Submitted September 29, 2016
from the Superior Court of the District of Columbia
(CMD-9195-14) (Hon. Ann O'Regan Keary, Trial Judge)
Ranga Puttagunta was on the brief for appellant.
Channing D. Phillips, United States Attorney at the time the
brief was filed, and Elizabeth Trosman, Michael J. Christin,
and Lauren R. Bates, Assistant United States Attorneys, were
on the brief for appellee.
Glickman and Easterly, Associate Judges, and Pryor, Senior
Glickman, Associate Judge.
September 2013, appellant Elaine Jones was homeless and slept
at night in a cardboard box on the floor of a Metro train
station. On one such evening, a man who had camped next to
her objected to her presence and, after kicking her, extended
his feet onto her box and refused to remove them. Hoping to
induce him to withdraw, and having no other means at her
disposal, Ms. Jones then took out her cigarette lighter and
lit a corner of her cardboard box near where her tormentor
had lodged his feet. When this gesture proved to be futile
because the man ignored the small fire that she created, Ms.
Jones put out the fire before it grew larger. The brief blaze
harmed no one. However, for this conduct, Ms. Jones was found
guilty after a bench trial of one count of simple
assault and one count of attempted possession of a
prohibited weapon (i.e., the cigarette
issue before us is whether there was sufficient evidence to
support those convictions. We conclude not. Specifically, we
hold that the government did not present sufficient evidence
to overcome Ms. Jones's defense that she lit the fire for
the lawful purpose of defending her property from trespass
and did not employ more force than was reasonably necessary
or permissible to repel the intrusion.
witnesses at trial described the altercation that resulted in
the charges against Ms. Jones: a bystander, called by the
government, who had observed the incident, and Ms. Jones
herself. There was no material conflict in their testimony,
which established the following facts.
around 10:00 p.m. on September 3, 2013, Ms. Jones, who was
then sixty-five years of age, arrived at the entryway to the
McPherson Square Metro Station, which was where she slept
most nights. After changing her clothes in the bathroom, she
placed her cardboard box in her usual spot and lay down in
it. Another homeless person, a man named Rodney Livingston,
was lying beside her. Ms. Jones described him as being about
six feet tall, "muscular, " and considerably bigger
and stronger than she was. Mr. Livingston told her he
"didn't want her there"; she refused to leave,
telling him that this was where she normally stayed and that
she had a right to stay there. Mr. Livingston then became
physically aggressive. As Ms. Jones lay next to him in her
box, he threw paper at her, kicked her a couple of times and,
after repositioning himself, stretched his feet on top of her
box and rested them right next to her face. Ms. Jones asked
him several times to remove his feet but he would not do so.
Jones, who acknowledged in her trial testimony that she was
"very frustrated" by Mr. Livingston's abuse,
then sat up, pulled out her cigarette lighter, and lit the
corner of her cardboard box that was near Mr.
Livingston's feet. She did this, she testified,
"[h]oping it would scare him to move his feet, "
since "[m]ost sane people would move away from
fire." The cardboard proved not to be very combustible,
however. Ms. Jones characterized it at trial as responding to
her lighter "like a cigarette" and "never
bust[ing] into flame, " while the government's
witness described the ignition as being "very small,
very small, " and "like the wick from a piece of
paper that cast off smoke." It did not induce Mr.
Livingston to move his feet, and the government's witness
saw Ms. Jones "quickly" put the fire out with her
own hand without "further ado." Ms. Jones testified
that she put some water on the "little fire" and
"pat[ted]" it out "before it bust [sic] into
flame" so that Mr. Livingston would not "catch on
fire" as a result of his refusal to move his feet.
Livingston was not injured. The eyewitness to his encounter
with Ms. Jones testified that no "material goods"
were damaged (other than the corner of Ms. Jones's
cardboard box). A fire investigator who responded to the
Metro Station testified at trial that she saw two "burn
marks" on Mr. Livingston's socks, which in her
opinion were "consistent with a heat source, open
flame." A photograph introduced in evidence showed
what the trial judge described on the record as a "singe
mark" on the toe of each sock.
convicting Ms. Jones of simple assault and attempted
possession of a prohibited weapon, the judge found that, by
setting fire to the "flammable" cardboard box next
to Mr. Livingston's feet, she intentionally used her
cigarette lighter as a dangerous weapon in order to threaten
Mr. Livingston with serious bodily injury and frighten him
into moving away. The judge reasoned that a cigarette lighter
"clearly is likely to inflict serious bodily injury on
someone if it's used to set a fire" and that Ms.
Jones was guilty of intent-to-frighten assault even though
she did not "strik[e] or set fire to Mr. Livingston
himself" and she extinguished the fire before it could
do him any harm. The judge rejected Ms. Jones's