White v. United States

207 A.3d 580

Dominic A. WHITE, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-530

District of Columbia Court of Appeals.

Argued February 27, 2019

Decided May 9, 2019

Nancy E. Allen for appellant.

Daniel 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.

Before Blackburne-Rigsby, Chief Judge, and Fisher and Beckwith, Associate Judges.

Fisher, Associate Judge:

Appellant 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.

I. Background

A. The Insurance Scheme

Phanessa 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.

State 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.

Gladding 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.

B. The Attack at the Towing Lot

Haynes 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."

Eventually, 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."

Lovell 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 hospital.

When a 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.

For a 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 prescribed an antidepressant for "chronic headache" but no other medications. At the time of the trial more than two years after the attack, Lovell estimated that he suffered migraines about once every two months.

C. The Proceedings

Haynes was charged with insurance fraud, conspiracy to commit insurance fraud, and solicitation of a violent crime. A jury convicted her of the two insurance-related charges only, and she did not appeal. White was charged with insurance fraud, conspiracy to commit insurance fraud, aggravated assault while armed with "a pole," assault with a dangerous weapon ("that is, a pole"), and possession of a prohibited weapon ("a pole"). A jury convicted him on all five counts. The trial court sentenced appellant to one year of incarceration for each of the two insurance charges, to run concurrently; eight years' incarceration for AAWA and four years' incarceration for assault with a dangerous weapon ("ADW"), to run concurrently to each other and consecutive to the insurance counts; and one year of incarceration for possession of a prohibited weapon, to run concurrently.

II. Analysis

A. Did the Trial Judge Erroneously Instruct the Jury?

Appellant first contends that the trial judge improperly responded to a note sent by the jury during deliberations. We review the trial judge's answer to the jury for abuse of discretion. See Cheeks v. United States , 168 A.3d 691, 698 (D.C. 2017). "When a jury makes explicit its difficulties[,] a trial judge should clear them away with concrete accuracy." Id. (alteration in original) (quoting Bollenbach v. United States , 326 U.S. 607, 612–13, 66 S.Ct. 402, 90 L.Ed. 350 (1946) ). We hold that the trial court did not err.

Regarding the counts of ADW, see D.C. Code § 22-402 (2013 Supp.), and possession of a prohibited weapon, see id. § 22-4514(b), the jury first asked if it must find that the weapon used was a pole.¹ The trial judge, the Honorable Juliet J. McKenna, responded that "the dangerous weapon must be a pole" since the indictment specified that the weapon was "a pole." A few hours later, the jury sent another note to ask whether the pole used in the attack must be the pole in evidence. White's trial counsel urged Judge McKenna to respond affirmatively. Judge McKenna declined, saying that she would answer, "No, the jury must find beyond a reasonable doubt that the object was a pole and that the pole was a dangerous weapon."

Whether the pole in evidence was the exact weapon used by appellant is not beyond question.² Deneil Bettis recalled that White dropped the pole that he used after hitting Lovell. Two laborers on the site later picked up the object and used it along with a jack to work on a car. Many of these poles, described as about two feet long and one inch thick, routinely rested on the ground at the towing lot.

When Bettis testified, he referred to a photograph of a pole found on the site to explain how the instrument worked. On cross-examination, Bettis acknowledged...