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Powell v. United States

December 14, 2006


Appeal from the Superior Court of the District of Columbia (DV-2414-03) (Hon. Ann O'Regan Keary, Trial Judge).

The opinion of the court was delivered by: Pryor, Senior Judge

Argued September 8, 2006

Before GLICKMAN, Associate Judge, and PRYOR and KING, Senior Judges.

Concurring opinion by Associate Judge GLICKMAN at p. 9.

Dissenting opinion by Senior Judge KING at p. 11.

Following an altercation with his daughter, appellant, Elmer Powell, was charged by information with one count of simple assault*fn1 and one count of attempted second-degree cruelty to children.*fn2 At a bench trial, appellant presented a parental discipline defense. The trial court rejected the defense on the grounds that the force used by appellant was unreasonable, convicting appellant of simple assault while acquitting him of the second charge. On appeal, appellant challenges the sufficiency of the evidence used to support his conviction. Finding the quantum of evidence insufficient to disprove appellant's parental discipline defense beyond a reasonable doubt, we reverse.


Over an extended period of time, a pattern of disputes evolved between appellant and his sixteen-year-old daughter, the complainant. In July 2003, in the afternoon, tensions escalated when complainant did not respond to appellant's request to bring him an extension cord which was needed to complete roof repairs on the family residence. Following an unpleasant conversation about unwashed dishes in the kitchen sink, complainant stated her intention to go across the street to a friend's house, a place she often visited despite her father's previous instructions not to go there because of suspected unlawful drug activity. When complainant repeated her intention, a heated argument ensued.

As complainant started out the front door, appellant grabbed her right arm and pulled her into the foyer of the house with sufficient force that she fell backwards against a nearby interior stairway. Complainant repeatedly tried to leave, but was restrained each time by appellant. Complainant testified that she began to push and strike appellant. At some point, appellant struck complainant, causing her to fall to the floor. Lying on the floor, she kicked at appellant and swung upward at him. The dispute then moved to the kitchen where the complainant obtained a knife and held it to appellant's neck. Disarming his daughter, appellant hit complainant, causing her to hit her head on a faucet in the kitchen sink.

Complainant eventually fled to a neighbor's house and called the police. Responding officers talked to the father and daughter separately, ultimately arresting appellant. Appellant acknowledged the altercation with his daughter, stating she was "being disobedient with him." When complainant entered the house after the police arrived, they observed a bruise on complainant's arm and what appeared to be a urine stain on her clothing. They also saw a knife in the kitchen sink. The following night, complainant went to Children's National Medical Center at the urging of her older sister. An examination disclosed bruises to complainant's face and right arm*fn3 and she complained of back soreness.

In addition to the government's evidence, the trial judge heard the testimony of appellant, his two older daughters, and a friend. At the conclusion of the testimony, the trial court acquitted appellant on the charge of attempted second-degree cruelty to children charge, finding that his actions did not reveal an intent to cause bodily injury or a grave risk of injury as comprehended by the statute. However, after considering the evidence and appellant's defenses, she concluded that appellant used excessive force and was guilty of assault.


Appellant does not dispute that he used physical force directed to complainant.*fn4 However, he contends the evidence proffered by the government is legally insufficient to disprove his defense of parental discipline. Three factors are relevant to our analysis of the sufficiency of the evidence in this case. First, the trial court based its ruling on the limited facts surrounding the initial altercation at the front door of appellant's home, which the government presented through the prism of a flawed legal argument. Second, given the extended nature of the conflict, the evidence is speculative as to how and when complainant sustained her injuries. Third, there must be a sufficient quantum of evidence to disprove the parental discipline defense beyond a reasonable doubt.

We observe at the outset that the trial judge found appellant guilty solely on the basis of appellant's "initial contact" with complainant at the front door.*fn5 Thus, the government has premised its argument in this court on that limited finding. ...

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