Appeal from the Superior Court of the District of Columbia (CMD-11339-06) (Hon. John H. Bayly, Jr., Trial Judge)
Before OBERLY, Associate Judge, Ruiz,*fn1 Associate Judge, Retired, and FARRELL, Senior Judge.
Opinion for the court PER CURIAM.
Concurring opinion by Associate Judge Ruiz at p. 4.
Following a bench trial, appellant was found guilty of simple assault. Contrary to his first argument on appeal, the evidence was sufficient to support a finding beyond a reasonable doubt that he assaulted the victim, Lieutenant Wilkins of the Metropolitan Police Department.
Appellant also contends, however, that the judge as trier of fact made no unambiguous finding that he had the intent, required for assault by our decisions, to use force against the officer. Because we agree that the judge's oral finding of guilt leaves unclear whether appellant indeed had the requisite intent - rather than having struck the officer accidentally - we must remand the case for clarification by the judge and any supplemental findings as to intent which the judge deems necessary.
Evidence showed that as Lieutenant Wilkins tried to arrest appellant for a drug sale and place handcuffs on him, appellant resisted the arrest. Depending on which testimony was credited, appellant did so either by pushing, elbowing, and intentionally striking the officer or, instead, by "balling himself up," "rolling onto his stomach," and "flailing his elbows" to avoid the handcuffing. The prosecution argued that appellant was guilty under either scenario so long as he intended the act of flailing his arms, even if he did not mean to strike the officer. Appellant, by contrast, citing this court's decision in Williams v. United States, 887 A.2d 1000 (D.C. 2005), argued that he must at least have intended to use physical force against the officer and that if his contact with the victim was only the "accidental" effect, id. at 1003, of his keeping his arms apart to prevent the handcuffing, he lacked the mens rea for assault.*fn2
Our examination of the trial judge's brief explanation for finding appellant guilty leaves us uncertain whether the judge resolved this disagreement. Appellant is correct that in Williams (also a bench trial) we rejected as a basis for conviction of assault a finding merely that the defendant had thrown a shoe in the direction of the victim - "intend[ing] to throw the shoe," id. at 1002 - without a finding also that he 'meant to throw it at the complaining witness." Id. at 1003. We therefore remanded the case for the judge to make an express finding whether the government had proven beyond a reasonable doubt that the defendant had "thr[own] the shoe with the intent to hit [the victim] with it." Id. at 1004. In this case, similarly, it is not clear whether the judge deemed sufficient that appellant had accidentally made contact with the officer while squirming and attempting to keep his arms apart ("He was trying to move his arms apart.") and avoid the cuffing, or instead found that appellant had intended to use force against the officer, if only to avoid the cuffing and not (as the judge said at another point) "trying to injure [him]." The judge's ultimate and terse explanation for finding appellant guilty - "[The officer ] was struck by the defendant. The defendant was flailing his elbows around trying to keep them apart so he wouldn't be cuffed" - leaves too much uncertainty whether he applied an understanding of intent consistent with our decision in Williams.
Accordingly, as in Williams, we remand the case for the trial judge to clarify the intent he found exhibited by appellant's actions, including any additional findings the judge believes necessary. If the judge finds that appellant, in struggling and flailing his arms about, intended to use force against the officer, then appellant's "conviction and sentence may stand." Williams, 887 A.2d at 1004. But if the judge finds that the striking of the victim was the accidental result of appellant's merely trying to keep his arms apart and make his body unamenable to handcuffing, then he "must find [appellant] not guilty." Id.
RUIZ, Associate Judge, Retired, concurring: I concur in remanding the case to the trial court for further consideration and fact-finding. As in (Antwan) Williams v United States, 887 A.2d 100 (D.C. 2005), the record is such as to leave us in doubt as to whether -- as the government has argued in the trial court and in this court -- all that the trial court needed to determine for conviction for simple assault is that appellant "intended to do the act that constituted the assault." In this case, that would have been appellant's efforts to disengage his arms from the officer's repeated attempts to handcuff him, by moving his arms toward the front of his body, keeping them rigidly extended and rolling into a ball to prevent the officer from grasping his arms. Unlike in Williams, however, where the question that had been left unaddressed was whether the detained suspect had thrown the shoe intending to hit the officer (which would have sufficed for assault) or merely flung the shoe in frustration without directing it at the officer (which would not), see id. at 1002-03, this case presents a more nuanced question because the physical proximity between the officer, who was touching appellant in an attempt to handcuff him, and appellant, who was resisting the officer's efforts, made physical contact inevitable. In this context, the factual scenario is not as clearly drawn as in Williams, where there either was, or was not, an intention to hit the officer. This appeal therefore raises the question, that the judge will have to address on remand, whether the circumstances here, under which appellant undisputedly made contact with the officer, support that he had the mens rea for simple assault. This is an issue that our cases have not clearly confronted and, it can fairly be said, have at times muddled. The purpose of this concurrence is to review the cases and, by distilling the essential holdings from what is dicta, set out -- in hopefully clearer terms -- the mens rea element of simple assault.
To begin, I add a few facts to complete the description of the encounter between appellant and Lieutenant Wilkins - all of which were presented through the testimony of Lieutenant Wilkins and the officers who came to assist him in arresting appellant. I also add the arguments made by counsel and the trial court's reasoning.
On the afternoon of June 3, 2006, Metropolitan Police Department (MPD) Officer Michael Newton observed what he believed to be a drug transaction between a seller, later identified as appellant, and two buyers on the 1600 block of E Street, N.E. After stopping the buyers, who were found to have marijuana, Officer Newton directed other MPD officers to arrest appellant, who was still nearby. MPDLieutenant Ronald Wilkins, who was undercover, saw appellant entering an apartment building and followed him into the building. Once inside, Wilkins saw appellant approach the open door of an apartment in the hallway. As appellant tried to enter the apartment, Lieutenant Wilkins grabbed him by the shirt. Appellant "started twisting" and managed to pull himself into the apartment. Wilkins called for back-up assistance.
Lieutenant Wilkins held fast to appellant's shirt and entered the apartment with him. Appellant fell onto a couch by the door. Wilkins identified himself as a police officer several times and tried to place handcuffs on appellant, but appellant "balled himself up and was attempting to roll . . . on[to] his stomach." Wilkins and appellant then began to "tussle back and forth." As Wilkins repeatedly tried to maneuver appellant's wrists into a position to place the handcuffs, appellant continued to avoid the handcuffing. ("The more I would grab a hold of him to try to maneuver his hands around the more he would roll.") Wilkins described the incident as "a lot of pushing, back and forth and elbows being thrown"; he also stated that as he attempted to get a hold of appellant's arm, appellant would "swing his arm back and hit [him]."
MPD Officers Dwayne Johnson and Zachary Melby responded to Lieutenant Wilkins's call for back-up.Together, the three officers succeeded in placing appellant in handcuffs. The officers described that appellant would:
pull his arms away and try to ball up which is common for someone who doesn't want to surrender his arms and get handcuffed. It's just harder for us. If they lock their arms under their body then you have to kind of physically pull their arms away to get them placed in handcuffs. You know, a lot of pushing back and forth and elbows being thrown, stuff like that.
Appellant "push[ed] and elbow[ed]" the officers several times, striking Wilkins's torso "a couple [of] times." As the "wrestling match" continued, Wilkins noticed a folding lock-blade knife in appellant's right front pants pocket. Wilkins "had a hold of [appellant's] right hand and with one of [his] hands grabbed the knife and threw it on the ground." The officers were soon able to restrain appellant and place him in handcuffs. The officers then searched him and recovered four small bags of cocaine, four pills containing amphetamines, and $136 in cash.
On cross-examination, defense counsel asked Lieutenant Wilkins whether he believed appellant had intended to strike him. Wilkins responded:
I don't think his intentions were specifically to strike me in the torso area with his arms. It was my opinion that he was intentionally trying to roll his body and lock his arms to prevent being handcuffed which supported the APO charge. I don't think he specifically or had the specific intent to strike me in the chest or the body area with his elbows as he was trying to break my grip free. That's why he wasn't charged with that as a specific intent.
At the close of the government's case, defense counsel moved for a judgment of acquittal as to the charge of assault, arguing that the government had failed to prove the mens rea element of assault. In support of the motion, counsel cited Lieutenant Wilkins's testimony regarding his belief that appellant had no intention of striking him. Defense counsel also underlined the fact that appellant had been arrested for the crime of assaulting a police officer (APO) but was actually prosecuted for simple assault and that, unlike APO, simple assault requires a showing of actual intent to injure the officer, beyond merely resisting or impeding arrest. The trial court denied the motion, explaining:
When it comes to the simple assault . . . you're quite right to argue, I think, what Wilkins says, that he did not believe that the defendant was trying to strike him for the sake of striking him. He wanted to get loose, or he didn't want to have the cuffs put on him. But, nonetheless, that, while it's a slightly different motive, or a slightly different motivation, [it] is the officer's assessment of why he did it; why he struck at him with his elbows. He was trying to move his arms apart. So . . . I'm not quite persuaded, at ...