Appeal from the Superior Court of the District of Columbia (CMD15330-08) (Hon. Patricia A. Wynn, Trial Judge)
The opinion of the court was delivered by: Reid, Associate Judge:
Before REID and FISHER, Associate Judges, and FERREN, Senior Judge.
Appellant, Andre M. Jones, appeals from his conviction for misdemeanor assault on a police officer ("APO") in violation of D.C. Code § 22-405 (b).*fn1
He contends that his case should be remanded to the trial court because the court may have convicted him on the basis of an invalid legal theory pertaining to non-criminal conduct. In light of (1) conflicting accounts of the encounter between the police and Mr. Jones; (2) the absence of an explicit credibility determination by the trial court; (3) the government's three theories of Mr. Jones's guilt, two of which may not sustain his conviction; and (4) the absence of specific findings showing the basis for Mr. Jones's conviction, we are constrained to remand this case to the trial court for clarification of its verdict.
The transcript of Mr. Jones's February 6, 2009 bench trial reveals the following. On July 5, 2008, Mr. Jones was in his front yard, located in the 4300 block of 4th Street, in the Northwest quadrant of the District of Columbia, playing with his children. Shortly after 5:00 p.m. officers from the Metropolitan Police Department entered this block while pursuing a suspect for a narcotics arrest. Among the officers chasing the suspect was Officer Alfonso Matos. Officer Matos caught the suspect and while he was attempting to place him in handcuffs, Mr. Jones and another man, Vincent Moore, approached. Both men stood within approximately five feet of Officer Matos as he prepared to transport the suspect. Mr. Moore asked Officer Matos what he was doing, while Mr. Jones began screaming and yelling profanities at Officer Matos. Officer Matos advised both individuals to return to the sidewalk.
Mr. Moore complied with the instructions given by Officer Matos, but Mr. Jones did not. Mr. Jones remained in the street and yelled profanities at the officers. Officer Matos again asked Mr. Jones to return to the sidewalk. Mr. Jones eventually moved to the sidewalk but continued to yell, scream, and use profanities. Officer Matos warned Mr. Jones that if he continued to use profanities and scream, he would place him under arrest. Mr. Jones persisted in yelling and screaming at the officers, demanding to know what the suspect had done.
When Officer Matos sought to place Mr. Jones under arrest for failure to follow the orders given to him, Mr. Jones threw his hands up in front of the officer's face and cursed him. Officer Matos attempted to put Mr. Jones in handcuffs by grabbing his hand, but Mr. Jones "pulled [his hand] back and pushed [Officer Matos]." The officer "took a fighting stan[ce]." Four other officers came over to assist Officer Matos with the arrest.*fn2 After the officers secured Mr. Jones in handcuffs, he was placed in a police car and taken to the police station for interviewing and processing.
Mr. Jones disputed the officers' account of the events and gave his version of the events, as follows: He and Mr. Moore watched as the officers brutally beat the suspect they had chased. Mr. Moore asked the sergeant, who was on the scene, if the two men could speak with him about what they had witnessed. Officer Matos heard Mr. Moore's inquiry to the sergeant and said, "y'all don't need to talk to anybody." Officer Matos approached Mr. Jones and wanted to know whether he was a drug dealer, told him he smelled of weed, and began pointing his fingers in his face. Mr. Jones felt threatened and asked the officer to remove his fingers. Officer Matos asked him if he wanted to be arrested to which he replied that he had done nothing wrong. Officer Matos took one of his handcuffs and threw it around the wrist of Mr. Jones. Almost immediately following the handcuffing Mr. Jones was surrounded by many other officers. He denied both pushing Officer Matos and resisting arrest.
In his closing argument, the prosecutor stated that Mr. Jones could be found guilty of assault on a police officer by using any one of three theories: (1) he shoved Officer Matos, (2) he remained in the street shouting profanities at Officer Matos after being warned that he should return to the sidewalk, and (3) he took a fighting stance towards Officer Matos. As the prosecutor informed the trial court, in part:
[T]he evidence presented has shown that the defendant committed several of the actions that can qualify as an assault on a police officer when directed at someone like Officer Matos . . . . [F]irst is the shove . . . . [Second,] we've heard testimony that [Mr. Jones] impeded Officer Matos in his work, in connection with his work that was going on [w]hen he stepped into the street . . . and spoke to Officer Matos saying . . . that he had nothing better to do and that . . . this was basically a bad arrest. [Third,] [t]he intimidation type of APO also[.] Officer Matos testified . . . that Mr. Jones took a fighting stance towards him at one point. When comparing the versions of events and they're starkly different, . . . I'd ask the [c]court to consider which makes more sense.
Defense counsel challenged the police officers' version of the events, emphasized the presence of four police officers who were taller (over six feet compared with Mr. Jones' 5'8" height) and heavier (approximately 250 pounds for the officers), and the character of Mr. Jones who had no record of convictions and who had served in the Army for the last twenty-two years. Defense counsel also asserted, in part, that "it's the government's duty not to just . . . ask the [c]court to find which story makes the most sense . . . [but] to prove its case beyond a reasonable doubt." In his rebuttal, the prosecutor essentially sought to cast doubt on the validity of the defense account of the events, and in doing so, reiterated the government's theory that Mr. Jones shoved Officer Matos, as well as the theory that Mr. Jones stepped off the sidewalk and yelled after being told to stay on the sidewalk.
The trial court declined to render an immediate verdict; the judge said she "want[ed] to take a little bit of time to think about [the case] some more" and that she did not believe she could do that before the end of the court day. In ...