In re THB, 92-FS-1369.

• Decision Date: 25 January 1996
• Docket Number: No. 92-FS-1369.,92-FS-1369.
• Citation: 670 A.2d 895
• Parties: In re T.H.B., Appellant.
• Court: D.C. Court of Appeals

670 A.2d 895

In re T.H.B., Appellant.

No. 92-FS-1369.

District of Columbia Court of Appeals.

Argued March 24, 1994.

Decided January 25, 1996.

Judith A. Lovelace, Washington, DC, appointed by this court, for appellant.

Phillip A. Lattimore, III, Assistant Corporation Counsel, with whom John Payton, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee.

Before FERREN, TERRY, and KING, Associate Judges.

TERRY, Associate Judge:

Appellant, a juvenile, was charged with armed robbery and assault with intent to kill while armed. He was adjudicated delinquent after the trial court found him guilty of one count of assault¹ and one count of assault with intent to commit robbery.² On appeal he argues that the trial court erred in permitting the government to introduce evidence of uncharged misconduct, and that the government presented insufficient evidence to support a finding that he had any intent to rob the victim. These arguments are without merit. In addition, appellant argues that the simple assault merges with the assault with intent to commit robbery. We agree with this argument, but not for the reasons that appellant offers.³ Rather, we hold that the two assaults of which appellant was found guilty were, in fact and in law, only a single offense. Accordingly, to the extent that the delinquency adjudication was based on a finding that appellant was guilty of simple assault, we vacate it in part as duplicative. In all other respects the adjudication is affirmed.

I

The government's principal witness was Lonnie Bryant. He testified that on October 28, 1989, at approximately 10:00 p.m., a group of young men gathered in the 5400 block of Ninth Street, N.W. Appellant, who went by the nickname "Grumpy," was a member of the group. Someone other than appellant suggested that they "all get together and beat up a pipehead."⁴ This proposal met with general agreement, and soon thereafter several of the youths attacked an unidentified pedestrian. During this incident appellant was standing "over to the side" near a fence, about five feet away. The attack suddenly ended when somebody cried "D.C. Police," prompting the members of the group, including appellant, to run into a nearby house.⁵

A few minutes later the youths returned to the street, and at about the same time two men came walking down the street toward them. One of the two, Charles Lawson, approached one of the young men and asked whether anybody was "working," i.e., selling drugs. The others in the group, including appellant, gathered in a circle around Mr. Lawson to prevent him from running away, and one of the young men, known as Robbie or Robert, struck Lawson in the face and knocked him unconscious.⁶ Then someone in the group stood over Mr. Lawson and urinated on him,⁷ and another person (not identified by name or nickname) spat on him as he lay on the ground. One of the youths, Michael Atkins, then bent over and went through the pockets of Mr. Lawson's jacket, removing an unidentified object which he placed in his own pocket. While all this was going on, the other young men "started separating and started backing up," according to Bryant, but they remained in the immediate vicinity. Some of the others began clamoring to arouse the still-unconscious Lawson and "get him up off the street"; appellant, in particular, said, "Get that man up before the police drive past here." Appellant then ran into the same house where he had gone before, supposedly to get some water to "throw on the guy to wake him up."⁸

Mr. Lawson had regained consciousness and was sitting up by the time appellant returned (without any water).⁹ Appellant then helped Lawson to collect his personal belongings, which had been scattered during the attack, and appellant and the others tried to persuade him to leave and "go up the street." At the same time, another member of the group, known as Kirky, walked over to a nearby car and got in. Then, just as Mr. Lawson, still in a dazed condition, drifted into the street, Kirky drove past and grabbed him. Kirky pulled Lawson toward the car, shot him once in the buttocks, then pushed him away and drove off. After the shot was fired, the group disbanded. According to Bryant, Kirky was not part of the group that initially planned to "beat up a pipehead." However, he arrived on the scene shortly thereafter and was present during the assault on the unidentified pedestrian as well as the assault on Mr. Lawson.

On cross-examination Bryant testified that he did not see appellant talking with Kirky that evening, nor was Bryant aware of any plan to shoot Lawson. In addition, according to Bryant, at the time of the shooting appellant was standing in front of a nearby house, roughly eighteen feet away from the incident. Bryant also testified that, when the initial beating of Mr. Lawson began, appellant was standing near a fence, again approximately eighteen feet away.

The government introduced a videotape of these events which had been taken by one or more of the assailants. Although the tape ended shortly before Mr. Lawson was shot, it depicted appellant's attempt to get Lawson up on his feet and later showed appellant tossing a jacket to Lawson. While the tape was being played, Bryant identified appellant as the person shown on the tape whose foot was "touching the back of Lawson's head" as Lawson lay on the ground. Appellant's voice was also recorded on the tape saying, "I'm going to hit Lawson's ass if he don't get up."

At the close of the government's case, defense counsel moved for a judgment of acquittal. The court granted the motion with respect to the weapon-related elements of both counts, but denied it as to the lesser included offenses of robbery and assault.

Appellant then testified on his own behalf. He admitted that he was present on the night of October 28 and that he saw the attack on the unknown first victim, but he said that the others were merely "playing with him." A few minutes later Mr. Lawson and his friend approached the group and asked, "Do you have some?" A young man named Quentin exclaimed, "We got two live ones. We got two live ones." Robbie thereupon struck Lawson in the face and knocked him down while Lawson's companion escaped. Appellant then saw Kirky and Quentin urinate on Lawson, one after the other, and Atkins began to go through the pockets of Lawson's jacket.¹⁰ During this entire time, appellant said, he was standing in front of a fence near a house.

Eventually appellant and an unidentified woman came to Mr. Lawson's assistance by helping him up and handing him his jacket. According to appellant, it was at this point that he went into the house to get some water for Lawson. Then, as he was emerging from the kitchen door with a pot of water, he heard two gunshots. Frightened, he dropped the pot and ran away. Appellant denied that he ever agreed to assault anyone that evening and insisted that he never put his hands in Lawson's pockets at any time.

After hearing all the evidence, the court found appellant guilty of aiding and abetting in the assault on Mr. Lawson, that is, the punch in the face and the urination. The court specifically credited Bryant's testimony over appellant's in finding that appellant had participated in the original plot "to have some fun and beat up some pipeheads" that evening. The court also found, after viewing the videotape once again, that appellant was much closer to the attack on Lawson than even Bryant had said in his testimony. "He was standing right with the others when the second victim Lawson . . . came onto the scene. Indeed, the tape shows that he was not eighteen feet away. . . . He was more like three feet away." Combining the videotape and Bryant's testimony, the court found appellant guilty of assault on the theory that he had aided and abetted "the original assault" on Mr. Lawson.

With respect to the charge of robbery, the court found that appellant was "standing right there looking as Atkins went through the unconscious man's pockets while he was spread out unconscious on the ground." Appellant's attempt to revive the fallen Lawson was construed by the court not as motivated by "any kind of Good Samaritan spirit," but simply as a recognition

that this is a body on the ground that's been knocked out that could be inconvenient to have in the neighborhood, because the police might wonder who was involved in this and come looking for people, so they need to get him out of there.

The court also referred to a scene on the videotape where someone said, "Hit him Lawson in the head. Move his head. Wake him up. Get him out of here." The tape then showed that in response to these comments, appellant's foot "kind of pushed" at Lawson's head. The court thus found that appellant was "an integral part of the cleanup. . . by trying to get this man out of the neighborhood" before the police came. However, the court also found that the evidence was insufficient to prove that Atkins ever took anything of value from Mr. Lawson. Accordingly, on the robbery charge, the court found appellant guilty as an aider and abettor of the lesser included offense of assault with intent to commit robbery.¹¹ With respect to the shooting of Lawson by Kirky, the court made no finding whatsoever.

II

The petition charging appellant with delinquency contained two counts, which read as follows:

1. Said child, on or about October 28, 1989, within the District of Columbia, while armed with a dangerous weapon, that is, a gun, by force and violence, against resistance and by putting in fear, stole and took from the person and from the immediate actual possession of Charles Lawson, property of value, consisting of U.S. currency, in violation of D.C.Code § 22-2901 and D.C.Code § 22-3202 2. Said child, on or about October 28, 1989, within the District of Columbia, while armed with a dangerous weapon, that is, a gun, assaulted

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