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In re P.F.

July 24, 2008

IN RE P.F., APPELLANT.


Appeal from the Superior Court of the District of Columbia. (DEL-1445-05) (Hon. Fern Flanagan Saddler, Trial Judge).

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

Argued May 28, 2008

Before KRAMER, Associate Judge, FARRELL, Associate Judge, Retired,*fn1 and KING, Senior Judge.

Following a factfinding hearing in the Family Court of the Superior Court of the District of Columbia, P.F. was adjudicated guilty of aggravated assault while armed, in violation of D.C. Code §§ 22-404.01, -4502 (2001), armed carjacking, in violation of D.C. Code § 22-2803 (b)(1), malicious destruction of property, in violation of D.C. Code § 22-303, and carrying a dangerous weapon, in violation of D.C. Code § 22-4504 (a), for events occurring on July 8, 2005. On appeal, P.F.'s only claim is that there was insufficient evidence of serious bodily injury to support an adjudication of guilt with respect to the aggravated assault while armed charge. We agree.

Accordingly, we reverse the adjudication of guilt on that charge and remand to the trial court with instructions to vacate the finding and to enter a finding of guilty on the lesser included offense of assault with a dangerous weapon.

I.

In the early morning hours of July 8, 2005, the complainant, Dawn Marshall, was in her car driving to a Shop and Express convenience store, located at 14th and Chapin Streets, N.W. At a traffic light a short distance from the store, Marshall stopped behind a gold Toyota Camry from which P.F. and another male exited and approached Marshall's car. P.F. struck Marshall's car with a baseball bat, shattering the driver's side window of the car. When P.F. attempted to enter her car, Marshall moved to the passenger seat. He then began to swing the bat inside Marshall's vehicle, striking her on her right wrist. Eventually, Marshall exited the vehicle and was on the ground when P.F. and the other male struck her with the aluminum baseball bats approximately five times. P.F. then drove away Marshall's vehicle while his companion drove away in the Camry.

Marshall then walked one block to the Shop and Express parking lot where she located Metropolitan Police Officer Maurice Scott. Marshall was crying as she reported the attack to the officer. She complained that her shoulder was injured and she showed the officer a cut on her finger. Officer Scott then relayed Marshall's description of the men and her vehicle over the police radio. Approximately fifteen to twenty minutes later Marshall's car was located and Officer Scott drove Marshall to that location where she inspected the vehicle and determined that several items were missing.

Five days later, Marshall spotted the gold Camry in the parking lot of the Shop and Express. She then went to a nearby gas station where she alerted police officers in a patrol car, who arrested P.F. and another male shortly afterward.

At the factfinding hearing, Marshall testified that she was struck with the baseball bats on her right shoulder blade, her right wrist and her right chest. The attack left her with "bad bruises" on her chest and back, a cut on her finger, and a swollen wrist. She testified that she sought treatment for her injuries at Washington Hospital Center, where she was X-rayed. Treatment included a splint for her wrist and a supply of painkillers, which she took for one week. There is no indication in the record, however, as to the date or time Marshall went to Washington Hospital Center, how she was transported to the hospital, or whether the painkillers Marshall received were prescription strength or simply over-the-counter medications. In addition to her testimony regarding the treatment she received at the hospital, Marshall testified that she suffered some inconvenience as a result of the injury to her wrist, including difficulty completing everyday tasks such as taking care of her children, driving her car, and getting around.

On September 26, 2005, the trial court adjudicated P.F. guilty of aggravated assault while armed, finding that Marshall's injuries caused "extreme physical pain" and therefore amounted to "serious bodily injury," which is an element of the offense of aggravated assault.

II.

An adjudication of guilt for aggravated assault requires that the government prove that a defendant "(1) caused serious bodily injury [to another person]; and (2) either 'knowingly or purposely cause[d] serious bodily injury to [the person]'; or '[u]nder circumstances manifesting extreme indifference to human life, . . . intentionally or knowingly engage[d] in conduct which create[d] a grave risk of serious bodily injury to [the person], and thereby cause[d] serious bodily injury[.]'" Nixon v. United States, 730 A.2d 145, 149 (D.C. 1999) (quoting D.C. Code §§ 22-504.1, -3202). Serious bodily injury is defined as injury which causes "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." Id. (emphasis supplied; internal citation omitted). In reviewing challenges to the sufficiency of the evidence, "[w]e view the evidence in the light most favorable to the government, giving full play to the right of the [trier of fact] to determine credibility, weigh the evidence and draw justifiable inferences of fact." Swinton v. United States, 902 A.2d 772, 776 n.6 (D.C. 2006) (internal citation omitted).

The decisions of this court have emphasized the "high threshold of injury" that the legislature intended for a crime involving serious bodily injury, referring to these types of cases as "horrific." Id. at 775. Where a finding of serious bodily injury is based on extreme physical pain, as it was here, "the level of pain must be exceptionally severe if not unbearable." Id. at 777. Furthermore, "the extremity of the victim's pain must be established by ...


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