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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CT-583

                         JAMES CRAWFORD, APPELLANT,

                                        v.

                       DISTRICT OF COLUMBIA, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                (CTF-18758-13)

                      (Hon. Yvonne Williams, Trial Judge)

(Submitted September 28, 2017                       Decided September 6, 2018)

      Rupa Ranga Puttagunta was on the brief for appellant.

       Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General at the time the brief was filed, Rosalyn C. Groce, Deputy
Solicitor General, and John D. Martorana, Assistant Attorney General, were on the
brief for appellee.

     Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and
NEBEKER, Senior Judge.

      Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.

      Dissenting opinion by Senior Judge NEBEKER, at page 7.
                                         2

      BLACKBURNE-RIGSBY, Chief Judge: Appellant Crawford James Jr. 1 appeals

his conviction for one count of leaving after colliding with property damage (LAC-

PD) in violation of D.C. Code § 50-2201.05c (2013 Supp.). 2 On appeal, appellant

alleges that there was insufficient evidence to satisfy the mens rea element of the

offense, which requires that the appellant “know[] or ha[ve] reason to believe that

his . . . vehicle has been in a collision.” D.C. Code § 50-2201.05c (a). Because we

have no basis for determining whether the trial court’s verdict properly

incorporated the mens rea element, we vacate appellant’s conviction and remand

the case for the court to reweigh the evidence and to render a new verdict.



                                         I.



      On October 15, 2013, around 10:25 p.m., appellant was attempting to move

his car out of a parallel parking space near the 1700 block of Bay Street, Southeast,

Washington, D.C. At this same time, Metropolitan Police Department (MPD)

Officers Naples and Barriteau were on the same block responding to a family

disturbance call when they heard a “loud crash.” Officer Naples turned around and

      1
       The case caption and record erroneously invert appellant’s first and last
names. At trial, appellant stated his name as “Crawford James Junior.”
      2
        Appellant was found not guilty of one count of driving under the influence
of alcohol in violation of D.C. Code § 50-2206.11 (2013 Supp.).
                                         3

observed a burgundy Ford Explorer “up against the vehicle in front of it” and

stated that it looked like the Ford Explorer had “collided” with this vehicle. He

observed the driver of the Ford Explorer, later identified as appellant, put the

vehicle in reverse, move out of the parking space, and start driving away at about

ten miles per hour.



      The officers chased after the Ford Explorer, which stopped halfway down

the block. Officer Naples instructed appellant to exit the vehicle. As appellant

exited the vehicle, Officer Naples noticed that appellant’s balance was unsteady

and his eyes seemed heavy and bloodshot. The officers advised appellant that they

believed he had struck a vehicle, and Officer Naples testified that appellant “had

no idea what we were talking about[,]” and that “[h]e didn’t know that he had

collided with a vehicle.” Officer Naples also testified that he noticed an alcoholic

beverage odor coming from appellant’s person, and thus, proceeded to conduct the

standard field sobriety tests. Appellant failed the field sobriety tests and was

placed under arrest.



      At trial, the owner of the Volvo, Robert Southern, testified that he noticed,

sometime during the week of October 15, 2013, that someone had hit his car as he

observed “a white streak along the back left side rear bumper that had not been
                                        4

there before.” Appellant testified that he did not hit the Volvo. The trial court

found appellant guilty of LAC-PD.



                                        II.



      In evaluating 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.” Medley v. United States, 104 A.3d 115, 127 n.16 (D.C. 2014) (internal

quotation marks omitted). “Where the evidentiary record is sufficient to support

the verdict in a bench trial, but the findings of fact underlying the verdict are

insufficient, we therefore have deemed it appropriate to remand for the judge to

augment those findings as necessary to clarify whether the verdict can stand.”

Warner v. United States, 124 A.3d 79, 89 (D.C. 2015).



      Appellant contends that there was insufficient evidence of the requisite mens

rea to find him guilty of leaving after colliding with property damage. The statute

requires that the person operating the vehicle must “know[] or ha[ve] reason to

believe” that their vehicle was in an accident. D.C. Code § 50-2201.05c (a). In
                                           5

ruling, the trial court expressed doubt about whether appellant knew that his car

had been in a collision, stating:

              [T]his happens to me, quite frankly, and maybe, perhaps
              when [appellant] was pulling out he didn’t realize he had
              hit the car because the damage to the bumper is so slight
              that what it looks like is, while it’s being described as a
              crash, I mean, it’s not the crash in, it can’t be a crash in
              the stereotypical way that we think of a crash . . . . Here,
              the bumper is fully intact, it just has scratch marks on it,
              which is consistent with sort of someone pulling out of a
              parking space and, and sliding by the car in front of it and
              so that, so you’re both, so you’re rubbing by the car in
              front of you, which is technically a collision but, you
              know, that sort of problem, that probably happens every
              day in this city given the parking constraints that we are
              faced with.

Nevertheless, the trial court found appellant guilty of LAC-PD because it believed

that lack of knowledge was not a sufficient defense to this crime. 3



      This, however, was an erroneous statement of the law—not being aware of

the collision constitutes a proper defense if the operator of the vehicle did not

      3
          The trial court stated:

              And the notion that you weren’t aware of the fact that
              you hit the car is not necessarily a defense that I’m aware
              of under the law, that I’ve been told about. So I find the
              defendant guilty of leaving after colliding and there’s not
              even been an allegation made that he didn’t know he hit
              the car. The allegation made was that he didn’t hit the
              car, period.
                                           6

know or have reason to believe that he or she had collided with another vehicle.

From the trial court’s statements, it is evident that the trial court had some doubt as

to whether appellant had actual knowledge of the crash, especially in light of

appellant’s testimony that he did not hit the car. The trial court, however, made no

factual findings as to whether appellant should have known that he had been in an

accident, another means to satisfy the mens rea element required under D.C. Code

§ 50-2201.05c (a). “In a bench trial, . . . the trial court will often reveal the precise

basis for the decision. We think that if that particular basis is erroneous but other

bases not addressed by the trial court would sustain a conviction, the proper course

of action is to remand rather than reverse outright.” Foster v. United States, 699

A.2d 1113, 1116 n.5 (D.C. 1997). “Therefore, ‘we are constrained to remand this

case for the court to weigh the evidence in the record afresh and render a new

verdict.’” Grayson v. United States, 953 A.2d 327, 328 (D.C. 2008) (quoting

Shewarega v. Yegzaw, 947 A.2d 47, 54 (D.C. 2008)).



      Accordingly, we vacate appellant’s conviction and remand the case to the

Superior Court for further proceedings in accordance with our opinion.



                                                                           So ordered.
                                          7

      NEBEKER, Senior Judge, dissenting:           I respectfully dissent from my

colleagues’ remand to flesh out an already fleshy post-trial, pre-verdict monologue.

Despite no request for a special verdict, the trial judge, none-the-less, delivered a

prolonged    and    rambling    monologue     in    which    she   discredited   the

officers’ testimony about hearing and seeing a crash. She also went into her

personal experiences driving and parking in this city.         She then dwelt on

Crawford’s testimony and concluded that “perhaps” and “maybe” he did not have

knowledge or cause to know that he collided with the other parked car. She

described the testimony of the owner of that car as a minor “scratch” on his

bumper. She then concluded that Crawford was “technically” guilty. Of course,

there is no such verdict; there is either guilty beyond a reasonable doubt, or not

guilty. See Super. Ct. Crim. R. 23 (c).




      As Aristotle so opined, “what has happened cannot be made not to have

happened. Hence Agathon is right in saying ‘This only is denied even to God, the

power to make what has been done undone.’” 19 ARISTOTLE, NICOMACHEAN

ETHICS, Book VI, § 2 (H. Rackham trans., Harvard University Press 1934).

However, this is precisely what my colleagues seek to do in remanding this case,

instead of ruling on the record present before us. This is an error because, in

modern jargon, once an expression of innocence is conveyed by the trial judge, that
                                         8

expression is “in the cloud,” i.e. it cannot be taken back or unsaid. The trial judge

was permitted to render a general verdict, as she was not asked to render a special

verdict. A general verdict implicates The Prevailing Party Rule where on appeal

we read the record in the light most favorable to that party. Cherry v. District of

Columbia, 164 A.3d 922, 929 (D.C. 2017). The language used by the trial judge in

issuing the verdict is not to be taken lightly, particularly when an expression of a

finding in favor of acquittal tips the balance of the evidence. See Fong Foo v.

United States, 369 U.S. 141, 143 (1962) (upholding “the entry of a final judgment

of acquittal” by the trial judge due to “supposed improper conduct on the part of

the [prosecutor], and a supposed lack of credibility in the testimony of the

witnesses for the prosecution” due to double jeopardy concerns).




      Standards of proof operate to “instruct the factfinder concerning the degree

of confidence our society thinks he should have in the correctness of factual

conclusions” for a particular type of case and are “more than [] empty semantic

exercise[s].”   Addington v. Texas, 441 U.S. 418, 423, 424 (1979) (internal

quotations omitted). Three types of standards operate on a continuum of certainty

in order to “allocate the risk of error between the litigants.” Id. at 423. For a

preponderance of the evidence, the risk of error is “share[d] . . . in roughly equal

fashion”; “the clear and convincing standard” shifts the burden to the party with it;
                                          9

and the burden beyond a reasonable doubt places the risk “almost [] entire[ly]” on

the government. Id. at 423-24. Criminal cases require “the factfinder to reach a

subjective state of near certitude of the guilt of the accused.” Davis v. United

States, 834 A.2d 861, 867 (D.C. 2003) (internal quotations omitted); In re Winship,

397 U.S. 358, 364 (1970) (“[T]he reasonable-doubt standard is indispensable, for it

impresses on the trier of fact the necessity of reaching a subjective state of

certitude of the facts in issue.”) (internal quotation omitted). Here, the trial court

placed Crawford’s state of mind in his favor by stating that “maybe” “perhaps [he]

didn’t realize he had hit the car” and she further characterized his testimony as

being “[un]aware” that he was involved in a collision. Therefore, I construe this

record as reflecting the trial judge’s doubt as to proof of an essential element of

this offense and that doubt is, per force, the equivalent of “not guilty” as a matter

of law.   I would reverse and remand with directions to enter a judgment of

acquittal. But perhaps or maybe the trial judge will construe this remand of the

case to be plenary and see fit to acquit Crawford.
