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In Re J.S.

May 5, 2011

IN RE J.S., APPELLANT.


Appeal from the Superior Court of the District of Columbia (DEL429-08) (Hon. Judith N. Macaluso, Trial Judge)

The opinion of the court was delivered by: Fisher, Associate Judge

Argued March 24, 2011

Before FISHER, Associate Judge, REID,*fn1 Associate Judge, Retired, and FERREN, Senior Judge.

After a bench trial, the court found J.S. to be delinquent because he had committed the misdemeanor offenses of possessing a controlled substance, D.C. Code § 48-904.01 (d); and assaulting, resisting, or interfering with a police officer ("APO"), D.C. Code § 22-405 (b). His sole argument on appeal is that there was insufficient evidence to sustain the adjudication for APO. We affirm.

I. Background

On February 12, 2008, Officer Jeremy Bank was advised by another officer that the primary suspect in an armed robbery that occurred the night before, a youth nicknamed "L.B.," had been seen in the 2500 block of Elvans Road, S.E. Officer Bank recognized the nickname as belonging to a fourteen-year-old boy, later identified as J.S., whom he had previously seen hanging out with members of a gang called the Wellington Park Crew.

Officer Bank and his partner, Officer Felix Lina, drove to Elvans Road to look for J.S. so that they could obtain his real name and pass that information along to the officers investigating the armed robbery.At 5:20 p.m., Officer Bank spotted J.S. standing in front of 2534 Elvans Road, S.E., but when Officer Lina got out of the patrol car to approach him, J.S. "took off running." Both officers pursued and shouted at J.S. to stop. J.S. ignored their commands and ran into a wooded area where there was a shortcut that led to Pomeroy Road, S.E., but he slipped and fell face-down on the ground.

Within "three or four seconds" police caught up with J.S. and ordered him not to resist and to put his hands behind his back. Each officer grabbed one of appellant's arms to pull them behind his back using standard hand control techniques, Officer Bank on appellant's left side and Officer Lina on appellant's right side. Officer Bank testified that J.S. "was struggling to resist us holding his arms" and "[h]is body was moving back and forth . . . ." J.S. "broke free" from his grip twice by "swinging his arm forward," making it difficult for the officers to handcuff him. Officer Lina affirmed that J.S. was "trying to break free" and "was hiding his hands and moving away." But J.S. did not kick or swing at the police, and he was lying on his stomach as they handcuffed him.

Special Police Officer Eugene Dunmore, who regularly provided security for a nearby apartment complex, witnessed these events and concurred with the officers' testimony. Having learned that J.S. was a suspect in the armed robbery committed the night before, Officer Dunmore notified police of J.S.'s whereabouts earlier that day. Officer Dunmore saw that Officers Bank and Lina "had one handcuff on [J.S.]" and were "trying to put the other handcuff on him," but that J.S. was "still fighting them" and moving his arms "back and forth" while "rolling his body from side to side." After running to assist Officers Bank and Lina, Officer Dunmore took out a can of mace and threatened to spray J.S. in the face unless he stopped resisting arrest; only then did J.S. "stop[]" and "let them handcuff him."

After the struggle, which lasted between ten and fifteen seconds, police frisked J.S. for weapons. During the pat-down, a piece of paper and a small Ziploc bag fell out of one of J.S.'s pockets. The contents of the bag field-tested positive for crack cocaine. Appellant does not challenge the adjudication of delinquency for possessing that cocaine.

J.S. admitted that he ran away from police "[b]ecause I had crack in my pocket," but testified that when he slipped and fell he "just lay still and didn't move." He acknowledged that he pulled his arm away after police brought his arms behind his back to handcuff him, but claimed that he did so because his arm was hurting, and that when the police told him to stop resisting he replied, "I'm not resisting, you're hurting my arm." After appellant pulled his arm away, Officer Lina deliberately put a knee onto his right wrist, and this action broke his wrist. J.S. explained that he stopped moving when Officer Dunmore threatened him "[b]ecause I didn't want to get sprayed with mace."

In closing argument, appellant's counsel summarized the defense theory of the case: "We're not saying the officers intended to hurt him. We're not saying they used excessive force. What we're saying is, is that J.[S.]'s actions were not voluntary, they were not on purpose, they were not an act of resistance, they were a reaction to the pain."

The trial court credited J.S.'s testimony that he felt pain as the officers tried to handcuff him and that police broke his right wrist when an officer later used a knee to hold down his right arm. But, it found that "[e]ven though J.[S.] felt pain, the officers were using reasonable force under the circumstances," and that "[a]lthough he was feeling pain, [J.S. was legally required] to do what he ended up doing . . . go limp . . . ." The parties agree that the APO offense was based on appellant's conduct before his wrist was broken, because appellant "was clear in testifying that he pulled his arm away in pain before the officer put his knee into J.S.'s wrist." Though the court believed that J.S. was "testifying completely truthfully to the best of his recollection," it concluded that "his very testimony fits right within the offense of assault on a police officer." The court explained:

The argument that's offered by J.[S.] through counsel is that because he felt pain, he didn't act voluntarily. Because he felt pain, he didn't resist. He did resist. I think his argument is, I resisted because I was in so much pain. But the evidence established beyond a reasonable doubt that J.[S.] had the ability, if he was motivated enough, to cooperate. When the special police officer came with his mace, then J.[S.] was motivated enough to cooperate. . . . That's why I'm finding guilt beyond a reasonable doubt, ...


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