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Coleman v. United States

Court of Appeals of The District of Columbia

March 7, 2019

Johnnie Coleman, Appellant,
United States, Appellee.

          Argued February 23, 2017

          Appeal from the Superior Court of the District of Columbia CMD-14874-15, Hon. William M. Jackson, Trial Judge

          Matthew J. Peed, for appellant.

          Giovanni Di Maggio, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Candice Wong, and Janani J. Iyengar, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, [*] and Glickman and Beckwith, Associate Judges.


          Beckwith, Associate Judge

         Soon after appellant Johnnie Coleman asserted his right to a jury trial, the government filed an amended information reducing the charge against him from stalking[1] to attempted stalking.[2] The case was transferred to a misdemeanor calendar, and Mr. Coleman was convicted of attempted stalking after a bench trial. On appeal, Mr. Coleman argues that he was denied his right to a jury trial and that his conviction was not supported by constitutionally sufficient evidence.

         One of the elements of stalking is that the defendant "purposefully engage in a course of conduct" involving at least two "occasions" of certain statutorily specified types of behavior-for example, following the complainant or communicating with him or her. D.C. Code §§ 22-3132(8), -3133(a). As part of his sufficiency claim, Mr. Coleman argues that the government failed to prove that he possessed the requisite mental state-namely, that he "should have known" that a "reasonable person in the [complainant's] circumstances" would fear for her or another's safety, "[f]eel seriously alarmed, disturbed, or frightened," or "[s]uffer emotional distress"-during at least two of the occasions that allegedly comprised his course of conduct. D.C. Code § 22-3133(a)(3). We agree that the government was required to prove that Mr. Coleman possessed the requisite mental state on at least two occasions. Accordingly, although we reject Mr. Coleman's jury trial arguments and conclude that the government introduced sufficient evidence to meet its burden, we vacate Mr. Coleman's conviction and remand to allow the trial court to evaluate the evidence under the principles set forth in this opinion.


         During the time period relevant in this case, Mr. Coleman lived in a group home for "men who had mental[] or behavioral issues." The home was located on the Kansas Avenue side of a triangular block bounded by Kansas and Eastern avenues and Tuckerman Street in Northeast Washington, D.C. The complainant lived with her husband and adult son in a house on the Tuckerman Street side of the block, and the backyard of their home abutted the backyard of the group home. The allegation of stalking arises out of a series of four incidents.[3]

         A. The Two "Staring" Incidents

         The first two incidents occurred in the spring of 2015. One morning, on her way to work, the complainant boarded a bus at the corner of Tuckerman Street and Kansas Avenue. A man whom the complainant later identified as Mr. Coleman boarded the bus at the next stop, at the corner of Kansas and Eastern avenues. According to the complainant, Mr. Coleman "practically just stared at [her] the entire" five- to ten-minute bus ride. She "never would have recalled" the incident of "Mr. Coleman staring at [her] on the bus[, ] except for the fact that maybe a week or two later" a second incident occurred. The complainant was with her family in her backyard and saw Mr. Coleman "standing in the backyard of the group home," "staring at [her] and [her] family." Because the complainant recognized Mr. Coleman from the bus ride a week or two earlier, she found his behavior "a little alarming."

         B. The October 12 Incident

         After these two incidents, Mr. Coleman and the complainant had no further contact for several months. Around 8 a.m. on Monday, October 12, 2015, the complainant was walking to the Lamond Recreation Center, which is at the corner of Tuckerman Street and Kansas Avenue, "about half a block away from" her home. The center consists of an indoor facility and a baseball field with a walking path around it. The complainant was "heading up the sidewalk" on Tuckerman Street "to go on to the field" when Mr. Coleman approached from the opposite direction. According to the complainant, after they passed each other, Mr. Coleman "quickly turned around[] and . . . ran back up and like stood directly in front of [her]," "stopp[ing] [her] in her tracks." Mr. Coleman said "something to the effect [of] like oh, how are you doing? You look really nice. Can I talk to you? That kind of thing." The complainant testified that she was "startled." She walked away from Mr. Coleman "[b]risk[ly]" and told him, "You know, you're my neighbor. I'm not trying to talk to you. You know I have a husband. I have a dog. Okay. Good bye. Have a good day."

         The complainant proceeded to walk on the path around the baseball field. She soon noticed, however, that Mr. Coleman had taken a seat on a "bench . . . at the baseball diamond." The complainant testified that she was "concerned" because it was "still fairly early in the morning" and because Mr. Coleman "was the only person out there." She was "a little bit worried that [Mr. Coleman] was prepared to . . . cause [her] some harm" and that his presence "made [her] feel very uncomfortable." The complainant continued her walk, but she also called her husband, who had not yet left for work. When the complainant's husband arrived, he and Mr. Coleman had what "looked like . . . a calm, pleasant conversation." Mr. Coleman walked away, and the complainant's husband told her that Mr. Coleman was "harmless" and that "he understands now that he doesn't need to be out here harassing people." Mr. Coleman left, and the complainant continued her walk around the baseball field. "[S]uddenly," she saw Mr. Coleman "across the street, waiting at the bus stop on Kansas [Avenue] and Tuckerman Street." The complainant continued "walking and watching, walking and watching," and saw two buses go by without Mr. Coleman boarding. The complainant then saw Mr. Coleman leave, and she assumed that he was going back to his group home.

         When the complainant finished her walk, "something just told [her] that [she] should probably . . . go down the street and knock on the group home door, just to alert them, as a concerned neighbor." The complainant there told a nurse that she was "concerned" because Mr. Coleman had been "wandering around"; the nurse responded that Mr. Coleman had not "take[n] his medication" and had "just left." The complainant began walking back home, and when she was about two houses away from the group home, she heard Mr. Coleman-who was standing in front of the group home-"yell[] out to" her. Mr. Coleman said, "I see you tried to get me in trouble. I'm not a bad person. . . . I read the Bible. It's not like I go around masturbating . . . ." The complainant "thought [this] was just odd," and she responded by telling Mr. Coleman to "go inside and take [his] medicine." She recalled that this interaction made her "really uncomfortable."

         The complainant testified that as a result of the October 12, 2015, incident, she "became a lot more wary" and decided not to go "walking that early anymore."

         C. The October 26 Incident

         The complainant's next and final encounter with Mr. Coleman occurred two weeks later, on October 26, 2015, around noon. She was walking on the path around the baseball field when she "notice[d] that [Mr. Coleman] was standing up at the doorway to the recreation center." There were some children and their teachers on the baseball field, so the complainant "didn't feel, at that moment, . . . like there was any issue." After walking several laps around the field, the complainant saw the "kids and the teachers . . . leaving the field." The complainant was on the opposite side of the baseball field from the recreation center, and "before [she] kn[e]w it, [Mr. Coleman] literally sprinted across the entire length of the field, and he was standing about eight feet in front of [her]," on the walking path.[4] The complainant testified that Mr. Coleman had "this scary-looking grin on his face."

         At that moment, the complainant testified, she "knew it was like fight or flight," so she "stopped on [her] heel, . . . turned in the other direction," and told Mr. Coleman to "leave [her] alone." The complainant quickly headed towards the baseball field's exit-she was "almost running"-and she "started cussing at [Mr. Coleman]": "[L]eave me alone. Stop acting weird. Stop bothering me. Get the fuck away from me. . . . [L]eave me the fuck alone." Mr. Coleman followed her and said, "I'm just out here trying to get some exercise." The complainant proceeded quickly toward her home, and Mr. Coleman continued following.[5] The complainant "screamed" at Mr. Coleman that she was going to "get [her] husband to fuck [him] up," and the complainant's neighbor also told Mr. Coleman to leave the complainant alone, but Mr. Coleman continued following, shouting things like "F you bitch." When the complainant arrived at her house, she told her son that Mr. Coleman had been following her. The complainant's son went outside and told Mr. Coleman "to get the fuck out of here." Mr. Coleman walked away, stopping briefly at the corner and "erratically shaking a [street] sign" before leaving the area. The complainant's neighbor called the police while these events were unfolding, and Mr. Coleman was arrested soon thereafter.

         The complainant testified that this incident was a "traumatic experience" for her and that she had "lost some sleep" as a result.

         D. The Trial Court's Verdict

         The trial court credited the complainant's testimony and made the following factual findings. The court found that the complainant first noticed Mr. Coleman in the spring of 2015, when he stared at her on the bus. She encountered him a second time about one week later, when he again stared at her while she was in her backyard. With respect to the October 12 encounter, the court found that Mr. Coleman ran back to the complainant after walking past her and asked to talk to her, a request she rejected. Mr. Coleman then sat on the bleachers and watched the complainant as she walked around the field. When she finished her walk, the complainant noticed Mr. Coleman standing at the bus stop without boarding any of the buses that went by. She then walked to Mr. Coleman's group home to tell them that a resident was wandering around in the early morning hours, and when she left, Mr. Coleman "yell[ed] at her, saying I see you're trying to get me in trouble."

         The court also found that on October 26, Mr. Coleman "sprinted across the field" toward the complainant and "started following her" after she told him to leave her alone. Mr. Coleman crossed the street to continue following her and yelled and cursed at her, "saying F you, bitch[, ] and words to that effect." Mr. Coleman stayed in the area after the complainant got home and shook a street sign on the corner. The trial court rejected Mr. Coleman's testimony that he was not following the complainant and was just trying to go home, noting that his testimony was "flatly contradicted by the record."

         After making these factual findings, the trial court concluded:

I believe the Government has satisfied each and every element beyond a reasonable doubt, when you look at the totality of the circumstances as well as the constant staring at her, and basically engaging in harassment, and I believe she was fearful of him, and so much so that she went to the group home to tell them, you know, about his conduct. And also spoke on the 9-1-1 call telling them about who the defendant was and where he was found.
So the Court is satisfied the Government has proved in each area and element beyond a reasonable doubt and I'm going to enter a judgment of guilty to the charges, attempted stalking.

         During the sentencing stage, which immediately followed the verdict, the court added that it considered the case "rather disturbing." The judge explained that he did not "believe for one moment that [Mr. Coleman] didn't understand how much he was bothering this woman," because he "was persistent in following her" after being told to stop.


         Mr. Coleman first claims that he was denied his constitutional and statutory right to a jury trial when the government amended the charge from stalking to attempted stalking. Although Mr. Coleman initially requested a jury trial, he did not object to the amended information and made no jury demand on the attempted stalking charge. We thus review this claim for plain error, and we will reverse only if Mr. Coleman demonstrates that the filing of the amended information "was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Jones v. United States, 124 A.3d 127, 129 (D.C. 2015) (internal quotation marks omitted). Mr. Coleman's challenge in this regard boils down to a claim that the trial court plainly erred in failing to grant Mr. Coleman a jury trial sua sponte. See Fretes-Zarate v. United States, 40 A.3d 374, 376 (D.C. 2012) (applying plain error review to a non-citizen appellant's claim that trial judge should have advised her sua sponte of her right to a jury trial).

         "It has long been settled that 'there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.'" Blanton v. City of N. Las Vegas, 489 U.S. 538, 541 (1989) (quoting Duncan v. Louisiana, 391 U.S. 145, 159 (1968)). To determine whether the constitutional right to a jury trial attaches to a particular offense, we examine "objective indications of the seriousness with which society regards the offense," the most relevant of which is the "maximum penalty set by the legislature." United States v. Nachtigal, 507 U.S. 1, 3 (1993) (quoting Blanton, 489 U.S. at 541). "[O]ffenses for which the maximum period of incarceration is six months or less are presumptively 'petty.'" Id. A defendant may overcome this presumption "only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." Blanton, 489 U.S. at 543 (emphasis added).

         Mr. Coleman acknowledges that attempted stalking is a presumptively petty offense, carrying a maximum term of incarceration of 180 days. D.C. Code § 22-1803. He argues, however, that the D.C. Council's unambiguous intent to have stalking charges tried by a jury, and not by an individual judge, overcomes the presumption that the legislature did not consider attempted stalking a serious offense. Mr. Coleman's point is not without force. The current version of the stalking statute was enacted as part of the Omnibus Public Safety and Justice Amendment Act of 2009, D.C. Law 18-88, 56 D.C. Reg. 7413 (Dec. 10, 2009). Citing the "subjective nature" of stalking, the Council's Committee on Public Safety and the Judiciary deemed it an offense for which "the community, not a single judge, should sit in judgment" and found it "highly appropriate that a jury of [the defendant's] peers . . . judge whether the behavior is acceptable or outside the norm and indicative of escalating problems." D.C. Council, Comm. on Pub. Safety & Judiciary, Rep. on Bill 18-151, at 33 (June 26, 2009), (Committee Report). The Council expressly set the maximum penalty for stalking at a level that guaranteed the defendant's right to a jury trial. Id. (explaining that the penalty of twelve months for first-time stalking offenders was established "so that a defendant will have a right to a jury of [his] peers").

         But even assuming the statements in the Committee Report are probative of the Council's view of the seriousness of attempted stalking, the Supreme Court has clearly instructed courts to consider only the additional statutory penalties, and this court has accordingly refused to rely on legislative history in evaluating whether there is a constitutional right to a jury trial for a particular offense. See, e.g., Day v. United States, 682 A.2d 1125, 1129 (D.C. 1996) ("The [Supreme] Court does not . . . require a search of the legislative history to find the legislature's attitudes; it points only to the penalties that the legislature imposes."); Burgess v. United States, 681 A.2d 1090, 1095 (D.C. 1996) ("We decline on several grounds Burgess'[s] invitation to explore the legislative history. . . . We note that with all the opportunities the Supreme Court has had to consider this issue, it has never suggested that legislative history might be considered as a gauge of whether a particular offense is 'serious' or 'petty.'"); Stevenson v. District of Columbia, 562 A.2d 622, 623 n.1 (D.C. 1989) ("In light of this plain focus on statutory penalties, we decline appellant's invitation to search the committee report or other legislative history for additional indications that the Council believed driving under the influence to be a "serious" offense."). We likewise decline to do so here. Having failed to identify any "additional statutory penalties" which, viewed in conjunction with the maximum penalty of 180 days, are "so severe" as to indicate that the Council considered the offense a serious one, see Blanton, 489 U.S. at 543, Mr. Coleman cannot overcome the presumption that attempted stalking is a petty offense to which the Sixth Amendment right to a jury trial does not attach. Facing at most 180 days' imprisonment and a $1, 000 fine, Mr. Coleman had no constitutional right to a jury trial for the charge of attempted stalking.[6]

         With respect to Mr. Coleman's claim that he was denied his statutory right to a jury trial, D.C. Code § 16-705(b) provides that a defendant is entitled to a jury trial on all offenses (except contempt of court) that are punishable by more than 180 days' imprisonment. A maximum penalty of 180 days, however, "is not sufficient to trigger one's statutory right to a jury." Jones, 124 A.3d at 132. Though he acknowledges that attempted stalking carries a maximum penalty of 180 days, Mr. Coleman urges us to read the term "offense" in that statute as referring to the substantive offense-here, stalking-where the elements of the attempted offense still require a determination of reasonableness under prevailing community norms and where the Council has determined that a jury is best equipped to make that determination. This argument is foreclosed by our decision in Evans v. United States, where we held that "[t]he existence of a right to a jury trial depends on the maximum punishment for the offense that is charged, not on the maximum punishment for an offense that could be charged but is not." 779 A.2d 891, 895 (D.C. 2001).[7] Mr. Coleman was ultimately charged with attempted stalking, so we look to the maximum penalty for that offense to determine whether he had a statutory right to a jury trial. According to the plain language of D.C. Code § 16-705(b), he did not.

         For these reasons, the trial court did not err in failing to afford Mr. Coleman a jury trial sua sponte.


         In a related argument, Mr. Coleman contends that reversal is required because the government violated Rule 7(e) of the Superior Court Rules of Criminal Procedure by filing an amended information charging attempted stalking. He acknowledges that, because he did not object to the amendment when it was filed, this claim is also subject to plain error review.

         Rule 7(e) states that the trial court "may permit an information to be amended at any time before the verdict or finding," so long as no "additional or different offense is charged" and no "substantial right of the defendant is prejudiced." Super. Ct. Crim. R. 7(e). Because the amendment charged the lesser included offense of attempted stalking, [8] we need only determine whether Mr. Coleman suffered "prejudice substantial enough to reverse under the plain error standard." Jones, 124 A.3d at 132.[9]

         The purpose of a criminal information is twofold: "to apprise a defendant of the charge against him so he may properly prepare a defense, and to spell out the offense clearly enough to enable the accused to plead the judgment as a bar to a subsequent prosecution for the same crime." Dyson v. United States, 485 A.2d 194, 196 (D.C. 1984) (internal quotation marks omitted). Our cases addressing whether a defendant has shown prejudice under Rule 7(e) have examined the particular language and timing of the challenged amendment with those purposes in mind, focusing on whether the defendant had adequate notice of the new charge and whether the amendment unfairly impaired his ability to prepare and present his defense. See Sutton v. United States, 140 A.3d 1198, 1203-05 (D.C. 2016); Jones, 124 A.3d at 132; Dyson, 485 A.2d at 197.[10] Here, the government filed the amended information in open court more than three months before Mr. Coleman's trial eventually began. Mr. Coleman does not claim that he was surprised by the new charge or that the timing interfered with his ability to prepare a defense. Nor does he claim that he would have altered his defense in any way had he presented the case to a jury instead of a judge. The concerns typically implicated by the filing of an amended information were therefore not present in this case.

         Mr. Coleman's sole argument is that he was prejudiced by the loss of his right to a jury trial because the D.C. Council expressly intended for stalking charges to be tried before a jury. The effect of the amended information, however, was to charge him with attempted stalking, and as we determined in Part II, Mr. Coleman had no constitutional or statutory right to a jury trial for that offense. To the extent that Mr. Coleman claims more broadly that any amendment that has the effect of extinguishing a jury trial right is prejudicial, that argument also must fail under a plain error standard. We have never decided whether a defendant may demonstrate prejudice under Rule 7(e) by showing only that the amendment, by charging an offense with a shorter maximum penalty, "result[ed] in his losing his right to a jury trial," see Jones, 124 A.3d at 132 n.12, and we cannot say that our cases applying Rule 7(e) obviously compel such a result.[11] The trial court thus did not plainly err by permitting the amendment despite its effect of eliminating Mr. Coleman's right to be tried by a jury.


         Finally, Mr. Coleman contends that there is insufficient evidence to support his conviction for attempted stalking because the government failed to prove that he "should have known" that his conduct on October 12, 2015, would have "cause[d] a reasonable person in the [complainant's] circumstances to" fear for her safety, feel seriously alarmed, or suffer emotional distress.[12] D.C. Code § 22-3133(a)(3). The court reviews this claim de novo, "view[ing] the evidence in the light most favorable to the government, mindful of the [factfinder's] right to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Hughes v. United States, 150 A.3d 289, 305 (D.C. 2016) (citation omitted). Although this standard of review is "deferential," it is not "toothless," and "[w]e have an obligation to take seriously the requirement that the evidence in a criminal prosecution must be strong enough that a [factfinder] behaving rationally really could find it persuasive beyond a reasonable doubt." Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc).

         Mr. Coleman's argument rests on two premises: (1) that to establish a course of conduct, the government was required to prove at least two independent instances in which Mr. Coleman possessed the "should have known" mens rea, and (2) that the government failed to do so because no reasonable factfinder could have found that Mr. Coleman "should have known" his October 12, 2015, ...

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