Appeals from the Superior Court of the District of Columbia, (F-4340-05 & F-4341-05) (Hon. Brian F. Holeman, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and FERREN, Senior Judge.
A jury found co-defendants Shannon Marshall and Darius Coghill each guilty of one count of assaulting, resisting, or interfering with a police officer's duties, D.C. Code § 22-405(a) (2005), commonly referred to as assaulting a police officer or APO, and also found Marshall guilty of one count of possession of marijuana, D.C. Code § 48-904.1(d). Coghill appeals his APO conviction on the grounds that the government failed to put forth sufficient evidence to support the conviction. Marshall appeals his APO conviction on the grounds that the jury was improperly instructed, the government failed to set forth sufficient evidence to support the conviction, and that the arresting officer lacked probable cause to arrest him for APO. Because we agree that the jury was improperly instructed as to Marshall's APO charge, we affirm in part and reverse in part.
The instant convictions arose from an incident between appellants and the D.C. Metropolitan Police. On the evening of August 1, 2005, three uniformed D.C. Metropolitan Police officers, Officers Greer, Glenn, and Heraud, were patrolling in Northeast Washington, D.C. in a marked car.
The officers observed an automobile pass by with windows they believed to be tinted too darkly, and thus unlawfully. The officers signaled for the driver of the vehicle to stop and the driver obeyed. There were four people in the stopped vehicle. Officer Greer used a tint meter and determined that the windows were unlawfully tinted. The driver, Darius Coghill, presented his license and registration, began to argue with the officers about the basis for the stop, and when asked, denied having any contraband in the car and refused to consent to a search of the vehicle. Officer Greer returned to the patrol car to issue the citation while the other two officers remained by the stopped vehicle. Meanwhile, two additional officers, Officers Geddies and Sulla, arrived at the scene in another patrol car. While Officer Greer wrote a citation for the unlawfully tinted windows, Officer Heraud asked Coghill additional questions. Because of Coghill's nervousness, unwillingness to answer the questions, and because Officer Heraud could not see into the car, he asked Coghill to exit the vehicle, and told the other passengers to remain in the vehicle. The government's evidence established that Coghill complied, and Officer Heraud began a pat-down for weapons, but before the officer completed the pat-down, Coghill sat back down in the vehicle, and refused to exit again when asked. After Coghill repeatedly ignored Officer Heraud's orders to get out of the vehicle, Officers Heraud, Sulla, and Geddies attempted to forcibly remove Coghill from the vehicle. Coghill resisted the officers' efforts by bracing his feet on the floorboard and gripping the steering wheel. Meanwhile, another passenger-it was not clear who-urged Coghill to drive away. Coghill then engaged the gear shift and the vehicle began to roll away. Although Coghill resisted, the officers were able to forcibly remove him from the car, stop the vehicle, and handcuff him.
After stopping the car from rolling away, Officer Greer attempted to remove the key from the ignition, and at the same time, Shannon Marshall, a passenger in the back seat, exited the vehicle and fled. Officer Greer pursued Marshall and found him hiding in a grove of trees, laying down with his arms under his body. Not knowing if Marshall was armed, the officer repeatedly ordered Marshall to show his hands, but Marshall did not obey. The government's evidence established that Marshall resisted Officer Greer's attempt to handcuff him, causing the officer to struggle to access Marshall's arms in order to secure the handcuffs. The officer was able to handcuff Marshall, but when he walked him back to the location where the vehicle had been stopped, the vehicle was no longer there. Apparently, after Coghill was removed from the car and Marshall fled, the remaining two passengers drove off with the car. Marshall and Coghill were taken to the police station, where the police found marijuana in Marshall's wallet.
Under District of Columbia law, "[w]hoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties" is guilty of APO. D.C. Code § 22-405(b) (2005).*fn1 "It is neither justifiable nor excusable cause for a person to use force to resist an arrest when such an arrest is made by an individual he or she has reason to believe is a law enforcement officer, whether or not such arrest is lawful." Id. § 22-405(d). Further, "mere passive resistance or avoidance"does not violate the APO statute. In re C.L.D., 739
A.2d 353, 357 (D.C. 1999). Coghill and Marshall both argue that the government's evidence only establishes that they exerted passive resistance, and therefore the evidence is insufficient to support their APO convictions. We review challenges to the sufficiency of the evidence by viewing the "evidence 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." Sousa v. United States, 400 A.2d 1036, 1043 (D.C. 1979).
To violate the APO statute a person's conduct must "cross the line into active confrontation, obstruction or other action directed against an officer's performance in the line of duty" by "actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him." In re C.L.D., supra, 739 A.2d at 357-58. Recognizing that the statute was intended to "deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty," id. at 355, we held that "the key to establishing any violation of the APO statute is 'the active and oppositional nature of the conduct for the purpose of thwarting a police officer in his or her duties."' Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (quoting In re C.L.D., supra, 739 A.2d at 357).
Coghill's APO conviction was based on the government's evidence that while he was stopped for driving a car with unlawfully tinted windows, he abruptly sat back in the driver's seat while Officer Heraud was attempting to conduct a pat-down, shifted the parked vehicle into gear, and braced his arms against the steering wheel to prevent being removed from the vehicle by several officers. Coghill's actions were active and directed at the officers; the actions impeded and interfered with Officer Heraud's pat-down search, the officers' attempt to remove him from the car, and the officers' completion of the traffic stop. Particularly by bracing himself in the car and resisting being removed, Coghill imposed an active, physical obstacle to the officers' effectuation of their duties. In Dolson, putting a finer point on the distinction between passive and active resistance, we held that "reinforc[ing] an existing barrier" or "the creation of a new barrier" is active resistance that ...