Appeal from the Superior Court of the District of Columbia (CMD7575-09) (Hon. Kaye K. Christian, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before WASHINGTON, Chief Judge, and FISHER and BLACKBURNE-RIGSBY, Associate Judges.
Appellant Darryl Mattis claims that his conviction for assaulting, resisting, or interfering with a police officer ("APO"), in violation of D.C. Code § 22-405 (b) (2009 Supp.), must be reversed because an off-duty officer is not protected by the statute when engaged in outside employment. We disagree and affirm.
I. Factual and Procedural Background
On the evening of March 27, 2009, Officer Lloyd Murphy, a member of the District of Columbia Metropolitan Police Department ("MPD"), was working part-time as a "uniformed officer" at a TGIFridays in the District of Columbia. Someone told Officer Murphy that "there was a guy and a lady arguing at the bar." As he approached the bar, Officer Murphy could "hear [appellant's] loud voice." Mr. Mattis was "cursing out the young lady" while "standing directly over top of her back... as she was sitting at the bar."*fn1
Officer Murphy tapped appellant on the shoulder and asked him to lower his voice and stop cursing. In response, appellant asked Officer Murphy, "who the fuck [are you]?"and lunged forward, pushing the officer in the chest with both hands, so that he stumbled backwards a few feet. Officer Murphy then asked if he could see Mr. Mattis outside. Appellant refused, put his fists up, and told the officer to "mind [his] fucking business." At that point, Officer Murphy attempted to handcuff Mr. Mattis, but appellant slipped, grabbed the officer on the way down, and they both fell to the floor. They "scuffle[d]" and eventually Officer Herbert Newman, who was also working at TGIFridays, helped handcuff appellant.
Appellant testified on his own behalf and explained that, while waiting for his check, he started talking with the patron beside him. He jokingly asked her whether she had stolen his money -- a comment that he sometimes uses as "an icebreaker...." He claimed that she misconstrued his remark and began "cussing [him] out," and the two started arguing. Shortly thereafter, "an officer [in an unadorned blue rain jacket or overcoat] came out of nowhere...." According to appellant, the man "didn't appear to be an officer.... He didn't announce himself as an officer. He didn't act as an officer. I just [peripherally saw] somebody approaching me." Mr. Mattis denied pushing anyone and denied being handcuffed while in the restaurant. In fact, Mr. Mattis suggested that he did not realize Officer Murphy was a police officer until he "was sitting in jail trying to figure out... why [he] was there" and received "some type of report [that]... said assault on a police officer."
Judge Christian found the testimony of Officer Murphy and the female patron "credible beyond a reasonable doubt." By contrast, appellant was "much less credible." The court found that Officer Murphy "approached the defendant in a reasonable manner" but "the defendant pushed him with such force that he stepped back, he was pushed back away...." Although appellant testified he did not recognize that Murphy was an officer, the trial court rejected that assertion as a matter of fact.*fn2
Appellant argues that because Officer Murphy "was in an off-duty status, [ ] he was not a party protected by the APO statute." We are not persuaded and hold that the APO statute protected Officer Murphy even though he was off duty and working for a private employer at the time of the assault.
Under the District's APO statute, "[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 a misdemeanor. D.C. Code § 22-405 (b) (2009 Supp.).*fn3
Notably, the statutory language does not focus on whether an officer is on or off duty but, rather, on whether he is engaged in the performance of official duties. Id.
There is no question that when Mr. Mattis pushed Officer Murphy he assaulted him. See Dunn v. United States, 976 A.2d 217, 220-21 (D.C. 2009) (affirming conviction for simple assault where defendant pushed his victim); Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990) (discussing offense of assault and affirming assault conviction of defendant who spat in the face of officer who arrested her). Moreover, Mr. Mattis acted "without justifiable and excusable cause" when he shoved Officer Murphy.*fn4 In addition, at the time of the assault, Officer Murphy was "a law enforcement officer." See 6A DCMR § 304.16 (2009) ("Although off-duty and engaged in outside employment, members ...