Sutton v. U.S.

• Decision Date: 04 February 2010
• Docket Number: No. 06-CF-852.,06-CF-852.
• Citation: 988 A.2d 478
• Parties: Dewand SUTTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

988 A.2d 478

Dewand SUTTON, Appellant, v. UNITED STATES, Appellee.

No. 06-CF-852.

District of Columbia Court of Appeals.

Argued December 1, 2009.

Decided February 4, 2010.

Judith A. Lovelace, appointed by the court, for appellant.

Sarah Chasson, Assistant United States Attorney, with whom Roy W. McLeese III, Chrisellen Kolb, and Matthew Cohen, Assistant United States Attorneys, were on the brief, for appellee.

Before REID and OBERLY, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

Dewand Sutton appeals his convictions for carjacking while armed,¹ receiving stolen property (RSP),² and unauthorized use of a vehicle (UUV).³ He argues that the evidence of armed carjacking was insufficient for conviction; that also as to armed carjacking, the jury instruction on aiding and abetting was reversible error; and that the RSP and UUV convictions merge. We reject the sufficiency claim, find no plain error in the aiding and abetting instruction, and conclude that the RSP and UUV convictions do not merge. Accordingly, we affirm.

I. Proceedings and Evidence

At Sutton's jury trial, the government put on the following evidence: On November 16, 2003, Lamont Wright, Rodney Smith, and appellant Sutton got out of a parked car to accost Dwayne Cox as he walked away from his parked Mitsubishi Spyder. By the time the trio confronted Cox, he had walked about three car lengths from the Spyder toward the home of an acquaintance, where he was going to watch a sporting event on television. Cox was told to lie on the ground, where Sutton held him at gunpoint as the assailants robbed him of his car keys, a telephone, and approximately $18 in cash. The men told Cox not to move or he would be shot. At that point, in the words of Sutton's brief,

two of the men [Sutton and Smith] got back into their own car, started it up and began to drive off; Mr. Cox got up from the ground and jumped over the fence behind the friend's house; then the [Sutton and Smith] car stopped, and the two men in the car said they were going to start shooting at him; then, at the same time, [Cox] heard his own car start up and pull off [driven by Wright].

According to the government's evidence, two days later, on November 18, at the instance of Sutton, he and Smith robbed Fred Cooper and Kirk Little of cash and other pocket items at gunpoint. Then Smith drove away in Cooper's Chevrolet Caprice, and Sutton drove off in Little's Ford Taurus. On November 20, police apprehended Smith in Cox's Spyder and found a loaded, cocked pistol under a car seat. Later that day, in the same vicinity, the police saw Wright driving the Taurus. That evening, the police saw the Taurus again, this time driven by Sutton, who led them on a high-speed chase that ended in a crash from which Sutton fled, discarding the telephone stolen four days earlier from Cox. Sutton was apprehended, and his fingerprints were found on the door of the Taurus, as well as on a compact disc from the Spyder.

The jury found Sutton guilty on one count each of armed carjacking, armed robbery, PFCV, RSP, UUV, destroying property, and possession with intent to distribute cocaine. The carjacking conviction was attributable to the incident involving Cox and his Spyder, whereas the RSP and UUV convictions arose out of the theft two days later of the Taurus. For the convictions at issue here, Sutton was sentenced to fifteen years in prison for armed carjacking and, consecutively to the carjacking, concurrent sentences of twenty months of incarceration for RSP and thirty-two months for UUV. This appeal followed.

II. Sufficiency of the Evidence

A. Alleged Waiver of the Sufficiency Challenge

We consider, first, sufficiency of the evidence for armed carjacking. Before addressing the merits, however, there is a threshold issue raised by the government. Although the defense moved for a judgment of acquittal (which was denied) at the end of the government's case, that motion was not renewed after the defense had presented three witnesses.⁴ Therefore, contends the government, Sutton has waived any challenge to evidentiary sufficiency. We cannot agree.

"[A]lthough the failure to renew a motion for acquittal at the close of the entire case would waive review of that motion, it `[w]ould not foreclose review of the sufficiency of the evidence. It simply requires that the scope of review be expanded to include all of the evidence.'" Wheeler v. United States, 494 A.2d 170, 171-72 (D.C. 1985) (emphasis in original) (quoting Washington v. United States, 475 A.2d 1127, 1129 (D.C.1984)).⁵ Accordingly, although Sutton did not renew his motion for judgment of acquittal at the close of all the evidence, his challenge is not waived, and we review all the evidence for its sufficiency on the charge of armed carjacking.

B. Elements of Carjacking While Armed

When an appellant contends that the evidence was insufficient for conviction, we inquire only into whether the government presented "at least some probative evidence" as to each element of the crime, viewing the evidence in the light most favorable to the government and recognizing that it is the fact-finder's province to weigh evidence, assess credibility, and draw reasonable inferences. Downing v. United States, 929 A.2d 848, 857 (D.C. 2007) (internal citations omitted). This court, however, reviews de novo the elements of the crime which the prosecution must prove and against which sufficiency of the evidence is assessed. See, e.g., Wilson-Bey v. United States, 903 A.2d 818, 827 (D.C.2006) (en banc).

Now to the merits. "Carjacking" is committed when a person [1] "knowingly or recklessly" [2] uses "force or violence" to [3] "take from another person immediate actual possession of [4] a person's motor vehicle," or when someone "attempts to do so." D.C.Code § 22-2803(a)(1).⁶ If convicted of carjacking "while armed," moreover, the defendant shall be imprisoned for a "mandatory-minimum term of not less than 15 years" (with a maximum of forty years). Id. §§ 22-2803(b)(1) & (2); see Allen v. United States, 697 A.2d 1, 2 (D.C.1997) (specifying elements of carjacking). Sutton only challenges sufficiency of the evidence to support the second and third elements of carjacking, and he does not question sufficiency of the evidence that he was armed.

In describing the "Background and Need" for the carjacking statute at the time of enactment, the Council of the District of Columbia Committee on the Judiciary emphasized the "especially traumatic experience" of the victim, whose "zone of privacy" is invaded "in a way that perhaps is similar only to burglary" and whose "mobility" and "means of earning a living" are taken from him.⁷ Thus, the Council likened a carjacking to intrusion into the home, perceived as more serious—more invasive of one's private, protected environment—than, say, a robbery on the street. In fact, by imposing a fifteen-year mandatory minimum sentence for an armed carjacking, the Council put the offense at issue here at a noticeably more serious level of concern than that reflected in the statutes imposing five-year mandatory minimums for first-degree burglary and first-time armed robbery.⁸ With such a severe difference at stake in the respective minimum sentences for armed robbery and armed carjacking, the concepts of "force or violence" and "immediate actual possession," as applied in a carjacking prosecution, must be addressed with considerable care.

C. "Force or Violence"

Sutton contends that although the keys to Cox's car were taken by force and violence, the car itself was not. Although he does not challenge the court's jury instruction,⁹ Sutton argues that the armed robbery of Cox's person (including the taking of his keys) and the theft of the car were discrete events, such that the use of force to accomplish the first cannot, as a matter of law, figure in analysis of the second. In support, he observes that Cox began to flee after ceding his keys but before his car was driven away.

We cannot agree with Sutton's argument on the facts. Although Cox managed to run from his captors, he was still within their purview, under immediate threat of death,¹⁰ at the time the car was taken. This is demonstrable from the sequence of events presented in Sutton's own brief on appeal, as quoted above in Part I. After the keys were taken from Cox and as Sutton and Smith began to drive off in their own car, "Cox got up from the ground and jumped over the fence behind the friend's house," at which point Sutton and Smith stopped their car and "said they were going to start shooting at him"—a statement from Sutton's own brief implying that Cox's assailants were in a position to do so. "[A]t the same time," according to Sutton's brief, and supported by the trial transcript, Cox "heard his own car start up and pull off." (Emphasis added.) This recitation effectively concedes that the violence against Cox continued until the moment his car was stolen.

D. "Immediate Actual Possession"

Given the requisite force or violence, therefore, Sutton's "sufficiency" contention turns on the third statutory element: whether Dwayne Cox's car was in his "immediate actual possession" at the time it was taken. The jury was instructed verbatim —without objection—from standard instruction 4.51:¹¹ "A motor vehicle is in the immediate actual possession of the complainant if it is located close enough that one could reasonably expect the complainant to exercise physical control over it." We deemed the jury "properly instructed" with that instruction in Winstead v. United States, 809 A.2d 607, 610 n. 4 (D.C.2002), where we affirmed a conviction for carjacking by a defendant who had assaulted the victim, initially, in the security-guard booth where she was working, and then appropriated her car "only a few feet away" from the booth. Id. at 611. That was "near enough," we said, for the car "to be in [the victim's] `immediate actual possession' then and there." Id. Winstead, therefore,...