In re J.S.

• Decision Date: 05 May 2011
• Docket Number: No. 08–FS–708.,08–FS–708.
• Citation: 19 A.3d 328
• Parties: In re J.S., Appellant.
• Court: D.C. Court of Appeals

19 A.3d 328

In re J.S., Appellant.

No. 08–FS–708.

District of Columbia Court of Appeals.

Argued March 24, 2011.Decided May 5, 2011.

Corinne Beckwith, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt were on the brief, for appellant.Todd S. Kim, Solicitor General, with whom Peter J. Nickles, Attorney General for the District of Columbia at the time, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.Before FISHER, Associate Judge, REID,^* Associate Judge, Retired, and FERREN, Senior Judge.FISHER, Associate Judge:

After a bench trial, the court found J.S. to be delinquent because he had committed the misdemeanor offenses of possessing a controlled substance, D.C.Code § 48–904.01(d); and assaulting, resisting, or interfering with a police officer (“APO”), D.C.Code § 22–405(b). His sole argument on appeal is that there was insufficient evidence to sustain the adjudication for APO. We affirm.

I. Background

On February 12, 2008, Officer Jeremy Bank was advised by another officer that the primary suspect in an armed robbery that occurred the night before, a youth nicknamed “L.B.,” had been seen in the 2500 block of Elvans Road, S.E. Officer Bank recognized the nickname as belonging to a fourteen-year-old boy, later identified as J.S., whom he had previously seen hanging out with members of a gang called the Wellington Park Crew.

Officer Bank and his partner, Officer Felix Lina, drove to Elvans Road to look for J.S. so that they could obtain his real name and pass that information along to the officers investigating the armed robbery. At 5:20 p.m., Officer Bank spotted J.S. standing in front of 2534 Elvans Road, S.E., but when Officer Lina got out of the patrol car to approach him, J.S. “took off running.” Both officers pursued and shouted at J.S. to stop. J.S. ignored their commands and ran into a wooded area where there was a shortcut that led to Pomeroy Road, S.E., but he slipped and fell face-down on the ground.

Within “three or four seconds” police caught up with J.S. and ordered him not to resist and to put his hands behind his back. Each officer grabbed one of appellant's arms to pull them behind his back using standard hand control techniques, Officer Bank on appellant's left side and Officer Lina on appellant's right side. Officer Bank testified that J.S. “was struggling to resist us holding his arms” and “[h]is body was moving back and forth....” J.S. “broke free” from his grip twice by “swinging his arm forward,” making it difficult for the officers to handcuff him. Officer Lina affirmed that J.S. was “trying to break free” and “was hiding his hands and moving away.” But J.S. did not kick or swing at the police, and he was lying on his stomach as they handcuffed him.

Special Police Officer Eugene Dunmore, who regularly provided security for a nearby apartment complex, witnessed these events and concurred with the officers' testimony. Having learned that J.S. was a suspect in the armed robbery committed the night before, Officer Dunmore notified police of J.S.'s whereabouts earlier that day. Officer Dunmore saw that Officers Bank and Lina “had one handcuff on [J.S.]” and were “trying to put the other handcuff on him,” but that J.S. was “still fighting them” and moving his arms “back and forth” while “rolling his body from side to side.” After running to assist Officers Bank and Lina, Officer Dunmore took out a can of mace and threatened to spray J.S. in the face unless he stopped resisting arrest; only then did J.S. “stop[ ]” and “let them handcuff him.”

After the struggle, which lasted between ten and fifteen seconds, police frisked J.S. for weapons. During the pat-down, a piece of paper and a small Ziploc bag fell out of one of J.S.'s pockets. The contents of the bag field-tested positive for crack cocaine. Appellant does not challenge the adjudication of delinquency for possessing that cocaine.

J.S. admitted that he ran away from police “[b]ecause I had crack in my pocket,” but testified that when he slipped and fell he “just lay still and didn't move.” He acknowledged that he pulled his arm away after police brought his arms behind his back to handcuff him, but claimed that he did so because his arm was hurting, and that when the police told him to stop resisting he replied, “I'm not resisting, you're hurting my arm.” After appellant pulled his arm away, Officer Lina deliberately put a knee onto his right wrist, and this action broke his wrist. J.S. explained that he stopped moving when Officer Dunmore threatened him “[b]ecause I didn't want to get sprayed with mace.”

In closing argument, appellant's counsel summarized the defense theory of the case: “We're not saying the officers intended to hurt him. We're not saying they used excessive force. What we're saying is, is that J.[S.]'s actions were not voluntary, they were not on purpose, they were not an act of resistance, they were a reaction to the pain.”

The trial court credited J.S.'s testimony that he felt pain as the officers tried to handcuff him and that police broke his right wrist when an officer later used a knee to hold down his right arm. But, it found that “[e]ven though J.[S.] felt pain, the officers were using reasonable force under the circumstances,” and that “[a]lthough he was feeling pain, [J.S. was legally required] to do what he ended up doing ... go limp....” The parties agree that the APO offense was based on appellant's conduct before his wrist was broken, because appellant “was clear in testifying that he pulled his arm away in pain before the officer put his knee into J.S.'s wrist.” Though the court believed that J.S. was “testifying completely truthfully to the best of his recollection,” it concluded that “his very testimony fits right within the offense of assault on a police officer.” The court explained:

The argument that's offered by J.[S.] through counsel is that because he felt pain, he didn't act voluntarily. Because he felt pain, he didn't resist. He did resist. I think his argument is, I resisted because I was in so much pain. But the evidence established beyond a reasonable doubt that J.[S.] had the ability, if he was motivated enough, to cooperate. When the special police officer came with his mace, then J.[S.] was motivated enough to cooperate.... That's why I'm finding guilt beyond a reasonable doubt, because the evidence establishes beyond a reasonable doubt that given sufficient motivation, he could cooperate and he did cooperate.

Two weeks later, before the trial court sentenced J.S. to six months of probation, it observed that “[t]he assault on the police officer, I believe, was very much a technical offense. It was not a situation that often comes before the Court when a young person is disrespectful to the police, defiant toward the police and assaultive in a physical sense toward the police.” The court explained, “I want the disposition to reflect the fact that that APO, in my own mind, was a technical offense.”

II. Analysis

“In a sufficiency challenge we view the evidence in the light most favorable to the government, draw all reasonable inferences in the government's favor, and defer to the factfinder's credibility determinations.” Dunn v. United States, 976 A.2d 217, 221 (D.C.2009) (citation omitted). “[A]n adjudication of delinquency will not be reversed as long as there is evidence which reasonably permits a finding of guilt.” In re A.H.B., 491 A.2d 490, 496 (D.C.1985) (citation and internal quotation marks omitted).

Generally, to prove APO the government must show “the elements of simple assault ... plus the additional element that the defendant knew or should have known the victim was a police officer.” Petway v. United States, 420 A.2d 1211, 1213 (D.C.1980) (citation and internal quotation marks omitted); see D.C.Code § 22–405(b) (2010 Supp.).¹ However, the APO statute proscribes conduct beyond assault, and extends to the actions of anyone who “assaults, resists, opposes, impedes, intimidates, or interferes with” a police officer. D.C.Code § 22–405(b). “These acts are stated in the disjunctive, and a finding that a defendant committed any one of them would support a finding of guilt under the statute.” Johnson v. United States, 298 A.2d 516, 519 (D.C.1972). Nevertheless, despite its breadth, “the District's APO statute does not criminalize every refusal to submit to a police officer or every prevention or hindrance of an officer in his duties.” Coghill v. United States, 982 A.2d 802, 807 (D.C.2009) (citations omitted).

Here, appellant's adjudication was based on “resist[ing]” rather than “assault [ing]” police officers. We have held that in order to constitute such a violation, “a person's conduct must go beyond speech and mere passive resistance or avoidance, and cross the line into active confrontation, obstruction or other action directed against an officer's performance in the line of duty” by “actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him.” In re C.L.D., 739 A.2d 353, 357–58 (D.C.1999) (footnotes omitted). “The key is the active and oppositional nature of the conduct for the purpose of thwarting a police officer in his or her duties.” Id. at 357 (footnote omitted).

Appellant argues that pulling his arm away in pain while being handcuffed was not the type of “active and oppositional” conduct that violates the APO statute. Appellant contends that his movements did not “actively interpos[e] some obstacle” to handcuffing him, but were more akin to “noncompliance” or “mere passive resistance or avoidance.” See Howard v. United States, 966 A.2d 854, 856 (D.C.2009) (defendant's failure to comply with officer's order to remove hands from pockets does not fit “ ‘active and oppositional’ concept of interference”); C.L.D., 739 A.2d at 357–58 (ignoring officer's command not to leave, using profanity, and walking away did not “cross the line” into active...