Appeal from the Superior Court of the District of Columbia (CF2-5613-10) (Hon. Florence Y. Pan, Trial Judge)
The opinion of the court was delivered by: Oberly, Associate Judge
Before OBERLY, BECKWITH, and EASTERLY, Associate Judges.
After a jury trial, Karl Dayton Woods, appellant, was convicted of simple assault in violation of D.C. Code § 22-404 (a)(1) (Supp. 2007) and assault with significant bodily injury in violation of D.C. Code § 22-404 (a)(2). On appeal, Woods alleges that the trial court committed reversible error by rejecting his request for a jury instruction on the affirmative defense of consent. Finding no error, we affirm.
On March 14, 2010, Woods and Donald Shelton were both hanging out in the vicinity of Union Station. At some point in the evening, a limousine pulled up and a man handed Shelton a case of beer. Because he does not drink beer, Shelton went to a nearby spot where other people were hanging out and passed out the beers. Woods asked for a beer, but Shelton told him "no" and testified that Woods took two beers anyway. An altercation ensued between Woods and Shelton and, according to Shelton, Woods became "really upset," and began "yelling" and "swinging his hands"; in response, Shelton cursed at Woods. Nicole Tosner, a server at Capitol City Brewing Company, located across the street from Union Station, saw the altercation while taking a cigarette break. She testified that Shelton was "in [Woods‟s] face" and "had his hands up in the air saying hit me, hit me, fucking hit me" while the two men were "stepping closer, further away, closer, [and] further away to each other." That continued for "five to 10 minutes" and thenTosner "heard a crack." She did not see what happened, but ran over to the area where the men were arguing and saw Shelton "[ly]ing on the ground unconscious."
Sergeant Kevin Dauphin with the Amtrak Police Department was nearby on a routine patrol and heard Shelton‟s head hit the ground and went over to see what had happened. When he got there Tosner "pointed in the direction of [Woods]," who was walking away. Officer Dauphin stopped Woods and asked him "what happened," to which Woods replied, "I knocked the mother fucker out and I smacked the shit out of his ass." Officer Dauphin arrested Woods. Shortly thereafter, Amtrak Police Officer Taniqueka Harvey arrived and observed that Shelton was "not moving" and his face was "bloody." After Officer Dauphin tried for about two minutes to revive Shelton, Shelton awoke but then suffered what is believed to have been a seizure. According to medical records, Shelton had "swelling on his face and some cuts on his face." One or two days after the incident,Officer Dauphin interviewed William Angelo, a friend of Shelton, who witnessed the incident. According to Officer Dauphin, Angelo said that Woods and Shelton were "horse playing and all of a sudden Mr. Wood[s] just snapped and hit [Shelton] really hard in the face."
On July 20, 2010, appellant was charged with aggravated assault (Count One), in violation of D.C. Code § 22-404.01 (2001), and assault with significant bodily injury (Count Two). At trial, the defense requested that the jury be instructed that consent was a defense to assault. The trial judge denied the request, stating that "the great weight of authority . . . disfavors the defense of consent in assault cases" and that she did not find "any cases where the Court was reversed for not giving a consent instruction under circumstances like this, so it seems . . . that as a matter of law, consent is not a defense to an assault." Further, in light of the fact that the jury "heard that [Shelton] said, "Go ahead, hit me, hit me,‟" the trial court, over defense counsel‟s objection, instructed the jury as follows: "Consent is not a defense. A complaining witness‟s consent is not a legally recognized defense to a charge of assault." The jury found Woods guilty of the lesser-included offense of simple assault on Count One and guilty on Count Two.
Appellant contends that the "trial court was required to instruct on the defense of consent and failure to do so violated [his] federal constitutional rights." In determining whether a defense instruction was properly denied, we review the evidence in the light most favorable to the defendant." Bonilla v. United States, 894 A.2d 412, 417 (D.C. 2006) (internal quotation marks omitted).
Although it is true that "a defendant is entitled to an instruction on his theory of the case when properly requested by counsel and when the theory is supported by any evidence," Stack v. United States, 519 A.2d 147, 154 (D.C. 1986) (internal quotation marks omitted), this court has not yet ruled on the issue whether consent is a defense to assault with significant bodily injury.*fn1
Generally, "a criminal offense is a wrong affecting the general public, at least indirectly, and consequently cannot be licensed by the individual directly harmed." WAYNE R. LAFAVE & DAVID C. BAUM, CRIMINAL LAW § 6.5 (a), at 381
(5th ed. 2010). This court has departed from that principle only in assault cases where the act charged "is one to which consent may be given," Guarro v. United States, 99 U.S. App. D.C. 97, 100 n.4, 237 F.2d 578, 581 n.4 (1956), such as cases involving sexual assault or kidnapping. See, e.g., Hicks v. United States, 707 A.2d 1301 (D.C. 1998) (sexual assault); Davis v. United States, 613 A.2d 906 (D.C. 1992) (kidnapping and sexual assault); Bush v. United States, 516 A.2d 186 (D.C. 1986) (kidnapping); McDermett v. United States, 98 A.2d 287 (D.C. 1953) (sexual assault). Put another way, "[c]ertain crimes . . . are defined in terms of the victim‟s lack of consent, and as to these the consent of the victim is obviously a bar to conviction." LAFAVE & BAUM, supra. See also 1 CHARLES E. TORCIA, WHARTON‟S CRIMINAL LAW § 46, at 303 (15th ed. 1993) ("[C]onsent destroys the criminal character of an act of sexual intercourse which would otherwise constitute rape.").
Our review of cases in other jurisdictions reveals that "although the defense of consent is applied in the realm of sexual assault, it has been sparingly applied . . . in other areas." State v. Shelley, 929 P.2d 489, 491 (Wash. Ct. App. 1997). This is because "society has an interest in punishing assaults as breaches of the public peace and order, so that an individual cannot consent to a wrong that is committed against the public peace." Id. at 491-92; see also Lyons v. State, 437 So. 2d 711, 712 (Fla. Dist. Ct. App. 1983) (noting that the "general view is that consent is not a defense to a criminal prosecution for assault and battery, except in cases of rape" because "[w]hether or not the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in prohibiting and preventing such acts as this") (internal quotation marks omitted); State v. Brown, 364 A.2d 27, 29 (N.J. Super. Ct. Law Div. 1976) ("The state, not the victim, punishes a person for fighting or ...