Appeal from the Superior Court of the District of Columbia (F3521-04) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before WASHINGTON, Chief Judge, and GLICKMAN and KRAMER, Associate Judges.
Appellant Anthony Brawner was convicted of escape under D.C. Code § 22-2601 (a)(1) (2001) for attempting to escape from the District of Columbia Jail. At trial, he argued that the government had not met its burden of demonstrating that he intended to escape when he engaged in unauthorized movement within the jail while wearing contraband civilian clothing. On appeal, he argues that the trial court's failure to instruct the jury that the government was required to prove his intent to leave the jail warrants reversal. He also argues that the trial court erred in its jury instructions by improperly expanding the grounds on which the jury could convict appellant, constructively amending the indictment and therefore requiring reversal. We agree.
At trial the government argued that on May 17, 2004, appellant attempted to escape from the District of Columbia Jail.*fn1 On that date he was being held without bond pending trial. Since he was an inmate with some custodial duties, he was permitted to leave his unit, South Three, to empty the trash in a bin just outside the unit door.The guard who let him out, Corporal Spence, lost sight of appellant, waited until he was relieved in the guard control room (the "bubble"), and went in search of him. Spence found appellant, in the custody of several guards, in the Receiving and Discharge area on the ground floor. In the ten minutes between the time he lost sight of appellant and the time he found him, appellant had changed into civilian clothes, left the third floor, and fled from Department of Corrections officers. His orange jumpsuit, the only clothing he was permitted to wear, was found on the first floor, balled up in a stairwell. When Spence found appellant again, appellant was wearing civilian clothes and attempting to follow two attorneys out of a secure location on the second floor. When he was asked for some identification, appellant indicated that he had lost it and that he was an employee in the infirmary. When a Department of Corrections officer tried to escort him back to the infirmary appellant fled, running upstairs, eluding the grasp of another guard, and heading toward the infirmary doors. An alert guard had radioed to the infirmary control bubble and told the guards not to open the doors. Appellant was apprehended and brought to the Receiving and Discharge area. One corrections officer testified that if appellant had been able to get through the infirmary doors, he would have had access to an elevator and a stairway that led to the ground floor and the staff entrance. Had he made it to the staff entrance, he would still have had to get through an officer-controlled door in order to exit the jail.
I. Intent as an Element of Attempted Escape
Appellant's indictment read: "On or about May 17, 2004, within the District of Columbia, Anthony Brawner, did escape from a penal institution and facility in which he was confined pursuant to an order issued by a court, magistrate judge, or commissioner of the District of Columbia. (Escape (From Institution)) in violation of 22 D.C. Code Section 2601(a)(1) (2001)."
The statute under which appellant was indicted reads:
(a) No person shall escape or attempt to escape from:
(1) Any penal institution or facility in which that person is confined pursuant to any order issued by a court, judge, or commissioner of the District of Columbia.
D.C. Code § 22-2601 (a)(1) (2001).
Because appellant was apprehended within the jail, as opposed to outside the facility, the government proceeded on an attempted escape theory. As is clear from the wording of the statute, a person violates the statute when he or she escapes or attempts to escape. The defense's theory of the case was that appellant lacked the intent to escape and so could not be convicted of attempted escape. The appellant provided the following proposed jury instruction: "The defense asserted in this case is that Mr. Brawner did not intend to leave the D.C. Jail on May 17, 2004. If you believe that the government has not proven beyond a reasonable doubt that Mr. Brawner intended to leave the jail on May 17, 2004, you must find Mr. Brawner not guilty." This instruction and other proposed changes that would have injected intent as an element of the crime charged were rejected as being incorrect statements of the law. In denying these requests, the trial court relied on this court's holding in Thurston v. United States, 779 A.2d 260, 264 (D.C. 2001), where we held that there is nothing in either the language of the statute or in the legislative history that requires the government to prove that a defendant on trial for a violation of § 22-2601 (a)(1) acted with the intent to avoid further confinement. That case, however, involved a defendant who failed to return to his halfway house, making his escape a completed escape. This conclusion was reaffirmed in Hines v. Unites States, 890 A.2d 686 (D.C. 2006), as being in accord with the Supreme Court's holding in United States v. Bailey, 444 U.S. 394 (1980), that "[a]ll that must be shown [in such cases] is that 'the escapee knew his actions would result in his leaving physical confinement without permission.'" Hines, supra, 890 A.2d at 690 (quoting Bailey, supra, 444 U.S. at 408)). In both Thurston and Hines, however, the defendants failed to return to their halfway houses, making their crimes completed escapes. Likewise, Bailey involved a successful completed escape.
This case, however, does not involve a completed escape. It involves an attempted escape, and we agree with appellant that (1) attempted escape cases are distinguishable from completed escape cases, even though they fall under the same statute, and that (2) attempted escape, like other inchoate offenses, requires the mental state of intending to commit the underlying offense. Indeed, the Supreme Court recognized in Bailey that "[i]n certain narrow classes of crimes, . . . heightened culpability has been thought to merit special attention. . . . [One] such example is the law of inchoate offenses such as attempt and conspiracy, where a heightened mental state separates criminality itself from otherwise innocuous behavior." 444 U.S. at 405 (citing the Model Penal Code § 2.02, Cmt at 125 (Tentative ...