Appellant was convicted in Superior Court of several offenses related to an armed robbery of a group of individuals: one count of conspiracy to commit armed robbery,
The charges against appellant stemmed from a robbery and shooting on the evening of May 2, 2008, on the 4900 block of Jay Street, Northeast. That evening Lorenzo Ross ("Lorenzo"), his father, Lorenzo Ross, Sr., and his cousins, Derrick Ross, DeAngelo Martino, and Martin Scales, were "hanging by the dumpster in the parking lot" of Lorenzo's apartment complex, celebrating Lorenzo Ross, Sr.'s recent release from prison. At some point during the celebration, Lorenzo saw a girl he knew from the complex, Shaelin Rush, and he left the group to talk with her privately. While Lorenzo and Shaelin were talking, they saw a group of five "boys" in the vicinity. Lorenzo saw Shaelin approach the boys, hug them, and then go inside a nearby apartment building. The boys were around the corner from Lorenzo's father and cousins, and neither group could see the other's location, though Lorenzo could see both groups.
Lorenzo recognized one of the boys as appellant because he was standing "right underneath" a lamp post. Lorenzo knew appellant because they rode the bus together to school every day, and that appellant went by the name of "Snoop," something Lorenzo learned when appellant had interrupted his neighborhood basketball game a few weeks earlier because Snoop thought someone had "said something to [his] little brother." At that time, Lorenzo saw that appellant had a tattoo on his arm that read "Rest in peace, Cheese."
Lorenzo testified that after Shaelin went inside, he saw appellant put on a black ski mask and heard him say to the other boys, "y'all ready, let's go." As the group of boys began to move toward Lorenzo's father and cousins, Lorenzo started toward the dumpster to warn his family that he had a "bad feeling" about the boys. Just as Lorenzo got to the dumpster, however, appellant came around the corner with a
Appellant ordered Scales to "get on the gate," and then "patted [Scales's] pockets." Scales responded by giving appellant $20 that he had in his front pocket. Appellant poked the gun into Scales's side, attempted to search Scales's other pockets and "take [him] down to the dumpsters ... so he could do a thorough search." Scales reacted by grabbing the gun and trying "to get the gun away from [appellant] or to get away from him." Scales "was swinging [at appellant] trying to hit him with everything [he] had, hoping [appellant] would drop the gun." Scales shouted for the rest of his group to flee; as Lorenzo and the others ran, the second gunman did not attempt to stop them. Scales and appellant fell to the ground fighting and the gun fired. Lorenzo testified that after he heard the gun discharge, he looked back and saw "them still fighting ... wrestling." Scales tussled with appellant for "a long time," while the second gunman stood about twenty feet away with his gun directed toward Scales. Appellant eventually wrestled free of Scales and took off running with his gun.
After appellant fled, the second gunman kept his gun trained on Scales. Scales raised his arms in submission and told the gunman "you got all of the money that I have." From the porch of a nearby house, Lanette Ross (Lorenzo's mother) and her sister said, "call the police," and yelled at the gunman, "don't shoot him." The gunman paused, raised and lowered his gun three times, and then shot Scales in the right-side of his abdomen.
MPD Officer Ronald Royster testified that he searched the scene of the shooting and retrieved one spent 9 mm shell casing, several unspent .40 caliber cartridges, and the "guide," and "butt plate" of the magazine of a semi-automatic weapon. MPD Officer David Murray testified that he was unable to obtain any fingerprint evidence from the weapon "cartridges ... [and] cartridge case." The government also called MPD Detective Thurman Stallings, who testified that Lorenzo had identified the robber as "Snoop" during an interview shortly after the robbery occurred and did not "show any hesitation" doing so again when the photographic array was presented on May 6, 2008. Detective Stallings prepared the warrant for appellant's arrest after Lorenzo identified appellant a third time on May 9, 2008, when they spoke prior to Lorenzo's grand jury testimony.
The defense called one witness: Shaelin Rush. She testified that she had played
The jury found appellant guilty of conspiracy to commit armed robbery; AAWA and armed robbery, as to Scales; four counts of AWIRWA, as to Lorenzo, Lorenzo Ross, Sr., Derrick Ross, and Martino; and seven counts of PFCV — one for each of the seven armed predicate offenses. The jury found appellant not guilty of assault with intent to kill while armed
There was no evidence that appellant shot Scales; indeed, the evidence showed that appellant had fled with the $20 before the second gunman fired the shot. The government's theory of Scales's liability for AAWA was that the shooting was in furtherance of the conspiracy of which appellant was a part.
In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court held that a defendant may be liable for the acts of his co-conspirator. Id. at 646-47, 66 S.Ct. 1180. Thus, "a co-conspirator who does not directly commit a substantive offense may [nevertheless] be held liable for that offense if it was committed by another co-conspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement." Wilson-Bey v. United States, 903 A.2d 818, 840 (D.C. 2006) (en banc) (alteration in original) (quoting Gordon v. United States, 783 A.2d 575, 582 (D.C.2001)). "`The government is not ... required to establish that the co-conspirator actually aided the perpetrator in the commission of the substantive crime, but only that the crime was committed in furtherance of the conspiracy.'" Gatlin v. United States, 925 A.2d 594, 599 (D.C. 2007) (quoting Wilson-Bey, 903 A.2d at 840).
Appellant contends that there was no evidence that the second gunman's shooting of Scales was necessary to accomplish the objective of the conspiracy — robbery — as appellant had seized the money and run away with it, thus completing the robbery, by the time the shooting occurred. The government counters that the shooting was in furtherance of the conspiracy because it "occurred before all the culprits had escaped and it advanced the conspiracy's goals by assisting the escape and asportation of proceeds, protecting the robbers from Scales, punishing Scales'[s] resistance, and discouraging Scales and others from reporting the offense or testifying against the robbers."
We have not previously considered whether a shooting by one co-conspirator that takes place after another co-conspirator has fled may be deemed to be "in furtherance of" the conspiracy for purposes of co-conspirator liability. We have, however, applied related agency principles in the context of deciding whether a co-conspirator's statement made in similar circumstances is admissible under the hearsay exception for statements made by a co-conspirator.
State v. Rivenbark, 311 Md. 147, 533 A.2d 271, 276 (1987). This rationale applies here as well. Insofar as the objective of appellant and his co-conspirators was to rob Scales, their goal was not completed until they had successfully made off with the fruits of their criminal endeavor. Cf. Castillo-Campos v. United States, 987 A.2d 476, 491 (D.C.2010) ("[S]o long as the essential ingredient of asportation continues, the crime of robbery is still in progress....") (quoting Carter v. United States, 223 F.2d 332, 334 (D.C.Cir.1955)); see also Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371, 1375 (1986) ("Flight from the crime scene and division of the robbery proceeds were certainly parts of a common design to carry out the robbery, and, thus, the statements in question were properly admitted as having been made in the course of carrying out the design of the conspiracy.").
Although Pinkerton co-conspirator liability and accomplice liability are "distinct legal theories that require proof of different elements," Tyree v. United States, 942 A.2d 629, 636 n. 2 (D.C.2008) (quoting Wilson-Bey, 903 A.2d at 839), we see no meaningful distinction between these theories of liability for the purpose of assessing whether the evidence supports that another's actions were committed "in furtherance of" a criminal enterprise.
Viewing the evidence presented in appellant's trial in the light most favorable to the government, we conclude that it was sufficient to support a determination that the shooting was in furtherance of the conspiracy to commit armed robbery. As noted, the second gunman shot Scales as appellant was fleeing with the money he had taken from Scales. Because the shooting guaranteed a clean escape for the assailants with the proceeds of their crime, the shooting aided in the successful completion of their criminal endeavor. See Rivenbark, 533 A.2d at 276. Even if the second gunman appeared to hesitate, it was not a disconnected act, as the shooting occurred at the scene of the robbery and only about fifteen seconds after appellant had broken free from Scales, such that the jury could reasonably find that the shooting and the robbery were "one continuous and unbroken chain of events," Coleman v. U.S., 295 F.2d 555, 557 (D.C.Cir.1961), rather than a "random act of violence," as appellant contends.
Appellant also argues that the shooting was not a reasonably foreseeable consequence of the robbery because the objective of the conspiracy had already been completed and there was "some appreciable interval of time" between the robbery and the shooting. We disagree. As the government points out, a shooting is quite naturally a reasonably foreseeable consequence of an armed robbery.
In Prophet v. United States, we stated that "all parties are guilty for deviations from the common plan which are the foreseeable consequences of carrying out the plan (an accidental shooting during an armed robbery being a typical example of a foreseeable deviation from the plan to rob)." 602 A.2d 1087, 1095 n. 12 (D.C. 1992) (citing WAYNE LAFAVE & AUSTIN SCOTT, JR., HANDBOOK ON CRIMINAL LAW § 71, at 553 (1972)). Here, though the shooting was not accidental, we think that the circumstances present just such a "typical example." A defendant who conspires to commit an armed robbery should anticipate that a shooting may occur during the commission of the robbery and is held accountable if a shooting does, in fact, occur.
We reject appellant's contention that the prosecutor improperly argued "an implied theory of concealment" to show that the shooting was in furtherance of and a reasonably foreseeable consequence of the armed robbery. His contention, which rests on Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), is that the prosecutor's closing argument — that Scales was shot to "silence" him — was improper because a conspiracy to conceal a crime cannot be implied from every conspiracy to commit a crime. We think that appellant reads the government's closing argument too literally. Grunewald explains that "after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime." 353 U.S. at 401-02, 77 S.Ct. 963; see United States v. Turner, 548 F.3d 1094, 1097 (D.C.Cir.2008). That is because such acts "indicate nothing more than the conspirators do not wish to be apprehended — a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord." Grunewald, 353 U.S. at 405-06, 77 S.Ct. 963. The prosecutor's closing argument was not implying that the shooting was a "subsidiary" conspiracy to conceal the armed robbery. Instead, the prosecutor argued to the jury that the shooting was in furtherance of the conspiracy to commit the armed robbery itself by ensuring that the perpetrators could get away. Indeed, as Grunewald counsels, "a vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime."
We conclude that the evidence, taken in the light most favorable to the government, was sufficient for the jury to conclude that the second gunman's shooting of Scales was both in furtherance of the conspiracy to commit armed robbery and a reasonably foreseeable consequence thereof. We therefore affirm appellant's AAWA conviction.
Appellant argues that his four convictions for assault with intent to commit robbery while armed of Lorenzo, Lorenzo Ross, Sr., Derrick Ross, and Martino — the four in the group with Scales by the dumpsters — "must be vacated because there was insufficient evidence that [appellant], as the alleged first gunman, assaulted or intended to rob members of the group by the dumpsters other than Scales." We agree with the government that there was sufficient evidence from which the jury could find both that appellant himself assaulted and intended to rob all the victims, and that the second gunman assaulted all the victims, an assault for which appellant is responsible as a co-conspirator.
To convict appellant of assault with intent to commit armed robbery, the government needed to prove that appellant committed an assault, that at the time of the assault, appellant acted with the specific intent to commit a robbery, and that appellant was armed. See Singleton v. United States, 488 A.2d 1365, 1367 n. 2 (D.C.1985). "An intent to commit robbery may be inferred not only from the words uttered by the suspect but also from his conduct or from the `totality of the evidence.'" Owens v. United States, 497 A.2d 1086, 1090 (D.C.1985) (quoting Dowtin v. United States, 330 A.2d 749, 750 (D.C. 1975)). A defendant does not need to announce his intent. Id.
Viewed in the light most favorable to the government, the evidence was sufficient for the jury to convict appellant of assaulting the four individuals who were by the dumpster and that he did so with the intent to rob them. First, the evidence was sufficient to show that appellant and the second gunman assaulted the group under an intent-to-frighten theory.
Second, appellant's intent to rob may be inferred from the "`totality of the evidence,'" Carter v. United States, 957 A.2d 9, 15 (D.C.2008) (quoting Singleton, 488 A.2d at 1367), presented in this case. Before the robbery, appellant put on a ski mask and said to his co-conspirators, "y'all ready, let's go." As appellant approached the group by the dumpster with his gun drawn, he said to Scales either "give that shit up," or "you know what it is, let me get that." Once Scales produced $20, appellant poked the gun into Scales's side and searched for more money. Meanwhile, the second gunman, also with gun drawn, walked behind the group "to the point where [if] [they] want[ed] to run he had a perfect angle to shoot [them]." From this evidence, the jury could reasonably have found that appellant and his co-conspirators intended to rob the entire group of individuals. See Owens, 497 A.2d at 1091. The fact that appellant did not in fact attempt to rob the others who were gathered by the dumpster is relevant, but it does not necessarily mean that appellant did not intend to rob them when he first approached the group. In this case, the jury could have found that appellant would have searched and robbed the others as well, but decided to flee after Scales vigorously defended himself and told the others to run.
Yet, even if the jury found that appellant had an intent to rob only Scales, appellant is nonetheless liable for AWIRWA as to all the members of the group. As we explained in Long v. United States:
687 A.2d 1331, 1345 (D.C.1996) (quoting Moore v. United States, 508 A.2d 924, 926 (D.C. 1986) (per curiam)). Similarly, here, the second gunman assaulted the group by pointing his gun at them as appellant carried out the robbery of Scales. Thus, we conclude that the government presented sufficient evidence that appellant and his co-conspirators assaulted the group with the intent to commit a robbery. Because it is undisputed that appellant was armed during the robbery, the evidence sufficed to prove all elements of assault with intent to rob while armed.
Appellant challenges the sufficiency of the evidence supporting that he was the gunman who robbed Scales, arguing that "the evidence demonstrates that a reasonable person could not find that [Lorenzo's] identification of [appellant] as the gunman was convincing beyond a reasonable doubt." We agree with the government that the jury could find that the identification was sufficiently reliable because Lorenzo knew appellant from the neighborhood and Lorenzo had a good opportunity to view appellant on the evening of the robbery.
The testimony of a single identifying witness is sufficient to support a conviction. See Lancaster v. United States, 975 A.2d 168, 172 (D.C.2009); In re R.H.M., 630 A.2d 705, 708 (D.C.1993). "When there is only a single identifying witness, `the test is whether a reasonable person could find the identification convincing beyond a reasonable doubt, given the surrounding circumstances.'" Gethers v. United States, 684 A.2d 1266, 1274 (D.C. 1996) (quoting Beatty v. United States, 544 A.2d 699, 701 (D.C.1988)). In evaluating an eyewitness's identification, we must examine the evidence in the light most favorable to the government, see R.H.M., 630 A.2d at 707, as it relates to the ability of the witness to make a meaningful identification, including:
Beatty, 544 A.2d at 701. "Where discrepancies exist between a description given of the perpetrator and the defendant's actual appearance, the conviction will still be affirmed if there is other evidence showing that the identification is reliable." Id.
Appellant does not argue that Lorenzo's testimony identifying appellant was not admissible. Instead, he points to fourteen discrepancies in Lorenzo's testimony to support his assertion that the evidence identifying appellant was insufficient to support a finding, beyond a reasonable doubt, that appellant was the first gunman. These discrepancies center on contradictions between Lorenzo's in-court testimony and his initial statement to the police,
Further, any discrepancies regarding Lorenzo's description of the clothing worn by the first gunman do not weaken the reliability of the identification "if there is other evidence showing that the identification is reliable." Beatty, 544 A.2d at 701. Appellant was not a stranger; Lorenzo recognized him because they rode the school bus together and had played basketball approximately two months before the robbery. Lorenzo knew appellant well enough to know that he went by the name "Snoop" and that he had a tattoo on his arm that read "Rest in peace, Cheese." See Redmond v. United States, 829 A.2d 229, 234 n. 5 (D.C.2003) (noting that where a witness knows the defendant, an identification "contain[s] strong elements of reliability," and is therefore unlike "eyewitness identifications made by strangers, which may invoke more searching considerations"). In addition, Lorenzo testified that on the night of the shooting, he recognized appellant's face and dreadlocks before he covered his face with a black ski mask and that appellant had stood "right underneath" a light post about thirty-five feet away from where Lorenzo was standing by the dumpster. As a result, he identified appellant by name ("Snoop") when he spoke to Detective Stallings that same night, picked appellant out of a nine-person photo array four days later, and, the following day, identified appellant as the first gunman when he testified before the grand jury. With this other evidence, a jury could find that Lorenzo's identification of appellant was reliable despite any apparent inconsistencies between Lorenzo's testimony and Detective Stallings's statement as to what Lorenzo had reported to the police about the gunman's clothing (which Lorenzo disputed) and conflicts with the testimony of other witnesses. See Beatty, 544 A.2d at 701. Viewing the identification
Appellant brings two merger claims on appeal. "We review the issue[s] regarding the merger of [an appellant's] convictions de novo to determine whether there has been a violation of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States." Nixon v. United States, 730 A.2d 145, 151-52 (D.C.1999) (citing Spain v. United States, 665 A.2d 658, 661 n. 5 (D.C.1995)).
Appellant argues that his four convictions for assault with intent to rob while armed must be merged "because they resulted from a single assaultive act." We agree with the government that the counts do not merge because appellant committed separate assaults intending to rob each individual "rather than committing a single assault on the group as a whole."
"The Double Jeopardy Clause not only prevents the government from bringing a defendant to trial more than once for the same offense, but also protects against multiple punishments for the same offense." Owens, 497 A.2d at 1095 (internal quotation marks and citations omitted). The Double Jeopardy Clause, however, does not prohibit "separate and cumulative punishment for separate criminal acts," id. at 1094-95, or for criminal acts "perpetrated against different victims." Hanna v. United States, 666 A.2d 845, 855 (D.C. 1995). Yet, where a person commits one criminal act directed collectively toward a group of individuals, multiple convictions under the same statute will merge. See Joiner v. United States, 585 A.2d 176, 178 (D.C.1991) (holding seven ADW counts merged when defendant fired single shot in direction of group of seven men). "The question whether one transaction constitutes multiple offenses is one of legislative intent." Brown v. United States, 576 A.2d 731, 733 (D.C.1990).
In Graure v. United States, we articulated a framework for determining whether several assault convictions arising from a single incident merge under the Double Jeopardy Clause. 18 A.3d 743, 761-66 (D.C.2011). We explained that our analysis is rooted in "the factual circumstances of each case" and that several factors are relevant, including:
Id. at 761 (footnote and citation omitted). In Graure, the defendant had set fire to a club full of patrons, which resulted in his conviction on three counts of AWIRWA and four counts of ADW. Id. at 750-52. He challenged his convictions for ADW, asserting that they should merge because they related to the "single act of lighting fire to gasoline." Id. at 761. We rejected his challenge, concluding that because the fire had placed four patrons in "the path of physical injury," id. at 762, and "the focus of attempted-battery is on the potential of an act of force or violence to cause injury to an individual or individuals," the proper
We apply the tenets of Graure here. Thus, our analysis begins with the purpose of the criminal statute. See id. at 764. The assault with intent to rob statute provides that "[e]very person convicted of any assault with intent ... to commit robbery... shall be sentenced to imprisonment for not less than 2 years or more than 15 years." D.C.Code § 22-401. The statute includes "intent-to-frighten" assault, which imperils a person by creating a reasonable fear of injury.
Similarly, the District's general robbery statute is "unambiguously designed to protect persons" because "`robbery ... is basically a crime against the person.'" Davis v. United States, 498 A.2d 242, 246 (D.C.1985) (holding two armed robbery convictions did not merge where defendant pointed pistol at two victims working in dry-cleaning store while accomplices removed cash from store counter) (quoting United States v. Dixon, 469 F.2d 940, 943 (D.C.Cir.1972)). Insofar as assault and robbery are each focused on the protection of the individual, it is apparent that the legislative purpose of the combined assault with intent to rob statute also must be to protect the individual from an attempted robbery by threat of force or violence. Consequently, the unit of prosecution of assault with intent to rob while armed should be geared to the number of individuals specifically targeted by the defendant threatening the robbery. Cf. Murray v. United States, 358 A.2d 314, 321 n. 23 (D.C.1976) (recognizing that statute penalizing "threats to do bodily harm," D.C.Code § 22-407 (2001), "announces the act of threatening to be the intended unit of prosecution"). Thus, where a group of individuals is exposed to a generalized threat of force, the assailant has committed a single assaultive act; however, where individuals in a group are targets of particularized threats of force, the assailant has committed successive assaultive acts. See United States v. Alexander, 471 F.2d 923, 933-34 (D.C.Cir.1972) ("[W]here by a single act or course of action a defendant has put in fear different members of a group towards which the action is collectively directed, he is guilty of but one offense. Multiple convictions and consecutive sentences will be appropriate only where distinct, successive assaults have been committed upon the individual victims.").
The question remains whether the evidence in this case supports that appellant and his co-conspirators assaulted each of the individuals in the group or whether their conduct comprised one assaultive act on the group as a whole. Here, appellant openly stated his intent to rob, physically attacked Scales by shoving a gun in his
Appellant's final argument is that his two PFCV convictions merge with the underlying crimes — armed robbery and AAWA — because in the context of how his case was tried, "the two offenses of PFCV do not require proof of a factual element that the underlying offense[s] do[] not." The government contends that Thomas v. United States, 602 A.2d 647 (D.C.1992), forecloses appellant's argument. Thomas is instructive, but not entirely dispositive of appellant's argument. We conclude that the Double Jeopardy Clause does not prohibit appellant's convictions for both PFCV and the two predicate armed offenses.
The appropriate test for merger analysis was laid out by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, the Court established that unless there is clear contrary legislative intent, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. 180.
Appellant argues that Thomas is inapposite here because he is not contending that the evidence presented at trial, but rather the judge's instructions to the jury, should guide our merger analysis.
Id. at 648-53 (citing Byrd v. United States, 598 A.2d 386, 388-89 (D.C.1991) (en banc) (internal quotation marks and citation omitted)). We reiterate that, in the absence of clear statutory language or otherwise expressed legislative intent, the judicial task of determining whether different statutory offenses should be treated as the "same offense" for double jeopardy purposes is guided by Blockburger's test focused on the "statutory elements of the offenses." See, e.g., Pelote v. District of Columbia, 21 A.3d 599 (D.C.2011) (per curiam); Joiner-Die v. United States, 899 A.2d 762, 766 (D.C.2006); Byrd, 598 A.2d at 388-89; Thomas, 602 A.2d at 654. If the judge's instruction were to control the double jeopardy analysis, authority to define punishment would be shifted to courts and prosecutors and away from the legislature, contrary to the purpose of the Double Jeopardy Clause.
Having examined the language of the statutes at issue in this case, we conclude that the offenses require proof of different elements. First, with respect to the elements of armed robbery and AAWA, the District's enhancement statute for armed crimes provides: "Any person who commits a crime of violence, or a dangerous
Appellant, citing Jamison v. United States, 670 A.2d 373 (D.C.1996), Morton v. United States, 620 A.2d 1338 (D.C.1993), and Paris v. United States, 515 A.2d 199 (D.C.1986), contends that we have "consistently interpreted" the term "armed with" to be equivalent to "possession." Appellant is mistaken. In Jamison, the issue was whether the defendant charged with armed robbery had to actually use a weapon to be "armed" with it. We concluded that "`armed robbery does not require the use of or intent to use a weapon in the commission of the robbery [or other violent crime]; it requires mere availability of a weapon.'" 670 A.2d 373, 374 (D.C.1996) (quoting Washington v. United States, 366 A.2d 457, 461 (D.C.1976) (alteration and emphasis in original)). Jamison, which was decided after Thomas, did not deal with the PFCV statute or purport to compare the "possession" element of PFCV with the "armed" element of the enhancement statute. Morton is also inapplicable. In Morton, the appellant challenged the sufficiency of the evidence for his "armed with" enhancement, arguing that there was no evidence that the weapon was "readily available" to him. 620 A.2d 1338, 1340-41 (D.C.1993). We vacated the enhancement of appellant's conviction, but left for another day "the precise question whether `while armed with,' as distinct from `having readily available,' may include a firearm not physically on the person of the defendant...." Id. at 1342. Finally, in Paris, the appellant challenged the sufficiency of the evidence as to whether he was armed, because there was no direct evidence that he was armed at the time of the crime. 515 A.2d 199, 203 (D.C.1986). We held that the evidence was sufficient for the jury to infer that the appellant was armed when he committed the crime even though
Other cases, decided after Thomas, make this distinction clear. In (Phillip) Johnson v. United States, 686 A.2d 200 (D.C.1996), we held that "while (sic) armed with"
Consistent with these cases, we conclude that the armed offenses here, armed robbery and AAWA, required proof of elements not required in the PFCV offenses — that is, proof that the defendant was "armed with" or had "readily available" a dangerous weapon, which could, but need not, be a firearm. The PFCV offenses required proof of elements not required by the armed enhancement statute — that is, proof of "possession" of a "firearm." As these offenses are not the "same offense" for purposes of Blockburger and appellant's conviction of both offenses does not violate the Double Jeopardy Clause, appellant's convictions for PFCV do not merge with his convictions for armed robbery and AAWA.
Affirmed.
Lorenzo (and Scales) testified that "all three guys had black masks, black shorts, black T-shirts and black socks," and the gunman had on a "black shirt, black shorts, black socks, blacks boots." Shaelin, however, testified that she had seen appellant wearing a "red shirt" and "some blue jeans"; she had also seen a group of men wearing all black but said appellant was not in that group.
Lorenzo testified that they had been there for "at least a couple of hours, at least two hours," but Scales testified that he and his group had been by the dumpsters for "seven to ten minutes."
Lorenzo testified that three boys had followed the two gunmen, but Scales testified that a total of three people came around the corner.
Lorenzo testified that he recognized one of the boys in the group as Keith, who was wearing a polo shirt with white and blue stripes, but Shaelin testified that she recognized someone she knew as Kevin near the group of men in black, and he was wearing a light blue shirt and jeans.
Lorenzo testified that after the first gunman came around the corner, he said "give that shit up," but Scales testified that the gunman said, "you know what it is, let me get that." Lorenzo testified that he was the first person to be confronted by the group of boys, while Scales said that the group approached him first.
Lorenzo testified that the second gunman had worn a bandana, but Scales said that the second gunman wore a mask.
Lorenzo testified that the second gunman walked behind his group at the dumpster and the first gunman remained in front of the group, but Scales testified that two men walked past him and went together to the group by the dumpster while one of the group "stayed with" him.
Lorenzo testified that he heard two gunshots while Scales and the gunman were "tussling ... wrestling in the grass," but Scales testified that the gun went off only once as he and the gunman fell to the ground.
D.C.Code § 23-112.
