Williamson v. United States, 79-1177.

• Decision Date: 11 May 1982
• Docket Number: No. 79-1177.,79-1177.
• Citation: 445 A.2d 975
• Parties: Tyrone T. WILLIAMSON, a/k/a Tyrone T. Williams, William B. Brown, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

445 A.2d 975

Tyrone T. WILLIAMSON, a/k/a Tyrone T. Williams, William B. Brown, Appellant, v. UNITED STATES, Appellee.

No. 79-1177.

District of Columbia Court of Appeals.

Argued January 28, 1981.

Decided May 11, 1982.

COPYRIGHT MATERIAL OMITTED

Ellen Sue Shapiro, Washington, D. C., appointed by the court, for appellant. Charles Abernathy, Washington, D. C., and D. Stephenson Schwinn, Student Counsel, were on the brief.

Ronald Dixon, Asst. U.S. Atty. with whom Charles F. C. Ruff, U.S. Atty. at the time the case was argued, John A. Terry, John R. Fisher, and William J. O'Malley, Jr., Asst. U.S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN and NEBEKER, Associate Judges, and GALLAGHER, Associate Judge, Retired.^*

GALLAGHER, Associate Judge, Retired:

In this case, the government filed a multicount indictment charging appellant with one count of kidnapping (D.C.Code 1973, § 22-2101); four counts of rape (id., § 22-2801); four counts of sodomy (Id., § 22-3502); and one count of assault with a dangerous weapon (id., § 22-502). On motion by appellant's counsel at the close of the government's case, the court acquitted appellant on one count of rape and one count of sodomy. The case then went to the jury on the remaining eight counts. The jury returned verdicts of not guilty on the counts charging kidnapping, rape, and sodomy, and a verdict of guilty on the count charging assault with a dangerous weapon.

Appellant raises three basic issues on appeal. Appellant's first and primary contention is that the government failed to introduce sufficient evidence to support a conviction for assault with a dangerous weapon. Appellant's second argument is that the prosecutor substantially prejudiced appellant by eliciting complainant's testimony that she feared appellant had a gun and by improperly exploiting this testimony in his closing argument. He asserts that her testimony relating to the gun was irrelevant to the crime charged in the indictment — assault with a dangerous weapon (umbrella with a copper pipe attached)¹ — and was a likely cause of prejudicial jury confusion during their deliberations on whether the umbrella with the copper pipe attached was a "dangerous weapon." Finally, appellant argues that the trial judge abused his discretion and prejudiced appellant by admitting evidence of appellant's alleged flight from this jurisdiction prior to trial.

We conclude the evidence is sufficient to support a conviction for assault with a dangerous weapon. Finding no other reversible error, we affirm appellant's conviction.

Appellant's first argument is that the government failed to introduce sufficient evidence to support a conviction for assault with a dangerous weapon. Specifically, he asserts that the government failed to introduce any direct evidence that the weapon in this case — an umbrella with a copper pipe attached — was a "dangerous weapon" within the meaning of § 22-502 of the District of Columbia Code. In connection with the sufficiency of the evidence argument, appellant also urges this court to draw distinctions between assaults with weapons that are dangerous "per se", such as pistols and daggers, and assaults with other objects not designed to be dangerous weapons, but which can be used as such. Although both simple assault and assault with a dangerous weapon have been denominated as general intent crimes, appellant urges that where the weapon is not dangerous "per se," this court should require the government to prove a specific intent to cause physical injury to the victim, or an attempted battery. In the alternative, he urges this court to require the trial court sua sponte to instruct the jury on the lesser included offenses of simple assault if the weapon used in the assault is not a dangerous weapon "per se."

The court has not previously drawn distinctions between weapons that are dangerous "per se" and other dangerous weapons. We decline to draw such distinctions in this case. An examination of the evidence and of the precedents in this jurisdiction establishing the elements of assault and the kinds of objects that may be deemed "dangerous weapons" under § 22-502 of the D.C.Code, requires us to reject appellant's sufficiency of the evidence argument.

For the government to prove assault with a dangerous weapon, it must prove the elements of simple assault plus the crucial fourth element — that the defendant committed an assault "with a dangerous weapon." To sustain a conviction, the government must prove each of these elements beyond a reasonable doubt. See Sousa v. United States, D.C.App., 400 A.2d 1036, 1044, cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979).

The simple assault provision of the District of Columbia Code (§ 22-504) applies to whomever "unlawfully assaults, or threatens another in a menacing manner." In an early case, the conduct prohibited by this section was described as:

[An] attempt with force or violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person. [Guarro v. United States, 99 U.S.App.D.C. 97, 99, 237 F.2d 578, 580 (1956), quoting Patterson v. Pillans, 43 App.D.C. 505, 506-07 (1915).]

Later cases have construed § 22-504 and Guarro v. United States, supra, and have established that, despite historical distinctions between the criminal and the tort concepts of assault, criminal assault in the District of Columbia encompasses such conduct as could induce in the victim a wellfounded apprehension of peril. See Anthony v. United States, D.C.App., 361 A.2d 202, 204-05 (1976). See generally W. LaFave & A. Scott, Criminal Law § 82, at 611 (1972); R. Perkins, Criminal Law 116-22 (2d ed. 1969). Under this expanded concept of common law criminal assault, the focus is not on the defendant's actual ability or specific intent to inflict the threatened harm, but rather the focus is on the defendant's apparent ability to accomplish the threatened injury. See Sousa v. United States, supra at 1044.

Thus, there are three essential elements which constitute the criminal offense of assault under § 22-504 and which are necessary elements of assault with a dangerous weapon under § 22-502. First, there must be an act on the part of the defendant; mere words do not constitute an assault. See In Re D.W.J., D.C.App., 293 A.2d 268, 269 (1972). The act does not have to result in injury, McGill v. United States, 106 U.S.App.D.C. 136, 138, 270 F.2d 329, 331 (1959), cert. denied, 362 U.S. 905, 80 S.Ct. 615, 4 L.Ed.2d 555 (1960); it can be either an actual attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure, on the part of the defendant. See Sousa v. United States, supra; Parker v. United States, 123 U.S.App.D.C. 343, 346, 359 F.2d 1009, 1012 (1966).² Secondly, at the time the defendant commits the act, the defendant must have the apparent present ability to injure the victim. See Anthony v. United States, supra.³ Finally, at the time the act is committed, the defendant must have the intent to perform the acts which constitute the assault. See Sousa v. United States, supra. See also Pino v. United States, 125 U.S.App. D.C. 225, 226 n. 1, 370 F.2d 247, 248 n. 1 (1966), cert. denied, 387 U.S. 922, 87 S.Ct. 2038, 18 L.Ed.2d 977 (1967).

To prove an assault with a dangerous weapon, the government must prove each of the elements of assault plus a fourth, crucial element — that the assault was committed with a dangerous weapon. See Sousa v. United States, supra. Assault with a dangerous weapon carries with it more stringent penalties than the simple assault statute, and these penalties are imposed as "a practical recognition of the additional risks posed by use of the weapon." Parker v. United States, supra, 123 U.S. App.D.C. at 346, 359 F.2d at 1012 (footnote omitted). The "gist of the crime" of assault with a dangerous weapon, then, "is found in the character of the weapon with which the assault is made." Id. (emphasis in original) ((quoting Goswick v. State, 143 So.2d 817, 820 (Fla.1962)). Cf. Scott v. United States, D.C.App., 243 A.2d 54, 56 (1968) (Under § 22-3204, prohibiting the carrying of concealed weapons, a "dangerous weapon" has been defined as one "likely to produce death or great bodily injury by the use made of it." Footnote and citations omitted; emphasis in original.)

Some weapons, under appropriate circumstances, are so clearly dangerous that it is prudent for the court to declare them to be such, as a matter of law. Included in this class are rifles, pistols, swords, and daggers, when used in the manner that they were designed to be used and within striking distance of the victim. Whether an object or material which is not specifically designed as a dangerous weapon is a "dangerous weapon" under an aggravated assault statute, however, is ordinarily a question of fact to be determined by all the circumstances surrounding the assault. See generally 2 C. Torcia, Wharton's Criminal Law § 200 (14th ed. 1979). The trier of fact must consider whether the object or material is known to be "likely to produce death or great bodily injury" in the manner it is used, intended to be used, or threatened to be used. The jurors' knowledge of the dangerous character of the weapon used generally can be based on "familiar and common experience." See Parker v. United States, supra, 123 U.S.App.D.C. at 347, 359 F.2d at 1013.

This court has set out the elements of assault with a dangerous weapon many times. We have held that the government need not prove an attempted battery or a specific intent to injure and that the question of whether an object is a dangerous weapon is for the jury to consider and decide. We have never drawn distinctions between dangerous weapons "per se"...