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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 14-CM-737

                        LAWRENCE N. HARRIS, APPELLANT,

                                        v.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (DVM-892-14)

                        (Hon. Marisa J. Demeo, Trial Judge)

(Argued June 18, 2015                                 Decided October 29, 2015)

      Jeffery L. Light for appellant.

      Ryan Malone, Assistant United States Attorney, for appellee. Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Margaret Barr and Ann K. H. Simon, Assistant United States Attorneys,
were on the brief for appellee.

      Before GLICKMAN and EASTERLY Associate Judges, and RUIZ, Senior Judge.

      Opinion for the court by Senior Judge RUIZ.

      Dissenting opinion by Associate judge GLICKMAN at page 13.

      RUIZ, Senior Judge: Following a bench trial, the trial court found appellant,

Lawrence Harris, guilty of misdemeanor malicious destruction of property arising
                                          2


out of an incident in which appellant damaged the front door of the home he shared

with his mother and sister. On appeal, he argues that the evidence was insufficient

to support his conviction, contending that because he used only the force that was

reasonably necessary in an attempt to gain re-entry into his lawful residence he

could not be found to have acted “maliciously,” a statutory element of the offense

for which he was charged and convicted. We conclude that because the evidence

does not support that appellant was aware of a plain and strong likelihood that his

efforts to gain entry to his home would cause property damage, it is insufficient to

find that he had the requisite malice. We reverse the conviction.



                                          I.



      At the time of the incident that led to the charge of malicious destruction of

property, appellant resided with his mother, Trenice Harris, his sister, and her

child, all of whom were named on the lease. On April 15, 2014, at 3:00 a.m., Ms.

Harris called the police because appellant was “acting out . . . tripping off of some

PCP . . . had tor[n] the blinds down in the kitchen . . . [and] kicked the back door,”

leaving it open. When the police responded to the call, appellant was not arrested;

instead the officers informed Ms. Harris that they could not force appellant to leave

the house because his name was on the lease. Later, Ms. Harris called the police a
                                         3


second time, because appellant was “still acting out” and under the influence of

PCP. The police returned to the house and again informed Ms. Harris that they

could not make appellant leave, but requested that she go to her room, which was

located on the upper level of the house, and that appellant remain in his bedroom,

located in the basement.



      After the police left, appellant went upstairs into Ms. Harris‟s bedroom

where an argument began over her “pocketbook.” Ms. Harris and appellant tussled

“back and forth with [the] pocketbook” until she threatened to hit appellant with an

iron. She called the police a third time; when the police officers arrived they did

not arrest appellant; instead they escorted appellant out of the house. Sometime

later, Ms. Harris went to the basement to ensure that the doors were locked and

saw her son hiding behind his bed. She asked him to leave and he complied. Ms.

Harris called to inform the police.



      Appellant again returned to the house, but found that the front door was

locked. As he did not have a key, appellant began kicking the door. According to

Ms. Harris‟s testimony, she looked out of the peephole in the door and saw

appellant acting “erratical[ly].” He kept “kicking and kicking and kicking” the

door, “trying to tear that door in.”     Unable to get the door open, appellant
                                        4


eventually left. Ms. Harris called the police and they took pictures of the damage.

A few days later, appellant was arrested and charged with malicious destruction of

property based on the damage to the door.



      The trial court heard testimony from Ms. Harris, Officer Imbrenda, and

appellant, and reviewed transcripts of Ms. Harris‟s calls to the police and

photographs of the damage. Officer Nicholas Imbrenda, one of the officers who

responded to Ms. Harris‟s calls, testified that the door was “visibly damaged”: the

door hinges were bent and there was damage to the “bottom left quarter panel” of

the door. Ms. Harris testified that appellant‟s kicking “cracked the whole framing

around the door and . . . the paneling of the door.” She said that “the door was

coming apart from the inside” and that pieces of wood had splintered from the

door. She also identified pictures of the damage taken by the police, which were

taken from inside of the house. According to Ms. Harris, “[f]rom the outside of the

door you couldn‟t tell nothing.” Appellant testified that he had knocked, not

kicked, and was not aware of the damage to the door because he could not see the

damage from the outside and he had not returned to the house before he was

arrested.
                                            5



      The trial court credited Ms. Harris‟s testimony, finding that she was truthful

in her answers and “had a sufficient ability to observe [the events] on the night in

question.”    The court discredited appellant‟s testimony that he had merely

knocked, commenting on his demeanor in court and inconsistencies in his

testimony regarding whether he remembered kicking the door or if he was even

present at the residence on the night of the incident. Based on the evidence of the

damage to the door, the trial court found that appellant had used an “excessive”

amount of force—not knocking, but kicking—and had “kicked the door multiple

times with great force causing damage,” consistent with “someone . . . either trying

to get in or . . . trying to damage the door.” The court concluded that appellant was

guilty of malicious destruction of property because “he either did intend to damage

the door to get in” or acted with “aware[ness] that his repeated kicking with great

force . . . create[d] a substantial risk of harm to the door.”1




      1
           The trial court also found that “the property was not [appellant‟s], [but]
belong[ed] to the [g]overnment.” This finding was apparently based on testimony
that the apartment where appellant and his family lived was Section 8 housing.
There is no evidence in the record, however, as to the ownership of the property,
but it is undisputed that appellant was a tenant, not an owner.
                                          6



                                         II.



      Appellant argues that there was insufficient evidence to support his

conviction. He contends that there was no evidence that he acted with malice, as

required by the statute, and that the trial court failed to “adequately explain its

specific findings as they relate to the requirements for showing malicious

destruction.” He asserts that the trial court‟s factual finding—that the amount of

force used was consistent with someone trying to get in—means that his use of

force was not malicious and is inconsistent with the trial court‟s ultimate finding of

guilt. We agree.



      “In reviewing a claim challenging the sufficiency of the evidence, we must

„view the evidence in the light most favorable to the government, giving deference

to the [factfinder‟s] right to weigh the evidence, determine the credibility of the

witnesses, and draw inferences from the evidence presented.‟” Mitchell v. United

States, 985 A.2d 1125, 1133-34 (D.C. 2009) (quoting McCullough v. United

States, 827 A.2d 48, 57 (D.C. 2003)). “We can only reverse a conviction on this

ground if there is no evidence upon which a reasonable mind could infer guilt

beyond a reasonable doubt.” Id. at 1134. “Where the [factfinder] is a trial judge,
                                         7


we will not reverse a conviction unless „an appellant has established that the trial

court‟s factual findings are plainly wrong or without evidence to support them.‟”

Jones v. United States, 16 A.3d 966, 970 (D.C. 2011) (quoting In re D.T., 977 A.2d

346, 356 (D.C. 2009)).



      Appellant was convicted under D.C. Code § 22-303, which provides, in

relevant part, “[w]hoever maliciously injures or breaks or destroys, or attempts to

injure or break or destroy, by fire or otherwise, any public or private property,

whether real or personal, not his or her own,” shall be found guilty of malicious

destruction of property. D.C. Code § 22-303 (2012 Repl.). A plain reading of the

statute establishes that “[b]oth malice and intent are elements of the malicious

destruction of property offense, and more than proof of negligence is required to

obtain a conviction.” Gonzalez v. United States, 859 A.2d 1065, 1067 (D.C. 2004).

The “„requisite intent‟ for malicious destruction of property is an „intent to injure

or destroy the property, for a bad or evil purpose.‟” Id. at 1067-68 (quoting Ross v.

United States, 520 A.2d 1064, 1065 (D.C. 1987)). We have defined malice as
                                          8


             (1) the absence of all elements of justification, excuse or
             recognized mitigation,[2] and (2) the presence of either (a)
             an actual intent to cause the particular harm which is
             produced or harm of the same general nature, or (b) the
             wanton and willful doing of an act with awareness of a
             plain and strong likelihood that such harm may result.



Guzman v. United States, 821 A.2d 895, 898 (D.C. 2003) (quoting and noting

emphasis in Thomas v. United States, 557 A.2d 1296, 1299 (D.C. 1989)). A

finding that the accused intended the actual harm which resulted from his wrongful

acts is not an essential prerequisite to the existence of malice. “All that is required

is a conscious disregard of a known substantial risk of the harm which the statute is

intended to prevent.” Gonzalez, 859 A.2d at 1067 (quoting Carter v. United

States, 531 A.2d 956, 962 (D.C. 1987)).          Thus, to support a conviction for

malicious destruction of property, the trial court must find that the defendant either

intended to cause the harm to the property or acted willfully and wantonly, with the




      2
         Appellant argues that as a co-tenant he was “privileged to use reasonable
force against . . . co-leased [property] to gain entry to his own home,” a legal
question he contends we left open in Jackson v. United States, 819 A.2d 963, 967
n.2 (D.C. 2003). Because we conclude that the evidence was insufficient to
support that he acted with malice, there is no need to address that legal issue in this
case.
                                           9


awareness of the “plain and strong” likelihood of that harm. Guzman, 821 A.2d at

898.3



        The trial court, following the definition of malice, found that appellant

“intended to damage or destroy the property or was aware that his conduct created
        3
         The Model Penal Code abandons the common law terms general intent,
specific intent, and malice and categorizes various levels of culpability as
“purposely, knowingly, recklessly or negligently . . . with respect to each material
element of the offense.” MODEL PENAL CODE § 2.02 (1) (1962). A person
“purposely” commits a crime if he acts with a “conscious object[ive] to engage in
conduct of that nature or to cause such a result; and [] if the element involves the
attendant circumstances, he is aware of the existence of such circumstances or he
believes or hopes that they exist.” Id. § 2.02 (2)(a). A person “knowingly”
commits a crime “(i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of that nature or that such
circumstances exist; and (ii) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will cause such a result.” Id.
§ 2.02 (2)(b). “When knowledge of the existence of a particular fact is an element
of an offense, such knowledge is established if a person is aware of a high
probability of its existence, unless he actually believes that it does not exist.” Id. at
§ 2.02 (7). A person acts “recklessly” if he “consciously disregards a substantial
and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that, considering the nature
and purpose of the actor‟s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor‟s situation.” Id. § 2.02 (2)(c).

       As this court has defined “malice” in the context of the malicious destruction
of property statute, the “actual intent to cause the particular harm,” Guzman, 821
A.2d at 898 (citation omitted), is equivalent to the Model Penal Code‟s
“purposely” state of mind. The “wanton and willful” act with “awareness of a
plain and strong likelihood that such harm may result,” id., blends the Model Penal
Code‟s “knowingly” and “recklessly” states of mind.
                                          10


a substantial risk of harm to that property, but engaged in that conduct,

nonetheless.” We are not confident, however, that the record supports the trial

court‟s findings beyond a reasonable doubt. See Rivas v. United States, 783 A.2d

125, 134 (D.C. 2001) (en banc) (noting that appellate review of factual findings is

deferential but not “toothless”).



      The trial court‟s finding that appellant intended to cause damage to the door

cannot be sustained. The trial court commented that the amount of force used by

appellant was consistent with “someone . . . either trying to get in or someone[]

trying to damage the door.” (Emphasis added.) The court noted that the damage

was “actually closer to . . . the door knob,” which “seems to suggest . . . that [it]

probably is a little easier to get in by kicking the lower panel” and “the evidence is

consistent . . . that that‟s probably a better way to get in.” Thus, as the trial court

observed, the evidence supports that appellant‟s intent was not to “damage or

destroy” the door but to kick it open so he could re-enter his residence. Appellant

had repeatedly shown that he wanted to remain in his home, including by returning

to the house and by hiding in the basement, after the police had escorted him out of

his home. Except for the fact of the kicking and the damage to the front door, there

is scant evidence to support a finding that appellant acted with the purpose of
                                          11


damaging the door.4 The trial court expressly found that the evidence equally

supported that appellant‟s intent was to enter as to damage the door. Where

evidence of guilt is in equipoise with evidence of innocence, it is perforce

insufficient for conviction by the constitutional standard, beyond a reasonable

doubt. See Rivas, 783 A.2d at 133-34.



       We turn to the trial court‟s alternative finding that appellant “was aware that

his conduct created a substantial risk of harm to [the door], but engaged in that

conduct, nonetheless.” Ms. Harris testified that appellant returned after the police

had escorted him out of the house and began acting erratically and kicking the

door. As a result of the force used by appellant, a door panel and the door frame

were cracked. This testimony, corroborated by pictures depicting the damage to

the door, supports the trial court‟s finding that appellant kicked the door multiple

times, with “excessive” force—a “wanton and willful” act. Guzman, 821 A.2d at

898.




       4
         Ms. Harris testified that she was familiar with the smell of PCP, noticed
the smell emanating from appellant, and that appellant had torn down the blinds in
the kitchen and kicked the back door open. The officer who responded to the call,
however, did not detect PCP odor on appellant nor did he see any torn blinds or
other sign of violent disorder.
                                         12


      The question remains whether appellant “acted with awareness of a plain

and strong likelihood that such harm may result.” Id. Officer Imbrenda testified

that the door was “visibly damaged” and mentioned that he saw bent door hinges

and damage to one of the two bottom panels. The photographs introduced at trial,

as noted by the trial court, showed damage to the frame and panel on the inside of

the door. Damage to the door hinges would not have been visible to a person

outside of the home because the door hinges are mounted on the inside. Officer

Imbrenda did not state that the damage was visible from the outside of the door.

And although Ms. Harris testified that, “[t]he door was coming apart from the

inside,” where she was located, she flatly stated that “[f]rom the outside of the door

[one] couldn‟t tell” that there was damage to the door. Appellant testified that he

first learned of the destruction of property accusation when he was arrested, and

had no knowledge of the damage to the door because there was no damage to the

exterior side of the door where he was located and he could not see inside. He had

not gone back into the house after his attempt to enter had failed. The trial court

could infer from the damage to the door that appellant kicked with such force that

he should have known that his actions would result in some damage. For criminal

liability, however, more than negligence must be shown, see Gonzalez, 859 A.2d at

1067; there must be proof of “awareness of a plain and strong likelihood that such
                                         13


harm may result.” Guzman, 821 A.2d at 898. The evidence in this case does not

support that appellant had such awareness. 5



      Because the evidence was insufficient to prove malice, we reverse

appellant‟s conviction.

                                               So ordered.



      GLICKMAN, Associate Judge, dissenting: Because the front door was locked,

and unreceptive to more gentle persuasion, it was obvious to appellant that he

would have to break in to gain entry. And so appellant decided to batter the stoutly

resistant front barrier with such fury, force, and persistence that he substantially


      5
         Our dissenting colleague relies on Jackson, 819 A.2d at 967, as support for
his conclusion that the evidence in this case was sufficient to convict appellant of
malicious destruction of property. The principal issue in Jackson was the
applicability vel non of the malicious destruction of property statute to a co-owner.
See id. at 964-67. Although the court also concluded that the evidence was
sufficient to convict, there is scant description of the evidence presented about the
defendant‟s actions. See id. at 967 (“Mrs. Jackson testified that appellant kicked
the door and caused substantial damage to it.”) There was also evidence, however,
that even after gaining entry, the defendant had threatened to “burn the house
down.” See id. at 964 n.1 (noting that Jackson was acquitted of this charge).
There is no discussion of the defendant‟s state of mind nor is there any indication
that the trial judge made findings that called into question the presence of malice.
In short, in Jackson the court was not presented with and did not discuss the issue
in this case: whether the actions were taken “maliciously.”
                                         14


damaged not only the wooden door itself, but also its metal hinges and the

surrounding doorframe. This court previously has held such evidence sufficient to

support a conviction for malicious destruction of property,1 and I see no reason not

to do so here. Even if appellant did not actually see the damage he caused, I think

the evidence unquestionably permitted the trial judge to disbelieve his professions

of obliviousness and find beyond a reasonable doubt that appellant both knew there

was a “plain and strong likelihood”2 he would inflict significant physical damage

to the doorway, and meant to do exactly that in order to gain entry. Appellant had

to know he could not kick his way through a locked door without damaging it in

some way.     Any sane person would realize that.       Accordingly, I respectfully

dissent.3



      1
         See Jackson v. United States, 819 A.2d 963, 967 (D.C. 2003) (holding
evidence sufficient to convict a co-owner of malicious destruction where he kicked
and substantially damaged a locked door in order to enter the premises).
      2
        Guzman v. United States, 821 A.2d 895, 898 (D.C. 2003) (quoting Thomas
v. United States, 557 A.2d 1296, 1299 (D.C. 1989)).
      3
          The majority finds it unnecessary to address appellant‟s argument that he
was privileged to break the door down to gain entry because he was a co-tenant on
the lease. Ante at 8 n.2. As the majority decides this case in appellant‟s favor on a
different ground, and nothing I say about his privilege contention can alter the
outcome of this appeal, I, too, shall refrain from addressing it. But see Jackson,
819 A.2d at 967 (holding that a co-owner of property may be found criminally
liable for its malicious destruction).
