                               District of Columbia
                                Court of Appeals
No. 14-CM-247
                                                                    APR    21   2016
WILLIAM BRIAN FOSTER,
                                          Appellant,

       v.                                               CMD-14687-13


UNITED STATES,
                                          Appellee.


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

     BEFORE: WASHINGTON, Chief Judge; FISHER, Associate Judge; and
STEADMAN, Senior Judge.


                                    JUDGMENT

              This case was submitted to the court on the transcript of record, the briefs
filed, and without presentation of oral argument. On consideration whereof, and for the
reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the trial court‟s judgment is affirmed.

                                                 For the Court:




Dated: April 21, 2016.

Opinion by Chief Judge Eric T. Washington.

Concurring opinion by Chief Judge Eric T. Washington.
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. 14-CM-247                          4/21/16

                      WILLIAM BRIAN FOSTER, APPELLANT,

                                         V.

                           UNITED STATES, APPELLEE.

                      Appeal from the Superior Court of the
                              District of Columbia
                                (CMD-14687-13)

                      (Hon. Yvonne Williams, Trial Judge)

(Submitted December 15, 2015                              Decided April 21, 2016)

      Anna B. Scanlon was on the brief for appellant.

      Ronald C. Machen Jr., United States Attorney at the time the brief was filed,
and Elizabeth Trosman, John P. Mannarino, and J. Matt Williams, Assistant
United States Attorneys, were on the brief for appellee.

     Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and
STEADMAN, Senior Judge.


      Opinion for the court by Chief Judge WASHINGTON.

      Concurring opinion by Chief Judge WASHINGTON at page 7.

      WASHINGTON, Chief Judge:         William Brian Foster (“Appellant”) was
                                           2


charged with two counts of assault on a police officer (“APO”).1 The first count

charged him with assaulting Officer Matthew Konkol and the second count

charged him with assaulting Officer Robert Chester. Both officers were called to

appellant‟s home to assist Mobile Crisis, a psychiatric team that responds to calls

concerning individuals in need of psychiatric assistance.            Appellant is an

individual with schizophrenia. At the conclusion of the government‟s case, the

trial court granted appellant‟s motion for judgment of acquittal on the APO count

as to Officer Chester, but denied the motion as to Officer Konkol. Appellant was

convicted of APO as to Officer Konkol and asserts on appeal that the evidence was

insufficient to sustain his conviction.   We disagree, and affirm.



                                I. Factual Background



      On August 18, 2013, Mary Foster, appellant‟s mother, called the Department

of Health because she was concerned for her son. Mr. Foster has schizophrenia

and had not been taking his medication. Mobile Crisis arrived at Ms. Foster‟s

home, where appellant resides, with at least two police officers, Officer Chester

and Officer Konkol. Once appellant realized Mobile Crisis was there for him, he


      1
          D.C. Code § 22-405 (b) (2012 Repl.).
                                          3


went inside the home and went downstairs to his room. The officers instructed

that appellant had to go with them, to which appellant replied that he was not

going.2 The officers were not there to arrest appellant for any criminal activity.

However, the officers then attempted to handcuff appellant and a scuffle ensued.

Officer Konkol sprayed appellant with oleoresin capsicum (“O.C.”) spray.

Appellant then “shouldered” past Officer Konkol and ran out of the house. Once

he was outside, appellant voluntarily went down to the ground on his knees and the

officers attempted to handcuff him. Appellant testified that an officer stuck a

knee into his back, hindering his ability to breathe. Appellant testified that he

told the officers that he could not breathe, and that he began to kick his legs out to

help him breathe, almost as a “reflex.” Officer Michael Dowling, who arrived to

the scene to assist Officers Konkol and Chester, testified that appellant was “[f]ace

down on the ground with his legs flailing, with his arms underneath his body”

while the officers attempted to handcuff him. Officer Konkol testified that at no

time was appellant under arrest. Officer Chester testified that they were there

only to assist Mobile Crisis and “keep the peace.”




      2
       The officers intended to take appellant to the Comprehensive Psychiatric
Emergency Program after Mobile Crisis determined it wanted to evaluate him.
                                         4


                                    II. Analysis



      “We review challenges to the sufficiency of the evidence by viewing 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.‟” Coghill v. United States, 982 A.2d 802, 805 (D.C.

2009) (quoting Sousa v. United States, 400 A.2d 1036, 1043 (D.C. 1979)).       The

trial court found appellant guilty of one count of APO against Officer Konkol for

“pushing” or “shouldering” the officer as well as resisting arrest while he was

being handcuffed by the officer. “Under District of Columbia law, „[w]hoever

without justifiable and excusable cause, assaults, resists, opposes, impedes,

intimidates, or interferes with a law enforcement officer on account of, or while

that law enforcement officer is engaged in the performance of his or her official

duties,‟ is guilty of APO.”   Coghill, 982 A.2d at 805 (citing D.C. Code § 22-405

(b) (2012 Repl.)).   Generally, to prove APO, under circumstances where the

appellant is not merely resisting, the government must show “the elements of

simple assault . . . plus the additional element that the defendant knew or should

have known the victim was a police officer.”    Petway v. United States, 420 A.2d

1211, 1213 (D.C. 1980) (citation and internal quotation marks omitted). In this

case, however, appellant was also found guilty of APO for resisting efforts by the
                                         5


police to handcuff him.   We have held that in order to constitute such a violation,

“a person‟s conduct must go beyond speech and mere passive resistance or

avoidance, and cross the line into active confrontation, obstruction or other action

directed against an officer‟s performance in the line of duty[]” by “actively

interposing some obstacle that precluded the officer from questioning him or

attempting to arrest him.”    In re C.L.D., 739 A.2d 353, 357-58 (D.C. 1999)

(footnotes omitted). “The key is the active and oppositional nature of the conduct

for the purpose of thwarting a police officer in his or her duties.”     Id. at 357

(footnote omitted).



       We are satisfied that the evidence is sufficient to sustain appellant‟s APO

conviction. There is evidence in the record that the police officers were in full

uniform while assisting the mobile crisis unit. Further, there was evidence in the

record that the officers explained their presence to appellant and attempted to put

handcuffs on him when he indicated that he would not go with them. At that

point, the officers attempted to subdue him by spraying him with O.C. spray and

appellant ran out of the house using his shoulder to move Officer Konkol out of the

way.    Because there is evidence in the record that appellant knew that the

individuals in his house were police officers, that appellant was determined not to

go with them, and that he used his shoulder to move past Officer Konkol as he ran
                                          6


out of the door, we are satisfied that there is sufficient evidence in the record to

sustain appellant‟s conviction for the APO that was committed in the house.3



      After running outside, appellant collapsed on the ground, ostensibly because

he could not see as a result of being sprayed with the O.C. spray in the house.   An

officer who came on the scene to help Officer Konkol testified that he saw Officer

Konkol attempt to handcuff appellant but that appellant resisted him by flailing

away with his legs while lying on his arms, actively trying to prevent the officers

from getting to him.    We have concluded that mere passive resistance does not

constitute APO.      See In re C.L.D., 739 A.2d at 357-58.             However, we

acknowledged that conduct similar to the conduct by appellant in this case

resembles the “active and oppositional” conduct necessary for APO. See In re

J.S., 19 A.3d 328 (D.C. 2011).         Because appellant engaged in active and

oppositional conduct for the purpose of thwarting a police officer in his duties, the

evidence is sufficient to find appellant guilty of APO when he purposefully laid

      3
          Appellant asserts that the government did not prove that he did not act by
mistake or accident, as he was pepper-sprayed before bumping the officer and may
not have been able to see Officer Konkol in his path. However, viewing the
evidence in the light most favorable to the government as we must, the officer
testified that it appeared the spray took effect at the time appellant dropped to his
knees outside of the house. Thus, the trial court‟s finding that appellant
intentionally “pushed” the officer as he tried to get out of the house is supported by
the record.
                                           7


down on his hands once he was outside and actively resisted efforts by the police

to handcuff him so he could be transported to the emergency psychiatric facility.

See Wilson v. United States, 102 A.3d 751 (D.C. 2014).



      For the foregoing reasons, the trial court‟s judgment is



                                         Affirmed.



      WASHINGTON, Chief Judge, concurring: While the evidence is sufficient to

survive the challenge raised in this appeal, I write separately to express a concern I

share with the trial judge in this case about the potential for saddling those who

suffer from serious mental health issues with criminal records. 1 Here, appellant

was convicted of APO for actively resisting the efforts of the police to restrain him

in order to transport him to a mental health facility.    It is not clear on this record,

however, whether appellant‟s oppositional conduct was the result of his mental

illnesses or whether it had a separate genesis. And, while I certainly understand

      1
        I also share the trial court‟s concern about the apparent lack of specialized
training that the police officers assisting the mobile crisis unit received in this case.
That lack of training is inconsistent with the requirements outlined in MPD
General Order 308.04 that addresses interactions between police and persons with
mental health issues. If this training deficit is not addressed, it is reasonably
foreseeable that more incidents like this will unnecessarily occur in the future.
                                        8


and appreciate the reasons why those who serve as mental health professionals on a

Mobile Crisis team would want a police escort, I am troubled that the presence of

the police during these mental health visits can result in an individual being

charged with a criminal offense because we have criminalized active oppositional

resistance to the authority of the police. Therefore, if for policy reasons police

officers continue to accompany the Mobile Crisis team of mental health

professionals on these runs, I hope that those individuals who have the discretion

to decide whether to criminally prosecute individuals who fail to comply with

lawful orders will think twice before inflicting what could be considered a greater

harm, in the form of a criminal charge and conviction, on a very vulnerable

population.
