Submitted November 12, 2015
from the Superior Court of the District of Columbia
(CMD-11272-14) Hon. Judith N. Macaluso, Trial Judge.
J. Riley was on the brief for appellant.
Vincent H. Cohen, Jr., Acting United States Attorney at the
time the brief was filed, and Elizabeth Trosman, John P.
Mannarino, Sarah Vanore, and Edward G. Burley, Assistant
United States Attorneys, were on the brief for appellee.
BEFORE: THOMPSON and EASTERLY, Associate Judges; and FERREN,
case was submitted to the court on the transcript of record
and the briefs filed, and without presentation of oral
argument. On consideration whereof, and for the reasons set
forth in the opinion filed this date, it is now hereby
and ADJUDGED that appellant's conviction for simple
assault is reversed.
Catharine Easterly, Associate Judge
Parker appeals her conviction, following a bench trial, for
simple assault. She argues that the evidence was
insufficient to disprove her claim of self-defense. The trial
court determined that Ms. Parker reasonably believed that she
was in imminent danger of bodily harm when Frederick Powell
and members of his family accosted her in front of her home
and Mr. Powell threatened and then spit on her. Nonetheless,
the trial court rejected Ms. Parker's claim that she was
acting in self-defense when, in response to Mr. Powell
spitting on her, she spit back on him. The trial court
determined that Ms. Parker, although actually and reasonably
afraid of Mr. Powell, had acted with a retaliatory motive
that defeated her claim of self-defense.
question whether the record evidence supports the trial
court's determination that Ms. Parker's motivation
was purely retributive, but ultimately conclude that the
trial court erred as a matter of law in conducting a separate
inquiry into Ms. Parker's motive. Under the
District's long-standing common law test for
self-defense, captured in our standard jury instructions,
whether the government has disproved a claim of self-defense
turns on two questions: (1) whether a defendant reasonably
believed that she was in imminent danger of bodily harm (an
inquiry that may be informed, among other things, by motive
evidence presented by the government); and (2) if so, whether
the force used was excessive. Motive is not separately and
additionally considered as a basis for disproving a claim of
self-defense. In this case, the trial court found that Ms.
Parker's belief she was in imminent danger was reasonable
and there was never an argument that her act of spitting on
Mr. Powell constituted excessive force. As there was no basis
for the trial court to reject Ms. Parker's claim of
self-defense, we reverse.
one evening in June 2014, Ms. Parker walked out of her home
where she lived with her three children. She was about to get
into a friend's car, when she heard Mr.
Powell yell from across the street that he
"should go over and smack the shit out of that
bitch." When Ms. Parker asked to whom he was speaking,
Mr. Powell crossed the street and came onto her property,
positioned himself so that he and Ms. Parker were
face-to-face, and said, "bitch, you." Mr.
Powell's "aggressi[ve]" approach indicated to
Ms. Parker that "he was trying to fight [her], "
and Mr. Powell asked her "do you want that smoke, "
a question Ms. Parker understood as a threat to shoot her.
Powell's mother crossed the street with him, and several
of his brothers joined them on Ms. Parker's property; the
family surrounded her friend's car and yelled insults at
Ms. Parker. They called her a "dirty bitch" and
accused her of being "hot, " i.e.,
"working with the police." "[T]here were a lot
of them, " and Ms. Parker "fear[ed] for [her]
was less than two feet away from her, Mr. Powell spit in her
face. Ms. Parker was "really was scared" once Mr.
Powell spit on her, because she "didn't know what he
was going to do next." She spit back.
about that time, unbeknownst to Ms. Parker,  a police officer
arrived. While sitting in his car, the officer saw Mr. Powell
face-to-face with Ms. Parker, surrounded by approximately ten
people,  all standing near a car and yelling at
each other. The officer could not hear what they were saying,
but he saw Ms. Parker spit on Mr. Powell. When he spoke to
her at the scene, she explained (because the officer had not
seen the entire encounter and in particular, had not seen Mr.
Powell spit on Ms. Parker) "that she wouldn't just
spit on him for no reason, that he spit on her first."
The officer then arrested Ms. Parker for simple assault.
trial, Mr. Powell did not testify and the government called
only one witness, the arresting officer. Ms. Parker testified
on her own behalf. Ms. Parker conceded that she spit on Mr.
Powell but claimed she was acting in self-defense. On direct
and cross-examination, Ms. Parker repeatedly testified that
she was afraid of Mr. Powell. On direct, Ms. Parker was asked
what she believed was going to happen at the time she spat
back at Mr. Powell and she said, "I thought he was going
to hit me, honestly that was the next thing. I was fearing
for my life. . . . I am scared for my life, like I didn't
know what they w[ere] going to do." On
cross-examination, she specifically denied being angry:
"I wasn't angry. I was scared for my life. . . . I
was more scared than anything." In response to a
follow-up question from the court-"Why is it that you
spit in [Mr. Powell's] face?"-she explained, as she
had to the police officer, that she had spit on Mr. Powell
"[b]ecause he came on my property and . . . spit on me
first." Finally, on redirect, Ms. Parker once again
explained why she had spit on Mr. Powell:
It was just that he spit in my face and I felt scared with
the way they approached me that day. They approached me in a
scary situation. I had a lot of people approach me at one
time and I really did not know what I did or what I did wrong
for him to say he was going to smack me and walk on to my
property and then to spit in my face.
government argued in closing that it had carried its burden
to show that "the defendant was not in fear of imminent
bodily harm which is the standard of self-defense."
Instead the government asserted that the evidence established
that Ms. Parker was "very angry, " "indignant,
" and "offended by what she states that the
complainant did to her." The government further asserted
that Ms. Parker had not "expressed a fear of imminent
bodily injury. What she has expressed is being angry at this
complainant and not liking this complainant." The
government then highlighted Ms. Parker's testimony that
she had spit on Mr. Powell because he spit on her. The
defense countered in its closing that there was
"absolutely no reason or evidence to believe that Ms.
Parker wasn't afraid and, in fact, it is to the
contrary." "[T]here is evidence and there is
testimony that she was actually afraid . . . and that she had
reasonable grounds for that belief."
trial court, after determining that Ms. Parker's spitting
was an assaultive act, rejected her claim of self-defense,
but not on the ground urged by the government. Preliminarily,
the court "instruct[ed] [it]self" on the law of
self-defense and acknowledged that "every person has the
right to use a reasonable amount of force in self-defense if
one, she actually believes she is in imminent danger of
bodily harm and if two, she has reasonable grounds for that
belief." The court then found, contrary to the
government's argument, that Ms. Parker did reasonably
believe herself to be in such danger:
I conclude based on this record that Ms. Parker reasonably
believed that she was in imminent danger of bodily harm. I
think it is a very rich record with respect to her belief of
imminent bodily harm and the reasonableness of that belief.
She testified entirely credibly with no impeachment at all
that amounted to anything except a minor difference in
recollection about exactly what the spacing of the
complaining witness and Ms. Parker was, that she was walking
out of her door to get into her friend's car and as she
was doing nothing more than walking to a car, Mr. Powell who
was sitting nearby on his family's porch said loudly
enough for her to hear, I should go over there and smack the
shit out of that bitch, and he then approached her walking
across the street like he was going to fight her and he was
backed up by his mother who was also saying aggressive things
towards Ms. Parker. They were saying such things as, bitch,
you hot, which meant that she was working with the police
and, you want that smoke, which was a threat to shoot and he
got right up in her face and she said, who you talking to,
and he said, bitch, you, and she said, whatever, little boy,
get out of my face, at which point he spit on her and a half
a dozen members of his family were also approaching her and
backing him up.
court also "credit[ed] Ms. Parker's testimony that
she didn't realize that Officer Bradley was there"
and thus did not appreciate she could have asked him for
It is perfectly believable to me that with people shouting at
each other, with her attention focused on what is going on
and having been spit on, on having been threatened, on the
mother coming across the street and yelling at her also on
the back up of the relatives, that she is looking at all of
that and everything else that is occurring is somewhere in
the background noise and not quite registering for her. So, I
don't think that it detracts from her credibility that
the officer was there and she could easily have turned to the
officer and said, look what he did and then he would be
prosecuted before me for assault instead of her. I accept Ms.
Parker's explanation that she was afraid even though she
didn't get in the car. It is her judgment whether she is
at more risk in a confined space than she is out in the open.
She had family members to access to her as long as she was
out in the open. I am not going to question that judgment and
I don't think it detracts from her testimony that she
actually did fear that she was in imminent danger of bodily
harm that she didn't get into the car. That is a judgment
that you make at the time and it was for her to make at that
the court found that Ms. Parker reasonably believed herself
to be endangered by Mr. Powell and his entourage, the court
nonetheless concluded that Ms. Parker's self-defense
claim failed because of what it perceived to be Ms.
Parker's motive in responding to Mr. Powell:
It is [e]minently reasonable that with those threats and that
expressed motivation and that backup she would feel herself
in imminent danger and I find that she did, but in order for
self-defense to apply she has to use a reasonable amount of
force in self-defense. Using a reasonable amount of force is
because she is angry or indignant or outraged or because of
injustice, if somebody spits in your face[, ] which is what
he did, that person deserves to be spit on and should expect
to be spit on, [but] that is not self-defense. That is
spitting[, ] but not for purposes of self-defense[, ] and the
government has proven on this record that the spitting
occurred not for reasons of self-defense but for those other
reasons. The government correctly argues that every time Ms.
Parker is asked, why did you spit on him, the immediate
answer is, because he spit on me, and that was said directly
on the scene to the police officer. The answer to the same
effect was indeed given to the prosecutor, I spit on him
because he spit on me, and I directly asked, why did you spit
on him. I spit in his face because he came on my property and
he spit on me first and there is street justice in that. That
is fine in a sense, in a fairness sense and I will take
account of sentencing time but it is not fine when it comes
to the law of the District of Columbia because what could
have been expected to happen next if that police officer had
not been there was that Mr. Powell backed up by his family
and surrounding Ms. Parker the way he was and having just
been spat on would have made good on some of those threats,
not the shoot you threat but the beat the [shit] part of the
threat. They had the numbers and they had the anger and they
had their expressed motivation.
court concluded that "[f]or all th[e]se reasons . . .
the government ha[d] proved beyond a reasonable doubt that
Ms. Parker committed the offense of simple assault and did
not spit on Mr. Powell as an act of self-defense."
defendant "present[s] any evidence that she acted in
self-defense, " the government assumes the burden of
proving, beyond a reasonable doubt, that she did not. See
Williams (Shirley) v. United States,
90 A.3d 1124, 1128 (D.C. 2014). In this case, Ms. Parker
argues that the government failed to present sufficient
evidence that she did not act in self-defense when she spit
on Mr. Powell. We review sufficiency of the evidence claims
de novo. High v. United States, 128 A.3d 1017, 1020
(D.C. 2015). In so doing, "we consider all the
evidence in the light most favorable to the government,
according deference to the fact-finder to weigh the evidence,
determine the credibility of the witnesses, and draw all
justifiable inferences of fact." Williams
(Furl) v. United States, 113 A.3d 554, 560
(D.C. 2015). If we find "no evidence upon which a
reasonable mind might fairly conclude guilt beyond a
reasonable doubt, " we must reverse. Id.
the trial court credited Ms. Parker's testimony that she
"was afraid, " and determined that she subjectively
and reasonably believed that she was in imminent danger of
bodily harm from Mr. Powell after he and his family
encircled, insulted, and threatened her, and he spit on her.
Nevertheless, the court concluded the government had
presented sufficient evidence to prove beyond a reasonable
doubt that Ms. Parker was not acting in self-defense because
it somehow discerned that Ms. Parker's fear and
reasonable belief that she was in imminent danger did not
motivate her to spit on Mr. Powell. Instead the court
detected from the evidence that Ms. Parker was motivated by
"ang[er], indigna[tion] or outrage"-a desire to
impose what the court called "street justice."
preliminary matter, we question whether the record supports
the court's finding that Ms. Parker acted out of a purely
retributive motive. See High, 128 A.3d at 1020
(noting that we defer to the trial court's credibility
determinations and findings of fact from a bench trial unless
they are "plainly wrong or without evidence to support
[them]" (alteration in original)). The government's
only witness, the arresting officer, could not testify to
much more than the fact that he had seen Ms. Parker spit on
Mr. Powell, and he did not attribute any emotion to her, much
less describe her as being angry or indignant. For her part,
Ms. Parker never indicated that she had the "street
justice" motive that the court imputed to her. Moreover,
she denied that she was angry, and she was not impeached on
this point. In short, the record evidence was that Ms. Parker
"was scared for her life"-the reasonable inference
being that she acted upon her reasonable belief that she was
in imminent danger.
trial court's contrary motive determination appears to be
based entirely on Ms. Parker's initial explanation to the
police officer and her subsequent testimony in court that she
spit on Mr. Powell because "he spit on me
first." The court inferred from this explanation
that, notwithstanding her credited testimony to the contrary,
Ms. Parker was "angry or indignant or outraged" and
was motivated to act solely based on these emotions.
doubtful that Ms. Parker's admissions that her action was
responsive to Mr. Powell's initial assault can carry the
retributive meaning the court ascribed to them. It seems more
likely that her statement to the police officer-who arrived
in the midst of the incident and whom Ms. Parker did not see
until he approached her to place her under arrest-was made to
ensure that the officer understood the full sequence of
events and, in particular, that she was not the first
aggressor. Similarly, her response to the court's
"why" inquiry, taken in context of her previous and
subsequent expressions of fear, seems more susceptible to a
benign interpretation that is entirely congruent with her
claim of self-defense: to repel the reasonably perceived
danger, she fought fire with fire; she matched one spitting
assault (Mr. Powell's) with another (hers) to communicate
that she would give as good as she got and that Mr. Powell
should leave her alone. Furthermore, when considered in the
context of her fully credited testimony, in which she
unambiguously related her fear of Mr. Powell, it is difficult
if not impossible to accept that Ms. Parker's
he-spit-on-me-first statement alone establishes, beyond a
reasonable doubt, that Ms. Parker was motivated solely by a
desire to impose "street justice." See
Williams (Shirley), 90 A.3d at 1129 n.6
(holding that the defendant's "ambiguous statement
d[id] not tip the balance of the weight of the evidence to
the extent that it dispel[led] any reasonable doubt"
that she was acting in self-defense). Instead, at
most, the evidence supports only a determination that Ms.
Parker was motivated to spit on Mr. Powell by a mixture of
fear and anger.
need not decide whether the trial court made a factfinding
error, however, because the trial court's focus on motive
begs a more fundamental question of law: if the government
fails to disprove that a defendant reasonably believed that
she was in imminent danger of bodily harm, can it still carry
its burden to rebut a claim of self-defense by showing that
there was another motive guiding the defendant's action?
For the reasons discussed below, we conclude that, under this
court's long-standing articulation of the two-part test
for the defense of self-defense captured in our standard jury
instructions, it cannot.
essence of the self-defense situation is a reasonable and
bona fide belief of the imminence of . . . bodily
harm." Kinard v. United States, 96
F.2d 522, 526 (D.C. Cir. 1938). Thus, in numerous cases,
this court has acknowledged that when a claim of self-defense
is raised, the threshold question for the fact finder is
whether the government has disproved that the "appellant
actually and reasonably believed that [s]he was in imminent
danger of bodily harm." Higgenbottom v. United
States, 923 A.2d 891, 900 (D.C. 2007). And our
standard jury instruction on self-defense directs that:
Every person has the right to use a reasonable amount of
force in self-defense if (1) s/he actually believes s/he is
in imminent danger of bodily harm and if (2) s/he has
reasonable grounds for that belief. The question is not
whether looking back on the incident you believe that the use
of force was necessary. The question is whether [name of the
defendant], under the circumstances as they appeared to
him/her at the time of the incident, actually believed s/he
was in imminent danger of bodily harm, and could reasonably
hold that belief.
Criminal Jury Instructions for the District of Columbia, No.
9.500 (5th ed. rev. 2014) ("Self Defense-General
there is evidence that the defendant actually and reasonably
believed herself to be in imminent danger of bodily
harm-i.e., if the government cannot prove beyond a reasonable
doubt that the defendant did not have such a belief-the
inquiry proceeds to the amount of force employed. A defendant
may use "only reasonable force to repel the perceived
attack." Higgenbottom, 923 A.2d at 900. Or,
rephrased in the context of the government's burden of
proof, "[i]n a situation where the evidence establishes
that self-defense would otherwise be justified, " the
government can rebut a self-defense claim only if it proves
that a defendant used "excessive force."
Williams, 90 A.3d at 1128. But distinguishing what
constitutes excessive force from a "reasonable amount of
force" is not a wholly objective inquiry; the factfinder
must take into account evidence of the defendant's mental
state under the circumstances. See Fersner v. United
States, 482 A.2d 387, 391-92 (D.C. 1984) ("[T]he
victim's subjective perceptions are the prime determinant
of the right to use force-and the degree of force required-in
self-defense, subject only to the constraint that those
perceptions be reasonable under the
[T]he claim of self-defense is not necessarily defeated if,
for example, more knife blows than would have seemed
necessary in cold blood are struck in the heat of passion
generated by the unsought altercation. A belief which may be
unreasonable in cold blood may be actually and reasonably
entertained in the heat of passion.
Inge v. United States, 356 F.2d 345, 348 (D.C. Cir.
1966). The question is thus whether the
defendant's use of force is "a proportionate
reaction to the threat that [s]he perceived" while in
the heat of the moment. Ewell, 72 A.3d at 130.
Again, this is reflected in the standard jury instruction
entitled "Amount of Force Permissible, " which
explains that a defendant confronting nondeadly
force may employ "a reasonable amount of
force" as informed by her subjective assessment of the
circumstances. The instructions first state that "[a]
person may use an amount of force which, at the time
of the incident, s/he actually and reasonably believes is
necessary to protect himself/herself from imminent
bodily harm." Criminal Jury Instructions for the
District of Columba, No. 9.501.A (emphases added). The
instructions further provide that "[a] person acting in
the heat of passion, . . . does not necessarily lose [her]
claim of self-defense by using greater force than would seem
necessary to a calm mind. In the heat of passion, a person
may actually and reasonably believe something that seems
unreasonable to a calm mind." Criminal Jury Instructions
for the District of Columbia, No. 9.501.C.
this construct-where the first inquiry is whether a defendant
actually and reasonably believed she was in imminent danger
of bodily harm and the second inquiry is whether, taking this
belief into account, she employed excessive force-motive is
not an additional, separate consideration. If the
government has not disproved that a defendant actually and
reasonably believed she was in imminent danger of bodily
harm, we accept that she acted out of that
belief. See Garibay v. United States,
634 A.2d 946, 948 (D.C. 1993) (explaining the binary motive
inquiry by juxtaposing two possible outcomes: "a
self-defense claim raises the issue of whether the defendant
was acting out of an actual and reasonable fear of imminent
bodily harm, or whether, instead, the defendant had some
other motive and was, in fact, the aggressor"); see
also Rink v. United States, 388 A.2d 52, 56 (D.C. 1978)
(holding that motive evidence is admissible to address
"whether appellant reasonably apprehended a danger of
imminent, serious bodily harm from the deceased");
Flores v. United States, 698 A.2d 474, 482-83 (D.C.
1997) (citing Garibay to allow evidence of prior
violent acts to show that defendant was the first
aggressor). This construct is reflected in our cases
assessing sufficiency of the evidence challenges: claims of
self-defense rise or fall on determinations of whether the
defendant reasonably believed herself to be in imminent
danger of bodily harm or used excessive force.
knowledge, this court has never held that, despite evidence
that the defendant actually and reasonably believed she was
in imminent danger of bodily harm, her self-defense claim had
been adequately disproved on the ground that the defendant
had somehow set aside her belief and acted purely out of a
different motive-e.g., anger or a desire for retribution. The
government does not cite to any such case. And notably,
neither does our dissenting colleague.
Parker's case, the trial court as the factfinder
concluded that Ms. Parker actually and reasonably believed
she was in imminent danger of bodily harm from Mr. Powell. At
that point the only question left for the trial court was
whether Ms. Parker had employed excessive force. Ms. Parker
obviously did not use more force than was reasonable under
the circumstances. Thus the court should have determined
that Ms. Parker acted in self-defense and acquitted her of
instead of acquitting Ms. Parker, the trial court appeared to
misuse the inquiry into whether Ms. Parker had used "a
reasonable amount of force, " to circle back to Ms.
Parker's motive in responding Mr. Powell's assault.
It is correct that, in order for a factfinder to determine if
a defendant employed excessive force, consideration should be
given to whether a defendant subjectively perceived a need to
employ such force to repel the threat. As explained above,
however, this consideration of the defendant's subjective
perceptions is meant to expand the boundaries of what
constitutes reasonable force, "by tak[ing] into account
that the defendant was acting in the 'heat of
conflict.'" Williams, 90 A.3d at 1128. It
is not meant to authorize a factfinder to separately assess a
defendant's motive in responding to a reasonably
perceived threat to her safety.
we reaffirm that, when self-defense is raised, the proper
inquiry with respect to a defendant's mental state (which
motive evidence may inform) is whether she subjectively (and
reasonably) believed that she was in imminent danger of
bodily harm. The government bears the burden to prove that a
defendant did not hold such a belief. Where, as here, the
government fails to meet that burden-i.e., where it cannot
disprove that the defendant subjectively and reasonably
believed she was in imminent danger of bodily harm-and also
fails to show that the defendant employed excessive force,
the defendant must prevail on her self-defense claim.
foregoing reasons, we reverse Ms. Parker's conviction for
Ferren, Senior Judge, concurring:
the opinion of the court and write separately only to
reinforce it with some additional perspective.
a strange case. A man shouts an ugly slur against his
neighbor across the street as she is getting into a
friend's car. He then crosses the street with members of
his family, calls her a "bitch" (and more), and
spits in her face as his family surrounds the car and hurls
insults. She spits back. Others arrive (apparently including
members of her family), and a shouting match ensues. In the
meantime, a police officer has appeared in time to see her
spit (but not to see her aggressor do so). The officer
arrests her for simple assault, and she is charged.
bench trial the court finds that appellant "actually did
fear" and "reasonably believed that she was in
imminent danger of bodily harm, " having testified that
she was "scared for my life, like I didn't know what
they were going to do." But the court disallows her
claim of self-defense, concluding that her principal reason
for spitting in response to her aggressor's liquid
assault was that "he came on my property and . . . spit
on me first" - words of anger, indignation, and outrage,
said the court, not words of defense against attack.
Moreover, the trial court appears to believe that mere
spitting, while noxious though not excessive, was not an
authentic defensive move. The court's ultimate
characterization of her mindset - that she sought
"street justice, " not self-protection, in spitting
back - summarizes the court's rejection of self-defense.
issue here, therefore, is whether a victim's
court-established fear of imminent bodily harm, coupled with
non-excessive force - however weak - in response, is enough
to justify a claim of self-defense; or whether that fear and
response, once established without retraction, can be negated
by additional findings that the victim's dominant mindset
was a desire for retribution, and that the force used was too
lame to evidence either a fearful mindset or an attempt at
theory of the dissent is twofold:
[T]he  necessary state-of-mind inquiry is not fully
satisfied upon a conclusion that the defendant actually and
reasonably believed she was in imminent danger of bodily
harm, and . . .  the self-defense analysis also is not
complete upon a further conclusion that the amount of force
used was not excessive. Post, at 56.
Respectfully, I believe the dissenting theory is flawed.
it presupposes a threshold trial-court analysis of the
defendant's mindset that requires a probe of her motives
and emotions, even after establishing her actual and
reasonable belief of imminent bodily harm. According to the
dissent, such a probe, without precedent, can cancel a
court's firm finding of the level of fear that the ...