Levi M. RUFFIN, Appellant,
UNITED STATES, Appellee.
Argued Nov. 29, 2012.
[Copyrighted Material Omitted]
Alec Karakatsanis, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the briefs, for appellant.
Leslie Ann Gerardo, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Mary B. McCord and Magdalena Acevedo, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and NEBEKER, Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge.
Following a jury trial, appellant Levi M. Ruffin was convicted of one misdemeanor count of assaulting, resisting, or interfering with a police officer (" APO" ), and two counts of felony threats arising from statements he directed at a Metropolitan Police Department (" MPD" ) vehicle and a police officer. In addition, although appellant was acquitted of the burglary count, the trial judge imposed a consecutive sentence of twelve months for committing a burglary while on release. On appeal, he argues that: (1) there was insufficient evidence to support his APO conviction; (2) the felony
threats statute is inapplicable to threats made to property owned by the District of Columbia; (3) the imposition of an additional sentence for commission of a burglary while on release was illegal; and (4) the trial court committed plain error by failing to give the jury adequate guidance on the legal requirements of the APO statute. We agree with the first three contentions raised by appellant. Consequently, the jury instruction issue is rendered moot. Accordingly, we reverse appellant's convictions for APO, committing a burglary while on release, and making a felony threat to damage property owned by the District of Columbia.
I. Factual Background
On June 12, 2010, at approximately 5:00 a.m., JaNai Humphrey was awoken by a noise in the backroom of her apartment. She looked through an internal window to investigate, noticed that the blinds were askew, and saw a portion of a person's arm. She left her apartment and went to a neighbor's apartment upstairs, where she immediately called the police. MPD Officer Carlos Amaya arrived approximately four minutes later. At that point, Ms. Humphrey advised Officer Amaya that someone was breaking into the back of her apartment. Officer Amaya walked to the back of the building to investigate.
As Officer Amaya entered the alley behind the building, he saw appellant hopping over a short retaining wall. Officer Amaya observed no one else in the alley. Although he was walking in Officer Amaya's direction, appellant was looking over his shoulder, towards a police car entering the alley behind the building. Consequently, appellant did not see Officer Amaya approach and, according to Office Amaya, appellant seemed " surprised" and " startled" when he turned and saw Officer Amaya, who was wearing his full police uniform. Officer James Wells, who observed the encounter from his patrol car, testified that appellant " didn't see [Officer Amaya] ... he just kind of bumped into him and it appeared he was trying to pull away from Officer Amaya." Officer Amaya testified that, at that point, without saying anything to appellant: " I went to ... put my hands on [appellant], and he— my hand hit his shoulder and he brushes his shoulder off my hand." Officer Amaya further described appellant's reaction as " elbowing to the back with his right arm." Then, according to Officer Amaya, he grabbed appellant and appellant became " a little combative," which prompted Officer Wells to assist Officer Amaya in handcuffing appellant. Officer Amaya did not explain what he meant by " combative."
Officer Amaya later observed Officers Wells and Pena, who had also responded to the call, attempt to place appellant in a police vehicle to transport him to the police station. The police vehicle was assigned to Officer Pena. However, appellant became " very agitated." When Officer Wells told Officer Pena that they should put appellant in the police vehicle, appellant said:
" You put me in the car and I'm going to kick the windows out." As a result, the officers on scene decided to transport appellant to the station in a police wagon instead. Once in the wagon, appellant began screaming and kicking the walls and floor. Officer Amaya testified that when he opened the wagon door, appellant informed him that " if I came in there ... he was going to kick my [expletive]."
Appellant was charged with five counts arising from the incident: (1) first-degree burglary; (2) threatening to injure a person (Officer Amaya); (3) threatening to damage property (the police vehicle); (4) misdemeanor assaulting, resisting, or interfering with a police officer; and (5) commission of an offense while on release. In response to appellant's motion to sever the fifth count, the motion judge determined that the first four counts would be tried together and the jury would hear evidence on the fifth count, if necessary, at a separate hearing.
A jury trial began on September 23, 2010. The jury acquitted appellant of burglary and convicted appellant of threatening to damage the police vehicle, threatening to injure Officer Amaya, and APO with respect to Officer Amaya. On January 12, 2011, the trial judge sentenced appellant to twenty-four months for each of the two felony threat counts to run concurrently and a consecutive six-month sentence for the APO count. Despite acknowledging that the jury acquitted appellant of the burglary count, the trial judge also imposed a consecutive sentence of twelve months for commission of a burglary while on release. This timely appeal followed.
II. The APO Conviction
We first consider whether there was sufficient evidence to support appellant's APO conviction. " In a sufficiency challenge we view the evidence in the light most favorable to the government, draw all reasonable inferences in the government's favor, and defer to the factfinder's credibility determinations." In re J.S., 19 A.3d 328, 330 (D.C.2011) (citation and internal quotation marks omitted). The APO statute provides in pertinent part:
Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, ...