Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-FS-1320
IN RE D.R., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(DEL-2009-11)
(Hon. Patricia A. Broderick, Trial Judge)
(Argued September 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.
2
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 (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
1
D.R. raised this claim on direct appeal because relief is not available under
D.C. Code § 23-110 unless the movant is “in custody under sentence of the
Superior Court.” D.C. Code § 23-110 (a) (2011 Supp.). Although probation
constitutes custody for purposes of the statute, see Snell v. United States, 754 A.2d
289, 291-92 (D.C. 2000), D.R.‟s three-month probation expired before his new
lawyer was able to pursue his claim of ineffective assistance of counsel.
3
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
2
D.R. also challenges the sufficiency of the evidence supporting the counts
of ADW (D.C. Code § 22-402 (2001)) and felony threats (D.C. Code § 22-1810
(2001)). Specifically, he claims that the woman he threatened did not exhibit fear.
We have no difficulty rejecting this argument. See Parks v. United States, 627
A.2d 1, 5 (D.C. 1993) (noting that an assault conviction does not require “factual
proof that the victim actually experience[d] apprehension or fear”); Postell v.
United States, 282 A.2d 551, 553 (D.C. 1971) (holding that it does not matter
“whether or to what degree the threat engenders fear or intimidation in the intended
victim”). When an ADW charge is based on an intent-to-frighten assault, the
government must show that the defendant committed some threatening act that
(continued…)
4
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
(…continued)
would “lead a reasonable person to believe he was in imminent danger of bodily
harm.” Joiner-Die v. United States, 899 A.2d 762, 765 (D.C. 2006). Similarly, to
prove the offense of threats, the government must show that the defendant uttered
words “of such a nature as to convey fear of bodily harm or injury to the ordinary
hearer.” Carrell v. United States, 80 A.3d 163, 171 (D.C. 2013) (quoting
Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982)). Here, the
government produced evidence showing that, during the midst of a heated
argument, D.R. brandished a large knife and angrily threatened to eviscerate his
neighbor with it. This evidence is certainly sufficient to support a finding that
D.R.‟s statements would have put an “ordinary hearer” or “reasonable person” in
apprehension of bodily harm. Appellant does not question that the knife qualifies
as a dangerous weapon.
3
The 1932 statute replaced a provision first enacted in 1892, which
prohibited the carrying of a concealed dangerous or deadly weapon “about” the
person. See Gamble v. United States, 30 A.3d 161, 168 (D.C. 2011) (tracing
evolution of statute); United States v. Pritchett, 470 F.2d 455, 456-57 (D.C. Cir.
1972) (same).
5
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
6
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
4
See, e.g., Coleman v. United States, 948 A.2d 534, 540 (D.C. 2008) (rifle-
machine gun); Ebron v. United States, 838 A.2d 1140, 1145 (D.C. 2003) (AK-47);
Harper v. United States, 582 A.2d 485, 490 (D.C. 1990) (knife with a blade “ten to
twelve inches in length”); Fersner v. United States, 482 A.2d 387, 389 (D.C. 1984)
(hatchet); Mackey v. United States, 451 A.2d 887, 888 & n.1 (D.C. 1982) (twelve-
inch “machete-type knife”); Coleman v. United States, 379 A.2d 710, 711 (D.C.
1977) (shotgun).
7
(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
“capable of 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 (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 (quoting 18 U.S.C. § 1715 (1970)). The Court rejected
the argument that “the „person‟ referred to in the statute to measure capability of
5
See Criminal Jury Instructions for the District of Columbia, Nos. 65
(1st ed. 1966), 4.81 (2d ed. 1972), 4.81 (3d ed. 1978), 4.70 (4th ed. 1993),
4.70 (4th ed. rev. 2008), and 6.500 (5th ed. 2009).
8
concealment” was the individual defendant in each case. Id. at 93. 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
(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.
9
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
10
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, for
purposes of CDW, a weapon must be capable of concealment at the time it is
carried. All told, determining a weapon‟s concealability in relation to an actual
person is much more natural here than it would have been in Powell.
An even more important consideration is textual in nature. The Powell
statute covers firearms “capable of being concealed on the person,” see id. at 318
(emphasis added), whereas our statute provides that no person shall carry a
dangerous weapon capable of being concealed “on or about their person.”
D.C. Code § 22-4504 (a) (2011 Supp.) (emphasis added). In place of the term
“their person,” previous versions of our statute have employed the more natural
words “his person” or “his or her person.” See Act of Nov. 4, 1943, Pub. L.
No. 78-182, 57 Stat. 586, 586; D.C. Law 10-119 § 15 (c) (May 21, 1994). But the
meaning is the same. The possessive pronouns “his,” “her,” and “their” all signal
attention to the particular defendant rather than a hypothetical average person.
In fact, the 1943 version of the statute—which stated that no person shall
carry a weapon capable of being concealed “on or about his person”—also used the
11
word “his” in an integrally related clause, creating an exception for anyone
carrying such a weapon “in his dwelling house.” Act of Nov. 4, 1943, Pub. L.
No. 78-182, 57 Stat. 586, 586. The phrase “his dwelling house” of course refers to
the dwelling house of an actual person. Thus, to hold that the term “his person”
refers to a hypothetical figure, we would need to conclude that Congress intended
for the word “his” to have two different meanings within the same statutory
sentence. We think such a reading would fail to give the “legislative words their
natural meaning.” Grayson, 15 A.3d at 237.
Moreover, what legislative history we have shows that in 1943, when the
relevant language was first adopted, Congress was responding to a concrete
problem. The Attorney General of the United States had expressed concern that
individuals were escaping conviction under the concealed carry statute by simply
exhibiting their weapons whenever law enforcement officers approached. See H.R.
Rep. No. 78-762, at 1 (1943); see also S. Rep. No. 78-408, at 1 (1943). In those
circumstances, the weapon would actually have been concealed moments before
the police arrived. Congress responded by prohibiting the carrying of such
weapons “either openly or concealed,” provided the weapon was capable of being
concealed “on or about” the person carrying it. Act of Nov. 4, 1943, Pub. L.
No. 78-182, 57 Stat. 586, 586. This response, in our view, targets weapons that are
12
capable of being concealed on actual persons, under particularized circumstances,
and at the time the weapons are carried.
For the foregoing reasons, we conclude that the context, purpose, and plain
language of § 22-4504 do not favor the type of construction that the Supreme
Court gave to the statute in Powell (focusing on “an average person garbed in a
manner to aid . . . concealment of the weapons”). 423 U.S. at 93. Rather, in
reading § 22-4504, we interpret the term “their person” as a reference to the
particular defendant‟s person. Thus, as an element of CDW, the government must
prove beyond a reasonable doubt that a defendant would have been capable of
actually concealing her weapon on or about her person while she was carrying the
weapon. Clearly, a person wearing trousers and a jacket will be able to conceal a
larger weapon than someone wearing shorts and a tee shirt. Consequently,
evidence regarding the clothing a defendant wore while carrying the weapon will
be relevant to the question of whether the weapon was concealable. That question
is an element of the offense that must be resolved by the finder of fact.
We emphasize that our holding today will have no effect on prosecutions for
carrying a pistol without a license (“CPWL”), an offense set forth in § 22-4504
alongside CDW. The statute treats pistols differently than other dangerous
13
weapons. To prove the offense of CPWL, the government need not produce any
evidence that a given pistol was capable of being concealed. See D.C. Code § 22-
4504 (a) (2012 Repl.). This is unsurprising, since the statutory definition of
“pistol” already imposes a limit on the size of the weapon. A “pistol” is “any
firearm originally designed to be fired by use of a single hand or with a barrel less
than 12 inches in length.” D.C. Code § 7-2501.01 (2012 Repl.) (cross-referenced
in D.C. Code § 22-4501 (6) (2012 Repl.)).
Additionally, we note that another criminal statute in the District of
Columbia already prohibits the possession of any “dangerous weapon” (“with
intent to use [it] unlawfully against another”) regardless of whether the weapon is
capable of being concealed. D.C. Code § 22-4514 (b) (2012 Repl.) (proscribing
possession of a prohibited weapon—PPW (b)). Indeed, in this appeal, D.R. has not
challenged the sufficiency of the evidence to prove him guilty of PPW (b).
Separately, § 22-4504 (a-1) provides, without any requirement of concealability,
that “no person shall carry within the District of Columbia a rifle or shotgun.” In
light of these statutes, we do not think our holding today will significantly increase
the ability of individuals to carry dangerous weapons—even large ones—in the
District of Columbia without facing criminal liability.
14
III. Applying the Statute
“In evaluating the sufficiency of the [government‟s] proof, we must view the
evidence in the light most favorable to sustaining the judgment.” Shewarega v.
Yegzaw, 947 A.2d 47, 52 (D.C. 2008). However, “evidence is insufficient, if, in
order to convict, the [finder of fact] is required to cross the bounds of permissible
inference and enter the forbidden territory of conjecture and speculation.” Curry v.
United States, 520 A.2d 255, 263 (D.C. 1987). In this case, the prosecutor paid
scant attention to proving that the knife D.R. wielded was capable of being
concealed on or about his person, and the court made no specific findings on that
question. The government acknowledged in its closing argument that to prove
CDW, it needed to establish that the knife was capable of being concealed.
However, in arguing that it had carried that burden, the government offered little
more than a broad invocation of the Supreme Court‟s decision in Powell.
Evidence presented during the trial established that the knife D.R. wielded
was between eighteen and twenty-four inches long, but we have not found any
testimony describing appellant‟s size or what he was wearing on the day in
question. We know from the record that the altercation took place in the early
evening of September 3, which, if anything, supports an inference that D.R. was
15
not wearing the type of heavy clothing that might have enabled him to conceal the
knife on his person. Further, the fact that he was only fourteen years of age
suggests that he was not yet fully grown. We therefore hold that D.R.‟s CDW
adjudication was not supported by sufficient evidence. The double jeopardy clause
bars a new trial of this offense. See Kelly, 639 A.2d at 88 (citing Burks, 437 U.S.
at 18).
IV. Conclusion
Appellant has not challenged the sufficiency of the evidence to prove him
guilty of possessing a prohibited weapon. We hold that there was sufficient
evidence to sustain the adjudications against D.R. on the counts of ADW and
felony threats. However, there was insufficient evidence to sustain the
adjudication for CDW. We therefore vacate the CDW adjudication and remand the
case for further proceedings consistent with this opinion.
It is so ordered.