Appeal from the Superior Court of the District of Columbia (DV-2618-05) (Hon. William M. Jackson, Trial Judge)
The opinion of the court was delivered by: Kramer, Associate Judge
Before REID and KRAMER, Associate Judges, and SCHWELB, Senior Judge.
Opinion concurring in the judgment but dissenting in part by Senior Judge SCHWELB at page 8.
Following a three-day bench trial, appellant was convicted of simple assault. He was sentenced to 180 days incarceration, all of which was suspended, and placed on one year of supervised probation with the requirement that he enter and complete anger management counseling. Appellant now contends that the trial court erred in denying his motion for judgment of acquittal and, specifically, that the government failed to present sufficient evidence to convict him of simple assault. He also asserts that the trial court erred by failing to advise him that he had no obligation to testify at trial. Finding no merit in either argument, we affirm.
The facts underlying this appeal are as follows. Appellant and his wife, Angela Sellers-Watson, became involved in a confrontation outside a branch office of the Department of Motor Vehicles (DMV) located at 3200 Pennsylvania Avenue, Southeast. Earlier that day, appellant had gone to the DMV to register a trailer titled in his and his wife's name. Appellant was apparently unaware when he went to the DMV that he needed the signature of his wife as well as his own on the registration paperwork. He, therefore, called her on her mobile telephone and asked her to meet him at the DMV. He waited three hours for her to arrive. When she did arrive, both she and appellant were irritated -- she because appellant's trip to the DMV had interrupted her errands, and he because of the long wait.
Appellant and his wife both testified about what occurred outside of the DMV. While their stories differed in various respects, appellant himself testified that at some point during their heated conversation his wife flipped open her mobile telephone to make a call, and he grabbed the phone's fliptop to stop her, accidently breaking it loose. Appellant was arrested for this incident on August 1, 2005, when the police responded for other reasons to the home he and his wife shared on 50th Street, Northeast. Upon inquiry by a police officer about past instances of domestic violence, Ms. Sellers-Watson recounted the incident in the DMV parking lot. Thereafter, the police placed appellant under arrest.
At the close of the government's evidence, appellant moved for judgment of acquittal. The court denied the motion, finding that the government had established a prima facie case. The court noted that while it had difficulty determining exactly what had occurred outside the DMV, appellant's own testimony about grabbing and breaking the mobile telephone was enough to establish an assault under this court's decision in Mahaise v. United States.*fn1 The court further found that appellant's grabbing of the telephone was deliberate, that it occurred in the context of an argument, that it was unprovoked, and that it constituted a battery in that it was a touching without consent.*fn2
Appellant now argues that the government failed to prove the elements of assault beyond a reasonable doubt. In particular, he asserts that "[i]t is clear from the facts of the case that Ms. Sellers-Watson was not put in fear of immediate injury," and that "Mr. Watson's action was not an attempt to injure Ms. Sellers-Watson." He would distinguish Mahaise on the basis that it involved a different standard of proof -- that is, "clear and convincing evidence," versus "proof beyond a reasonable doubt," and because the Mahaise court specifically noted that the defendant's entering of the victim's apartment without consent "may well have made [his] conduct significantly more threatening." Mahaise, supra, 722 A.2d at 30.
Mahaise involved a college student who had entered a fellow-student's apartment without permission and become involved in a confrontation. 722 A.2d at 29-30. The police arrested Mahaise for assault, but the United States Attorney's Office declined to prosecute. Id. at 29. Mahaise then filed a motion under Super. Ct. Crim. R. 118, which allows a defendant to have his arrest record sealed when he proves by clear and convincing evidence that he did not commit the offense. Id. at 29-30. See also White v. United States, 582 A.2d 1199, 1201 (D.C. 1990). In affirming the trial court's denial of the motion, we wrote: "Appellant's statement that he removed the phone from the complainant's hand and then took her cigarette from her other hand and extinguished it is thus an admission, at least prima facie, of two separate assaultive acts." Mahaise, supra,722 A.2d at 30. We also noted that "[a] battery is any unconsented touching of another person," and that "[s]ince an assault is simply an attempted battery, every completed battery necessarily includes an assault." Id.
"In assessing a claim of evidentiary insufficiency, we must view the record 'in the light most favorable to the government, giving full play to the right of the fact finder to determine credibility, weigh the evidence, and draw justifiable inferences of fact.'" Alfaro v. United States, 859 A.2d 149, 160 (D.C. 2004) (quoting Perry v. United States, 812 A.2d 924, 930 (D.C. 2002)). To prevail, appellant must show 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) (quoting Robinson v. United States, 506 A.2d 572, 573 (D.C. 1986)). "[I]n reviewing bench trials, this court will not reverse unless an appellant has established that the trial court's factual findings are 'plainly wrong,' or 'without evidence to support [them].'" Id. (quoting D.C. Code § 17-305 (a) (1989)). This standard of review places a "heavy burden" on appellant. See Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C. 2004).
Considered under these standards, appellant's attempts to distinguish the instant case from Mahaise are unconvincing. The differing standards of proof in each are irrelevant, that is, the government's burden of "proof beyond a reasonable doubt" in this criminal case, versus the movant's burden of "clear and convincing evidence" that the crime for which the movant was arrested did not occur or that the movant did not commit the crime charged in a sealing case. See White, supra, 582 A.2d at 1201. The legal proposition upon which the trial court relied in Mahaise was that the act of grabbing a telephone out of someone's hand during a confrontation is sufficient by itself to establish a prima facie case of assault because it is also a battery. Specifically, the court wrote: "A battery is any unconsented touching of another person. Since an assault is simply an attempted battery, every completed battery necessarily includes an assault." Mahaise, supra,722 A.2d at 30 (citing Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990)). And as we clarified in Harris v. United States, 201 A.2d 532, 534 (D.C. 1964), our assault statute, now found at D.C. Code § 22-404, defines common law assault as -- an attempt with force of violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.
Harris goes on to say that "'violence' in its ordinary meaning is not a necessary element of assault, for an attempt to do unlawfully to another any bodily injury however small constitutes an assault," Id. at 534, and "actual fear on the part of the person assaulted is not a necessary element of the crime." Id. Moreover, as we clarified in Comber v. United States, 584 A.2d 26 (D.C. 1990), "[a]lthough some misdemeanors, at least when viewed in the abstract, prohibit activity which seems inherently dangerous, they may also reach conduct which might not pose such danger. A special difficulty arises in the case of simple assault . . . because that misdemeanor is designed to protect not only against physical injury, but against all forms of offensive touching." Id. at 50 (citing Guarro v. United States, 99 U.S. App. D.C. 97, 99-100, 237 F.2d 578, 580-81 (1956)).
Here, the evidence, considered in the light most favorable to the government, would indicate that, unbidden, Watson entered his wife's car, which she testified belonged solely to her, and that the circumstances of the encounter made his actions seem particularly threatening.*fn3 The trial court was thus justified in finding that the government had established the elements of assault beyond a reasonable doubt.
Appellant next requests -- this Honorable Court . . . to determine, whether in this case, the Trial Court should have conducted an on the record inquiry to determine whether Mr. Watson made an informed decision as to whether he knew prior to testifying, that he was validly, knowingly, and intelligently, waiving his Fifth Amendment Constitutional Right.
In so doing, he acknowledges that the lack of such an inquiry by the trial court is reviewable in this case only for plain error. This claim, however, is foreclosed by our decision in Pinckney v. United States, 906 A.2d 301 (D.C. 2006), decided after the parties here had submitted their briefs, which rejected the same argument.
We have held that a trial court committed reversible error by failing to determine whether the record demonstrated that a non-testifying defendant had made a knowing and intelligent waiver of her "fundamental and personal right" to testify at trial. See Boyd v. United States, 586 A.2d 670, 674-680 (1991). In Pinckney, however, we refused to extend this holding to circumstances in which the trial court did not advise the defendant that he had a Fifth Amendment right not to testify:
Boyd stands for the proposition that a defendant's right to testify on his own behalf in a criminal trial is one that may only be waived by the defendant and suggests that when a defendant does not testify, the trial court should establish an on-the-record waiver to establish that the defendant knew of his right to testify on his own behalf before choosing not to do so. It follows, therefore, that where the defendant elects to testify on his own behalf . . . Boyd does not govern. Even if Boyd's concern for ensuring a defendant's knowing waiver of a constitutional right were extended to a testifying defendant, the trial court did not plainly err in failing to advise appellant of his Fifth Amendment right not to testify, where appellant was represented by counsel and there was no indication that appellant was unduly compelled to testify.
906 A.2d 301, 307 (D.C. 2006) (citations omitted). As in Pinckney, appellant here was represented by counsel. He has also not alleged, nor does the record indicate, that he was in any way pressured to testify. We ...