Lucas v. United States ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 15-CF-820, 15-CF-834, & 16-CO-1049
CHRISTOPHER LUCAS and CHRISTINA LUCAS, APPELLANTS,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(CF2-20980-13 & CF3-6253-14)
(Hon. Yvonne M. Williams, Trial Judge)
(Argued September 19, 2018 Decided October 22, 2020)
Barbara E. Kittay for appellant Christopher Lucas.
Joshua Deahl, Public Defender Service at the time, with whom Samia Fam,
Public Defender Service, Thomas D. Engle, * and Sharon L. Burka, were on the
briefs, for appellant Christina Lucas.
Lauren R. Bates, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the reply brief was filed, Channing D. Phillips,
United States Attorney at the time the initial brief was filed, and Elizabeth Trosman,
*
Following initial briefing, Thomas D. Engle withdrew as counsel for
Christina Lucas. The Public Defender Service (PDS) thereafter entered an
appearance for Christina Lucas, filed a supplemental brief on Christina Lucas’s
behalf, and represented her at oral argument. We considered the briefs of both PDS
and Mr. Engle.
2
Nicholas P. Coleman, and Veronica Jennings, Assistant United States Attorneys,
were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH, Associate Judge,
and FISHER, Senior Judge. ∗
Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.
Concurring opinion by Senior Judge FISHER at page 53.
Dissenting opinion by Associate Judge BECKWITH at page 54.
BLACKBURNE-RIGSBY, Chief Judge: Following a joint jury trial, nineteen-
year-old twins appellants Christopher and Christina Lucas were found guilty of
aggravated assault while armed with a “[b]ias-related” penalty enhancement on the
basis of sexual orientation in connection with an assault on victim Jaye Davis. 1
Christopher Lucas was also found guilty of simple assault on victim Ashley
Coleman. 2 They appeal their convictions.
Appellants raise several issues on appeal, two of which – the trial court’s
response to a jury question and the sufficiency of the evidence – require this court
∗
Judge Fisher was an Associate Judge of the court at the time of argument.
His status changed to Senior Judge on August 23, 2020.
1
D.C. Code §§ 22-404.01, -4502 (2012 Repl. & 2020 Supp.); D.C. Code §§
22-3701(1), -3703 (2012 Repl.).
2
D.C. Code § 22-404 (2012 Repl.).
3
to interpret the Bias-Related Crime Act of 1989, D.C. Code § 22-3701(1) (the “Bias-
Related Crime Act”). The Act states, in relevant part, that a “‘[b]ias-related crime’
means a designated act that demonstrates an accused’s prejudice based on the actual
or perceived . . . sexual orientation . . . of a victim of the” crime. Id. We are tasked
with determining the role prejudice must play in motivating a crime before triggering
the enhanced criminal penalties the Bias-Related Crime Act evokes.
Appellants contend that a proper reading of the statute, based on its plain
language and applicable constitutional principles, requires but-for causation,
meaning the jury must determine whether appellants would not have attacked Jaye
Davis “but for” their prejudice against him based on his sexual orientation. See
Burrage v. United States, 571 U.S. 204, 210-211 (2014). Analyzed pursuant to this
standard, they contend, the evidence was insufficient for the jury to apply the bias
enhancement because the evidence shows various motivations for appellants’ attack
on Jaye Davis, but does not show that they attacked him because of their prejudice
against him based on his sexual orientation. The government maintains that any
argument related to the correct interpretation of § 22-3701(1) of the statute is waived
because appellants failed to request a jury instruction requiring but-for causation at
any point during trial. Assuming the issue is appropriately preserved, however, the
government argues that a lesser standard should apply. Further, the government
4
contends, even if but-for causation is required, the trial court appropriately
communicated that standard to the jury. The government urges us to affirm
appellants’ convictions because, it argues, there was sufficient evidence to support
the jury’s findings under either standard.
We hold that the Bias-Related Crime Act requires but-for causation, such that
the government must prove that the appellants assaulted Jaye Davis because of their
prejudice against him based on his sexual orientation. The trial court appropriately
instructed the jury on how to apply the Bias-Related Crime Act. Moreover, in
applying but-for causation, we conclude that the evidence was sufficient for the jury
to find that appellants would not have attacked Jaye Davis absent their prejudice
against him based on his sexual orientation. Appellants’ arguments as to the
causation standard under the Bias-Related Crime Act, however, do not affect their
underlying simple and aggravated assault convictions. Finding no abuse of
discretion on appellants’ remaining challenges to the evidence supporting those
assault convictions, discussed further below, we affirm.
I. Factual and Procedural Background
5
During the evening of October 18 and early morning hours of October 19,
2013, appellants assaulted Jaye Davis after a family gathering hosted at the home of
his uncle, Leo Davis, in Northwest Washington, D.C. 3 That evening, Jaye arrived
at Leo’s home between 8:30 and 9:00 p.m. From the moment he arrived at the
gathering until he left, Jaye was the subject of homophobic taunts, including “gay
this and gay that” comments in tones of “anger and disgust” and being called
“f[*]ggot a[*]s mother f[*]cker.” When Jaye arrived at the party, appellants
Christopher and Christina – who were at the gathering – stared, pointed at Jaye, and
said, “Who is this gay motherf[*]cker?” Appellants both gave Jaye a disgusted look.
Jaye openly identifies as gay, and his cousin Ashley Coleman, also present at Leo’s
house, testified that he “walks . . . girly,” “talks girly,” and “acts” in a way that
exhibits effeminate stereotypes of gay men.
At one point in the evening, Jaye became involved in an argument with some
individuals, including appellants. 4 Ashley could not remember with whom Jaye was
arguing, but testified that Jaye “was going back and forth. He was cursing . . . . he
was being loud, but he was saying things in defense of himself . . . . It was an
3
The individuals in this opinion will be referred to by their first names
because many share last names.
4
The argument allegedly arose out of an altercation between Ashley and
Annie Elder, Christopher’s girlfriend.
6
argument of words. It was a fight with words.” The situation escalated, causing
another individual, Andre Holland, to intervene on Christina’s behalf. Holland
testified that Jaye and Leo were trying to push Christina, prompting Holland to fight
back against both. The police arrived before the argument got out of hand and
instructed the crowd to disperse.
Jaye, his cousin Ashley, and his mother Alicia Coleman left the party at
around 12:20 a.m. and walked to the corner of Sherman Avenue and Harvard Street
Northwest to find a cab; at that intersection, they noticed that a large group had
followed them. Appellants led the group, saying, “[T]here go that f[*]ggot mother
f[*]cker right there.” Ashley and Alicia testified that the group, numbering
approximately ten people and including appellants Christopher and Christina,
attacked Jaye, as well as Ashley and Alicia. During the fight, Christopher hit Ashley
in the head and knocked her to the ground. At one point, Jaye was grabbed by his
throat, pulled onto the ground, and dragged along the sidewalk. Both Christopher
and Christina targeted Jaye and stomped on his face, all while yelling remarks like
“f[*]ggot mother[*]cker.” Christina then took a razor-like object from her pocket,
kneeled next to Jaye, and cut open his face along the left eye. Jaye was left bloodied
and unconscious, and the group – including appellants – ran off. Police officers
7
patrolling the area heard loud screaming, quickly arrived at the scene, and observed
Jaye “bleeding in the face,” in pain, and being cradled in Alicia’s arms.
Jaye testified that he lost consciousness during the assault and did not regain
consciousness until later in an ambulance. Upon arrival at the hospital, Jaye rated
his pain as “severe” and testified that his pain was “like 100” on a scale of one to
ten. Dr. Ashley Humphries, the trauma surgeon who treated Jaye, testified that he
had “several obvious injuries to his face” upon his arrival. Jaye received stitches for
two face lacerations next to and beneath his left eye, one of which was “fairly jagged
in appearance.” A CT scan and X-rays revealed a sinus fracture and a cheekbone
fracture. Jaye also suffered swelling to his wrist, lips, and eyes, and was left with an
“ugly” black scar under his eye. Jaye could not recall who among the group attacked
him first, but remembered hearing “[t]he same words” during the attack that he had
heard when he first arrived at the party: “[t]his f[*]ggot a[*]s mother f[*]cker,
f[*]ggot a[*]s mother f[*]cker.”
At trial, appellants presented evidence that they were not present at the time
of the assault. The jury did not credit their testimony, convicting them of aggravated
assault while armed. As to the bias enhancement, appellants argued that any assault
on Jaye occurred because of other motivations, such as the earlier altercation at Leo’s
8
house, rather than Jaye’s sexual orientation. The jury returned separate verdicts
finding that each appellant committed the crime because of Jaye’s actual or
perceived sexual orientation. Christopher was also convicted of simple assault on
Ashley.
On appeal, appellants raise legal arguments involving the jury instruction
under the Bias-Related Crime Act and a related jury note, arguing that the trial court
failed to instruct the jury that the penalty enhancement requires but-for causation.
Under a but-for causation standard, appellants argue that the evidence was
insufficient to find that they attacked Jaye because of prejudice against him based
on his sexual orientation. Appellants then raise three challenges related to the trial
court’s decisions to (1) limit cross-examination related to the defense’s theory of the
case; (2) permit Jaye’s mother to testify about his condition after he was attacked,
which, appellants argue, elicited an improper emotional response from the jury; and
(3) excuse Jaye after he testified in the government’s case-in-chief.
II. Causation and the Bias-Related Crime Act
In deciding this appeal, we must first determine the causation standard under
the bias enhancement statute. We review issues of statutory interpretation de novo.
9
Aboye v. United States, 121 A.3d 1245, 1249 (D.C. 2015). Questions of statutory
interpretation begin with the plain language of the statute, and we construe words
according to their ordinary meaning. See Clyburn v. United States, 48 A.3d 147,
151 (D.C. 2012). The words of a statute must be read “in light of the statute taken
as a whole” and “are to be given a sensible construction, [] one that would not work
an obvious injustice.” Id. (quoting Columbia Plaza Tenants’ Ass’n v. Columbia
Plaza Ltd. P’ship, 869 A.2d 329, 332 (D.C. 2005)). When appropriate, we also
consult a statute’s legislative history. Id.
A. Statutory Text and Our Jurisprudence
The Bias-Related Crime Act provides enhanced criminal penalties for persons
who commit bias-related crimes, with the opportunity for appropriate civil relief for
their victims. See D.C. Law 8-121, 37 DCR 27 (May 8, 1990). Section 22-3701(1)
of the D.C. Code defines a “[b]ias-related crime” as
a designated act that demonstrates an accused’s prejudice
based on the actual or perceived race, color, religion,
national origin, sex, age, marital status, personal
appearance, sexual orientation, gender identity or
expression, family responsibility, homelessness, physical
disability, matriculation, or political affiliation of a victim
of the subject designated act.
10
See also D.C. Code § 22-3704(a) (2012 Repl.) (providing civil relief to those injured
“as a result of an intentional act that demonstrates an accused’s prejudice based on”
one of the same protected characteristics). Simply put, the statute authorizes a
penalty enhancement if an individual commits a criminal act that “demonstrates . . .
prejudice” based on a victim’s protected characteristic. Id. § 22-3701(1). 5
This court has only had one other occasion to review the statutory definition
of “bias-related crime,” and only did so on limited, plain error review. In Shepherd
v. United States, 905 A.2d 260 (D.C. 2006), we recognized that the statutory
definition of “bias-related crime” – that a criminal act “demonstrates an accused’s
prejudice based on” a protected characteristic – might, if applied literally, punish
“only the fact of being prejudiced, without the constitutionally-required nexus
between that prejudice and the proscribed conduct.” Id. at 262 (citing R.A.V. v. City
5
The statute defines a “designated act” as
a criminal act, including arson, assault, burglary, injury to
property, kidnapping, manslaughter, murder, rape,
robbery, theft, or unlawful entry, and attempting, aiding,
abetting, advising, inciting, conniving, or conspiring to
commit arson, assault, burglary, injury to property,
kidnapping, manslaughter, murder, rape, robbery, theft, or
unlawful entry.
D.C. Code § 22-3701(2). In Aboye, we held that the definition of “designated act”
in § 22-3701(2) was not limited to the crimes delineated therein, but rather included
“any criminal act under District of Columbia law.” 121 A.3d at 1249.
11
of St. Paul, 505 U.S. 377 (1992)). Because the appellant in Shepherd raised the
constitutional issue for the first time on appeal, however, we subjected his argument
to plain error review and did not “review[] the constitutionality of the statutory
definition of a ‘bias-related crime.’” Id. 262. We found that appellant’s conviction
did not present this constitutional issue because the trial court “implicitly applied the
statute as requiring a clear nexus between the bias identified in the statute and the
assault”; therefore, it was “appellant’s assaultive conduct motivated by bias, not his
homophobic prejudice as such, that was subject to criminal sanction.” Id. at 262-63.
The court in Shepherd did not attempt to identify the causation standard required by
the Bias-Related Crime Act, but merely found no plain error in the trial court’s
decision – basing the penalty enhancement on a finding of a nexus between the
appellant’s bias and the assault – thereby sidestepping a constitutional issue.
B. Constitutional Concerns
Understanding what causation is required for an act to “demonstrate[]
prejudice” requires us to determine whether the Bias-Related Crime Act punishes
only the fact of being prejudiced, a potentially impermissible infringement on an
individual’s First Amendment right to expression, or whether it punishes conduct
with a sufficient nexus to the prohibited prejudice. As the parties note, the District’s
12
Bias-Related Crime Act is different from most states’ hate-crime laws, in that the
“majority of [state] statutes define a hate crime as one in which the actor committed
the offense ‘because of,’ ‘by reason of,’ or ‘on account of” another person’s race or
other protected status.” Zachary J. Wolfe, Hate Crimes Law § 3:8 (June 2019)
(surveying statutes). Instead, the “demonstrates . . . prejudice” language of the
District of Columbia’s Act does not expressly require a causal connection between
bias and the criminal act and would appear to punish “the fact of being prejudiced,”
Shepherd, 905 A.2d at 262-63, thus raising constitutional concerns. See R.A.V., 505
U.S. at 391 (finding hate crime statute that prohibits speakers from expressing views
on disfavored subjects places an unconstitutional limit on freedom of expression).
In constructing a constitutionally coherent understanding of the Bias-Related
Crime Act, we take guidance from Wisconsin v. Mitchell, 508 U.S. 476 (1993), in
which the Supreme Court upheld the constitutionality of a Wisconsin hate crime
penalty enhancement statute that prohibited crimes where the perpetrator
“intentionally selects the person . . . because of” the person’s protected characteristic.
Id. at 479-80. Because the statute punished bias-motivated criminal conduct (rather
than explicitly prohibiting expression, i.e., speech or messages), the Court concluded
that “the statute in th[e] case [was] aimed at conduct unprotected by the First
Amendment.” Id. at 487. Guided by this analysis, we interpret the Bias-Related
13
Crime Act in a way that only punishes analogous conduct, i.e., that which is not
protected by the First Amendment.
We also look to State v. Stalder, 630 So. 2d 1072 (Fla. 1994), in which the
Florida Supreme Court reviewed the constitutionality of Florida’s hate crime statute,
which is one of the only other state statutes with language similar to ours. The
Florida statute, entitled “Evidencing prejudice while committing offense,” provides
enhanced penalties if commission of a crime “evidences prejudice based on” the
victim’s protected characteristic. Fla. Stat. § 775.085 (2016). The court accorded
“plain meaning to the statute’s text and title,” finding that it “punishes all who
‘evidence,’ or demonstrate, prejudice in the commission of a crime.” Stalder, 630
So. 2d at 1074. This plain meaning, the court recognized, “proscribes bias-
evidencing crimes,” which “embrac[es] two broad classes of offenses”: first,
“offenses committed because of prejudice,” and second, “offenses committed for
some reason other than prejudice but that nevertheless show bias in their
commission.” 6 Id. at 1076. The court reasoned that the statute could not be read to
apply to the second class because the expression of bias “is related to the underlying
6
The court offered the following example to demonstrate this second class of
offense: “A beats B because of jealousy, but in the course of the battery calls B a
racially derogatory term.” Stalder, 630 So. 2d at 1076. The fact that the racially
derogatory term intersects with the assault is “mere temporal coincidence.” Id.
14
crime in only the most tangential way”: they “share the same temporal framework,
nothing more.” Id. As such, the proscribed conduct is “pure expression” and,
pursuant to the principles articulated by the Supreme Court in R.A.V., “cannot be
selectively banned.” Id. Thus, the court read the Florida statute as “embracing only
bias-motivated crimes,” i.e., the first class of offenses, in which the “targeted
activity—the selection of the victim—is an integral part of the underlying crime”
and therefore not protected speech at all. Id. The court read the Florida statute
narrowly, consistent with the statutory language and legislative intent, to save it from
unconstitutionality, holding that a bias-motivated crime is “any crime wherein the
perpetrator intentionally selects the victim because of the victim’s” protected
characteristic. Id. at 1077.
“[W]e apply the canon of constitutional avoidance, ‘an interpretive tool,
counseling that ambiguous statutory language be construed to avoid serious
constitutional doubts.’” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1236
(D.C. 2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516
(2009)). Mitchell and Stalder lead us to conclude that the Bias-Related Crime Act
is constitutional to the extent that it provides an enhanced penalty for bias-motivated
crimes, that is, a crime that an individual perpetrates against a victim because of
prejudice based on the victim’s protected characteristic. While both courts endorsed
15
an “intentional selection” standard (Mitchell by statute and Stalder by
interpretation 7), neither defined the constitutional floor of criminal liability pursuant
to a hate crime statute under that standard. 8 Instead, both recognize that the
constitutionality of the hate crime statute is premised on punishing conduct causally
linked to the individual’s bias against a victim because of statutorily defined
protected characteristics.
C. Legislative History
Concluding that the Bias-Related Crime Act only reaches bias-motivated
crimes, we must determine its causation standard. Because of the lack of clarity in
7
After Stalder, a Florida intermediate court analyzed the causation standard
applicable to Florida’s “evidencing prejudice” statute – which the court in Stalder
interpreted as requiring that the “perpetrator intentionally selects the victim because
of the victim’s” protected characteristic, 630 So. 2d at 1077 – and held that “[t]he
essence of criminality under section 775.085 is that prejudice be a significant factor
in bringing about the commission of the underlying crime, i.e., but for the racial
enmity, the underlying crime would not have occurred.” State v. Hart, 677 So. 2d
385, 387 (Fla. Dist. Ct. App. 1996). The Florida Supreme Court has not since
weighed in on the statute’s causation standard.
8
For example, at least one court has held that an “intentional selection”
standard under the sentencing enhancement of the federal hate crime statute is met
by a “substantial motivating factor” standard, see United States v. Smith, 365 F.
App’x 781, 788 (9th Cir. 2010), though it remains unclear whether an “intentional
selection” standard requires anything more than but-for causation. See supra n.7.
16
the statutory language of “demonstrates . . . prejudice,” we turn to legislative history
to evaluate whether the Council of the District of Columbia (the “Council”)
expressed its intent on this question. Clyburn, 48 A.3d at 151. The Judiciary
Committee of the Council, in a report issued prior to enactment, stated that the need
for the Bias-Related Crime Act arose from “an alarming increase in crimes
motivated by bigotry and prejudice in the District.” Report to the Council on Bill 8-
168 from the Committee on the Judiciary, at 2 (Oct. 18, 1989). 9 In support of the
bill, Inspector David W. Bostrom of the D.C. Metropolitan Police Department
(MPD), testifying on behalf of the executive branch, stated that “[i]t is our
understanding that the intent of [the criminal provisions] of this Bill is to enhance
the criminal penalties for a crime when the crime is committed because of prejudice
based upon the victim’s” protected characteristic. Id. at Attachment III, p. 1
(emphasis added). Inspector Bostrom advocated against then-proposed language
that defined a “[b]ias-related crime” as a “designated criminal act ‘that demonstrates
9
We note with concern that the number of hate crimes in the District has only
risen since the passage of the Bias-Related Crime Act (which we acknowledge may
be a result of increased reporting). As reported by the Metropolitan Police
Department (MPD), the number of bias-related crimes reached a high of 205
offenses in 2018 (dropping slightly lower to 203 in 2019) from a low of 38 in 2008.
See MPD, Bias-Related Crimes (Hate Crimes Data) (last visited June 23, 2020),
https://MPDC.dc.gov/node/208722 https://perma.cc/5XJK-GQAW; MPD,
Metropolitan Police Department Annual Report 2009, p. 26, available at
https://mpdc.dc.gov/sites/default/files/dc/sites/mpdc/publication/attachments/ar_20
09_lowres.pdf https://perma.cc/6L9R-UEKM.
17
in whole or in part, prejudice based upon’” a protected characteristic. Id. (emphasis
added). A later version of the bill deleted the “in whole or in part” language, but
defined “[b]ias-related crime” as “a separate element of a designated act that is
proven and found to be based primarily upon” the protected characteristic. Id. at
Attachment II, pp. 1-2 (emphasis added). The Council ultimately enacted a
definition of “bias-related crime” that excluded both “in whole or in part” and
“primarily,” passing the current language of “demonstrates . . . prejudice.” See D.C.
Law 8-121, § 2; D.C. Code § 22-3701(1). The legislative history is silent as to this
final change, thus providing little insight as to the Council’s intent regarding
causation and merely evincing the Council’s intent to eschew both “in whole or in
part” and “primarily” as causation standards. See also Bostock v. Clayton Cty., Ga.,
No. 17-1618, --- S. Ct. ---, 2020 WL 3146686, at *5 (June 15, 2020) (noting that
legislative intent when using words such as “solely” and “primarily” is meant to
indicate that a factor be the sole or “main cause”).
D. But-For Causation
Against this backdrop, the government argues that the most natural reading of
the statute is that an act demonstrates prejudice if the accused’s prejudice is a
“contributing cause” of the crime or a motivating factor. Appellants, on the other
18
hand, argue that but-for causation is required. Both parties rely on the Supreme
Court’s discussion of the causation standard for criminal liability in Burrage v.
United States, 571 U.S. 204 (2003), asserting that Burrage supports their respective
positions.
In Burrage, the Supreme Court analyzed the causation standard of the
mandatory-minimum sentencing provision of the Controlled Substances Act, which
imposes a twenty-year mandatory minimum sentence on any defendant who
unlawfully distributes a controlled substance when “death or serious bodily injury
results from the use of such substance.” Burrage, 571 U.S. at 206 (quoting 21 U.S.C.
§ 841(a)(1), (b)(1)(A)-(C) (2012 ed.)). The Court held that “results from,” when
given its ordinary meaning, “requires proof that the harm would not have occurred
in the absence of—that is, but for—the defendant’s conduct.” Id. at 211 (internal
quotation marks and citation omitted). Even if there are multiple contributing
factors, one factor can be a but-for cause “so long as the other factors alone would
not have [caused the particular result] – if so to speak, it was the straw that broke the
camel’s back.” Id. The Court noted that “results from” as employed in §
841(b)(1)(C) is similar in meaning to other causation language such as “based on”
and “because of,” all of which require but-for causation. Id. 212-13. The “but-for
requirement is a part of the common understanding of cause.” Id. at 211; see also
19
Bostock, 2020 WL 3146686, at *4 (describing but-for causation as a “simple” and
“traditional” standard).
While the Court in Burrage concluded that the Controlled Substances Act
required but-for causation, it recognized and discussed the implications of such a
standard for purposes of criminal liability. The Court noted that but-for causation is
reflected in the Model Penal Code’s “traditional understanding” of causal
relationship: that “[c]onduct is the cause of a result [when] it is an antecedent but
for which the result in question would not have occurred.” Burrage, 571 U.S. at 211
(quoting Model Penal Code § 2.03(1)(a) (Am. Law Inst. 1985)). This formulation,
the Court noted, represents “the minimum requirement for a finding of causation
when a crime is defined in terms of conduct causing a particular result.” Id. (quoting
Explanatory Note to Model Penal Code § 2.03(1)). In comparison, the Court
recognized that a “substantial” or “contributing” factor test – as the government
proposed in Burrage (and also proposes here) – fails to clarify “how important or
how substantial a cause must be” (“50 percent more likely? Fifteen percent? Five?
Who knows”) and therefore would inject “[u]ncertainty” that “cannot be squared
with the beyond-a-reasonable-doubt standard applicable in criminal trials.” 571 U.S.
at 218. Alternatively, the Court was unwilling to adopt the government’s
“permissive” standard given the rule of lenity. Id. at 216.
20
Recently in Fleming v. United States, this court accepted the analytical
framework laid out in Burrage and held that a conviction under the District’s second-
degree murder statute – making it a crime to “kill[] another,” i.e., cause death –
requires but-for causation. See 224 A.3d 213, 217, 219-21 (D.C. 2020) (en banc).
Thus, “a defendant cannot be held to have personally caused a death unless an action
by the defendant is a but-for cause of the death, i.e., unless it is true that in the
absence of the defendant’s action the death would not have occurred.” Id. In
describing but-for causation, this court noted that it requires the government to
“prove that, if one subtracted the defendant’s actions from the chain of events, the
decedent would not have been killed.” Id. at 221. The Fleming court endorsed the
following language as properly instructing a jury on but-for causation: “the
government must prove that the decedent’s death occurred as a result of an action
by the defendant. In other words, the government must prove that in the absence of
an action by the defendant the decedent’s death would not have occurred.” Id. at
229.
Courts interpreting hate crime statutes have adopted a but-for causation
standard in order to steer clear of breaching constitutional limits (albeit within the
context of statutes requiring that the crime occur “because of” a victim’s protected
21
characteristic). See, e.g., United States v. Miller, 767 F.3d 585, 592 (6th Cir. 2014)
(interpreting federal hate crime statute using “because of” as requiring but-for
causation, in part because any lesser standard “treads uncomfortably close to the line
separating constitutional regulation of conduct and unconstitutional regulation of
beliefs”); State v. Hennings, 791 N.W.2d 828, 834 (Iowa 2010) (noting that “causal
connection between prejudice and a prohibited action . . . protects hate-crime statutes
from constitutional challenge,” and requiring discriminatory animus to be a but-for
cause of the offense under the Iowa statute), overruled on other grounds by State v.
Hill, 878 N.W.2d 269 (Iowa 2016); In re M.S., 896 P.2d 1365, 1377 (Cal. 1995)
(defining “because of” to require causation in fact and affirming constitutionality of
California hate crime statute); Hart, 677 So. 2d at 387 (holding that under Florida
statute, prejudice must “be a significant factor in bringing about the commission of
the underlying crime, i.e., but for the racial enmity, the underlying crime would not
have occurred” to comport with Stalder First Amendment analysis).
E. The Bias-Related Crime Act Requires But-For Causation
We are persuaded by the reasoning of Burrage that the Bias-Related Crime
Act requires but-for causation. To find the penalty enhancement applicable to an
individual accused of a crime, the government must prove that the accused would
22
not have committed the underlying crime but-for prejudice against the victim based
on the victim’s protected characteristic. Moreover, if there was genuine doubt
regarding the Council’s intent, the rule of lenity would counsel us to adopt a more
lenient interpretation in favor of criminal defendants. See Holloway v. United States,
951 A.2d 59, 65 (D.C. 2008). In adopting a but-for causation standard, we do not
restrict a description of such causation to the words “but for,” but instead recognize
that such language reflects a causation standard similar in meaning to language such
as “based on,” “because of,” and “results from.” See Campbell v. United States, 307
F.2d 597, 601 (D.C. Cir. 1962) (noting that the language “product of,” “because of,”
“but for,” and “result of” all articulate but-for causation). Under any such
formulation, in this context, a jury is required to find that in the absence of an
appellant’s bias, the crime would not have occurred.
In arguing for a lesser standard, the government contends that but-for
causation is misplaced when results “proceed from the contributions of many
causes.” But-for causation, however, is entirely consistent with a situation within
which multiple causes contribute to a specific result. At its most basic level, but-for
causation means “where A shoots B, who is hit and dies, we can say that A actually
caused B’s death, since but for A’s conduct B would not have died.” Burrage, 571
U.S. at 211 (quoting 1 W. LaFave, Substantive Criminal Law § 6.4(a), at 464-66 (2d
23
ed. 2003)). However, a factor can satisfy but-for causation when it is one of multiple
contributing factors; it does not have to be the largest contributing factor, but can be
one factor that combines with others to produce the result. Burrage, 571 U.S. at 211;
see also Bostock, 2020 WL 3146686, at *5 (“Often, events have multiple but-for
causes. . . . A defendant cannot avoid liability just by citing some other factor . . . .
So long as the [prohibited factor] was one but-for cause . . ., that is enough to trigger
the law.”). For example, if a man plagued with multiple diseases is poisoned and
dies, the poison was a but-for cause of his death so long as, without the incremental
effect of the poison, the man would have lived. Burrage, 571 U.S. at 211. 10 But-for
10
As we recognized in Fleming, and as acknowledged by the Supreme Court,
the “rare” exception to the existence of but-for causation is when “multiple sufficient
causes independently, but concurrently, produce a result.” 224 A.3d at 222 (quoting
Burrage, 571 U.S. at 214-15). For example:
“A stabs B, inflicting a fatal wound; while at the same
moment X, acting independently, shoots B in the
head . . . also inflicting [a fatal] wound; and B dies from
the combined effects of the two wounds,” A will generally
be liable for homicide even though his conduct was not a
but-for cause of B’s death (since B would have died from
X’s actions in any event).
Burrage, 571 U.S. at 215 (quoting LaFave at 468) (alternations in original).
Although the government argues that employing a contributing cause standard
would address such a situation, the Court in Burrage found that it would cause
“confusion” to equate a situation in which there are “multiple independently
sufficient causes” with a situation employing a “substantial factor” analysis. Id. at
217 n.5. In this exceptional case, neither is truly a but-for cause because the harm
would have occurred regardless (due to the separate, independent causes). Multiple,
24
causation, however, does not evaluate the weight of each factor; a factor is not a but-
for cause merely because it contributed to a particular degree in leading to a result.
See id. at 218. Rather, but-for causation merely determines whether a particular
factor played a necessary role in leading to a particular result.
The same can be said when a result is achieved and the but-for cause, though
one of multiple causes, is the most obvious or apparent factor that caused the result.
In the context of murder, it is “well understood” that “a defendant’s conduct that
hastens the decedent’s death is a but-for cause of death.” Fleming, 224 A.3d at 222.
This is true despite the fact that everyone is mortal and that death will ultimately
result, regardless of whether a defendant’s conduct hastens it. Id. Alternatively,
take for example, a baseball game in which the visiting team’s leadoff batter hits a
home run in the first inning. Burrage, 571 U.S. at 211-12. If the final score is 1-0,
the logical conclusion was that the victory was achieved because of the home run.
Id. at 212. Naturally, we can say that the victory was a consequence of the home
run if the victory would not have occurred absent the home run. Id. Importantly,
Burrage states that “[i]t is beside the point that the victory also resulted from a host
independent causes represent a narrow carve-out from but-for causation, though we
need not address such a possible exception because the government has not argued
that the present case calls for it.
25
of other necessary causes,” including teamwork, skillful coaching, or favorable
weather. Id. 11 On the other hand, had the visiting team won 5-2, it cannot
necessarily be said that the victory was owed to that single home run, mostly because
it did not affect the outcome of the game but rather “merely played a nonessential
contributing role in producing the event.” Id.
Thus, to be considered a but-for cause of a result, the cause must be necessary
to the result – meaning the result would not have been achieved without the cause.
It does not matter if there were several other important causes; we must look at the
effect the one particular cause had on the result and assess whether it may have been
the “straw that broke the camel’s back,” id. at 211-12, or the tipping point leading to
11
We also find the jury instruction’s formulation of but-for causation to be
similar to the Supreme Court’s recent discussion of that standard as applied to Title
VII:
[A] straightforward rule emerges: An employer violates
Title VII when it intentionally fires an individual
employee based in part on sex. It doesn’t matter if other
factors besides the plaintiff’s sex contributed to the
decision. . . . If the employer intentionally relies in part on
an individual employee’s sex when deciding to discharge
the employee . . . a statutory violation has occurred.
Bostock, No. 17-1618, 2020 WL 3146686, at *6.
26
an outcome. By these analogies, we do not imply that a but-for cause be the last one,
but only recognize that it must be a necessary cause – when combined with all other,
potential causes – leading to the relevant result. We also acknowledge that but-for
causation is not an onerous standard; it is, in fact, the minimum causation required.
See id. at 211; see also Crews v. United States, 369 A.2d 1063, 1067 & n.3 (D.C.
1977) (noting the “less rigorous causal analysis of the ‘but for’ test”).
In sum, we hold that § 22-3701(1) requires that a defendant’s bias against a
victim due to the victim’s protected characteristic must be a but-for cause of the
defendant’s underlying criminal act. Bias need not be the sole cause, or even the
primary cause. And it may interact with several other causes in causing the end
result. For purposes of the Bias-Related Crime Act, however, bias against the
victim’s protected characteristic must be a but-for cause for a factfinder to find that
the accused committed the underlying crime.
III. Standard of Review
Having found that the Bias-Related Crime Act requires but-for causation, we
are now equipped to turn to the issues raised by appellants related to the penalty
enhancement.
27
A. Jury Instructions
The accuracy of a jury instruction is a legal question that this court reviews de
novo. See Wash. Inv. Partners of Del. LLC v. Sec. House, K.S.C.C., 28 A.3d 566,
577 (D.C. 2011). When analyzing jury instructions, the “central question for this
court is whether the instruction is an adequate statement of the law, and whether it
is supported by evidence in the case.” Koonce v. District of Columbia, 111 A.3d
1009, 1022 (D.C. 2015) (brackets and citation omitted). Here, we must assess
whether the form jury instructions provided by the trial court, taken from the
Criminal Jury Instructions for the District of Columbia, commonly referred to as the
“Red Book,” were an accurate statement of the law. 12
B. Response to the Jury Note
12
While not the law, the Red Book jury instructions are “technically
unofficial” form jury instructions that are “regularly updated and widely used” in the
District of Columbia. Cousart v. United States, 144 A.3d 27, 30 n.7 (D.C. 2016).
“The instructions and accompanying extensive comments are prepared by a
committee consisting of volunteer judges and experienced practitioners under the
overall supervision of a law professor.” Id.
28
While we review the trial court’s decision on what, if any, response to give to
a jury’s question for abuse of discretion; the accuracy of the instruction itself is a
legal question that we review de novo. See Fleming, 224 A.3d at 219; Brown v.
United States, 139 A.3d 870, 875 (D.C. 2016); Gray v. United States, 79 A.3d 326,
337 (D.C. 2013). “[T]he trial court must give the jury an accurate and fair statement
of the law.” Pannu v. Jacobson, 909 A.2d 178, 198 (D.C. 2006). Moreover, the
trial court should clear away the jury’s specific difficulties “with concrete accuracy.”
Gray, 79 A.3d at 337. The jury’s confusion as to an issue requires that the trial court
convey “an appropriate and effective response.” Id.
C. Sufficiency of the Evidence
When reviewing challenges to the sufficiency of the 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) (citation
omitted). We will affirm if, after reviewing the evidence in the light most favorable
to the government, “any rational fact-finder could have found the elements of the
29
crime beyond a reasonable doubt.” Hernandez v. United States, 129 A.3d 914, 918
(D.C. 2016).
IV. Analysis
We conclude that the trial court’s instruction to the jury was a correct
statement of the law, that the trial court did not abuse its discretion in reiterating that
instruction in response to the jury note, and that the evidence was sufficient to
support the jury’s verdict.
A. The Jury Instruction Adequately Reflected the Requisite
Causation
The trial court read to the jury the following excerpt from the Red Book
instruction, using the names of appellants:
The elements of the offense of bias-related crime, each of
which the government must prove beyond a reasonable
doubt, are that Christopher [and Christina] Lucas
committed a criminal act against another person – in this
case the lead charge is aggravated assault while armed –
and he committed the crime of aggravated assault while
armed because of prejudice based on the actual or
perceived sexual orientation of the other person. . . .
If you are not convinced the government has proven
beyond a reasonable doubt the elements of a bias related
30
crime as that offense has been defined, you must find the
defendant not guilty of this offense. In making your
determination, it does not matter if Christopher [and
Christina] Lucas had additional motives for doing what he
did, such as personal anger or revenge.
See Criminal Jury Instructions for the District of Columbia, No. 8.104 (5th ed. 2018)
(emphasis added). The comment to the instruction only states that it is “based upon
D.C. Official Code § 22-3701 (2001),” which “prohibits a designated act that
demonstrates prejudice.” Id.
Through the Red Book instruction, the trial court adequately conveyed but-
for causation to the jury. The first paragraph of the jury instruction explains that the
jury must find that appellants assaulted Jaye “because of” prejudice based on Jaye’s
sexual orientation. As the Supreme Court has noted, the phrase “because of” imparts
the requisite but-for causal standard. See Burrage, 571 U.S. at 213-14. In describing
terms such as “based on” and “by reason of,” the Court recognized that such
language “in common talk . . . indicates a but-for relationship” and that the “but-for
requirement is a part of the common understanding of cause.” Id. at 211, 213. In
Fleming, this court endorsed a jury instruction that used “as a result of” to describe
31
but-for causation. 224 A.3d at 229. 13 Recognizing this common-sense
understanding, we believe it is accurate to understand “because of” as articulating
but-for causation. 14 We do not read the jury instruction as applying any lesser
standard.
13
Cf. E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1076 (6th Cir. 2015)
(affirming jury instruction on but-for causation in Title VII retaliation case when
instruction stated that “the plaintiff . . . must establish that [the claimants] were
subjected to adverse employment actions by the defendant because of their internal
complaints . . . .” and noting that “phrase ‘because of’ denotes a but-
for causation relationship” (alternation in original)).
14
The dissent is not of the opinion that “because of” can convey the nuances
of but-for causation. Expressing concern that a lay jury may not be aware that
“because of” has been interpreted, within the legal context, to communicate “but-
for” causation. However, we establish no expectation that the jury know about the
specific legal interpretation, we simply clarify that but-for causation can be
articulated in the English language in more ways than through the explicit use of
“but-for.”
The dissent believes the example appellant Christina Lucas provides
highlights that the colloquial phrase “because of” cannot adequately convey the
complexities of but-for causation. The example provided–the friend going to the
store because she needs milk, bread, and eggs–explicitly valuates one factor’s
contribution in bringing the result, specifically the need for eggs is the primary
reason the friend is going to the store. As discussed, but-for causation is not a
discernment of degree, it requires a determination that a particular factor was
necessary to produce the result, regardless of its percentage contribution to the result
or weight in relation to other causal factors. See supra pp. 23-24 (citing Burrage,
571 U.S. at 218). The initial instruction appropriately conveyed but-for causation;
the criminal act was committed because of bias relating to the sexual orientation of
the victim regardless of other motivating factors.
32
The jury was then instructed in how to evaluate bias in light of other, potential
causal factors. The middle of the second paragraph made the jury aware that other
motives for appellant’s conduct do not, alone, negate the applicability of the bias
enhancement. The instruction’s explanation that “it does not matter if [appellants]
had additional motives for doing what [they] did” is consistent with the language
from Burrage, which noted that “[i]t is beside the point that [an outcome] also
resulted from a host of other necessary causes.” Id. at 212. Instead, the instruction
focused the jury on bias, asking it to determine whether appellants attacked Jaye
“because of” prejudice based on his sexual orientation. If the evidence showed,
beyond a reasonable doubt, that appellants attacked Jaye because of his sexual
orientation, then the jury could apply the penalty enhancement. Indeed, appellants
do not explain how the jury could have somehow misapplied the causal element. 15
15
By using the language “because of,” we conclude that the Red Book
instruction articulated but-for causation. That the instruction could more clearly
explicate or exemplify but-for causation, such as describing bias as a necessary
causal factor or noting that jury must find that the resulting crime would not have
occurred in the absence of such bias, however, does not render it an inadequate or
improper statement of the law. See Koonce, 111 A.3d at 1022 (noting that “central
question” is whether the “instruction is an adequate statement of the law”); cf. Arthur
Young & Co. v. Sutherland, 631 A.2d 354, 370 (D.C. 1993) (“No magic words were
required so long as the instruction fairly and accurately informed the jury of the
applicable law and the requirements of proof.”).
33
B. The Trial Court’s Response to the Jury Note Adequately Cleared
Away Any Potential Confusion
We find that the trial court did not abuse its discretion in responding to the
jury’s note by reiterating the above jury instruction. During deliberations, the jury
sent the following note: “Does prejudice based on sexual orientation need to be the
only reason a crime was committed? Does prejudice based on sexual orientation
need to be the primary reason a crime was committed?” After discussing the
questions with counsel for both sides and over the defense counsel’s objection, the
trial court decided to reiterate the Red Book instruction to the jury:
In your instructions on pages 19 and 27, . . . in making
your determination it doesn’t matter if Christopher or
Christina Lucas had additional motives for doing what
they did, such as personal anger or revenge. Your question
is whether or not the government has proven beyond a
reasonable doubt that the defendants acted based upon the
actual or perceived sexual orientation of Jaye Davis. If the
government has proven that fact beyond a reasonable
doubt, then you can find that there was a bias. If they have
not proven that fact beyond a reasonable doubt, then you
cannot find bias, notwithstanding whatever else may have
been going on.
34
A few hours later, the jury returned guilty verdicts on all charges. We conclude that
the trial court did not err in reiterating the jury instruction in response to the jury’s
question. 16
Appellants contend that the trial court’s response did not adequately resolve
the jury’s confusion with respect to the required causation standard. First, we do not
interpret the jury’s note as expressing confusion about whether to apply a different
or lesser standard. Such an argument is only plausible when reading “because of”
as applying a standard other than but-for causation. 17 As we explained above and as
16
The government contends that appellants waived their challenge by
agreeing to the trial court’s ultimate decision to reiterate the jury instructions, and
that, even if we were to entertain appellants’ challenge, “it would be reviewable at
most for plain error.” We disagree that appellants’ challenge is waived or should be
reviewed for plain error because, “consistent with the purposes of [Super. Ct. Crim.
R. 30], the [trial] court had the opportunity to correct errors and omissions which
otherwise might necessitate a new trial.” Preacher v. United States, 934 A.2d 363,
369 (D.C. 2007) (internal quotation marks omitted) (holding that appellant
adequately preserved his request for review when “appellant’s counsel made clear
the request for an instruction on assault before the jury resumed deliberations
following its note specifically requesting the definition of ‘assault’”).
17
Appellants maintain that the jury may have applied a “motivating factor”
or “contributing factor” test, which purportedly implies a lower standard than but-
for causation. Jury instructions that refer to these and other standards – such as a
substantial, contributing, or motivating factor – use language to that effect and often
refer to the factor as one of many that may have caused the result. See, e.g., Standard
Civil Jury Instructions for the District of Columbia, No. 5-13 (rev. ed. 2018)
(Negligence; multiple causes) (“There may be more than one cause of harm. Several
factors or circumstances, or the acts or omissions of two or more persons, may cause
35
discussed by the Court in Burrage, however, the “but-for requirement is part of the
common understanding of cause”; in “common talk,” phrases like “‘based on’
indicate a but-for causal relationship.” 571 U.S. at 211, 213. There is no indication
that the jury applied any standard other than but-for causation. At trial, defense
counsel proposed instructing the jury using the language in Shepherd, which stated
in dicta that the penalty enhancement can be applied when there is “a clear nexus
between the bias identified in the statute and the assault.” 905 A.2d at 262. As
discussed above, our decision in Shepherd only found, under plain error review, that
a nexus between the bias and criminal conduct was required to avoid constitutional
issues. Instructing the jury to find “a clear nexus,” which does not convey but-for
causation, would have misstated the law and confused the jury further. Nor is there
any force to the argument that using additional language proposed by appellants, like
the same harm. Each of the acts or omissions that played a substantial part in the
harm is a cause. This is true even if one of the acts or omissions contributed more
than another to causing the harm, so long as each act or omission played a substantial
part in the harm.”); Sutherland, 631 A.2d at 369 (affirming the use of the following
jury instruction for a retaliation claim under the D.C. Human Rights Act: “causation
means something was a substantial contributing factor. The law recognizes more
than one reason for an action. You, however, determine if protected activity, that is,
the discrimination claim, was a substantial contributing factor in [the] decision.”);
Furline v. Morrison, 953 A.2d 344, 350-51 (D.C. 2008) (noting that the jury
instruction on a retaliation claim required that the “retributive motive ‘played
a substantial part in the suspension decision, even though other factors also may
have motivated’ the decision”).
36
“but-for,” would have provided the jury any further clarity than was provided by the
use of “because of” and “based on.”
Alternatively, and more importantly, appellants argue that the jury note
reflected confusion about how to apply but-for causation, thus requiring the trial
court to clear away such confusion with concrete accuracy. While we acknowledge
that the jury’s note expressed some confusion, we must be careful to isolate the
nature of that confusion and ensure that the trial court properly responded in kind.
The jury’s note asked whether bias needed to be the “only” or “primary” reason for
appellants’ conduct. These queries sought clarification from the trial court regarding
the degree to which appellants’ prejudice needed to motivate Jaye’s assault.
As we have discussed, but-for causation is not a discernment of degree.
Rather, but-for causation determines whether a particular factor was necessary to
produce a result, regardless of its percentage contribution to the result or weight in
relation to other causal factors. See, e.g., Burrage, 571 U.S. at 218 (rejecting
“substantial” or “contributing” factor tests because they seek to quantify the
relationship between the relevant causal factor and the end result, thereby injecting
uncertainty that cannot be squared with a beyond-a-reasonable-doubt standard).
Importantly, the Council rejected “primarily” as a causation standard. Responding
37
to the jury’s questions concerning the degree to which bias motivated the assault
would not have clarified any confusion about the application of but-for causation.
The trial court’s response, therefore, sought to steer the jury back to the critical
inquiry of but-for causation.
Importantly, the trial court directed the jury to the initial instructions, which,
as we explained, adequately conveyed but-for causation. The initial instruction
informed the jury that it was required to find that appellants assaulted Jaye “because
of” their bias, and that such determination should be made regardless of other
potential motivating factors. The reinstruction also noted that it “doesn’t matter if
[appellants] had additional motives,” reminding the jury that the relative weight of
several causal factors was not determinative in assessing whether bias was a but-for
cause. It then restated the relevant question as whether “the government has proven
beyond a reasonable doubt that the defendants acted based upon the actual or
perceived sexual orientation of Jaye Davis,” i.e., because of prejudice. Turning the
jury’s focus to whether appellants acted “based upon” Jaye’s sexual orientation
correctly clarified confusion as to whether their bias was a but-for causal factor.
38
Referring the jury back to the original instruction was entirely appropriate in
this circumstance because the instructions reflected the law. 18 See Colbert v. United
States, 125 A.3d 326, 334-35 (D.C. 2015). In Colbert, the jury sent a note to the
judge asking for clarification as to the elements of the crimes charged. Id. at 333.
We held that the trial court’s decision to respond to the jury by “telling the jury to
re-read the elements of each offense, paying special attention” to the language
“already included therein,” was appropriate, particularly because the answer to the
jury’s question was contained therein. Id. at 333-34. We further held that this
approach was appropriate in that context “because there is no indication in the jury
18
The dissent takes the position that to clear up any jury confusion “with
concrete accuracy,” Bollenbach v. United States, 326 U.S. 607, 612-13 (1946), the
trial court was required to do more than restate the instruction, proposing that “but
for” should have been explicitly included in responding to the jury note. However,
modifying the instruction to specifically include the words “but for” is not markedly
different than the original jury instruction because but-for causation was already
clearly conveyed. As discussed, the phrases “because of” and “based on” are
indicative of a but-for relationship which is commonly understood as a standard for
assessing causation. See Burrage, 571 U.S. at 211, 213-14.
As mentioned, but-for causation does not entail weighing factors, but
determines if a particular factor is necessary to produce a result. See, e.g., Burrage,
571 U.S. at 218 (rejecting “substantial” or “contributing” factor tests because they
seek to quantify the relationship between the relevant causal factor and the end result
but fail to clarify how important or how substantial a cause must be). Ultimately,
substituting “because of” with “but for” would not clear up the jury’s confusion, it
would be a recitation of the original instruction – which the trial court did, and which
we conclude was the proper response to direct the jury back to applying but-for
causation.
39
note that the jury was misinterpreting the court’s instructions or was misconstruing
the elements of a crime.” Id. at 334. Colbert is analogous to this case, where the
trial judge’s decision to answer the jury’s question – regarding the role that prejudice
must play in appellants’ motivation – by reiterating the initial instruction was correct
because the answer was contained therein, which instructed the jury to determine
whether appellants assaulted Jaye because of their prejudice against his sexual
orientation. 19 See also Waddington v. Sarausad, 555 U.S. 179, 196 (2009)
(concluding that the trial judge’s response “directing [the jury’s] attention to the
precise paragraph” of the jury instructions was entirely appropriate because the
instructions were “constitutionally adequate instruction” and “answer[ed] its
inquiry”).
We find it compelling that the jury did not request a second clarification, and
there is nothing in the record to suggest that the jury did not follow instructions or
that it failed to heed the trial court’s direction. Where a jury asks no follow-up
questions, the Supreme Court “has presumed that the jury fully understood the
judge’s answer and appropriately applied the jury instructions.” Id.; Armstrong v.
19
Courts have also held that, when neither the statute nor the case law
contains a clearer answer to the jury’s question, it may be entirely appropriate to
repeat the jury instruction instead of attempting to give “a lengthy explanation” and
possibly “confus[e] the jury.” Ware v. State, 707 S.E.2d 111, 113 (Ga. App. Ct.
2011).
40
Toler, 24 U.S. 258, 279 (1826) (opinion of Marshall, C.J.) (“Had the jury desired
further information, they might, and probably would, have signified their desire to
the court. The utmost willingness was manifested to gratify them, and it may fairly
be presumed that they had nothing further to ask.”). This is because, “[t]o presume
otherwise would require reversal every time a jury inquires about a matter of
constitutional significance, regardless of the judge’s answer.” Weeks v. Angelone,
528 U.S. 225, 234 (2000).
Thus, we conclude that it was not an abuse of discretion for the trial court to
re-read the initial instruction, which was legally correct, to the jury to clarify any
confusion as to the application of but-for causation. See Fleming, 224 A.3d at 219.
C. There Was Sufficient Evidence for the Jury to Conclude That, But-
For Appellants’ Bias Towards Jaye’s Sexual Orientation, They
Would Not Have Attacked Jaye
On appeal, appellants argue that the evidence was insufficient to apply the
bias enhancement statute because the jury could not have concluded that but-for
appellants’ bias against Jaye’s sexual orientation the attack would not have occurred.
We disagree.
41
The evidence at trial was sufficient for a jury to find that appellants assaulted
Jaye because of his sexual orientation, even accounting for additional motives for
the assault. Viewed in the light most favorable to the verdict, the evidence of
appellants’ bias toward Jaye – the volume and duration of homophobic taunts, the
temporal proximity between the comments and the assault, and the gravity of the
physical encounter was strong. See Hernandez, 129 A.3d at 918 (noting that we
“view the evidence in the light most favorable to the verdict,” “defer to the fact-
finder’s credibility determinations,” and affirm if “any rational fact-finder could
have found the elements of the crime beyond a reasonable doubt”).
The jury heard testimony from Jaye, Ashley, and Alicia regarding the repeated
homophobic insults that appellants spewed at Jaye from the moment he arrived at
the party and during their attack on him, a time frame that exceeded four hours.
Ashley testified that, when Jaye arrived at the party, both appellants stared and
pointed at Jaye, and Ashley heard both of them say, “Who is this gay
motherf[*]cker?” Jaye testified that he heard “f[*]ggot a[*]s mother[*]cker” at least
two times when he first arrived at the party. Ashley further testified that the
appellants led the group of people who targeted Jaye prior to the attack: “They were
in the front, and it was then, there go that f[*]ggot mother[*]cker right there; you
thought it was over.” Jaye testified that right before appellants attacked him, he
42
heard chanting “‘this f[*]ggot a[*]s mother f[*]cker’ again and again” and witnessed
a group of people approach him. Alicia’s testimony echoed that of Jaye and
Ashley. 20 These repeated homophobic remarks, which began hours before and
during the assault, establish far more than “mere temporal coincidence” between the
appellants’ bias and the assault. Stalder, 630 So. 2d at 1076. We conclude that such
evidence was sufficient for a reasonably jury to find causation here.
The jury needed to find that, notwithstanding any additional motives like
anger or revenge, appellants would not have attacked Jaye in the absence of their
bias toward him based on his sexual orientation. In Shepherd, we focused our
sufficiency holding on the temporal proximity between the bias-evidencing
statement and the incident, finding clear evidence of “homophobic insults” during
the assault. 905 A.2d at 263 (holding “[t]he trial court’s finding of a nexus was
20
Appellants attempt to distance themselves from the hateful nature of
“f[*]ggot” as a homophobic slur, noting testimony from Ashley that the word can be
a generic fight word used to describe a person as “weak and sensitive” and arguing
that the word was used “non-literally to convey disrespect and hatred, rather than
homophobia.” We reject this contention. While words can have different meanings
in different contexts, “f[*]ggot” can be understood to be a homophobic slur, and a
jury reasonably could have concluded that appellants used it that way. See Cherry
v. United States, 164 A.3d 922, 929 (D.C. 2017) (“[T]he government is not required
to negate every possible inference of innocence.” (internal quotation marks
omitted)). Here, the consistent use of the term “f[*]ggot” from the moment Jaye
arrived at the party through the attack belies any argument that the word was merely
a neutral antagonizing word to provoke a fight.
43
amply supported by evidence . . . that appellant accompanied his assaults on the two
women with a verbal stream of homophobic insults”). Here, we have strong
evidence of homophobic taunting not only during the assault, but also in the hours
prior to the assault. Because of appellants’ numerous homophobic comments and
the clear temporal nexus between the homophobic taunts and the attack on Jaye, the
evidence was sufficient to establish but-for causation. See State v. Duncan, 878
N.W.2d 363, 373-74 (Neb. 2016) (concluding evidence was sufficient under hate
crime statute requiring but-for causation, where defendant assaulted victim because
of his belief that the victim was associated with homosexual people based on victim
hearing defendant say “f[*]ggot” prior to the assault); Hennings, 791 N.W.2d at 835-
36 (finding sufficient evidence for conviction under hate crime statute requiring but-
for causation where defendant called victim “f[*]cking n[*]ggers” and hit victim
with his truck); People v. Davis, 674 N.E.2d 895, 895, 897 (Ill. App. Ct. 1996)
(affirming a conviction for aggravated battery with a hate crime penalty
enhancement requiring commission of crime “by reason of” race where evidence
showed that defendant targeted the victim, an African-American man, when he was
walking out of a restaurant with a white male friend and yelled “N[*]gger, I am
going to kick your black ass,” before he beat the victim “senseless”).
44
The severity of the attack combined with the biased statements provides
further evidence of appellants’ bias. See Kurd v. Republic of Turkey, 374 F. Supp.
3d 37, 59 (D.D.C. 2019) (noting that, under the Bias-Related Crimes Act, “biased
intent . . . can be inferred from circumstantial evidence, including the factual
background . . . and each [d]efendants’ actions,” even if the plaintiffs “do not allege
that [a d]efendant personally made” biased comments). The testimony established
that comments concerning Jaye’s sexual orientation in tones of “anger and disgust”
began immediately upon his arrival to Leo’s house, generally and from appellants
specifically. Alicia testified that the group grabbed Jaye and dragged him to the
ground while appellants “stomp[ed]” on his body and face and yelled “f[*]ggot
mother[*]cker.” After making these comments and stomping on Jaye’s face,
Christina knelt down to Jaye, took a razor-like object from her pocket, and slashed
open his cheek near his left eye. She ran away immediately after, leaving him on
the ground and unconscious. Appellants’ conduct – following Jaye after he left the
family gathering, dragging him to the ground, stomping on his body and face,
slashing open his face with a razor-like object, and leaving him unconscious –
constituted part of an attack during which hateful words were used to express animus
toward Jaye because of his sexual orientation. The circumstantial evidence is
sufficient to demonstrate that appellants attacked Jaye as a result of bias because of
his sexual orientation.
45
The weight of the evidence of appellants’ bias toward Jaye is not mitigated by
the fact that Christina is a gay woman. Appellants argue that “Christina’s
homosexuality makes it far less likely that she targeted Jaye because he shared that
attribute.” Christina’s counsel, in fact, made this argument to the jury – “to say that
[Christina] hated someone because they were gay would be to say that she hated
herself.” The jury found otherwise. As appellants concede, “it is certainly possible
for a gay woman to harbor prejudice against gay men.” Indeed, it is well known that
people can demonstrate bias and discriminate against others who fall within the same
protected category as they do. See, e.g., Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 78-79 (1998) (holding that Title VII of the Civil Rights Act of 1964
does not bar claims of employment discrimination based on sex merely because the
plaintiff and defendant are of the same sex). In Oncale, the Supreme Court “rejected
any conclusive presumption that an employer will not discriminate against members
of his own” race or sex, id., recognizing that “‘[b]ecause of the many facets of human
motivation, it would be unwise to presume as a matter of law that human beings of
one definable group will not discriminate against other members of their
group.’” Id. (quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)). For the
same reasons here, it is entirely plausible for a person to commit a bias-related crime
46
against another person sharing the same protected characteristic because of that
characteristic.
V. Appellants’ Remaining Claims
Finally, appellants’ challenge the trial court’s decisions to limit certain cross-
examination, to permit the government to elicit emotional testimony from Jaye’s
mother, and to excuse Jaye after he testified in the government’s case. We review
the trial judge’s evidentiary decisions for abuse of discretion, deferring to the trial
court when it “considers the relevance and potential prejudice of evidence.” Johnson
v. United States, 960 A.2d 281, 294 (D.C. 2008). Any issues to which appellants
did not object before the trial court are reviewed for plain error. See Lowery v.
United States, 3 A.3d 1169, 1172 (D.C. 2010). 21 We find no abuse of discretion or
plain error.
21
Jones v. United States, 127 A.3d 1173, 1187 (D.C. 2015) (“Under the plain
error doctrine, appellant must establish (1) that the trial judge committed error; (2)
that the error was plain, i.e., clear or obvious; (3) that the error affected his
substantial rights; and (4) that a failure to correct the error would seriously affect the
fairness, integrity, or public reputation of judicial proceedings.”).
47
First, the trial court did not unduly limit the defense’s cross-examination of
the witnesses. Appellants argue that the trial court abused its discretion by limiting
cross-examination of a government witness concerning a theory of the case: that the
assault was not motivated by bias, but by events earlier in the evening. 22 During
Alicia’s direct examination, the government only asked her about the attack that
occurred outside on the corner of Sherman and Harvard streets, and did not ask her
about any earlier events that occurred at Leo’s house. Because of the limited scope
of Alicia’s direct, appellants tried, but were prohibited from, asking Alicia on cross
about the events earlier in the evening. 23 When the defense attempted to ask Ashley
and Jaye on cross-examination about the physical altercation at Leo’s house earlier
in the evening, Ashley denied witnessing a physical fight involving Jaye and Jaye
denied involvement in an earlier altercation or argument. “[I]t is not improper for
the trial court to limit the scope of the cross-examination to matters raised on direct-
examination.” Guzman v. United States, 769 A.2d 785, 794 (D.C. 2001). Given the
22
Two weeks prior to trial, the government filed a motion in limine to
preclude the defendants from introducing testimony about the earlier incident. The
trial court granted the motion, ruling that appellants could not elicit such testimony
unless it was relevant to a legally cognizable issue, e.g., to issues of identity or a
theory of self-defense; in other words, appellants could not elicit such testimony to
support a theory of that Jaye provoked, and thereby deserved, the assault.
23
Despite the limited scope of direct, defense counsel attempted to ask Alicia,
in a multitude of ways, about her son being involved in a fight at Leo’s home earlier
in the evening. On at least seven occasions, the court sustained the government’s
objections to the defense’s questions.
48
limited scope of the direct examination of the witnesses, we conclude that the trial
court did not abuse its discretion in limiting the scope of the witnesses’ cross-
examination.
Moreover, despite the appropriateness of the trial court’s limitation of such
cross-examination, appellants cannot convincingly argue that they were prejudiced.
The defense developed its alternative theory of the case – that the attack was not
motivated by bias, but by an incident that occurred earlier in the day – by calling a
number of non-victim witnesses who testified regarding the earlier altercation and
by discussing that confrontation during closing arguments. 24
Second, appellants argue that the trial court abused its discretion by permitting
the government to elicit emotional testimony from Alicia to improperly play to the
jury’s sympathy. Alicia provided emotional testimony in her direct, and the
government played Alicia’s 911 call at the beginning of its closing arguments.
24
Over the government’s objection, the trial court permitted testimony from
three separate witnesses to support the defense’s motive theory: (1) that Leo and
another man were about to “jump” Christina outside of the party earlier in the
evening; (2) that a commotion took place outside of Leo’s house, and Leo and
another man appeared as if they were about to fight Christina; and (3) that “the boy,”
Jaye, “got into it” with Christina. Then, in closing arguments, defense counsel
references Jaye “going back and forth with people” and “mouthing off” earlier at
Leo’s house.
49
Because appellants only objected to one of the government’s question to Alicia on
direct, we review the trial court’s admission of that testimony for abuse of discretion,
and we review the remaining testimony and arguments for plain error. See Johnson,
960 A.2d at 294; Lowery, 3 A.3d at 1172.
While testifying, Alicia referred to her son Jaye as “my baby” and cried on
the stand, stating, “I thought my baby was dead because we were shaking him and
he wouldn’t move. He was unconscious, but I thought he was dead.” At the end of
her direct testimony, the government asked Alicia to tell the jury how the incident
had affected her. Then, over a defense objection as to relevance, Alicia detailed
flashbacks, visits to a psychiatrist and therapist, and difficulty eating and drinking.
She stated, “I can’t get that vision of my baby’s face being stomped on and the
cutting and the bleeding and all that, I just can’t get it out of my mind for nothing.”
The government began its closing argument by replaying Alicia’s 911 call, which
the defense alleges was highly emotional but contained no facts that would assist in
identifying the perpetrators. In closing, the prosecution referred to the “pain in her
voice” and in rebuttal, reiterated “the pain, the hurt, the emotion that Alicia Davis
had when she testified.”
50
The trial court did not err, let alone commit plain error, in permitting Alicia’s
emotional testimony. Alicia testified to her firsthand knowledge of the attack she
witnessed, which was highly probative of the truth of the events. Appellants
attacked Alicia’s credibility and her ability to accurately identify the perpetrators;
her emotional response was one factor that could assist the jury in weighing her
credibility and truthfulness, and was therefore relevant. See Brocksmith v. United
States, 99 A.3d 690, 697 (D.C. 2014) (noting that a “witness’ demeanor on the stand
. . . is of the utmost importance in the determination of credibility” (internal
quotations omitted)). 25 Similarly, it was not an abuse of discretion for the trial court
to permit the government during closing argument to play Alicia’s 911 call or to
refer to the “pain in her voice,” all of which conveyed the seriousness of the assault
and was another means of assessing Alicia’s credibility. Further, the trial court did
not abuse its discretion by allowing Alicia to testify to how the incident affected her.
“[T]he government is not required to deliver a dispassionate presentation of sterile
facts” particularly in cases “involving tragic death or injury” that “have an inherent
25
See also Bryant v. State, Nos. 852, 2874, 2019 WL 5549341, at *4 (Md.
Ct. Spec. App. Oct. 28, 2019) (noting that complaining witness’s “testimony about
the ‘mixed emotions’ she was experiencing during her testimony was relevant to the
jury’s assessment of her credibility and was admissible for that limited purpose”);
United States v. Hanrahan, No. CR 04-1978 JB, 2005 WL 3662939, at *3 (D.N.M.
Nov. 6, 2005) (“Such display of emotion and testimony go to credibility in front of
the jury. Attempting to preclude witnesses from crying on the witness stand, even
if possible, may limit the jury's ability to evaluate the witness’ testimony.”).
51
emotional impact.” Bost v. United States, 178 A.3d 1156, 1202 (D.C. 2018) (quoting
Chatmon v. United States, 801 A.2d 92, 100 (D.C. 2002)).
Third, the facts belie appellants’ argument that the trial court erred in excusing
complaining witness Jaye at the close of the government’s case, rather than ensuring
that he was available for recall in the defense’s case. At the close of the
government’s case, the trial judge clearly communicated to Christopher’s defense
counsel that he could subpoena Jaye, but defense counsel stated that he was unsure
whether to recall Jaye to testify about the alleged earlier fight, as the testimony would
have been cumulative of what Jaye testified to in the government’s case. Further,
the trial court clarified with defense counsel that “I thought your defense was that
ya’ll wasn’t even there.” After consulting with Christopher, defense counsel stated
that Jaye could be dismissed. We can therefore find no abuse of discretion.
VI. Conclusion
We conclude that the trial court conveyed but-for causation when it instructed
the jury that there may be “additional motives” other than bias or prejudice that
caused appellants to attack Jaye, but nonetheless, the jury may convict appellants if
it finds beyond a reasonable doubt that they committed the aforementioned crimes
52
“because of prejudice based on the actual or perceived sexual orientation of” Jaye
Davis. The trial court, in responding to the jury’s note requesting clarification on
causation, did not abuse its discretion in directing the jury back to the original
instruction. Further, the evidence was sufficient to sustain the findings that
appellants attacked Jaye because of their bias toward him based on his sexual
orientation. We find appellants’ remaining contentions to be without merit.
Affirmed.
53
FISHER, Senior Judge, concurring: I agree that the original jury instructions
adequately conveyed the requirement that, before appellants could receive enhanced
sentences, prejudice based on the actual or perceived sexual orientation of Jaye
Davis had to be a but-for cause of the assault. But the jury’s note reflected
uncertainty about how important that motive had to be in relation to others, and I
question whether the response was sufficient to explain that, in the absence of such
prejudice, the assault would not have occurred.
Defense counsel did not request such language, however. Counsel for
Christina Lucas suggested that “we just direct them back to the jury instructions in
regard to their, as an answer to their question.” Christopher Lucas’s attorney argued,
“Our position basically is, as you stated, the government has to prove beyond a
reasonable doubt the bias which caused the assault. . . . It’s just a reasonable doubt
question.” The supplemental instruction accommodated both requests and easily
survives plain error review.
54
BECKWITH, Associate Judge, dissenting: The deliberating jury in this case
sent a note asking for guidance about how much of a role appellants’ bias had to play
in the assault of the complainant in order for the jury to convict them of the bias-
related enhancement. Did it have to find that appellants’ prejudice based on sexual
orientation was “the only reason a crime was committed”? Did it have to find that
it was “the primary reason a crime was committed”? The trial court answered the
jury’s question by reiterating the instruction on causation that it had already given
the jury—a response that Chief Judge Blackburne-Rigsby concludes was sufficient
to clear up any confusion the jury may have had about the causal relationship
between the bias and the assault for purposes of the enhancement for bias-related
crimes. Ante at 32-39. Unlike the Chief Judge, my concurring colleague, Judge
Fisher, “question[s] whether the response was sufficient to explain that, in the
absence of such prejudice, the assault would not have occurred.” Ante at 53. Judge
Fisher nevertheless rejects appellants’ claim of instructional error on plain error
grounds based on his view that the appellants’ objection was inadequate to preserve
the challenge.
55
While I agree with Chief Judge Blackburne-Rigsby that the appellants
preserved their challenge to the trial court’s response to the jury question, 1 ante at
32 n.15, and I agree with both of my colleagues that the Bias-Related Crime Act
requires the government to establish that the accused would not have committed the
underlying crime but for the accused’s prejudice against the complainant’s protected
characteristic, ante at 21-26, I respectfully dissent from Chief Judge Blackburne-
Rigsby’s conclusion that the trial court adequately dispelled the jury’s confusion by
repeating its prior instruction.
1
See Zeledon v. United States, 770 A.2d 972, 975 (D.C. 2001); Whitaker v.
United States, 617 A.2d 499, 508 (D.C. 1992) (noting that even an inaccurate or
unclear request for instruction may be sufficient if it “directed the mind to the legal
principle, and . . . required that a correct instruction be given with regard thereto”).
Judge Fisher’s description of the extensive discussion of the jury note is a
simplification that leaves out several key facts relevant to whether appellants
preserved their objection, including that the discussion took several turns as the
parties considered the options; that one appellant mentioned the need for a “[v]ery
clear nexus between the bias identified in the statute and the assault finding” and the
need for clarity “that it was the bias that was the source of the assault;” that the
prosecutor urged the court to answer the jury’s specific question; that the court
expressed its disinclination to instruct the jury about whether bias had to be the only
or the primary reason a crime was committed; and that the judge made a decision so
we have a ruling to review. As in Zeledon, the trial court’s failure to reinstruct the
jury accurately did not stem from the content of appellants’ suggestions “but from
her belief that no instruction was necessary.” 770 A.2d at 976. “[T]he plain error
rule is not meant to be punitive; instead its purpose is to allow the trial judge [to]
fully . . . consider issues and thereby avoid potential error.” Williams v. United
States, 966 A.2d 844, 847 (D.C. 2009) (internal quotation marks and citation
omitted). The trial court here had every opportunity to avoid error.
56
As Judge Fisher points out in concurrence, the jury’s question reflected its
uncertainty about what role bias played and “how important that motive had to be in
relation to others” in its determination of appellants’ guilt under the BRCA. The
right answer to the jury’s inquiry, as the court holds today, was that prejudice had to
be a but-for cause of the crime. Yet instead of addressing the uncertainty directly—
and heeding the prosecutor’s assertion that it was “important that the Court at least
respond to the specific question”—the court, stating that “[t]here’s no case law
addressing that point specifically” and that it “honestly [didn’t] know” whether bias
“has to be the only reason,” fell back on the instruction that caused the jury to seek
guidance in the first place. Even assuming the initial instruction fully conveyed the
bias enhancement’s but-for causation requirement, 2 the jury didn’t grasp it, and once
2
I disagree with the majority that the original instruction adequately
conveyed the concept of but-for causation to the jury—in particular, the court’s
conclusion that, because the phrase “because of” has been interpreted to signify “but-
for” causation in statutes, a lay jury would interpret “because of” in a jury instruction
to convey the same meaning. Ante at 29-31. The jurors’ expressed confusion about
the jury instruction in this case demonstrates that the colloquial use of the phrase
“because of” does not necessarily convey the nuances of a complicated legal
concept. Christina Lucas illustrates this well with the example in her supplemental
brief about the friend who tells you she is going to the store because she needs milk,
bread, and eggs. Without further information, nothing about that statement indicates
that each of those three products is a but-for cause of her trip. If you gave your
friend a dozen eggs, she might still go to the store to buy milk and bread, or she
might not, because the eggs were in fact the but-for cause of her trip and she could
wait until later to pick up milk and bread. In sum, as Ms. Lucas states in her brief,
the “demand for but-for causality in the criminal law does not perfectly align with
everyday speech.”
57
the jury sought clarity regarding a controlling issue in the case, the court was
required to clear it up “with concrete accuracy.” Bollenbach v. United States, 326
U.S. 607, 612-13 (1946). I would hold that the trial court failed to do so, that it
affected the verdict, and that the bias enhancements should be reversed.