Dominic A. White, Appellant,
United States, Appellee.
February 27, 2019
from the Superior Court of the District of Columbia
CF3-3070-15, Hon. Juliet J. McKenna, Trial Judge
E. Allen for appellant.
J. Lenerz, Assistant United States Attorney, with whom Jessie
K. Liu, United States Attorney, and Elizabeth Trosman, John
P. Mannarino, and Monica Trigoso, Assistant United States
Attorneys, were on the brief, for appellee.
Blackburne-Rigsby, Chief Judge, and Fisher and Beckwith,
Fisher, Associate Judge
Dominic A. White challenges the sufficiency of the evidence
to support his convictions for insurance fraud, conspiracy,
and aggravated assault while armed ("AAWA"). He
also argues that the trial judge committed reversible error
in responding to a question from the jury. Once again, this
court must grapple with the question of what constitutes a
"serious bodily injury," an element of proof
required to convict a defendant of AAWA. We affirm in part,
reverse in part, and remand for resentencing.
The Insurance Scheme
Haynes filed a claim with State Farm Insurance on October 15,
2014, reporting that somebody had stolen the rims and tires
from her Volkswagen Passat. She included a photograph of her
car and two receipts totaling $5, 342.04, purportedly
documenting her purchase of those rims and tires. Haynes
declined State Farm's offer to replace the missing items,
instead insisting that the insurance company reimburse her.
Haynes hired WTF Towing to take her Volkswagen to a lot, and
State Farm provided her with a temporary rental car.
Farm's fraud investigation unit began reviewing
Haynes's claim on October 20. Many warning signs of fraud
emerged, according to Laura Gladding, the company's
claims specialist who reviewed the matter. These included the
recent purchase of the policy, the customer's eagerness
to settle the claim, and a discrepancy between the addresses
on the tire merchant's website and the receipts.
Additionally, the insurance company obtained the police
report filed by Haynes, in which she estimated the value of
the stolen items as only about $1, 400.
conducted two phone interviews on October 27: one with Haynes
and another with a person whom Haynes said was her brother
"Dominic." The man on the latter call, who used
appellant's phone number, identified himself to Gladding
as "Damon Whittaker." This man reported that the
missing rims and tires had been installed by somebody named
"Jay" rather than a person nicknamed "D.
Money," as Haynes had stated. Gladding asked him for the
contact information for "Jay" but never received
it. During a call on October 30, Gladding told Haynes that
State Farm would not process her claim unless she spoke under
oath with a company attorney. Gladding added that the company
would only pay for the car's storage at the towing lot
for a few more days.
The Attack at the Towing Lot
arrived at WTF Towing's lot to pick up her car at about
5:00 p.m. on November 4 and saw Philip Lovell installing
tires and rims on her Volkswagen. Haynes expressed her anger
with Lovell about a scratch on the car as well as the
"raggedy rims" that he had installed. Soon, a
quarrel erupted and both parties exchanged derogatory words.
Haynes, who was holding a cell phone on speakerphone, said
into the phone, "I'm here now." Haynes then
told Lovell, "You gonna make me call my boyfriend on
you." After she demanded that Lovell "hurry
up" with the installation, he responded, "Why
don't you call your punk boyfriend and . . . tell him to
come fix it." Haynes said to somebody on her phone that
"[t]hey're playing games with me" and that
"he called you out."
Lovell walked away from Haynes and toward the area where
tires were stored. Moments later, appellant arrived at the
towing lot. Haynes pointed to Lovell and told appellant,
"That's him." Next, an onlooker screamed,
"Watch out!" and Lovell turned around to see
appellant swinging a metal pole at his head. The pole - an
aluminum handle used to operate a car jack - struck the head
of Lovell, who fell to the ground and covered his head and
face. The assailant then struck Lovell a second time, this
time on the back of his head. One witness, Deneil Bettis,
remembered Lovell screaming, "He's trying to kill
me!" Bettis and another bystander approached appellant
with pocketknives, prompting White to flee the towing lot in
his car. Witnesses and police officers who arrived described
Lovell as "disoriented," "crying hard,"
and unable to stand up without help. One police officer
recalled that Lovell "appeared to be in a lot of
pain" because "there was a lot of blood."
remained conscious and recalled that he did not feel any pain
at the time due to the effects of adrenalin. An ambulance
arrived, but he repeatedly resisted going to the hospital due
to perceived costs. A co-worker and a police officer
eventually convinced Lovell to get in the ambulance despite
his concern about medical bills. Lovell then momentarily left
the ambulance to lock his vehicle before going to the
bloodied Lovell arrived at Howard University Hospital's
emergency room, he reported his pain level as a
"ten," the maximum level. Hospital staff performed
a CT scan of his head, which showed no acute brain injuries.
Dr. Adrienne Wilson, who treated Lovell, said that he had
suffered two "superficial" scalp lacerations that
measured roughly four centimeters in length, one each on the
front and back of his head. According to Dr. Wilson, Lovell
was not actively bleeding and did not experience vomiting or
nausea. Lovell was given Tylenol No. 3, which contains
codeine, to help with his pain. After the physicians cleaned
Lovell's two head wounds, they closed the lacerations
with eighteen staples. The hospital discharged Lovell the
same night at 12:50 a.m., roughly six hours and forty minutes
after he entered the emergency room. Dr. Wilson wrote Lovell
a prescription for ten tablets of Tylenol No. 3 and twenty
tablets of Motrin.
month or two after being released, Lovell suffered daily
migraines. He also experienced occasional nausea and
sometimes vomited. Lovell returned to work within a week of
the attack but incurred a migraine while driving a tow truck
and was assigned to office work for about a month. His
primary care physician referred him to Dr. Jenny Lin, a
neurologist, who examined him about three-and-a-half months
after the attack. Lovell told Dr. Lin that he had experienced
some light-headedness and a "persistence of daily
headache," which he described as "throbbing
pain." He reported that he was taking ibuprofen, which
did not adequately alleviate his head pain. Lovell performed
well on all the tests administered by Dr. Lin, who determined
that Lovell "possibly" suffered from
"posttraumatic headache." She recommended that he
receive a brain MRI and return for a follow-up evaluation,
but there is no evidence that he did either. To help Lovell
with his headaches, Dr. Lin ...