127 A.3d 1220 (D.C. 2015), 13-CF-1130, Rollerson v. United States

Docket Nº:13-CF-1130, 13-CF-1132
Citation:127 A.3d 1220
Opinion Judge:WASHINGTON, Chief Judge:
Party Name:Omar V. ROLLERSON & Rolita N. Burns, Appellants, v. UNITED STATES, Appellee.
Attorney:Justin Murray, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant Omar V. Rollerson. Mindy A. Daniels for appellant Rolita N. Burns. Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen Jr., United S...
Judge Panel:Before WASHINGTON, Chief Judge, EASTERLY, Associate Judge, and BELSON, Senior Judge.
Case Date:December 17, 2015
Court:Court of Appeals of Columbia District
 
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Page 1220

127 A.3d 1220 (D.C. 2015)

OMAR V. ROLLERSON & ROLITA N. BURNS, APPELLANTS,

v.

UNITED STATES, APPELLEE

Nos. 13-CF-1130, 13-CF-1132

Court of Appeals of Columbia District

December 17, 2015

         Argued June 4, 2015.

          Appeals from the Superior Court of the District of Columbia. (CF3-10870-12) (CF2-20913-12). (Hon. Patricia A. Broderick, Trial Judge).

         Justin Murray, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant Omar V. Rollerson.

         Mindy A. Daniels for appellant Rolita N. Burns.

         Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Kendra D. Briggs, Assistant United States Attorneys, were on the brief, for appellee.

         Before WASHINGTON, Chief Judge, EASTERLY, Associate Judge, and BELSON, Senior Judge.

          OPINION

         Washington, Chief Judge :

         This case arises out of two altercations, taking place on June 18, 2012, in which appellants Omar V. Rollerson (" Rollerson" ) and Rolita N. Burns (" Burns" ) allegedly sought to identify and punish those responsible for slashing Burns's car tires. Appellants were charged with a series of crimes as a result of these incidents. After a joint jury trial, Rollerson was convicted of first-degree burglary while armed, assault with a deadly weapon, two counts of possession of a firearm during a crime of violence or dangerous offense, and two counts of felony threats. Rollerson and Burns were both convicted of assault with significant bodily injury (" felony assault" ). Appellants filed timely notices of appeal. Appellants raise the following issues on appeal: (1) whether the trial court erred in denying Rollerson's motion to sever his trial from Burns's, in order to call her as a defense witness; (2) whether the trial court erred in denying Burns's motion to sever the counts arising from the first incident (Elvans Road) from the counts of the second incident (Bowen Road); (3) whether the evidence is sufficient to support appellants' convictions for significant bodily injury; and (4) whether Rollerson's two convictions for possession of a firearm during a crime of violence should merge. We affirm in part and reverse and remand in part.

         I.

         On December 5, 2012, Rollerson and Burns were charged by indictment with several criminal offenses arising from two incidents on June 18, 2012, in Southeast Washington, D.C. As to the first incident, which took place on Elvans Road, Rollerson was charged with: (1) first-degree burglary while armed (D.C. Code § § 22-801 (a), -4502); (2) assault with a dangerous weapon (D.C. Code § 22-402) (" ADW" ); (3) two counts of possession of a firearm during a crime of violence or dangerous offense (D.C. Code § 22-4504 (b)) (" PFCV" ); (4) unlawful possession of a firearm by a felon (D.C. Code § 22-4503 (a)(1)) (" UF" ); (5) carrying a dangerous weapon (D.C. Code § 22-4504 (a)) (" CDW" ); and (6) threatening to injure or kidnap a person (D.C. Code § 22-1810) (" felony threats" ).

         As to the second incident, which occurred on Bowen Road, both Rollerson and Burns were charged with: (1) assault with significant bodily injury (D.C. Code § 22-404 (a)(2) (" felony assault" ); and (2) committing a crime of violence against a minor (D.C. Code § 22-3611). Rollerson was individually charged with another count of felony threats. Appellants' cases proceeded to trial before the Honorable Patricia A. Broderick on July 9, 2013.1 The jury found Rollerson guilty of first-degree burglary while armed, ADW, both PFCV counts, both felony threats counts, and felony assault, but acquitted him of CDW. The jury found Burns guilty of felony assault.

         On September 29, 2013, the trial court sentenced Rollerson to 114 months in prison for first-degree burglary while armed, 30 months for ADW, 60 months for each PFCV conviction, and 14 months for each felony threats conviction. Rollerson was sentenced to 14 months for the assault with significant bodily injury arising out of the second incident. Rollerson's sentences for burglary, ADW, and PFCV were directed to run concurrently but consecutively to his sentence for the felony threats and felony assault. The trial court also sentenced Rollerson to five years of supervised release and a $100 fine for each conviction, totaling $700. Burns was sentenced to 18 months in prison, followed by three years of supervised release. The trial court suspended the execution of Burns's entire sentence and placed her on two years of supervised probation.

         II.

         A. The Elvans Road Incident

         On the night of June 17, 2012, Stefanie Harrington (" Harrington" ) and her friend Robert Teamer (" Teamer" ) were having drinks together in Harrington's apartment, located in the 2500 block of Elvans Road, Southeast. Later that evening, Teamer and Harrington left the apartment and went outside to spend time with her neighbors. At approximately 11:00 p.m., Teamer went back inside the building without Harrington, and fell asleep in her apartment. At approximately 1:00 a.m. on June 18, 2012, Harrington saw her boyfriend and female friend outside and went out to engage them in conversation. While she was outside, Harrington testified that she saw Burns standing by her car and overheard her stating loudly that someone had flattened the tires of her car. Burns then went inside Harrington's apartment building and walked upstairs. Not long thereafter, Rollerson came out of the apartment and approached Harrington and her friends. Rollerson addressed Harrington's boyfriend first and asked him who had flattened their car tires. Harrington's boyfriend stated that he did not know who had done it, to which Rollerson responded, " [O]h, you don't know, all right, I'm going to be back with the pump," which Harrington understood to be " his gun."

         Harrington walked back inside the building and continued upstairs to her apartment. When she entered the building, she saw Burns coming back down the stairs and the two made eye contact. Harrington testified that Burns walked so close to her that she almost bumped into her. When Harrington stopped and turned around, Burns moved on but stated, " they better go in the house," which Harrington perceived as a threat. After hearing Burns's statement, Harrington testified that she went into her apartment and put a kitchen knife and an empty half-pint liquor bottle into her purse for her protection. While inside the apartment, Harrington told Teamer, who had been asleep, that she thought " there was about to be something" and wanted him to come outside to be a witness.

         Harrington left her apartment, followed by Teamer, and saw Burns coming back up the stairs to the top level of the apartment where Harrington lived. Harrington approached Burns and said, " . . . so [w]hat you think I flattened your tires." Burns replied, " yeah" and stated that because she and Harrington were involved in verbal altercations in the past, Harrington may have been responsible for the damage to her tires. Burns and Harrington continued to argue until Rollerson came upstairs and intervened in the argument. At some point during the altercation, Harrington, Teamer, Burns, and Rollerson exited the apartment and moved outside to the apartment parking lot.2 Harrington testified that after Rollerson saw the knife she had placed inside her purse earlier that evening, he asked her, " [W]hat you going to do with that'" Harrington instructed Rollerson to back away from her and he complied. When Rollerson retreated, Harrington tossed the knife down by a car. After Harrington threw the knife to the ground, Rollerson retrieved it and approached Harrington with it. Rollerson continued to approach Harrington, until a man stopped him and held him back before he could reach her. Harrington testified that Rollerson threw the knife at her, which hit her in the arm. While Burns and Harrington were arguing, Teamer overheard Rollerson say, " [F]orget this, I'm about to go get that." Teamer informed Harrington that he believed Rollerson intended to get a weapon, and the two left and walked up to Harrington's apartment.

         Harrington and Teamer entered the apartment and locked the bottom lock on the door. Harrington then went into her bedroom to look for another weapon. Teamer testified that shortly thereafter, the man who he had just seen earlier that night in the parking lot, " busted inside the door." According to Teamer, Rollerson entered the apartment and stated, " I'm going to blow a hole in you guys," but was restrained again by the same person who had held him back earlier that night. Harrington testified that she heard a " big boom, like somebody busting in [her] door," and when she stepped out of her bedroom, she saw " Omar [Rollerson] with a shotgun." Harrington stated that she heard a noise, " like...

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