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Cherry v. District of Columbia

Court of Appeals of Columbia District

July 27, 2017

Ramon R. Cherry, Appellant,
v.
District of Columbia, Appellee.

          Argued February 7, 2017

         Appeal from the Superior Court of the District of Columbia (CTF-10624-14) (Hon. Diana Harris Epps, Magistrate Judge) (Hon. William M. Jackson, Reviewing Judge)

          Matthew J. Peed for appellant.

          John W. Donovan, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.

          Before Thompson, Beckwith, and McLeese, Associate Judges.

          McLeese, Associate Judge

         Appellant Ramon R. Cherry challenges his conviction for leaving after colliding, in violation of D.C. Code § 50-2201.05c (a)(2) (2014 Supp.). Mr. Cherry argues that the trial court incorrectly interpreted § 50-2201.05c (a)(2) and that the evidence was insufficient to support the conviction. We vacate the judgment and remand for further proceedings.

         I.

         The pertinent evidence at trial, which included a surveillance videotape depicting the collision at issue, was as follows. On June 16, 2014, at approximately 9:45 p.m., Mr. Cherry was driving a car on Martin Luther King Jr. Avenue SE. He turned left onto Mellon Street and continued turning, crossing the double yellow line, with the driver's door hanging ajar. The car hopped the curb, onto the sidewalk, and crashed into a wall that enclosed a patio area adjacent to a convenience store. Immediately after the crash, Mr. Cherry got out of the car and walked down the block toward the corner of Martin Luther King Jr. Avenue and Mellon Street, where the convenience store was located. A crowd was gathering at the corner. Mr. Cherry apparently exchanged words with some of the onlookers.

         Officer Scott Schmoeller and his partner, who were responding to another call nearby and heard the crash, arrived on the scene within one minute of the crash. As they approached the car, Mr. Cherry and other individuals walked toward the car as well. The officers told the group to back up because the officers were securing the scene. Officer Schmoeller asked the members of the group, which included Mr. Cherry, whether they had seen anything. The group remained silent, and Mr. Cherry did not identify himself as the driver.

         Mr. Cherry then walked forward, toward the car and away from the group, while the police were inspecting the car. Mr. Cherry reached out to the driver's side front door and pushed it partially closed. There was conflicting evidence as to whether Officer Schmoeller told Mr. Cherry to step away from the car. In any event, Mr. Cherry did step away. As Mr. Cherry turned and walked back toward the corner, Officer Schmoeller followed behind for several paces. The officer then turned back to the car. Mr. Cherry reached the corner and turned right on Martin Luther King Jr. Avenue, continuing out of view of the surveillance camera and in the general direction of the entrance to the convenience store. At that point, approximately two minutes had elapsed since the crash.

         About twelve seconds after Mr. Cherry walked to the corner and out of view of the surveillance camera, Officer Schmoeller did the same. Officer Schmoeller then went into the convenience store. He spoke with people inside the store, who did not appear to be aware of the car crash. Using a monitor in the basement of the store, Officer Schmoeller was able to view video footage from the surveillance camera that had recorded the crash. He recognized that Mr. Cherry had been the driver and was among the group that had been standing near the car when the officers first arrived on the scene. Officer Schmoeller then left the store. Officer Schmoeller did not see Mr. Cherry in the store, although he acknowledged that it was possible that Mr. Cherry had walked into the store while Officer Schmoeller was in the basement.

         After leaving the store, Officer Schmoeller walked around the surrounding area, looking for Mr. Cherry. Specifically, Officer Schmoeller walked through the 2900 block and part of the 3000 block of Martin Luther King Jr. Avenue, and through a nearby park. Having failed to locate Mr. Cherry, he returned to the car and rejoined his partner. Approximately twelve minutes after the crash, Mr. Cherry approached the car, politely identified himself to the officers, and acknowledged that he had been driving the car and had hit the wall. Mr. Cherry ...


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