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,
I. Facts
The Government’s Evidence
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 Shae-lin 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, “/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’s Evidence
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 Marti-no; 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
11. Sufficiency of the Evidence of Co-Conspirator Liability for AAWA
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,
1. “In Furtherance of’ the Conspiracy
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.
[c]onspirators do not necessarily achieve their chief aim at the precise moment when every element of a substantive offense has occurred.... Before the conspirators can be said to have successfully attained their main object, they often must take additional steps, e.g., fleeing, or disposing of the fruits and instrumentalities of crime. Such acts further the conspiracy by assisting the conspirators in realizing the benefits from the offense which they agreed to commit.
State v. Rivenbark,
Although Pinkerton co-conspirator liability and accomplice liability are “distinct legal theories that require proof of different elements,” Tyree v. United States,
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,
2. “Reasonably Foreseeable” Consequence of the Conspiracy
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).”
3. Implied Theory of Concealment
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,
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.
III. Sufficiency of the Evidence for AWIRWA
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,
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,
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:
The [AWIRWA] statute defines the relevant offense as “assault with intent to ... commit robbery.” D.C.Code § 22-501 (1989 Repl.). It does not provide that the assault and robbery victims must be the same, and we have therefore held that a conviction will stand where “the assault of one victim is used to effectuate the robbery of another at the scene.” As in Moore, the assault in this case was “done in an effort to carry out the robbery.” Id. at 925. The evidence accordingly was sufficient to prove that [appellant] has committed an assault with intent to commit robbery when he pointed the gun at [two persons], with the intent to rob [a third person] standing nearby.
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,
the witness’ opportunity to observe and the length of time of the observations, the lighting conditions, the length of time between the observations and the identification, the stimuli operating on the witness at the time of the observation, as well as the degree of certainty expressed by the witness in making the identification.
Beatty,
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,
V. Merger Claims
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,
1. Merger of AWIRWA Convictions
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,
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.
(1) whether the episode consisted of “distinct, successive assaults”; (2) the number of individuals injured; (3) whether the defendant took a step toward effectuating physical injury (or stopped short of that, engaging only in conduct that could reasonably be expected to engender fear); and (4) whether the purpose of the relevant criminal statute is to proscribe specified conduct, or instead to protect individuals from harm.
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,
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
2. Merger of PFCV Convictions with Armed Robbery and AAWA
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,
The appropriate test for merger analysis was laid out by the Supreme Court in Blockburger v. United States,
Appellant argues that Thomas is inappo-site 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.
[t]he Double Jeopardy Clause, insofar as it applies to the problem of multiple punishments imposed following a single trial, limits only the authority of the courts and prosecutors.... Thus, “[t]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” ... [T]he court looks at the statutorily-specified elements of each offense and not the specific facts of a given case as alleged in the indictment or adduced at trial.
Id. at 648-53 (citing Byrd v. United States,
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,
Other cases, decided after Thomas, make this distinction clear. In (Phillip) Johnson v. United States,
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 Bloclcbur-ger 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.
Notes
. D.C.Code § 22-1805(a) (2001).
. D.C.Code §§ 22-2801, -4502 (2001).
. D.C.Code §§ 22-401, -4502 (2001).
. D.C.Code §§ 22-404.01, -4502 (2001).
. D.C.Code § 22-4504(b) (2001).
. Appellant stipulated at trial that he had tattoos on his arm that read, "Rest in peace, Cheese” and "Snoop.”
. Lorenzo testified that "a lot of people in the neighborhood” have "Rest in peace, [CJheese” tattoos.
. Lorenzo testified that he "hear[d] two more gunshots” as he was running away through the parking lot.
. D.C.Code § 22-404.01, -4502 (2001).
. D.C.Code §§ 22-402 (2001).
. D.C.Code § 22-4504(a) (2001).
. The jury was instructed on the elements of conspiracy and co-conspirator liability. The trial court later re-read the conspiracy liability instructions to the jury in response to a
. Appellant does not argue that the evidence was otherwise insufficient to prove the elements of AAWA.
. In evaluating the sufficiency of the evidence to support guilt on a conspiracy theory, we apply the well-known standard. "[W]e evaluate the sufficiency of the evidence 'in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact....'” Moore v. United States,
. The government argues that appellant has waived this argument because his trial counsel mentioned during closing argument that "Scales was shot during the robbery.” (Emphasis added.) Counsel’s statement does not have the evidentiary force of a stipulation, however, nor does it invalidate appellant’s motion for judgment of acquittal, which preserved the claim of insufficiency for appeal.
. Under Federal Rule of Evidence 801(d)(2)(E), which we have adopted, to be admissible, a co-conspirator’s out-of-court statement must have been made "during the course of and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). Once it has
. If anything, aiding and abetting liability requires more: knowing participation by the accomplice in "something he wished to bring about,” whereas once a conspiracy is established, co-conspirators are liable under an agency theory for each other’s actions in furtherance of the conspiracy. Wilson-Bey,
. During closing argument, the prosecutor stated: "Why do you bring a real gun with real bullets to a robbery in case something goes wrong? That's part of the plan. That's part of the conspiracy. In case something goes wrong, you're going to either punish someone, or silence someone or do whatever it takes to get what you came to get. That’s foreseeable.”
. We are not persuaded by appellant's attempts to distinguish this case from the "typical” example where resistance from the victims of the crime can be anticipated, leading to the use of a weapon. Scales did resist and there is no evidence to suggest that appellant had any reason to believe that Scales or the others in the group by the dumpster would react passively to the robbery.
. The government does not argue that there was evidence of an attempted-battery assault.
. Detective Stallings testified that Lorenzo told him "at the precinct” that appellant was wearing "blue jeans and a white shirt”; however, at trial, Lorenzo testified that appellant was wearing all black on the night of the robbery. Lorenzo explained that he saw a group of boys, two of whom were wearing blue jeans and a white shirt, that he never told Detective Stallings that appellant was wearing blue jeans and a white shirt but that a "friend that was with [appellant]” did. In addition, Detective Stallings testified that Lorenzo told him that only two people had been by the dumpsters — Lorenzo and Scales, but Lorenzo testified at trial that there were five people by the dumpsters.
. In his brief, appellant points to the following discrepancies in the testimony of the witnesses;
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 testifiedthat 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.
. Lorenzo was impeached for being on probation for a "gun charge” at the time of trial.
. For intent-to-frighten assault, the government must prove a threatening or menacing act that "reasonably would create in another person a fear of immediate injury” at a time when the defendant "had the apparent ability to injure." The defendant must have acted "voluntarily, on purpose, and not by mistake or accident.” Criminal Jury Instructions for the District of Columbia, No. 4.100B. (2009).
. The jury was instructed on both attempted-battery assault and intent-to-frighten assault. As discussed supra, the evidence was sufficient to support appellant’s AWIRWA convictions under an intent-to-frighten theory. See supra Part III.
. We are not persuaded by an appeal to the rule of lenity because " ‘[t]he Supreme Court has clearly indicated that where the principal legislative purpose is the protection of individual victims, the rule of lenity does not obtain.' ” Graure,
.In the District of Columbia, Blockburger principles have been codified in D.C.Code § 23-112 as a guide to sentencing:
A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.
D.C.Code § 23-112.
. The court defined the elements of armed robbery and AAWA as requiring that appellant be armed with a "firearm,” as does PFCV.
. Appellant’s argument that the offenses should merge because they carry the same mandatory minimum also cannot stand in light of Thomas. There, we explained that the legislative histories of the PFCV and the armed enhancement statutes — insofar as the Council amended the armed enhancement statute at the time it adopted the PFCV statute — "strongly indicates that the legislature did not intend to treat offenses subject to the enhanced penalty provisions ... and offenses defined by [the PFCV statute] as the 'same offense.’ ” Thomas,
. The element of possession in PFCV includes both actual and constructive possession. See Taylor v. United States,
. The statutory language is "when armed with.” D.C.Code § 22-4502(a).
. As noted in (Phillip) Johnson, the difference between "when armed with” and "readily available” is pivotal when it comes to sentencing. If the defendant is found to have been actually "armed,” there is a mandatory 5-year minimum sentence; but if the enhancement statute applies because the weapon was "readily available,” sentencing to a minimum 5-year term is within the judge’s discretion.
.“Possession” includes constructive possession, which requires proof of an element of intent to control, see Rivas v. United States,