Hernandez v. United States

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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CM-130

                    WINSTON PEREZ HERNANDEZ, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                             (2014-CMD-013406)

                       (Hon. Patricia A. Wynn, Trial Judge)

(Argued December 17, 2019                                     December 29, 2022)


     Alice Wang, Public Defender Service, with whom Samia Fam, Public
Defender Service, was on the brief, for appellant.

      Chrisellen R. Kolb, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney at the time the brief was filed, Elizabeth Trosman, and
John P. Mannarino, Assistant United States Attorneys, were on the brief, for
appellee.

       Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General at the time the brief was filed, Rosalyn Calbert Groce,
Deputy Solicitor General, and John D. Martorana, Assistant Attorney General,
filed a brief for amicus curiae, the District of Columbia, in support of appellee.
                                         2

    Before BLACKBURNE-RIGSBY, Chief Judge, BECKWITH, EASTERLY,
MCLEESE, HOWARD, and SHANKER, Associate Judges, ∗ and FISHER, Senior Judge. ∗∗

      Opinion for the court by Senior Judge FISHER.

     Opinion by Chief Judge BLACKBURNE-RIGSBY, with whom Associate Judge
SHANKER joins, concurring in part, at page 38.

      Opinion by Associate Judge EASTERLY, concurring dubitante, at page 39.

      FISHER, Senior Judge: Over the last century, this court and its predecessors

have tried many times, with mixed success, to define the common law crime of

assault; some of the things we have said are difficult to reconcile. This case, which

began with allegations that appellant had committed an assault with a beer bottle

but morphed into something quite different, presents a fresh challenge. We must

decide whether an offensive touching, performed with minimal force and not of a

sexual nature, may be a criminal assault. We conclude that it may.

      ∗
         Associate Judges Deahl and AliKhan did not participate in the
consideration or decision of this appeal.

       Judge Glickman and Judge Thompson were Associate Judges of the court at
the time of oral argument. Judge Thompson began her service as a Senior Judge
on February 17, 2022; Judge Glickman began his service as a Senior Judge on
December 21, 2022. Because they were not members of the division that decided
the case, they no longer are members of the en banc court. 

(d);
Internal Operating Procedures § XI(C).

      ∗∗
         Judge Fisher was an Associate Judge of the court at the time of oral
argument. His status changed to Senior Judge on August 23, 2020. Because he
was a member of the division that decided the case, he may sit as a judge of the
court en banc. Id.
                                           3



                              I.     Statement of Facts



                        A. The Altercation on July 8, 2014



      On July 8, 2014, a group of men — including appellant — gathered at the

apartment of Alimamy Tarawallie to watch a World Cup soccer game. After the

game, the group moved outside; someone went to a nearby store and returned with

a large bottle of Guinness.        While drinking beer from the bottle, appellant

approached Mr. Tarawallie and began to speak with him. Mr. Tarawallie testified

that appellant “used to be my friend, in fact, I think [of] him as my little brother.”



      Mr. Tarawallie explained that appellant “came and the bottle was spilling,

you know, from the bag they put it [in]. Then he came, he was talking to me and

touching me at the same time. I told Mr. Winston [referring to appellant by his

first name] not to touch me while he’s talking to me. You know because it’s

almost — by touching me the smell will stay on my attires.” Appellant seemed to

be offended and suggested that the request was racially motivated. Mr. Tarawallie

replied that “it’s nothing about color. You’re black, me black. I told you to stop

touching me if you talk. Just talk and I’ll listen to you.” Mr. Tarawallie also
                                          4

appealed to some of the other men: “I told them to tell Mr. Winston to stop

touching me when he’s talking.”



      In the meantime, appellant stepped away and spoke to his friend Oscar in

Spanish, a language Mr. Tarawallie did not understand. Appellant then walked

back and demanded to know, “If I touch you, what you going to do [to] me?” Mr.

Tarawallie answered, “if you touch me, I’ll push you.” 1           He testified (and

demonstrated) that, in response, appellant placed “his finger [or fingers] on my

face, . . . right in my eyes, like this.” Mr. Tarawallie reacted by pushing appellant,

who then took the Guinness bottle he was holding and “smashed it . . . on [Mr.

Tarawallie’s] head.” Both men ended up in a tussle on the ground, during which

appellant banged Mr. Tarawallie’s head against the sidewalk. Appellant then “ran

away” and Mr. Tarawallie called 911. Officer William Schoppmann and Detective

Ryan Savoy responded to the call.



      The witnesses who remained on the scene were not cooperative. Officer

Schoppmann testified about the location of the beer bottle (found on the grass,

some distance away from where they were interviewing Mr. Tarawallie) and about

      1
         Mr. Tarawallie acknowledged that he said “I’ll punch you” when
recounting the events in his 911 call. He maintained, however, that he in fact
warned appellant, “I’ll push you.”
                                              5

Mr. Tarawallie’s visible injuries. Detective Savoy obtained a warrant to arrest

appellant, who turned himself in and agreed to talk about the fight. Appellant

claimed that he had acted in self-defense. He said “that he had touched [Mr.

Tarawallie] on the arm, and [that Mr. Tarawallie] had attacked him.” Appellant

also said that Mr. Tarawallie “had made some kind of mention that he was going to

assault [appellant] if he touched him again.” Appellant “said that he touched [Mr.

Tarawallie] on the arm again, and that’s when [Mr. Tarawallie] attacked him.”



      During the bench trial, Mr. Serrano Baez — who attended the gathering and

saw part of the altercation — testified that Mr. Tarawallie was upset by the

outcome of the soccer game and that, after they moved outside, appellant

repeatedly mentioned the loss, telling Mr. Tarawallie that he should not feel bad

because he had not lost any money. Mr. Baez heard Mr. Tarawallie warn appellant

“don’t touch my arm or you’re going to see what is going to happen to you.” Mr.

Baez explained that appellant did touch Mr. Tarawallie again, at which point Mr.

Tarawallie “reacted violently and . . . punched” appellant. Mr. Baez testified that

the men ended up in a scuffle on the ground during which Mr. Tarawallie’s head

hit the pavement. In Mr. Baez’s estimation, Mr. Tarawallie “was the one who

attacked first.” Appellant did not testify.
                                          6



                      B. The Trial Court’s Factual Findings



      In his closing argument, defense counsel attacked Mr. Tarawallie’s

credibility, asserting that he “made up” the blow with the beer bottle in an effort to

explain how he sustained injuries. Counsel offered a different explanation. “Mr.

Perez Hernandez was being playful, was being jocular and kind of pushing.”

When appellant touched him again, Mr. Tarawallie “escalat[ed] it into an actual

fisticuffs fight.” But that was an overreaction. “A touch, itself, did not warrant

that, . . . it was not an offensive touch in and of itself based on their prior history

together as friends . . . .” Perhaps appellant exercised bad judgment. “Was it an

assault? No.”



      During rebuttal, the prosecutor responded that “[t]he touch by Mr. Perez

Hernandez is not why we are here. That isn’t assault, it’s an unwanted touching.”

The government urged the court to find that appellant assaulted Mr. Tarawallie

when he struck him with a beer bottle. After questioning from Judge Wynn,

however, the government asserted that the touching of Mr. Tarawallie (at least the

second touching) was an assault. “[A]n unwanted touching is standard textbook

assault.” Following further discussion, the court said it would look at the cases
                                           7

more carefully and deferred its findings for approximately two weeks. In the

interim, both parties submitted memoranda addressing the elements of an

“offensive touching” assault.



      Ultimately, Judge Wynn was not persuaded “beyond a reasonable doubt that

the defendant hit the complaining witness with a bottle” or that “the defendant

poked the complaining witness in the eyes.” The court did find, however, that

appellant “poked” Mr. Tarawallie “somewhere in his body” despite being

admonished not to do so. The court also found “that the parties were at least

acquaintances and maybe could even be described as friends.”



      The trial court reasoned that “a poke” would not usually result in an assault

charge. “I think if we had one poke that it would not meet the requirements of

something that would be objectively offensive to a person of reasonable

sensibility . . . .” However, a second poke following a warning was different.

“[N]ot only does that indicate that this person objectively [sic] finds the poking

offensive, but also that objectively a person reasonably would find that intentional

contact after the warning to be objectionable and offensive.”           Regarding the

element of intent, the trial judge explained, “I think that there has to be an intent to

do the touching, but there does not have to be an intent to be offensive. It’s simply
                                           8

a question of whether the person who is being touched, whether that person is

reasonable in finding the touching to be offensive.” The court then found appellant

guilty of simple assault in violation of 

(a)(1). It found him not

guilty of attempted possession of a prohibited weapon (a glass bottle). See 

(b), -1803.



                                  C. The Appeal



      On appeal, the division majority concluded that the evidence was legally

insufficient to sustain appellant’s conviction for simple assault under an attempted

battery theory. The government had proven no more than an unwanted touching,

but “there must be proof that the defendant acted with ‘force or violence.’” Perez

Hernandez v. United States, 

 (D.C. 2019).            “A touch is

inherently neither ‘forceful’ nor ‘violent’ within the common understanding (or

even legal understanding) of those terms.” 

 (footnote omitted). Nor did

appellant’s conduct fit within the category of cases treating a nonviolent sexual

touching as an assault. 

 at 602 n.17.



      The court decided to rehear the appeal en banc, and the opinions of the

division were vacated.     See Perez Hernandez v. United States, (D.C. 2019).
                                          9

Following supplemental briefing and oral argument before the court sitting en

banc, we now hold that the evidence was sufficient to support a conviction for

assault but remand for the trial court to make additional findings in light of this

opinion.



                               II.    Legal Analysis



      With ample justification, a distinguished jurist from Maryland has cautioned

that “[c]ommon law assault . . . is a chameleon concept that no one should attempt

to describe too precisely. It takes on different colorations in different factual

settings.” Lamb v. State, 

 (Md. Ct. Spec. App. 1992) (opinion

for the court by Moylan, J.). Duly cautioned, and informed by our own experience,

we forswear any effort to articulate a new definition that encompasses all types of

assault. We focus instead, in the common law tradition, on deciding the case

before us. See Hedgepeth v. Whitman Walker Clinic, 

 (D.C.

2011) (en banc) (“The development of common law proceeds on a case-by-case

incremental basis, and it is on that solid factual ground that judicial opinions build

on a framework for analysis based on certain general precepts.”).
                                       10



                                A. The Statute



      Our statute prohibiting simple assault provides that “[w]hoever unlawfully

assaults, or threatens another in a menacing manner, shall be fined not more than

the amount set forth in § 22-3571.01 or be imprisoned not more than 180 days, or

both.” 

(a)(1). Other than the words authorizing penalties, this

language has not been changed since the statute was enacted in 1901. See Ray v.

United States, 

 (D.C. 1990). The statute itself does not set

forth the elements of the crime, but we have long construed it to prohibit common

law assault. See Alfaro v. United States, 

 (D.C. 2004); Mungo v.

United States, 

 (D.C. 2001); Beausoliel v. United States, 

 (D.C. Cir. 1939) (“common law assault, which is defined in various

ways”).



                               B. Our Authority



      In 1901 “Congress codified the law of the District of Columbia” and, in

doing so, recognized that “[t]he common law of the District of Columbia

encompasses all common law in force in Maryland in 1801, unless expressly
                                         11

repealed or modified.” United States v. Jackson, 

 (D.C.

1987); see 

. 2 Maryland’s common law in 1801 incorporated in

turn English common law, as “[i]n 1776, Maryland adopted the common law as it

then existed in England.” Perkins v. United States, 

 (D.C. 1982).



      While we will focus much of our inquiry on common law understandings,

that decisional law was neither uniform nor static, but differed from place to place

and evolved as courts faced new factual scenarios. We emphasize, in addition, that

“when the Maryland common law was incorporated into this jurisdiction, it was

‘not a bar to the exercise of our inherent power to alter or amend the common

law.’” Ashby v. United States, 

 (D.C. 2019) (quoting Williams v.

United States, 

 (D.C. 1989)). “This court . . . has repeatedly

rejected the view that the common law of the District of Columbia was ‘frozen’ in




      2
         

(a) states that “[t]he common law, all British statutes in
force in Maryland on February 27, 1801, the principles of equity and admiralty, all
general acts of Congress not locally inapplicable in the District of Columbia, and
all acts of Congress by their terms applicable to the District of Columbia and to
other places under the jurisdiction of the United States, in force in the District of
Columbia on March 3, 1901, shall remain in force except insofar as the same are
inconsistent with, or are replaced by, some provision of the 1901 Code.”
                                          12

1901.” Fleming v. United States, 

, 228 (D.C. 2020) (en banc) (citing

cases). 3



       We cannot, of course, create new crimes, and we are not doing so. Congress

codified the crime of assault in 1901, and, as explained above, we have long

construed the statute to prohibit the common law offense of assault. “The parties

agree that common-law simple assault encompasses ‘even the slightest offensive

touching.’” Reply Brief for Appellant at 3 (quoting Johnson v. United States, 

, 139 (2010)). Here, as in Carrell v. United States, 

 (D.C.

2017) (en banc), we exercise our authority to clarify the elements of a crime

created by the legislature. See 

 at 319-20 n.12. 4




       3
         In addition, this court, when sitting en banc, “may overrule the decisions of
prior divisions.” McCamey v. District of Columbia Dep’t of Emp. Servs, 1196
(D.C. 2008) (en banc). This power of the en banc court to change the law extends
“to decisions of the United States Court of Appeals rendered prior to February 1,
1971,” which, “like the decisions of this court, constitute the case law of the
District of Columbia.” M.A.P. v. Ryan, 

 (D.C. 1971).
       4
         We do not question the ability of the legislature to change the common
law. As Judge Easterly points out in her separate opinion, the Council of the
District of Columbia recently has passed a wholesale revision of the criminal code.
Assuming that legislation becomes law, it will not take effect for some years, and it
obviously will not apply retroactively. In the meantime, we must decide
appellant’s appeal under the current law, and this decision also may impact
numerous other appeals which have been held in abeyance pending this en banc
decision.
                                          13



                     C. There Are Various Forms of Assault



      “[I]n the early law a criminal assault was an attempt to commit a battery and

that only.” Rollin M. Perkins, An Analysis of Assault and Attempts to Assault, 

, 72 (1962). Foundational case law in the District of Columbia

defined common law assault 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.” Patterson v.

Pillans, 

, 506–07 (D.C. Cir. 1915). Although Patterson was a

civil case, this definition of assault has also been used in criminal cases. See

Guarro v. United States, 

 (D.C. Cir. 1956) (quoting Patterson).

Indeed, the Patterson court adopted the definition, which it characterized as

“comprehensive,” from a criminal case. See Hays v. People, 

 (N.Y.

Sup.Ct. 1841). 5   Over time, the concept of a criminal assault has evolved to

incorporate principles from the law of torts. 6


      5
        Neither Patterson nor Hays involved facts comparable to those presented
here. In Patterson, the “mistress of the house” had locked her “maid servant” in a
room. The maid sued to recover damages for assault, but the court held that she
had failed to state a cause of action. No threats had been made, and “[t]he mere
                                                                    (continued…)
                                          14



      More recently we have endorsed the following formulation:

             The three elements of assault are: (1) an act on the part of
             the accused (which need not result in injury); (2) the
             apparent present ability to injure the victim at the time
             the act is committed; and (3) the intent to perform the act
             which constitutes the assault at the time the act is
             committed. . . . The intent element requires a general
             intent to perform the act, rather than specific intent. . . .
             The assailant, therefore, need not [have] a conscious
             purpose to inflict injury.


Mobley v. United States, 

, 419 n.10 (D.C. 2014) (quoting or citing

Ruffin v. United States, 

 (D.C. 1994); Smith v. United States,




______________________
(…continued)
locking or obstruction of a door is not an assault.” 

. In Hays,
the defendant had lured “a female under ten years of age into a building for the
purpose of ravishing her.” 1 Hill at 351. He exposed himself, but there was no
evidence that he had actually touched her. Nevertheless, the court upheld the
conviction for assault with intent to commit a rape. Id. at 353.
      6
          “Despite historical distinctions, certain aspects of the concepts of a
criminal assault and the tort of assault have merged, enlarging the criminal concept
to encompass such conduct as could induce in the victim a well-founded
apprehension of peril.” Anthony v. United States, 

 (D.C. 1976).
See also Lamb v. State, 

 (Md. Ct. Spec. App. 1992) (“Maryland,
early on, included this tort concept of assault as part of its common law crime of
assault.”) (citing Handy v. Johnson, 

 (1854)); Rollin M. Perkins, An
Analysis of Assault and Attempts to Assault, 

, 80 (1962) (“[I]n
most states the criminal law concept of assault has been enlarged by the addition of
the tort theory . . . .”).
                                          15

 (D.C. 1991); and Sousa v. United States, 

(D.C. 1979)).



      Even oft-repeated definitions have proven to be imprecise, however.

Although we have defined assault as “an attempt with force or violence to do a

corporal injury to another[,]” Patterson, 

, “‘violence’ in its

ordinary meaning is not a necessary element of assault.” Harris v. United States,

 (D.C. 1964) (“the jostling of [the victim by a pickpocket

robber], the fumbling with his trouser cuffs, and the impact at the area of his hip

pocket constituted sufficient evidence” of assault). And no physical injury need

have resulted. Dunn v. United States, 

 (D.C. 2009) (“[U]nder

our established law, Dunn’s shove was an assault even if it did not cause Agneu

any physical harm.”).



      Our assault statute also forbids “threaten[ing] another in a menacing

manner.” 

(a)(1). We thus have often said that criminal

assaults fall into “two distinct” categories: attempted battery assaults and intent-to-

frighten assaults. See, e.g., Robinson v. United States, 

 (D.C.

1986). An attempted battery assault is the “more common” of the two, 

 and Mr.

Perez Hernandez was convicted on the theory that he attempted (indeed,
                                            16

completed) a battery. As intent-to-frighten assault is not at issue in this appeal, we

will not address it further. See District of Columbia v. Wical Ltd. P’ship, 

 (D.C. 1993) (“We . . . confine ourselves to a resolution of the only

question fairly presented to us by this appeal . . . .”).



       Our precedent also recognizes that “non-violent actions involving sexual

misconduct may constitute assaults.” Guarro, 

. 7 We have referred

to “non-violent sexual touching assault as a distinct type of assault,” Mungo, 

, but an offensive sexual touching might be more accurately described

as a battery, prosecutable in this jurisdiction as an assault. See Brief for Appellant

at 10 n.7 (non-violent sexual touching “was considered a battery at common law”).




       7
         In Beausoleil v. United States, 

 (D.C. Cir. 1939), the
District of Columbia Circuit affirmed a conviction for violating our assault statute
where the appellant — without force or violence (as those terms are commonly
understood) — engaged in sexual touching with a six-year-old child. The court
reasoned that although the conduct did not present the same “threat or danger of
physical suffering or injury” as the two categories of assault described above, it
was nevertheless an assault because the touching may cause the victim “fear,
shame, humiliation, and mental anguish.” 

. See also Guarro, 

 (“Unless there is consent, it would seem that a sexual touching is a
sufficiently offensive act to constitute an assault.”); In re A.B., 

 (D.C.
1989) (defendant “grabbed and squeezed A.E.’s buttocks on a public street”). This
type of assault is commonly known as an “offensive sexual touching.” See
Contreras v. United States, 

 (D.C. 2015); Alfaro v. United
States, 

 (D.C. 2004).
                                          17

The question presented in this case is whether a nonviolent offensive touching, not

of a sexual nature, also constitutes an assault.




      We have said that it does, and we have held that it does. See Comber v.

United States, 

 (D.C. 1990) (en banc) (the crime of simple assault

“is designed to protect not only against physical injury, but against all forms of

offensive touching”); Dunn, 

 (conviction for assault affirmed

because shove by defendant was offensive to victim); Ray, 

(spitting on someone is an assault because it is “highly offensive”). These and

other rulings recognize that such touchings not only offend a person’s reasonable

sense of personal dignity, but also may trigger a breach of the peace, as happened

here. These cases also are consistent with the common law understanding of

battery, “which held th[e] element of ‘force’ to be satisfied by even the slightest

offensive touching.” Johnson v. United States, 

 (2010); see also

 (Alito, J., dissenting) (“The term ‘force,’ as the Court correctly notes,

had a well-established meaning at common law that included even the ‘slightest

offensive touching.’”); accord, United States v. Castleman, 

 (2014) (referring to “the common-law meaning of ‘force’— namely,

offensive touching”).
                                         18

                             D. Battery Is An Assault



      The District of Columbia does not have a separate statute criminalizing the

common law offense of battery. This omission apparently has had little or no

practical effect, but it undoubtedly has led to difficulty in defining the offense of

assault. “Experience reflects that th[e] offense [of assault] is most often charged in

circumstances involving violent behavior.” Mungo, 

. In other

words, completed batteries have been routinely prosecuted as assaults. 8 In Ray v.

United States, 

 (D.C. 1990), and again in Mahaise v. United States,

 (D.C. 1998), we explained that it makes no legal difference whether

the facts underlying a conviction for assault show “not just an attempted battery

but a completed battery.” Ray, 

; see also Mahaise, 

        See, e.g., Contreras v. United States, 

, 1275 n.1 (D.C. 2015)
(slap in the face, a completed battery, was prosecuted as an assault); Delaney v.
United States, 

 (D.C. 1963) (sustaining appellant’s conviction
for assault where there was evidence that he “inflicted a vicious and deliberate
beating on the complaining witness”); Ingram v. United States, 

(D.C. 1955) (there was sufficient evidence that appellants committed simple
assault when they “forcibly carr[ied] [the victim] to the upper floor,” choked her,
and “forcibly remov[ed] some of her clothes”); Mostyn v. United States, 

 (D.C. Cir. 1933) (police officers prosecuted for simple assault where the
evidence showed they “beat[] [the victim] with the[ir] hands”); Landrum v. United
States, 

 (D.C. Cir. 1933) (police officer convicted of simple
assault based on testimony that he struck the victim).
                                         19

30. 9 “‘[P]roof of a battery will support [a] conviction of assault.’” Ray, 

-1200 (quoting United States v. Dupree, 

 (9th Cir.

1976)).



                         E. The Positions of the Parties



      In response to our request for supplemental briefing, the parties have

addressed the elements required to prove simple assault in this type of case. “The

parties agree that common-law simple assault encompasses ‘even the slightest

offensive touching,’” Reply Brief for Appellant at 3 (quoting Johnson, 

), “‘even though it causes or threatens no actual physical harm to the victim.’”

 (quoting Ray, 

).



      Moreover, both parties urge us to employ the mental states of knowledge

and purpose used in the Model Penal Code. 10 At this point, the harmony ends.



      9
         However, Mahaise went too far when it stated that “[a] battery is any
unconsented touching of another person.” 

. As we explain in more
detail below, a defendant must have acted purposely (or, perhaps, recklessly), with
a culpable state of mind.
      10
         The Model Penal Code provides that (except for strict liability offenses) “a
person is not guilty of an offense unless he acted purposely, knowingly, recklessly
                                                                       (continued…)
                                          20

The government asserts that assault, historically described as a “general intent”

crime, is properly proved by showing “that a defendant engaged in assaultive

conduct purposely, knowingly, or recklessly (but not merely negligently).” 11

Appellant agrees that we should use the concepts of purpose and knowledge, but

he would apply them differently. He rejects “the conclusion that mere recklessness

suffices to satisfy the intent element of simple assault.”



      Appellant Perez Hernandez argues that “a subjective intent to injure is an

essential element of attempted-battery assault,” meaning that it is necessary to have

“an intent to harm or offend, and not merely ‘an intent to do the touching.’” He

advocates an objective standard of offensiveness: “[t]o qualify as ‘offensive,’ . . . a

touching must be not only unwanted, but offensive to a person of reasonable

sensibility . . . under the surrounding circumstances.” Thus, appellant asserts, “to

constitute a simple assault, an unwanted touching must be both objectively and

intentionally offensive.” The government agrees that, “as a general matter, the test

is what would be offensive to an ordinary person not unduly sensitive as to

______________________
(…continued)
or negligently, as the law may require, with respect to each material element of the
offense.” Model Penal Code § 2.02(1).
      11
        Appearing as amicus, the District of Columbia supports this statement of
the elements of simple assault.
                                         21

personal dignity,” but argues that “a touching is also offensive where the defendant

has special reason to believe that more or less will be permitted by the individual

[he touches].”



      Some of the disagreement between the parties undoubtedly is produced by

the difficulty inherent in rephrasing the familiar (but elusive) terms “specific

intent” and “general intent” to satisfy the modern preference for the mental states

employed in the Model Penal Code. Further divergence stems from disagreement

about what the elements of simple assault are, or should be. Our goal in this case

will be to adapt and to clarify, not to forsake our pertinent common law rulings.



                      F. Making The Linguistic Transition



      We historically have categorized an attempted battery (or completed battery)

assault as a “general intent” crime, meaning that the government must prove that

“a defendant intended to do the acts which constitute the assault.” Smith v. United

States, 

 (D.C. 1991). See also Lewis v. United States, 

 (D.C. 2007) (“[t]o convict someone of assault under D.C. Code § 22–404

(2001), the government must prove . . . the intent to do the act that constituted the

assault”). There need not be a “specific intent” to cause injury. See, e.g., Lee v.
                                           22

United States, 

 (D.C. 2003) (government proved completed

battery; “because assault is a general intent crime, there need be no subjective

intention to bring about an injury”) (internal quotation marks omitted); see also

State v. Duckett, 

 (Md. 1986) (“Although intent is an element of

the crime of battery, the intent need only be for the touching itself; there is no

requirement of intent to cause a specific injury.”). 12



      We recognize, however, that the historical categories of general intent

crimes and specific intent crimes have been subject to much criticism. See, e.g.,

United States v. Bailey, 

 (1980) (the “venerable distinction” in

the common law between general intent and specific intent has been “the source of

a good deal of confusion”). While sitting en banc in 2017, we voiced our “concern

about the use of ‘general’ and ‘specific’ intent” in lieu of “more particularized and

standardized categorizations of mens rea.” Carrell v. United States, 

,

323–24 (D.C. 2017) (footnote omitted). We added that, “in the absence of a




      12
         We do not deal here with the elements of offenses such as assault with
intent to kill, assault with intent to commit robbery, or assault with intent to
commit first degree sexual abuse, second degree sexual abuse, or child sexual
abuse. See 

.
                                          23

statutory scheme setting forth such categorizations, we, like the Supreme Court,

look to the Model Penal Code terms and their definitions.” 

. 13



      But the absence of statutory direction does not give us latitude to design as

we please. For more than a century, our common law decisions have supplied the

mens rea required for the various forms of assault; we therefore do not write on a

blank slate. Moreover, when interpreting criminal statutes that are silent with

respect to the required mental state, we read into the statute “only that mens rea

which is necessary to separate wrongful conduct from ‘otherwise innocent

conduct.’” Elonis v. United States, 

 (2015) (quoting Carter v.

United States, 

 (2000)). We also recognize that “basic principles

of statutory construction in the criminal law context . . . necessitate[] proof of mens

rea with respect to both its conduct and result elements.” Carrell, 

(citing Elonis, 

).



      13
         This limited borrowing of useful terms found in the Model Penal Code
does not imply that we endorse the general approach to criminal liability proposed
in that code. In particular, the Model Penal Code does not recognize offensive
touching assaults of a non-sexual nature. See Model Penal Code § 211.1 (defining
assault by relying on concept of “bodily injury to another”); § 210.0(2) (defining
“bodily injury” to mean “physical pain, illness or any impairment of physical
condition”). The Council of the District of Columbia has not adopted the Model
Penal Code, nor have we purported to do so. We must, instead, construe the
common law offense referred to in our assault statute.
                                        24

      In a case like this, making contact with a victim (the “touching” portion of

an offensive touching) cannot be inadvertent. 14 In Model Penal Code terms, it

must be the defendant’s “conscious object to engage in conduct of that nature.”

Model Penal Code § 2.02(2)(a)(i) (Am. Law Inst., Proposed Official Draft 1962)

(defining “purposely”).



      Our examination of mens rea cannot end here, however. “[T]he presumption

in favor of a scienter requirement should apply to each of the statutory elements

that criminalize otherwise innocent conduct.” United States v. X-Citement Video,

Inc., 

 (1994). 15 In circumstances like these, what makes the contact

a crime is the offensive nature of the touch. 16 Cf. Elonis, 

 (“Here


      14
         See, e.g., Buchanan v. United States, 

 (D.C. 2011); In re J.S.,

, 334 (D.C. 2011); Frye v. United States, 

 (D.C.
2005). See also Nelson v. Carroll, 

 (Md. 1999) (civil action
for battery; “a purely accidental touching, or one caused by mere inadvertence, is
not enough to establish the intent requirement for battery”); Model Penal Code
§ 2.01(1) (“A person is not guilty of an offense unless his liability is based on
conduct that includes a voluntary act or the omission to perform an act of which he
is physically capable.”).
      15
         Of course, as discussed above, the statute itself does not specify the
elements of assault. Those are derived from the common law. This distinction
does not affect our analysis of the mens rea issue.
      16
          Some contact with others is “reasonably necessary for the common
intercourse of life,” and the common law has always contemplated that innocuous
contact, “done for the purpose of such [daily] intercourse only,” does not amount
                                                                     (continued…)
                                        25

the crucial element separating legal innocence from wrongful conduct is the

threatening nature of the communication.” (internal quotation marks omitted));

X-Citement Video, 

 (“[T]he age of the performers is the crucial

element separating legal innocence from wrongful conduct.”).



      Appellant emphasizes that some common law sources referred to touching

another “in anger,” see Cole v. Turner, 90 Eng. Rep. 958; 1 William Hawkins, A

Treatise of the Pleas of the Crown at 263-64 (6th ed. 1788); “in an angry, or

revengeful, or rude, or insolent manner,” see Hawkins, id.; or “willfully or in

anger,” see Robert Desty, A Compendium of American Criminal Law § 130e, at

417 (1882), but these precedents do not oblige us to use words such as “angry” or

“rude” or to treat an offensive touching assault as if it were (in the old style) a

“specific intent” crime. Many of the reported decisions are too cryptic to be

helpful in our present undertaking, and it seems from our current vantage point that

the judges who wrote them (or the reporters who summarized oral rulings from the

bench) were no more successful than we have been in articulating the nuances of
______________________
(…continued)
to assault or battery. Sir James Fitzjames Stephen, A Digest of the Criminal Law,
Article 241 at 177 (London, 3rd ed. 1883). See Coward v. Baddeley, 157 Eng.
Rep. 927, 928 (Exch. 1859) (“Touching a person so as merely to call his
attention . . . is not the ground of criminal proceeding.”); Cole v. Turner, 90 Eng.
Rep. 958 (K.B. 1704) (“If two or more meet in a narrow passage, and without any
violence or design of harm, the one touches the other gently, it is no battery.”).
                                         26

mens rea. See Voisine v. United States, 

 (2016) (“The common

law traditionally used a variety of overlapping and, frankly, confusing phrases to

describe culpable mental states . . . .”). The essence of these authorities is to

recognize that some touchings which give offense should qualify as crimes and

others should not. Rather than turning back to old forms of speech to identify the

dividing line, we will continue the trend already described.



      We therefore hold that the mens rea requirement for the offensiveness of a

touch may be satisfied by applying the Model Penal Code concepts of purpose and

knowledge. See generally Carrell, 

 (explaining that, with regard to

the “result element” of our threats statutes — which lack an explicit mens rea

requirement, “the government may carry its burden of proof by establishing that

the defendant acted with the purpose to threaten or with knowledge that his words

would be perceived as a threat”). See Model Penal Code § 2.02(2)(a)(i) (a person

acts purposely with respect to a result of his conduct if it is “his conscious

object . . . to cause such a result”). Similarly here, touching someone for the

purpose of offending him clearly would satisfy the mens rea requirement. But

while a purposeful state of mind surely will suffice, it is not necessary; actions

taken with knowledge that the touching will be offensive also “separate wrongful
                                         27

conduct from otherwise innocent conduct,” see Elonis, 

 (addressing

the crime of communicating a threat) (internal quotation marks omitted).



      “A person acts knowingly with respect to a material element of an offense

when: . . . if the element involves a result of his conduct, he is aware that it is

practically certain that his conduct will cause such a result.” Model Penal Code

§ 2.02(2)(b)(ii).   Such awareness may be proven by direct or circumstantial

evidence.    Contrary to appellant’s argument, it is not necessary to adopt the

formulation “subjective intent to offend” in order to avoid “criminalizing

inadvertent rudeness.” See Borden v. United States, 

 (2021)

(plurality opinion) (“A person who injures another knowingly, even though not

affirmatively wanting the result, still makes a deliberate choice with full awareness

of consequent harm.”). 17



      Furthermore, in assessing the offensive nature of the contact, the finder of

fact must consider the totality of the circumstances. A touching is offensive if it


      17
         See also United States v. Bayes, 

 (1st Cir. 2000) (“[I]n a
prosecution for simple assault under [18 U.S.C.] § 113(a)(5), it is sufficient to
show that the defendant deliberately touched another in a patently offensive
manner without justification or excuse.”; “the common law provided that an
assault committed by way of a battery did not require an intent to cause or to
threaten an injury”).
                                        28

“offends a person’s reasonable sense of personal dignity.” Holder v. District of

Columbia, 

, 743 n.6 (D.C. 1997). 18 When the principles we have

endorsed (purpose, knowledge, and reasonableness) are properly applied, there is

no realistic danger that a defendant will inadvertently commit an offensive

touching assault.



                            G. Recklessness Deferred



         Although the parties have briefed the issue, we do not need to decide

whether recklessness will suffice as the mens rea for an offensive touching

assault. 19   The trial court did not base its finding of guilt on recklessness.


       18
          Although Holder arose from a civil suit, both parties rely upon the
decision to support their respective arguments for how courts should judge the
offensiveness of a touch. We agree that Holder provides an appropriate test for
this type of criminal case. Citing sources discussing the law of torts, the
government urges us to go further and extend criminal liability to situations where
the victim is unusually sensitive as to personal dignity but the defendant touches
him purposely, knowing of that particular sensibility. Appellant argues that, even
if courts would recognize tort liability in such circumstances, that doctrine should
not be extended to criminal law. We need not reach the issue because the trial
judge found that, in the circumstances of this case, “objectively a person
reasonably would find that intentional contact after the warning to be objectionable
and offensive.”
       19
         Under the Model Penal Code, “[a] person acts recklessly with respect to a
material element of an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from his conduct.
                                                                       (continued…)
                                        29

Moreover, cases where the evidence shows only recklessness, but not purposeful or

knowing conduct, should be rare, and it is challenging to create realistic and

helpful hypotheticals. “[W]e prefer to make a more informed judgment on the

question whether recklessness suffices in the context of a factual situation that

concretely presents the issue . . . .” Carrell, 

. “Such prudence is

nothing new.” Elonis, 

; see 

 (declining to address whether

the mental state of recklessness would be sufficient to prove the crime of

communicating a threat under 

(c)); Bailey, 

(declining to decide whether a prisoner could be convicted of escape “on evidence

of recklessness or negligence with respect to the limits on his freedom,” even

though a “court may someday confront a case” presenting the issue); Carrell, 

 (“[W]e leave for another day whether a defendant can be found guilty

of the crime of threats based on a showing that he recklessly uttered words as a

threat.”). 20

______________________
(…continued)
The risk must be of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a law-abiding person
would observe in the actor’s situation.” Model Penal Code § 2.02(2)(c).
       20
         We have not overlooked, nor do we question, our decision in Vines v.
United States, 

 (D.C. 2013), where we upheld a conviction for simple
assault based on reckless conduct. In that case, the driver of a vehicle “led police
on a high-risk chase down a busy street in downtown Washington,” resulting in a
                                                                      (continued…)
                                         30



                         III.   The Evidence Was Sufficient



      When the charge of assault is based on an offensive touching, it is fruitless

to think of the crime as “an attempt with force or violence to do a corporal injury to

another.” Quoting Patterson, 

. Instead, we should recognize

that the conduct is an assault because it is a completed battery. The government

must prove that the defendant (1) touched another; (2) that he did so purposely, not

by accident; (3) that the touching offended the other person;21 (4) that the touching

would offend a person’s reasonable sense of personal dignity; and (5) that the

______________________
(…continued)
violent collision with another vehicle. Id. at 1179. Without resolving whether the
government was required to prove intent to injure or only the intent to commit the
acts constituting the assault, we held that reckless conduct was “enough to
establish the intent [necessary] to convict [the defendant] of simple assault.” Id. at
1180. “Even if the greater proof was necessary, the jury could permissibly infer
such intent from Vines’ extremely reckless conduct, which posed a high risk of
injury to those around him.” Id. at 1181. Vines is not factually comparable to this
case, and we need not rely upon the concept of recklessness to be satisfied that the
evidence was sufficient to prove that appellant acted with the requisite mens rea.
He touched Mr. Tarawallie on purpose, knowing (that is, being “aware that it [was]
practically certain”) that his conduct would cause offense. See Model Penal Code
§ 2.02(b)(ii) (definition of “knowingly”).
      21
        In an unusual case, this third element may have to be modified to say
“offended or would have offended.” For example, if the victim does not testify but
witnesses describe what happened, they may be able to establish that the touch
would have offended the victim.
                                         31

defendant either acted with the purpose of causing offense or acted knowing that

the touching would cause offense. 22



      Appellant does not dispute that he touched Mr. Tarawallie deliberately or

“purposely.” 23 Furthermore, in the circumstances of this case, a reasonable fact-

finder could conclude that the touching was offensive. Although Judge Wynn did

not use terms from the Model Penal Code, she found facts sufficient to permit the

conclusion that appellant knew the victim would find the contact offensive but

touched him nevertheless.




      22
        As discussed above, to act “purposely” means that it was the defendant’s
“conscious object” to engage in conduct of that nature or to cause such a result. A
person acts “knowingly” when he is aware that it is practically certain that his
conduct will cause that result.
      23
          During his closing argument, appellant’s counsel acknowledged that “Mr.
Winston Perez touches him again,” but asserted that “it was not an offensive touch
in and of itself based on their prior history together as friends, as acquaintances,
and they’re both drinking and watching the game together. He’s kind of taunting
him, ha ha ha, . . . with a bad judgment, perhaps. Was it an assault? No.” After
the trial court announced its findings, appellant’s counsel stated “we don’t really
dispute the factual findings, just . . . whether or not he crossed the line to commit
an actual legal offense . . . .” While asserting that this was not enough to prove an
offense, appellant acknowledges in his brief that the evidence credited by the trial
court supported a finding that appellant touched Mr. Tarawallie on the arm after
being warned not to do so. Brief for Appellant at 30, 33.
                                             32

      Before pronouncing appellant guilty, the court explained, “I think if we had

one poke that it would not meet the requirements of something that would be

objectively offensive to a person of reasonable sensibility . . . .” In this case,

however, there was a second poke after an admonition “don’t poke me or if you do

that again I’ll punch you, or do it and see what happens . . . .” The warning made a

crucial difference. “[N]ot only does that indicate that this person objectively [sic]

finds the poking offensive, but also that objectively a person reasonably would find

that intentional contact after the warning to be objectionable and offensive.” “So I

find the defendant guilty in this matter.”



      Nevertheless, the court did not expressly state that appellant “knew” that Mr.

Tarawallie would be offended, and it is not clear that such a finding is implicit in

what the court said. Under these circumstances, we remand the case to the trial

court for further findings on whether appellant knew when he acted that the

touching would offend Mr. Tarawallie.
                                          33

                                 IV.   Other Issues


                                A. Factual Findings



      In addition to contesting the sufficiency of the evidence, appellant asserts

that his conviction must be reversed because the trial court relied upon two clearly

erroneous factual findings. Brief for Appellant at 30 (“The trial court’s findings

that appellant ‘poked’ the complainant, and that the two were ‘not close’ friends,

were clearly erroneous.”). We are not persuaded either that the findings were

clearly erroneous or that they would affect the court’s finding of guilt if they were.



      Because the amount of force used does not matter, nothing turns on whether

appellant “poked” Mr. Tarawallie instead of “touched” him.             Appellant told

Detective Savoy that he touched Mr. Tarawallie on the arm again, and Mr. Baez

testified that he saw appellant touch Mr. Tarawallie again after being told not to do

so. The court knew that the two men “were at least acquaintances and maybe

could even be described as friends.” The closeness of their relationship might be

material if appellant Perez Hernandez did not anticipate that Mr. Tarawallie would

find his actions offensive, but the trial court found that Mr. Tarawallie gave an

explicit warning before appellant touched Mr. Tarawallie again.
                                        34

                        B. There Was No Prejudicial Variance



      In his original brief appellant raised two additional issues that the division

did not reach. We address those issues now instead of referring them back to the

division.



      Appellant argues first that there was a prejudicial variance because the

government changed its theory of the case during rebuttal argument. We are not

persuaded.     Using the language of the statute, the information charged that

appellant “unlawfully assaulted and threatened Alimamy Tarawallie in a menacing

manner.” “The government did not specify in the information the means by which

the assault was committed, but it had no obligation to do so.” Burgess v. United

States, 

 (D.C. 1996). Appellant did not move for a bill of

particulars.



      The affidavit in support of the arrest warrant (for assault with a dangerous

weapon ‒ the bottle) explained that appellant kept touching Mr. Tarawallie, who

asked appellant to stop. The affidavit also mentioned that appellant placed his

finger in the victim’s eye, hit him with a beer bottle, and struck him with closed
                                        35

fists. After appellant was arrested, the government charged simple assault instead

of ADW.



      The prosecutor previewed the evidence in her opening statement. Before

appellant struck Mr. Tarawallie with the beer bottle, she said, appellant touched

Mr. Tarawallie with his finger and was told to stop; Mr. Tarawallie also told others

nearby that he didn’t want appellant touching him.         Nevertheless, appellant

approached, put his finger in Mr. Tarawallie’s eye, and “basically said what are

you going to do?” In response, Mr. Tarawallie pushed appellant with both hands,

and appellant struck Mr. Tarawallie with the bottle. The witnesses discussed all of

these aggressive actions.



      When the prosecutor shifted her focus from the beer bottle to the offensive

touching, as described above, defense counsel did not seek a continuance, request a

mistrial, or ask to reopen the evidence, perhaps because he did not dispute that the

touching occurred. Instead, he argued at some length that the touching was not a

crime. Before the court ruled, counsel filed a legal memorandum agreeing that an

offensive touching could constitute assault, but repeating his argument from

closing that the context of the interchange made this touching friendly and not

offensive.
                                        36



        “A variance occurs when the evidence at trial proves facts materially

different from those alleged in the indictment or information.” Burgess, 

. We are not confronted with such a situation here. Indeed, this case is

much like Burgess, where the defendant was convicted of assaulting a bus driver.

He complained on appeal that the government had led him to believe “that it

considered the throwing of rocks and bottles, rather than the use of mace, to be the

conduct underlying the assault charge.” 

 We held that no variance occurred.

As was the case here, the information used the language of the statute and did not

specify the means by which the assault had been committed. 

 We emphasized

that “assaults tend to be committed in a single continuous episode rather than in a

series of individually chargeable acts,” 

 (internal quotation marks omitted), and

the defendant had not moved for a bill of particulars. 

. Thus, it made no

difference “whether the government prove[d] an assault by introducing evidence

that the defendant sprayed mace on the complainant or by proving that he threw

rocks and bottles.” 

      We also observed that Mr. Burgess’s claim would fail even if he could

demonstrate that a variance occurred. 

 n.8. “When asserting a

variance, a defendant has the affirmative obligation to show prejudice to the
                                         37

defense.” 

 Burgess had not done so. Similarly here, the record reveals that

appellant was not surprised, and he has not demonstrated that he was prejudiced.




                                 C. Rule 23(c) Findings



      Appellant also asserted that we should remand the case to the trial court “to

provide findings compliant with Rule 23(c) as requested by defense counsel before

trial.” We decline to do so.



      Before the first witness was called, defense counsel informed the court that

“we’re asking for [Rule 23(c)] findings at the conclusion of the trial as always.” 24

Counsel did not specify what findings he wanted the court to make. Twenty days

later, before announcing that it found appellant guilty of assault, the court made

extensive findings, some of which are detailed above. It then asked the parties

whether they had “any questions about the factual findings or the verdict, anything

that you want me to clear up in case another court is looking at this at some point”

in the future?    Appellant’s counsel said “No, Your Honor.”           Under these


      24
          Counsel was referring to Super. Ct. Crim. R 23(c), which at the time
provided that, in a non-jury trial, “the Court shall make a general finding and shall
in addition, on request made before the general finding, find the facts specially.”
                                           38

circumstances, appellant is not entitled to the remand he now requests.          See

Preacher v. United States, 

 (D.C. 2007) (“Generally, the invited

error doctrine precludes a party from asserting as error on appeal a course that he

or she has induced the trial court to take.”).



                               V.     Conclusion



      The evidence was sufficient to prove the elements of an offensive touching

assault, but we vacate the judgment and remand the case for the trial court to make

explicit findings on whether appellant knew when he acted that the touching would

offend Mr. Tarawallie.



                                                 So ordered.




      BLACKBURNE-RIGSBY, Chief Judge, with whom SHANKER, Associate Judge,

joins, concurring in part: I join the opinion of the court, except to the extent that

the court concludes that a remand is necessary.            The trial court implicitly

concluded that appellant “knew” that his touch would offend Mr. Tarawallie.

Here, appellant poked Mr. Tarawallie two times, one of which came “after a
                                          39

statement of if you do that again you’ll see what happens[.]”       The trial court

explained,

             once the person says don’t poke me, or if you do that
             again I’ll punch you, or do it and see what happens, not
             only does that indicate that this person objectively finds
             the poking offensive, but also that objectively a person
             reasonably would find that intentional contact after the
             warning to be objectionable and offensive.


The trial court further explained that “[i]t’s simply a question of whether the

person who is being touched, whether that person is reasonable in finding the

touching to be offensive.” These findings are sufficient under the standard set

forth in the majority opinion that the trial court must find that “appellant knew

when he acted that the touching would offend Mr. Tarawallie.” Therefore, in my

view, a remand is not necessary. In all other respects, I join.




      EASTERLY, Associate Judge, concurring dubitante: At first blush, the

question presented in this case—whether the act of touching another person after

being asked not to do so is an assault—may seem inconsequential and not worth

the extensive amount of time devoted to its consideration. But answering this

question, which invites consideration of where the outer boundaries of the criminal

law lie and when law enforcement should be used to enforce social norms, has
                                           40

proved difficult for our court because the assault statute provides us with no

guidance.    We maintain we have the common-law authority to “clarify” the

elements of a new iteration of assault. I disagree that this is what we are doing.

But I am bound by our prior pronouncements that we have the authority to

continue to develop the criminal common law, even though such pronouncements

seem anachronistic at best. In this era, legislatures, not courts, decide what is or is

not a crime and how it should be punished. And our legislature has recently acted

in this sphere: On November 15, 2022, the Council of the District of Columbia

approved legislation that does not recognize nonviolent, nonsexual offensive

touching as an assault; rather, it creates a lesser crime of “Offensive Physical

Contact” in § 22A-2206 of the newly Revised Criminal Code.                 Under the

circumstances, I question whether our court should exercise our common-law

authority to expand the crime of assault. But if we are going to recognize this new

iteration of assault, I agree remand is in order.




      I am reluctant to sign on to the decision of the en banc court for four

reasons:
                                        41

      First, we are breaking new ground as an en banc court. The assault statute

provides us with no guidance, and neither does our precedent, the en banc

opinion’s reliance thereon notwithstanding. As the opinion reflects, in the past

century we (and our predecessor courts) have identified conduct as criminal assault

only where there was:

   • a beating or whipping (or at the very least slapping that led to bleeding)
     (Mostyn v. United States, 

 (D.C. 1933); Landrum v. United
     States, 

 (D.C. 1933); Delaney v. United States, 

     (D.C. 1963); Lee v. United States, 

 (D.C. 2003); Alfaro v.
     United States, 

 (D.C. 2004); Lewis v. United States, 

 (D.C. 2007); Contreras v. United States, 

 (D.C. 2015));
   • rape, attempted rape, and other forms of sexual assault, including against
     children (Beausoleil v. United States, 

 (D.C. Cir. 1939); Ingram
     v. United States, 

 (D.C. 1955); Guarro v. United States, 

 (D.C. Cir. 1956); In re A.B., 

 (D.C. 1989); Smith v.
     United States, 

 (D.C. 1991); Mungo v. United States, 

 (D.C. 2001));
   • pointing a gun at or shooting another (Robinson v. United States, 

 (D.C. 1986); Ruffin v. United States, 

 (D.C. 1994);
     Mobley v. United States, 

 (D.C. 2014));
   • shoving a security guard (Dunn v. United States, 

 (D.C. 2009));
   • crashing a car into another car (Vines v. United States, 

 (D.C.
     2013));
   • spitting (Ray v. United States, 

 (D.C. 1990));
   • pickpocketing or attempted robbery (Harris v. United States, 

     (D.C. 1964); Anthony v. United States, 

 (D.C. 1976));
   • taking a phone and a cigarette from another’s hand (Mahaise v. United
     States, 

 (D.C. 1998)).
                                         42

Ray and Mahaise present the only two scenarios remotely close to the present case

of an unwanted contact between friends at a World Cup viewing party, and even

they are a long way off, as Ray involves bodily fluids and the defendant in

Mahaise appeared to commit not only a “threatening” act, but also a form of

larceny, 

. Perhaps the Harris case, involving a mere pickpocketing

without any violence, is also somewhat closer to our present fact pattern. But like

a number of the early common-law cases, it has troubling racial undertones,

undermining its precedential strength. See Harris, 

 (finding

that when complainant, who spoke only German, “felt himself being jostled,

feeling impact at the area of his hip pocket,” by a “Negro” defendant, the force was

sufficient for assault). The fact that we are issuing an opinion en banc affirming

that a nonviolent, nonsexual offensive touching is an assault is itself proof that we

are putting a new type of crime under the assault umbrella.




      Second, I question our judicial crime-creation authority. In particular, I am

skeptical that when Congress codified the common law of assault such as it existed

in 1901 it intended to delegate to judges the perpetual power to revise and expand

upon this crime in whatever way we saw fit. But see ante at 12. It is likewise

unclear to me that 

, providing that the common law in force in

1901 “shall remain in force except insofar as the same are inconsistent with, or are
                                         43

replaced by, some provision of the 1901 Code,” gives us such authority, but see

ante at 11, since the 1901 Code did codify the crime of assault.




      While I recognize that we have decided that we have the power to continue

to develop the criminal common law, see ante at 12, there is a difference in my

view between interpreting the common law with a purpose to ensure due process

and double jeopardy guarantees are realized 1 and announcing new grounds for

criminal conviction. The former seems well within our judicial role to uphold the

Constitution, but at least in the modern era “[i]t is the responsibility of the

legislature, not the Court, . . . to define a crime, and ordain its punishment.” Bond

v. United States, 

 (2014) (Scalia, J., concurring) (internal

quotation marks omitted). Since Congress granted the District home rule, the

Council of the District of Columbia has spoken for the people of this jurisdiction,

deciding whether certain conduct is a crime and, if so, how to categorize, define,

and punish it.


      1
         See, e.g., Carrell v. United States, 

 (D.C. 2017) (en banc)
(reading in a mens rea element to the codified common-law crime of threats);
Comber v. United States, 

 (D.C. 1990) (en banc) (clarifying mens rea
elements for codified common-law crimes of murder and manslaughter); United
States v. Bradford, 

 (D.C. 1975) (holding that the codified common-
law crime of manslaughter encompasses voluntary and involuntary iterations that
must be separately charged).
                                         44



      Third, this case presents fundamental and elemental questions—questions

that, in a representative democracy, are arguably far better addressed by the

Council as our legislative body—about the boundaries of the criminal law and the

concomitant use of law enforcement to maintain socially acceptable behavior.

Recognizing that unwanted nonviolent, nonsexual contact can occur in myriad

situations, it should be up to the Council to decide if any iteration of this crime

should be classified as a form of assault or some other type of crime. It should be

up to the Council to determine the essential elements that must be proved to justify

an arrest, a criminal prosecution, and potential imprisonment as a penalty. It

should be up to the Council to determine what defenses (if any) can be raised to

such a charge. And it should be up to the Council to determine the appropriate

punishment for such a crime.




      Fourth, our venture into common-law crime creation is inopportune.

Recognizing that, in contrast to the majority of states around the country, the

District failed to modernize its criminal laws in the mid or late 20th century, the

Council created the Criminal Code Reform Commission in 2016 to rewrite many

of our criminal laws and directed it, inter alia, to “use clear language,” “apply

consistent, clearly articulated definitions,” “describe all elements, including mental
                                         45

states, that must be proven,” “reduce unnecessary overlap and gaps between

criminal offenses,” and “identify any crimes defined in common law that should be

codified, and propose recommended language for codification, as appropriate.”

(a). The Commission was charged with delivering a report to

the Council including draft legislation and explaining how and why the

recommendations change existing law. 

(b). After five years of

work and with the unanimous support of an advisory group composed of the U.S.

Attorneys’ Office, the Office of the Attorney General, the Public Defender Service,

and law professors, the Commission did just that. D.C. Criminal Code Reform

Commission (CCRC) Recommendations for the Council and Mayor 4 (2021),

https://ccrc.dc.gov/sites/default/files/dc/sites/ccrc/publication/attachments/Revised-

Criminal-Code-RCC-Compilation.pdf;         https://perma.cc/9X5B-A4PL        (“CCRC

Report”). The Council unanimously approved the Revised Criminal Code Act of

2022, which adopted the Commission’s recommendations nearly in their entirety,

just last month. B24-0416 – Revised Criminal Code Act of 2021, Council of the

District    of     Columbia,       https://lims.dccouncil.gov/Legislation/B24-0416;

https://perma.cc/EF3L-CRDN (click “View Voting Details” for entry dated

November 15, 2022).
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      As defined by the Revised Criminal Code, the crime of assault does not

extend to an unwanted touching that is neither violent nor sexual.         Revised

Criminal Code Act of 2022, Bill No. 24-416, §§ 22A-2203, -2301 (2022) (“RCC”);

Appendix J, CCRC Report, at 381-82, https://ccrc.dc.gov/sites/default/files/dc/

sites/ccrc/publication/attachments/Appendix-J-Research-on-Other-Jurisdictions-

Relevant-Criminal-Code-Provisions.pdf;              https://perma.cc/WZ9S-W2LY

(explaining that limiting assault to inflicting bodily injury or using overpowering

physical force aligns with national legal trends). Rather, the Council created a

lesser, new crime of offensive physical contact. RCC § 22A-2206; Appendix J at

402-05. This new non-assault crime has distinct elements 2 and specific exclusions

and defenses to prevent over-expansive application. Id.       And under the new

sentencing scheme laid out in the Revised Criminal Code, this new non-assault

crime is subject to much less harsh punishment than our crime of simple assault (a

maximum of 10 days imprisonment versus 180 days).                  Compare RCC

§§ 22A-2206(e)(2), -603(13), with 

(a)(1).



      2
         In pertinent part, it provides that “[a]n actor commits second degree
offensive physical contact when the actor: (1) Knowingly causes the complainant
to come into physical contact with any person or any object or substance; (2) With
intent that the physical contact be offensive to the complainant; and (3) In fact, a
reasonable person in the situation of the complainant would regard it as offensive.”
RCC § 22A-2206(b); see also id. § 22A-207(a) (explaining rules of interpretation
applicable to culpable mental states).
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      Under the circumstances, I question our exercise of our common-law power

in this case to temporarily recognize—at least until the new revised code takes

effect, see RCC tit. V, § 501(a)(1)—a new form of assault based on a nonviolent,

nonsexual touching. In light of the legislature’s clear pronouncement that the

conduct at issue in this case is not an assault, we could have dismissed en banc

review as improvidently granted. But accepting that the en banc court has chosen

to recognize a new form of simple assault, I agree that we should remand the case

to allow the trial court to assess Mr. Perez-Hernandez’s guilt of this offense.