Dominic A. White v. United States , 207 A.3d 580 ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CF-530
DOMINIC A. WHITE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-3070-15)
(Hon. Juliet J. McKenna, Trial Judge)
(Argued February 27, 2019 Decided May 9, 2019)
Nancy E. Allen for appellant.
Daniel J. Lenerz, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and
Monica Trigoso, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and FISHER and BECKWITH,
Associate Judges.
FISHER, Associate Judge: Appellant Dominic A. White challenges the
sufficiency of the evidence to support his convictions for insurance fraud,
conspiracy, and aggravated assault while armed (“AAWA”). He also argues that
the trial judge committed reversible error in responding to a question from the jury.
Once again, this court must grapple with the question of what constitutes a “serious
2
bodily injury,” an element of proof required to convict a defendant of AAWA. We
affirm in part, reverse in part, and remand for resentencing.
I. Background
A. The Insurance Scheme
Phanessa Haynes filed a claim with State Farm Insurance on October 15,
2014, reporting that somebody had stolen the rims and tires from her Volkswagen
Passat. She included a photograph of her car and two receipts totaling $5,342.04,
purportedly documenting her purchase of those rims and tires. Haynes declined
State Farm’s offer to replace the missing items, instead insisting that the insurance
company reimburse her. Haynes hired WTF Towing to take her Volkswagen to a
lot, and State Farm provided her with a temporary rental car.
State Farm’s fraud investigation unit began reviewing Haynes’s claim on
October 20. Many warning signs of fraud emerged, according to Laura Gladding,
the company’s claims specialist who reviewed the matter. These included the
recent purchase of the policy, the customer’s eagerness to settle the claim, and a
discrepancy between the addresses on the tire merchant’s website and the receipts.
3
Additionally, the insurance company obtained the police report filed by Haynes, in
which she estimated the value of the stolen items as only about $1,400.
Gladding conducted two phone interviews on October 27: one with Haynes
and another with a person whom Haynes said was her brother “Dominic.” The
man on the latter call, who used appellant’s phone number, identified himself to
Gladding as “Damon Whittaker.” This man reported that the missing rims and
tires had been installed by somebody named “Jay” rather than a person nicknamed
“D. Money,” as Haynes had stated. Gladding asked him for the contact
information for “Jay” but never received it. During a call on October 30, Gladding
told Haynes that State Farm would not process her claim unless she spoke under
oath with a company attorney. Gladding added that the company would only pay
for the car’s storage at the towing lot for a few more days.
B. The Attack at the Towing Lot
Haynes arrived at WTF Towing’s lot to pick up her car at about 5:00 p.m. on
November 4 and saw Philip Lovell installing tires and rims on her Volkswagen.
Haynes expressed her anger with Lovell about a scratch on the car as well as the
“raggedy rims” that he had installed. Soon, a quarrel erupted and both parties
4
exchanged derogatory words. Haynes, who was holding a cell phone on
speakerphone, said into the phone, “I’m here now.” Haynes then told Lovell, “You
gonna make me call my boyfriend on you.” After she demanded that Lovell “hurry
up” with the installation, he responded, “Why don’t you call your punk boyfriend
and . . . tell him to come fix it.” Haynes said to somebody on her phone that
“[t]hey’re playing games with me” and that “he called you out.”
Eventually, Lovell walked away from Haynes and toward the area where
tires were stored. Moments later, appellant arrived at the towing lot. Haynes
pointed to Lovell and told appellant, “That’s him.” Next, an onlooker screamed,
“Watch out!” and Lovell turned around to see appellant swinging a metal pole at
his head. The pole — an aluminum handle used to operate a car jack — struck the
head of Lovell, who fell to the ground and covered his head and face. The
assailant then struck Lovell a second time, this time on the back of his head. One
witness, Deneil Bettis, remembered Lovell screaming, “He’s trying to kill me!”
Bettis and another bystander approached appellant with pocketknives, prompting
White to flee the towing lot in his car. Witnesses and police officers who arrived
described Lovell as “disoriented,” “crying hard,” and unable to stand up without
help. One police officer recalled that Lovell “appeared to be in a lot of pain”
because “there was a lot of blood.”
5
Lovell remained conscious and recalled that he did not feel any pain at the
time due to the effects of adrenalin. An ambulance arrived, but he repeatedly
resisted going to the hospital due to perceived costs. A co-worker and a police
officer eventually convinced Lovell to get in the ambulance despite his concern
about medical bills. Lovell then momentarily left the ambulance to lock his
vehicle before going to the hospital.
When a bloodied Lovell arrived at Howard University Hospital’s emergency
room, he reported his pain level as a “ten,” the maximum level. Hospital staff
performed a CT scan of his head, which showed no acute brain injuries. Dr.
Adrienne Wilson, who treated Lovell, said that he had suffered two “superficial”
scalp lacerations that measured roughly four centimeters in length, one each on the
front and back of his head. According to Dr. Wilson, Lovell was not actively
bleeding and did not experience vomiting or nausea. Lovell was given Tylenol No.
3, which contains codeine, to help with his pain. After the physicians cleaned
Lovell’s two head wounds, they closed the lacerations with eighteen staples. The
hospital discharged Lovell the same night at 12:50 a.m., roughly six hours and
forty minutes after he entered the emergency room. Dr. Wilson wrote Lovell a
prescription for ten tablets of Tylenol No. 3 and twenty tablets of Motrin.
6
For a month or two after being released, Lovell suffered daily migraines. He
also experienced occasional nausea and sometimes vomited. Lovell returned to
work within a week of the attack but incurred a migraine while driving a tow truck
and was assigned to office work for about a month. His primary care physician
referred him to Dr. Jenny Lin, a neurologist, who examined him about three-and-a-
half months after the attack. Lovell told Dr. Lin that he had experienced some
light-headedness and a “persistence of daily headache,” which he described as
“throbbing pain.” He reported that he was taking ibuprofen, which did not
adequately alleviate his head pain. Lovell performed well on all the tests
administered by Dr. Lin, who determined that Lovell “possibly” suffered from
“posttraumatic headache.” She recommended that he receive a brain MRI and
return for a follow-up evaluation, but there is no evidence that he did either. To
help Lovell with his headaches, Dr. Lin prescribed an antidepressant for “chronic
headache” but no other medications. At the time of the trial more than two years
after the attack, Lovell estimated that he suffered migraines about once every two
months.
C. The Proceedings
7
Haynes was charged with insurance fraud, conspiracy to commit insurance
fraud, and solicitation of a violent crime. A jury convicted her of the two
insurance-related charges only, and she did not appeal. White was charged with
insurance fraud, conspiracy to commit insurance fraud, aggravated assault while
armed with “a pole,” assault with a dangerous weapon (“that is, a pole”), and
possession of a prohibited weapon (“a pole”). A jury convicted him on all five
counts. The trial court sentenced appellant to one year of incarceration for each of
the two insurance charges, to run concurrently; eight years’ incarceration for
AAWA and four years’ incarceration for assault with a dangerous weapon
(“ADW”), to run concurrently to each other and consecutive to the insurance
counts; and one year of incarceration for possession of a prohibited weapon, to run
concurrently.
II. Analysis
A. Did the Trial Judge Erroneously Instruct the Jury?
Appellant first contends that the trial judge improperly responded to a note
sent by the jury during deliberations. We review the trial judge’s answer to the
jury for abuse of discretion. See Cheeks v. United States, 168 A.3d 691, 698 (D.C.
8
2017). “When a jury makes explicit its difficulties[,] a trial judge should clear
them away with concrete accuracy.” Id. (alteration in original) (quoting
Bollenbach v. United States, 326 U.S. 607, 612–13 (1946)). We hold that the trial
court did not err.
Regarding the counts of ADW, see D.C. Code § 22-402 (2013 Supp.), and
possession of a prohibited weapon, see id. § 22-4514(b), the jury first asked if it
must find that the weapon used was a pole. 1 The trial judge, the Honorable Juliet
J. McKenna, responded that “the dangerous weapon must be a pole” since the
indictment specified that the weapon was “a pole.” A few hours later, the jury sent
another note to ask whether the pole used in the attack must be the pole in
evidence. White’s trial counsel urged Judge McKenna to respond affirmatively.
Judge McKenna declined, saying that she would answer, “No, the jury must find
1
For these two counts as well as the AAWA charge, the indictment
identified the weapon as a pole. The AAWA jury instruction explicitly stated that
the government was required to prove that the defendant was armed with “a
dangerous weapon, that is, a pole.” However, the jury instructions for ADW and
possession of a prohibited weapon, which were derived from model instructions,
omitted any reference to the pole. For ADW, the government must prove that the
defendant committed the act “with a dangerous weapon,” which is defined as any
object “designed to be used, actually used, or threatened to be used[] in a manner
likely to produce death or serious bodily injury.” See Criminal Jury Instructions
for the District of Columbia No. 4.101 (5th ed. rev. 2016). For possession of a
prohibited weapon, the trial judge said the government must prove that the
defendant “possessed a dangerous weapon” and “intended to use it unlawfully
against another.” See id., No. 6.503.
 9
beyond a reasonable doubt that the object was a pole and that the pole was a
dangerous weapon.”
Whether the pole in evidence was the exact weapon used by appellant is not
beyond question.2 Deneil Bettis recalled that White dropped the pole that he used
after hitting Lovell. Two laborers on the site later picked up the object and used it
along with a jack to work on a car. Many of these poles, described as about two
feet long and one inch thick, routinely rested on the ground at the towing lot.
When Bettis testified, he referred to a photograph of a pole found on the site
to explain how the instrument worked. On cross-examination, Bettis
acknowledged that he did not know if the pole in evidence was the same weapon
but observed that it “look[ed] like the one.” The crime scene technician said that
he could not find any fingerprints on the pole in evidence because of its porous
surface.
2
In closing argument, government counsel alternated between referring to
“a” pole and “this” pole. At one point, she said: “Ladies and gentlemen, when you
take this metal pole and strike it twice on someone’s head, you have to know that it
could cause serious bodily injury.”
10
Appellant’s argument, which relies on only one case, is not persuasive. His
brief cites Williamson v. United States, 445 A.2d 975, 980 (D.C. 1982), which
discussed whether a jury could conclude that an umbrella with a pipe attachment
was a dangerous weapon, but there was no dispute in that case about whether the
item in evidence was the umbrella in question. Just as the government may prove
that an object is a dangerous weapon without presenting it in court, it can present
to the jury for illustrative purposes a pole with the same characteristics that might
not have been the exact weapon. See Kidd v. United States, 940 A.2d 118, 129
(D.C. 2007) (gun recovered from defendant’s residence properly admitted even if it
was not conclusively connected to the murder). The failure to identify the weapon
“precisely affect[s] only its evidentiary weight, not its admissibility.” Nelson v.
United States, 601 A.2d 582, 597 (D.C. 1991); see also Hammond v. United States,
77 A.3d 964, 970 (D.C. 2013) (failure to establish a chain of custody “goes to its
weight and not its admissibility”). Thus, the trial judge accurately instructed that
the government did not have the additional burden to prove that the pole in
evidence was the exact object used in the attack.
11
B. Was There Sufficient Evidence of Insurance Fraud?
Appellant asserts that the government presented insufficient evidence to
convict him of either first-degree insurance fraud 3 or conspiracy to commit that
offense. 4 When considering the sufficiency of evidence, we “view the evidence in
the light most favorable to the government, giving full play to the right of the fact-
finder to determine credibility, weigh the evidence, and draw justifiable inferences
of fact, and making no distinction between direct and circumstantial evidence.”
Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C. 2017) (quoting Brooks v.
United States, 130 A.3d 952, 955 (D.C. 2016)). “The evidence is sufficient if ‘any
rational fact-finder could have found the elements of the crime beyond a
reasonable doubt.’” Id. (quoting Hernandez v. United States, 129 A.3d 914, 918
(D.C. 2016)).
3
D.C. Code § 22-3225.02 (2012 Repl.). Both appellant and Haynes were
charged with “presenting false information or knowingly concealing information
regarding a material fact in a claim for payment or benefit pursuant to an insurance
policy or reinsurance contract.”
4
D.C. Code § 22-1805a (2013 Supp.). The three elements of conspiracy are
“an agreement between two or more persons to commit a criminal offense,”
“knowing participation in that agreement with intent to commit the criminal
objective,” and “during the life of the conspiracy, and in furtherance of its
objective, the commission by at least one conspirator of at least one of the overt
acts specified in the indictment.” Harrison v. United States, 76 A.3d 826, 842
(D.C. 2013) (quoting Castillo-Campos v. United States, 987 A.2d 476, 482 (D.C.
2010)).
12
Appellant acknowledges there was “overwhelming evidence” of co-
defendant Haynes’s guilt but argues that he was an “unwitting sidekick.” But a
rational fact-finder could have found otherwise. For instance, text messages and
emails between the two defendants provided sufficient evidence from which a juror
could have justifiably inferred appellant’s culpability. On the night of October 13,
four days before Haynes submitted a doctored receipt to State Farm, appellant
texted her that he planned to “get on the computer and put these receipts together.”
About two hours later appellant texted Haynes, “The one on the right is the one I
fixed up,” attaching an image of two receipts that was presented at trial. The jury
heard other evidence of appellant’s participation in the scheme, including Laura
Gladding’s call with a man using appellant’s phone number. With the evidence
viewed in the light most favorable to the government, this claim is without merit.
C. Was There Sufficient Evidence of AAWA?
Appellant also argues that the government presented insufficient evidence to
convict him of AAWA. We agree.
13
By statute, three tiers of assault exist in the District of Columbia. A
conviction for simple assault, which may, but need not, cause injury, carries a
maximum sentence of 180 days. D.C. Code § 22-404(a)(1) (2013 Supp.). On the
other end of the spectrum, a conviction for aggravated assault can result in a
sentence of ten years. Id. at § 22-404.01. In 2006 the Council of the District of
Columbia added a middle category for an assault causing “significant bodily
injury” (“ASBI”), which carries a maximum three-year sentence. Id. at § 22-
404(a)(2); Omnibus Public Safety Amendment Act, 2006 D.C. Sess. Law Serv.
16–306 (West). Additionally, a defendant convicted of committing a crime of
violence, including aggravated assault and ASBI, while armed faces an
enhancement of these maximum sentences to thirty years. See D.C. Code
§ 22-4502 (2013 Supp.); id. § 23-1331(4) (defining “crime of violence”).
By creating an intermediate felony assault offense, the Council intended to
“fill the gap between aggravated assault and simple assault,” covering assaults that
resulted in “significant (but not grave) bodily injury.” Perry v. United States, 36
A.3d 799, 816 n.30 (D.C. 2011) (quoting D.C. Council, Report on Bill 16–247 at
5–6 (Apr. 28, 2006)). The statute defines “significant bodily injury” as “an injury
that requires hospitalization or immediate medical attention.” D.C. Code
14
§ 22-404(a)(2). By contrast, an aggravated assault must meet the higher bar of
“serious bodily injury.” Id. at § 22-404.01(a)(1).
Two decades ago, this court defined “serious bodily injury” as “bodily injury
that involves a substantial risk of death, unconsciousness, extreme physical pain,
protracted and obvious disfigurement, or protracted loss or impairment of the
function of a bodily member, organ or mental faculty.” Nixon v. United States,
730 A.2d 145, 149 (D.C. 1999). In the intervening years, we have had several
occasions to apply the “serious bodily injury” standard. The court has often noted
the “high threshold of injury” envisioned by the legislature in authorizing a
maximum prison sentence for aggravated assault that is roughly twenty times as
long as that for simple assault. See, e.g., Hollis v. United States, 183 A.3d 737,
741 (D.C. 2018). The assaults that meet this threshold often result in “life-
threatening or disabling” injuries, including stab wounds, intense burns, and
broken bones, see Swinton v. United States, 902 A.2d 772, 775 (D.C. 2006)
(citations omitted) — although the Nixon standard certainly does not require a risk
of death, see Hollis, 183 A.3d at 742–43. “The victims typically required urgent
and continuing medical treatment (and, often, surgery), carried visible and long-
lasting (if not permanent) scars, and suffered other consequential damage, such as
significant impairment of their faculties.” Swinton, 902 A.2d at 775.
15
Appellant argues that the government failed to prove that Lovell suffered
extreme physical pain. This level of pain must be “exceptionally severe if not
unbearable,” which a juror can infer “from the nature of the injuries and the
victim’s reaction to them.” Hollis, 183 A.3d at 743 (quoting Swinton, 902 A.2d at
777). We agree that the government did not meet its evidentiary burden here.
While acknowledging that Lovell “experienced a frightening and painful
unprovoked attack,” In re P.F., 954 A.2d 949, 953 (D.C. 2008) — and that the
victim’s injuries might have been much worse without the intervention of
bystanders or modern medical care — we hold that the record does not establish
that Mr. Lovell suffered extreme physical pain.
One case to which these facts are analogous is Jackson v. United States, 940
A.2d 981, 984 (D.C. 2008), in which a person was beaten with a hammer. The
victim suffered five lacerations, all between two and four centimeters long, as well
as substantial bruising on her face. See id. She was able to walk three blocks to
call for help and was alert upon arriving at the hospital. See id. A CT scan
revealed no broken bones, and she received fourteen stitches to her ear as well as
some to other body parts. See id. The victim was released from the hospital with a
prescription for Tylenol No. 3 to help with her self-described “sharp pains.” See
16
id. at 984–85. Given those facts, the court held that such a level of pain did not
meet the standard of “exceptionally severe if not unbearable” and vacated the
appellant’s AAWA conviction. Id. at 991.
At oral argument, government counsel argued that Lovell’s pain “far
exceeds what this court found sufficient” in Jenkins v. United States, 877 A.2d
1062 (D.C. 2005), and Bolanos v. United States, 938 A.2d 672 (D.C. 2007). We
disagree. The victim in Jenkins — who had suffered stab wounds to his chest,
abdomen, and arm — appeared to be in “a great deal of pain,” according to a
police officer. See 877 A.2d at 1064–65. Almost the entire blade of a seven-to-
eight-inch knife had punctured his stomach, leaving his shirt covered in blood. See
id. at 1071. Upon arriving at the hospital, the patient complained of pain near the
three areas where he had been stabbed. See id. He underwent emergency
exploratory surgery and endured five days of hospitalization before he could move
his arm without difficulty. Upon discharge the physicians prescribed pain
medication and told him to avoid strenuous activity and heavy lifting. See id.
17
In Bolanos, one of three stabbing victims testified that he thought he “was
going to die.” 5 See 938 A.2d at 682. He told a police officer at the scene that he
was in pain and unable to breathe. See id. After he arrived at the hospital, the
victim complained of shortness of breath due to pain. See id. Medical staff
inserted a tube in his chest, and the patient remained at the hospital for forty-eight
hours. See id. at 680 & n.10. Physicians gave him pain medication during his
hospital stay and, upon discharge, prescribed Percocet and told him not to engage
in heavy lifting. See id. at 680, 682. “Under these circumstances,” we concluded,
“a jury could reasonably infer that Mejia suffered ‘extreme physical pain.’” Id. at
682. Neither Bolanos nor Jenkins compels affirmance.
In Lovell’s case, he more than once resisted going to the hospital and, after
getting in an ambulance, was able to walk away to lock his car. In determining
that a victim did not suffer extreme physical pain, this court has “relied heavily” on
the ability of a victim to walk away with or without assistance. See Jackson, 940
A.2d at 991 (victim walked three blocks and called 911 from a pay phone); see
also In re P.F., 954 A.2d at 952 (victim walked to her car with a police officer and
5
This description refers to the injuries suffered by Jose Mejia, whose
assailant’s AAWA conviction was affirmed. The court in Bolanos reversed
AAWA convictions related to attacks on two other individuals. See 938 A.2d at
681–82.
18
did not seek immediate medical attention). In Jackson, the victim did not suffer
any broken bones, internal bleeding, or deep wounds. See 940 A.2d at 984; see
also Bolanos, 938 A.2d at 679–80 (holding that one stabbing victim did not suffer
extreme physical pain when he only required stitches for superficial wounds and
was dismissed from the hospital in less than eighteen hours). Although Lovell was
initially disoriented, the nature of his injuries did not require him to stay overnight
in the hospital, receive surgery, or adhere to post-release restrictions.
Moreover, pain that allows victims to “pursue[] their normal lives” does not
rise to the standard of “extreme.” Alfaro v. United States, 859 A.2d 149, 161 &
n.13 (D.C. 2004). We held that even “vicious whippings to naked children” with a
telephone cord did not meet this threshold when the children were able to fall
asleep after the beatings. See id. Nor does having difficulty with “everyday tasks
such as taking care of [one’s] children, driving [one’s] car, and getting around”
alone demonstrate extreme pain. See In re P.F., 954 A.2d at 951, 953. Lovell
returned to work within a week of the attack and, even though he felt sick the first
time he operated a tow truck, he continued working at his job without apparent
issue. Lovell’s subjective rating that he experienced the highest pain on a ten-point
scale is relevant but not dispositive. See Earl v. United States, 932 A.2d 1122,
19
1132 (D.C. 2007) (holding that the facts did not allow a jury to infer that a victim’s
pain was “extreme” even though she characterized her level of pain as “severe”).
Appellant also disputes that Lovell suffered a “protracted loss or impairment
of the function of a bodily member, organ or mental faculty.” Lovell’s migraines
could fit the definition of “protracted,” which “conveys a sense of prolongation
beyond a short recovery period.” Swinton, 902 A.2d at 777 (citing Webster’s Third
New International Dictionary 1826 (1993)). However, contrary to the
government’s position, there is not sufficient evidence to show that the attack
caused “impairment” to the functioning of Lovell’s brain. More than three months
after the attack, Lovell’s neurologist evaluated “his mental status, his speech, his
cranial nerve, his sensory and motor function [and] his balance.” After Lovell “did
well” on those tests, the neurologist pronounced his exam “all normal” and
prescribed only an antidepressant. Furthermore, Lovell never discussed whether or
how the migraines affected his thinking, speaking, or ability to concentrate, nor did
a medical expert make any claim that his migraines impaired his brain function.
Lovell said the headaches caused him to vomit “sometimes,” without saying
more. 6
6
The government urges us to incorporate case law from other jurisdictions
that migraines constitute a protracted loss to a brain’s function. Perhaps some
(continued…)
20
Lovell unquestionably suffered a severe beating and experienced pain and
discomfort immediately after the attack and in the weeks following it — but the
record is insufficient to demonstrate that he suffered serious bodily injury under
the standards established in our case law.
D. Was There Sufficient Evidence for an ASBI Conviction?
Although we reverse appellant’s conviction for AAWA, the evidence was
sufficient to support a conviction of the lesser-included offense of ASBI while
armed. 7 A bodily injury is “significant” for the purpose of ASBI if it “requires
hospitalization or immediate medical attention.” D.C. Code § 22-404(a)(2). To
conclude that a significant bodily injury occurred, “the nature of the injury itself
(…continued)
migraines could meet this standard, but the precedents cited are not persuasive
authority given the facts of this case. See, e.g., State v. Epps, 313 N.W.2d 553, 557
(Iowa 1981) (discussing a victim who suffered migraines after being shot in the
face and temporarily knocked unconscious).
7
“It is well-established that this court ‘may direct [or allow] the entry of
judgment for a lesser included offense when a conviction for a greater offense is
reversed on grounds that affect only the greater offense.’” Long v. United States,
156 A.3d 698, 715 (D.C. 2017) (alteration in original) (quoting Robinson v. United
States, 100 A.3d 95, 110–11 (D.C. 2014)). Appellant does not challenge that ASBI
is a lesser-included offense of AAWA. See Medley v. United States, 104 A.3d 115,
132 (D.C. 2014) (citing Collins v. United States, 73 A.3d 974, 985 (D.C. 2013)).
21
must, in the ordinary course of events, give rise to a ‘practical need’ for immediate
medical attention beyond what a layperson can personally administer, either to
prevent long-term physical damage or to abate severe pain.” Belt v. United States,
149 A.3d 1048, 1055 (D.C. 2016) (emphasis added) (citation omitted). Such
immediate medical attention is “required” if the “medical treatment can only be
prescribed or administered by trained medical professionals, such as with stitches.”
Id. By contrast, an injury is not considered significant under the statute if it can be
treated merely with “everyday remedies such as ice packs, bandages, and self-
administered over-the-counter medications.” Quintanilla v. United States, 62 A.3d
1261, 1265 (D.C. 2013) (discussing injuries that consisted of bruises to the
victim’s leg, head soreness, partial swelling of her face, and swollen fingers). Nor
is there sufficient evidence for an ASBI conviction if a victim’s hospital visit is
optional or not immediately necessary. See Teneyck v. United States, 112 A.3d
906, 910 (D.C. 2015).
In Nero v. United States, 73 A.3d 153, 158–59 (D.C. 2013), we assessed the
injuries to two gunshot victims and explained why only one was “significant.” A
physician testified that the bullet wound through the bicep of one victim could
have been life-threatening and that there likely would have been a higher chance of
infection had he not received medical treatment. See id. at 158. “To ward off
22
these risks,” physicians gave the patient antibiotics, wound care, and medication to
abate “obvious pain,” and we held the evidence was sufficient to prove that a
significant bodily injury had been inflicted. See id. By contrast, the other victim
“did not even realize that he had been injured until a paramedic had him remove
his jacket,” and it was not clear from the record “whether the bullet actually
penetrated his skin or merely grazed it.” See id. at 159. The treating physician
said “probably not much” would have happened without professional medical
treatment, and we held that the evidence was insufficient to prove that this victim
had suffered a significant bodily injury. See id.
To determine whether treatment is “medical,” we ask whether the attention
required by this type of injury is “aimed at preventing long-term physical damage
and other potentially permanent injuries” or abating severe pain. Quintanilla, 62
A.3d at 1265 (internal quotation marks omitted). This is an objective test which
focuses on the nature of the victim’s injuries. See id. at 1264. In Quintanilla,
EMTs on the scene took pictures of the victim and checked her for both a
concussion (she was “fine”) and a broken finger (“[I]t probably wasn’t.”). See id.
at 1263. We stated that she did not need medical attention (as contemplated by the
definition of “significant bodily injury”) because the treatment required was akin to
“mere diagnosis.” Id. at 1264–65.
 23
When assessing the need for medical treatment, we have recognized that
“not every blow to the head in the course of an assault necessarily constitutes
significant bodily injury.” Blair v. United States, 114 A.3d 960, 980 (D.C. 2015)
(citing Quintanilla, 62 A.3d at 1262). But we held that a reasonable jury could
conclude that a significant bodily injury occurred when “the defendant repeatedly
struck the victim’s head, requiring testing or monitoring to diagnose possible
internal head injuries, and also caused injuries all over the victim’s body.” Id.
(emphasis added). The assailant in that case had “kept banging [the victim’s] head
against the ground,” and the treating physician ordered a CT scan of her head after
being “concerned” about a “significant head injury.” See id. at 979. This court
also held that sufficient proof of a significant bodily injury existed when a victim
suffered a “prolonged beating that included repeated blows to his head”; the
physician ordered CT scans in order to determine whether he had sustained brain
damage or other internal injuries. See Cheeks, 168 A.3d at 698. An injury that
“poses a manifest risk” of long-term physical damage or severe pain may require
diagnostic testing “to evaluate the danger and need for treatment,” so it is still
considered a significant injury whether or not the test results indicate the need for
further professional medical treatment. See id. at 697–98.
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Here, Dr. Wilson testified that a CT scan of Lovell’s head was ordered to
“assess his skull and brain for any signs of internal injury,” such as a fracture or
intracranial bleeding. Medical professionals cleaned the lacerations to Lovell’s
head, injected the wounded areas with an anesthetic, and used eighteen staples to
close the cuts. Dr. Wilson testified that the type of injuries suffered by Lovell
presented the risk of future infection, poor healing, and re-bleeding. “The best
medical care” for his injuries, according to Dr. Wilson, was to have the wounds
closed within twenty-four hours of the attack, after which the chance of infection
would have increased. There would have been a “[h]ighly unlikely but possible”
chance of death, she testified, if Lovell’s scalp wounds had become infected and
those infections had spread to his brain.
Based on our case law, a jury reasonably could conclude that Lovell’s
injuries required immediate medical attention to prevent long-term physical
damage or other potentially permanent injuries to his head. As in Nero, a
physician testified that the types of wounds would have carried a higher risk of
infection had the patient not received prompt medical attention. Unlike in
Teneyck, medical testimony emphasized the importance of treatment within
twenty-four hours of the injury. The treatment for the type of lacerations incurred
by Lovell, including staples and wound-cleaning, and a CT scan to test for brain
25
injuries, required the skill of trained medical professionals. The medical attention
needed for this type of injury was similar to that in cases like Belt and Cheeks
rather than the “mere diagnosis” and minor remedies in Quintanilla. Therefore,
appellant’s sufficiency challenge to an ASBI while armed conviction lacks merit.
III. Conclusion
For the foregoing reasons, we vacate appellant’s conviction of AAWA but
direct the entry of judgment for the lesser-included offense of ASBI while armed.
We also affirm appellant’s convictions for insurance fraud, conspiracy, ADW, and
possession of a prohibited weapon. However, ADW is a lesser-included offense of
ASBI while armed, see Cheeks, 168 A.3d at 695 & n.9, so one of those convictions
must be vacated. Since the trial judge imposed a longer, but concurrent, sentence
for AAWA than ADW, we remand for resentencing. See Herring v. United States,
169 A.3d 354, 360–61 (D.C. 2017) (discussing the sentencing court’s ability to
reallocate the punishment after some but not all convictions have been vacated).
So ordered.