Hernandez v. United States, 14–CM–125.

• Citation: 129 A.3d 914
• Decision Date: 14 January 2016
• Docket Number: No. 14–CM–125.,14–CM–125.
• Parties: Jesus A. HERNANDEZ, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

129 A.3d 914

Jesus A. HERNANDEZ, Appellant,

v.UNITED STATES, Appellee.

No. 14–CM–125.

District of Columbia Court of Appeals.

Argued Sept. 25, 2015.

Decided Jan. 14, 2016.

Geneva G. Vanderhorst for appellant.

Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and McLEESE, Associate Judges, and RUIZ, Senior Judge.

McLEESE, Associate Judge:

Appellant Jesus A. Hernandez challenges his assault conviction, arguing that the evidence was insufficient and that the trial court failed to conduct an adequate inquiry into whether the United States was required to disclose notes taken by a prosecutor during an interview of a government witness. We hold that the evidence was sufficient, and we remand for further inquiry into the disclosure issue.

I.

The evidence at trial was as follows. At the time of the offense, Mr. Hernandez was living with his girlfriend, Jemima Argueta–Avila. They went to a party together, and Ms. Argueta–Avila saw Mr. Hernandez drink a beer during that time. Ms. Argueta–Avila left without Mr. Hernandez, to visit a neighbor. After she left, Mr. Hernandez called her on the phone more than five times over a period of about twenty minutes, but she did not answer the calls. When Ms. Argueta–Avila left her neighbor and went outside into an alley, she saw Mr. Hernandez, who followed her. She ran ahead, because she was afraid that Mr. Hernandez would be angry at her for not returning his calls. Ms. Argueta–Avila also felt angry and wanted to get home so that the couple could talk there.

Ms. Argueta–Avila testified that Mr. Hernandez grabbed her shirt, causing it to tear, and pushed her, causing her to fall. Ms. Argueta–Avila suffered scrapes and other minor injuries from the fall. She told the police that Mr. Hernandez did not assault her, that he had grabbed her by the shirt, and that she had fallen. When she told the police that Mr. Hernandez did not assault her, she meant that he did not hit her. Ms. Argueta–Avila did not see anyone else in the alley that evening.

Mr. Andre Hawthorne testified that he saw the incident as he was walking through the alley on the way home from work. At first, it appeared to Mr. Hawthorne that Ms. Argueta–Avila was trying to get around Mr. Hernandez, who was blocking her path. When Mr. Hawthorne asked if they were all right, Mr. Hernandez said yes but Ms. Argueta–Avila did not answer. Ms. Argueta–Avila appeared scared to Mr. Hawthorne. Mr. Hawthorne walked past but continued to keep an eye on the couple. He saw Mr. Hernandez's hand on Ms. Argueta–Avila's arm, and Mr. Hernandez appeared to be trying to persuade Ms. Argueta–Avila to do something. Mr. Hawthorne was concerned about what he had seen, so he called 911. While he was on the phone, watching from a distance of about sixty to seventy feet, Mr. Hawthorne saw Mr. Hernandez choke Ms. Argueta–Avila and then saw Ms. Argueta–Avila fall to the ground. The United States introduced a recording of Mr. Hawthorne's 911 call into evidence, but that recording was not transcribed during trial and has not been made part of the record on appeal.

Mr. Hawthorne had previously been convicted of armed robbery, robbery, assault with a dangerous weapon, and obstruction of justice. Mr. Hawthorne never saw Mr. Hernandez hit, shove, or push Ms. Argueta–Avila. Mr. Hawthorne did not speak to the police who arrived on the scene about what he had seen.

Officer Benjamin Rubin responded to the incident within about a minute of receiving a call about an assault in progress. When he arrived, he saw Ms. Argueta–Avila sitting on the ground, with Mr. Hernandez standing over her. Ms. Argueta–Avila was pretty frantic and was shaking and crying. Her shirt was ripped, and she had scratches on her chin and arm. Mr. Hernandez appeared calm.

After realizing that neither Mr. Hernandez nor Ms. Argueta–Avila spoke English, Officer Rubin called for a Spanish-speaking officer. Officer Jose Hernandez arrived within three minutes. Officer Hernandez testified that Ms. Argueta–Avila was crying hysterically and had a torn shirt and scratches on her chin and arm. Ms. Argueta–Avila was generally unwilling to say what had happened. Ms. Argueta–Avila did say, however, that she was very afraid of Mr. Hernandez. She also indicated that "every time he drinks he does this." Officer Hernandez understood the latter statement to mean that Mr. Hernandez became aggressive when he drank alcohol and that he had "put his hands on" Ms. Argueta–Avila in the past. Although his testimony on the point was equivocal, Officer Hernandez ultimately testified that Ms. Argueta–Avila said that Mr. Hernandez did not assault her. Officer Hernandez smelled alcohol on Mr. Hernandez's breath.

Based on this evidence, the trial court found Mr. Hernandez guilty. The trial court credited Ms. Argueta–Avila's testimony. Specifically, the trial court found that Mr. Hernandez grabbed Ms. Argueta–Avila's shirt and pushed her. The trial court accepted Ms. Argueta–Avila's explanation that, when she told the police that Mr. Hernandez did not assault her, she meant that he had not hit her. The trial court also explained that the testimony that Ms. Argueta–Avila felt angry did not undermine the conclusion that she was assaulted.

Turning to Mr. Hawthorne, the trial court found that he was an unbiased witness. The trial court credited Mr. Hawthorne's testimony that Ms. Argueta–Avila had appeared frightened and that Mr. Hawthorne saw Mr. Hernandez choking Ms. Argueta–Avila. The trial court also relied on Mr. Hawthorne's statements in the 911 call that Mr. Hernandez was choking Ms. Argueta–Avila. Finally, the trial court credited the testimony of both police officers as to Ms. Argueta–Avila's demeanor and injuries. After making these findings, the trial court concluded that "the Government met its elements in showing that the defendant with force or violence injured the complaining witness, and did so voluntarily, on purpose, and not by mistake."

II.

When assessing whether the evidence at trial sufficiently supports a conviction, we view the evidence in the light most favorable to the verdict and defer to the fact-finder's credibility determinations. Contreras v. United States, 121 A.3d 1271, 1276–77 (D.C.2015). The evidence is sufficient if any rational fact-finder could have found the elements of the crime beyond a reasonable doubt. Id. at 1277.

The evidence credited by the trial court sufficed to support Mr. Hernandez's assault conviction. Specifically, the trial court found that Mr. Hernandez purposely pushed and choked Ms. Argueta–Avila. Such conduct constitutes assault. See, e.g., Dunn v. United States, 976 A.2d 217, 220–21 (D.C.2009) (evidence that defendant intentionally pushed victim sufficed to support assault conviction); McCoy v. United States, 781 A.2d 765, 768–69 (D.C.2001) (evidence that defendant choked victim, threatened victim with knife, and pushed victim down stairs supported conviction for assault with dangerous weapon). We are not persuaded by Mr. Hernandez's contrary arguments.

First, Ms. Argueta–Avila's reluctance to tell the police what happened does not undermine the sufficiency of the evidence. Cf., e.g., Jones v. United States, 127 A.3d 1173, 1195 (D.C.2015) ("[A] witness may be inaccurate, contradictory and even untruthful in some respects and yet be entirely credible in the essentials of his testimony.") (internal quotation marks omitted); Payne v. United States, 516 A.2d 484, 493 (D.C.1986) (per curiam) ("[C]onflicts created by a witness'[s] recantation, like other internal inconsistencies within a witness'[s] testimony, are factual questions for the jury to resolve."; jury could have found that witness recanted at trial out of fear).

Second, the trial court reasonably accepted Ms. Argueta–Avila's explanation that, when she told the police that Mr. Hernandez did not assault her, she meant that he had not hit her. Ms. Argueta–Avila's testimony thus did not contradict the conclusion that Mr. Hernandez assaulted Ms. Argueta–Avila.

Third, contrary to Mr. Hernandez's assertions that the trial court did not make an adequate finding as to intent, the trial court explicitly found that Mr. Hernandez pushed and choked Ms. Argueta–Avila and injured her voluntarily, on purpose, and not by mistake.

Fourth, evidence that Ms. Argueta–Avila was angry during and after the incident does not negate the evidence that Mr. Hernandez assaulted her. Cf., e.g., In re D.R., 96 A.3d 45, 47 n. 2 (D.C.2014) (establishing offense of assault does not require proof that victim felt fear). In any event, there was evidence that Ms. Argueta–Avila appeared frightened and said she was afraid of Mr. Hernandez.

Finally, Mr. Hernandez challenges the trial court's decision to credit Mr. Hawthorne's testimony, arguing that Mr. Hawthorne was impeached with prior convictions and that his testimony with respect to the choking was not corroborated by the testimony of other witnesses. "This court will not reverse a trial court's factual findings after a bench trial unless those findings are ‘plainly wrong or without evidence to support them.’ " Contreras, 121 A.3d at 1277 (quoting D.C.Code § 17–305(a) (2012 Repl.)) (brackets omitted); see also, e.g., Robinson v. United States, 928 A.2d 717, 727 (D.C.2007) ("[T]his court is not in a position to substitute its judgment for that of the fact-finder when it comes to assessing the credibility of a witness. That determination is for the fact-finder to make and is made in large part[ ] based on factors that can only be ascertained after observing the witness testify."). We see no basis to look behind the trial court's credibility determinations in this case.

III.

Mr. Hernandez also argues that the trial court failed to conduct an adequate inquiry into whether the United States was required to disclose to...