This section contains the nature of the case and procedural background.

D and a group of men gathered at the apartment of Alimamy Tarawallie to watch a World Cup soccer game. After the game, the party went outside, and someone supplied a large bottle of Guinness. While drinking beer from the bottle, D approached Tarawallie and began to speak with him. D came with the bottle contents spilling and began talking to and touching Tarawallie at the same time. Tarawallie told D to stop touching him. D claimed it was racially motivated, but Tarawallie said that 'it's nothing about color. You're black, me black. I told you to stop touching me if you talk. Just talk and I'll listen to you.' D stepped away and spoke to his friend Oscar in Spanish, a language Tarawallie did not understand. D then walked back to Tarawallie and demanded to know, 'If I touch you, what you going to do [to] me?' Tarawallie answered, 'If you touch me, I'll push you.' D then placed 'his finger [or fingers] on Tarawallie's face, . . . right in my eyes, like this.'Tarawallie reacted by pushing D, who then took the Guinness bottle he was holding and 'smashed it . . . on Tarawallie's head.' The pair ended up in a tussle on the ground, during which D banged Tarawallie's head against the sidewalk. D then 'ran away,' and Tarawallie called 911. Witnesses still present did not cooperate. Officers pieced together the forensic evidence to get a picture of what happened. D claimed that he had acted in self-defense. D said Tarawallie 'had made some kind of mention that he was going to assault D if he touched him again.' D 'said that he touched Tarawallie on the arm again, and that's when Tarawallie attacked him.' Mr. Baez testified that he heard Tarawallie warn D, 'don't touch my arm or you're going to see what is going to happen to you.' Baez explained that D did touch Tarawallie again, at which point Tarawallie 'reacted violently and . . . punched' D. Mr. Baez testified that the men ended up in a scuffle on the ground during which Tarawallie's head hit the pavement. In Mr. Baez's estimation, Tarawallie 'was the one who attacked first.' D did not testify. D’s counsel admitted that D touched Tarawallie, but he was playing, and Tarawallie escalated the encounter into a real fight unwarranted by a touch that was not offensive. P urged the court to find that D assaulted Tarawallie when he struck him with a beer bottle. After questioning from Judge Wynn, P asserted that the touching of arawallie (at least the second touching) was an assault. The court found that D 'poked' Tarawallie 'somewhere in his body' despite being admonished not to do so. The court also found 'that the parties were at least acquaintances and maybe could even be described as friends.' The court reasoned that the second poke with a prior warning was offensive. The judge explained there had to be an intent to do the touching, but there did not have to be an intent to be offensive. D was found guilty of simple assault in violation of D.C. Code § 22-404(a)(1). D appealed. The majority concluded that the evidence was legally insufficient to sustain D's conviction. P had proven no more than an unwanted touching, but 'there must be proof that D acted with 'force or violence.'' 'A touch is inherently neither 'forceful' nor 'violent' within the common understanding (or even legal understanding) of those terms.' Nor did appellant's conduct fit within the category of cases treating a nonviolent sexual touching as an assault. The court decided to rehear the appeal en banc, and the opinions of the division were vacated.

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