April 9, 2003.

About 7:30 p.m. on April 8, 2003, one of appellant's neighbors, Judith Turner, was inside her apartment when she heard an argument in the hallway and appellant's voice threatening to "put the place on fire." After the argument ended, Turner left her apartment; she saw no one in the hallway, but saw and smelled gasoline there. She poured plant soil on the gasoline and called 911. Later in the evening, a D.C. Fire Department arson investigator, Eugene Marshall, went to 617 Morton Street, N.W. to investigate a fire report. He found an "ignitable liquid" that smelled like gasoline on the concrete steps between the second and third floors of the building, as well as two burned matches.

Later in the evening of April 8, 2003, appellant entered a convenience store at 3331 Georgia Avenue, N.W., in the District. She held a red squirt bottle in her right hand, a thin, 12-inch-long strip of metal in her left hand, and a piece of the broken neck of a beer bottle on one of her left fingers. She smelled strongly of gasoline. When the cashier, Annette Gregario, asked appellant if she needed help, appellant responded, "I'm going to fuck you up when you get out of work." Thereafter, appellant left the store and Gregario pushed a button behind the counter to summon the police.

In the early morning hours of April 9, 2003, Metropolitan Police Officer Edward Brownlee saw appellant behind 617 Morton Street, N.W. As she walked past him, Brownlee smelled a strong odor of gasoline and noticed appellant carrying a "reddish color" squirt bottle in her right hand. Brownlee asked appellant to talk with him; she complied and he walked her over to 618 Morton Street, N.W., to a female officer. Meanwhile, a second police officer, James Conway, saw appellant and Brownlee enter 618 Morton Street, and saw appellant turn her back on Conway, and "fidget . . . around." When Conway walked to within three to four feet of appellant, he saw a red "spray bottle-type thing" and a book of matches on the ledge of the window near where appellant was standing. When Conway asked appellant if the bottle was hers, she replied, "no dice to that."

About 2 a.m. on April 9, arson investigator Marshall returned to 618 Morton Street, N.W., and observed a red plastic container with a white spray cap and an open matchbook in close proximity to it sitting on the inside window ledge of the first floor. The container smelled of gasoline. A forensic chemist, Roy Kutner, determined that the bottle in fact contained gasoline, and testified that appellant's left thumbprint was found on the book of matches.

In her defense testimony, appellant acknowledged, inter alia, that (1) she carried the spray bottle of gasoline "to scare people off" because she had been "jumped a couple [of] times," (2) she carried it into the convenience store the night of April 8, 2003, and (3) she put the spray bottle and the book of matches on the inside windowsill of 618 Morton Street, N.W., early on the morning of April 9, 2003. She denied spraying the gasoline on people or intending to burn the building down.

At the end of the government's case, and again at the close of all of the evidence, appellant moved for judgment of acquittal, asserting, inter alia, that the government had failed to adduce sufficient evidence upon which a reasonable juror could conclude beyond a reasonable doubt that the spray bottle containing gasoline, allegedly possessed by appellant, constituted a "dangerous weapon" under D.C. Code §22-4504(a). Her motions were denied.

Following the close of all of the evidence, appellant's trial counsel asked the trial judge to modify instruction 4.70, "Carrying a Pistol Without a License or Carrying a Deadly or Dangerous Weapon," in Criminal Jury Instructions for the District of Columbia (4th edition revised, 2002) (the "Redbook"). Instruction 4.70 defines a "dangerous weapon" as "any object likely to produce death or great bodily injury by the use made of it"; the instruction does not further define "great bodily injury." (Emphasis added.) Appellant requested that the instruction be modified in two respects: by (1) changing "great" to "serious," and (2) defining "serious bodily injury" in accord with Redbook instruction 4.06A, which defines the element of "serious bodily injury" required to prove aggravated assault*fn2 as "an 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." The trial judge refused appellant's request, agreeing with the government's assertions that (1) "serious bodily injury," as thus defined, requires a higher ...


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