Criminal Law Blog

2019: The (Early) Year in Review (Part 3)

 NOTE: Updates to previous Year-in-Review posts:

Following the publication of Parts 1 and 2 of the (Early) Year in Review, the DCCA decided cases related to issues covered in those sections. For this reason, on October 15, 2019, synopses of the DCCA's opinions in Andrews v. D.C., 17-CT-523 (decided August 15, 2019) and Jackson v. U.S., 16-CO-523 (decided August 22, 2019) were added to the Fourth Amendment section of Part 1. Similarly, on October 21, 2019, synopses of the DCCA's opinions in Sims v. U.S., 15-CF-914 (decided August 15, 2019) and U.S. v. Nelson, 18-CO-53 (decided October 3, 2019) were added to the Evidentiary Issues section of Part 2. Similarly, where a future DCCA case decides an issue related to a topic covered in a previous year-in-review post, a synopsis of the case will be added to the relevant prior post. The (Early) Year in Review continues below with Part 3. - WCC


Stuffed Bear Paws by Curious Expeditions, licensed under Creative Commons

Dubose v. U.S., 18-CO-674 (decided August 8, 2019) –

  • Holding 1: Trial counsel was not deficient for failing to challenge appellant’s CPWL, UF, and UA charges under the Second Amendment, in light of Wrenn v. D.C., 864 F.3d 650 (D.C. Cir. 2017), which struck down part of D.C.’s gun licensing statute, because that case is not controlling and appellant had already been convicted and sentenced by the time it was decided. Slip Op. at 4-7.
  • Holding 2: Appellant was not prejudiced by counsel’s failure to challenge the CPWL, UF, and UA statutes on Second Amendment grounds because, notwithstanding any defect in the licensing statute, appellant lacked the statutorily required registration certificate for the gun he possessed and had not shown that he was otherwise qualified to obtain a license to carry it. Id. at 7-12.


Rahman v. U.S., 17-CM-1293 (decided June 13, 2019) – 

  • Holding: Where appellant was arrested by an MPD officer after refusing to leave a McDonald’s as requested by the special police officer (SPO) working there, the Jenck’s act did not entitle appellant to receive the incident report that the SPO submitted to the McDonald’s corporation. The government never “possessed” the report for Jenck’s act purposes because, in preparing it, the SPO was functioning as a McDonald’s contractor rather than a member of the prosecution team.


Advertisement for the 1923 silent film The Acquittal from Wikimedia Commons 

Roberts v. U.S., 17-CF-341 (decided September 26, 2019) – Unlawful Disclosure

  • Holding 1: “[U]nlawful disclosure [under D.C. Code § 22-3052] can include making a sexual image available for viewing even if the image is not actually viewed by anyone other than the defendant and the person depicted in the image.” Slip Op. at 20.
  • Holding 2: Instructions requiring the jury to find that the defendant “exhibited the sexual image to another person or . . . in a place where it is viewable [by] another person” did not adequately convey that unlawful disclosure requires disclosure or exhibition to someone other than the person depicted in the image. Id. at 21-22. This error was not harmless beyond a reasonable doubt because the evidence that the images were available to be seen by others was not overwhelming. Id. at 23-24. The error cannot be rectified by entry of judgment on attempted unlawful disclosure because it is not clear beyond a reasonable doubt that the defendant attempted to display the images to anyone other than the person depicted in the image. Id. at 26.
  • Holding 3: There was sufficient evidence to support the defendant’s unlawful disclosure convictions because, for each count, there was evidence that the defendant made a sexual image available for viewing by someone other than the person depicted, and the person depicted was “identified or identifiable” to herself or, in one case, her mother. Id. at 30-32. Unlawful disclosure does not require that the person depicted be “identified or identifiable” based on the content of the image alone. Id. at 32-33. Nor does it require that the person depicted be identified by, or identifiable to, anyone other than the person depicted. Id. at 35

Rahman v. U.S., 17-CM-1293 (decided June 13, 2019) – Unlawful Entry

  • Holding: The trial court’s finding that appellant failed to leave a McDonald’s after a special police officer asked him to do so several times was sufficient to support appellant’s conviction for unlawful entry. Slip Op. at 13-16.

Hernandez v. U.S., 15-CM-130 (decided May 9, 2019) – Simple Assault

  • Rehearing en banc granted to consider whether evidence of unwanted touching is sufficient to establish simple assault under D.C. Code § 22-404(a). See the panel opinion for more information about the evidence presented.

White v. U.S., 17-CF-530 (decided May 9, 2019) – Possession of a Prohibited Weapon (PPW)/Assault with a Dangerous Weapon (ADW)/Insurance Fraud/Aggravated Assault/Assault with Significant Bodily Injury

  • Holding 1: Where an indictment charged ADW (a pole) and PPW (a pole), the trial court did not err in instructing that the government had no burden to prove that the pole in evidence was the pole possessed and used in the assault. Slip Op. at 7-10. Rather, the government’s burden was to prove that the item possessed and used to commit assault was a pole and that the pole was a dangerous weapon.
  • Holding 2: Evidence that appellant “fixed up” falsified receipts and communicated with a fraud investigator regarding a false insurance claim was sufficient to sustain his convictions for first-degree insurance fraud and conspiracy to commit insurance fraud. Id. at 11-12.
  • Holding 3: Evidence that, after being struck in the head with a metal pole, complainant was bloody, disoriented, and in pain but resisted going to the hospital and was discharged after receiving a CT scan and a prescription for Tylenol 3 was insufficient to establish “serious bodily injury” as required for an aggravated assault conviction but sufficient to establish “significant bodily injury” as required for felony assault. Id. at 13-25.

Johnson v. U.S., 17-CM-1117 (decided May 9, 2019) – Second Degree Child Cruelty/Possession of a Prohibited Weapon (PPW)

  • Holding 1: Evidence was sufficient to show “excessive force” required for attempted second degree child cruelty conviction, where “appellant repeatedly, forcefully, and indiscriminately beat A.J. with a broomstick-like stick while he was sitting on the floor in the corner of his room with his arm over his head.”
  • Holding 2: Evidence was sufficient to show that the wooden stick was a “dangerous weapon” for purposes of PPW conviction, where appellant wielded it with “force hard enough to break [it] and cause bruises and marks on A.J.’s body, . . . without taking any precaution to avoid striking parts of A.J.’s body that would cause serious injury, such as his head or face,” even though stick did not actually cause great bodily injury.

Coleman v. U.S., 16-CM-345 (decided March 7, 2019) – Stalking

  • Holding 1: To support a conviction for attempted stalking under D.C. Code 22-3133(a), the government must prove beyond a reasonable doubt that the defendant: (1) purposely engaged in a course of conduct involving at least two occasions of statutorily proscribed behavior (e.g., following, monitoring, or communicating) and (2) possessed the requisite mental state—e.g., should have known that a “reasonable person in [complainant’s] circumstances” would fear for her or another’s safety, “[f]eel seriously alarmed, disturbed, or frightened,” or “[s]uffer emotional distress”—on at least two of the occasions comprising the “course of conduct.” Slip Op. at 2-3, 22-33. 
  • Holding 2: The “should have known” standard is objective and depends on whether a reasonable person in the defendant’s circumstances would have known that his conduct would cause a reasonable person in the complainant’s position to feel the requisite fear, alarm, disturbance, fright, or emotional distress.  Id. at 35-37. “[T]he level of fear, alarm, or emotional distress” that a reasonable complainant would experience as a result of the defendant’s conduct “must rise significantly above that ‘which [is] commonly experienced in day to day living,’ and must involve a ‘severe[] intrusion on the victim’s personal privacy and autonomy[.]’ Ordinary ‘uneasiness, nervousness, [and] unhappiness’ are insufficient.” Id. at 40-41 (citations omitted).

Holman v. D.C., 15-CT-335 (decided February 28, 2019) – Civil Protective Order (CPO) Violation

  • Holding: Intentional placement of telephone calls may qualify as “contact” for the purposes of a CPO violation, even where the calls go unanswered. Even assuming that the recipient had to be aware of the call while the defendant was making it, the record supports that the recipient was aware of the defendant’s calls and chose not to answer them. 


Block and Punch by Peter Harrison, licensed under Creative Commons

Smith v. U.S.
, 15-CO-363 (decided March 14, 2019) –

  • Holding: In a murder case, where evidence showed that appellant left an altercation with the decedent to arm himself before returning to the altercation and shooting the decedent, trial counsel was not ineffective for failing to present a defense of perfect or imperfect self-defense (i.e., manslaughter) based on evidence that the decedent had threatened appellant with pocket knife. Such evidence could not have entitled appellant to a jury instruction on perfect or imperfect self-defense because appellant “deliberately chose to risk the fatal encounter . . . by arming himself with a deadly weapon and going to confront” the decedent, Slip Op. at 14, and “initiated the confrontation with the victim with the intent to kill or do great bodily harm.” Id. at 19-20.

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

  • Holding: The prosecutor’s closing argument suggesting that appellant could not claim self-defense because he “brought [a] gun to the neighborhood” had the potential to convey an “erroneous” message about loss of the right to claim self-defense but ultimately did not when taken together with the remainder of the closing. Slip Op. at 25.  Any error in instructing the jury that first aggressors and provocateurs forfeit the right to self-defense was harmless. Id. at 30-34