District of Columbia

Court of Appeals

No. 13-CF-1234 

EDWARD BROWN,

Appellant, 

v. CF1-6022-13

 

UNITED STATES, 

Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: BECKWITH and EASTERLY, Associate Judges; and NEBEKER, Senior 

Judge.

J U D G M E N T 

 

 This case came to be heard on the transcript of record and the briefs filed, 

and was argued by counsel. On consideration whereof, and as set forth in the opinion 

filed this date, it is now hereby 

 ORDERED and ADJUDGED that the appellant‟s convictions for assault 

with a dangerous weapon and assault with significant bodily injury are affirmed.

For the Court:

 

Dated: May 26, 2016.

Opinion by Associate Judge Catharine Easterly.

Opinion concurring in the result by Senior Judge Frank Q. Nebeker.

 MAY 26 2016
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. 13-CF-1234

EDWARD BROWN, APPELLANT,

 V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court 

of the District of Columbia

(CF1-6022-13)

(Hon. Ronna Lee Beck, Trial Judge)

(Argued October 16, 2015 Decided May 26, 2016)

Benjamin Miller, Public Defender Service, with whom James Klein, Jaclyn 

Frankfurt, and Jessica Brand, Public Defender Service, were on the brief, for

appellant.

John Cummings, Assistant United States Attorney, with whom Vincent H. 

Cohen, Jr., Acting United States Attorney at the time the brief was filed, and

Elizabeth Trosman and Elizabeth H. Danello, Assistant United States Attorneys,

were on the brief, for appellee. 

Before BECKWITH and EASTERLY, Associate Judges, and NEBEKER, Senior 

Judge.

Opinion for the court by Associate Judge EASTERLY. Opinion concurring in 

the result by Senior Judge NEBEKER at page 19.

5/26/16
2

EASTERLY, Associate Judge: This court has long recognized the commonlaw defense that authorizes an individual to protect or repossess personal property

using nondeadly force and that correspondingly prohibits the use of deadly force

for this purpose. Deadly force is understood to include force likely to cause 

“serious bodily harm.” In this case, we consider whether the trial court should 

have, at Edward Brown‟s request, defined “serious bodily harm” for the jury using 

the same definition this court adopted for “serious bodily injury” in the context of

aggravated assault. See Nixon v. United States, 730 A.2d 145, 150 (D.C. 1999). 

We answer this question affirmatively. Nevertheless, we determine that 

Mr. Brown is not entitled to reversal because, on this record, this instructional 

omission was harmless. Thus we affirm Mr. Brown‟s convictions for assault with 

a dangerous weapon and assault with significant bodily injury.1

 

1

 Our concurring colleague does not take issue with our discussion of how 

the jury should have been instructed here, but argues that this court must resolve 

the case solely on harmlessness grounds because of D.C. Code § 11-721 (e) (2012 

Repl.) and the harmless-error rule that it codifies. This statute and corresponding 

rule bar us only from overturning judgments when an error had no appreciable 

impact on the fairness of the trial court proceedings; they say nothing about how 

we must write opinions that affirm a judgment on harmlessness grounds. Our 

colleague expresses concern about judicial efficiency, but, in the appropriate case, 

clear explication of the law promotes that goal.
3

I. Facts and Procedural History

After an incident in which Mr. Brown struck Torita Burt in the head with the 

blunt end of a hatchet while she was visiting him in his apartment, Mr. Brown was 

charged with first-degree sexual abuse while armed,

2

kidnapping while armed,

3

assault with a dangerous weapon,

4

and assault with significant bodily injury.5 He 

pled not guilty on all counts and was tried by a jury. At trial, Mr. Brown did not 

dispute that he had struck Ms. Burt. The only question was why Mr. Brown had 

done so. 

Ms. Burt testified for the prosecution that she knew Mr. Brown well and,

after meeting him on the street, had voluntarily gone to his apartment to smoke 

crack and have sex with him. When she tried to leave, however, Mr. Brown hit her 

on the head with a hatchet and pinned her to the bed by her throat. He agreed to let 

her depart only after she had sex with him again. Ms. Burt testified that “you need 

a key in order to exit” Mr. Brown‟s apartment building, and that, after they had 

 

2

 D.C. Code §§ 22-3002 (a)(1), -4502 (2012 Repl.).

3

 D.C. Code §§ 22-2001, -4502 (2012 Repl.).

4

 D.C. Code § 22-402 (2012 Repl.).

5

 D.C. Code § 22-404 (a)(2) (2012 Repl.).
4

sex, she had to wait for him to unlock the apartment building door to “let [her] 

out.” Once she left the building, she walked several blocks before collapsing on 

the sidewalk. She then called 911, and the responding police officers found her 

sitting on a stoop, bleeding from a cut on the left side of her head. An ambulance 

took Ms. Burt to Howard University Hospital, where she received nine stitches, a 

sexual-assault exam, and a CAT scan that revealed a subdural hematoma.6

Mr. Brown told a different story. He testified that Ms. Burt, whom he had 

known for almost ten years, came to his apartment building around 3:00 a.m.

hoping to use his bathroom. Mr. Brown let Ms. Burt in, and while she was in his 

apartment, she smoked crack and initiated oral sex with him. Afterward, Ms. Burt 

asked Mr. Brown for money to buy more cocaine, but he refused. Mr. Brown 

briefly left the room, and when he returned, he noticed that his new cell phone and

charger, his wallet, and money from his dresser were missing. He accused 

Ms. Burt of taking his things, which she repeatedly denied; eventually, she picked 

up his hatchet, which had been on the floor nearby,7and started swinging it at him. 

 

6 According to Margaret Goodwin, a nurse who examined Ms. Burt, “[a] 

subdural hematoma is a blood collection between the outer two layers of tissue 

around the brain.”

7

 Mr. Brown explained that he “had that hatchet for about 15 years” and 

“always kept it beside [his] bed.”
5

Ms. Burt dropped the hatchet, Mr. Brown picked it up, and Ms. Burt tried to get it 

back from him. As they were grappling with the weapon, Mr. Brown struck 

Ms. Burt on the head with the hatchet‟s blunt end. The blow caused her to fall “on 

her knees” and she ended up “slumped over” on his bed, “with her head down.” 

She lay there for “about a minute and a half to two minutes before she even raised 

her head up.”

Mr. Brown testified that he felt “real bad after [Ms. Burt] got hit,” that he 

had not been trying to hurt her, and that he was just trying to “protect [him]self.”8 

He took her into the bathroom to clean and bandage her wound, and then walked 

her back to the bedroom. He went back to the bathroom to clean the sink and,

“like two minutes later,” when he came back to the bedroom, Ms. Burt was not 

there. She had already gone downstairs and was waiting by the building‟s front 

door for him to open it. He offered to call 911, but she said she was “okay.” He

 

8

 As part of its case, the government played a recording of a telephone call 

Mr. Brown made to his girlfriend from jail. This recording was not provided to 

this court and the call was not transcribed. It is our understanding, however, based 

on the government‟s cross-examination of Mr. Brown and its closing, that during 

this call Mr. Brown explained that he had hit Ms. Burt with the hatchet because she 

was stealing from him.
6

let her out and then locked the door after her.

9

 When the police arrived at Mr. 

Brown‟s apartment a little later, he showed them the bloody sheets and the towels 

he had used to clean up after the incident.

At the close of the evidence, Mr. Brown requested an instruction on selfdefense.10

 He also requested an instruction on defense of personal property, which 

authorizes the use of reasonable, nondeadly force to repossess personal property 

and correspondingly prohibits the use of deadly force for that purpose.

11

 Because 

“deadly force” is defined as “force that is likely to cause death or serious bodily 

 

9 At some point prior to her departure, Ms. Burt returned Mr. Brown‟s 

personal property, but Mr. Brown did not explain when she did so.

10

 Counsel noted this request in court and then elaborated on it in an email 

after court proceedings had concluded for the day. After dismissing the jury, the 

court had informed the parties that it would “send . . . draft instructions fairly soon 

after I leave the bench” and asked them “to [send] any comments you have tonight 

by e-mail . . . including responses to any comments made by either of you to the 

instructions.” To supplement the record, Mr. Brown has submitted to this court 

four emails sent that evening between the court and the parties, but it is unclear if 

these constitute the full extent of the ensuing electronic communications. 

We acknowledge the convenience of email, but if matters of substance are 

discussed, the parties and the court must make these communications part of the 

record during the course of the trial. Failure to do so risks a record remand to 

completely document the arguments made by the parties and the reasoning 

underlying the trial court‟s rulings. In this case, neither party has asserted that the 

record is materially incomplete.

11

 Criminal Jury Instructions for the District of Columbia, No. 9.520 (B) 

(5th ed. 2013) (instruction on defense of personal property).
7

harm,”12 Mr. Brown asked the court to define the latter term. Specifically, Mr. 

Brown asked the court to borrow the instruction defining “serious bodily injury” 

from the standard jury instruction for aggravated assault, and thus to inform the 

jury that the phrase “serious bodily harm,” as used in the defense-of-personalproperty instruction, means “an injury that involves unconsciousness, extreme 

physical pain, protracted and obvious disfigurement, protracted loss or impairment 

of the function of a bodily member, organ or mental faculty or a substantial risk of 

death.”

13

The trial court determined that Mr. Brown‟s trial testimony did not support a 

defense-of-property instruction, but that the call he made to his girlfriend from jail, 

see supra note 8, “does arguably, I think.” Thus the court agreed to instruct the 

jury on defense of property. But the court refused to define “serious bodily harm” 

using the definition of the aggravated-assault element of “serious bodily injury.” 

The court explained that 

 

12

 See Criminal Jury Instructions for the District of Columbia, No. 9.501 (B) 

(5th ed. 2013) (instruction on self-defense). 

13

 See Criminal Jury Instructions for the District of Columbia, No. 4.103

(5th ed. 2013) (instruction on aggravated assault).
8

we‟re talking about a common law term that . . . we 

haven‟t defined, precisely, for juries in making decisions 

about self-defense and, in this case, defense of property. 

And that—that‟s very different from a legislated 

definition for purpose[s] of defining a crime such as 

aggravated assault. . . . [The legislated definition is] 

different than a term that‟s been used for long before that 

where we leave it to the jury to make that kind of 

community judgment about the use of force. 

In response to Mr. Brown‟s concern that the jury would confuse “serious bodily 

harm” with “significant bodily injury” (because the latter term would be defined 

for the jury as part of the court‟s felony assault instruction14), the court offered to 

instruct the jury that “serious bodily harm” and “significant bodily injury” meant 

different things, but Mr. Brown declined this offer. The court ultimately instructed 

the jury:

Every person has the right to use reasonable non-deadly 

force to protect his property from theft when he 

reasonably believe[s] that . . . his property is in 

immediate danger of an unlawful taking and that the use 

of such force is necessary to avoid the danger.

Similarly, if a person reasonably believes that someone 

has unlawfully taken his property, he may use 

reasonable, non-deadly force to repossess the property.

 

14

 See Criminal Jury Instructions for the District of Columbia, No. 4.102 (A)

(5th ed. 2013) (defining significant bodily injury as “an injury that requires 

hospitalization or immediate medical treatment to preserve the health and wellbeing of the individual”).
9

A person may not use deadly force to protect his property 

from theft or to repossess his property. Deadly force is 

force that is likely to cause death or serious bodily harm.

Defense of property with non-deadly force is a defense to 

the charges of assault with a dangerous weapon and 

assault with significant bodily injury.

The Defendant is not required to prove that he acted in 

defense of his property with non-deadly force. If 

evidence of defense of property with non-deadly force is 

present, the Government must prove, beyond a 

reasonable doubt, that the Defendant did not act in 

defense of his property with non-deadly force. If the 

Government has failed to do so, you must find the 

Defendant not guilty.

 After a brief period of deliberation, the jury acquitted Mr. Brown of firstdegree sexual abuse while armed and kidnapping while armed, and convicted him 

of assault with a dangerous weapon and assault with significant bodily injury. This 

appeal followed.

II. Instructional Error

Mr. Brown argues that the trial court erred by declining to define the term 

“serious bodily harm.” Mr. Brown argues that this term has a fixed meaning—

specifically, the definition this court established in Nixon v. United States for the 

term “serious bodily injury” in the context of the instruction for aggravated assault. 
10

He further argues that without adequate guidance as to the meaning and severity of 

injury signified by “serious bodily harm,” the jury might have erroneously 

determined that he employed deadly force, negating any defense-of-personalproperty defense to the assault charges against him.

While we review for abuse of discretion a trial court‟s assessment of

whether a jury instruction is supported by the evidence, see Wheeler v. United 

States, 930 A.2d 232, 238 (D.C. 2007), we review de novo the content of the 

instructions actually given, see Wilson-Bey v. United States, 903 A.2d 818, 827 

(D.C. 2006) (en banc) (“The question whether the challenged instruction was 

proper . . . is one of law. Accordingly, our review is de novo, and we accord no 

deference to the ruling of the trial court.”). The question here is whether the trial 

court adequately instructed the jury regarding the scope of the defense-of-personalproperty defense; we review that legal question de novo.15

 

15 See, e.g., Zeledon v. United States, 770 A.2d 972, 977 (D.C. 2001) 

(finding instructional error where the court had “no reasonable assurance that the 

jury measured the conflicting evidence of seriousness against the [correct] 

standard”).

In support of its argument that this court should review only for abuse of 

discretion in this case, the government quotes Scott v. United States, 954 A.2d 

1037, 1045 (D.C. 2008) (“When an appellant challenges an instruction given by 

the trial court, [this court‟s] review is for abuse of discretion.”). But the division in

Scott could not overrule the en banc court in Wilson-Bey, see M.A.P. v. Ryan, 285 

(continued...)
11

We first address Mr. Brown‟s argument that “serious bodily harm” has a 

fixed meaning synonymous with “serious bodily injury” as used in the context of 

aggravated assault. Left undefined by the Council, “serious bodily injury” in D.C. 

Code § 22-404.01 (2012 Repl.) has been given a particular meaning by this court:

specifically, it requires proof of “bodily injury that involves a substantial risk of 

death, unconsciousness,[16]extreme physical pain, protracted and obvious 

disfigurement, or protracted loss or impairment of the function of a bodily 

member, organ or mental faculty.” Nixon, 730 A.2d at 149-50.

17

 This court 

borrowed that definition from another statute,18 but only after ascertaining that this 

 

(...continued)

A.2d 310, 312 (D.C. 1971), nor did it purport to try. Rather, this quote, which was 

part of the division‟s overview of the law, supports the proposition noted above: 

that this court reviews for abuse of discretion the trial court‟s determination 

whether the evidence at trial supports a particular instruction. Indeed, the division 

subsequently acknowledged that, because the appellant was challenging the 

content of an instruction, the division‟s task was “to determine whether the 

reinstruction given here by the trial court correctly stated the law.” Scott, 954 A.2d 

at 1045. The division concluded that the reinstruction was reversible error. Id. at 

1046-48.

16

 But see In re D.P., 122 A.3d 903, 908 n.10 (D.C. 2015) (indicating that 

this court has yet to resolve whether any momentary loss of consciousness will 

support a conviction for aggravated assault). 

17

 In cases following Nixon we have clarified that “the „substantial risk‟ of 

which Nixon speaks is only a substantial risk of death, not a substantial risk of 

extreme pain, disfigurement, or any of the other conditions listed.” Scott, 954 A.2d 

at 1046; Medley v. United States, 104 A.3d 115, 127 (D.C. 2014). 

18 D.C. Code § 22-4101 (7) (1996 Repl.) (defining term for sexual abuse 

statutes) (current version at D.C. Code § 22-3001 (7) (2013 Repl.)).
12

definition aligned with other jurisdictions‟ conceptions of the term, both in and 

beyond the assault context.19 This definition is now a core component of the 

District‟s three-tiered classification system for assault crimes, under which 

aggravated assault is the most serious offense. See In re D.P., 122 A.3d 903, 908 

(D.C. 2015). 

We see no reason the degree of serious bodily harm that establishes “deadly 

force” and in turn precludes the defense-of-personal-property defense should be 

quantitatively different from the degree of “serious bodily injury” that sustains a 

conviction for aggravated assault.20 To the contrary, that measure of harm seems 

just right. We do not want individuals to defend their personal property by 

exercising force likely to cause either death or “serious bodily injury” as defined 

by Nixon. But it might restrict the defense too severely to say that it is never 

available when an individual employs force likely to result in significant bodily 

injury (the predicate quantum of injury for the District‟s intermediate assault 

 

19 See Nixon, 730 A.2d at 149-50 (surveying similar language from Texas, 

Minnesota, Connecticut, Alabama, and the Model Penal Code).

20

 Cf. Fadero v. United States, 59 A.3d 1239, 1250 (D.C. 2013) (choosing to 

craft a definition for the undefined term “significant bodily injury” in the felony 

APO statute “not out of proverbial whole cloth, but, rather, by reference to 

comparable definitions in other District of Columbia assault statutes”). 
13

crime21). Even within this more clearly defined boundary of nondeadly force, there 

is still ample room for the exercise of community judgment: although a defendant 

is not precluded from using force likely to cause significant bodily injury, the factfinder must still determine that the use of nondeadly force within these limits was 

reasonable.22

The government does not argue that adopting the Nixon definition of 

“serious bodily injury” sets the bar for deadly force in the wrong place.

23

 Instead, 

it takes issue with this court setting the bar at all. Following the trial court‟s 

reasoning, the government argues that this common-law defense should be left to 

 

21

 See Teneyck v. United States, 112 A.3d 906, 909 (D.C. 2015); Quintanilla 

v. United States, 62 A.3d 1261, 1264-65 (D.C. 2013).

22

 This “reasonableness” requirement ensures the proportionality at the heart 

of this defense and others. See WAYNE R. LAFAVE, 2 SUBSTANTIVE CRIMINAL 

LAW § 10.6 (a) (2d ed. 2015) (“[A defendant] may not use more than reasonable 

force—the amount of force that reasonably appears necessary to prevent the 

threatened interference with the property.”); see also id. at § 9.1 (a)(3) 

(“[J]ustification defenses all have the same internal structure: triggering conditions 

permit a necessary and proportional response. . . . [T]he proportionality 

requirement . . . places a limit on the maximum harm that may be used in 

protection or furtherance of an interest.”).

23

 Indeed, the government does not contend that there is any meaningful 

difference between “harm” and “injury” in this context. The trial court also 

apparently ascribed no definitional difference to these words and used them 

interchangeably.
14

the jury‟s “commonsense” understanding.24 It is true that, in this jurisdiction, the 

defense-of-property defense is a product of common law, see Saidi v. United 

States, 110 A.3d 606, 611 (D.C. 2015); Gatlin v. United States, 833 A.2d 995, 

1008-09 (D.C. 2003)—that is to say, it is judge-made law, BLACK‟S LAW 

DICTIONARY (10th ed. 2014) (defining “common law” as “[t]he body of law 

derived from judicial decisions”). But this court has never said that the proper 

application of the defense is left entirely to the jury‟s unfettered discretion. To the 

contrary, we have defined the scope of this defense to make clear that, before the 

jury can assess the reasonableness of the force employed, it must determine as a 

threshold matter whether disqualifying deadly force was used. Given that this 

court has already defined “deadly force” to encompass force likely to cause

“serious bodily harm,” McPhaul v. United States, 452 A.2d 371, 373 n.1 (D.C. 

1982); see also United States v. Peterson, 483 F.2d 1222, 1229 n.40 (D.C. Cir. 

1973), cert. denied, 414 U.S. 1007 (1973), we see no reason not to further clarify 

that “serious bodily harm” in the context of this common-law defense shares the

definition that this court set in Nixon for “serious bodily injury.” 

 

24

 The government notes that the trial court was mistaken “[i]n one regard”: 

its reasoning that it was inappropriate to borrow the definition of “serious bodily 

injury” from aggravated assault because that term had been legislatively defined. 

The government acknowledges that this court, not the legislature, supplied the 

definition for this term of art.
15

Having determined that “serious bodily harm” in this context is synonymous 

with “serious bodily injury” under Nixon, we conclude that the trial court should 

have granted Mr. Brown‟s request to instruct the jury on that meaning. This 

instruction would have helped the jury locate the line between impermissible 

deadly force and permissible nondeadly force.25 See Perry v. United States, 422 

F.2d 697, 699-700 (D.C. Cir. 1969) (reversing conviction where the “jury was left 

to unguided speculation” because “no part of the [self-defense] instruction 

illumined the boundaries of reasonable, as opposed to unreasonable, resistance”).

26

 

Without this definition, the trial court‟s defense-of-personal-property instruction, 

 

25

 Moreover, although the court instructed the jury that defense of personal 

property was a defense to felony assault, this did not completely eliminate the 

danger that the jury might fail to appreciate that the significant bodily injury 

necessary to sustain felony assault was distinct from the deadly force likely to 

cause death or “serious bodily harm” that precludes a defendant from prevailing on 

a defense-of-personal-property defense.

26

 The government argues that this court‟s decision in Savage-El v. United 

States, 902 A.2d 120 (D.C. 2006), “makes clear [that] the trial court was not 

required to define a term that was not an element of the offense, but was just part 

of the definition of „non-deadly force.‟” We disagree. Savage-El did not endorse 

such a formalistic approach to jury instructions; rather, consistent with our other 

cases it examined the instructions as a whole to determine whether the jury 

received adequate guidance regarding the operative law and the government‟s 

burden of proof. To the extent that the court distinguished between elements and 

definitional terms, it did so to support its determination “that there was no 

meaningful risk of [jury] confusion or misunderstanding . . . in the context of the 

factual circumstances here” and thus no instructional error. Id. at 126, 127 & n.8

(acknowledging that in another case the same terms might require further 

instruction to give the jury adequate guidance).
16

taken as a whole, failed to give the jury adequate guidance to the boundaries of this 

defense.

III. Harmless Error

Although we conclude that the trial court‟s instruction to the jury was 

deficient, this error was harmless. The parties agree that instructional error is 

subject to harmless error analysis.

27 But they disagree as to which harmless error 

standard applies. We need not resolve their dispute.

28 Even if we assume that 

more rigorous harmless error review under Chapman is required, we conclude that 

the instructional error in this case was harmless beyond a reasonable doubt.

 

27

 Brooks v. United States, 599 A.2d 1094, 1101-02 (D.C. 1991) (observing 

that this proposition is “well settled”); accord White v. United States, 613 A.2d 

869, 877 (D.C. 1992) (en banc).

28

 Our case law arguably does not resolve whether this error was

constitutional (triggering review under Chapman v. California, 386 U.S. 18, 24

(1967), to determine if the error was harmless beyond a reasonable doubt) or nonconstitutional (triggering review under Kotteakos v. United States, 328 U.S. 750, 

765 (1946), to determine if we can say “with fair assurance, after pondering all that 

happened without stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error”). Compare Wilson-Bey v. United 

States, 903 A.2d 818, 843-44 (D.C. 2006) (en banc) (applying Chapman where 

court failed to instruct on an element), and Neder v. United States, 527 U.S. 1, 10, 

12 (1999) (characterizing misdescription of an element as a Sixth Amendment

violation), with Jenkins v. United States, 877 A.2d 1062, 1068-70 (D.C. 2005)

(applying Kotteakos where court‟s erroneous definition of a term “impermissibly 

broadened” the meaning of an element).
17

At the outset, we note that defense of personal property was not the defense 

theory Mr. Brown pressed at trial. While Mr. Brown testified that Ms. Burt took 

his cell phone, phone charger, wallet, and cash, and that their physical altercation 

was prompted by his accusations of theft, he claimed he hit Ms. Burt in the head 

with a hatchet only after she tried to use the hatchet against him. Although at one 

point Mr. Brown said he hit her after he “just got tired of playing with her because 

I wanted my things back,” he later elaborated that he “was terrified” when she 

picked up the hatchet, and that she “end[ed] up getting hit” after he had recovered 

the weapon, when she was trying to take it back from him. He expressly affirmed 

that when Ms. Burt “g[o]t hit with the hatchet” he was “trying to protect 

[him]self.”

Nevertheless, the trial judge determined that Mr. Brown was entitled to an 

instruction on defense of personal property.29 But even after the court gave the 

 

29

 In deciding to give the instruction, the court relied on the recording of the 

call Mr. Brown made from jail to his girlfriend in which he apparently stated that 

he hit Ms. Burt because she stole his property. See supra note 8. The government 

argues that this evidence did not support the court‟s ruling, but instruction on 

defense of personal property is justified so long as “some evidence” has been 

presented on the subject. See Anderson v. United States, 490 A.2d 1127, 1129 

(D.C. 1985). Given what we can infer about the content of the phone call, we 

cannot say that the trial court abused its discretion by instructing the jury on this 

defense. See Wheeler, 930 A.2d at 238. 
18

jury this instruction, counsel for Mr. Brown made no reference to this defense 

theory in closing. Defense counsel instead argued that Mr. Brown was “defending 

himself.”

Even if we assume that the jury, without encouragement from Mr. Brown,

gave serious consideration to a defense-of-personal-property theory, we are 

convinced that the jury‟s understanding of “serious bodily harm” could not have 

affected the jury‟s evaluation of this defense, and that the jury‟s guilty verdict is 

“surely unattributable” to the trial court‟s instructional error.

30 Whether or not the 

jury accurately assessed whether Mr. Brown employed nondeadly force, no jury 

could find that the force used in this case was reasonable.

The defense-of-personal-property defense permits a person to use only as 

much nondeadly force as is “reasonably necessary” to protect or recover his 

belongings. See supra note 22. In other words, even if a defendant uses nondeadly

force, he nonetheless exceeds the boundaries of the defense if that nondeadly force 

is “more force than is necessary.” Gatlin, 833 A.2d at 1008, 1010-11 (quoting 

Shehyn v. United States, 256 A.2d 404, 406 (D.C. 1969)); see also Saidi, 110 A.3d 

 

30

 See Neder, 527 U.S. at 38 (quoting Sullivan v. Louisiana, 508 U.S. 275, 

279 (1993)); see also Fields, 952 A.2d at 863. 
19

at 611; LaFave, supra note 22. For example, in Gatlin, we rejected the defense 

after concluding, inter alia, that it was not reasonable to grab and punch a person‟s 

arms in order to retrieve a notebook. 833 A.2d at 1010. 

It was undisputed at trial that Ms. Burt was unarmed and locked in Mr. 

Brown‟s apartment building. Thus, she could not have fled with Mr. Brown‟s

property. Assuming it was reasonable for Mr. Brown to use some force to retrieve 

his belongings from Ms. Burt under these circumstances, it was surely 

unreasonable for him to strike Ms. Burt in the head with enough force to knock her 

down, cause internal bleeding in her brain, and create an external wound requiring

nine stitches to repair.

Accordingly, we affirm Mr. Brown‟s convictions for assault with a 

dangerous weapon and assault with significant bodily injury.

So ordered.

NEBEKER, Senior Judge, concurring: As the Supreme Court of Washington 

State aptly said in 1976, as a general rule, “this court will decide only such 

questions as are necessary for a determination of the case presented for 
20

consideration, and will not render decisions in advance of such necessity.” 

Johnson v. Morris, 87 Wash. 2d 922, 930-31 (1976). Thus I am prompted to 

concur in the result, and offer a review of the harmless error rule, its purpose and 

application to the case before us.

Section 11-721 (e) of the D.C. Code is “a codification of the harmless error 

rule,” Brown v. United States, 379 A.2d 708, 710 (D.C. 1997), and provides:

On the hearing of any appeal in any case, the District of 

Columbia Court of Appeals shall give judgment after an 

examination of the record without regard to errors or 

defects which do not affect the substantial rights of the 

parties. (Emphasis added.)

All fifty states have codified the harmless error rule and Congress first 

codified the rule in 1919, “establish[ing] for [the federal] courts the rule that 

judgments shall not be reversed for „errors or defects which do not affect the 

substantial rights of the parties.‟” Chapman v. California, 386 U.S. 18, 22 (1967); 

Kotteakos v. United States, 328 U.S. 750, 758-59 (1946). Prior to 1919, in 

applying the common-law harmless-error rule, there was a “practice in some 

jurisdictions of reversing convictions on appeal for any procedural error at trial, 

without regard to whether the error was prejudicial.” United States v. Lane, 474 

U.S. 438, 457 (1986) (emphasis added). The result of this practice was to make 
21

“[s]o great the threat of reversal” that a “criminal trial became a game for showing 

reversible error in the record.” Kotteakos, supra, 328 U.S. at 760. In response to 

criticism from several leaders in the legal profession, including Taft, Wigmore, 

Pound, and Hadley, Congress passed the 1919 Act, explaining that the purpose was 

to ensure that considerations of error “be rendered upon the merits without 

permitting reversals for technical defects in the procedure below.” United States v. 

Lane, supra, 474 U.S. at 457-58 (quoting H.R.Rep. No. 913, 65th Cong., 3d Sess., 

2 (1919)). 

So valuable is this rule in maintaining judicial efficiency that our legislation 

provides our court no discretion in determining whether to reverse in the face of a 

harmless error. By employing the word “shall,” the statute makes clear that 

adherence “is required.” BLACK‟S LAW DICTIONARY 1585 (10th ed. 2014). See 

also Randolph v. United States, 882 A.2d 210, 221 (D.C. 2005) (characterizing § 

11-721 (e) as a “command”); Arnold v. United States, 358 A.2d 335, 341 (D.C. 

1976) (same). We therefore shall “give judgment . . . without regard to errors.” 

The word “regard” in this respect means “[a]ttention, care, or consideration.” 

BLACK‟S LAW DICTIONARY, supra, 1472. It is clear from the language of § 11-721 

(e), that the purpose of the harmless error rule was not only to prevent frequent 
22

reversals on technicalities, but also to promote judicial efficiency. See also D.C. 

Super. Ct. R. Crim. P. 52 (a).

Some might argue that error must be identified before we disregard it. To do 

so would be contrary to the purpose of the rule — judicial efficiency. An 

assumption of error, without deciding it for posterity, will do. In the case before 

us, the majority takes great lengths to decide an issue that we are commanded, by 

the harmless error rule, to disregard. The last part of this opinion most aptly makes 

the case for harmlessness, and I concur in that portion of it only, not because I 

necessarily disagree with the first part, but because it engages in an unnecessary 

extrapolation, counter to the very purpose of the harmless error rule, which in time 

compromises the efficiency in opinion writing.