Appeal from the Superior Court of the District of Columbia (DV-613-05) (Hon. Craig Iscoe, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Submitted January 25, 2007
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and BELSON, Senior Judge.
We are confronted, for the first time, with the issue of whether an individual is subject to criminal liability under D.C. Code § 22-1101(b) (2006) when he drives in a dangerous manner with child passengers in the car. Appellant contends that there was insufficient evidence to support his conviction of two counts of attempted second-degree cruelty to children.*fn1 We conclude that there was ample evidence in the record to support the trial court's findings that appellant's conduct of erratically operating a motor vehicle, while admittedly impaired and while two unrestrained children accompanied him as passengers, created a grave risk of bodily injury to the minor occupants of his vehicle, and subjected appellant to criminal liability. Weaffirm.
The facts upon which the trial court relied were based in large part on the testimony of the government's witness Officer Gregg Goodman. Officer Goodman testified that on February 25, 2005, at approximately 9:00 p.m., he and another officer were on traffic patrol at the intersection of Blaine Street and Division Avenue, N.E., Washington, D.C., when they observed appellant run a stop sign. The officers noticed that appellant did not have his car headlights turned on and initiated their siren and emergency lights in an attempt to make a traffic stop, but appellant did not immediately pull over. Instead, he began to swerve back and forth across the yellow centerline. Appellant then made a sharp left turn onto Ames Street, N.E., but quickly aborted this plan and swerved to the left after he realized that he would be proceeding against the direction of traffic.
Appellant finally stopped at the intersection of Division and East Capitol Streets, N.E., two blocks from the initial intersection where the officers observed appellant run a stop sign. The officers exited their vehicle and approached appellant's car, and immediately noticed a "pit bull's head that came through the window," and two small children in the back seat.*fn2 The children did not have any seat belts on, and were not otherwise restrained by child safety seats.*fn3 Officer Goodman testified that he noticed a moderate odor of an alcoholic beverage coming from the vehicle, and later saw a clear cup with a brownish liquid sitting in the center console of the vehicle, prompting the officer to ask appellant if he had been drinking. Appellant admitted that he had consumed "a couple of beers" earlier in the day.
The officer then asked appellant to step out of the car. The officer could smell the odor of alcohol on appellant and noticed that his eyes were bloodshot and that his pupils appeared to be dilated. Based on these observations, the officer administered three field sobriety tests to appellant.*fn4 Appellant failed each test. As a result, appellant was arrested and transported to the police station where two intoxilyzer tests were administered. Appellant's intoxilyzer test results showed a blood alcohol level of 0.13 and 0.12 grams respectively. In the District of Columbia, a person having a blood alcohol level of .008 grams or higher is deemed intoxicated, and it is against the law for an intoxicated person to operate a motor vehicle.*fn5
The appellant also testified on his own behalf. Appellant stated that the reason he did not immediately pull over for the police was because they often drive around with their lights on and there was no convenient place to pull over on the two lane road with parked cars. Appellant did not contest the results of the roadside sobriety tests, or subsequent intoxilyzer tests, which showed appellant's blood-alcohol level at least 1 1/2 times the legal limit in the District of Columbia. Appellant admitted that "two minor children were in the backseat playing with a dog and were not restrained." Appellant stated that he initially buckled the children in seatbelts, and later realized that the children had taken their seatbelts off, but he still continued to drive while impaired.
We review claims of insufficiency of evidence de novo, applying the same standard that the trial court applies in ruling on a motion for judgment of acquittal. See Robinson v. United States, 797 A.2d 698, 705 (D.C. 2002); United States v. Bamiduro, 718 A.2d 547, 550 (D.C. 1998). In doing so, we view the evidence in the light most favorable to the government, with due regard to the right of the trier of fact to weigh the evidence, determine the credibility of witnesses, and draw reasonable inferences from those facts. Gibson v. United States, 792 A.2d 1059, 1065 (D.C. 2002), cert. denied, 536 U.S. 972 (2002).
To prevail on his sufficiency of the evidence claim, appellant has the burden of establishing "that the government presented no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt." Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992) (internal quotation marks and citations omitted). We conclude that appellant is unable to meet this burden.
This court has not previously addressed the issue of whether an individual is subject to criminal liability under D.C. Code § 22-1011 (b) when he drives in a dangerous manner with child passengers in the car. While we have not previously addressed this question, other jurisdictions with similar child protection statutes have addressed precisely this issue and found criminal liability for driving dangerously with child passengers. For example, in State v. Anspach, 627 N.W.2d 227, 230 (Iowa 2001), the Iowa Supreme Court affirmed a conviction of child endangerment where the defendant created a substantial risk of harm by driving recklessly with several unrestrained children in his car. The Iowa Supreme Court was faced, for the first time, with interpreting a child endangerment statute, very similar to our own, to determine whether appellant's "foolish" acts constituted the crime of child endangerment.*fn6 Id. The facts upon which the Iowa Supreme Court relied in interpreting their child endangerment statute revealed that Anspach was observed by police officers driving a truck at fifty-three miles per hour in a thirty-five miles per hour zone. Police signaled to Anspach to stop by flashing their lights, but rather than slowing down, appellant sped up.
Anspach then made two sharp turns onto a side street and then into an alley before finally coming to an abrupt stop. When the police later asked Anspach why he did not heed to their flashing lights and immediately stop, "Anspach told the officer he was losing his license in three days and did not want to get caught again." Id. Once the police finally pulled Anspach over, they observed that the truck cab contained four small children, ranging from the ages of one to three years. The police could see that the one year old lay on the floor of the truck on ...