Kind v. United States , 529 A.2d 294 ( 1987 )

PER CURIAM:

Larry Kind appeals his conviction for possession of a prohibited weapon, namely, a knife, with intent to use it unlawfully against another person.¹ He asserts that the trial judge committed reversible error in failing to instruct the jury that the knife had to have a blade longer than three inches to qualify as a prohibited weapon within D.C.Code § 22-3214(b) (1981), the provision under which Kind was convicted.² Case law in this jurisdiction, binding upon us as a division,³ establishes that the failure to instruct the jury on every essential element of the crime is per se reversible “plain error,” notwithstanding a defendant’s failure to object to the instructions as given, Byrd v. United States, 119 U.S.App. D.C. 360, 342 F.2d 939 (1965),⁴ just as an instruction to the jury, made without objection, removing from its consideration an essential element of the crime requires reversal. Minor v. United States, 475 A.2d 414, 416 (D.C.1984). The Sixth Amendment right to a trial by jury is the policy underpinning of each of these cases. We do not read recent decisions dealing with “harmless error” analysis, see, e.g., Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), as directly modifying the cited cases. See Hoover v. Garfield Heights Municipal Court, 802 F.2d 168 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1610, 94 L.Ed.2d 796 (1987) (failure to instruct on essential element of offense mandates reversal, even under Rose v. Clark analysis).⁵

The government relies on McIntyre v. United States, 283 A.2d 814 (D.C.1971), a case in which the trial judge refused to let the appellant measure the knife in court. However, that was a bench trial and did not involve Sixth Amendment considerations. We are also cited to Hall v. United States, 383 A.2d 1086 (D.C.1978) and United States v. Gilbert, 140 U.S.App.D.C. 66, 433 F.2d 1172 (1970). Those cases held that “[wjhether lack of authority is considered a separate element of the offense of forgery or a part of the element of falsity, the jury must be advised that without proof of it the prosecution may not succeed,” Hall, supra, 383 A.2d at 1090, but deemed the trial court’s failure to so instruct to be harmless error. We simply cannot say that “lack of authority” in the context of a forgery charge bears the same element of centrality as the requirement in the case before us of knife length, which is part of the statutory definition of the crime itself.

Accordingly, the conviction for possession of a prohibited weapon is reversed and the case is remanded for a new trial on the charge. The remaining convictions are affirmed.⁶

So ordered.

1 . He was also convicted of assault and destruction of property. His appeal asserts no error in the former conviction. With respect to the latter, his only argument is insufficiency of the evidence. See note 6 infra.

2 . That section reads:

No person shall within the District of Columbia possess, with intent to use unlawfully against another, an imitation pistol, or a dagger, dirk, razor, stiletto, or knife with a blade longer than 3 inches, or other dangerous weapon.

A knife with a blade shorter than three inches arguably could qualify under the catch-all provision "other dangerous weapon”, but the government did not present its case on that theory. Furthermore, the trial court gave no instructions concerning a "dangerous weapon," but rather simply stated that all the government need show was first "the defendant possessed a knife, and second, at the time he possessed the knife he had the specific intent to use it unlawfully against any other — against another person.” Defendant made no objection to this charge. See Super.Ct.Crim.R. 30.

3 . M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).

4 . See also United States v. Gaither, 142 U.S.App. D.C. 234, 236, 440 F.2d 262, 264 (1971); Jackson v. United States, 121 U.S.App.D.C. 160, 348 F.2d 772 (1965).

5 . The government introduced into evidence a knife recovered after Kind's arrest from the back floorboard of the car in which the assault took place. Testimony of Kind at the trial can be read to indicate his acknowledgment that that was the knife involved in the incident. (Kind's defense was that the woman involved in the incident was the one who originally had the knife and that he was struggling to remove the knife from her.) The knife is in the record on appeal and in fact has a blade in excess of three inches. However, under our case law, it was for the jury to determine whether this knife was in fact the knife possessed by Kind and whether it met the statutory requirement.

6 . Kind also argues on appeal that even with a correct instruction, the evidence presented was insufficient to support the conviction. He makes the same argument with respect to his conviction of destruction of property. These assertions are without merit.