Lead Opinion
On May 11, 2011, a jury found appellant Tavon E. Vines guilty of eight separate charges, including one count of robbery,
I. Factual Background
The charges against Vines arise from two robberies on July 26, 2010, and the efforts of law enforcement officers to apprehend him in connection with those robberies on the following day. The government ultimately charged Vines with a total of thirteen charges arising from the events of these two days, all of which were joined for a single trial.
The government also presented the testimony of Officer Robert Ferretti. Ferret-ti testified that on July 27, he began following a white Cadillac Escalade SUV with a license plate number similar to the number Slough provided the previous day. He pulled behind the SUV and began to “pace” it. Vines, the driver of the SUV, then began to make “evasive” maneuvers. Officer Ferretti attempted to pull the SUV over, at which point it fled down Pennsylvania Avenue toward Washington Circle. Vines then made a number of reckless maneuvers in traffic. As Officer Ferretti gave chase, Vines drove the SUV down the wrong side of the road toward oncoming traffic at a rate of approximately 35^40 mph. Vines drove through a red light, nearly striking a group of pedestrians. The chase ended when the SUV collided with multiple vehicles in an intersection, leaving the SUV disabled. The SUV’s occupants, including Vines, then abandoned their vehicle and fled on foot. Officer Ferretti ultimately apprehended Vines outside a nearby office building.
II. Joinder and Severance
We first consider Vines’s argument that the trial court improperly allowed joinder of the charges arising from the July 26 robberies and the charges arising from the July 27 car chase for a single trial. Whether initial joinder was proper is a matter of law this court considers de novo. Crutchfield v. United States,
In this case, we conclude that the trial court did not err by permitting the initial joinder of all charges. It is true that the charges against Vines encompassed two logically distinct sets of offenses. The first set, including the two robbery charges, arose from the events that took place on July 26. The second set of charges arose from the July 27 car chase. However, the two sets of charges were sufficiently “connected together” to justify joinder. There was a substantial overlap of evidence between the sets of charges. The July 27 charges arose after Officer Ferretti attempted to detain Vines on suspicion of his having been involved in the July 26 robberies. At the time Officer Ferretti attempted to detain him, Vines was operating the same SUV that Slough saw him use to flee the scene of the robberies on the previous day. Based on this connection, evidence regarding the July 26 robberies would have been admissible in a separate trial on the July 27 charges to show Vines’ motive for fleeing from police. See Johnson v. United States,
In a related argument, Vines contends that the trial court erred by denying his motion to sever under Super. Ct.Crim. R. 14. We review the trial court’s ruling on a motion to sever for abuse of discretion. Cox v. United States,
We conclude that the trial court did not err by denying Vines’ motion to sever the offenses. Vines failed to make any proffer or otherwise attempt to show he would suffer prejudice from the joinder of all charges for trial, other than to argue in conclusory fashion that “[r]obbery is not of the same or similar character as the other offenses.” Yet as we noted supra, evidence regarding each set of charges would have been admissible in a separate trial on the other set. Thus, it is unclear exactly how a single joint trial on all charges could have prejudiced Vines, regardless of the character of the offenses. See Bailey v. United States,
III. Merger
We next consider Vines’s argument that his two convictions for malicious destruction of property merged as a matter of law.
Here, we conclude that Vines’s two separate convictions for destruction of property do not merge, because each conviction was the result of a separate criminal act against a separate victim. The testimony at trial showed that Vines’s two convictions arose from two collisions. The first conviction arose from the damage he inflicted on Sharon Garrett’s vehicle. The second conviction was based on his subsequent collision with Laura May’s vehicle. At trial, Garrett testified that Vines’s vehicle struck her vehicle first, and then proceeded to strike May’s vehicle. This testimony established two distinct collisions with two separate vehicles and two separate victims.
That Vines committed a single reckless act does not control our analysis. In deciding whether certain conduct constitutes a single offense or multiple offenses, we do not simply count the number of discrete “acts.” That is, there is no general rule that a single act can support only a single conviction; multiple punishments are permissible even where multiple charges are the product of a single act. See, e.g., Ruffin v. United States,
As to malicious destruction of property, we understand D.C.Code § 22-303 to contemplate a new offense for each new victim. The statute punishes the destruction of “any public or private property,” but does not further define “property.” Nevertheless, that term is not ambiguous: “property” is generally defined by reference to the individual interests therein. See Black’s Law Dictionary 402 (8th ed.1999) (defining “criminal damage to property” as “[i]njury, destruction, or substantial impairment to the use of property ... without the consent of a person having an interest in the property.” (emphasis added)); Webster’s THIRD New International Dictionary 1818 (1993) (defining “property” as “something which may be owned or possessed .... a valuable right or interest primarily the source of wealth” (emphasis added)). Indeed, § 22-303 itself punishes the offender for destroying property only when that property is “not his or her own” — explicitly distinguishing between individual interests. Likewise, for other offenses, our law explicitly defines “property” by reference to such interests. See D.C.Code § 22-3201 (2009) (defining “property of another” as “any property in which a government or a person other than the accused has an interest” (emphasis added)). Moreover, we have recognized that the statute’s protection extends to individual interests in property. See Baker v. United States,
Here, Vines caused two separate victims to suffer injuries to two distinct property interests. May and Garrett each suffered an injury to their interests in their respective vehicles.
Finally, we consider Vines’ argument that the evidence was insufficient to convict him of either simple assault or malicious destruction of property. When reviewing for sufficiency of the evidence, we consider the evidence in the light most favorable to the government. Mitchell v. United States,
Based on our review, we are persuaded that the evidence was sufficient to convict Vines of simple assault. In order to sustain a conviction for simple assault, the government must establish: (1) an act on the part of the defendant; (2) the apparent present ability to injure the victim at the time the act is committed; and (3) the intent to perform the act which constitutes the assault at the time the defendant commits the act. Bradley v. United States,
Vines argues, however, that although this court has consistently referred to simple assault as a general intent crime, some of our decisions effectively treat simple assault as a specific intent crime. See Buchanan v. United States,
This result is consistent with our case law, which permits a finder of fact to infer the general intent to commit a crime from reckless conduct. For instance, this court has sustained convictions for assault with a dangerous weapon (“ADW”) based on reckless conduct. In Powell v. United States,
If reckless conduct is sufficient to establish the requisite intent to convict a defendant of ADW, it necessarily follows that it is enough to establish the intent to convict him of simple assault. The four elements of ADW are simply the three elements of simple assault, plus the use of a dangerous weapon. Williamson v. United States,
Based on the foregoing, and making all reasonable inferences in favor of the government, we conclude that the evidence was sufficient to convict Vines of simple assault. We need not decide whether it was necessary for the government to show that Vines possessed the intent to injure May and Garrett or only the intent to commit the acts constituting the assault. Even if the greater proof was necessary, the jury could permissibly infer such intent from Vines’ extremely reckless conduct, which posed a high risk of injury to those around him.
Likewise, we are persuaded that the evidence was sufficient to convict Vines of malicious destruction of property. He argues on appeal that the evidence at trial failed to establish he acted with “malice.” In order to prove a defendant acted with “malice,” the government must show: (1) the absence of all elements of justification, excuse or recognized mitigation; and (2) either (a) the actual intent to cause a particular harm, or (b) “the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result.” Guzman v. United States,
For the foregoing reasons, we affirm the convictions of all counts.
Notes
. D.C.Code § 22-2801 (2001).
. D.C.Code § 22-303 (2001).
. D.C.Code § 22-404(a)(l) (2001).
.Prior to trial, the court denied Vines motion to sever the charges arising from the July 26 robberies from the charges arising from his conduct on July 27.
. Vines also argues that the evidence was insufficient to convict him of two counts of malicious destruction of property because there was no evidence to show he committed two separate criminal acts. These arguments are effectively identical for our purposes here. Thus, we consider both under the rubric of merger.
. The record is somewhat murky regarding the exact order of events during these collisions. At trial, Garrett testified that Vines’s vehicle struck three different vehicles: her vehicle, a green Honda, and a mail truck. She stated that Vines’s vehicle struck her vehicle first. It then struck the Honda, and then the mail truck.
May, who was driving the green Honda testified that she did not see Vines's vehicle before it struck her. Because she did not see what happened before the second collision, her testimony is largely unhelpful in sorting out the exact sequence of events.
Likewise, Officer Ferretti's testimony does not do much to clarify the ambiguity in the record. He testified: “From what I remember, I think [Vines’s] vehicle hit the back of one car and the front of another.” His testimony does not make clear whether this was a single collision or two collisions, one closely following the other.
Because Ferretti and May’s testimony do not resolve the issue, we are left with Garrett's version of the events. We think the jury could fairly conclude, based on Garrett’s testimony, that there were two distinct collisions involving Garrett's and May’s vehicles. Because there were two collisions, and those two collisions led to two charges regarding acts against two separate victims, the convictions do not merge. See Hanna, supra,
. The dissent would take a different approach. Because Vines's collision with May’s and Garrett’s vehicles were not "each the result of its own fresh impulse,” the dissent would find only one offense. But that is not our law. Indeed, as the dissent concedes, had May and Garrett died as a result of Vines’s single reckless act, he could be charged with two counts of negligent homicide, regardless of whether Vines acted with a fresh impulse, as to each victim. See Murray, supra,
The dissent attempts to distinguish this case by arguing that malicious destruction of property is not a victim-specific crime; thus, we need do no more than add up Vines’s “acts.” But as discussed infra, we understand D.C.Code § 22-303 to distinguish between separate harms to individual victims.
. The dissent argues that the Rule of Lenity requires us to reach its — and Vines’s — -preferred interpretation: that the statute does not distinguish between individual interests in property. But the Rule of Lenity is merely a "secondary rule of construction,” which " 'can tip the balance in favor of criminal defendants only where, exclusive of the rule, a penal statute’s language, structure, purpose, and legislative history leave its meaning genuinely in doubt.’ ” Luck v. District of Columbia,
. The dissent argues that May and Garrett "never testified that they owned the cars they were driving and the record at least suggests that others had property interests in these vehicles.” We disagree. Rather, the record plainly shows that the government both sought to establish that May and Garrett owned their vehicles and was successful in doing so. First, the charging indictment alleged that Vines "did injure, break, and destroy ... a car, property of Sharon Garrett,” and "a car, property of Laura May.” At trial, both May and Garrett repeatedly referred to their respective vehicles as "my truck” and "my car,” and both described the amounts they spent on repairs. May indicated that she carried insurance on her car, and Garrett brought to court receipts for the amounts she paid out-of-pocket. Moreover, Vines himself did not complain of any lack of proof of ownership: in his motion for judgment of acquittal, his attorney did not raise the issue. Nor did he raise the issue in his briefs in this court. Accordingly, we think the record clearly shows that the government both sought to and did establish ownership of the vehicles.
We also note that, by its terms, the statute did not require the government to prove who owned the affected property beyond proving that the defendant did not own it. See § 22-303 (requiring proof that the property the defendant damaged was "not his or her own”). On this point, the government was successful. And for the purposes of our merger analysis, there is no suggestion that the same person owned both cars.
.Vines's and the dissent’s reliance on Carter v. United States,
Finally, we also note that the circumstances of the merged counts in Johnson v. United States,
. Because these cases were decided before February 1, 1971, this court considers them binding precedent. M.A.P. v. Ryan,
Concurrence in Part
concurring in part and dissenting in part.
I concur with the majority opinion in all respects but one: in my view, Mr. Vines’s two destruction of property convictions should merge. The majority opinion holds that merger of Mr. Vines’s two convictions is not required both because there were “two distinct collisions” and because Mr. Vines collided with “two separate vehicles and two separate victims.” This holding is unsupported by the facts and by the law.
The determination that there were “two distinct collisions” is unsupported by a record that, contrary to the majority opinion’s characterization, is not at all “murky regarding the exact order of events during these collisions.” Instead, as set forth in more detail below, the record establishes that Mr. Vines caused one multi-car accident when he drove through a red light and collided in quick succession with two vehicles that had the right of way and were contemporaneously moving through the intersection.
Even so, to start with these facts is to begin the merger analysis in the wrong place. The Double Jeopardy clause pro
The majority opinion effectively overrules Carter and Johnson — something this panel is not empowered to do. See M.A.P. v. Ryan,
I. The Evidence at Trial Regarding the Collision
Three witnesses testified at trial about the collision of Mr. Vines’s Cadillac Esca-lade with two vehicles at the intersection of 19th and Pennsylvania, N.W.: the police officer who pursued Mr. Vines in a car chase down Pennsylvania Avenue, Officer Robert Ferretti, and the drivers of the two cars that were hit, Ms. Sharon Garrett and Ms. Laura May.
Officer Ferretti was arguably the witness with the best vantage point of the accident; at the beginning of the multi-block car chase, he was “[rjight behind” the SUV, only “[a] car’s length” away, and he remained “behind the vehicle from start to finish.” Officer Ferretti testified that he was pursuing Mr. Vines’s SUV down Pennsylvania Avenue N.W. when it ran a red light at 19th Street and drove into traffic that had the right of way:
[At] 19th Street I remember specifically he had a red light, and the vehicle — I mean [he] had the red light on Pennsylvania Avenue. But 19th Street is a one-way, so the vehicles were traveling south on 19th Street. It’s one way south. So all the vehicles were going down south. And they had the green light, where the Escalade traveled through the 19th Street intersection, causing — he struck two vehicles, causing an accident — causing an accident in that intersection.
When asked to specify precisely how the SUV had struck the cars in the intersection, Officer Ferretti testified that “from what [he could] remember, [he thought] [Mr. Vines’s] ■ vehicle hit the back of one car and the front of another.” Officer Ferretti estimated that Mr. Vines “picked up speed” as he approached the intersection and was driving at approximately “35, 40 miles per hour” just before the accident.
Ms. Garrett and Ms. May corroborated that they were each hit by the SUV just after their light turned green and they drove into the same intersection at 19th Street and Pennsylvania Avenue, N.W. Ms. Garrett testified: “The light changed in the direction of which I was going. It changed to green, ánd I proceeded through the intersection, and a truck hit my truck.” Ms. Garrett noted that there were other cars in the intersection, and that after the SUV hit her car, it continued forward and hit Ms. May’s vehicle, which was immediately to Ms. Garrett’s left. Ms. May similarly testified, “I was sitting still at a red light at the corner of 19th and Pennsylvania, and the light turned green. I hesitated a moment, pulled into the intersection, and was struck.” The incident “took [her] by surprise” and she “didn’t really see anything. [She] just pulled into the intersection, [and] felt an impact....”
II. Merger Analysis
At the outset of its merger discussion, the majority opinion correctly acknowledges that the Double Jeopardy Clause prohibits multiple punishments for the same offense. Owens v. United States,
The majority opinion’s assertions notwithstanding, there is no categorical rule that, regardless of the particular offense charged, multiple punishments are permitted whenever a court can discern separate “victims.” Instead, the place to begin when examining whether multiple punishments are permitted for a single offense are the elements of that offense. See Ladner v. United States,
Thus, when the legislature has been anything less than “clear and definite,” the only way multiple punishments may be imposed for the same offense without violating the Double Jeopardy Clause is if it is possible to identify temporally severable incidents of the same offense, a task performed using a fork-in-the-road or fresh-impulse test. If a fork in the road was presented or a fresh impulse was evident, then the defendant can be said to have acted twice and thus may be punished twice:
Criminal acts are considered separable for purposes of merger analysis when there is “an appreciable period of time” between the acts that constitute the two offenses, or when a subsequent criminal act “was not the result of the original impulse, but of a fresh one.” In evaluating separability of offenses, this court has adopted the so-called “fork-in-the-road” test for determining whether a defendant’s conduct is subject to multiple punishments....
Hanna,
Applying this framework to Mr. Vines’s case, there is no legitimate basis for double punishment for destruction of property. One basis for the majority opinion’s holding that double punishment is permitted is that Mr. Vines collided with two cars driven by two different people. The majority opinion asserts that D.C.Code § 22-303 “is generally defined by reference to the individual interests therein.”
At the time of this incident, D.C.Code § 22-303 (2001) made it a crime whenever
The majority opinion concedes that the statute “by its terms” does “not require the government to prove who owned the affected property beyond proving that the defendant did not own it”; nevertheless, it asserts that the statute protects individual property rights. Looking to the “not his or her own” language, the majority opinion asserts that these possessive pronouns somehow “explicitly distinguish between individual interests” of property owners. But this language refers to the defendant and simply acknowledges that an individual charged under D.C.Code § 22-303 (2001) may be male or female.
To buttress its individual property rights interpretation of D.C.Code § 22-303, the majority opinion looks beyond the plain language, but none of the other authority the majority opinion cites supports its statutory interpretation, much less gives a “ ‘powerful indication of the legislative intent’ that the offense be defined ... [by] the property interests injured,” as the majority opinion asserts.
Moreover, the majority opinion’s citations to Baker v. United States,
Lastly, the majority opinion’s recitation of the Black’s Law Dictionary general definition of “criminal damage to property” has no relevance to our task of interpreting the District’s destruction of property statute.
Not only is merger required under a plain language reading of the statute, we have two decisions from this court that contradict the majority opinion’s individual-property-interest interpretation of D.C.Code § 22-803: Carter,
In Carter, this court considered whether merger was required under the destruction of property statute when, as here, the defendant had collided with more than one vehicle. The government conceded that merger of some of the counts was required “since the evidence established that only three collisions caused damage to five cars.” Id. at 964. The court agreed that this was appropriate where the evidence established that appellant had (1) “turned left into a group of parked cars belonging to several police officers” and “smashed into a car owned by Officer Jeffrey Wilson, which in turn was shoved into another car owned by Officer Tanya Blake”; then (2) “turned in a different direction and struck a stop sign, dragging it across the front of a [different] parked car”; and (3) finally “turned into Northeast Drive, ... [where] he collided head-on with a police cruiser,” damaging both the cruiser and the ear he was driving (which did not belong to him). Id. at 958. Subsequently in Johnson, another car collision case, the court held that Carter “controlled,” and that merger of two counts of destruction of property was required in a case where a stolen car and a post office truck were damaged in a single collision.
Merger would not have been possible in either Carter or Johnson had the court interpreted the destruction of property statute to protect individual property interests as the majority opinion does in this case. And tellingly, neither after Carter nor after Johnson, did the D.C. Council amend the destruction of property statute to make clear that this court had gotten it wrong and that the Council did intend to protect individual property rights. Thus, under our merger case law generally, and our decisions in Carter and Johnson in particular, merger is required on the record in this case.
The majority opinion asserts that Officer Ferretti’s testimony “does not do much to clarify the ambiguity in the record” but seemingly ignores the full narrative of Officer Ferretti’s testimony, which makes clear that he saw Mr. Vines speed up and then run a red light, plowing into moving traffic that had the right of way.
I do not disregard the extreme recklessness of Mr. Vines’s decision to run a red light in downtown D.C. at rush hour, or the seriousness of the injuries he could
. The witnesses at trial testified that Mr. Vines also hit a mail truck in the same intersection, but that collision was not charged as a separate count of destruction of property.
. Although both women used the possessive pronoun "my” to refer to the vehicles they were driving, neither Ms. Garrett nor Ms. May ever testified that they owned these vehicles and the record at least suggests that others had property interests in them. The government asked Ms. Garrett, "[W]hat type of car did you have[?]” on the date of the accident, and she responded, "I was driving a 2004 Ford Sport Trac.” Ms. Garrett later discussed the money "we paid out” to fix the damage. The government asked Ms. May, "[W]hat type of car were you driving that day?” and she responded, "[a] Honda Accord.” She later testified that she did not know exactly how many miles it had on it at the time of the accident and that "[m]y father used it for business before I had it.”
The majority opinion cites to the indictment, but the charging document is not evidence. The majority opinion also states that "[Ms]. Garrett brought to court receipts” for the repairs she paid for, but the transcript reflects that these purported receipts were excluded from evidence.
. See, e.g., Speaks,
. The majority opinion repeatedly cites Hanna v. United States,
That Hanna did not intend to announce a total prohibition on merger where multiple individuals are adversely affected by criminal conduct is also evident both from the cases that Hanna cited for this proposition and from the actual analysis of the merger issues presented in Hanna. The court in Hanna cited and ”compare[d]” two cases: Joiner v. United States,
The resolution of the various merger issues in Hanna further demonstrates that it did not endorse a blanket separate-punishment-for-each-individual-affected rule. It declined to merge two assault charges — not on the basis that there were two separate victims, but rather on the ground that there "were two separate assaults,” i.e., two separate acts, "not a collective assault on the two victims.”
For all of these reasons, Hanna does not provide support for the majority opinion's analysis.
. The Court in Ladner determined that Congress had not clearly defined then 18 U.S.C. § 2254 to protect individual federal officers, and noted that, "[i]f Congress desires to create multiple offenses from a single act affecting more than one federal officer, Congress can make that meaning clear.”
. The majority opinion appears to assume that Ms. Garrett and Ms. May owned the cars they were driving; in fact, there is no such testimony in the record. See supra note 2. If an individual’s interest in property were an element of the offense so as to allow multiple punishments for every interest adversely affected, it is curious that the government never asked either Ms. Garrett or Ms. May the critical question, "Who owned the car you were driving?”
. Section 22-303 was amended in 2011 after Mr. Vines’s conviction to change the threshold value for damaged property from $200 to $1000. See D.C.Code § 22-303 (Supp.2012). The remainder of the statute is unchanged.
. When we used this language in Speaks, we were referring to language in the child endangerment statute that expressly identifies the victim of the conduct as the maltreated child. See Spealcs, 959 A.2d at 716-17 (discussing D.C.Code § 22-1101). As discussed above, there is no corresponding language in D.C.Code § 22-303 identifying an individual victim for the crime of destruction of property-
. Indeed, the need to consult this dictionary definition to discern the meaning of the term "property,” a term undefined in the statute but commonly used as a collective, suggests that the majority opinion is unable to discern the intent of the legislature in D.C.Code § 22-303 without turning to outside sources. But as explained above, if the majority opinion discerns any ambiguity in D.C.Code § 22-303, merger is required under the doctrine of lenity. See Murray,
To be clear, I do not believe the statute is ambiguous; rather, in my view, the plain language of the statute clearly does not protect individual property rights. Thus, I do not rely on the rule of lenity in the first instance to conclude that merger is required.
. The majority opinion relegates its discussion of Johnson and Carter to a footnote. Its discussion of both cases is confused and appears to undercut its interpretation of D.C.Code § 22-303. Specifically, the majority opinion indicates that whether the multiple counts of destruction of property in these cases merged turned on whether the damage to the various cars had occurred simultaneously. But as noted above, this should not matter if the statute protects individual property rights.
The majority opinion ignores this inconsistency in its logic and, looking to Carter, argues that Mr. Vines’s case is controlled by the counts that did not merge, rather than by the counts that did. But unlike Carter, there is no
. The majority opinion focuses on Officer Ferretti's testimony regarding one question of minimal import: where Mr. Vines's SUV made contact with Ms. Garrett’s and Ms. May’s vehicles. Officer Ferretti was asked "[wjhat side of the vehicle struck what side of the vehicle” and he responded that "[fjrom what [he] remember[ed], [he] thfought] [Mr. Vines’s] vehicle hit the back of one car and the front of another.” But his qualifiers on this tangential point in no way undermine his clear recollection regarding all other details of the accident.
. The government actually charged Mr. Vines with aggravated assault in connection to the injuries allegedly suffered by Ms. May, but because she apparently had inadequate
. Unlike Wages v. United States, 952 A.2d 952 (D.C.2008), which the majority opinion cites in support of its holding, Mr. Vines was not presented with an opportunity to avoid inflicting a second injury. The crime at issue in Wages, Possession of a Firearm during a Crime of Violence, was not clearly defined in relation to individual victims, and thus (like destruction of property, see supra) permitted merger "even when the predicate crimes are perpetrated against different victims.” Id. at 964. But the court determined that merger was not required because Mr. Wages had committed "distinct assaults”: “After shooting [Mr.] Mohamed, [Mr. Wages] reached a ‘fork in the road' where he could have chosen not to shoot and rob [Mr.] Ahmed. Instead, with a fresh impulse, [Mr. Wages] executed a new assault.” Id.