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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CM-0953

KEVIN E. JONES, JR., APPELLANT,

V.

UNITED STATES, APPELLEE. 

Appeal from the Superior Court

of the District of Columbia

(2017-CMD-015669)

(Hon. Patricia A. Broderick, Trial Judge)

(Submitted December 11, 2019 Decided May 4, 2023)

Jesse I. Winograd for appellant.

Jessie K. Liu, United States Attorney at the time of submission, and 

Elizabeth Trosman, Suzanne Grealy Curt, Amy Joy Thomas, and Allessandra 

Stewart, Assistant United States Attorneys at the time, were on the brief for 

appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and 

THOMPSON,

* Senior Judge

 

* Judge Thompson was an Associate Judge of the court at the time of 

submission. She began her service as a Senior Judge on February 18, 2022.
THOMPSON, Senior Judge: Following a bench trial, appellant Kevin E. Jones, 

Jr., was convicted of one count of simple assault, based on an allegation that he 

kissed an eight-month-old infant, L.T.C., on the lips while the child was in day 

care. He argues in this appeal that (1) the evidence was insufficient to support the 

conviction, (2) the trial court failed to ascertain the competence of the child 

witness who was the government’s key witness, and (3) the court abused its 

discretion in denying the defense’s request to compel production of the witness’s 

school records before trial. For the following reasons, we vacate appellant’s 

conviction and remand for additional findings by the trial court.

I.

Appellant was charged by information on September 13, 2017, with one 

count of simple assault, in violation of D.C. Code § 22-404(a). His bench trial 

took place on July 10, 2018. The government called two witnesses, the first of 

whom was L.T.C.’s mother, who testified that appellant is the son of Doris 

(Haney), the operator of the day care home in which her infant child L.T.C. had 

been enrolled since February 2017. L.T.C.’s mother testified that she expected 
3

appellant to hold L.T.C. and to provide care to him if he was crying, but that she 

did not give appellant permission to do “anything else” by way of touching L.T.C. 

The government’s other witness was K.P., who was eleven years old at the 

time of appellant’s trial and ten years old at the time of the (August 2017) charged 

incident. K.P. testified that she was assisting in the basement of the day care at 

Doris Haney’s house when she witnessed appellant come to the basement, where 

L.T.C. and K.P. were, pick up L.T.C. and kiss the child on the lips, and then put 

the child back down.1

 K.P. testified that she responded by wiping the baby’s 

mouth with a wipe because she felt that what had occurred was “nasty.” L.T.C. did 

not cry when appellant kissed him. K.P testified that she did not tell Ms. Haney 

about the kiss when Ms. Haney came back to the basement, did not tell her own 

mother or Ms. Haney that day or the next day, and did not tell anyone else that 

appellant had put his tongue in L.T.C.’s mouth. She thought that the incident 

“wasn’t that big of a deal.” K.P. further testified that she did not remember telling 

interviewers (the “ladies in the room” from the Child Advocacy Center) that 

appellant used his tongue and moved his head up and down while kissing L.T.C., 

or that appellant’s mouth was open, or that his tongue was moving at the time, but 

 

1 Before appellant picked up L.T.C. and kissed him, K.P. had been on the 

floor with L.T.C., playing with him and tickling him. 
4

she agreed that she told the interviewers that appellant “used his lips and maybe his 

tongue.” Her trial testimony was that appellant “just used his lips.” 

The trial court denied appellant’s motion for judgment of acquittal, 

remarking that L.T.C. “was not asking to be kissed.” The defense then called Ms. 

Haney, who testified that appellant’s job at the day care was “mostly to watch [the] 

children” from the basement steps “when [K.P.] was around.” Ms. Haney told the 

court that the allegation that appellant kissed L.T.C. surfaced only after she 

(Haney) confronted K.P. (on the day of the alleged kiss) about ordering pay-perview shows on Haney’s basement television without Haney’s permission, and after 

appellant reported to Haney the same day, in K.P.’s presence, that K.P. had hit one 

of the children — a report that prompted Haney to scold K.P. After these 

incidents, Haney would no longer allow K.P. to come to the day care center to 

assist with the children — work for which Haney had been paying K.P. $25 per 

week. The defense argued that K.P. was biased. 

In announcing its verdict, the trial court credited K.P.’s testimony. The 

court found appellant guilty of “simple assault, not any kind of sexual things,” 

reasoning that “[a] child doesn’t have the ability to consent.” The court stated, 

“it’s simple assault, which is an offense of touching, not necessarily sexual.” The
5

court remarked that while appellant’s conduct was not “the crime of the century,” 

it was nonetheless “concerning.”2

This appeal followed. After initial briefing, and at the government’s request, 

we stayed this matter pending a decision by this court in Perez Hernandez v. 

United States, No. 15-CM-130. This court’s en banc opinion in that case was 

issued on December 29, 2022, see Perez Hernandez v. United States, 286 A.3d 990 

(D.C. 2022) (en banc). We have the parties’ supplemental briefs, and the instant 

matter is now ripe for resolution. 

II.

A. Sufficiency of the Evidence

 

2 Before sentencing appellant, the court heard a victim impact statement 

from L.T.C.’s mother, in which the mother stated that L.T.C. was “violated.” The 

prosecutor argued in closing that appellant’s conduct was “bizarre and quite 

disturbing.” 
6

Appellant argues that there was insufficient evidence to support his 

conviction for simple assault. He asserts that the government failed to prove that 

he injured or intended to injure anyone. He acknowledges that non-consensual 

sexual touching can constitute assault, but argues that the trial court’s “express 

finding” that his actions “were not sexual in nature” — that his kissing L.T.C. was 

“not any kind of sexual thing[]” — precluded a conviction on that basis. Appellant 

emphasizes that there was no evidence that L.T.C. cried or reacted in some other 

negative way to the kiss or wanted appellant to “cease contact.” Appellant argues 

that L.T.C.’s inability to consent to a sexual touching is irrelevant on this record 

and highlights that L.T.C.’s mother knew that appellant would interact with L.T.C. 

as a caregiver. Appellant asserts that even if the relevant question is whether the 

kiss would have offended a reasonable person, the evidence that K.P. did not 

immediately report to anyone what occurred shows that she was not offended by 

appellant’s conduct. 

Our review of the sufficiency of the evidence is de novo, see Nero v. United 

States, 73 A.3d 153, 157 (D.C. 2013), but in criminal cases generally, “we must 

view the evidence in the light most favorable to sustaining the judgment.” Davis v. 

United States, 834 A.2d 861, 866 (D.C. 2003). We give “full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to 
7

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate 

facts.” Id. (internal quotation marks omitted). We “must deem the proof of guilt 

sufficient if, ‘after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’” Rivas v. United States, 783 A.2d 125, 134 

(D.C. 2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In our recent en banc decision in Perez Hernandez, we confirmed that a nonviolent offensive touching “performed with minimal force and not of a sexual 

nature[] may be a criminal assault.” 286 A.3d at 993.3

 We clarified that to prove

assault based on offensive touching, 

The government must prove that the defendant (1) 

touched another; (2) that he did so purposely, not by 

accident; (3) that the touching offended the other person; 

(4) that the touching would offend a person’s reasonable 

sense of personal dignity; and (5) that the defendant 

either acted with the purpose of causing offense or acted 

knowing that the touching would cause offense. 

 

3 Appellant asserts in his supplemental brief that under Perez Hernandez, 

“there is a new way to commit a simple assault in the District of Columbia” and 

“an entirely new theory of liability.” However, as we stated in Perez Hernandez, 

we said and held prior to our opinion in that case that “a nonviolent offensive 

touching, not of a sexual nature, also constitutes an assault.” 286 A.3d at 998. We 

acknowledged that we “cannot . . . create new crimes, and we[re] not doing so.” 

Id. at 996.
8

Id. at 1004 (footnote omitted). We noted that “[i]n an unusual case, th[e] third 

element may have to be modified to say ‘offended or would have offended,’” 

explaining, as an example, that “if the victim does not testify but witnesses 

describe what happened, they may be able to establish that the touch would have 

offended the victim.” Id. at 1004 n.21. We did not decide in Perez Hernandez 

“whether recklessness will suffice as the mens rea for an offensive touching 

assault.” Id. at 1003. 

Here, although the trial court at one point couched its finding about whether 

there was a sexual touching in terms that at least arguably were less than definitive 

— it referred to “an offense of touching, not necessarily sexual” — it seems clear 

that the court did not find beyond a reasonable doubt that appellant was guilty of 

sexual touching of L.T.C. We therefore focus on whether the evidence was 

sufficient to support the court’s verdict that appellant committed a non-sexual 

offensive touching of L.T.C. when he kissed L.T.C. on the lips without consent. 

As noted above, appellant emphasizes the lack of evidence that L.T.C. 

reacted negatively to the kiss and argues that the evidence therefore would not 

have allowed the court to find, as is required by the third prong of the test 
9

articulated in Perez Hernandez, that L.T.C. was offended by the kiss. Appellant 

also asserts that non-sexual kisses of infants “are a rather routine form of affection” 

and contends that the trial court could “not discern from the testimony [including 

K.P.’s ‘[it] wasn’t that big of a deal’ testimony] that the touching would offend a

person’s reasonable sense of [personal] dignity,” as required by the fourth prong of 

the test for non-sexual offensive touching. We conclude that this case, involving a 

victim who by virtue of his infancy was incapable of appraising the touching, is 

one of those unusual cases, contemplated in footnote 21 of Perez Hernandez, in 

which the third element of non-sexual offensive touching “may have to be 

modified” to include a touching that “would have offended” the victim. 286 A.3d 

at 1004 n.21. Because “evidence about an actual person’s response to a situation is 

. . . sometimes the best evidence available[] of how a reasonable person would 

have responded,” Andrews v. United States, 125 A.3d 316, 325 (D.C. 2015) 

(internal quotation marks omitted), the reaction of one who witnessed appellant’s 

kissing L.T.C. on the lips is relevant. However, we need not decide whether the 

only relevant perspective or more relevant perspective is that of an ordinary person 

who witnessed the kiss and was able to appraise it, or that of the infant’s parent, 

because in this case there was evidence of both: the reaction of K.P., who 

witnessed the kiss, responded by wiping L.T.C.’s mouth with a wipe, testified that 

the kiss was “nasty,” and eventually reported the kiss to adults; and the testimony 
10

by L.T.C.’s mother, who testified that she did not give consent for appellant to 

touch L.T.C. other than for a caregiving reason. 

Moreover, there was no evidence that, at the time appellant kissed L.T.C. on 

his lips, the child was in distress or in need of stimulation; K.P. testified that she 

was playing with and tickling L.T.C. at the time. In addition, the trial court heard 

Ms. Haney’s testimony that appellant was not expected to interact with the 

children, but just to “watch [the] children” from the basement steps when K.P. was 

in the basement with them and Ms. Haney was upstairs. Thus, there was no 

evidence of a caregiving reason for appellant’s conduct that might have brought it 

within the scope of the consent given by L.T.C.’s mother. For these reasons, either 

K.P.’s testimony about her reaction to the kiss or the testimony by L.T.C.’s mother 

together with the lack of evidence of a caregiving reason for the kiss sufficed to 

support a finding that the kiss would have offended L.T.C. if he had been able to 

appraise it. 

As to whether the evidence supported a finding that the kiss would have 

“offend[ed] a person’s reasonable sense of personal dignity,” Perez Hernandez, 

286 A.3d at 1004, we conclude that it would have supported such a finding if it 
11

proved “a contact which [was] unwarranted by the social usages prevalent at the 

time and place at which it [was] inflicted.” Restatement (Second) of Torts § 19 

cmt. a (Am. L. Inst. 1965).4

 Even if appellant is correct that kisses of infants on 

their lips “are a rather routine form of affection” sometimes and in some settings, 

the evidence here was that the expectations of both Ms. Haney as the day care 

operator and of L.T.C.’s mother in entrusting the child to care rendered appellant’s 

kissing of L.T.C. on his lips beyond what was warranted by social usages at the 

time and place. We are satisfied that their testimony sufficed to enable the court to 

find that the kiss would have “offend[ed] a person’s reasonable sense of personal 

dignity.” Perez Hernandez, 286 A.3d at 1004.

Nevertheless, we are unable to affirm appellant’s conviction, because, in its 

pre-Perez Hernandez ruling, the trial court made no findings about prongs three or 

four or about whether appellant intended to cause offense or knew that kissing the 

 

4 We note that the Court of Appeals of Washington has repeatedly applied 

the test set out in this comment to the Restatement in upholding convictions for 

assault. E.g., State v. Davis, No. 30319-5-III, 2013 Wash. App. LEXIS 804, at *5 

(Wash. Ct. App. Apr. 11, 2013); State v. Quezada, No. 26709-1-III, 2009 Wash. 

App. LEXIS 520, at *6 (Wash. Ct. App. Mar. 5, 2009). This court has recognized 

that “[o]ver time, the concept of a criminal assault has evolved to incorporate 

principles from the law of torts.” Perez Hernandez, 286 A.3d at 997.
12

child would be offensive.5 We conclude that a remand is required for the trial 

court to determine whether the third, fourth, and fifth prongs of the test articulated 

in Perez Hernandez are satisfied.6

 See Augustin v. United States, 240 A.3d 816, 

825 (D.C. 2020) (“The [permissible] inferences are not for this court to draw.”).

B. K.P.’s Competence to Testify

Appellant next contends that the trial court erred in failing to properly assess 

K.P.’s competence as a witness. He argues that the court did not make a thorough 

 

5 The court also did not specifically find that appellant kissed L.T.C. 

purposely and not by accident, but the evidence would not support a finding that he

did so inadvertently. 

6 In light of this resolution, we need not address appellant’s argument that a 

conviction under an attempted-battery assault or intent-to-frighten assault theory 

would constitute a constructive amendment of the charging documents. We note 

first that the special, restrictive rules discussed in the case law on which appellant 

relies — Zacarias v. United States, 884 A.2d 83, 86 (D.C. 2005) — apply to 

constructive amendments of indictments and are not applicable in this case, which 

was charged by information rather than grand-jury indictment. See, e.g., Sutton v. 

United States, 140 A.3d 1198, 1202 n.4 (D.C. 2016). And, in any event, the

(somewhat skeletal) information charged only that appellant “unlawfully assaulted 

and threatened L.T.C[.] in a menacing manner.” Appellant has not identified how 

the facts proven at trial diverge from that allegation, and he makes no claim that he 

lacked notice of the alleged conduct that the government sought to prove at trial. 
13

attempt to test K.P.’s ability to tell the difference between truth and falsehood, her 

appreciation of the duty to tell the truth, and her recollection of the event in 

question. Appellant asserts that K.P.’s responses demonstrated that she did not 

know the consequences of lying during testimony, that she did not remember 

certain aspects of the alleged incident, and that she was influenced by previous 

interviews about the event, all of which, he argues, indicate that she was not a 

competent witness. 

We review this claim only for plain error because appellant made no 

objection to K.P’s competence to testify in the trial court. Marquez v. United 

States, 903 A.2d 815, 817 (D.C. 2006) (per curiam). Thus, appellant can be 

entitled to relief only if there was (1) error, (2) that is plain, (3) that affected 

appellant’s substantial rights, and (4) that seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. Id.

“A child is a competent witness if she is able to ‘recall the events which are 

the subject of the testimony[,] understand the difference between truth and 

falsehood[,] and appreciate the duty to tell the truth.’” Galindo v. United States, 

630 A.2d 202, 206-07 (D.C. 1993) (quoting Barnes v. United States, 600 A.2d 821, 

823 (D.C. 1991)). A trial court’s determination that a child witness is competent to 
14

testify “is a question of law which is committed to its sound discretion.” Barnes, 

600 A.2d at 823. Recognizing that “the trial court has the opportunity to observe 

the witness’[s] demeanor and conduct at trial,” id., we generally will uphold the 

trial court’s determination “unless it is plainly deficient.” Galindo, 630 A.2d at 

206 (internal quotations omitted). 

Here, at the start of the government’s direct examination of K.P., the 

prosecutor asked K.P. whether she “kn[e]w the difference between the truth and a 

lie,” to which K.P. responded, “Yes,” adding that “[t]he truth is when you’re being 

honest, and a lie is when you’re telling a story.” The prosecutor then asked her, 

“[D]o you know what the only rule about testifying is?” K.P. responded, “Always 

tell the truth.” The prosecutor ended that phase of her questioning by asking K.P., 

“If I were to tell you that we are outside in a park right now, would that be the truth 

or a lie?” and “[I]f I were to tell you that your shirt is green, would that be the truth 

or a lie?” K.P. responded that both were lies (her shirt was pink). Asked on crossexamination whether she knew what would happen if she did not tell the truth in 

court, K.P. responded that she did not know, and she further acknowledged that she 

had sometimes lied to get herself out of trouble. But defense counsel also elicited 

K.P.’s agreement that she understood the importance of telling the truth during the 
15

trial. After K.P. had testified, the trial court noted in its findings that K.P. “was 

very good about what she remembered and didn’t remember.” 

Our review of the record satisfies us that the questioning adequately tested, 

and that K.P.’s responses adequately evinced, her competence as a witness. We 

discern no plain error in the trial court allowing K.P. to testify. 

C. K.P.’s School Records

Prior to trial, appellant filed a motion for an order or subpoena to obtain 

K.P.’s school records (the “Motion to Obtain School Records”). In the motion, 

appellant asserted that the school records would help him challenge K.P.’s 

credibility at trial should the records reveal a history of “poor behavior or 

disciplinary problems” that suggest a tendency towards “fabrication or 

exaggeration.” The trial court denied the motion without a hearing. Nevertheless, 

appellant served a subpoena duces tecum for K.P.’s school records. Counsel for 

K.P. filed a motion to quash the subpoena, and the trial court granted the motion, 

ordering that appellant not subpoena any of K.P.’s educational records again 

without the court’s prior approval. 
16

Appellant argues that the trial court erred in denying him access to K.P.’s 

school records. We review for abuse of discretion the trial court’s denial of 

appellant’s Motion for School Records and the court’s grant of K.P.’s motion to 

quash appellant’s subpoena of her school records. See Tyer v. United States, 912 

A.2d 1150, 1156 (D.C. 2006); Barrera v. United States, 599 A.2d 1119, 1126 

(D.C. 1991). 

Generally, to obtain a subpoena duces tecum for documents, “a party must 

show (1) that the documents are evidentiary and relevant; (2) that they are not 

otherwise procurable . . . by exercise of due diligence; (3) that the party cannot 

properly prepare for trial without such production . . . and (4) that the application is 

made in good faith and is not intended as a ‘fishing expedition.’” Tyer, 912 A.2d 

at 1156 (quoting Brown v. United States, 567 A.2d 426, 428 (D.C. 1989)). This 

court has described obtaining “private school records” as an “extreme step” that 

“may not be taken ‘without a compelling and detailed demonstration of need.’” 

Barrera, 599 A.2d at 1126 (quoting Davis v. United States, 315 A.2d 157, 162 

(D.C. 1974)).

Appellant has not met that standard. Appellant argues that the documents 

were relevant because they may have shown that K.P. had a history of lying to 
17

people in places of authority or had a disciplinary record. The motion asserted that 

appellant’s family had information from K.P.’s family about K.P.’s behavior in 

school,7 but the motion stated no basis for believing that K.P.’s school records 

would reflect a history of lying. As such, it seems appellant’s request was intended 

as a “fishing expedition.” Furthermore, in Barrera, we determined that a counsel’s 

“vague reference[]” to “inappropriate behavior” falls “far short of a detailed 

demonstration of need.” Id. at 1127 (internal quotations omitted). Here, 

appellant’s motion was similarly vague, stating that he had been informed about 

“behavioral problems that the witness was having at school,” which he asserted 

could undermine the witness’s “credibility as it relates to her version of the facts” 

about which she was being called to testify. Because appellant failed to make a 

“compelling and detailed demonstration of need,” id. at 1126, and because it 

appears that the documents were sought as part of a “fishing expedition,” we 

conclude that the trial court did not abuse its discretion in denying appellant access 

to K.P.’s school records.

 

7 The motion referred to “C.W.” rather than “K.P.,” but the context as well 

as the subpoena itself and the related correspondence make clear that the 

discussion was about the school records of K.P. (whose first name is a name 

sometimes spelled with a “C”).
18

III.

For the foregoing reasons, the judgment of conviction is vacated and the 

matter remanded for further proceedings.

So ordered.