February 23, 2017
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.
Blackburne-Rigsby, Chief Judge, [*] and Glickman and Beckwith,
Beckwith, Associate Judge
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 sufficient evidence.
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.
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
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
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, 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."
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.
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
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."
The October 26 Incident
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. The complainant testified
that Mr. Coleman had "this scary-looking grin on his
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. 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.
complainant testified that this incident was a
"traumatic experience" for her and that she had
"lost some sleep" as a result.
The Trial Court's Verdict
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."
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."
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
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.
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).
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).
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").
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
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). 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.
these reasons, the trial court did not err in failing to
afford Mr. Coleman a jury trial sua sponte.
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
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,  we need only determine whether Mr. Coleman
suffered "prejudice substantial enough to reverse under
the plain error standard." Jones, 124 A.3d at
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. 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.
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. 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
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. 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).
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, ...