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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-798
MAXIM REGAN SMITH, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF3-11615-18)
(Hon. Kimberley S. Knowles, Trial Judge)
(Argued January 11, 2022 Decided August 11, 2022)
Justin A. Okezie for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Jack Korba, and Alyse Constantinide, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.
MCLEESE, Associate Judge: Appellant Maxim Regan Smith appeals from his
convictions for assault with a dangerous weapon and assault with significant bodily
injury while armed. We affirm. 2
I.
In sum, the evidence at trial was as follows. Mr. Ketchazo Paho was driving
when he saw Mr. Smith stopped on a bicycle in the middle of the street. Mr. Paho
honked at Mr. Smith, who did not respond. Mr. Paho then drove safely around Mr.
Smith. Mr. Smith nevertheless yelled at Mr. Paho. When Mr. Paho drove past Mr.
Smith, Mr. Smith hit Mr. Paho’s car, causing a loud bang. Mr. Paho drove a short
distance, pulled over, called 911, and got out of his car to inspect for damage.
Mr. Smith rode by Mr. Paho, stopped some distance away, and yelled, “are
you calling the cop[s], [n-word]?” Mr. Smith is white and Mr. Paho is Black. Mr.
Smith then rode his bike toward Mr. Paho, yelling loudly and continuing to call Mr.
Paho the n-word. When Mr. Smith got within a foot of Mr. Paho, Mr. Paho grabbed
the handlebars of Mr. Smith’s bicycle, trying to keep Mr. Smith on the scene until
the police arrived. Mr. Smith then hit Mr. Paho in the hand, forearm, and head with
a metal bike lock. Mr. Smith continued to call Mr. Paho the n-word. Mr. Smith got
off the bicycle and tried to get into Mr. Paho’s car, but Mr. Paho was able to prevent
that. Mr. Paho did not threaten or touch Mr. Smith during the incident. 3
Mr. Paho was bleeding profusely, and he went to the hospital and received
twenty-one stitches in the head.
Mr. Smith was arrested on the scene. He told the police on the scene that Mr.
Paho had not touched him.
At trial, Mr. Smith testified to a somewhat different version of events.
According to Mr. Smith, Mr. Paho drove up behind Mr. Smith, honked at him, and
came dangerously close to sideswiping him. Mr. Paho then drove around Mr. Smith,
and Mr. Smith tapped the back of the car with his hand. Mr. Paho pulled over, and
Mr. Smith at first rode by. Mr. Smith circled back, however, after Mr. Paho yelled
that he was calling the police because Mr. Smith had damaged the car. The two then
got in a verbal argument, standing within two to three feet of each other. Mr. Smith
called Mr. Paho the n-word, in order “to emotionally hurt him.” Mr. Smith
acknowledged that he had previously falsely denied using the n-word during the
incident, but he testified that he had denied using the n-word because he was
ashamed that he had used that word. Mr. Smith acknowledged having used the word
to another Black person in a later incident. 4
During the argument, Mr. Paho grabbed Mr. Smith’s wrist and bicycle and
threatened Mr. Smith. Mr. Smith then hit Mr. Paho’s hand twice with a bicycle lock.
Mr. Paho still did not let go of Mr. Smith’s wrist, so Mr. Smith hit Mr. Paho with
the lock once in the head.
II.
The United States charged Mr. Smith with committing assault because of
racial bias. D.C. Code § 22-3703 (person found guilty of bias-related crime may be
imprisoned for up to 1-1/2 times otherwise applicable maximum term of
imprisonment). That issue was submitted to the jury, which was unable to reach a
unanimous verdict on the issue.
In the trial court, Mr. Smith wanted to prevent the jury from hearing evidence
of his use of the n-word. Mr. Smith therefore requested that the trial court either (1)
itself decide whether the assault was racially motivated; or, failing that, (2) inform
the jury that Mr. Smith stipulated that the assault was racially motivated. Mr. Smith
also asked the trial court to “sanitize” the evidence of the use of the n-word. The
trial court denied those requests. 5
A. Background
Several of Mr. Smith’s arguments on this issue rest on the premise that the
bias enhancement is a sentencing factor rather than an element of an aggravated
crime. We disagree with that premise.
The legislature has authority to establish crimes and define their elements.
See, e.g., Lewis v. United States, 138 A.3d 1188, 1192 (D.C. 2016) (“[I]t is a well-
established principle that the definition of the elements of a criminal offense is
entrusted to the legislature . . . .”) (internal quotation marks omitted). Criminal
defendants generally have a constitutional right to a jury trial at which the
prosecution bears the burden of proving all elements of each charged offense beyond
a reasonable doubt. See, e.g., United States v. Gaudin, 515 U.S. 506, 522-23 (1995)
(“The Constitution gives a criminal defendant the right to have a jury determine,
beyond a reasonable doubt, [the defendant’s] guilt of every element of the crime
with which [the defendant] is charged.”). There is an exception to the jury-trial right
for petty offenses, but the assault charges in this case do not fall within that
exception. See Bado v. United States, 186 A.3d 1243, 1248 (D.C. 2018) (en banc)
(offenses punishable by over six months’ imprisonment are serious rather than petty
for purposes of constitutional right to jury trial); D.C. Code § 22-402 (assault with 6
dangerous weapon punishable by up to ten years’ imprisonment); D.C. Code §§ 22-
404(a)(2), 22-4501(1A), 22-4502(a)(1), 23-1331(4) (assault with significant bodily
injury while armed punishable by up to thirty years’ imprisonment). Mr. Smith thus
had a constitutional right to have the jury determine his guilt or innocence of the
assault charges in this case. Mr. Smith also had a statutory right to a jury trial on
those charges. D.C. Code § 16-705(a).
Within certain constitutional limits, the legislature can direct sentencing
judges to consider additional circumstances, not found by the jury, when imposing
sentencing. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998) (Congress permissibly authorized sentencing judges to impose harsher
sentences on defendant with prior convictions, even though prior conviction was not
treated as element and tried to jury); United States v. Haymond, 139 S. Ct. 2369,
2377-78 & n.3 (2019) (subject to narrow exceptions, including that reflected in
Almendarez-Torres, “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum . . . must be submitted to a jury, and proved beyond
a reasonable doubt”) (brackets and internal quotation marks omitted).
The legislature is not always explicit as to whether it intends a circumstance
to be treated as an element and therefore determined by the fact-finder who 7
adjudicates guilt or innocence, or instead to be treated as a sentencing factor and
therefore determined by the sentencing judge. In such cases, the court must resolve
that issue as a matter of statutory interpretation. See, e.g., Fields v. United States,
547 A.2d 138, 140-41 (D.C. 1988) (holding as matter of statutory interpretation that
“senior citizen penalty enhancement” statute, D.C. Code § 22-3901 (now codified at
D.C. Code § 22-3601), is element that must be proven to jury beyond reasonable
doubt).
We conclude as a matter of statutory interpretation that the bias enhancement
operates as an element of an aggravated offense to be found by the jury, not as a
sentencing enhancement to be determined by the sentencing judge. We so conclude
for two reasons. First, the bias enhancement applies by its terms only to persons
who have been “found guilty of a bias-related crime.” D.C. Code § 22-3703. The
reference to a finding of guilt clearly indicates that the legislature intended the
determination whether a crime was bias-related to be made as part of the adjudication
of guilt, not later by the sentencing judge. Second, the bias enhancement is very
similar to the senior-citizen enhancement that we addressed in Fields. We held in
Fields that the senior-citizen enhancement was an element, because that
enhancement involved “an aggravation arising from the manner in which the crime
was committed,” rather than a mere historical fact such as a prior conviction. 547 8
A.2d at 141 (internal quotation marks omitted). The same is true of the bias
enhancement, and we therefore reach the same conclusion as to that enhancement.
Mr. Smith contended at oral argument, however, that this court has previously
viewed the bias enhancement as a sentencing factor rather than a legislatively
established element of an aggravated crime. We disagree. The case Mr. Smith relies
upon simply comments in passing that § 22-3703 provides “enhanced punishment
for persons convicted of bias-related crimes.” Aboye v. United States, 121 A.3d
1245, 1248 (D.C. 2015). That comment is not a holding and in any event does not
draw a clear distinction between elements and sentencing factors. We also note that
in Aboye the case was tried to the judge, not the jury. Id. at 1248. Aboye therefore
does not shed light on the question whether the judge or the jury should decide the
bias enhancement in a case otherwise being tried to a jury.
B. Bifurcated Trial
Mr. Smith argues that the trial court was required to bifurcate the trial, so that
the jury would decide the assault charges—without hearing evidence of Mr. Smith’s
use of the n-word—and the trial judge would decide the bias enhancement, 9
presumably based on evidence introduced outside the presence of the jury. We
conclude to the contrary.
Criminal defendants do not have a constitutional right to a bench trial. Singer
v. United States, 380 U.S. 24, 34 (1965). In the District of Columbia, they also do
not have a statutory right to a bench trial. Rather, District of Columbia law provides
that if a defendant has a constitutional right to a jury trial, the trial “shall be by jury,”
unless the defendant expressly waives that right “and the court and the prosecuting
officer consent thereto.” D.C. Code § 16-705(a). The United States did not consent
to a partial bench trial in this case, and thus Mr. Smith had no right to one. See, e.g.,
Goodall v. United States, 686 A.2d 178, 183 (D.C. 1996) (holding that bifurcated
trial, with trial judge deciding one element and jury deciding rest of elements, would
be inappropriate; “We are not aware of any precedent that would justify such a
bifurcation of a criminal charge . . . .”); cf. Blakely v. Washington, 542 U.S. 296, 310
n.12 (2004) (agreeing that “States are not required to give defendants the option of
waiving jury trial on some elements but not others”) (emphasis omitted).
We are not persuaded by Mr. Smith’s arguments to the contrary. First, Mr.
Smith argues that his claimed right to a bifurcated trial is supported by this court’s
decisions in Eady v. United States, 44 A.3d 257 (D.C. 2012), and Williams v. United 10
States, 137 A.3d 154 (D.C. 2016). We do not view those cases as supporting Mr.
Smith’s argument in this case. In those cases, the jury was permitted to hear
evidence that was not relevant to the legislatively determined elements of the
charged crimes, but rather was relevant to matters that the legislature had intended
be treated as sentencing factors: (1) a defendant’s prior felony conviction; and (2)
information that a defendant had been on release in another case at the time of the
charged crime. Eady, 44 A.3d at 260, 262-63; Williams, 137 A.3d at 164-65. Eady
and Williams arguably suggest that defendants may have the unilateral right to
remove from the jury’s consideration issues that the legislature wanted sentencing
judges to decide but the Constitution requires a jury to decide. See Eady, 44 A.3d at
262 (even if Constitution requires jury to decide whether offense was committed
while on release, defendant still had right to stipulate to that fact and thereby keep
issue from jury). Eady and Williams, however, do not support the idea that
defendants have the unilateral right to remove a legislatively established element of
a crime from the jury’s consideration. Eady and Williams therefore do not support
Mr. Smith’s claim in this case. We also note that Eady and Williams do not address
the significance of D.C. Code § 16-705(a) (trial shall be by jury if Constitution so
requires, unless defendant waives right to jury trial and prosecutor and trial court
consent). 11
Second, Mr. Smith suggested at oral argument that § 16-705(a) does not
prevent a defendant from unilaterally waiving proof of some elements of an offense,
as long as at least one element of each offense is submitted to the jury. That
suggestion is not supported by the language of § 16-705(a), has no apparent
rationale, and is contrary to the reasoning of our decision in Goodall.
C. Stipulation
Mr. Smith argues in the alternative that the trial court should have required
the prosecution to accept a stipulation that the assaults were bias-related, thereby
preventing the jury from hearing the evidence that Mr. Smith called Mr. Paho the n-
word. Generally, “a criminal defendant may not stipulate or admit [the defendant’s]
way out of the full evidentiary force of the case as the Government chooses to present
it.” Old Chief v. United States, 519 U.S. 172, 186–87 (1997); see also Rollerson v.
United States, 127 A.3d 1220, 1229 (D.C. 2015) (“[T]his court has held that except
in very limited circumstances, a party may not be forced to accept a stipulation in
lieu of testimonial or tangible evidence.”; “Live testimony or tangible evidence
offers so many significant advantages over a stipulation that we think it would be
grossly unfair for a court to force a party to rely on the latter rather than the former,
for a stipulation will almost never have the same probative value and persuasive 12
power as the testimony of a live witness or a tangible object.”) (internal quotation
marks omitted). Requiring a stipulation rather than permitting direct proof would
have been particularly unwarranted in this case, because, as the trial court ruled,
evidence of Mr. Smith’s use of the n-word was independently relevant to the assault
charges, providing evidence relevant to motive and self-defense. See, e.g., Lazo v.
United States, 930 A.2d 183, 185 (D.C. 2007) (“[T]he presence or absence of a
motive on the part of the defendant which might tend to commission of . . . a criminal
deed may always be considered by the jury on the question of whether [the
defendant] did commit it.”) (brackets and internal quotation marks omitted).
D. Prejudice/Probativeness Balancing
Finally, we hold that the trial court did not abuse its discretion by refusing as
a matter of evidence law to prevent the jury from hearing evidence that Mr. Smith
called Mr. Paho the n-word. Relevant evidence may be excluded only when “its
probative value is substantially outweighed by the danger of unfair prejudice.”
Johnson v. United States, 683 A.2d 1087, 1099 (D.C. 1996) (en banc) (internal
quotation marks omitted). “We recognize that the evaluation and weighing of
evidence for relevance and potential prejudice is quintessentially a discretionary 13
function of the trial court, and we owe a great degree of deference to its decision.”
Id. at 1095.
The trial court reasonably concluded that danger of unfair prejudice did not
substantially outweigh the probative value of admitting evidence of Mr. Smith’s use
of the n-word. That evidence was highly relevant to the charged crimes. The
evidence was central to the question whether Mr. Smith’s assault was racially
motivated. Moreover, as previously noted, the evidence was also relevant to the
jury’s understanding of the circumstances of the alleged assaults. In sum, as the
Supreme Court has explained, “[p]eople who hear a story interrupted by gaps of
abstraction may be puzzled at the missing chapters, and jurors asked to rest a
momentous decision on the story’s truth can feel put upon at being asked to take
responsibility knowing that more could be said than they have heard.” Old Chief,
519 U.S. at 189.
We do not find Mr. Smith’s contrary arguments persuasive. First, Mr. Smith
argues that the trial court erroneously commented that the n-word is not offensive in
every context. We see no basis for reversal on this point. It is unquestionable that
the n-word is deeply offensive. The trial court’s comment, however, was largely
irrelevant to the issue before the trial court. The trial court acknowledged that the 14
n-word was offensive to many people. The trial court did not dispute that the n-word
was offensive in the context in which it was alleged to have been used in this case.
Rather, the trial court permissibly ruled that evidence that Mr. Smith had used the n-
word was admissible as evidence that the assault was racially motivated and as direct
evidence of the assault.
Second, Mr. Smith argues that the trial court did not do enough to minimize
unnecessary prejudice due to repeated use of the “n-word.” We do not agree,
however, with Mr. Smith’s contention that such evidence was given undue emphasis
at trial.
III.
Mr. Smith challenges the trial court’s ruling that the United States could cross-
examine Mr. Smith about the later incident in which Mr. Smith used the n-word to
refer to a Black person. We see no abuse of discretion.
Mr. Smith testified that he was ashamed of his use of the n-word in this case.
He further testified that his shame had led him to falsely deny having done so. On
cross-examination, the United States asked whether Mr. Smith had subsequently 15
used the n-word to another Black person. Mr. Smith objected, arguing that someone
could say the n-word twice and still be ashamed of each use of the word. The United
States argued that the subsequent incident was relevant to Mr. Smith’s assertion that
he was ashamed of using the n-word. The trial court overruled the objection, but
limited the United States to a single question and prohibited the United States from
mentioning that Mr. Smith had used the word against a Black motorist. Although
the trial court acknowledged that someone could possibly be ashamed of both
incidents, the trial court did not see that possibility as a basis for entirely excluding
evidence of the second incident. In response to the United States’s question, Mr.
Smith acknowledged that he had used the n-word in the second incident.
The trial court reasonably found that evidence of Mr. Smith’s use of the n-
word in the second incident was probative of the credibility of Mr. Smith’s testimony
that he was ashamed of having used the n-word in the incident at issue in this case.
The trial court also carefully limited the evidence concerning the second incident.
We are satisfied that the court sufficiently curtailed the use of the evidence to avoid
undue prejudice.
Mr. Smith argues that the trial court erred because the evidence at issue was
not admissible under the doctrine of curative admissibility, which would have 16
required that Mr. Smith have first introduced inadmissible evidence. We do not view
this as an issue of curative admissibility. Rather, the issue for the trial court was
whether the question the United States sought to ask was permissible given Mr.
Smith’s testimony. See generally, e.g., Kinard v. United States, 635 A.2d 1297,
1306 (D.C. 1993) (prosecutor “may cross-examine . . . about the facts asserted by a
defendant in testimony”).
IV.
Mr. Smith also challenges the jury instruction on defense of property. We
conclude that any error was harmless beyond a reasonable doubt.
The trial court instructed the jury on defense of property as follows: “A person
is justified in using reasonable force to protect his property from misuse when he
reasonably believes that his property is in [immediate] danger of unlawful taking or
misuse and that the use of such force is necessary to avoid the danger.” Mr. Smith
objected to this instruction, arguing that the jury should be instructed that “trespass”
or “interference” could give rise to a successful claim of defense of property. The
trial court denied that request. 17
We do not decide whether the instruction was erroneous or what harmless-
error standard would apply, because we conclude that any error was harmless
beyond a reasonable doubt. See generally Chapman v. California, 386 U.S. 18, 24
(1967) (constitutional error generally does not require reversal if government can
establish that error was “harmless beyond a reasonable doubt”).
We see no reasonable possibility that the jury verdict was affected by the
instruction’s use of the term “misuse” rather than “trespass” or “interference.” Mr.
Smith’s defense-of-property theory rested on Mr. Paho’s grabbing of Mr. Smith’s
bicycle. The instruction as given permitted Mr. Smith to argue that Mr. Paho had
unjustifiably grabbed, and thus misused, Mr. Smith’s bicycle. Yet, Mr. Smith only
made passing reference to the defense-of-property theory in closing arguments. In
closing argument, the prosecutor did not argue that Mr. Paho’s conduct was not
“misuse.” Rather, the prosecutor focused on the lack of proportionality in Mr.
Smith’s use of force against Mr. Paho. We see no reason to believe that the jury’s
verdict would have been different if the jury instruction had included the term
“interference” or the term “trespass.” In sum we are satisfied beyond a reasonable
doubt that any instructional error was harmless. 18
The judgment of the Superior Court is therefore
Affirmed.