Submitted September 18, 2018
from the Superior Court of the District of Columbia
(CMD-7472-17) (Hon. Juliet J. McKenna, Trial Judge)
C. Paynter was on the brief for appellant.
K. Liu, United States Attorney, and Elizabeth Trosman, John
P. Mannarino, Amy Weiner, and Kristina Ament, Assistant
United States Attorneys, were on the brief for appellee.
Fisher, Thompson, and Beckwith, Associate Judges.
Thompson, Associate Judge.
bench trial, appellant Rita Solon was convicted of disorderly
conduct pursuant to D.C. Code § 22-1321 (a)(1) (2012
Repl). She asserts that a conviction under § 22-1321
(a)(1) required proof that someone was actually placed in
fear of harm by her conduct; that the trial court erred in
determining otherwise; and that the error was not harmless
because, far from compelling a conviction under the statute
as correctly construed, the evidence was insufficient for
conviction. We agree with appellant's arguments and
therefore reverse the judgment of conviction.
the trial, the parties stipulated to the admissibility of
video footage of the incident out of which appellant's
conviction arose. The video footage was shot by a journalist
who testified that he covered the People's Climate
Movement March on April 29, 2017. The video shows
demonstrators gathered on Pennsylvania Avenue, N.W., in front
of the Newseum, preparing to march. As a line of
demonstrators stood in a semi-circle with linked arms,
appellant walked about displaying a "TRUMP Make America
Great Again" sign. At one point, appellant tried
unsuccessfully to get inside the semicircle by pushing
between a couple of the demonstrators whose arms were linked.
For much of the rest of the video, appellant can be seen
walking to and fro with her sign, in front of the group of
demonstrators standing with linked arms. For much of the
time, staff for the march walked back and forth behind
appellant or at her side, one of them carrying a march sign.
The demonstrators with linked arms have impassive faces.
Other people pass by, some ignoring appellant and others
pointing and laughing at or taking photos of her. At one
point, a man appears to deliberately bump against appellant.
Thereafter, a voice can be heard saying, "Do not touch
or engage her," and at various points voices can be
heard making comments such as, "She's never going to
break this chain," "Lock her up,"
"Let's focus on our message and our march,"
"She'll get tired soon," and "Get your
Files, who was working at the march pursuant to his
employer's contract with the march organizers, testified
that appellant was "interacting with folks, kind of
yelling," booing or "woo-woo[ing]," and
"trying to spook people." Appellant was
"moving forcefully into folks," and using her elbow
or arm to jut or push or "ram herself into [the march
marshals]" and trying to "crawl in through . . .
any opening that she could find" in the line of march
participants. Appellant also "stepped on one of the
marshal's arms" and spat on Mr. Files's shoulder
at a point prior to the time covered in the video footage.
Mr. Files testified that appellant's "try[ing] to
get back into the circle is scaring folks." Mr. Files
testified that appellant's movements were "like
woo-woo-woo, like I'm going to touch you, I'm going
to come for you, I'm coming into the circle[.]" Mr.
Files testified that someone hit appellant and that he put up
his arm to "diffus[e] the situation" and prevent
"any other altercation occurring." Mr. Files, who
identified himself in the video as walking behind or
alongside appellant as she was walking back and forth, agreed
on cross-examination that appellant's
"woo-woo-woo" conduct was "scary" because
he "had no idea what her intent was."
Lanning, who told the court that she was a volunteer marshal
for the march, testified that her job there was to clear the
space in front of the march so that people had space to walk
and so that photos could be taken of the front of the march.
While waiting for the march to start, she was sitting and
holding hands with the participants next to her when she
heard a "commotion," "like people being
surprised" and someone yelling; then, as Ms. Lanning was
trying to stand up, she felt appellant step on her left arm.
Ms. Lanning saw appellant "after she was running away
from" her. She also saw appellant "starting to
harass other people" by "yelling quite loudly, . .
. getting in people's faces[, ] clearly trying to . . .
provoke a response from someone," "being really
aggressive in her body language," "marching around
aggressively with her flag," and "trying to . . .
startle people by getting in their faces" about "a
foot or so" away from them. People "repeatedly
asked [appellant] very politely to . . . step aside, or to
move back, and she didn't respond to that well."
Appellant was "looking for a way to get into the
circle" of participants.
officer Doran Gunnells testified that appellant told him to
"call backup," a remark he interpreted to mean that
appellant was "getting agitated and wanted to fight or
resist arrest." Officer Gunnells also testified that
appellant told him that she was "not going to let [the
participants] do their thing and let them march."
Clifford Kincaid, who shot the video footage, testified for
the defense. He testified that it did not appear to him that
anyone was scared or in fear of appellant. He testified that
people were "harassing" her, "[n]ot running
from her." According to Mr. Kincaid, appellant, who was
"walking back and forth with her flag," did not
"engage any one person" though "probably
[came] within a foot or two" of one person. Mr. Kincaid
agreed that "there were points when [appellant]
wasn't in [his] field of vision."
trial court granted appellant's motion for judgment of
acquittal on the charge that she assaulted Ms. Lanning,
finding that the "more reasonable inference would be
that that was an accidental touching in an attempt to break
into the circle." At the close of the evidence the court
also acquitted appellant of the charge that she assaulted Mr.
Files by spitting on him. The court stated that it was
"unable to conclude beyond a reasonable doubt that
[appellant] intentionally spat upon [him]" and also was