Allison York v. United States
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 98-CF-522 A LLISON Y ORK, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (F-2983-96) (Hon. Henry F. Greene, Trial Judge) (Argued September 28, 2000 Decided July 25, 2002) Monoranjan Bezboruah, appointed by the court, for appella nt. Elizabeth Trosman, Assistant United States Attorney, with whom Wilma A . Lewis, United States Attorney at the time the brief was filed, and John R. Fisher and Sharon A. Sprague, Assistant United States Attorneys, were on the brief for appellee. Before S TEADMAN, R UIZ, and G LICKMAN, Associate Judges. R UIZ, Associate Judge: Allison Y ork appe als her conv iction of tw o counts o f assault under D.C. Code § 22-504 (1996), recodified at D.C. Code § 22-404 (2001), claiming that she was denied he r right to a jury trial under Simmons v. United States, 554 A.2d 1167 (D.C. 1989), and that the evidence presented was insufficient to support the judgment. Because we conclude that York did not suffer the possible harm Simmons was intended to preclude, and that the evidence was sufficient, we affirm. 2 I. A grand jury indicted Allison York on one count of cruelty to a child (C.Y.) in the first degree, see D.C. Code § 22-901 (a) (1996), recodified at D.C. Code § 22-1101 (a) (2001), two counts of cru elty to two other ch ildren (B .D. and J.M.) in the seco nd deg ree, see D.C. Code § 22-901 (b) (1996), recodified at D.C. Code § 22-1101 (b) (2001), a nd three co unts of assault, one ag ainst eac h child, see D.C. Code § 22-404. At the suggestion of the prosecution, and without objection f rom the de fense, the c ourt subm itted the cruelty charges to a jury, but withh eld the assau lt counts for decision by the court. The jury acquitted York of the two cruelty charges involving B.D. and J.M., but deadlocked on the charge concerning C.Y. One week later, the court convicted York of two counts of assault, involving C.Y. and B.D. Upon the government s motion, the trial court dismissed with prejudice the first degree cruelty co unt relat ing to C .Y., on w hich the jury had b een un able to re ach ag reeme nt. York contends that the trial court erred by not submitting the assault charges to the jury. Once a tria l is underw ay, only the jury may find the defen dant guil ty of a lesser included offen se. See Chambers v. United States, 564 A.2d 26, 27 n.1 (D.C. 1989). York claims that assault is a le sser include d offens e of cruelty to a c hild, and that the trial court erred by not su bmitting the a ssau lt cha rges to the jury sua spon te. 3 The parties disagree on the appropriate standard of review for this matter. York urges this court to consider the alleged error to be a fact-free q uestion of la w, and thu s subject to de novo review. The government asserts that defense counsel's failure to object during trial limits this court to plain error rev iew. See Hall v. United States, 343 A.2d 35, 37 (D.C. 1975) (holding that appellate courts will not notice errors raised for the first time on appeal absent a clear showing of miscarriage of justice ). Y ork respon ds that her atto rney's failure to object cannot limit her right to a jury trial because, under the Superior Court Rules of Criminal Procedure, a defendant may waive a jury trial only through a persona l waiver, and not the inac tion of c ounse l. See Jackson v. United States, 498 A.2d 185, 189 (D.C. 1985) (holding that the right to a jury trial may only be waived by the defendant herself, and, to be effective, must be d one both o rally and in writin g). With no effective w aiver in the trial court, York claims the right to de novo review . The appropriate standard of review for this matter is, as the government suggests, plain error. York's argument is incorrect because it conflates the plain error doctrine with the conce pt of w aiver. A waiver is an intentional or voluntary relinquishment of a known right. B LACK'S L AW D ICTIONARY 1580 (6th ed. 1999). Waiver precludes any appellate review. See United States v. Weathers, 337 U.S. App. D.C. 362, 369, 186 F.3d 948, 955 (1999) ( Wh en an e rror is w aived . . . it is extinguished; the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis. ). When 4 an objection is m ade in the trial c ourt, we review questions of law de novo. The failure to bring an alleged error to the attention of the trial court, however, though not an abandonment or relinquishment that precludes ju dicial review , does place a burden on the mo ving party to show that an error even one involving a question of law was plain, affected substantial rights and res ulted in m anifest injustice . See Super. C t. Crim. R. 52(b) (defining plain error review); accord United States v. Olano, 507 U.S . 725, 731 (1 993) (hold ing that the plain error doctrine, as applied by federal courts, is a jurisdictional rule that limits the ability of appellate courts to correct errors brought for the first time on appeal); Hall, 343 A.2d at 37 (holding that this court will correct errors raised for the first time on appeal only to prevent a misca rriage o f justice ). If, contrary to fact, Yo rk had w aived her rig ht to a jury trial, 1 there would be no error for this court to correct. Because her attorneys failed to object, this court may determine there was error, see White v. United States, 729 A.2d 330, 332-33 (D.C. 1999) (holding that trial court's failure to submit a lesser included offense to the jury may be reversed by the appellate court even if the defense attorney agreed, mistakenly thinking that the law permitted the court to take a lesser included offense from th e jury), overruled in part by Berroa v. United States, 763 A .2d 93 ( D.C. 2000) (en banc), but York has the additional burden of showing that the alleged error was plain and affected substantial rights, resulting 1 The g overnm ent doe s not co ntend th at York waive d her rig ht to jury tria l. 5 in a ma nifest in justice, see Super. Ct. Crim. R. 52(b); accord Williamson v. United States, 445 A.2d 975, 980 n.4 (D.C. 1982) (applying plain error review to a de cision not to offer a lesser included offense instruction where defense c ounsel faile d to object); Hall, 343 A.2d at 38 (same). Turning to the me rits, w e beg in by noting that because assault is a misdemeanor punishab le by imprisonment of no more than 180 days and a fine of not more than $1 000, see D.C. Code § 22-4 04 (a), appellant had no independent statutory or Sixth Amendment right to a jury trial. See D.C. Co de § 16-7 05 (2001 ); Day v. United States, 682 A.2d 1125, 1130 (D.C. 1996) , cert. denied, 520 U.S. 1170 (1997). There is a rule grounded in due process, however, that lesser included offenses must be submitted to the jury so as not to confront the jury with an all-or-nothing decision to convict or acquit, with the risk that the jury may convict on the greater offense merely to find an apparently culpable defendant guilty of something, even if the government did not prove every elem ent of th e greate r offen se. See Berroa, 763 A.2d at 95 ( The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of [the greater offense], but simply to avoid setting the defendant free. ) (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)); accord Simmons, 554 A.2d at 1171 (holding that the court must instruct the jury, upon request, on any lesser included offense, jury-triable or not, whenever there is a basis in the evidence for such an instru ction ). The parties are in sharp 6 disagreement over a predicate to the appellant's claim that this rule entitled him to have the assault charges su bmitted to the jury: whether a ssault is a lesser included offense of first and second degree cruelty to a child. We need not decide this question b ecause the trial court here would not have committed reversible error even if , arguendo, assault is a lesser included offense of cruelty to a child. Here, the risk that animates the rule was evidently averted because the jury acquitted York o f two cou nts of the gr eater offen se of cruelty to a child without the benefit of an assa ult instruction, an d she is not su bject to retrial on the cruelty charge on which the jury deadlocked, as it was dismissed with prejudice. In the absence of harm, the error can not be so clearly prejudicia l to substantial rig hts as to jeopardize the very fairness and integrity of the trial. See Woodall v. United States, 684 A.2d 1258, 1262 (D.C. 1996) (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc)). Thus, there was no plain erro r. II. York also contends that the evidence presented was insufficient to support h er assault convictions because (1) the gov ernment's witnesses w ere either not credible or the court misinterpreted their testimony, and (2) the verdict o f the court w as inconsiste nt with that of the ju ry. 7 In evaluating the sufficiency of the evidence, this court views the evidence in the light most favorable to the government, recognizing the factfinder's role in weighing the evidence, determining the credibility of witnesses, and drawing justifiable inferences from the evidence. Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992) (quotations om itted). Reversal will be warranted only if the government presented no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt. Id. Viewing the evidence in the light most favorable to the gove rnment, Y ork's argum ents have no merit. Here, the evidence is clearly sufficient. C .Y., one of the 6-year-old complainants, testified that Y ork, his teach er, held his ha nds behin d his back and told his classmates to hit him. Tw o of the stud ents, B.D. a nd J.M., co rroborated his story, as did a teacher's aide who was present during the incident, and a pediatrician who treated C.Y. the next day for a bruise around his left eye. Even the principal of the school, who had an incentive to support York to protect both his reputation and that of the school, testified that York confe ssed to h im that s he held C.Y. while other children struck him. A second complain ant, 6-year-old B.D., testified that York attacked her in the same manner. Another student, J.M., corroborated her testimony and testified that he was similarly treated by York. The trial court explicitly found the testimony of the governm ent's witnesses credible, and the testimony of York to be fabric ated. We le ave determ inations of c redibility to the trier of fac t, who , unli ke th is court, h ad an opportunity to obse rve the w itnes ses dem eano r dire ctly. 8 We also see no inconsistency between the trial judge s finding of guilt on the a ssault charges involving C.Y. and B.D., and the jury s acquittal on two of the cruelty charges. On the cruelty charge concerning C.Y., which was subsequently dismissed with prejudice, the jury deadlocked, and did not acquit. There can be no inconsistency where the jury made no finding. Even though the jury acquitted York on the cruelty charge concerning B.D., and the trial court found her guilty of assaulting that child, York herself testified that she had physically restrained B.D. in self-defense because she thoug ht the little girl wa s going to throw a pencil sharpener at her, a claim that the trial court ex pressly discredited. York s admission that she physically restrained B.D., coupled with the children s accounts credited by the trial court, therefore, sufficed to prove the assault. That the jury might have thought the evidence insufficient to convict on the felony charge of second degree cruelty to a child, which requires a grave risk of b odily injury to a child, D.C. Code § 22-1101 (b)(1), does not make its ve rdict inconsis tent with the finding of misdemeanor assault by the trial judge. Affirmed.
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