Appellants Rodney Tucker and Sean Carter each were convicted of assault with intent to commit robbery while armed (AWIRWA), see D.C.Code §§ 22-401,.-4502; assault with a dangerous weapon (ADW), see D.C.Code § 22-402; two counts of possession of a firearm during a crime of violence or dangerous offense (PFCV) (one count based on the AWIRWA conviction, and the other based on the ADW conviction), in violation of D.C.Code § 22-4504(b); possession of an unregistered firearm (UF), in violation of D.C.Code § 7-2502.01; unlawful possession of ammunition (UA), in violation of D.C.Code § 7-2506.01(3); and carrying a pistol without a license (CPWL), in violation of D.C.Code § 22-4504(a). In addition, Carter was convicted of fleeing a law enforcement officer, see D.C.Code § 50-2201.05b (2005 Supp.). Both appellants argue that the evidence was insufficient to support their convictions. Carter argues in addition that his conviction should be reversed because he was prejudiced by the erroneous aiding and abetting instruction that the court gave to the jury and by the court’s having permitted the jury to hear the tape of a 311 call that, he asserts, was more prejudicial than probative. Carter also argues (and the government agrees) that his convictions for AWIRWA and ADW should merge.
We agree that the AWIRWA and ADW convictions — for both Carter and Tucker— merge, and accordingly we remand to the trial court to vacate the ADW convictions and the PFCV convictions predicated on them. In all other respects, we affirm the judgments of conviction.
I. Summary of the Facts
On August 20, 2005, Frank Young was walking in the 1200 block of Irving Street, N.E., carrying a bag of items that he had purchased at a farmer’s market and wearing a pouch that contained his work credentials, credit cards and driver’s license. The . credentials, credit cards, and other items fell out of the pouch and onto the ground. A man who was walking behind Young, whom Young had never seen before but who was later identified as appellant Tucker, said, “you dropped something.” Young turned around and retrieved his dropped items, thanked Tucker, and proceeded toward 13th Street, with Tucker following him. Young turned around and Tucker said, “Oh, what about me?” Tucker then reached into a pouch and pulled out a pistol. Young noticed that the pistol had a “smokey grayish type image around the barrel.” Tucker’s finger got caught in
Kevin Webb lived at 1235 Irving Street, N.E., and that afternoon, while standing in his driveway at the side of his house, he heard a gunshot. After the gunshot, Webb heard a voice say, “go man, go,” and saw two cars, a black Maxima and a gray Mazda 626, drive by in opposite directions. Webb could not tell from which direction the voice had come. The Maxima headed west toward 12th Street and the Mazda headed east towards 13th Street. Webb could not see who was in the gray Mazda, which had previously been parked in front of the house belonging to Webb’s next door neighbor, and which Webb had never seen on his block in the ten years he had lived there. Webb next saw an individual, later identified as Tucker, walk by, toward 13th Street, “right behind” the Mazda.
Webb’s neighbor, James Fuqua, was on the back porch of his house at 1231 Irving Street, N.E., when he heard a gunshot. He went to the front of his house, looked out a front window, and saw a man, later identified as Tucker, walking toward 12th Street. He also saw a gray Mazda with “unusual” tinted windows parked in front of his house, which was “unusual.” He explained that his block of Irving Street is “a quiet residential street, so usually it’s either my neighbor or a neighbor across the street that’s parked if there’s anybody parked in front of my house.” Fuqua heard someone who was “down the street towards 13th Street” yell, “go man, go.” He saw the gray Mazda take off toward 13th Street and a black Maxima drive slowly toward 12th Street. “Right then,” Fuqua testified, Tucker changed directions and “jogged back toward 13th Street.” 1 Nobody else was on the sidewalk. ■
When Young returned to the street to get his bag, which he had dropped when he ran away from Tucker, he saw Tucker walking toward 12th Street. Tucker said to him, “if you know like I know’ you’ll keep running.” Once again, Young ran and hid.
Metropolitan Police Department (MPD) Officer James O’Gorman heard the “call for ... a sound of gunshots” at 4:20 p.m., and he and his partner, Officer Page, immediately responded to the 1200 block of Irving Street. Young again emerged from hiding just as the police officers arrived, and he told the police that he had been robbed, 2 and that the assailant had a weapon, had run east down Irving Street and either turned south onto 13th Street or continued on Irving Street. Webb gave the police a description of the gray Mazda, telling them that it was a silver gray Mazda 626 with tinted windows. Detective Dexter Martin arrived and Young, Fuqua and Webb gave him similar descriptions of the man they had seen.
MPD Officer Matthew Miller and his partner, Officer Matthew Copsey, were on duty that afternoon in uniform and in a marked scout car when they heard a call go out for an armed robbery. At 4:28 p.m., they received a look-out for a black Maxima and a gray Mazda 626 with tinted ■windows. In the 1600 block of Mount Olivet Road, about two miles from the 1200 block of Irving Street, N.E., Officer Cop-sey pointed out a gray Mazda 626 with tinted windows. Officer Miller performed a U-turn and followed the gray Mazda for
Immediately as Officers Miller and Cop-sey pulled up to the Mazda, the driver, later identified as appellant Carter, jumped out of the driver’s side door and began to run. Officer Copsey pursued Carter on foot and apprehended him a short distance away at about 4:35 p.m. Officer Copsey determined that Carter’s address was on Clay Place, N.E., about six miles away from the 1200 block of Irving Street, N.E. Officer Miller testified that the Mazda’s passenger, later identified as appellant Tucker, remained seated in the front by the door that had been hit by the SUV. Officer Miller, who was “at the [collided] vehicles” within a few seconds, walked around to the driver’s side door with his weapon drawn and immediately saw a revolver to the left of the driver’s seat. Officer Miller seized the weapon “[b]ecause it was accessible to the passenger in the vehicle.” Miller placed handcuffs on Tucker and then extracted him from the vehicle through the driver’s side door because the passenger side door had “significant damage to it” and Tucker was “blocked in.” A few minutes later, Officer Copsey returned with Carter in custody.
Subsequently, Detective Martin brought Young to a show-up procedure where Young identified Tucker as the person who had drawn the gun on him. When shown the handgun recovered from the Mazda, Young said, “That’s it. It was gray ... like that.” Officers O’Gorman and Page took Webb to Benning Road where he identified the Mazda as the car he had seen earlier on his street. At a show-up identification, Fuqua identified Tucker as the person he had seen walking in front of his house, recognizing Tucker “instantly.” Fuqua also identified a vehicle that police took him to see as the car that had been parked in front of his house, recognizing it because of the “distinctive window tint.”
II. Sufficiency of the Evidence
In considering a claim of insufficiency of the evidence, we view the evidence “in the light most favorable to sustaining the conviction, ... giving deference to the [jury’s] ability to weigh the evidence and make credibility and factual determinations,”
Peery v. United States,
A. Tucker’s Claims
Tucker argues that there was insufficient evidence to support his conviction for AWIRWA
3
and the related PFCV
Because the evidence was sufficient to establish Tucker’s intent to rob Young, and because Tucker does not challenge the sufficiency of the evidence with respect to his assaulting Mr. Young while in possession of a firearm, Tucker’s challenge to the related PFCV conviction also fails. The assault with “intent to rob” made Tucker’s offense a “crime of violence” within the meaning of D.C.Code §§ 22-4501(f) and - 4504(b).
B. Carter’s Claims
Carter challenges the sufficiency of the evidence as to all of his convictions except fleeing a law enforcement officer. We begin with Carter’s challenge to his firearms convictions (UF, UA and CPWL).
6
We are satisfied that the evidence was sufficient for the jury to conclude that, when police caught up with Carter on Benning Road,
7
Carter had con
Carter’s brief focuses primarily on his claim that there was insufficient evidence to support his conviction for aiding and abetting AWIRWA. At most, he contends, the evidence permitted the jury to conclude that he was an accessory after the fact. 9 We disagree.
By definition, an “aider and abettor” assists or participates in a crime while that crime is in progress.
Williams, supra
note 9,
There was sufficient evidence from which the jury could infer that Carter knowingly participated in the attempted armed robbery of Young by Tucker. The evidence, viewed in the light most favorable to the government, was that at the time of the incident, a gray Mazda with distinctive tinted windows, a vehicle that Webb and Fuqua had never seen before, was parked in the 1200 block of Irving Street in front of Fuqua’s house; this was unusual, as no one other than residents usually parked on the block. After the gunshot was heard and reported, the gray Mazda pulled off toward 13th Street, and Tucker jogged toward 18th Street, “right behind” it. A short time later, Carter was seen driving the very same Mazda, with Tucker as a passenger, and the gun that Tucker used in the assault was found to the left of Carter’s (driver’s) seat. Before jogging off toward 13th Street, Tucker had been walking toward 12th Street, but changed directions when a voice called “go man go” from the direction of 13th Street, the direction in which the gray Mazda had driven at about the same time. When police began to follow the Mazda with their emergency signals activated, Carter began to drive erratically and at a high rate of speed, and when police caught up with the Mazda, Carter bolted from the car and ran. When police apprehended Carter, they learned that his address was six miles away from Irving Street. We think these facts permitted the jury to infer that Carter was in the gray Mazda when it was parked on Irving Street, that his business there was to wait for Tucker to commit an assault and robbery in order to whisk him away once the deed was done, that Tucker was looking for his get-away car and that Carter signaled Tucker about fleeing the scene
(ie.,
that Carter was the one who yelled “go, man, go”
10
), that Carter tried to evade police out of consciousness of guilt,
11
The gaps in direct evidence on which Tucker relies — that no one identified Carter as having been on Irving Street, that no one saw Tucker and Carter together before or during the assault, that no one saw Tucker exit the Mazda before the assault, and that the gun carried by Tucker had been concealed in a pouch and therefore had not been visible to Carter— mean, we accept, that the jury was not compelled to find that Carter aided and abetted Tucker’s crimes. But, in totality, the evidence was sufficient to permit the jury so to find. “The evidence need not compel a finding of guilt or negate every possible inference of innocence.”
Garcia v. United States,
Carter cites us to a number of cases in which this court reversed convictions for aiding and abetting upon application of the principle that “[pjroof of an accused’s presence at the scene of a crime alone cannot support a conviction of aiding and abetting the commission of a crime.”
Quarles v. United States,
Nor is this case on all fours with
Goodwin v. United States,
III. The Aiding and Abetting Instruction
As an additional basis for challenging his conviction for aiding and abetting AWIRWA, Carter argues that his conviction should be reversed because the trial court gave the jury an aiding and abetting instruction that this court has held is legally erroneous. The court instructed the jury that “[a]n aider and abettor is legally responsible for the acts ... of the other persons that are the natural and probable consequences of the crime in which he intentionally participates.” However, this court has since held that “where a specific
mens rea
is an element of a criminal offense, a defendant [tried as an aider and abettor] must have had that
mens rea
himself to be guilty of that offense .... ”
Kitt, supra
note 13,
The government concedes that the “natural and probable consequences” instruction that the court gave was erroneous, but
Carter objected to the court’s giving an aiding and abetting instruction on the ground that there was no evidence that Carter had foreknowledge that Tucker intended to commit an offense. However, as he acknowledges in his supplemental brief, he “did not object to the Court’s giving the portion of the aiding and abetting instruction that included [the] ‘natural and probable consequences’ language.” Indeed,. Carter’s counsel told the court, ‘Tour Honor, we’re not objecting to that last paragraph.” Because Carter did not object to the “natural and probable consequences” instruction, we review his claim under the demanding plain-error standard.
See Baker v. United States,
The jury specifically found that Carter was guilty of CPWL, UF and UA “based on the (12th & Irving Street) events.” Presumably, those convictions were not based on a theory of constructive possession. As the prosecutor acknowledged, there was no evidence to support a theory that Carter constructively possessed the gun and ammunition on Irving Street; Carter was not near the gun (Fuqua testified that “[n]obody else was on the sidewalk” with Tucker) and presumably had no ability to exercise control over the gun. 15 Therefore, we see little or no likelihood that the jury convicted Carter of aiding and abetting AWIRWA on the basis of his having participated with Tucker in (jointly) possessing the gun while on Irving Street.
In all likelihood, Carter’s CPWL, UF, and UA convictions were based on an aiding and abetting theory — specifically, on the theory that Carter aided and abetted Tucker to carry and possess the gun and ammunition on Irving Street. As discussed
supra,
the evidence permitted an inference that the gun and ammunition belonged to Carter, and that he furnished them to Tucker to carry on Irving Street while Carter waited in the gray Mazda. If — as seems likely — that is the inference the jury drew, we think they also would have concluded that Carter shared Tucker’s intent to commit a robbery, even if they had never heard the “natural and probable consequences instruction.” That is because the evidence suggests no other reason why Tucker or Carter would have wanted Tucker to be armed on Irving Street while Carter waited in the Mazda. For these reasons, we think it likely that the jury concluded that Carter had the mens rea required to convict a defendant of AWIRWA. Thus, we are not persuaded
Moreover, Carter was not precluded from presenting his case to the jury
(e.g.,
by providing testimony to persuade the jury that the inferences that the government asked them to draw — that he was present on Irving Street, that he knew that Tucker was armed, and that he participated in Tucker’s actions as something he wanted to bring about — were unwarranted). Thus, the instructional error did not “seriously affect[] the fairness, integrity or public reputation of [the] judicial proceedings,”
Kidd v. United States,
IV. The 311 Tape
Carter’s next argument is that the trial court erred in allowing the jury to hear the tape of the 311 call that Fuqua made to police to report the gunshot he heard, a tape in which Fuqua stated that “they drove off.” Carter contends that the court failed to balance the prejudicial effect of the tape against its probative value.
The tape had been played for the jury during trial over Carter’s hearsay objections. Thereafter, when the parties’ counsel were compiling exhibits to be made available to the jury during deliberations, Carter’s counsel asserted for the first time that Fuqua’s statement that “they drove away” (italics added) was not supported by the evidence at trial (because Fuqua did not see who was in the gray Mazda as it pulled off, and did not see Tucker enter the vehicle at any time), and therefore was more prejudicial than probative. Pointing out that the tape had been admissible not for the truth of the matters asserted during the call, but to show why police followed the Mazda, the court ruled that Carter’s new objection came too late. 16
Ordinarily, we review a trial court’s rulings on the admissibility of evidence for abuse of discretion.
See, e.g., Kidd v. United States,
We need not address whether the court erroneously failed to weigh any prejudicial effect of the 311 tape against its probative value, because we are satisfied that even if there was error, it did not affect Carter’s substantial rights.
See Arnold v. United States,
V. Merger of the AWIRWA and ADW Convictions
Carter argued for the first time in his supplemental brief that the crimes of AWIRWA and ADW merge, and that his conviction of ADW and the PFCV conviction associated with it should be vacated.
See
(Frederick)
Williams v. United States,
Tucker has not raised the merger issue, and the government’s briefs do not address merger as to Tucker. However, we think it appropriate to raise the issue
sua sponte
and to order remand in Tucker’s case as well for the court to vacate his ADW and associated PFCV conviction.
19
See Monis v. United States,
VI. Conclusion
For the foregoing reasons, we remand to the trial court to vacate appellants’ convictions for ADW as well as their convictions for PFCV premised on the ADW convictions. In all other respects, we affirm.
So ordered.
Notes
. Officer Nathaniel Covington testified that Fuqua told him that Tucker had been running down Irving Street toward 12th Street, and then ran back toward 13 th Street.
. Young found some of his missing items in the yard where he had been hiding and some items out on the sidewalk, and determined that nothing had been taken from his bags.
. The elements of assault with intent to commit robbery are: "1) that defendant assaulted complainant, and 2) at the time of the assault, 'the defendant acted with specific intent to commit the offense of robbery upon the complainant.'"
Singleton v. United States,
."The elements of possession of a firearm during the commission of a crime of violence are: (1) possession of a pistol, machine gun, shotgun, rifle, or other real or imitation firearm, and (2) commission of a crime of violence as enumerated by the statute (not limited to assault with a dangerous weapon), while in possession of the firearm.”
Freeman v. United States,
. Moreover, Young had never seen Tucker before, so there was no evidence to suggest any other motive for Tucker to pull a gun on Young.
. Since Carter provided no argument in support of his challenge to these convictions, we “might treat [the challenge] as abandoned,” but instead we consider it, since there is "no manifest prejudice” in doing so.
Roy v. United States,
. The UF, UA and CPWL charges as they relate to the gun as used on Irving Street were based on an aiding and abetting theory rather than on a constructive possession theo
. See, e.g.,
McGriff v. United States,
. The government did not charge Carter with being an accessory after the fact, a crime that is “fundamentally dissimilar from that of a principal and must be distinctly charged in the indictment.” (McClinton)
Williams v. United States,
. Carter asserts that the testimony was that “whoever yelled ['go man go'] was up the street from where [Fuqua] saw the gray Mazda.” But, more accurately, Fuqua testified that "go man go” was yelled up the street from where the gray Mazda had been parked when Fuqua first saw it. Fuqua testified that the gray Mazda was parked in front of his house at the time when he looked out his front window right after hearing the gunshot. As Carter appears to acknowledge, the transcript is somewhat “confusing” as to sequence, but we think the testimony — including the testimony that "whoever it was that yelled go man go, both cars took off,” with the gray Mazda taking off “towards 13th Street” — permitted the jury to infer that "go man go” was yelled simultaneously with (or even after) the Mazda’s taking off "towards 13th Street.”
. While we have recognized that “it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses,”
(John) Bailey v. United States,
. Tucker’s inept handling of the gun may also support this inference.
. Carter argues that the evidence made it "far more likely that Mr. Tucker, knowing that he had just tried to rob someone, handed the gun off to Mr. Carter after the fact to get it out of his possession, to wash his hands of it should the police pull the car over.” We think that explanation "strain[s] credulity,”
Kitt v. United States,
.
"\M\ens rea
may be inferable from the facts and circumstances....”
Kitt, supra
note 13,
. Similarly, there was no evidence that Carter was in actual possession of the gun and ammunition on Irving Street.
.
Cf. Salzman v. United States,
. As the government points out, Carter also failed to cross-examine Fuqua about the misstatement on the 311 tape.
. Moreover, the jurors doubtless were familiar with the practice of using "they” as a singular (rather than plural) pronoun when the speaker does not know the gender of the person being spoken of — i.e., what Webster's Third New International Dictionary refers to as the usage of "they” to mean “he” or "she” in conjunction with an “indefinite singular antecedent.”
. This disposition seems appropriate since Tucker did not forfeit the right to challenge his illegal sentence by not raising it in this appeal. An illegal sentence — including a sentence for a conviction that should have merged with another conviction to avoid a double jeopardy violation — may be challenged at any time.
See Brown v. United States,