Hernandez v. United States

Decision Date29 December 2022
Docket Number15-CM-130
Citation286 A.3d 990
Parties Winston PEREZ HERNANDEZ, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

286 A.3d 990

Winston PEREZ HERNANDEZ, Appellant,

No. 15-CM-130

District of Columbia Court of Appeals.

Argued December 17, 2019
December 29, 2022

Alice Wang, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, Elizabeth Trosman, and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Rosalyn Calbert Groce, Deputy Solicitor General, and John D. Martorana, Assistant Attorney General, filed a brief for amicus curiae, the District of Columbia, in support of appellee.

Before Blackburne-rigsby, Chief Judge, Beckwith, Easterly, McLeese, Howard, and Shanker, Associate Judges,* and Fisher, Senior Judge.**

Opinion by Senior Judge Fisher.

Opinion by Chief Judge Blackburne-Rigsby, with whom Associate Judge Shanker joins, concurring in part, at page 1006–07.

Opinion by Associate Judge Easterly, concurring dubitante, at page 1007.

Fisher, Senior Judge:

286 A.3d 993

Over the last century, this court and its predecessors have tried many times, with mixed success, to define the common law crime of assault; some of the things we have said are difficult to reconcile. This case, which began with allegations that appellant had committed an assault with a beer bottle but morphed into something quite different, presents a fresh challenge. We must decide whether an offensive touching, performed with minimal force and not of a sexual nature, may be a criminal assault. We conclude that it may.

I. Statement of Facts

A. The Altercation on July 8, 2014

On July 8, 2014, a group of men — including appellant — gathered at the apartment of Alimamy Tarawallie to watch a World Cup soccer game. After the game, the group moved outside; someone went to a nearby store and returned with a large bottle of Guinness. While drinking beer from the bottle, appellant approached Mr. Tarawallie and began to speak with him. Mr. Tarawallie testified that appellant "used to be my friend, in fact, I think [of] him as my little brother."

Mr. Tarawallie explained that appellant "came and the bottle was spilling, you know, from the bag they put it [in]. Then he came, he was talking to me and touching me at the same time. I told Mr. Winston [referring to appellant by his first name] not to touch me while he's talking to me. You know because it's almost — by touching me the smell will stay on my attires." Appellant seemed to be offended and suggested that the request was racially motivated. Mr. Tarawallie replied that "it's nothing about color. You're black, me black. I told you to stop touching me if you talk. Just talk and I'll listen to you." Mr. Tarawallie also appealed to some of the other men: "I told them to tell Mr. Winston to stop touching me when he's talking."

In the meantime, appellant stepped away and spoke to his friend Oscar in Spanish, a language Mr. Tarawallie did not understand. Appellant then walked back and demanded to know, "If I touch you, what you going to do [to] me?" Mr. Tarawallie answered, "if you touch me, I'll push you."1 He testified (and demonstrated) that, in response, appellant placed "his finger [or fingers] on my face, ... right in my eyes, like this." Mr. Tarawallie reacted by pushing appellant, who then took the Guinness bottle he was holding and "smashed it ... on [Mr. Tarawallie's] head." Both men ended up in a tussle on the ground, during which appellant banged Mr. Tarawallie's head against the sidewalk. Appellant then "ran away" and Mr. Tarawallie called 911. Officer William

286 A.3d 994

Schoppmann and Detective Ryan Savoy responded to the call.

The witnesses who remained on the scene were not cooperative. Officer Schoppmann testified about the location of the beer bottle (found on the grass, some distance away from where they were interviewing Mr. Tarawallie) and about Mr. Tarawallie's visible injuries. Detective Savoy obtained a warrant to arrest appellant, who turned himself in and agreed to talk about the fight. Appellant claimed that he had acted in self-defense. He said "that he had touched [Mr. Tarawallie] on the arm, and [that Mr. Tarawallie] had attacked him." Appellant also said that Mr. Tarawallie "had made some kind of mention that he was going to assault [appellant] if he touched him again." Appellant "said that he touched [Mr. Tarawallie] on the arm again, and that's when [Mr. Tarawallie] attacked him."

During the bench trial, Mr. Serrano Baez — who attended the gathering and saw part of the altercation — testified that Mr. Tarawallie was upset by the outcome of the soccer game and that, after they moved outside, appellant repeatedly mentioned the loss, telling Mr. Tarawallie that he should not feel bad because he had not lost any money. Mr. Baez heard Mr. Tarawallie warn appellant "don't touch my arm or you're going to see what is going to happen to you." Mr. Baez explained that appellant did touch Mr. Tarawallie again, at which point Mr. Tarawallie "reacted violently and ... punched" appellant. Mr. Baez testified that the men ended up in a scuffle on the ground during which Mr. Tarawallie's head hit the pavement. In Mr. Baez's estimation, Mr. Tarawallie "was the one who attacked first." Appellant did not testify.

B. The Trial Court's Factual Findings

In his closing argument, defense counsel attacked Mr. Tarawallie's credibility, asserting that he "made up" the blow with the beer bottle in an effort to explain how he sustained injuries. Counsel offered a different explanation. "Mr. Perez Hernandez was being playful, was being jocular and kind of pushing." When appellant touched him again, Mr. Tarawallie "escalat[ed] it into an actual fisticuffs fight." But that was an overreaction. "A touch, itself, did not warrant that, ... it was not an offensive touch in and of itself based on their prior history together as friends ...." Perhaps appellant exercised bad judgment. "Was it an assault? No."

During rebuttal, the prosecutor responded that "[t]he touch by Mr. Perez Hernandez is not why we are here. That isn't assault, it's an unwanted touching." The government urged the court to find that appellant assaulted Mr. Tarawallie when he struck him with a beer bottle. After questioning from Judge Wynn, however, the government asserted that the touching of Mr. Tarawallie (at least the second touching) was an assault. "[A]n unwanted touching is standard textbook assault." Following further discussion, the court said it would look at the cases more carefully and deferred its findings for approximately two weeks. In the interim, both parties submitted memoranda addressing the elements of an "offensive touching" assault.

Ultimately, Judge Wynn was not persuaded "beyond a reasonable doubt that the defendant hit the complaining witness with a bottle" or that "the defendant poked the complaining witness in the eyes." The court did find, however, that appellant "poked" Mr. Tarawallie "somewhere in his body" despite being admonished not to do so. The court also found "that the parties were at least acquaintances and maybe could even be described as friends."

286 A.3d 995

The trial court reasoned that "a poke" would not usually result in an assault charge. "I think if we had one poke that it would not meet the requirements of something that would be objectively offensive to a person of reasonable sensibility ...." However, a second poke following a warning was different. "[N]ot only does that indicate that this person objectively [sic] finds the poking offensive, but also that objectively a person reasonably would find that intentional contact after the warning to be objectionable and offensive." Regarding the element of intent, the trial judge explained, "I think that there has to be an intent to do the touching, but there does not have to be an intent to be offensive. It's simply a question of whether the person who is being touched, whether that person is reasonable in finding the touching to be offensive." The court then found appellant guilty of simple assault in violation of D.C. Code § 22-404(a)(1). It found him not guilty of attempted possession of a prohibited weapon (a glass bottle). See D.C. Code §§ 22-4514(b), -1803.

C. The Appeal

On appeal, the division majority concluded that the evidence was legally insufficient to sustain appellant's conviction for simple assault under an attempted battery theory. The government had proven no more than an unwanted touching, but "there must be proof that the defendant acted with ‘force or violence.’ " Perez Hernandez v. United States , 207 A.3d 594, 601 (D.C. 2019). "A touch is inherently neither ‘forceful’ nor ‘violent’ within the common understanding (or even legal understanding) of those terms." Id. at 600 (footnote omitted). Nor did appellant's conduct fit within the category of cases treating a nonviolent sexual touching as an assault. Id. at...

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