February 23, 2017
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Superior Court of the District of Columbia
(CMD-14874-15), (Hon. William M. Jackson, Trial Judge)
J. Peed, Washington, for appellant.
Di Maggio, Assistant United States Attorney, with whom
Channing D. Phillips, Washington, 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.
Blackburne-Rigsby, Chief Judge,[*] and Glickman and Beckwith,
by Chief Judge Blackburne-Rigsby, concurring in part and
dissenting in part, at page 1147.
after appellant Johnnie Coleman asserted his right to a jury
trial, the government filed an amended information reducing
the charge against him from stalking to attempted
stalking. 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
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 [complainants]
circumstances" would fear for her or anothers 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. Colemans jury trial arguments and conclude that the
government introduced sufficient evidence to meet its burden,
we vacate Mr. Colemans conviction and remand to allow the
trial court to evaluate the evidence under the principles set
forth in this opinion.
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
A. The Two "Staring" Incidents
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
B. The October 12 Incident
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, youre my neighbor. Im not trying to talk to
you. You know I have a husband. I have a dog. Okay. Good bye.
Have a good day."
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 complainants husband arrived, he and Mr. Coleman
had what "looked like ... a calm, pleasant
conversation." Mr. Coleman walked away, and the
complainants husband told her
that Mr. Coleman was "harmless" and that "he
understands now that he doesnt 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.
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. Im
not a bad person.... I read the Bible. Its 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
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
complainants 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 "didnt 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. The complainant testified that Mr.
Coleman had "this scary-looking grin on his face."
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 fields 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, "Im just out here trying to get some
exercise." The complainant proceeded quickly toward her
home, and Mr. Coleman continued following. The
complainant "screamed" at Mr. Coleman that she was
going to "get [her] husband to fuck [him] up," and
the complainants neighbor also told Mr. Coleman to leave the
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 complainants 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 complainants neighbor called the
police while these events were unfolding, and Mr. Coleman was
arrested soon thereafter.
complainant testified that this incident was a
"traumatic experience" for her and that she had
"lost some sleep" as a result.
D. The Trial Courts Verdict
trial court credited the complainants 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. Colemans 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 youre trying to get me
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.
Colemans 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."
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 Im going to
enter a judgment of guilty to the charges, attempted
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] didnt
understand how much he was bothering this woman,"
because he "was persistent in following her" after
being told to stop.
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.
Colemans 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
appellants 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, 109 S.Ct. 1289, 103
L.Ed.2d 550 (1989) (quoting Duncan v. Louisiana, 391
U.S. 145, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491 (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, 113 S.Ct.
1072, 122 L.Ed.2d 374 (1993) (quoting Blanton, 489
U.S. at 541, 109 S.Ct. 1289). "[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 ...