Republic Business Credit, LLC v. Metro Design USA, LLC

                                 District of Columbia
                                  Court of Appeals
No. 13-CF-1170
                                                                        JUN 30 2016
DARIC M. WILSON,
                                           Appellant,

         v.                                              CF2-2522-12


UNITED STATES,
                                                  Appellee.


                 On Appeal from the Superior Court of the District of Columbia
                                      Criminal Division

         BEFORE: BECKWITH and EASTERLY, Associate Judges; and BELSON, Senior
Judge.

                                        JUDGMENT

                  This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

                ORDERED and ADJUDGED that the appellant’s conviction of felony
assault is reversed, an the case is remanded for the trial court to enter a judgment of
conviction for simple assault.

                                                  For the Court:




Dated: June 30, 2016.

Opinion by Associate Judge Corinne Beckwith.

Dissenting opinion by Senior Judge James A. Belson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

              DISTRICT OF COLUMBIA COURT OF APPEALS
                                                                       6/30/16
                                 No. 13-CF-1170

                          DARIC M. WILSON, APPELLANT,

                                        V.


                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CF2-2522-12)

                          (Hon. Stuart Nash, Trial Judge)

(Argued October 2, 2015                                     Decided June 30, 2016)

     Daniel Gonen, Public Defender Service, with whom James Klein and Alice
Wang, Public Defender Service, were on the brief, for appellant.

      Uma M. Amuluru, Assistant United States Attorney, with whom Vincent H.
Cohen Jr., Acting United States Attorney, and Elizabeth Trosman, Elizabeth H.
Danello, and Damien Diggs, Assistant United States Attorneys, were on the brief,
for appellee.

      Before BECKWITH and EASTERLY, Associate Judges, and BELSON, Senior
Judge.

      Opinion for the court by Associate Judge BECKWITH.

      Dissenting opinion by Senior Judge BELSON at 18.
                                         2

      BECKWITH, Associate Judge: After a jury trial, appellant Daric Wilson was

convicted of one count of assault with significant bodily injury1 stemming from a

quarrel about a cab fare with Salim Abubakar, the driver. As a result of this

dispute, Mr. Abubakar sustained cuts and bruises to his face, experienced profuse

bleeding, pain, and dizziness, and was eventually taken to the hospital. On appeal,

Mr. Wilson raises only a sufficiency challenge, contending that the government

presented insufficient evidence that the cuts and bruises amounted to “significant

bodily injury” under the statute. We agree, and therefore reverse the conviction for

felony assault and remand for the trial court to enter a judgment of conviction for

the lesser included offense of simple assault.2 See Quintanilla v. United States, 62

A.3d 1261, 1262, 1266 (D.C. 2013).


                                         I.


      On the evening of February 10, 2012, appellant Daric Wilson, his girlfriend,

and a coworker named Jason Schneider hailed a taxi in the Crystal City area of

Arlington, Virginia. Mr. Wilson and his girlfriend had recently finished dinner and

drinks, and they planned to spend the rest of the evening with Mr. Schneider and



      1
          D.C. Code § 22-404 (a)(2) (2012 Repl.).
      2
          D.C. Code § 22-404 (a)(1) (2012 Repl.).
                                          3

some other friends in the Adams Morgan neighborhood of Washington, D.C. Mr.

Wilson and his companions got into Salim Abubakar’s cab, and from here Mr.

Abubakar’s and Mr. Wilson’s accounts diverge.


      Mr. Abubakar testified that Mr. Wilson, who appeared to be intoxicated,

gave him imprecise and confusing instructions about where he wanted to go in the

District. Mr. Abubakar explained that appellant eventually yelled at him to “stop,

stop, stop” near the intersection of 18th Street and Florida Avenue, at which point

the group exited the car. Mr. Schneider then attempted to pay Mr. Abubakar the

fare,3 but Mr. Wilson grabbed Mr. Schneider’s hand to prevent him from doing so

while making comments that “[were] hurtful to [Mr. Abubakar] as a human being

[and] that addressed [his] color and [him] in general as a human being.” Feeling

afraid and threatened, Mr. Abubakar then got out of the cab and walked to an area

behind it. Mr. Schneider eventually succeeded in paying the fare, but as Mr.

Abubakar was counting the money, Mr. Wilson walked up and punched him “on

top of [his] left eye.” Mr. Abubakar said that he immediately started bleeding and

“felt like [he was] really losing [his] eye,” and he did not return the punch. He also

said that he felt dizzy. Mr. Wilson then began choking him with his arm, and at



      3
          Mr. Abubakar testified that he never asked them to pay.
                                         4

some point both men fell, with Mr. Abubakar landing on his face on the sidewalk.4

On the ground, Mr. Wilson continued “holding [him] and stopping [him] from

breathing,” making Mr. Abubakar think he was “going to die.” Mr. Abubakar

testified that Mr. Wilson was quietly saying to him either “you will die” or “I will

kill you.” Eventually, Mr. Schneider intervened to restrain Mr. Wilson. With the

conflict defused, Mr. Abubakar walked to a nearby wall, seeking support because

he still felt dizzy. Paramedics soon arrived, took him to the ambulance, and

eventually transported him to the hospital.


      In Mr. Wilson’s account, Mr. Abubakar, who seemed lost while driving

through the District, “ignor[ed] [Mr. Wilson’s] instructions [and] [went] in

different, wrong directions” after explaining that he was not familiar with several

of the locations Mr. Wilson suggested as a place to be dropped off—the Adams

Morgan neighborhood, 18th and U Streets, or 18th and O Streets. Mr. Wilson

therefore asked Mr. Abubakar to pull over and let the group out.          After the

passengers exited the car at the intersection of 18th and Florida, Mr. Wilson and

Mr. Abubakar started arguing about the fare. Mr. Wilson testified that he refused

to pay the full amount because Mr. Abubakar had gotten lost. Contrary to Mr.

      4
        Mr. Schneider testified that he “heard him hit the ground; it didn’t sound
good.” He also said that Mr. Abubakar’s fall produced “kind of a dull thud” that
“sounded like it hurt.”
                                          5

Abubakar’s testimony, Mr. Wilson said that Mr. Abubakar, still in his car, insisted

on the full fare while threatening to call the police. Mr. Wilson responded, “Great,

call the police; I’ll wait right here.”


       According to Mr. Wilson, Mr. Abubakar suddenly “lost it” and began

screaming at him and the other passengers. When Mr. Abubakar left the cab, Mr.

Schneider tried to pay him, but Mr. Abubakar quickly “got angry again.” Mr.

Abubakar then pushed Mr. Wilson, who pushed him back. This tussling happened

“maybe a couple of times” before Mr. Abubakar “put[] his head down” and

“[went] to tackle” Mr. Wilson. Mr. Wilson testified that he was “completely

caught [] off guard,” and that both men fell over, with Mr. Abubakar’s face hitting

the concrete. The two men grappled with each other on the ground, and Mr.

Wilson grabbed Mr. Abubakar from behind to prevent him from flailing his arms

and trying to hit him. After about twenty seconds, Mr. Abubakar had calmed

down. Mr. Wilson consequently released him, reunited with his girlfriend and Mr.

Schneider, and had begun walking away from the scene when the police arrived.


       Two Metropolitan Police Department officers also testified as to the extent

of Mr. Abubakar’s injuries.5 Officer Mark McGrail testified that when he arrived


       5
         The government also presented the testimony of Sandy Pollock, who
witnessed part of the incident from her second-floor apartment on the corner of
                                                                 (continued…)
                                           6

on the scene, Mr. Abubakar “appeared to be in visible pain” and “was bleeding

from his face” and “gushing blood.” Officer McGrail said he noticed “blood

dripping on the sweater that [Mr. Abubakar] was wearing,” and described this

bleeding as “profuse[]”—ranking it a six on a scale of one through ten.6 When he

asked Mr. Abubakar what happened, Mr. Abubakar “moaned instead of

responding.” Officer McGrail testified that “you could just tell by his face that he

was in pain.” After the paramedics escorted Mr. Abubakar to the ambulance, he

was treated there “for quite a while,” possibly as long as half an hour.7


      The second officer, Raeniel Castillo, testified that when he arrived on the

scene, Mr. Abubakar “had cuts all over his face,” “blood dripping down from his

face onto his clothes,” and “blood coming out of the injuries just pouring down his

face.” Mr. Abubakar “couldn’t really talk that well,” and “[a]t one point, his jaw


(…continued)
18th and Florida. Ms. Pollock testified that she heard a “very guttural, terrified
scream,” as if someone were “absolutely getting pummeled.” Because her view
was partly obscured, however, Ms. Pollock never actually saw anyone “strike the
cab driver.”
      6
          On this scale, ten was considered the bloodiest.
      7
        As for Mr. Wilson’s injuries, Officer McGrail noticed “cuts” on the “back
of his hands or on the knuckles.” Officer McGrail characterized these marks as
“offensive injuries,” as they were located “in the striking area of the hand,” and so
he decided to arrest Mr. Wilson. Officer Castillo similarly testified that Mr.
Wilson had cuts on his elbows and hands.
                                         7

wouldn’t move.” Officer Castillo said the paramedics thought it might be broken,

and they took Mr. Abubakar to the hospital after treating him in the ambulance.

Officer Castillo characterized the volume of blood as a seven on a scale of one

through ten.


      The government presented no testimony from doctors or paramedics, but it

did introduce into evidence a series of photographs taken when Mr. Abubakar was

in the hospital. The photographs depict Mr. Abubakar in a hospital bed with

lacerations and dried blood on his face, a brace around his neck, a cuff on his arm,

and electrodes attached to his chest.


                                        II.


      In reviewing a conviction on sufficiency grounds, “we consider all the

evidence in the light most favorable to the government, according deference to the

fact-finder ‘to weigh the evidence, determine the credibility of the witnesses, and

draw all justifiable inferences of fact.’” Jones v. United States, 67 A.3d 547, 549

(D.C. 2013) (quoting (Devenn) Smith v. United States, 899 A.2d 119, 121 (D.C.

2006)). We will reverse a conviction for insufficient evidence if the evidence “is

such that a reasonable juror must have a reasonable doubt as to the existence of any

of the essential elements of the crime.” Teneyck v. United States, 112 A.3d 906,

908–09 (D.C. 2015) (quoting Rivas v. United States, 783 A.2d 125, 134 (D.C.
                                         8

2001) (en banc)).


                                        III.


      The District’s felony assault statute provides that “[w]hoever unlawfully

assaults, or threatens another in a menacing manner, and intentionally, knowingly,

or recklessly causes significant bodily injury to another shall be fined . . . or be

imprisoned not more than 3 years, or both.” D.C. Code § 22-404 (a)(2) (2012

Repl.). The statute defines “significant bodily injury” as “an injury that requires

hospitalization or immediate medical attention.” Id. To satisfy this statutory

definition, the “immediate medical attention must be aimed at one of two ends—

‘preventing long-term physical damage and other potentially permanent injuries’ or

‘abating pain that is severe instead of lesser, short-term hurts.’” Teneyck, 112 A.3d

at 909 (quoting Nero v. United States, 73 A.3d 153, 158 (D.C. 2013)). This

standard is objective. We ask “not whether a person in fact receives immediate

medical attention but whether medical treatment beyond what one can administer

himself is immediately required to prevent ‘long-term physical damage, possible

disability, disfigurement, or severe pain.’” Id. (quoting In re R.S., 6 A.3d 854, 859

(D.C. 2010)). In other words, the statute does not extend to injuries that, “although

seemingly significant enough to invite medical assistance, do not actually ‘require’

it, meaning the victim would not suffer additional harm by failing to receive
                                           9

professional diagnosis and treatment.”         Quintanilla, 62 A.3d at 1265.     The

“treatment” required, moreover, is “not satisfied by mere diagnosis.” Id. at 1264–

65.   Nor are “everyday remedies”—such as “ice packs, bandages, and self-

administered over-the-counter medications”—“sufficiently ‘medical’ to qualify

under the statute.” Id. at 1265. Rather, any treatment must be “of a higher order,

requiring true ‘medical’ expertise.” Id.


      Although D.C. Code § 22-404 (a)(2) remains a relatively new provision,8

this court in recent years has started to define its contours. The court held, for

instance, that there was sufficient evidence of significant bodily injury where a

victim was shot “at close range” and the bullet penetrated his bicep, “causing

‘obvious pain’ and bleeding.” Nero, 73 A.3d at 158. In reaching this conclusion,

the court highlighted the complainant’s doctor’s testimony that such a wound can

prove “life-threatening” and that, without treatment, the complainant “probably

      8
          The Council of the District of Columbia enacted the statute in 2006 in
order to “fill the gap” between simple assault, a misdemeanor that requires no
physical injury and carries a maximum penalty of 180 days imprisonment, and
aggravated assault, a felony that requires “serious bodily injury” and provides for a
maximum term of ten years imprisonment. Quintanilla, 62 A.3d at 1263 (quoting
Jackson v. United States, 940 A.2d 981, 987 (D.C. 2008)); see also D.C. Code §
22-404 (a)(1) (2012 Repl.) (simple assault); D.C. Code § 22-404.01 (2012 Repl.)
(aggravated assault). In its committee report describing this new intermediate level
of assault, the D.C. Council explained that it intended “to provide a penalty for
assault that results in ‘significant (but not grave) bodily injury.’” Quintanilla, 62
A.3d at 1263–64 (quoting In re R.S., 6 A.3d at 858).
                                        10

would have had a higher chance of wound infection”—evidence demonstrating a

risk of long-term physical damage. Id. The court likewise held that there was

sufficient evidence under the statute where the complainant’s head was kicked into

a metal gate, causing her ear to “burst open” and leaving it “torn in two,” which

prevented her from hearing out of that ear. In re R.S., 6 A.3d at 856–57, 859. At

trial, the complainant testified that she went to the hospital after the incident,

receiving four to six stitches in her ear and medication for her ear and for

headaches, which she experienced for several days following the assault. Id. at

857, 859.     More recently, the court found sufficient evidence where the

complainant’s head was “repeatedly slammed” into the ground, resulting in

“multiple abrasions and bruising all over her body, including trauma around her

eye.” Blair v. United States, 114 A.3d 960, 964, 980 (D.C. 2015). While it

acknowledged that “not every blow to the head in the course of an assault

necessarily constitutes significant bodily injury,” the court underscored testimony

from the complainant’s doctor that he was “concerned” that she had a “significant

head injury,” which prompted him to “order[] a CAT scan and X-ray of her head

and neck to determine whether she sustained internal injuries.” Id. at 979–80.


      In contrast, this court determined that there was insufficient evidence of

significant bodily injury where the complainant—a robbery victim—received cold

compresses from EMTs but no medical treatment. Quintanilla, 62 A.3d at 1263,
                                        11

1265. The EMTs simply “checked [the victim] out” onboard an ambulance, taking

pictures of her head where she had been hit and examining her for a concussion.

Id. at 1263. The victim reported “no long-term effects” besides “a week and a

half” of headaches, “swollen fingers ‘for about three weeks,’ and two months of an

‘almost unusable’ index finger.” Id. at 1265. The court also found insufficient

evidence of significant bodily injury where a bullet “merely grazed” the

complainant’s skin and the only medical treatment administered was “diagnostic

tests, pain medication, and wound care.” Nero, 73 A.3d at 159. Central to our

conclusion was testimony from the complainant’s treating physician, who

explained that if the complainant had not been treated, “‘probably not much’ would

have happened, and that he ‘would have had pain, he would have needed pain

medication and perhaps wound dressing.’”         Id.   This court similarly found

insufficient evidence where at least one shard of glass was lodged in the

complainant’s hand but where stitches were unnecessary and the government failed

to produce evidence that the complainant would suffer long-term physical damage

as a result of the incident. Teneyck, 112 A.3d at 910–11.


                                        IV.


      On appeal, Mr. Wilson contends that the government presented insufficient

evidence that Mr. Abubakar suffered a significant bodily injury within the meaning
                                          12

of D.C. Code § 22-404 (a)(2). Mr. Wilson asserts that the pain, dizziness, and

extensive bleeding Mr. Abubakar experienced do not qualify under the statute

given the government’s failure to show “what—if any—treatment” Mr. Abubakar

received for these injuries, “let alone that any treatment was immediately

medically required.”     We agree with Mr. Wilson and therefore reverse the

conviction.


      The government primarily argues that a jury reasonably could have found

that Mr. Abubakar suffered a significant bodily injury based on the “combined

evidence” presented at trial. That evidence includes testimony about the blood

“gushing” from Mr. Abubakar’s face, which the government contends could lead a

jury to infer that the injury would not be treatable with “everyday remedies such as

ice packs [or] bandages,” Quintanilla, 62 A.3d at 1265; testimony showing that

Mr. Abubakar was in “great pain” that night; and testimony that the paramedics

treated Mr. Abubakar for as long as thirty minutes in the ambulance on the scene.

The government further argues that the photographs of Mr. Abubakar in a hospital

bed with “lacerations on his face, dried blood, and a brace around his neck,” along

with the cuff on his arm and electrodes on his chest, could lead a jury fairly to infer

that the brace, cuff, and electrodes were provided by a medical professional

because they were “medically necessary.”
                                        13

      However bad the injuries may seem, the government’s “combined evidence”

fails to show that “immediate medical attention” was required to “‘prevent[] long-

term physical damage and other potentially permanent injuries’ or ‘abat[e] pain

that is severe’ instead of ‘lesser, short-term hurts.’”9 Teneyck, 112 A.3d at 909

(quoting Nero, 73 A.3d at 158).      For instance, the government did not elicit

testimony from any paramedics or treating physicians, who could have explained

whether Mr. Abubakar’s injuries “required [medical treatment] to prevent ‘long-

term physical damage, possible disability, disfigurement, or severe pain.’” Id.

(quoting In re R.S., 6 A.3d at 859); cf. Blair, 114 A.3d at 979–80 (finding evidence

sufficient where a doctor testified that he was “concerned” that the complainant

had a “significant head injury” and hence “ordered a CAT scan and X-ray of her

head and neck to determine whether she sustained internal injuries”); Nero, 73

A.3d at 158 (finding evidence sufficient where a doctor testified that a bullet

wound such as complainant’s can prove “life-threatening” and that the complainant

“probably would have had a higher chance of wound infection” without treatment).


      9
          In this regard, the question is not, as the dissent suggests, whether Mr.
Abubakar was in pain, or bleeding, or treated by paramedics, or taken to the
hospital, or all of the above. The question is whether the government put on
evidence showing that Mr. Abubakar “require[d]” immediate medical attention
aimed at one of these two ends. Teneyck, 112 A.3d at 909 (quoting D.C. Code §
22-404 (a)(2)). We answer that question today through a straightforward
application of our felony assault cases.
                                          14

Nor did the government elicit from Mr. Abubakar himself any testimony indicating

the type of treatment—if any—he received. 10 Mr. Abubakar testified that he was

bleeding, dizzy, and “felt like [he was] really losing [his] eye,” but nowhere does

he suggest that these injuries demanded treatment “of a higher order, requiring true

‘medical’ expertise,” rather than “everyday remedies such as ice packs, bandages,

and self-administered over-the-counter medications.”         Quintanilla, 62 A.3d at

1265; cf. In re R.S., 6 A.3d at 857, 859 (finding evidence sufficient where the

complainant testified that she received four to six stitches).11


      The government places particular emphasis on the paramedics’ involvement

in the incident—as recounted by the police officers—and on the photographs of

Mr. Abubakar in the hospital wearing a neck brace, cuff, and electrodes. But such

evidence, without more, does not show that Mr. Abubakar’s injuries required

      10
          We have never held that the only way for the government to carry its
burden of proof is to present medical or other expert testimony.
      11
           When asked at oral argument how it is possible to know, beyond
speculating based on the photographs, what treatment (if any) Mr. Abubakar
received at the hospital, counsel for the government stated that “there is no
evidence as to what the treatment was at the hospital,” and that “the government
admits that the record is not clear about the treatment.” At another point in the
exchange, counsel agreed that the record was “silent” on the question of
treatment. The court then asked the government why no paramedics were called
to testify or hospital records adduced. Counsel’s only response—the “best on
appeal that the government can make of the record”—was that the trial focused
mostly on the self-defense issue.
                                        15

“immediate medical attention” within the meaning of the statute. As an initial

matter, “[t]he fact that an injured party immediately goes to a hospital or seeks

other medical attention is not, in itself, determinative.” Quintanilla, 62 A.3d at

1264; see also id. at 1263 (finding evidence insufficient even though EMTs

“checked [the victim] out” onboard an ambulance and evaluated her for signs of a

concussion). In some cases, a complainant may be admitted to the hospital for

“diagnostic tests, pain medication, and wound care,” Nero, 73 A.3d at 159, and yet

such treatment still is not deemed “necessary . . . to prevent long-term physical

damage, possible disability, disfigurement, or severe pain.”          Id. (quoting

Quintanilla, 62 A.3d at 1264) (finding evidence insufficient where treating

physician explained that if the complainant had not been treated, “‘probably not

much’ would have happened, and that he ‘would have had pain’”); see also id.

(noting that “tests alone do not speak to an injury’s significance”). Even assuming

Mr. Abubakar did receive some form of treatment in the hospital, therefore, “the

fact that medical treatment occurred does not mean that medical treatment was

required.” Teneyck, 112 A.3d at 910.


      This court’s recent decision in In re D.P., 122 A.3d 903 (D.C. 2015), further

supports our conclusion. There, a fifteen-year-old girl commuting home on a

Metrobus was repeatedly punched—at least once in the face—before collapsing

and hitting her head on a pole, which rendered her unconscious for “maybe a
                                          16

minute, maybe less.” Id. at 906. The EMTs arrived and escorted the girl to an

ambulance, where they “checked [her] head” and blood pressure before eventually

releasing her after she called her father. Id. at 913. In finding the evidence

insufficient, the court noted that the government failed to provide medical evidence

on “the nature of [the girl’s] injuries.” Id. at 907. Nor did the complainant herself

testify about any medical care that she had received, stating only that she

experienced headaches for a few days after the incident. Id. On this record, the

court determined that the injuries did not qualify under the statute, holding that

they were “properly categorized” with the injuries in Quintanilla and Teneyck. Id.

at 913. The same analysis applies here.


      The government also argues, as an “alternative basis for finding significant

bodily injury,” that even if a jury could not find that Mr. Abubakar’s injuries

required “immediate medical attention,” the evidence supported a finding that the

injuries required “hospitalization.” It is true that the statute defines “significant

bodily injury” as requiring either “hospitalization or immediate medical attention.”

D.C. Code § 22-404 (a)(2) (emphasis added). In In re R.S., however, the court

noted that “[i]t is not easy to envision a situation in which an injury might require

hospitalization and yet not also require immediate medical attention.” 6 A.3d at

859 n.3.   The court nevertheless suggested that “[p]erhaps the hospitalization

definition, which is presented as an alternative, is to cover a situation where an
                                          17

injury is only latent and manifests itself a considerable time after the fact; e.g., an

unrecognized internal injury or concussion.” Id. Then in Quintanilla, the court

left open the possibility that an injury could require hospitalization in “fluid

situations” that involve “immediate then prolonged monitoring, coupled with

testing,” regardless of whether such monitoring or testing “eventuate[s] in

treatment.” 62 A.3d at 1264 n.18; see also Blair, 114 A.3d at 979. Finally, the

court in Teneyck clarified that “‘hospitalization’ under the statute requires more

than being admitted for outpatient care.” 112 A.3d at 909 n.4; see also In re D.P.,

122 A.3d at 911 n.18.


      The evidence presented here falls short of the threshold set by these cases.

The record contains no indication that Mr. Abubakar had a “latent” injury that

“manifest[ed] itself a considerable time after the fact,” that he received any

prolonged monitoring or testing, or that he was admitted for inpatient treatment at

the hospital. It reveals almost nothing about the circumstances surrounding Mr.

Abubakar’s admission to the hospital.


      Because the government failed to introduce sufficient evidence of significant

bodily injury, we reverse the felony assault conviction and remand for the trial

court to enter a judgment of conviction for simple assault. See Quintanilla, 62

A.3d at 1262, 1266.
                                          18

                                                     So ordered.



      BELSON, Senior Judge, dissenting.


       I do not agree that the evidence, viewed in the light most favorable to the

government, was insufficient to convict appellant of felony assault. The physical

attack by taxi passenger Daric Wilson on taxi driver Salim Abubakar was violent

and obviously so severe that it could inflict significant injury, as defined in D.C.

Code § 22-404 (a)(2) (2012 Repl.) (“[T]he term ‘significant bodily injury’ means

an injury that requires hospitalization or immediate medical attention.”). Incensed

by what he considered the driver’s failure to take him and his fellow passengers to

the desired location, Mr. Wilson viciously attacked Mr. Abubakar. In the course of

that attack, Mr. Wilson choked Mr. Abubakar and then struck him above his left

eye, causing very severe bleeding. The blow made Mr. Abubakar dizzy. Mr.

Wilson, who is much larger than his victim, then leapt upon Mr. Abubakar’s back,

wrapped his own legs around Mr. Abubakar’s legs, and drove him face forward to

the ground. Mr. Abubakar hit the ground so hard, according to Mr. Wilson’s

fellow passenger, that it caused a “dull thud” that “sounded like it hurt.”


      A woman was watching from her apartment window as the encounter

unfolded. She saw the driver get out of his cab and turn in the direction of Mr.
                                        19

Wilson and his companions. While it did not appear to her that the driver was

acting aggressively, Mr. Wilson was very aggressive and was acting like a

“schoolyard bully.” She said that the much smaller victim appeared intimidated,

especially when Mr. Wilson yanked on the sleeve of his victim’s jacket and

attempted to pull the jacket over his head. At that point, she decided to intervene

and, as she went outside, instructed her husband to call the police. On her way out,

she heard “a very guttural terrified scream” as if someone was “absolutely getting

pummeled.” Mr. Wilson accompanied his onslaught against Mr. Abubakar with

racist comments that Mr. Abubakar found “hurtful.”


      The police officers who responded to the scene testified to Mr. Abubakar’s

profuse bleeding caused by Mr. Wilson’s attack. One officer also testified that at

that time Mr. Abubakar could not really talk that well, that at one point his jaw

would not move, and that the medical first responders thought his jaw might be

broken. After putting Mr. Abubakar in the ambulance and tending to him for about

a half-hour, the paramedics took him to the hospital in the ambulance.


      There is no explanation in the record for the absence of testimony of hospital

personnel and of hospital records.1     There are, however, photographs of Mr.


      1
       This court has not held that the need for immediate medical attention can
be proven only by medical or other expert witnesses.
                                        20

Abubakar taken at the hospital, which were admitted without objection, one of

which shows him with the neck brace that was fitted on him and a blood pressure

sleeve, as well as what are apparently electrocardiogram leads attached to his

chest.     It shows the injury above Mr. Abubakar’s eye and the scratches,

inferentially suffered when Mr. Wilson drove his face into the ground.


         The majority opinion states that “However bad the injuries may seem, the

government’s ‘combined evidence’ fails to show that ‘immediate medical

attention’ was required to ‘prevent[] long-term physical damage and other

potentially permanent injuries’ or ‘abat[e] pain that is severe’ instead of ‘lesser,

short-term hurts.’” Ante at 12-13 (quoting Teneyck v. United States, 112 A.3d 906,

909 (D.C. 2015) (quoting Nero v. United States, 73 A.3d 153, 158 (D.C. 2013))).


         The majority’s view of the injuries that Mr. Wilson inflicted on Mr.

Abubakar is contradicted by the conduct of the police officers and later the

paramedics on the scene, as well as by the testimony of Mr. Abubakar himself. An

ambulance was summoned.          The accompanying paramedics tended to Mr.

Abubakar for as long as half an hour at the scene, and decided to take him to the

hospital for treatment. Clearly this was not a case of minor injuries which trained

medical personnel thought could be treated by “everyday remedies such as ice

packs, bandages, and self-administered over-the-counter medications . . . .”
                                         21

Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C. 2013).


      Even without testimony of hospital personnel or the submission of hospital

records, there was ample evidence before the jury to support its finding of

significant injury. In particular, the photograph of Mr. Abubakar taken at the

hospital showing him in a neck brace, obviously placed on him by medically-

trained personnel, gives strong support to the verdict. Mr. Abubakar testified that

the beating caused him “great pain.” The jury could infer on this record that

immediate medical attention was needed to abate that pain. The decision of the

paramedics to transport Mr. Abubakar to the hospital after tending to him for about

one half hour at the scene of his beating, and the attention he received at the

hospital as evinced by the photographs in evidence stand in sharp contrast with the

evidence in a case like Quintanilla, supra, 62 A.3d at 1265, where even the victim

of the assault thought she was capable of taking care of herself and declined

transportation to a hospital by the paramedics who arrived at the scene of her

assault with an ambulance.


      The trial judge properly instructed the jury that:


            [S]ignificant bodily injury means an injury that requires
            hospitalization or immediate medical attention in order to
            preserve the health and well-being of the individual . . . .
            [Y]ou must consider the nature of the alleged injury itself
            and the practical need in the ordinary course of events for
            hospitalization or prompt medical attention in
                                        22

               determining whether significant bodily injury occurred
               here.



      The jury heard the evidence and was convinced beyond a reasonable doubt

that it demonstrated that Mr. Abubakar had suffered a significant injury based on

his need for immediate medical attention and treatment. More specifically, the

verdict is supported by evidence about the beating, the bleeding, the pain, the

dizziness, as well as Mr. Abubakar’s inability to move his jaw, which a medical

technician thought was broken, the subsequent decision by trained medical

personnel to seek further medical treatment at the hospital after tending to Mr.

Abubakar for a half-hour at the scene, and the medical decision to fit Mr.

Abubakar with a neck brace. Under the circumstances that they encountered, it

would have been irresponsible for emergency medical technicians not to see to it

that Mr. Abubakar was taken to the hospital for immediate medical attention in

order to abate his severe pain or to prevent long-term physical damage or other

potentially permanent injuries. Teneyck, supra, 112 A.3d at 909; Nero, supra, 73

A.3d at 158.


      The attached photo of the beaten Mr. Abubakar at the hospital serves to

describe his physical injuries better than the proverbial “thousand words.” The

jury learned that the beating had a profound effect on the life of Mr. Abubakar,

who testified that he is no longer driving a taxicab “because of this man[,]”
                                          23

referring to Mr. Wilson.


      This court’s opinions have offered various formulations or examples in

recent years in an effort to differentiate between the types of assault that constitute

aggravated assault (serious injury), felony assault (significant injury), and simple

assault (lesser injuries, neither serious nor substantial.)    Many such cases are

quoted in the majority opinion.       The examples and formulations they offer

frequently arise out of the facts of a particular case before the court. These

opinions must, of course, be considered when this court is called upon to evaluate

the facts of each appeal as it comes before us, but they should not be applied in a

way that trenches upon the authority of a jury to consider the facts of a case and

apply the statute as embodied in the jury instructions. As the Supreme Court noted

in Jackson v. Virginia, 443 U.S. 307, 319 (1979), the relevant inquiry is not

whether the evidence convinces an appellate court of the defendant’s guilt beyond

a reasonable doubt, but whether “after viewing the evidence in the light most

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

essential elements of the crime beyond a reasonable doubt.”             (emphasis in

original).


      The facts before the jury in this case, including the nature of the injuries

inflicted on Mr. Abubakar and the obvious “practical need in the ordinary course
                                          24

of events for hospitalization or prompt medical attention” (in the words of the

instructions the jury was applying), led the jury to find that appellant inflicted a

significant injury on Mr. Abubakar. See id. The same reality that led the police

officers to assist in bringing Mr. Abubakar into the care of the paramedics and led

them, in turn, to treat and then transport him to the hospital gives a firm evidentiary

foundation to the jury’s verdict. This court should not overturn the jury’s verdict

that found that Mr. Abubakar suffered “injury that requires hospitalization or

immediate medical attention,” and, thus, that Mr. Wilson committed a felony

assault under D.C. Code § 22-404 (a)(2).2




      2
         Another appeal involving the sufficiency of the evidence to establish
felony assault is pending before a division of this court. Belt v. United States, No.
15-CF-324.
   25

Appendix