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Ewell v. United States

Court of Appeals of Columbia District

July 25, 2013

Marvin Richard Ewell, Appellant,
United States, Appellee.

Submitted February 21, 2013

Amended September 5, 2013 [*]

Appeal from the Superior Court of the District of Columbia (CMD-9252-11), (Hon. Yvonne Williams, Trial Judge).

Donald L. Dworsky was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and John P. Mannarino and Kendra D. Briggs, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby and Oberly, Associate Judges, and Ferren, Senior Judge.

Blackburne-Rigsby, Associate Judge

Following a bench trial, appellant Marvin Richard Ewell was found guilty of one count of simple assault.[1] On appeal, he argues that there was insufficient evidence to prove beyond a reasonable doubt that he did not act in self"defense against the complainant, Brittany Latham. We conclude that the trial court erroneously determined that appellant employed excessive force against Ms. Latham. Further, in evaluating whether appellant reasonably believed that harm was imminent, the trial court applied an incorrect legal standard and did not make essential factual findings. Accordingly, we reverse and remand for further proceedings consistent with this opinion.


On March 11, 2011, appellant was at home in Southeast, Washington, D.C., while his roommate, James Hampton, was hosting Brittany Latham, Mykeisha Bassett, and approximately three other people. At trial, Ms. Latham testified on behalf of the government that appellant entered the bedroom and started calling Ms. Bassett a "baldheaded [expletive], " whereupon Ms. Latham and Ms. Bassett decided to leave.[2] According to Ms. Latham, she was in the process of exiting the apartment when appellant "hit [her] with the door." She responded by throwing her drink at appellant's face and appellant grabbed her by the neck and hit her six or seven times.[3] Ms. Latham testified that as she attempted to leave the apartment again, appellant "ran up to [her] one more time and he punched [her] in the eye.[4]

Testifying in his own defense, appellant described a starkly different version of the evening's events. According to appellant, Ms. Latham and her friends were talking loudly and playing loud music when he asked them to "quiet down." When he asked Ms. Latham to stop cursing, she responded that they "ain't got to be here." At that point, appellant told them that they could leave and proceeded to open the door. Before Ms. Latham walked out of the front door, she threw a hard plastic cup that contained vodka at appellant and, in that same moment, also hit him in the mouth with her hand.[5] Appellant testified that his mouth started bleeding immediately after he was hit by either the cup or Ms. Latham's hand. According to appellant, he responded to her attack by striking her once in the face with his fist and described his reaction as a reflex to Ms. Latham's attack.[6]Appellant acknowledged that when he hit her, he did so with his full strength. He testified that, despite the blow, Ms. Latham "was still coming" at him until Mr. Hampton intervened and stopped the fight. When appellant was asked why he hit Ms. Latham, he explained "[b]ecause these young girls these days, you know, they're [sic] carry knives. You know, I don't know." In addition, appellant stated, "the only way she probably could have hurted [sic] me real bad if she had pulled a knife out. If she had pulled a knife she would have stabbed me in my face or something because she instantly attacked me."

Mr. Hampton, the only other defense witness, corroborated appellant's version of events. Specifically, Mr. Hampton confirmed that appellant had interrupted the group of people in the bedroom because they were being "rambunctious." Mr. Hampton testified that Ms. Latham was walking out of the apartment door when she turned and threw a hard plastic cup that contained vodka at appellant's face.[7] According to Mr. Hampton, after the cup hit appellant, "there was a lot of blood on his shirt, and his lip was messed up . . . ." Then, "[a]s soon as she threw the cup, she proceeded to try to hit him, like try to rush him." As Ms. Latham tried to "attack" appellant, appellant "defended himself and smacked her" with an open palm. Mr. Hampton testified that after he saw appellant hit Ms. Latham, he grabbed appellant, while Ms. Bassett restrained Ms. Latham, which broke up the fight "instantly." Thus, "after the first strike, there was nothing else after that."

At the conclusion of the bench trial, the trial court found that Ms. Latham "seems to have exaggerated some of this story" and discredited her testimony that appellant hit her six or seven times. Instead, the trial court credited appellant's and Mr. Hampton's testimony that Ms. Latham threw a cup at appellant, causing him to bleed, and that appellant responded by hitting Ms. Latham only once. The trial court did not make a factual determination concerning whether Ms. Latham attacked appellant either as she threw the cup or immediately thereafter. The trial court determined that: (1) appellant did not need to hit Ms. Latham to defend himself because appellant was "much bigger than Ms. Latham";[8] and (2) as required by the standard set forth in Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992), appellant did not "honestly and reasonably" believe that he "was in imminent danger of serious bodily harm" because "appellant admitted himself she can't hurt him" — instead, the trial ...

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