Powell v. United States, No. 19-CM-48

238 A.3d 954

Carina Victoria POWELL, Appellant,

v.UNITED STATES, Appellee.

No. 19-CM-48

District of Columbia Court of Appeals.

Submitted March 19, 2020

Decided October 1, 2020

Dana E. Hofferber was on the brief for appellant.

Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and LaVater Massie-Banks, Assistant United States Attorneys, were on the brief for appellee.

Before Thompson, Easterly, and McLeese, Associate Judges.

Dissenting opinion by Associate Judge McLeese at page 960.

Thompson, Associate Judge:

Following a bench trial, appellant Carina Victoria Powell was convicted of one count of intent-to-frighten assault. On appeal she argues that the evidence was insufficient to support her conviction. We agree and therefore reverse.

I.

Metropolitan Police Department ("MPD") Officer Sara Khah testified that on September 4, 2018, she was driving her police vehicle, with lights and siren activated, down the 900 block of Quincy Street, N.E., behind her partner, MPD Officer Tiffany Keenon,¹ as the two were on their way to respond to a call for a domestic dispute. Officer Khah observed appellant emerge from the other side of the street and kick the police vehicle driven by Officer Keenon. As Officer Khah's vehicle passed appellant, she heard a "bang[,]" which she interpreted as a kick by appellant on her own vehicle as well.² Diverting from their "Code 1" call, both officers pulled over to see "what [was] going on with" appellant.

Officer Khah testified that appellant "advanc[ed] toward" the officers "in an aggressive manner [with] her hands ... fists up." Khah also testified that while appellant was walking in the direction of the officers, she made a "motion ... touching her ankles[,]" adding on cross-examination that appellant reached for her ankles "multiple times" (testimony corroborated by the officers’ body-worn camera ("BWC") footage). Officer Khah told the court that she found the movement concerning because she thought that appellant could have been trying to "pull[ ] a weapon out of her sock."

Officer Khah further testified that as appellant, walking "fast," drew near the officers, she spoke to them, asking, "[Y]eah, what's up? What you going to do?" The officers shouted to appellant multiple times to "move back." Instead, appellant continued to approach in an aggressive posture, getting to within arm's reach of the officers, even though Officer Keenon stepped back. Appellant's action led Officer Khah to fear that Ms. Powell "would actually harm [Officer Keenon] if [the officers] didn't get [appellant] under control right away." When appellant failed to comply with the officers’ order to "back off," Officer Keenon raised her ASP baton, prepared to hit, and did hit appellant, who at about the same moment called Keenon a "bitch-ass." Officer Khah testified that appellant "had zero reaction" ("standing solid, not a flinch") to being hit with the ASP, causing the officer to assume that "something's wrong here."

On cross-examination, defense counsel elicited Officer Khah's testimony that at the point when the officers got out of their vehicles, appellant was "not walking directly towards" them. The BWC footage shows the same. Initially, appellant was walking in the middle of the street diagonally, or at a right angle relative to the direction Officer Keenon was walking, rather than walking toward the officers. Officer Khah testified that Officer Keenon "deployed," i.e., "pulled out," her ASP after appellant started walking toward the officers. But the video footage shows that Officer Keenon pulled out the ASP as soon as she emerged from her vehicle, i.e., while appellant was still some distance away and not walking toward the officers. Officer Keenon walked toward appellant, holding the ASP, while Officer Khah asked appellant, "Are you for real? Are you serious?" (apparent references to appellant's having kicked the officers’ vehicles). It appears that the ASP caught appellant's attention; she pivoted and began walking directly toward Officer Keenon, asking the officer (with apparent reference to the officer's drawn ASP), "what are you going to do that for[?]" Walking fast, appellant came within an arm's length of Officer Keenon, ignoring both officers’ shouted commands to her to "back off."

Officer Khah agreed on cross-examination that, as shown in the BWC footage, appellant did not raise her hands above her waist (except when "pull[ing] her shirt over her face for a moment[ ]"). Defense counsel extensively cross-examined Officer Khah on her previous testimony that appellant had approached the officers with her "fists up." Officer Khah acknowledged, upon reviewing the BWC footage during cross-examination, that at various points in the video, neither of appellant's hands was "in a fist."

Officer Keenon did not testify at trial. After the court denied a defense motion for judgment of acquittal, appellant's mother, Victoria Powell, testified for the defense. Ms. Powell, who told the court that she was standing outside with appellant at the time of the incident, testified that she did not see her daughter kick or otherwise touch either police car. Ms. Powell further testified that she tried to defuse the situation between the officers and appellant, but ultimately was unsuccessful because "[t]he officer just kept coming" forward towards appellant, who ended up being "tossed" to the ground and arrested. Ms. Powell told the court that a friend across the street had caught appellant's attention, that appellant was crossing the street to see what that person wanted, and that she (Victoria Powell) called out to appellant to "watch out ... [for] cars." Appellant did not testify.

In delivering its verdict, the trial court stated that the case was "a close call as far as threats and a menacing manner." The court did not "discount[ ] [Victoria Powell's] testimony[,]" but found Officer Khah's testimony to be "very credible." The court stated that it found the BWC video helpful, finding on the basis of it that appellant displayed "kind of an intimidating approach[,]" and had "a hostile look to her" as she approached Officer Keenon, "[w]ho had done something that provoked" appellant. The court reasoned that while defendant was not "an exaggerated threat," under the totality of the circumstances she was "reasonably threatening[,]" as shown in part by the evidence that Officer Keenon "pull[ed] out her asp weapon[,]" which "would have made no sense if she wasn't afraid about what [appellant] was going to do[.]" The court found that Officer Keenon "was reasonably afraid under all those circumstances."

II.

"We review sufficiency claims de novo, viewing the evidence in the light most favorable to the prosecution, with due regard for the right of the ... trier of fact to weigh the evidence, to determine the credibility of witnesses, and to draw reasonable inferences." In re D.P. , 122 A.3d 903, 907 (D.C. 2015) (internal quotation marks and brackets omitted). "[T]he evidence is sufficient if, after viewing it ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Solon v. United States , 196 A.3d 1283, 1289 (D.C. 2018).

In order to prove intent-to-frighten assault, the government must show "(1) that the defendant committed a threatening act that reasonably would create in another person a fear of immediate injury; (2) that, when he/she committed the act, the defendant had the apparent present ability to injure that person; and (3) that the defendant committed the act voluntarily, on purpose, and not by accident or mistake." Joiner-Die v. United States , 899 A.2d 762, 765 (D.C. 2006) ; see also D.C. Code § 22-404 (2012 Repl. & 2020 Supp.). A conviction of intent-to-frighten assault also "requires proof that the defendant intended either to cause injury or to create apprehension in the victim by engaging in some threatening conduct[.]" Parks v. United States , 627 A.2d 1, 5 (D.C. 1993) (quoting Robinson v. United States , 506 A.2d 572, 574 (D.C. 1986) (citing W. LAFAVE & A. SCOTT , HANDBOOK ON CRIMINAL LAW § 82, at 610–612 (1972))). "Thus, our attention is focused upon the menacing conduct of the accused and his purposeful design either to engender fear" (if the theory is intent to frighten theory), or to "do violence to his victim" (under an attempted-battery theory). Parks , 627 A.2d at 5 (quoting Sousa v. United States , 400 A.2d 1036, 1044 (D.C. 1979) ) (internal quotation marks omitted). An intent to frighten can be inferred from the defendant's conduct (for example, from the pointing of a gun). Robinson , 506 A.2d at 575. A victim of intent-to-frighten assault "need not be shown factually to have experienced apprehension or fear in order to establish the offense[,]" because "the crucial inquiry is whether the assailant acted in such a manner as would under the circumstances portend an immediate threat of danger to a person of reasonable sensibility." Id. (internal quotation marks and brackets omitted). "Mere words are not sufficient" to constitute a "threatening act." Cousart v. United States , 144 A.3d 27, 32 n.11 (D.C. 2016).

III.

Like the trial court, we view the issue of sufficiency of the evidence in this case as a close one "as far as threats and a menacing manner." The court considered the "totality of the circumstances[,]" which included the kicking of the officers’ vehicles and appellant's "hostile look[,]" which we agree gave the officers reason to be wary of appellant. As appellant's counsel conceded in closing argument, at the time of the incident appellant "was angry[,]" and "was expressing [her] anger." The court further found that appellant ignored the officers’ repeated orders to her to "back up," despite Ms. Powell's efforts to "extricate her ... from [the] ... situation."

But as described above, the video footage shows that Officer Keenon pulled out the ASP upon alighting from her vehicle and before appe...