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In re D.F.

Court of Appeals of Columbia District

July 11, 2013

In Re D.F., Appellant.

Submitted February 12, 2013.

Appeal from the Superior Court of the District of Columbia (DEL-1821-11) (Hon. Patricia A. Broderick, Trial Judge).

Joel R. Davidson was on the brief for appellant..

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and John J. Woykovsky, Assistant Attorney General, were on the brief for appellee District of Columbia.

Before Fisher and Thompson, Associate Judges, and Wagner, Senior Judge.

THOMPSON, Associate Judge.

After a bench proceeding, the Superior Court found that then thirteen-year-old D.F. possessed a BB gun[1] outside a building, in violation of 24 DCMR § 2301.3.[2] In this appeal, D.F. contends that the court "erred in finding that [his] possession of an inoperable BB Gun supported a conviction for possession of a BB Gun outside the home." We disagree and therefore affirm.

I. Background

The following evidence was presented at the evidentiary hearing: On August 16, 2011, Metropolitan Police Department Officer Filio Simic received a radio run for a man with a gun in the 700 block of Bailey Place, S.E., and a description of two individuals. After canvassing the area, Officer Simic located individuals on bicycles who matched the description. When Officer Simic approached the individuals, one of them — appellant — made a turn on his bike and started pedaling away. When Officer Simic caught up with appellant, appellant said, without Officer Simic having spoken to him, "[i]t's just a BB gun. It's just a BB gun." Appellant told the officer that the gun was "in his waistband, in his pants."

Officer Simic recovered the gun, which he described as "a black, 6-mm BB gun, P-Ruger 345." The gun looked like a "real" semi-automatic pistol and was "extremely similar" to the officer's own Glock weapon. The gun had the letters "BB" on it, but the "orange or yellow or . . . kind of bright color cap [found] on the top of" BB guns had been "taken off the tip of the airway of the gun" (in Officer Simic's view, "because otherwise people would know right away it was a BB gun and not a real thing"). Asked to describe the condition of the gun, Officer Simic said that there was "damage done" to the gun and that a shoelace was "wrapped around the handle" of the gun, "I guess to make it look more real and to cover [the] hole the cartridge would go in." One side of the gun was "completely covered by black duct tape." There were no BB's in the gun, it had "no interior barrel, " and Officer Simic testified that the gun "failed to test fire, due to missing parts."

On cross-examination, Officer Simic testified that "the sides of the compartment where the CO2 cartridge would be" and "a magazine to hold BB's" were missing. He had acknowledged on direct examination, however, that he was "[n]ot really" familiar with BB guns with CO2 cartridges, and, although he had recovered about a dozen BB guns since he had been on the police force, he could not recall having recovered any that had cartridges. Officer Simic agreed that "[b]ased on [his] experience [i]n recovering guns, " the item he recovered from appellant was "a BB gun."

In urging the court to grant D.F.'s motion for judgment of acquittal, D.F.'s counsel told the court that section 2301.3 contemplated "operability, " i.e., a "device capable of expelling a projectile or expelling a missile." Counsel further argued that what was before the court was "not actually a BB gun, but was instead the frame of a BB gun" and that the item was "missing several parts that are completely necessary for it to function at all." He emphasized that the item had "no barrel, " "no capability to hold the propellant[, ] and no capability to hold the items that are actually propelled" and "doesn't constitute a whole BB gun anymore [sic] than just the barrel would constitute a BB gun or just the cartridge that would be inserted into it would be considered a BB gun." In closing argument, counsel added that the "frame of the gun is essentially . . . a toy gun" and reiterated that the regulation should be interpreted "as contemplating an operational BB gun as the definition of a BB gun."

The court credited Officer Simic's testimony and, in finding that D.F. committed the offense of possession of a BB gun outside a building, reasoned that "operability is not an issue for . . . possession of a BB gun." The court explained that it believed that the term "BB gun" should be construed like the term "[f]irearm" in D.C. Code § 22-4501 (2A) (2001) to include any such weapon, "regardless of operability."[3]

On appeal, D.F. has not renewed his argument that the item Officer Simic recovered was not a BB gun.[4] Instead, he urges us to hold that the evidence that he carried an inoperable BB gun means that the District of Columbia's evidence was insufficient as a matter of law to support a finding that he committed the charged offense. Stated differently, D.F. urges us to read an operability requirement into the 24 DCMR ยง 2301.3 prohibition against "carry[ing] or ...

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