Cunningham v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CT-442

JAMES CUNNINGHAM, APPELLANT,

V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CDC-12189-14)

(Hon. Elizabeth C. Wingo, Trial Judge)
(Hon. Harold L. Cushenberry, Jr., Reviewing Judge)

(Submitted October 31, 2017 Decided August 20, 2020)

Christopher A. Zampogna was on the brief for appellant.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General at the time the brief was filed, Rosalyn Calbert Groce, Deputy
Solicitor General, and John D. Martorana, Assistant Attorney General, were on the
brief for appellee.

Before GLICKMAN, FISHER, and EASTERLY, Associate Judges.

FISHER, Associate Judge: Appellant James Cunningham asserts that the

Superior Court did not have subject matter jurisdiction over this prosecution for

making a false report to the Metropolitan Police Department (“MPD”) because he
 2

made the report while located in Maryland. Appellant also argues that the

evidence presented at trial was insufficient to support his conviction. We affirm.

I. Factual and Procedural Background

Appellant Cunningham was employed by the District of Columbia

Department of Youth and Rehabilitative Services (“DYRS”) and worked as a

youth development specialist at the New Beginnings detention facility. Although

located in Laurel, Maryland, New Beginnings houses juveniles from the District of

Columbia who have been committed to a secure facility.

While working at New Beginnings on June 8, 2014, appellant was left alone

with several youths after his partner went to use the bathroom. He noticed two

youths engaged in “horseplay” in a room that was off-limits. Appellant claims that

when he ordered them to leave the room, one of the youths became angry and

threatened to “glass [him] up,” or assault him. As appellant walked away and

radioed for help, the youth allegedly struck appellant from behind, with a closed

fist, on the right side of his head. Appellant claims the blow caused him to fall to

the floor and lose consciousness.
 3

Once other New Beginnings employees arrived, appellant told them what

had happened and asked for someone to call the police. A coworker then called

the MPD. Appellant was initially taken to Patient First and then later to Laurel

Regional Hospital where he sought treatment for a head injury.

Two MPD employees, Officer Bryant Tran and Detective Jeremy Bank,

traveled from the District of Columbia to Laurel, Maryland, in response to the call

from New Beginnings. Officer Tran spoke with appellant after he was taken to

Patient First. Appellant told Officer Tran he was struck by the youth in the face

and then fell to the floor unconscious.

Detective Bank interviewed appellant after appellant spoke with Officer

Tran. Appellant told Detective Bank that the youth had threatened to “glass [him]

up” and when appellant turned his back, the youth punched him in the head. 1 At

trial, both Officer Tran and Detective Bank testified that they stood close to

appellant while he made his report. However, neither of them saw any visible

injury or other indication that the youth had hit appellant in the head.

1
After talking with the officers, appellant prepared a DYRS Incident
Notification Form in which he recounted the version of events summarized above
for a third time. This form was admitted into evidence at trial.
 4

While at New Beginnings, Officer Tran and Detective Bank viewed

surveillance video of the area in which appellant claimed he was assaulted. The

video depicted events that were contrary to what appellant told the police. At trial,

the court viewed the video and noted that it showed one of the youths touch

appellant on the shoulder. Officer Tran and Detective Bank testified that appellant

then “threw” himself to the floor and lay there as if unconscious. The video never

showed the youth strike appellant on the head. Officer Tran and Detective Bank

returned to the District of Columbia after interviewing appellant, taking notes, and

viewing the surveillance video. The next day, Detective Bank interviewed the

youth who allegedly struck appellant.

The government later filed a criminal information charging appellant with

making a false or fictitious report to the MPD in violation of D.C. Code § 5-

117.05.2 Before trial began, appellant filed a motion to dismiss for lack of subject

matter jurisdiction. Because the allegedly false report and the assault itself both

2
The Information alleged that appellant “did willfully or knowingly make
or caused to be made, communicate or cause to be communicated, to the
Metropolitan Police force, or to an officer or member thereof, a false or fictitious
report of the commission of a criminal offense within the District of Columbia, or
of any other matter or occurrence of which the Metropolitan Police force is
required to receive reports, or in connection with which the Metropolitan Police
force is required to conduct an investigation, in violation of D.C. Code § 5-117.05
(2001).”
 5

occurred in Maryland, appellant argued that the Superior Court of the District of

Columbia lacked subject matter jurisdiction over his prosecution.

On the first day of trial, September 2, 2015, the trial court denied appellant’s

motion to dismiss. It determined that, regardless of where the facility was located,

the alleged assault by the youth would be a matter reported to, or investigated by,

the MPD. Magistrate Judge Wingo also noted that this case involved District of

Columbia employees as well as a District facility that houses District youth. The

effects of appellant’s actions were felt in the District of Columbia and the only

logical place to vindicate the District’s interests was in the District’s courts. Judge

Wingo determined that appellant’s case was analogous to Ford v. United States,

616 A.2d 1245 (D.C. 1992), a decision we will discuss later.

After the parties presented their evidence, which included testimony from

Officer Tran, Detective Bank, and appellant, the trial court found there was no

dispute that appellant made a report of assault to the MPD. The only questions

were whether the report was false and whether appellant made the report knowing

it was false. The trial court determined that an assault was not committed when the

youth touched appellant’s shoulder and, even if the touch was an assault, it was not

the same conduct appellant reported to the MPD. After “scour[ing] that video over
 6

and over,” the court found that there was “simply nothing in the video to suggest”

appellant was ever punched in the head by the youth. 3 The court found appellant

guilty of making a false police report and sentenced him to pay a three-hundred-

dollar fine.

On October 15, 2015, appellant filed a motion for review of the judgment,

arguing for a second time that the trial court lacked subject matter jurisdiction and

that the evidence was insufficient. Judge Cushenberry found that the Superior

Court had jurisdiction because appellant’s act of reporting the incident to the MPD

“demonstrate[d] that he knew at the time that MPD was clothed with the power to

investigate the incident.” Appellant’s false report also wasted District resources

and, “had the juvenile been charged with any crime resulting from this incident, he

would have been prosecuted in the District of Columbia, not Maryland.”

Judge Cushenberry also found that the evidence at trial was sufficient to

support appellant’s conviction “and the credibility judgments made by the trial

3
The trial court also noted that, while the video shows appellant holding the
left side of his face, he would not be holding the left side of his face had he been
hit on the right side as he reported. The medical records introduced by appellant
did not “provide any additional support for his claim” because they were “just
discharge instructions” and did not contain a “specific analysis by any medical
officer.”
 7

court must remain undisturbed because they are not clearly erroneous.” On April

18, 2016, he denied appellant’s motion for review. Appellant filed a timely appeal.

II. Subject Matter Jurisdiction

“Subject matter jurisdiction concerns the court’s authority to adjudicate the

type of controversy presented by the case under consideration.” In re J.W., 837

A.2d 40, 44 (D.C. 2003) (quoting In re R.L., 590 A.2d 123, 128 (D.C. 1991)).

“Like all questions of law, [this court] review[s] questions concerning the trial

court’s jurisdiction de novo.” Id.

Appellant’s jurisdictional attack rests on two arguments. First, he cites D.C.

Code § 11-923(b)(1) (2012 Repl.), which states that “the Superior Court has

jurisdiction of any criminal case under any law applicable exclusively to the

District of Columbia.” Appellant claims that this court has interpreted D.C. Code

§ 11-923(b)(1) to “limit [the Superior Court’s] jurisdiction to criminal violations

taking place within the boundaries of the District.”

Second, appellant claims that the Superior Court’s adjudication of his case

violated his constitutional rights. Article III, Section 2, Clause 3 of the United
 8

States Constitution provides that “[t]he Trial of all Crimes . . . shall be held in the

State where the said Crimes shall have been committed.” The Sixth Amendment

to the Constitution states that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a . . . trial, by an impartial jury of the State and district wherein

the crime shall have been committed.” Appellant contends that these provisions of

the Constitution were violated because he made the report to the MPD while in

Maryland but was tried in the District of Columbia.

As interpreted by this court, D.C. Code § 11-923(b)(1) is “consistent with

the requirements of [A]rticle III, [S]ection 2, [C]lause 3, and the [S]ixth

[A]mendment to the United States Constitution that criminal offenses be

prosecuted in the state or district in which they were committed.” United States v.

Baish, 460 A.2d 38, 40 (D.C. 1983). This court has determined that a crime is

committed and may be tried where any “integral component[]” of the offense

occurs. Id. at 40, 43. “The criminal act, the [motive] of the perpetrator, the cause,

and the effect, are but parts of the complete transaction. Wherever any part is

done, that becomes the locality of the crime as much as where it may have
 9

culminated.” 4 Adair v. United States, 391 A.2d 288, 290 (D.C. 1978) (quoting

State v. Ashe, 48 P.2d 213, 215 (Wash. 1935)). 5

We reject appellant’s arguments asserting a lack of subject matter

jurisdiction. In United States v. Baish, the government could not prove that the

defendant was located within the District when she placed threatening telephone

calls. 460 A.2d at 42–43. However, “both the utterance and the communication of

the threatening language [were] integral components of the offense of making

threats to do bodily harm.” Id. at 43. “Proof that either component occurred

within the District establishe[d] a basis for prosecution in the Superior Court.” Id.

This court determined that the Superior Court had jurisdiction because the threat

4
The actual quote from Adair, 391 A.2d at 290, contains the word “notice”
in place of the word “motive.” However, Adair is quoting Ashe, 48 P.2d at 215,
which uses the word “motive.” Ashe in turn quotes Commonwealth v. Jones, 82
S.W. 643, 645 (Ky. 1904), which also uses the word “motive.” Thus, it seems that
Adair misquoted Ashe and the correct word to be used in the sentence is “motive”
instead of “notice.”
5
The Supreme Court has applied the relevant constitutional provisions in
the same way, although they generally govern venue, not jurisdiction, in federal
prosecutions. See United States v. Cabrales, 524 U.S. 1, 6 (1998) (explaining that
“[t]he Constitution twice safeguards the defendant’s venue right”). In United
States v. Rodriguez-Moreno, the Supreme Court confirmed that, under these
constitutional provisions, an offense is “committed in all of the places that any part
of it took place, and venue for [the offense] [is] appropriate in any of them.” 526
U.S. 275, 282 (1999). A court must “initially identify the conduct constituting the
offense (the nature of the crime) and then discern the location of the commission of
the criminal acts.” Id. at 279.
 10

was communicated by telephone to someone located within the District of

Columbia. Id.

We further explored when a crime has been committed “within the District

of Columbia” in Ford v. United States. 616 A.2d at 1251. In Ford, the appellant

claimed that there was no jurisdiction to prosecute him for obstruction of justice

because his acts in bribing a witness, despite being carried out in order to influence

his pending trial in this jurisdiction, had occurred entirely in Maryland. Id. at

1251–52. We explained that the Superior Court nonetheless had jurisdiction over

the prosecution because “the ‘gravamen’ of the offense of obstruction of justice” is

the attempt to influence a particular investigation or proceeding, and “Ford’s

conduct was intended to interfere with the integrity of the judicial process in the

District of Columbia.” 616 A.2d at 1252–53. The crime was thus committed

within the District of Columbia under the meaning of D.C. Code § 11-923(b).

Ford also “agree[d] entirely with the opinion in” a “mirror image” case decided in

Maryland: Pennington v. State, 521 A.2d 1216 (Md. 1987). 6 Pennington reasoned

that “where causing a particular result constitutes an element of the offense” and

6
Pennington involved the same jurisdictional issue, but the jurisdictions
were reversed; it addressed an obstruction of justice charge that arose from a
stabbing that occurred within the District of Columbia, but was carried out “in
order to dissuade [the stabbing victim] from testifying in an assault case then
pending in Baltimore, Maryland.” Ford, 616 A.2d at 1252.
 11

when “the offense is against the State itself,” the court “view[s] the gravamen of

those crimes as being the injury to the State and . . . conclude[s] that jurisdiction

exists where the offended agency of the State is located.” 521 A.2d at 1219–22.

The logic of Ford and Pennington applies equally to this situation. To

violate D.C. Code § 5-117.05, the defendant must knowingly “make or cause to be

made . . . a false or fictitious report” to the MPD. As in those cases, “causing a

particular result constitutes an element of the offense.” Pennington, 521 A.2d at

1219. Appellant’s communication of the false report to the MPD was thus

committed in the District of Columbia because an integral component of the crime

— causing the false report “to be made to” MPD — took place in this jurisdiction.

See also Baish, 460 A.2d at 42–43 (because “communication of the threatening

language” is an “integral component[] of the offense of making threats to do bodily

harm,” “if a threat is heard by someone within the District of Columbia, the

speaker threatens with[in] the proscriptive ambit of § 22–507 — regardless of

where [the defendant] utter[ed] the threatening words”). Consistent with both D.C.

Code § 11-923(b)(1) and the United States Constitution, the Superior Court

properly exercised jurisdiction over appellant’s case. 7

7
We further note that, had an assault actually occurred, it could have been
prosecuted within the District of Columbia. See In re E.D.P., 573 A.2d 1307,
(continued…)
 12

Appellant relies on Strassheim v. Daily, 221 U.S. 280 (1911), an extradition

case, to argue that the District of Columbia did not have jurisdiction because he did

not “intend” to produce “detrimental effects” here. Strassheim states that “[a]cts

done outside a jurisdiction, but intended to produce and producing detrimental

effects within it, justify a state in punishing the cause of the harm as if he had been

present at the effect.” 221 U.S. at 285. While appellant uses this language to press

the idea that “intend[ing] to produce . . . detrimental effects” is a separate,

independent requirement for a court to assert subject matter jurisdiction, we think

that this argument assigns an unwarranted restrictive gloss to Strassheim’s words.

The quoted sentence in Strassheim is descriptive, rather than prescriptive, and

simply explains that the facts in that case were sufficient to convey jurisdiction.

We see no support for the proposition that our court, as well as the Supreme Court,

has failed to understand, for more than a century, that some form of

(…continued)
1308–09 (D.C. 1990) (juvenile prosecuted in Superior Court for assaulting security
officer at juvenile detention facility run by the District of Columbia but located in
Maryland; holding that District of Columbia “trial judge properly denied
appellant’s motion to dismiss [] petition for lack of jurisdiction”); In re A.S.W., 391
A.2d 1385, 1389–91 (D.C. 1978) (determining that the Superior Court has
jurisdiction over assaults on employees of District “juvenile facilities taking place
outside, as well as inside, the District”). It would be inconsistent to then require
that a false report of such an assault — a false report that was made to MPD
because of its jurisdiction over the reported crime — be prosecuted elsewhere.
 13

intent is necessary for there to be jurisdiction. 8 We conclude that, although an

underlying crime may involve a certain mental state — which naturally will be

discussed 9 when determining where the crime was actually committed — that does

not then mean that there is a second, independent requirement of “intent” to

produce “detrimental effects” in the District of Columbia that would serve as a

prerequisite to our courts asserting jurisdiction.

III. Sufficiency of the Evidence

When reviewing claims that the evidence at trial was insufficient, “the

relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

8
Though the federal cases discussing venue are not strictly analogous, they
support the same proposition, as they focus on the conduct constituting the crime,
rather than the defendant’s intentions. See, e.g., Rodriguez-Moreno, 526 U.S. at
279 (emphasizing that “[a]s we confirmed just last Term, the ‘locus delicti of the
charged offense must be determined from the nature of the crime alleged and the
location of the act or acts constituting it.’ In performing this inquiry, a court
must initially identify the conduct constituting the offense (the nature of the crime)
and then discern the location of the commission of the criminal acts.”) (quoting
Cabrales, 541 U.S. at 6–7) (emphasis added).
9
Our cases certainly mention the defendant’s “intent” at times. See, e.g.,
Ford, 616 A.2d at 1253 (noting that “Ford’s conduct was intended to interfere with
the integrity of the judicial process in the District of Columbia”). However, the
cases do so in the context of discussing what the integral components of particular
offenses are and determining where those elements occurred.
 14

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). The evidence need not compel a finding of guilt beyond a reasonable

doubt or negate every possible inference of innocence. See Collins v. United

States, 73 A.3d 974, 985 (D.C. 2013). “When two or more inferences can be

reasonably deduced from the facts, the reviewing court is without power to

substitute its deductions for those of the trial court.” Kruse v. District of

Columbia, 171 A.2d 752, 753 (D.C. 1961). After reviewing the trial record, we

conclude the evidence is sufficient to sustain appellant’s conviction.

Appellant first argues that the government did not prove that he “knowingly”

communicated false information to the MPD. See Barrie v. United States, 887

A.2d 29, 32 (D.C. 2005) (“D.C. Code § 5-117.05 makes it a crime to give false

information to the police knowing that information to be false.”) “Knowingly

means that [appellant] acted voluntarily and on purpose, not by mistake or

accident.” Jones v. United States, 813 A.2d 220, 224–25 (D.C. 2002). “[T]he law

permits a court to find [appellant’s] knowledge of the falsity based on reasonable

inferences from concrete facts in evidence.” Willgoos v. United States, 228 A.2d

635, 636 (D.C. 1967) (parentheses omitted).
 15

The government presented concrete facts from which a reasonable fact

finder could infer appellant knowingly made a false report to the MPD. First,

surveillance video contradicted appellant’s claim that the youth struck him with a

closed fist on the right side of the head. The video revealed that the youth touched

appellant on the shoulder and that appellant then fell to the floor and lay there as if

unconscious. Contrary to his report, appellant was never struck in the head. The

trial court also noted that the video showed appellant holding the left side of his

face, but he would not have been holding that side of his face had he been hit on

the right side as he reported.

Officer Tran and Detective Bank both testified that they stood close to

appellant while he made his report. However, neither observed any physical injury

or other indication that the youth hit appellant in the head. Though appellant

claims his medical records prove he suffered a head injury and corroborate his

testimony, the trial court noted that the records were not persuasive because they

were general discharge instructions that did not include a medical professional’s

analysis. 10 Thus, a reasonable fact finder could infer from the government’s

evidence that appellant knowingly filed a false police report.

10
Appellant also argues that Officer Tran’s handwritten notes, which read
“swelling,” corroborated appellant’s testimony that he was hit in the head.
(continued…)
 16

Appellant also complains that the trial court did not give “any weight” to his

consistent testimony and the other evidence he offered at trial. However, the trial

judge clearly considered appellant’s evidence and testimony but determined that

she “did not find the report credible and the testimony credible from the

defendant.” “It is the role of the trial court to assess the credibility of witnesses,

and this court will not reverse a credibility finding unless it is clearly erroneous or

lacking evidentiary support.” Bolanos v. United States, 938 A.2d 672, 685 (D.C.

2007). Appellant has not met this standard.

Appellant next contends that the evidence showed he was indeed assaulted

— that the youth committed either attempted-battery or intent-to-frighten assault

when he touched appellant’s shoulder. See McGee v. United States, 533 A.2d

1268, 1270 (D.C. 1987) (explaining the two different types of assault). But, as the

trial court noted, even if the touch on the shoulder technically was an assault, this

was not the event reported by appellant.

(…continued)
However, at trial, Officer Tran testified that he did not remember why he wrote
down the word “swelling.”
 17

Appellant perhaps asserts that the evidence was insufficient to prove that the

underlying assault was a “matter or occurrence” of which the MPD was “required

to receive reports” or “conduct an investigation.” However, appellant has forfeited

this argument for two reasons. First, he did not present it to the associate judge

reviewing the magistrate judge’s decision. See Bradley v. District of Columbia,

107 A.3d 586, 593 (D.C. 2015) (noting that “absent extraordinary circumstances, a

defendant ordinarily must present in his [motion for review] all the issues to be

raised [on appeal] or else forego their consideration later by this court”) (internal

quotation marks omitted). Second, this argument is presented too perfunctorily to

warrant our consideration. See, e.g., McFarland v. George Washington Univ., 935

A.2d 337, 351 (D.C. 2007) (“Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”).

Appellant mentions this argument within a single sentence on appeal. In addition,

that sentence is located in appellant’s jurisdictional argument and never clearly

presented as an argument contesting sufficiency of the evidence. Thus, appellant

has forfeited this argument. 11 In sum, we hold that the evidence presented at trial

was sufficient to support appellant’s conviction. 12

11
Appellant never urged the trial court to acquit him on this basis.
However, the trier of fact was aware that attacks that occur on correctional officers
in the District’s juvenile facilities are punishable under D.C. Code § 22-405, and
the offense may be tried in the Superior Court, even if the assault did not occur at a
(continued…)
 18

IV. Conclusion

The judgment of the Superior Court is hereby affirmed.

(…continued)
facility within the geographical bounds of the District. In re A.S.W., 391 A.2d at
1390. She also had learned during the discussions about jurisdiction that the
Mayor has designated MPD to provide assistance “to protect life and property” at
youth facilities “located on property titled in the United States located outside of
the District of Columbia.” Mayor’s Order 88-58 (March 15, 1988).
12
Appellant briefly argues that the court erred in denying his motion to
dismiss and proceeding to trial without first making a finding of probable cause.
This argument is also presented in too perfunctory a fashion to warrant
consideration. In any event, even if appellant was entitled to a pretrial
determination of probable cause, see generally Gerstein v. Pugh, 420 U.S. 103
(1975), any error is rendered harmless by the court’s finding of guilt beyond a
reasonable doubt. See Williams v. United States, 75 A.3d 217, 222 n.12 (D.C.
2013) (“In effect, a finding of guilt beyond a reasonable doubt negates any doubt
that there was probable cause of guilt.”). Appellant may also be asserting (again
in a perfunctory manner) that the information, quoted in note 2, failed to state an
offense. However, the information charged appellant using the language of D.C.
Code § 5-117.05, and was sufficient to make appellant fully aware of the charges
against him. See, e.g., United States v. Miqueli, 349 A.2d 472, 474–75 (D.C. 1975)
(informations charging offenses in statutory language were “sufficiently definite to
apprise the defendants of the nature of the accusations against them” and
“[n]othing more by way of pleading evidentiary facts was necessary”).