The Court of Appeals on July 31, 2014, in IN RE D.R. (No. 11-FS-1320), both reversed a conviction for insufficiently of evidence and also remanded the case to the trial court.

Appellant, D.R., was convicted at trial of four criminal offenses including a conviction for Carrying a Dangerous Weapon (CDW). The Court remanded for trial finding on ineffective assistance of counsel claim, however, focused significantly on the statutory construction and language of CDW and ended revering the conviction consistent with the opinion.

Factually, D.R., a fourteen year old, was found at trial to have brandished a machete/sword type knife about 18-24 inches against a neighbor during an altercation.

The statute defining the CDW offense provides: [n]o person shall carry within the District of 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. essentially argued the given the size of the knife, his physical size and posture, and the clothing worn during the evening of the altercation – he was incapable of concealing the weapon (knife) on or about his person.

The Court of Appeals analyzed in detail, and defined the statutory term “capable of being so concealed.”

The Court distinguished the definition of “capable of being concealed” from the definition first put forth in the Supreme Court decision in Powell signifying this reversal on appeal.

Specifically, the Court concluded 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 defendants 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.”

Thus defendant’s clothing, size of the weapon, and size of the individual defendant, all would be evidence for the trial court to consider at the trial level in determining if the weapon in question was capable of being concealed on or about this particular defendant rather than an average defendant as was defined in Powell decision.

The Court thus reasoned here that the government did not put sufficient evidence on the record to establish D.R. (a fourteen year old) was capable of concealing the machete (18-22 inches long) while not wearing heavy clothing to allow concealing the weapon on the evening of altercation — and thus this statutory element was not proven to support the conviction.

This case is significant as for the first time the Court expounded and construed the meaning of “capable of being concealed” in the CDW statute, but more importantly, departed from the definition and construction of the term by the Supreme Court in US. v. Powell, 423 U.S. 87 (1975).

Categories: Criminal Defense.