In re D.R.

• Decision Date: 31 July 2014
• Docket Number: No. 11–FS–1320.,11–FS–1320.
• Citation: 96 A.3d 45
• Parties: In re D.R., Appellant.
• Court: D.C. Court of Appeals

96 A.3d 45

In re D.R., Appellant.

No. 11–FS–1320.

District of Columbia Court of Appeals.

Argued Sept. 18, 2013.

Decided July 31, 2014.

Cynthia Nordone, for appellant.

Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.

Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.

FISHER, Associate Judge:

Appellant D.R., a juvenile, was found to be involved in four criminal offenses related to his possession and brandishing of a large knife or machete. On appeal, he claims that he was denied the effective assistance of counsel and that there was insufficient evidence to support three of the adjudications against him.

Following oral argument, we remanded the record to the trial court for findings on the ineffective assistance claim.¹ After considering the trial record, Judge Broderick found that D.R.'s trial counsel was ineffective and informed us that she would be inclined to grant a new trial. See Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir.1952). We now remand the case (restoring jurisdiction to the Superior Court) so that the trial court may vacate D.R.'s adjudications and grant a new trial in accordance with its findings. In doing so, we pause to consider D.R.'s claims of evidentiary insufficiency, since principles of double jeopardy preclude the government from prosecuting D.R. a second time on any charge that was not supported by sufficient evidence in the first trial. See Kelly v. United States, 639 A.2d 86, 88 (D.C.1994) (citing Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). We conclude that D.R.'s adjudication for carrying a dangerous weapon was not supported by sufficient evidence.

I. The Factual and Statutory Background

In September 2011 fourteen-year-old D.R. was involved in a heated altercation between his family and their neighbors. According to evidence presented by the government, D.R. approached one of his neighbors, raised a large knife above his head, and angrily threatened to cut her insides out. In response, the neighbor lifted up her shirt (exposing her midriff) and told D.R. to “do what he's going to do.” The police never found the knife, but witnesses described it as a “sword” or “machete”—approximately eighteen to twenty-four inches in length with a wooden handle, a curved blade, and a pointed tip. Crediting this testimony, the trial judge determined that D.R. had been involved in four criminal offenses: assault with a dangerous weapon (“ADW”), carrying a dangerous weapon (“CDW”), possession of a prohibited weapon, and felony threats.

D.R.'s main claim of insufficiency relates to the CDW charge.² The statute defining that offense provides that “[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.” D.C.Code § 22–4504(a) (2011 Supp.). D.R. argues that the government did not prove that the knife he wielded was capable of being concealed on or about his person.

When Congress enacted the CDW statute in 1932, the law applied only to weapons that were actually concealed. Act of July 8, 1932, Pub.L. No. 72–275, § 4, 47 Stat. 650, 651.³ Congress amended the statute in 1943 to provide that no person shall carry “either openly or concealed on or about his person ... any deadly or dangerous weapon capable of being so concealed.” Act of Nov. 4, 1943, Pub.L. No. 78–182, 57 Stat. 586, 586. In 1994, to make the statute gender neutral, the Council of the District of Columbia replaced the phrase “his person” with “his or her person.” See D.C. Law 10–119 § 15(c) (May 21, 1994). Subsequently, the Council changed “his or her person” to “their person,” see D.C. Law 10–151 § 302 (Aug. 20, 1994), which is how the statute now reads.

This court has not yet had occasion to construe the statutory language referring to weapons “capable of being so concealed.” D.C.Code § 22–4504(a) (2011 Supp.). We have upheld CDW convictions in several cases involving large knives and other large weapons, but it does not appear that those defendants challenged their CDW convictions by claiming that the weapon at issue was too large to be “concealed on or about their person.” Id. For instance, in Gorbey v. United States, we upheld convictions for two counts of CDW where the defendant had walked down a public street with “a shotgun in his hand and a sword on his back.” 54 A.3d 668, 675, 699–700 (D.C.2012). Similarly, we have affirmed the CDW adjudication of a juvenile who struck a victim with an aluminum baseball bat. In re P.F., 954 A.2d 949, 950–51 (D.C.2008). A number of other CDW cases have likewise involved weapons of considerable size.⁴

It is not apparent to us why none of the defendants in these cases raised a claim like the one D.R. now advances. Perhaps a partial explanation may be found in the very name of the offense, “Carrying a Dangerous Weapon.” A weapon may certainly be classified as “dangerous” even if it is not capable of being concealed on or about a person. Thus, the legal scope of CDW is not as broad as its common name suggests. In any event, D.R.'s claim presents us with an open question of statutory interpretation.

II. Construing the Statute

The language of the statute makes it clear, and this court has acknowledged, that to convict a defendant of CDW, the government must prove “that the weapon is capable of being concealed.” Wright v. United States, 926 A.2d 1151, 1154 (D.C.2007). Moreover, every successive version of the standard jury instructions for CDW has referred to the government's burden of showing that the weapon carried was concealable.⁵ Unfortunately, none of these pattern jury instructions explains how a weapon's concealability is to be determined.

When § 22–4504 states that no person shall carry a dangerous weapon “capableof being ... concealed” “on or about their person,” who is the “person” referred to? Is it the actual defendant, or is it a hypothetical average-sized person? In answering these questions, our objective “is to ascertain and give effect to the legislative intent and to give legislative words their natural meaning.” Grayson v. AT & T Corp., 15 A.3d 219, 237 (D.C.2011) (en banc) (quoting Banks v. United States, 359 A.2d 8, 10 (D.C.1976)).

Here, as in the trial court, the government has relied on United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). In that case, the Supreme Court construed a federal law prohibiting the mailing of any firearm “capable of being concealed on the person.” Id. at 88, 91–94, 96 S.Ct. 316 (quoting 18 U.S.C. § 1715 (1970)). The Court rejected the argument that “the ‘person’ referred to in the statute to measure capability of concealment” was the individual defendant in each case. Id. at 93, 96 S.Ct. 316. Instead, attributing “the commonsense meaning” to Congress, the Court concluded that the statute referred to “an average person garbed in a manner to aid, rather than hinder, concealment of the weapons.” Id. Applying this construction, the Court held that “a properly instructed jury could have found [a] 22–inch sawed-off shotgun ... to have been a ‘(firearm) capable of being concealed on the person.’ ” Id. at 91, 96 S.Ct. 316 (quoting 18 U.S.C. § 1715).

Although the CDW statute and the statute construed in Powell are similar in some respects, there are important differences between the two. Most noticeably, the statutes operate in distinct contexts by proscribing different types of conduct (carrying weapons as opposed to mailing them). When a violation of the CDW statute is in progress, the weapon at issue is necessarily located “on or about [the offender's] person.” D.C.Code § 22–4504(a) (2011 Supp.). By contrast, when a violation of the Powell statute is in progress, there may not be any physical proximity whatsoever between the firearm at issue and a particular offender. In the absence of such proximity, it is natural for an analysis of concealability to focus on “an average person.” Powell, 423 U.S. at 93, 96 S.Ct. 316.

Indeed, if the Powell Court had not focused on “an average person,” it would have been left to question “whether the person referred to in the statute to measure capability of concealment was to be the person mailing the firearm, [or] the person receiving the firearm.” Id. at 93 (quoting United States v. Powell, 501 F.2d 1136, 1137 (9th Cir.1974)) (internal quotation marks omitted). And even if, hypothetically, one of those actual individuals could be identified as “the person referred to in the statute,” it would not be clear when “to measure capability of concealment” with respect to that person. Would it matter what the individual was wearing when the firearm was mailed? When it was received? When it was discovered? At any point while the firearm was in the mail stream? These difficult questions do not arise in an analysis focused on “an average person garbed in a manner to aid ... concealment of the weapons.”

Importantly, however, those difficult questions do not arise in the CDW context even when analysis of a weapon's concealability focuses on an actual defendant. Aside from a hypothetical figure, the only “person” that § 22–4504 can possibly be understood as referring to is the actual individual carrying a dangerous weapon. Moreover, the statute's main thrust and plain language dispel any doubt regarding when a weapon must be capable of concealment. The nub of the offense is carrying a weapon, an active form of conduct that delimits the scope of the crime's other elements. And the statutory phrase, “capable of being so concealed,” refers to weapons that individuals can actually “carry ... concealed on or about their person.” D.C.Code § 22–4504(a) (emphasis added). Accordingly,...