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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                    No. 11-FS-1320

                                 IN RE D.R., APPELLANT.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (DEL-2009-11)

                     (Hon. Patricia A. Broderick, Trial Judge)

(Argued September 18, 2013                                 Decided July 31, 2014)

      Cynthia Nordone for appellant.

      Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for
appellee.

      Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior
Judge.

      FISHER, Associate Judge:        Appellant D.R., a juvenile, was found to be

involved in four criminal offenses related to his possession and brandishing of a

large knife or machete. On appeal, he claims that he was denied the effective

assistance of counsel and that there was insufficient evidence to support three of

the adjudications against him.
                                          2


      Following oral argument, we remanded the record to the trial court for

findings on the ineffective assistance claim. 1 After considering the trial record,

Judge Broderick found that D.R.‟s trial counsel was ineffective and informed us

that she would be inclined to grant a new trial. See Smith v. Pollin, 194 F.2d 349,

350 (D.C. Cir. 1952). We now remand the case (restoring jurisdiction to the

Superior Court) so that the trial court may vacate D.R.‟s adjudications and grant a

new trial in accordance with its findings. In doing so, we pause to consider D.R.‟s

claims of evidentiary insufficiency, since principles of double jeopardy preclude

the government from prosecuting D.R. a second time on any charge that was not

supported by sufficient evidence in the first trial. See Kelly v. United States, 639

A.2d 86, 88 (D.C. 1994) (citing Burks v. United States, 437 U.S. 1, 18 (1978)).

We conclude that D.R.‟s adjudication for carrying a dangerous weapon was not

supported by sufficient evidence.



                   I. The Factual and Statutory Background




      1
         D.R. raised this claim on direct appeal because relief is not available under
D.C. Code § 23-110 unless the movant is “in custody under sentence of the
Superior Court.” D.C. Code § 23-110 (a) (2011 Supp.). Although probation
constitutes custody for purposes of the statute, see Snell v. United States, 754 A.2d
289, 291-92 (D.C. 2000), D.R.‟s three-month probation expired before his new
lawyer was able to pursue his claim of ineffective assistance of counsel.
                                         3


      In September 2011 fourteen-year-old D.R. was involved in a heated

altercation between his family and their neighbors.         According to evidence

presented by the government, D.R. approached one of his neighbors, raised a large

knife above his head, and angrily threatened to cut her insides out. In response, the

neighbor lifted up her shirt (exposing her midriff) and told D.R. to “do what he‟s

going to do.” The police never found the knife, but witnesses described it as a

“sword” or “machete”—approximately eighteen to twenty-four inches in length

with a wooden handle, a curved blade, and a pointed tip. Crediting this testimony,

the trial judge determined that D.R. had been involved in four criminal offenses:

assault with a dangerous weapon (“ADW”), carrying a dangerous weapon

(“CDW”), possession of a prohibited weapon, and felony threats.



      D.R.‟s main claim of insufficiency relates to the CDW charge.2 The statute

defining that offense provides that “[n]o person shall carry within the District of


      2
        D.R. also challenges the sufficiency of the evidence supporting the counts
of ADW (D.C. Code § 22-402 (2001)) and felony threats (D.C. Code § 22-1810
(2001)). Specifically, he claims that the woman he threatened did not exhibit fear.
We have no difficulty rejecting this argument. See Parks v. United States, 627
A.2d 1, 5 (D.C. 1993) (noting that an assault conviction does not require “factual
proof that the victim actually experience[d] apprehension or fear”); Postell v.
United States, 282 A.2d 551, 553 (D.C. 1971) (holding that it does not matter
“whether or to what degree the threat engenders fear or intimidation in the intended
victim”). When an ADW charge is based on an intent-to-frighten assault, the
government must show that the defendant committed some threatening act that
                                                                      (continued…)
                                        4


Columbia either openly or concealed on or about their person, a pistol, without a

license issued pursuant to District of Columbia law, or any deadly or dangerous

weapon capable of being so concealed.” D.C. Code § 22-4504 (a) (2011 Supp.).

D.R. argues that the government did not prove that the knife he wielded was

capable of being concealed on or about his person.



      When Congress enacted the CDW statute in 1932, the law applied only to

weapons that were actually concealed. Act of July 8, 1932, Pub. L. No. 72-275,

§ 4, 47 Stat. 650, 651.3 Congress amended the statute in 1943 to provide that no

person shall carry “either openly or concealed on or about his person . . . any

(…continued)
would “lead a reasonable person to believe he was in imminent danger of bodily
harm.” Joiner-Die v. United States, 899 A.2d 762, 765 (D.C. 2006). Similarly, to
prove the offense of threats, the government must show that the defendant uttered
words “of such a nature as to convey fear of bodily harm or injury to the ordinary
hearer.” Carrell v. United States, 80 A.3d 163, 171 (D.C. 2013) (quoting
Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982)). Here, the
government produced evidence showing that, during the midst of a heated
argument, D.R. brandished a large knife and angrily threatened to eviscerate his
neighbor with it. This evidence is certainly sufficient to support a finding that
D.R.‟s statements would have put an “ordinary hearer” or “reasonable person” in
apprehension of bodily harm. Appellant does not question that the knife qualifies
as a dangerous weapon.
      3
          The 1932 statute replaced a provision first enacted in 1892, which
prohibited the carrying of a concealed dangerous or deadly weapon “about” the
person. See Gamble v. United States, 30 A.3d 161, 168 (D.C. 2011) (tracing
evolution of statute); United States v. Pritchett, 470 F.2d 455, 456-57 (D.C. Cir.
1972) (same).
                                         5


deadly or dangerous weapon capable of being so concealed.” Act of Nov. 4, 1943,

Pub. L. No. 78-182, 57 Stat. 586, 586. In 1994, to make the statute gender neutral,

the Council of the District of Columbia replaced the phrase “his person” with “his

or her person.” See D.C. Law 10-119 § 15 (c) (May 21, 1994). Subsequently, the

Council changed “his or her person” to “their person,” see D.C. Law 10-151 § 302

(Aug. 20, 1994), which is how the statute now reads.



      This court has not yet had occasion to construe the statutory language

referring to weapons “capable of being so concealed.” D.C. Code § 22-4504 (a)

(2011 Supp.). We have upheld CDW convictions in several cases involving large

knives and other large weapons, but it does not appear that those defendants

challenged their CDW convictions by claiming that the weapon at issue was too

large to be “concealed on or about their person.” Id. For instance, in Gorbey v.

United States, we upheld convictions for two counts of CDW where the defendant

had walked down a public street with “a shotgun in his hand and a sword on his

back.” 54 A.3d 668, 675, 699-700 (D.C. 2012). Similarly, we have affirmed the

CDW adjudication of a juvenile who struck a victim with an aluminum baseball
                                         6


bat. In re P.F., 954 A.2d 949, 950-51 (D.C. 2008). A number of other CDW cases

have likewise involved weapons of considerable size.4



      It is not apparent to us why none of the defendants in these cases raised a

claim like the one D.R. now advances. Perhaps a partial explanation may be found

in the very name of the offense, “Carrying a Dangerous Weapon.” A weapon may

certainly be classified as “dangerous” even if it is not capable of being concealed

on or about a person. Thus, the legal scope of CDW is not as broad as its common

name suggests. In any event, D.R.‟s claim presents us with an open question of

statutory interpretation.



                            II. Construing the Statute



      The language of the statute makes it clear, and this court has acknowledged,

that to convict a defendant of CDW, the government must prove “that the weapon

is capable of being concealed.” Wright v. United States, 926 A.2d 1151, 1154

      4
         See, e.g., Coleman v. United States, 948 A.2d 534, 540 (D.C. 2008) (rifle-
machine gun); Ebron v. United States, 838 A.2d 1140, 1145 (D.C. 2003) (AK-47);
Harper v. United States, 582 A.2d 485, 490 (D.C. 1990) (knife with a blade “ten to
twelve inches in length”); Fersner v. United States, 482 A.2d 387, 389 (D.C. 1984)
(hatchet); Mackey v. United States, 451 A.2d 887, 888 & n.1 (D.C. 1982) (twelve-
inch “machete-type knife”); Coleman v. United States, 379 A.2d 710, 711 (D.C.
1977) (shotgun).
                                          7


(D.C. 2007). Moreover, every successive version of the standard jury instructions

for CDW has referred to the government‟s burden of showing that the weapon

carried was concealable.5 Unfortunately, none of these pattern jury instructions

explains how a weapon‟s concealability is to be determined.



      When § 22-4504 states that no person shall carry a dangerous weapon

“capable of being . . . concealed” “on or about their person,” who is the “person”

referred to? Is it the actual defendant, or is it a hypothetical average-sized person?

In answering these questions, our objective “is to ascertain and give effect to the

legislative intent and to give legislative words their natural meaning.” Grayson v.

AT&T Corp., 15 A.3d 219, 237 (D.C. 2011) (en banc) (quoting Banks v. United

States, 359 A.2d 8, 10 (D.C. 1976)).



      Here, as in the trial court, the government has relied on United States v.

Powell, 423 U.S. 87 (1975). In that case, the Supreme Court construed a federal

law prohibiting the mailing of any firearm “capable of being concealed on the

person.” Id. at 88, 91-94 (quoting 18 U.S.C. § 1715 (1970)). The Court rejected

the argument that “the „person‟ referred to in the statute to measure capability of

      5
          See Criminal Jury Instructions for the District of Columbia, Nos. 65
(1st ed. 1966), 4.81 (2d ed. 1972), 4.81 (3d ed. 1978), 4.70 (4th ed. 1993),
4.70 (4th ed. rev. 2008), and 6.500 (5th ed. 2009).
                                          8


concealment” was the individual defendant in each case. Id. at 93. Instead,

attributing “the commonsense meaning” to Congress, the Court concluded that the

statute referred to “an average person garbed in a manner to aid, rather than hinder,

concealment of the weapons.” Id. Applying this construction, the Court held that

“a properly instructed jury could have found [a] 22-inch sawed-off shotgun . . . to

have been a „(firearm) capable of being concealed on the person.‟” Id. at 91

(quoting 18 U.S.C. § 1715).



      Although the CDW statute and the statute construed in Powell are similar in

some respects, there are important differences between the two. Most noticeably,

the statutes operate in distinct contexts by proscribing different types of conduct

(carrying weapons as opposed to mailing them). When a violation of the CDW

statute is in progress, the weapon at issue is necessarily located “on or about [the

offender‟s] person.” D.C. Code § 22-4504 (a) (2011 Supp.). By contrast, when a

violation of the Powell statute is in progress, there may not be any physical

proximity whatsoever between the firearm at issue and a particular offender. In the

absence of such proximity, it is natural for an analysis of concealability to focus on

“an average person.” Powell, 423 U.S. at 93.
                                         9


      Indeed, if the Powell Court had not focused on “an average person,” it would

have been left to question “whether the person referred to in the statute to measure

capability of concealment was to be the person mailing the firearm, [or] the person

receiving the firearm.” Id. at 93 (quoting United States v. Powell, 501 F.2d 1136,

1137 (9th Cir. 1974)) (internal quotation marks omitted).            And even if,

hypothetically, one of those actual individuals could be identified as “the person

referred to in the statute,” it would not be clear when “to measure capability of

concealment” with respect to that person. Would it matter what the individual was

wearing when the firearm was mailed? When it was received? When it was

discovered?   At any point while the firearm was in the mail stream?          These

difficult questions do not arise in an analysis focused on “an average person garbed

in a manner to aid . . . concealment of the weapons.”



      Importantly, however, those difficult questions do not arise in the CDW

context even when analysis of a weapon‟s concealability focuses on an actual

defendant. Aside from a hypothetical figure, the only “person” that § 22-4504 can

possibly be understood as referring to is the actual individual carrying a dangerous

weapon. Moreover, the statute‟s main thrust and plain language dispel any doubt

regarding when a weapon must be capable of concealment. The nub of the offense

is carrying a weapon, an active form of conduct that delimits the scope of the
                                         10


crime‟s other elements. And the statutory phrase, “capable of being so concealed,”

refers to weapons that individuals can actually “carry . . . concealed on or about

their person.” D.C. Code § 22-4504 (a) (emphasis added). Accordingly, for

purposes of CDW, a weapon must be capable of concealment at the time it is

carried. All told, determining a weapon‟s concealability in relation to an actual

person is much more natural here than it would have been in Powell.



      An even more important consideration is textual in nature. The Powell

statute covers firearms “capable of being concealed on the person,” see id. at 318

(emphasis added), whereas our statute provides that no person shall carry a

dangerous weapon capable of being concealed “on or about their person.”

D.C. Code § 22-4504 (a) (2011 Supp.) (emphasis added). In place of the term

“their person,” previous versions of our statute have employed the more natural

words “his person” or “his or her person.” See Act of Nov. 4, 1943, Pub. L.

No. 78-182, 57 Stat. 586, 586; D.C. Law 10-119 § 15 (c) (May 21, 1994). But the

meaning is the same. The possessive pronouns “his,” “her,” and “their” all signal

attention to the particular defendant rather than a hypothetical average person.



      In fact, the 1943 version of the statute—which stated that no person shall

carry a weapon capable of being concealed “on or about his person”—also used the
                                        11


word “his” in an integrally related clause, creating an exception for anyone

carrying such a weapon “in his dwelling house.” Act of Nov. 4, 1943, Pub. L.

No. 78-182, 57 Stat. 586, 586. The phrase “his dwelling house” of course refers to

the dwelling house of an actual person. Thus, to hold that the term “his person”

refers to a hypothetical figure, we would need to conclude that Congress intended

for the word “his” to have two different meanings within the same statutory

sentence. We think such a reading would fail to give the “legislative words their

natural meaning.” Grayson, 15 A.3d at 237.




      Moreover, what legislative history we have shows that in 1943, when the

relevant language was first adopted, Congress was responding to a concrete

problem. The Attorney General of the United States had expressed concern that

individuals were escaping conviction under the concealed carry statute by simply

exhibiting their weapons whenever law enforcement officers approached. See H.R.

Rep. No. 78-762, at 1 (1943); see also S. Rep. No. 78-408, at 1 (1943). In those

circumstances, the weapon would actually have been concealed moments before

the police arrived.   Congress responded by prohibiting the carrying of such

weapons “either openly or concealed,” provided the weapon was capable of being

concealed “on or about” the person carrying it. Act of Nov. 4, 1943, Pub. L.

No. 78-182, 57 Stat. 586, 586. This response, in our view, targets weapons that are
                                           12


capable of being concealed on actual persons, under particularized circumstances,

and at the time the weapons are carried.



      For the foregoing reasons, we conclude that the context, purpose, and plain

language of § 22-4504 do not favor the type of construction that the Supreme

Court gave to the statute in Powell (focusing on “an average person garbed in a

manner to aid . . . concealment of the weapons”). 423 U.S. at 93. Rather, in

reading § 22-4504, we interpret the term “their person” as a reference to the

particular defendant‟s person. Thus, as an element of CDW, the government must

prove beyond a reasonable doubt that a defendant would have been capable of

actually concealing her weapon on or about her person while she was carrying the

weapon. Clearly, a person wearing trousers and a jacket will be able to conceal a

larger weapon than someone wearing shorts and a tee shirt.             Consequently,

evidence regarding the clothing a defendant wore while carrying the weapon will

be relevant to the question of whether the weapon was concealable. That question

is an element of the offense that must be resolved by the finder of fact.



      We emphasize that our holding today will have no effect on prosecutions for

carrying a pistol without a license (“CPWL”), an offense set forth in § 22-4504

alongside CDW.       The statute treats pistols differently than other dangerous
                                          13


weapons. To prove the offense of CPWL, the government need not produce any

evidence that a given pistol was capable of being concealed. See D.C. Code § 22-

4504 (a) (2012 Repl.).     This is unsurprising, since the statutory definition of

“pistol” already imposes a limit on the size of the weapon. A “pistol” is “any

firearm originally designed to be fired by use of a single hand or with a barrel less

than 12 inches in length.” D.C. Code § 7-2501.01 (2012 Repl.) (cross-referenced

in D.C. Code § 22-4501 (6) (2012 Repl.)).



      Additionally, we note that another criminal statute in the District of

Columbia already prohibits the possession of any “dangerous weapon” (“with

intent to use [it] unlawfully against another”) regardless of whether the weapon is

capable of being concealed. D.C. Code § 22-4514 (b) (2012 Repl.) (proscribing

possession of a prohibited weapon—PPW (b)). Indeed, in this appeal, D.R. has not

challenged the sufficiency of the evidence to prove him guilty of PPW (b).

Separately, § 22-4504 (a-1) provides, without any requirement of concealability,

that “no person shall carry within the District of Columbia a rifle or shotgun.” In

light of these statutes, we do not think our holding today will significantly increase

the ability of individuals to carry dangerous weapons—even large ones—in the

District of Columbia without facing criminal liability.
                                         14


                            III. Applying the Statute



      “In evaluating the sufficiency of the [government‟s] proof, we must view the

evidence in the light most favorable to sustaining the judgment.” Shewarega v.

Yegzaw, 947 A.2d 47, 52 (D.C. 2008). However, “evidence is insufficient, if, in

order to convict, the [finder of fact] is required to cross the bounds of permissible

inference and enter the forbidden territory of conjecture and speculation.” Curry v.

United States, 520 A.2d 255, 263 (D.C. 1987). In this case, the prosecutor paid

scant attention to proving that the knife D.R. wielded was capable of being

concealed on or about his person, and the court made no specific findings on that

question. The government acknowledged in its closing argument that to prove

CDW, it needed to establish that the knife was capable of being concealed.

However, in arguing that it had carried that burden, the government offered little

more than a broad invocation of the Supreme Court‟s decision in Powell.



      Evidence presented during the trial established that the knife D.R. wielded

was between eighteen and twenty-four inches long, but we have not found any

testimony describing appellant‟s size or what he was wearing on the day in

question. We know from the record that the altercation took place in the early

evening of September 3, which, if anything, supports an inference that D.R. was
                                          15


not wearing the type of heavy clothing that might have enabled him to conceal the

knife on his person. Further, the fact that he was only fourteen years of age

suggests that he was not yet fully grown. We therefore hold that D.R.‟s CDW

adjudication was not supported by sufficient evidence. The double jeopardy clause

bars a new trial of this offense. See Kelly, 639 A.2d at 88 (citing Burks, 437 U.S.

at 18).



                                   IV. Conclusion



          Appellant has not challenged the sufficiency of the evidence to prove him

guilty of possessing a prohibited weapon.        We hold that there was sufficient

evidence to sustain the adjudications against D.R. on the counts of ADW and

felony threats.       However, there was insufficient evidence to sustain the

adjudication for CDW. We therefore vacate the CDW adjudication and remand the

case for further proceedings consistent with this opinion.



                                               It is so ordered.
