Argued: March 12, 2015.
Appeal from the Superior Court of the District of Columbia. (CF3-12936-13). (Hon. Patricia A. Broderick, Trial Judge).
Stefanie Schneider, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant.
L. Jackson Thomas II, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and Marco A. Palmieri, Assistant United States Attorneys, were on the brief, for appellee.
Before THOMPSON and MCLEESE, Associate Judges, and PRYOR, Senior Judge.
McLeese, Associate Judge :
Appellant Michael Sanders seeks reversal of his conviction for assault with intent to commit robbery (" AWIR" ). Mr. Sanders argues that the jury was not given adequate guidance in response to a jury note about an element of the offense. We agree. Concluding that the error was not harmless, we reverse and remand for further proceedings.
The government presented the following evidence at trial. On May 17, 2013, Hoa Truong was riding a Metro train. According to Mr. Truong, as the train approached the Brookland Metro station, a person whom Mr. Truong later identified as Mr. Sanders approached Mr. Truong and asked for money. Mr. Truong told Mr. Sanders that he did not have any money, and Mr. Sanders turned away and walked to the rear of the car. Mr. Sanders later approached Mr. Truong again and asked for Mr. Truong's phone. After Mr. Truong refused to give Mr. Sanders the phone, Mr. Sanders punched Mr. Truong in the left eye. Mr. Truong started to run away, but he was hit from behind by someone and fell to the ground. The train then stopped, and someone helped Mr. Truong by pulling him off of the train.
The government also introduced testimony from Adam Hodge, who was riding in the same Metro car. As the train approached the Brookland Metro station, Mr. Hodge saw Mr. Truong " getting beaten." Mr. Hodge did not see Mr. Sanders speak to Mr. Truong. He saw other people hit Mr. Truong, and saw Mr. Sanders hit Mr. Truong once as everybody was getting off the train. When asked what role Mr. Sanders played in the incident, Mr. Hodge explained that Mr. Sanders " was just the last person to hit him."
At the close of the evidence, the trial court instructed the jury that the elements of AWIR, each of which the government was required to prove beyond a reasonable doubt, were (1) " Michael Sanders with force or violence injured or attempted to injure Hoa Truong" ; (2) " he did so voluntarily, on purpose and not by mistake or accident" ; (3) " at the time . . . Michael Sanders had the apparent ability to injure Hoa Truong" ; and (4) " at the time of the attempt to injure, Michael Sanders intended to rob Hoa Truong."
On the second day of deliberations, the jury sent a note that included the following question:
[W]ith respect to . . . the 4th element of assault with the intent to commit robbery, what is the meaning of " at the time of the attempt to injure?" If the defendant intended to rob [Mr.] Truong immediately prior to the assault, is that " at the time" ?
The parties disagreed on the proper response. The United States took the position that the answer was " yes," because an intent to rob " immediately prior to the assault" satisfied the requirement that the intent be " at the time of the attempt to injure." Defense counsel argued that " the intent and the act have to coincide," and that " legally the answer is no." After further discussion, the trial court answered the question ...