Appeal from the Superior Court of the District of Columbia (CMD-7742-08) (Hon. John H. Bayly, Jr., Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
Before FISHER and OBERLY, Associate Judges, and NEWMAN, Senior Judge.
Matthew Dunn was convicted of assault in violation of D.C. Code § 22-404 (2001) for shoving a private security officer at an animal rights protest. Dunn appeals, arguing that (1) there was insufficient evidence that he intentionally shoved the officer; (2) the trial judge erroneously convicted Dunn based on the judge's view that a political protester has the propensity to commit assault; and (3) his assault, if any, was de minimis. We affirm.
I. Facts and Procedural History
This is what happened. On February 22, 2008, Matthew Dunn, Adam Ortberg, and Franklin Wade went to 701 Pennsylvania Avenue, N.W., the Navy Memorial Building, to protest against animal cruelty. Wade explained that they were at that address to protest against the pharmaceutical company Novartis; according to Wade, Novartis is "one of the biggest contractors with Huntington Life Sciences, which kills 500 animals every day, including punching beagle puppies in the face in undercover video." Wade testified that his experience as a veteran of more than 100 protests gave him cause to fear "police repression," and so Wade and his co-protesters covered their faces to conceal their identities. Dunn wore a blue bandana which was pulled over his face up to his eyes; a piercing in the shape of upside down bull horns was visible hanging from Dunn's nose.
Mattison Agneu, the security director for 701 Pennsylvania Avenue, had notice that animal rights protesters were coming. Agneu testified that in preparation for the protest, his security team "locked the building down," and Agneu, along with three other security officers, was standing at the door of 701 Pennsylvania Avenue to prevent the protesters from coming into the building. Agneu testified that, following "normal routine," his command center called the Metropolitan Police Department twice to alert the MPD of the protest"just in case" things got out of control. And indeed, although Agneu did not realize it at the time, MPD Detective Norma Horn was across the street, observing the scene for approximately twenty minutes.
Dunn and his confederates arrived at 701 Pennsylvania Avenue at around 1 p.m. They handed out leaflets, chanted, and held signs of a puppy in blood. One of Dunn's friends, Ortberg, yelled through a bullhorn (here, meaning an amplifying device, not a nose piercing) directly into the face and ear of Damien Bonner, a security guard on Agneu's team. Bonner, understandably, moved the bullhorn away from his face. The parties dispute how much force Bonner used - Bonner said he "shoved" the bullhorn, Wade said that Bonner "punched" the bullhorn, and Agneu testified that Bonner "mov[ed]" it - but the precise details are not relevant to this appeal.
What is relevant is what happened next. Having seen Bonner move the bullhorn away from his face, Agneu feared a confrontation. So Agneu came over, "grabbed [Bonner] by his arm, and . . . went to pull him back." "But," Agneu testified, "as I pulled [Bonner] back," Dunn "approached," and, chanting "'all your fault,'" Dunn "kind of - he shoved me."Asked to elaborate, Agneu explained that Dunn was holding a sign "out in front of him, and in one motion, he just thrust forward and, and pushed me back." Dunn's hands, in Agneu's estimation, moved only five to six inches. Nonetheless, Agneu testified, the force of the push was sufficient to move Agneu, a 6'4", 215-pound man, backward. Detective Horn, who had been observing the scene from across the street, largely confirmed Agneu's account. Wade, however, testified that Dunn never got closer than eight feet to Agneu.
Agneu testified that after Dunn pushed him, Agneu asked, "what in the hell are you - do you think you're doing?" In response, according to Agneu, Dunn continued to chant, "'all your fault, all your fault, all your fault.'" Bonner - the security officer whom Agneu pulled back from Ortberg, the protester who was yelling into Bonner's face - did not see Dunn push Agneu. Bonner testified, however, that after Agneu pulled him away from Ortberg, Agneu was "moving backwards" and "telling a guy, 'what are you thinking.'" Agneu then heard "the guy" say, "'well, get your little thug and gangster out of my way then.'" Bonner understood the "thug" moniker to refer to himself.
Wade testified that thereafter Dunn and friends stayed to chant for "several . . . about five more minutes," and then left for the next of three scheduled protest locations for the day. Detective Horn, who had been observing from across the street (it seems in plain clothes), came over, identified herself as a police officer, and informed Agneu that "what had happened out there was an assault." Agneu responded that he had to talk things over with a "higher up," and eventually, a different officer came by and took the assault report. By that time, however, Dunn was gone.
The protesters returned with signs and bullhorns on March 21, 2008, as did Detective Horn, this time in uniform. Horn asked Agneu whether he recognized any of the protesters. Agneu pointed at Dunn who (again wearing a bandana or a scarf) was protesting, beating a white paint bucket with a stick. Agneu told Horn that Dunn was the "guy" who had assaulted him, and predicted that if Horn pulled down the bandana/scarf covering Dunn's face, Dunn's nose piercing would be visible.
Horn then approached Dunn and asked him to uncover his face. Dunn refused, so Horn pulled down the bandana/scarf herself, revealing the nose piercing that Agneu had mentioned. Horn recognized Dunn as the person who pushed Agneu a month earlier, and so Dunn was arrested and taken to the proverbial "downtown" for processing.
The government charged Dunn with assault in violation of D.C. Code § 22-404. After a bench trial, Dunn was convicted and sentenced to seven days' imprisonment, execution of sentence suspended, six ...