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Solon v. United States

Court of Appeals of The District of Columbia

November 29, 2018

Rita Solon, Appellant,
v.
United States, Appellee.

          Submitted September 18, 2018

          Appeal from the Superior Court of the District of Columbia (CMD-7472-17) (Hon. Juliet J. McKenna, Trial Judge)

          Thomas C. Paynter was on the brief for appellant.

          Jessie 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.

          Before Fisher, Thompson, and Beckwith, Associate Judges.

          Thompson, Associate Judge.

         After a 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.

         I.

         During 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 camera ready."

         Caleb-Michael 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."

         Emma 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.

         MPD 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."

         Journalist 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."

         The 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 "not ...


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