Winston Manual Perez Hernandez v. US (Opinion)

Opinion by Associate Judge Fisher, dissenting, at page 22.

Easterly, Associate Judge:

In this appeal, we consider for the first time whether a single unwanted touching of another person on the arm, without any evidence that the touching was attempted *596(or achieved) with force or violence, can support a conviction for simple assault under an attempted-battery theory. We hold it cannot.1

I. Facts and Procedural History

Although our focus in this appeal is on an unwanted touch on the arm, that was not the government's interest at trial. The government's theory of the case, which it set forth in its…