October 16, 2015
from the Superior Court of the District of Columbia
(CF1-6022-13) (Hon. Ronna Lee Beck, Trial Judge)
Benjamin Miller, Public Defender Service, with whom James
Klein, Jaclyn Frankfurt, and Jessica Brand, Public Defender
Service, were on the brief, for appellant.
Cummings, Assistant United States Attorney, with whom Vincent
H. Cohen, Jr., Acting United States Attorney at the time the
brief was filed, and Elizabeth Trosman and Elizabeth H.
Danello, Assistant United States Attorneys, were on the
brief, for appellee.
Beckwith and Easterly, Associate Judges, and Nebeker, Senior
case came to be heard on the transcript of record and the
briefs filed, and was argued by counsel. On consideration
whereof, and as set forth in the opinion filed this date, it
is now hereby
and ADJUDGED that the appellant's convictions for assault
with a dangerous weapon and assault with significant bodily
injury are affirmed.
court has long recognized the common-law defense that
authorizes an individual to protect or repossess personal
property using nondeadly force and that correspondingly
prohibits the use of deadly force for this purpose. Deadly
force is understood to include force likely to cause
"serious bodily harm." In this case, we consider
whether the trial court should have, at Edward Brown's
request, defined "serious bodily harm" for the jury
using the same definition this court adopted for
"serious bodily injury" in the context of
aggravated assault. See Nixon v. United States, 730
A.2d 145, 150 (D.C. 1999). We answer this question
affirmatively. Nevertheless, we determine that Mr. Brown is
not entitled to reversal because, on this record, this
instructional omission was harmless. Thus we affirm Mr.
Brown's convictions for assault with a dangerous weapon
and assault with significant bodily injury.
Facts and Procedural History
an incident in which Mr. Brown struck Torita Burt in the head
with the blunt end of a hatchet while she was visiting him in
his apartment, Mr. Brown was charged with first-degree sexual
abuse while armed,  kidnapping while armed,  assault with a
dangerous weapon,  and assault with significant bodily
injury. He pled not guilty on all counts and was
tried by a jury. At trial, Mr. Brown did not dispute that he
had struck Ms. Burt. The only question was why Mr. Brown had
Burt testified for the prosecution that she knew Mr. Brown
well and, after meeting him on the street, had voluntarily
gone to his apartment to smoke crack and have sex with him.
When she tried to leave, however, Mr. Brown hit her on the
head with a hatchet and pinned her to the bed by her throat.
He agreed to let her depart only after she had sex with him
again. Ms. Burt testified that "you need a key in order
to exit" Mr. Brown's apartment building, and that,
after they had sex, she had to wait for him to unlock the
apartment building door to "let [her] out." Once
she left the building, she walked several blocks before
collapsing on the sidewalk. She then called 911, and the
responding police officers found her sitting on a stoop,
bleeding from a cut on the left side of her head. An
ambulance took Ms. Burt to Howard University Hospital, where
she received nine stitches, a sexual-assault exam, and a CAT
scan that revealed a subdural hematoma.
Brown told a different story. He testified that Ms. Burt,
whom he had known for almost ten years, came to his apartment
building around 3:00 a.m. hoping to use his bathroom. Mr.
Brown let Ms. Burt in, and while she was in his apartment,
she smoked crack and initiated oral sex with him. Afterward,
Ms. Burt asked Mr. Brown for money to buy more cocaine, but
he refused. Mr. Brown briefly left the room, and when he
returned, he noticed that his new cell phone and charger, his
wallet, and money from his dresser were missing. He accused
Ms. Burt of taking his things, which she repeatedly denied;
eventually, she picked up his hatchet, which had been on the
floor nearby,  and started swinging it at him. Ms. Burt
dropped the hatchet, Mr. Brown picked it up, and Ms. Burt
tried to get it back from him. As they were grappling with
the weapon, Mr. Brown struck Ms. Burt on the head with the
hatchet's blunt end. The blow caused her to fall "on
her knees" and she ended up "slumped over" on
his bed, "with her head down." She lay there for
"about a minute and a half to two minutes before she
even raised her head up."
Brown testified that he felt "real bad after [Ms. Burt]
got hit, " that he had not been trying to hurt her, and
that he was just trying to "protect
[him]self."He took her into the bathroom to clean and
bandage her wound, and then walked her back to the bedroom.
He went back to the bathroom to clean the sink and,
"like two minutes later, " when he came back to the
bedroom, Ms. Burt was not there. She had already gone
downstairs and was waiting by the building's front door
for him to open it. He offered to call 911, but she said she
was "okay." He let her out and then locked the door
after her. When the police arrived at Mr. Brown's
apartment a little later, he showed them the bloody sheets
and the towels he had used to clean up after the incident.
close of the evidence, Mr. Brown requested an instruction on
self-defense. He also requested an instruction on
defense of personal property, which authorizes the use of
reasonable, nondeadly force to repossess personal property
and correspondingly prohibits the use of deadly force for
that purpose. Because "deadly force" is
defined as "force that is likely to cause death or
serious bodily harm, " Mr. Brown asked the court to
define the latter term. Specifically, Mr. Brown asked the
court to borrow the instruction defining "serious bodily
injury" from the standard jury instruction for
aggravated assault, and thus to inform the jury that the
phrase "serious bodily harm, " as used in the
defense-of-personal-property instruction, means "an
injury that involves unconsciousness, extreme physical pain,
protracted and obvious disfigurement, protracted loss or
impairment of the function of a bodily member, organ or
mental faculty or a substantial risk of
trial court determined that Mr. Brown's trial testimony
did not support a defense-of-property instruction, but that
the call he made to his girlfriend from jail, see
supra note 8, "does arguably, I think." Thus
the court agreed to instruct the jury on defense of property.
But the court refused to define "serious bodily
harm" using the definition of the aggravated-assault
element of "serious bodily injury." The court
we're talking about a common law term that . . . we
haven't defined, precisely, for juries in making
decisions about self-defense and, in this case, defense of
property. And that-that's very different from a
legislated definition for purpose[s] of defining a crime such
as aggravated assault. . . . [The legislated definition is]
different than a term that's been used for long before
that where we leave it to the jury to make that kind of
community judgment about the use of force.
response to Mr. Brown's concern that the jury would
confuse "serious bodily harm" with
"significant bodily injury" (because the latter
term would be defined for the jury as part of the court's
felony assault instruction), the court offered to
instruct the jury that "serious bodily harm" and
"significant bodily injury" meant different things,
but Mr. Brown declined this offer. The court ultimately
instructed the jury:
Every person has the right to use reasonable non-deadly force
to protect his property from theft when he reasonably
believe[s] that . . . his property is in immediate danger of
an unlawful taking and that the use of such force is
necessary to avoid the danger.
Similarly, if a person reasonably believes that someone has
unlawfully taken his property, he may use reasonable,
non-deadly force to repossess the property.
A person may not use deadly force to protect his property
from theft or to repossess his property. Deadly force is
force that is likely to cause death or serious bodily harm.
Defense of property with non-deadly force is a defense to the
charges of assault with a dangerous weapon and assault with
significant bodily injury.
The Defendant is not required to prove that he acted in
defense of his property with non-deadly force. If evidence of
defense of property with non-deadly force is present, the
Government must prove, beyond a reasonable doubt, that the
Defendant did not act in defense of his property with
non-deadly force. ...