Appeal from the Superior Court of the District of Columbia (CMD-8315-07) (Hon. Robert R. Rigsby, Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
Submitted February 25, 2009
Before RUIZ and OBERLY, Associate Judges, and STEADMAN, Senior Judge.
Following a bench trial, appellant was convicted of one count of simple assault and one count of possession of a prohibited weapon. On appeal, appellant does not challenge the assault conviction, but she does challenge the sufficiency of the evidence to support the trial judge's finding that the hammer she possessed was a prohibited weapon, and she further challenges the denial of her right to trial by jury on the charge of possession of a prohibited weapon. We affirm the sufficiency of the evidence to establish that the hammer was a prohibited weapon within the meaning of D.C. Code § 22-4514 (b). However, we accept the government's concession that appellant was entitled to a jury trial on this charge and therefore vacate appellant's conviction and remand to the trial court with instructions to enter judgment against appellant on the lesser-included offense of attempted possession of a prohibited weapon.
Appellant and her roommate, Richard Cunningham, fell behind in their monthly lease payments on a new television starting in September 2006. Shortly thereafter, Thomas Harrod, an account manager and collections agent from Rent-a-Center, the business from which appellant and Cunningham had leased the television, began calling and writing them about their delinquent account but no further payments were ever made. On Harrod's second visit to appellant's apartment, at which he intended to reclaim the television, his knock on the door was answered by Cunningham and a child. Shortly after Harrod's arrival, appellant appeared, grabbed Harrod by his shirt with "both hands," and began pulling him away from the door. Harrod told appellant to "get off me, stop pulling me."
Harrod, seeing that Cunningham was holding a knife, backed away from the door. He then noticed that the child who had been with Cunningham was holding a hammer.
At about the same time, appellant grabbed the hammer from the child and began swinging it at Harrod's face. Harrod testified that appellant missed hitting his face with the hammer by only "two and a half inches." Harrod further testified that he believed appellant was "intentionally" trying to hit him with the hammer.
Appellant explained that the reason her eight- and ten-year old grandchildren, over whom she had legal custody, were "holding their hammers in the air" was because she felt it was her responsibility to protect them from the many pedophiles she believed lived in her neighborhood. Appellant said she kept several hammers in a kitchen drawer to use as "weapons." Appellant testified that she had instructed her grandchildren that "if anyone ever, ever crossed the threshold and it's a man," they were to use the hammers "to protect [themselves]." Appellant also testified that she kept the hammers for the use of laborers who used them to make repairs or hang pictures and "heavy objects" in her apartment.
Appellant denied wielding a hammer against either Harrod or his co-worker while the two men were at her apartment, although she did acknowledge trying to "beat them up" with her fists, hitting them as "hard as [she] could." Appellant contended that she did not know who either of the men were and that she did not know why they were at her apartment. She and Cunningham further contended that they did not know Rent-a-Center wanted the television back, although they admitted that Rent-a-Center had been calling repeatedly about their delinquent account. At no time during or after the presence of Harrod and his co-worker at her apartment did appellant or anyone in her apartment call for help. Harrod, on the other hand, called the police.
THE TRIAL COURT CORRECTLY RULED THAT THE HAMMER WIELDED BY APPELLANT WAS A "WEAPON" WITHIN THE MEANING OF D.C. CODE § 22-4514 (b)
Appellant's first challenge to her conviction is to the sufficiency of the evidence to establish that the hammer was a "weapon" within the meaning of D.C. Code § 22-4514 (b). We first examine the language of the statute and then apply it to the evidence adduced at trial.
D.C. Code § 22-4514 (a) defines certain weapons that are inherently dangerous, such as machine guns, sawed-off shotguns, blackjacks, switchblade knives, and the like, and flatly prohibits their possession except by members of law enforcement or military personnel while on duty. Section 22-4514 (b), with which we are here concerned, prohibits the possession of other devices, with an intent to use unlawfully against another, certain specifically enumerated items, such as "an imitation pistol, or a dagger, dirk, razor, stilletto, or knife with a blade longer than 3 inches, or other dangerous weapon." (Emphasis added.) Thus, the interpretative question is whether a hammer, though not specifically enumerated in the statute, can be an "other dangerous weapon" if intended to be "use[d] unlawfully against another."
There is no question that a hammer can have many useful and legitimate purposes that would not suggest an intent to use it unlawfully against another person. Likewise, however, there can be no doubt that a hammer can be extremely dangerous, even an instrument of death, if coupled with an intent to use it unlawfully against another person. Here, we credit the trial judge's finding, based on his assessment of the credibility of ...