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In re R.S.

October 28, 2010

IN RE: R.S., APPELLANT.


Appeal from the Superior Court of the District of Columbia (DEL1561-07) (Hon. Jerry S. Byrd, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Argued January 19, 2010

Before REID and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

At a juvenile bench trial, appellant was found guilty of so-called felony assault, carrying a pistol without a license, and related offenses*fn1 in inflicting wounds upon a victim that required four to six stitches on her ear and left scars visible seven months later. Appellant argues on appeal that these wounds did not constitute the requisite "significant bodily injury,"defined by the statute as "an injury that requires hospitalization or immediate medical attention." D.C. Code § 22-404(a)(2) (2010 Supp.). We conclude that the evidence presented here was sufficient such that the trial court could rationally find beyond a reasonable doubt that appellant committed felony assault. Appellant also argues that the evidence was insufficient in its proof of "operability" to support his conviction of carrying a pistol without a license. We disagree and affirm the judgment.*fn2

I. Factual Summary

The charges against R.S. arose from an incident that took place in the late evening and early morning of June 25-26, 2007. Annette Foster was engaged in a fight with R.D. Leah Stover, who had been standing in front of her building, attempted to break up the fight. Foster testified that appellant ran toward Stover and kicked her below the waist, causing her to fall to the ground. After Stover fell to the ground, Foster observed appellant, D.B., A.B., and R.D., all of whom she knew from the neighborhood, begin to kick Stover repeatedly. While they were kicking Stover, Foster heard the juveniles threaten Stover, stating, "I'm about to fuck you up," and "bitches."

Stover herself testified that R.D. struck her cheek with his fist, after which appellant came from behind her and struck her in the face with his fist, causing her to stumble and fall. As she tried to get up, appellant hit her again in the face, which caused her to stumble again. A.B. and D.B. kicked her in the side of her face, and A.B. punched her. Appellant and the other boys kicked her many times, and as the boys struck her, they said, "I'm going to fuck you up," "bitches," and "fuck her up." Stover tried to fight back, but Foster was on top of her attempting to get the boys off of her. When the incident began to calm down, D.B. kicked Stover in the head, which caused her head to hit a metal gate and her left ear to "burst open." Foster then brought Stover into her second floor apartment.

While Stover and Foster were in the apartment, appellant and A.B. made multiple threats over the intercom in which they demanded that Foster let Stover out of the apartment. A.B. stated, "let that bitch out of the house. We don't want you. We just want her." R.S. stated similarly, "[w]e want your girlfriend, your friend to come outside, because we don't like her." Stover perceived that appellant was threatening her and encouraging her to come outside. Foster also heard the sound of someone cocking a gun. Stover looked through the peephole and saw A.B., D.B., and appellant in the hallway, and A.B. was holding a gun in his hand, "to the side," "like he was about to point at somebody."

At some point, for some reason, Stover did go outside. Tameka Phillips, her cousin, along with Phillips' sister, Shelly Clark, and a girlfriend, Tracy Washington, arrived to find Stover sitting on the curb with her head bleeding. Phillips saw appellant and A.B., neither of whom she knew, and asked them who hit her cousin. Appellant said, "I knocked her bitch-ass out. If she want to act like a nigger, I'm going to treat her like a nigger." A.B. lifted his shirt, revealing his gun tucked into the front waistband of his pants, and threatened Phillips and the other two women, "I fuck you all bitches up. You all don't want it" and made other similar threats. Clark testified that A.B. made other threats to her and to others, including that he would pistol whip and smack them, and he pulled out the gun and held it at his waist but did not raise or point it. Phillips described appellant's actions as backing up A.B., stating, "yeah, you all don't want it, you all don't want it." Clark continued arguing with appellant and A.B. until the police arrived. After the police arrived, Phillips observed appellant and A.B. each ditch a gun that they had stored in the waistbands of their pants into the bushes. She then observed them run into the building. Despite the arrival of the police, several minutes later the boys exited the building, recovered the guns, and reentered the building.

Stover testified that because of the assault, she had a laceration to her ear, a bruise on her forearm, and a scratch on the back of her right shoulder. Foster observed that Stover's ear was "very swollen," and "torn in two," and that she could not hear out of that ear. Stover testified that on June 26, "right after the incident," she went to Greater Southeast Hospital, where she received four to six stitches in her ear and medication for her ear and for headaches that she suffered. Stover showed the court the scar that remained on her ear after the assault, and the court admitted into evidence photographs of the injury. Stover further testified that she experienced headaches for a couple of days after the incident. A week after the incident, she returned to the hospital to have the stitches removed.

II. Felony Assault and "Significant Bodily Injury"

The trial court stated in its findings that appellant's conviction for felony assault was based on (1) his participation in the assault when he kicked the victim to the ground, and (2) aiding and abetting the group of juveniles who collectively caused her injury. Appellant argues that there was insufficient evidence to support the conviction because Stover suffered what he terms only a minor injury to her ear that did not require hospitalization or immediate medical attention.

D.C. Code § 22-404 was amended by statute in 2006, adding subsection (a)(2), which created an intermediate assault offense. Section (a)(2) provides:

Whoever unlawfully assaults, or threatens another in a menacing manner, and intentionally, knowingly, or recklessly causes significant bodily injury to another shall be fined not more than $3,000 or be imprisoned not more than 3 years, or both. For the purposes of this paragraph, the term "significant bodily ...


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