Jones v. United States

• Decision Date: 07 January 1987
• Docket Number: No. 84-1331.,No. 84-1313.,84-1313.,84-1331.
• Citation: 516 A.2d 929
• Parties: Taff JONES, Appellant, v. UNITED STATES, Appellee. Kenneth D. WARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

516 A.2d 929

Taff JONES, Appellant, v. UNITED STATES, Appellee.

Kenneth D. WARD, Appellant, v. UNITED STATES, Appellee.

No. 84-1313.

No. 84-1331.

District of Columbia Court of Appeals.

Argued June 5, 1986.

Decided on Rehearing January 7, 1987.¹

J. Herbie Di Fonzo, Washington, D.C., appointed by this court, for appellant Jones.

Merrilyn Feirman, with whom Calvin Steinmetz, Washington, D.C., was on the brief, for appellant Ward. David A. Lee, Washington, D.C., appointed by this court, also entered an appearance for appellant Ward.

Barry Coburn, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., and Charles L. Hall, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEBEKER, MACK and NEWMAN, Associate Judges.

MACK, Associate Judge:

Jones and Ward appeal their convictions of felony murder while armed, D.C.Code §§ 22-2401, —3202 (1981), assault with intent to commit robbery while armed, id. §§ 22-501, —3202, attempted robbery while armed, id. §§ 22-2902, —3202, second-degree murder while armed, id. §§ 22-2403, —3202, and possession of a prohibited weapon, id. § 22-3214(a). Both appellants assert that their convictions on the first three charges must be set aside because of insufficient evidence of specific intent to rob. They also contend that since the "while armed" enhancement section, id. § 22-3214, merges with the prohibition against possessing a dangerous weapon, id. § 22-3214(a).

We agree that there was insufficient evidence for the jury to find a specific intent to rob, and therefore reverse the convictions of felony murder while armed, assault with intent to commit robbery while armed, and attempted robbery while armed. However the remaining claims are meritless and we therefore affirm the convictions of second-degree murder while armed and possession of a prohibited weapon.

I

At trial, George Kendall testified that on the evening of June 13, 1983, he drove himself and Richard Feldpusch from Maryland into the District of Columbia to purchase illegal narcotics. The pair went first to the area around "12th and W," but left "because there was nobody around to get drugs from." They then drove to another neighborhood with which they were familiar, around Tenth and 0 Streets, N.W., and parked their van. By waving his arm or shouting, Feldpusch flagged down Taff Jones, who was standing on the sidewalk. Jones responded by approaching the van. Feldpusch asked Jones if Jones had any Dilaudid. After receiving an affirmative reply, Feldpusch agreed to purchase four Dilaudid capsules for $140.

Jones left, walked to the corner, and returned to Kendall's van with Kenneth Ward. Jones told Kendall to turn off the engine, and then entered the van so quickly that the rear view mirror was knocked onto the floor.² Kendall and Jones both reached to the floor to recover the mirror, but a scuffle ensued when Kendall grabbed Jones around the neck. It was at that point that Kendall looked up, and saw Ward "standing at the corner of the van with [a] gun pointing inside the vehicle."

Kendall ran from the van, leaving Feldspuch supine on the front seat trying to kick at the shotgun. As he fled, he was chased for only a few feet by Ward, who then returned to the van. After running a couple of blocks, Kendall heard a shot. He did not go back to his vehicle, but went to a phone booth to call a friend who came to pick him up and took him home. He began calling local hospitals after he arrived home, and eventually learned that Feldpusch had been taken to George Washington University Medical Center, where he was pronounced dead.

A resident of the neighborhood testified that he saw Feldpusch inside a blue van struggling with Jones, who was trying to pull Feldpusch out of the van. He saw Jones shoot Feldpusch with a "long barreled gun." Another eyewitness saw a commotion around the van, heard a shot, and watched Ward running from the scene with a shotgun.

II

Appellants first challenge the denial of their motion for judgment of acquittal of felony murder, assault with intent to rob, and attempted robbery. Specifically, they assert that the evidence adduced at trial was insufficient to prove their intent to rob Feldpusch and Kendall. In evaluating a claim of insufficient evidence, an appellate court must view the evidence in the light most favorable to the government, recognizing that it is the province of the jury to determine credibility and weigh the evidence. McClain v. United States, 460 A.2d 562, 567 (D.C. 1983). It is also the prerogative of the jury to draw justifiable inferences from the evidence, and in our review, we must give the government the benefit of all reasonable inferences. Id.; Blackledge v. United States, 447 A.2d 46, 49 (D.C. 1982).

Intent being a state of mind, unless admitted by the defendant, it must be shown by circumstantial evidence "because there is no way of fathoming and scrutinizing the human mind." Criminal Jury Instructions for the District of Columbia, No. 3.02 (3d ed. 1978); see also Shelton v. United States, 505 A.2d 767, 770 (D.C. 1986); Bethea v. United States, 365 A.2d 64, 87 (D.C. 1976) (existence of intent determined only by inference). As Blackstone stated, "[N]o temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions . . .:" 1 C TORCIA, WHARTON'S CRIMINAL LAW § 25, at n. 1 115-16 (14th ed. 1978) (quoting 4 W. BLACKSTONE, COMMENTARIES * 121). These outward actions must be such that reasonable people, based on their common experience, could be led to conclude beyond a reasonable doubt that appellant intended to commit the crime with which he was charged. Shelton v. United States, supra, 505 A.2d at 770.

We have previously explained that intent to rob may be inferred not only from "the words uttered by the suspect but also from his conduct or from the `totality of the evidence.'" Owens v. United States, 497 A.2d 1086, 1090 (D.C. 1985) (citation omitted). A brief review of cases in which we have held that the requisite intent could be inferred from the evidence on record is helpful to our analysis here. In Owens, supra, the victim was confronted at night in an alley by three men, two of whom were carrying pistols. One said to him "This is it." He asked "Like what? What is it?" After receiving the response "Like you know what it is," the victim attempted to escape and was shot. The assailants then fled. Those facts were sufficient foundation for the inference of intent to rob.

We also held it reasonable for the jury to infer intent to rob in Singleton v. United States, 488 A.2d 1365 (D.C. 1985). There, the victim testified that he was assaulted as he walked to his car after work. His antagonist repeatedly said "I gotcha, I gotcha" as he grabbed him from behind, and pulled his coat down over his arms. Id. at 1367. While his arms were thus pinned behind him, his assailant tried to reach into his back pocket. The contest continued for several minutes, the assailant punching, shaking, and hitting the victim while trying to gain access to the back pocket. The struggle ended only when the attacker was pulled away by two co-workers of the victim.

In Dowtin v. United States, 330 A.2d 749 (D.C. 1975), two robbers entered an office "brandishing a revolver at the four employees there, and announcing: "This is it, a stick-up. Everybody lie down on the floor.'" Id. at 750. One victim was wearing a wristwatch, and carried an empty wallet. Although he was searched twice, his wallet was not opened, and nothing was taken from him. The robbers left with cash taken at gunpoint from two clerks in an adjacent office. Dowtin, on appeal, challenged only the conviction involving the victim from whom nothing was taken, the appellant contending that the victim had been searched only to determine if he was armed. This court held that from the words of the robbers, and the two searches a jury could reasonably infer that if the holdup men found what they were looking for, they would have appropriated it. Whether it was a weapon or money is immaterial. The totality of the evidence indicates an intent at the time of the assault "to steal and take valuable goods and property from the person and from the immediate actual possession" of the victim.

Id. (citation omitted).

Similarly, in Accardo v. United States, 102 U.S.App.D.C. 4, 249 F.2d 519 (1957), the United States Court of Appeals for the District of Columbia Circuit refused to set aside a conviction for attempted robbery where a man had approached a gas station locked for the night, aimed a gun at the proprietor through a window, and demanded "Now, you go over and unlock that door. I'm coming in." Id. at 5, 249 F.2d at 520 (Bazelon, J., dissenting). The proprietor refused to comply with the gunman's order, instead locking himself in the washroom, and calling for aid through the window of that room.

Unlike cases in which we have determined that the required intent was inferable, here there were no words spoken by Jones and Ward that indicate such intent, no search of the van or its occupants, no actual attempt to remove anything from the scene of the encounter. In this case, both the first contact between assailants and victims and the first violence between assailants and victims were initiated by the victims. Simply stated, although the facts here strongly suggest the desire to complete an illegal sale of drugs,³ they are not sufficient for the jury to find beyond a reasonable doubt that Jones and Ward intended robbery. This lack of evidence compels us to reverse, and so we vacate the judgments and sentences for the convictions of felony murder while armed, assault with intent to commit robbery while armed, and attempted robbery while armed.

III

Appellants also argue that their convictions of the armed offenses, D.C.Code § 22-3202, merge with their convictions of possession of a dangerous...