                               District of Columbia
                                Court of Appeals

No. 13-CF-1234
                                                                     MAY 26 2016
EDWARD BROWN,
                                         Appellant,

         v.                                            CF1-6022-13


UNITED STATES,
                                         Appellee.


              On Appeal from the Superior Court of the District of Columbia
                                   Criminal Division

         BEFORE: BECKWITH and EASTERLY, Associate Judges; and NEBEKER, Senior
Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

            ORDERED and ADJUDGED that the appellant‟s convictions for assault
with a dangerous weapon and assault with significant bodily injury are affirmed.

                                         For the Court:




Dated: May 26, 2016.

Opinion by Associate Judge Catharine Easterly.

Opinion concurring in the result by Senior Judge Frank Q. Nebeker.
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 before the bound
volumes go to press.

            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-CF-1234
                                                                   5/26/16
                           EDWARD BROWN, APPELLANT,

                                      V.

                            UNITED STATES, APPELLEE.

                        Appeal from the Superior Court
                          of the District of Columbia
                                (CF1-6022-13)

                      (Hon. Ronna Lee Beck, Trial Judge)

(Argued October 16, 2015                                 Decided May 26, 2016)

      Benjamin Miller, Public Defender Service, with whom James Klein, Jaclyn
Frankfurt, and Jessica Brand, Public Defender Service, were on the brief, for
appellant.

      John Cummings, Assistant United States Attorney, with whom Vincent H.
Cohen, Jr., Acting United States Attorney at the time the brief was filed, and
Elizabeth Trosman and Elizabeth H. Danello, Assistant United States Attorneys,
were on the brief, for appellee.

      Before BECKWITH and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge.

       Opinion for the court by Associate Judge EASTERLY. Opinion concurring in
the result by Senior Judge NEBEKER at page 19.
                                         2

      EASTERLY, Associate Judge: This court has long recognized the common-

law defense that authorizes an individual to protect or repossess personal property

using nondeadly force and that correspondingly prohibits the use of deadly force

for this purpose. Deadly force is understood to include force likely to cause

“serious bodily harm.” In this case, we consider whether the trial court should

have, at Edward Brown‟s request, defined “serious bodily harm” for the jury using

the same definition this court adopted for “serious bodily injury” in the context of

aggravated assault. See Nixon v. United States, 730 A.2d 145, 150 (D.C. 1999).

We answer this question affirmatively.         Nevertheless, we determine that

Mr. Brown is not entitled to reversal because, on this record, this instructional

omission was harmless. Thus we affirm Mr. Brown‟s convictions for assault with

a dangerous weapon and assault with significant bodily injury.1




      1
         Our concurring colleague does not take issue with our discussion of how
the jury should have been instructed here, but argues that this court must resolve
the case solely on harmlessness grounds because of D.C. Code § 11-721 (e) (2012
Repl.) and the harmless-error rule that it codifies. This statute and corresponding
rule bar us only from overturning judgments when an error had no appreciable
impact on the fairness of the trial court proceedings; they say nothing about how
we must write opinions that affirm a judgment on harmlessness grounds. Our
colleague expresses concern about judicial efficiency, but, in the appropriate case,
clear explication of the law promotes that goal.
                                          3

                        I.   Facts and Procedural History



      After an incident in which Mr. Brown struck Torita Burt in the head with the

blunt end of a hatchet while she was visiting him in his apartment, Mr. Brown was

charged with first-degree sexual abuse while armed,2 kidnapping while armed,3

assault with a dangerous weapon,4 and assault with significant bodily injury.5 He

pled not guilty on all counts and was tried by a jury. At trial, Mr. Brown did not

dispute that he had struck Ms. Burt. The only question was why Mr. Brown had

done so.



      Ms. Burt testified for the prosecution that she knew Mr. Brown well and,

after meeting him on the street, had voluntarily gone to his apartment to smoke

crack and have sex with him. When she tried to leave, however, Mr. Brown hit her

on the head with a hatchet and pinned her to the bed by her throat. He agreed to let

her depart only after she had sex with him again. Ms. Burt testified that “you need

a key in order to exit” Mr. Brown‟s apartment building, and that, after they had


      2
           D.C. Code §§ 22-3002 (a)(1), -4502 (2012 Repl.).
      3
           D.C. Code §§ 22-2001, -4502 (2012 Repl.).
      4
           D.C. Code § 22-402 (2012 Repl.).
      5
           D.C. Code § 22-404 (a)(2) (2012 Repl.).
                                         4

sex, she had to wait for him to unlock the apartment building door to “let [her]

out.” Once she left the building, she walked several blocks before collapsing on

the sidewalk. She then called 911, and the responding police officers found her

sitting on a stoop, bleeding from a cut on the left side of her head. An ambulance

took Ms. Burt to Howard University Hospital, where she received nine stitches, a

sexual-assault exam, and a CAT scan that revealed a subdural hematoma.6



      Mr. Brown told a different story. He testified that Ms. Burt, whom he had

known for almost ten years, came to his apartment building around 3:00 a.m.

hoping to use his bathroom. Mr. Brown let Ms. Burt in, and while she was in his

apartment, she smoked crack and initiated oral sex with him. Afterward, Ms. Burt

asked Mr. Brown for money to buy more cocaine, but he refused. Mr. Brown

briefly left the room, and when he returned, he noticed that his new cell phone and

charger, his wallet, and money from his dresser were missing.           He accused

Ms. Burt of taking his things, which she repeatedly denied; eventually, she picked

up his hatchet, which had been on the floor nearby, 7 and started swinging it at him.


      6
         According to Margaret Goodwin, a nurse who examined Ms. Burt, “[a]
subdural hematoma is a blood collection between the outer two layers of tissue
around the brain.”
      7
        Mr. Brown explained that he “had that hatchet for about 15 years” and
“always kept it beside [his] bed.”
                                         5

Ms. Burt dropped the hatchet, Mr. Brown picked it up, and Ms. Burt tried to get it

back from him. As they were grappling with the weapon, Mr. Brown struck

Ms. Burt on the head with the hatchet‟s blunt end. The blow caused her to fall “on

her knees” and she ended up “slumped over” on his bed, “with her head down.”

She lay there for “about a minute and a half to two minutes before she even raised

her head up.”



      Mr. Brown testified that he felt “real bad after [Ms. Burt] got hit,” that he

had not been trying to hurt her, and that he was just trying to “protect [him]self.”8

He took her into the bathroom to clean and bandage her wound, and then walked

her back to the bedroom. He went back to the bathroom to clean the sink and,

“like two minutes later,” when he came back to the bedroom, Ms. Burt was not

there. She had already gone downstairs and was waiting by the building‟s front

door for him to open it. He offered to call 911, but she said she was “okay.” He




      8
          As part of its case, the government played a recording of a telephone call
Mr. Brown made to his girlfriend from jail. This recording was not provided to
this court and the call was not transcribed. It is our understanding, however, based
on the government‟s cross-examination of Mr. Brown and its closing, that during
this call Mr. Brown explained that he had hit Ms. Burt with the hatchet because she
was stealing from him.
                                          6

let her out and then locked the door after her.9 When the police arrived at Mr.

Brown‟s apartment a little later, he showed them the bloody sheets and the towels

he had used to clean up after the incident.



      At the close of the evidence, Mr. Brown requested an instruction on self-

defense.10 He also requested an instruction on defense of personal property, which

authorizes the use of reasonable, nondeadly force to repossess personal property

and correspondingly prohibits the use of deadly force for that purpose.11 Because

“deadly force” is defined as “force that is likely to cause death or serious bodily


      9
        At some point prior to her departure, Ms. Burt returned Mr. Brown‟s
personal property, but Mr. Brown did not explain when she did so.
      10
           Counsel noted this request in court and then elaborated on it in an email
after court proceedings had concluded for the day. After dismissing the jury, the
court had informed the parties that it would “send . . . draft instructions fairly soon
after I leave the bench” and asked them “to [send] any comments you have tonight
by e-mail . . . including responses to any comments made by either of you to the
instructions.” To supplement the record, Mr. Brown has submitted to this court
four emails sent that evening between the court and the parties, but it is unclear if
these constitute the full extent of the ensuing electronic communications.
      We acknowledge the convenience of email, but if matters of substance are
discussed, the parties and the court must make these communications part of the
record during the course of the trial. Failure to do so risks a record remand to
completely document the arguments made by the parties and the reasoning
underlying the trial court‟s rulings. In this case, neither party has asserted that the
record is materially incomplete.
      11
          Criminal Jury Instructions for the District of Columbia, No. 9.520 (B)
(5th ed. 2013) (instruction on defense of personal property).
                                          7

harm,”12 Mr. Brown asked the court to define the latter term. Specifically, Mr.

Brown asked the court to borrow the instruction defining “serious bodily injury”

from the standard jury instruction for aggravated assault, and thus to inform the

jury that the phrase “serious bodily harm,” as used in the defense-of-personal-

property instruction, means “an injury that involves unconsciousness, extreme

physical pain, protracted and obvious disfigurement, protracted loss or impairment

of the function of a bodily member, organ or mental faculty or a substantial risk of

death.”13



      The trial court determined that Mr. Brown‟s trial testimony did not support a

defense-of-property instruction, but that the call he made to his girlfriend from jail,

see supra note 8, “does arguably, I think.” Thus the court agreed to instruct the

jury on defense of property. But the court refused to define “serious bodily harm”

using the definition of the aggravated-assault element of “serious bodily injury.”

The court explained that




      12
          See Criminal Jury Instructions for the District of Columbia, No. 9.501 (B)
(5th ed. 2013) (instruction on self-defense).
      13
          See Criminal Jury Instructions for the District of Columbia, No. 4.103
(5th ed. 2013) (instruction on aggravated assault).
                                          8

             we‟re talking about a common law term that . . . we
             haven‟t defined, precisely, for juries in making decisions
             about self-defense and, in this case, defense of property.
             And that—that‟s very different from a legislated
             definition for purpose[s] of defining a crime such as
             aggravated assault. . . . [The legislated definition is]
             different than a term that‟s been used for long before that
             where we leave it to the jury to make that kind of
             community judgment about the use of force.

In response to Mr. Brown‟s concern that the jury would confuse “serious bodily

harm” with “significant bodily injury” (because the latter term would be defined

for the jury as part of the court‟s felony assault instruction14), the court offered to

instruct the jury that “serious bodily harm” and “significant bodily injury” meant

different things, but Mr. Brown declined this offer. The court ultimately instructed

the jury:


             Every person has the right to use reasonable non-deadly
             force to protect his property from theft when he
             reasonably believe[s] that . . . his property is in
             immediate danger of an unlawful taking and that the use
             of such force is necessary to avoid the danger.

             Similarly, if a person reasonably believes that someone
             has unlawfully taken his property, he may use
             reasonable, non-deadly force to repossess the property.

      14
          See Criminal Jury Instructions for the District of Columbia, No. 4.102 (A)
(5th ed. 2013) (defining significant bodily injury as “an injury that requires
hospitalization or immediate medical treatment to preserve the health and well-
being of the individual”).
                                          9



             A person may not use deadly force to protect his property
             from theft or to repossess his property. Deadly force is
             force that is likely to cause death or serious bodily harm.

             Defense of property with non-deadly force is a defense to
             the charges of assault with a dangerous weapon and
             assault with significant bodily injury.

             The Defendant is not required to prove that he acted in
             defense of his property with non-deadly force. If
             evidence of defense of property with non-deadly force is
             present, the Government must prove, beyond a
             reasonable doubt, that the Defendant did not act in
             defense of his property with non-deadly force. If the
             Government has failed to do so, you must find the
             Defendant not guilty.


       After a brief period of deliberation, the jury acquitted Mr. Brown of first-

degree sexual abuse while armed and kidnapping while armed, and convicted him

of assault with a dangerous weapon and assault with significant bodily injury. This

appeal followed.



                             II.   Instructional Error


      Mr. Brown argues that the trial court erred by declining to define the term

“serious bodily harm.” Mr. Brown argues that this term has a fixed meaning—

specifically, the definition this court established in Nixon v. United States for the

term “serious bodily injury” in the context of the instruction for aggravated assault.
                                           10

He further argues that without adequate guidance as to the meaning and severity of

injury signified by “serious bodily harm,” the jury might have erroneously

determined that he employed deadly force, negating any defense-of-personal-

property defense to the assault charges against him.



      While we review for abuse of discretion a trial court‟s assessment of

whether a jury instruction is supported by the evidence, see Wheeler v. United

States, 930 A.2d 232, 238 (D.C. 2007), we review de novo the content of the

instructions actually given, see Wilson-Bey v. United States, 903 A.2d 818, 827

(D.C. 2006) (en banc) (“The question whether the challenged instruction was

proper . . . is one of law. Accordingly, our review is de novo, and we accord no

deference to the ruling of the trial court.”). The question here is whether the trial

court adequately instructed the jury regarding the scope of the defense-of-personal-

property defense; we review that legal question de novo.15


      15
          See, e.g., Zeledon v. United States, 770 A.2d 972, 977 (D.C. 2001)
(finding instructional error where the court had “no reasonable assurance that the
jury measured the conflicting evidence of seriousness against the [correct]
standard”).
       In support of its argument that this court should review only for abuse of
discretion in this case, the government quotes Scott v. United States, 954 A.2d
1037, 1045 (D.C. 2008) (“When an appellant challenges an instruction given by
the trial court, [this court‟s] review is for abuse of discretion.”). But the division in
Scott could not overrule the en banc court in Wilson-Bey, see M.A.P. v. Ryan, 285
                                                                          (continued…)
                                         11

      We first address Mr. Brown‟s argument that “serious bodily harm” has a

fixed meaning synonymous with “serious bodily injury” as used in the context of

aggravated assault. Left undefined by the Council, “serious bodily injury” in D.C.

Code § 22-404.01 (2012 Repl.) has been given a particular meaning by this court:

specifically, it requires proof of “bodily injury that involves a substantial risk of

death, unconsciousness,[16] extreme physical pain, protracted and obvious

disfigurement, or protracted loss or impairment of the function of a bodily

member, organ or mental faculty.” Nixon, 730 A.2d at 149-50.17 This court

borrowed that definition from another statute,18 but only after ascertaining that this


(…continued)
A.2d 310, 312 (D.C. 1971), nor did it purport to try. Rather, this quote, which was
part of the division‟s overview of the law, supports the proposition noted above:
that this court reviews for abuse of discretion the trial court‟s determination
whether the evidence at trial supports a particular instruction. Indeed, the division
subsequently acknowledged that, because the appellant was challenging the
content of an instruction, the division‟s task was “to determine whether the
reinstruction given here by the trial court correctly stated the law.” Scott, 954 A.2d
at 1045. The division concluded that the reinstruction was reversible error. Id. at
1046-48.
      16
          But see In re D.P., 122 A.3d 903, 908 n.10 (D.C. 2015) (indicating that
this court has yet to resolve whether any momentary loss of consciousness will
support a conviction for aggravated assault).
      17
         In cases following Nixon we have clarified that “the „substantial risk‟ of
which Nixon speaks is only a substantial risk of death, not a substantial risk of
extreme pain, disfigurement, or any of the other conditions listed.” Scott, 954 A.2d
at 1046; Medley v. United States, 104 A.3d 115, 127 (D.C. 2014).
      18
          D.C. Code § 22-4101 (7) (1996 Repl.) (defining term for sexual abuse
statutes) (current version at D.C. Code § 22-3001 (7) (2013 Repl.)).
                                        12

definition aligned with other jurisdictions‟ conceptions of the term, both in and

beyond the assault context.19 This definition is now a core component of the

District‟s three-tiered classification system for assault crimes, under which

aggravated assault is the most serious offense. See In re D.P., 122 A.3d 903, 908

(D.C. 2015).



      We see no reason the degree of serious bodily harm that establishes “deadly

force” and in turn precludes the defense-of-personal-property defense should be

quantitatively different from the degree of “serious bodily injury” that sustains a

conviction for aggravated assault.20 To the contrary, that measure of harm seems

just right.    We do not want individuals to defend their personal property by

exercising force likely to cause either death or “serious bodily injury” as defined

by Nixon. But it might restrict the defense too severely to say that it is never

available when an individual employs force likely to result in significant bodily

injury (the predicate quantum of injury for the District‟s intermediate assault



      19
       See Nixon, 730 A.2d at 149-50 (surveying similar language from Texas,
Minnesota, Connecticut, Alabama, and the Model Penal Code).
      20
         Cf. Fadero v. United States, 59 A.3d 1239, 1250 (D.C. 2013) (choosing to
craft a definition for the undefined term “significant bodily injury” in the felony
APO statute “not out of proverbial whole cloth, but, rather, by reference to
comparable definitions in other District of Columbia assault statutes”).
                                         13

crime21). Even within this more clearly defined boundary of nondeadly force, there

is still ample room for the exercise of community judgment: although a defendant

is not precluded from using force likely to cause significant bodily injury, the fact-

finder must still determine that the use of nondeadly force within these limits was

reasonable.22



      The government does not argue that adopting the Nixon definition of

“serious bodily injury” sets the bar for deadly force in the wrong place.23 Instead,

it takes issue with this court setting the bar at all. Following the trial court‟s

reasoning, the government argues that this common-law defense should be left to




      21
         See Teneyck v. United States, 112 A.3d 906, 909 (D.C. 2015); Quintanilla
v. United States, 62 A.3d 1261, 1264-65 (D.C. 2013).
      22
          This “reasonableness” requirement ensures the proportionality at the heart
of this defense and others. See WAYNE R. LAFAVE, 2 SUBSTANTIVE CRIMINAL
LAW § 10.6 (a) (2d ed. 2015) (“[A defendant] may not use more than reasonable
force—the amount of force that reasonably appears necessary to prevent the
threatened interference with the property.”); see also id. at § 9.1 (a)(3)
(“[J]ustification defenses all have the same internal structure: triggering conditions
permit a necessary and proportional response. . . . [T]he proportionality
requirement . . . places a limit on the maximum harm that may be used in
protection or furtherance of an interest.”).
      23
          Indeed, the government does not contend that there is any meaningful
difference between “harm” and “injury” in this context. The trial court also
apparently ascribed no definitional difference to these words and used them
interchangeably.
                                          14

the jury‟s “commonsense” understanding.24 It is true that, in this jurisdiction, the

defense-of-property defense is a product of common law, see Saidi v. United

States, 110 A.3d 606, 611 (D.C. 2015); Gatlin v. United States, 833 A.2d 995,

1008-09 (D.C. 2003)—that is to say, it is judge-made law, BLACK‟S LAW

DICTIONARY (10th ed. 2014) (defining “common law” as “[t]he body of law

derived from judicial decisions”).      But this court has never said that the proper

application of the defense is left entirely to the jury‟s unfettered discretion. To the

contrary, we have defined the scope of this defense to make clear that, before the

jury can assess the reasonableness of the force employed, it must determine as a

threshold matter whether disqualifying deadly force was used. Given that this

court has already defined “deadly force” to encompass force likely to cause

“serious bodily harm,” McPhaul v. United States, 452 A.2d 371, 373 n.1 (D.C.

1982); see also United States v. Peterson, 483 F.2d 1222, 1229 n.40 (D.C. Cir.

1973), cert. denied, 414 U.S. 1007 (1973), we see no reason not to further clarify

that “serious bodily harm” in the context of this common-law defense shares the

definition that this court set in Nixon for “serious bodily injury.”


      24
          The government notes that the trial court was mistaken “[i]n one regard”:
its reasoning that it was inappropriate to borrow the definition of “serious bodily
injury” from aggravated assault because that term had been legislatively defined.
The government acknowledges that this court, not the legislature, supplied the
definition for this term of art.
                                        15

      Having determined that “serious bodily harm” in this context is synonymous

with “serious bodily injury” under Nixon, we conclude that the trial court should

have granted Mr. Brown‟s request to instruct the jury on that meaning. This

instruction would have helped the jury locate the line between impermissible

deadly force and permissible nondeadly force.25 See Perry v. United States, 422

F.2d 697, 699-700 (D.C. Cir. 1969) (reversing conviction where the “jury was left

to unguided speculation” because “no part of the [self-defense] instruction

illumined the boundaries of reasonable, as opposed to unreasonable, resistance”).26

Without this definition, the trial court‟s defense-of-personal-property instruction,


      25
         Moreover, although the court instructed the jury that defense of personal
property was a defense to felony assault, this did not completely eliminate the
danger that the jury might fail to appreciate that the significant bodily injury
necessary to sustain felony assault was distinct from the deadly force likely to
cause death or “serious bodily harm” that precludes a defendant from prevailing on
a defense-of-personal-property defense.
      26
           The government argues that this court‟s decision in Savage-El v. United
States, 902 A.2d 120 (D.C. 2006), “makes clear [that] the trial court was not
required to define a term that was not an element of the offense, but was just part
of the definition of „non-deadly force.‟” We disagree. Savage-El did not endorse
such a formalistic approach to jury instructions; rather, consistent with our other
cases it examined the instructions as a whole to determine whether the jury
received adequate guidance regarding the operative law and the government‟s
burden of proof. To the extent that the court distinguished between elements and
definitional terms, it did so to support its determination “that there was no
meaningful risk of [jury] confusion or misunderstanding . . . in the context of the
factual circumstances here” and thus no instructional error. Id. at 126, 127 & n.8
(acknowledging that in another case the same terms might require further
instruction to give the jury adequate guidance).
                                         16

taken as a whole, failed to give the jury adequate guidance to the boundaries of this

defense.



                            III.   Harmless Error



      Although we conclude that the trial court‟s instruction to the jury was

deficient, this error was harmless. The parties agree that instructional error is

subject to harmless error analysis.27 But they disagree as to which harmless error

standard applies. We need not resolve their dispute.28 Even if we assume that

more rigorous harmless error review under Chapman is required, we conclude that

the instructional error in this case was harmless beyond a reasonable doubt.

      27
          Brooks v. United States, 599 A.2d 1094, 1101-02 (D.C. 1991) (observing
that this proposition is “well settled”); accord White v. United States, 613 A.2d
869, 877 (D.C. 1992) (en banc).
      28
            Our case law arguably does not resolve whether this error was
constitutional (triggering review under Chapman v. California, 386 U.S. 18, 24
(1967), to determine if the error was harmless beyond a reasonable doubt) or non-
constitutional (triggering review under Kotteakos v. United States, 328 U.S. 750,
765 (1946), to determine if we can say “with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error”). Compare Wilson-Bey v. United
States, 903 A.2d 818, 843-44 (D.C. 2006) (en banc) (applying Chapman where
court failed to instruct on an element), and Neder v. United States, 527 U.S. 1, 10,
12 (1999) (characterizing misdescription of an element as a Sixth Amendment
violation), with Jenkins v. United States, 877 A.2d 1062, 1068-70 (D.C. 2005)
(applying Kotteakos where court‟s erroneous definition of a term “impermissibly
broadened” the meaning of an element).
                                         17

      At the outset, we note that defense of personal property was not the defense

theory Mr. Brown pressed at trial. While Mr. Brown testified that Ms. Burt took

his cell phone, phone charger, wallet, and cash, and that their physical altercation

was prompted by his accusations of theft, he claimed he hit Ms. Burt in the head

with a hatchet only after she tried to use the hatchet against him. Although at one

point Mr. Brown said he hit her after he “just got tired of playing with her because

I wanted my things back,” he later elaborated that he “was terrified” when she

picked up the hatchet, and that she “end[ed] up getting hit” after he had recovered

the weapon, when she was trying to take it back from him. He expressly affirmed

that when Ms. Burt “g[o]t hit with the hatchet” he was “trying to protect

[him]self.”



      Nevertheless, the trial judge determined that Mr. Brown was entitled to an

instruction on defense of personal property.29 But even after the court gave the


      29
         In deciding to give the instruction, the court relied on the recording of the
call Mr. Brown made from jail to his girlfriend in which he apparently stated that
he hit Ms. Burt because she stole his property. See supra note 8. The government
argues that this evidence did not support the court‟s ruling, but instruction on
defense of personal property is justified so long as “some evidence” has been
presented on the subject. See Anderson v. United States, 490 A.2d 1127, 1129
(D.C. 1985). Given what we can infer about the content of the phone call, we
cannot say that the trial court abused its discretion by instructing the jury on this
defense. See Wheeler, 930 A.2d at 238.
                                         18

jury this instruction, counsel for Mr. Brown made no reference to this defense

theory in closing. Defense counsel instead argued that Mr. Brown was “defending

himself.”



      Even if we assume that the jury, without encouragement from Mr. Brown,

gave serious consideration to a defense-of-personal-property theory, we are

convinced that the jury‟s understanding of “serious bodily harm” could not have

affected the jury‟s evaluation of this defense, and that the jury‟s guilty verdict is

“surely unattributable” to the trial court‟s instructional error.30 Whether or not the

jury accurately assessed whether Mr. Brown employed nondeadly force, no jury

could find that the force used in this case was reasonable.


      The defense-of-personal-property defense permits a person to use only as

much nondeadly force as is “reasonably necessary” to protect or recover his

belongings. See supra note 22. In other words, even if a defendant uses nondeadly

force, he nonetheless exceeds the boundaries of the defense if that nondeadly force

is “more force than is necessary.” Gatlin, 833 A.2d at 1008, 1010-11 (quoting

Shehyn v. United States, 256 A.2d 404, 406 (D.C. 1969)); see also Saidi, 110 A.3d


      30
         See Neder, 527 U.S. at 38 (quoting Sullivan v. Louisiana, 508 U.S. 275,
279 (1993)); see also Fields, 952 A.2d at 863.
                                         19

at 611; LaFave, supra note 22. For example, in Gatlin, we rejected the defense

after concluding, inter alia, that it was not reasonable to grab and punch a person‟s

arms in order to retrieve a notebook. 833 A.2d at 1010.



      It was undisputed at trial that Ms. Burt was unarmed and locked in Mr.

Brown‟s apartment building. Thus, she could not have fled with Mr. Brown‟s

property. Assuming it was reasonable for Mr. Brown to use some force to retrieve

his belongings from Ms. Burt under these circumstances, it was surely

unreasonable for him to strike Ms. Burt in the head with enough force to knock her

down, cause internal bleeding in her brain, and create an external wound requiring

nine stitches to repair.



      Accordingly, we affirm Mr. Brown‟s convictions for assault with a

dangerous weapon and assault with significant bodily injury.



                                                    So ordered.



      NEBEKER, Senior Judge, concurring: As the Supreme Court of Washington

State aptly said in 1976, as a general rule, “this court will decide only such

questions as are necessary for a determination of the case presented for
                                        20

consideration, and will not render decisions in advance of such necessity.”

Johnson v. Morris, 87 Wash. 2d 922, 930-31 (1976). Thus I am prompted to

concur in the result, and offer a review of the harmless error rule, its purpose and

application to the case before us.



      Section 11-721 (e) of the D.C. Code is “a codification of the harmless error

rule,” Brown v. United States, 379 A.2d 708, 710 (D.C. 1997), and provides:


             On the hearing of any appeal in any case, the District of
             Columbia Court of Appeals shall give judgment after an
             examination of the record without regard to errors or
             defects which do not affect the substantial rights of the
             parties. (Emphasis added.)


      All fifty states have codified the harmless error rule and Congress first

codified the rule in 1919, “establish[ing] for [the federal] courts the rule that

judgments shall not be reversed for „errors or defects which do not affect the

substantial rights of the parties.‟” Chapman v. California, 386 U.S. 18, 22 (1967);

Kotteakos v. United States, 328 U.S. 750, 758-59 (1946).         Prior to 1919, in

applying the common-law harmless-error rule, there was a “practice in some

jurisdictions of reversing convictions on appeal for any procedural error at trial,

without regard to whether the error was prejudicial.” United States v. Lane, 474

U.S. 438, 457 (1986) (emphasis added). The result of this practice was to make
                                         21

“[s]o great the threat of reversal” that a “criminal trial became a game for showing

reversible error in the record.” Kotteakos, supra, 328 U.S. at 760. In response to

criticism from several leaders in the legal profession, including Taft, Wigmore,

Pound, and Hadley, Congress passed the 1919 Act, explaining that the purpose was

to ensure that considerations of error “be rendered upon the merits without

permitting reversals for technical defects in the procedure below.” United States v.

Lane, supra, 474 U.S. at 457-58 (quoting H.R.Rep. No. 913, 65th Cong., 3d Sess.,

2 (1919)).



      So valuable is this rule in maintaining judicial efficiency that our legislation

provides our court no discretion in determining whether to reverse in the face of a

harmless error.   By employing the word “shall,” the statute makes clear that

adherence “is required.” BLACK‟S LAW DICTIONARY 1585 (10th ed. 2014). See

also Randolph v. United States, 882 A.2d 210, 221 (D.C. 2005) (characterizing §

11-721 (e) as a “command”); Arnold v. United States, 358 A.2d 335, 341 (D.C.

1976) (same). We therefore shall “give judgment . . . without regard to errors.”

The word “regard” in this respect means “[a]ttention, care, or consideration.”

BLACK‟S LAW DICTIONARY, supra, 1472. It is clear from the language of § 11-721

(e), that the purpose of the harmless error rule was not only to prevent frequent
                                         22

reversals on technicalities, but also to promote judicial efficiency. See also D.C.

Super. Ct. R. Crim. P. 52 (a).



      Some might argue that error must be identified before we disregard it. To do

so would be contrary to the purpose of the rule — judicial efficiency. An

assumption of error, without deciding it for posterity, will do. In the case before

us, the majority takes great lengths to decide an issue that we are commanded, by

the harmless error rule, to disregard. The last part of this opinion most aptly makes

the case for harmlessness, and I concur in that portion of it only, not because I

necessarily disagree with the first part, but because it engages in an unnecessary

extrapolation, counter to the very purpose of the harmless error rule, which in time

compromises the efficiency in opinion writing.
