Warrick v. United States, 85-869.

• Decision Date: 06 July 1987
• Docket Number: No. 85-869.,85-869.
• Parties: Alfred D. WARRICK, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

528 A.2d 438

Alfred D. WARRICK, Appellant, v. UNITED STATES, Appellee.

No. 85-869.

District of Columbia Court of Appeals.

Argued March 19, 1987.

Decided July 6, 1987.

Richard S. Stolker, Rockville, Md., appointed by the court, for appellant.

Susan A. Nellor, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Helen M. Bollwerk, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, FERREN and ROGERS, Associate Judges.

NEWMAN, Associate Judge:

In Garris v. United States, 491 A.2d 511 (D.C. 1985), we "suggested" the appropriate procedure for the trial court to follow where a defendant has been convicted of two offenses, only one of which can be sustained because of double jeopardy considerations. This case points out the problems presented when a trial judge fails to heed those "suggestions".

Warrick was charged with two counts of first-degree burglary while armed for one entry into the home of William Malone. One count alleged that the burglary was committed with intent to steal, the other that it was committed with intent to assault. The jury returned a verdict of guilty on both counts of burglary. These counts cannot both be sustained on appeal. Stewart v. United States, 490 A.2d 619, 626 (D.C. 1985) (convictions for burglary with intent to steal and burglary with intent to commit assault merge since societal interest served by burglary statute was offended only once); Thorne v. United States, 471 A.2d 247, 248 (D.C. 1983) (same; burglary with intent to destroy property and burglary with intent to assault).

In Garris, supra, in order to avoid the trial court's having to guess in such situations, which count, if not both, was free of legal defect, we "suggested" that the trial court delay its election as to which count to vacate until after appeal. We predicted a likely consequence of a failure to heed that "suggestion". That prediction comes true in this case. For here, Warrick challenges the sufficiency of the evidence to sustain his conviction of burglary while armed with intent to assault. We agree with him that the evidence is insufficient and reverse. We reject the government's invitation to consider the validity of the jury verdict of guilty of burglary while armed with intent to steal where no judgment has been entered on that count. We remand to the trial court with instructions to enter judgment on the jury verdict of guilty of first-degree burglary while armed with intent to steal. Warrick may then file a notice of appeal from that judgment.¹

Warrick also challenges a summary adjudication of criminal contempt in the trial court. We reverse this conviction as well.

I

The government's evidence showed that on the morning of February 9, 1985, appellant Alfred Warrick entered the home of William Malone, and subsequently stabbed Malone in the neck with a kitchen knife. According to Malone's testimony, he lived at that time in Southeast Washington, D.C. with his wife, Laura Fowler, his stepson, Lucius Fowler, and Lucius' wife, Marion Fowler. His son, Billy Malone, was visiting for the weekend. At about 5:45 a.m. on the morning in question, he left his home to go to the store. His wife was at work; the other members of the household were still upstairs in their bedrooms. He returned home at about 6:80 a.m., unlocked his front door, and entered the house. While he was in the kitchen, an unknown person approached him from an adjoining hallway, said, "Stick up" and stabbed him in the neck with a kitchen knife.

Malone grabbed the intruder's wrist, and the two struggled into the living room, where he was able to knock the knife from the intruder's hand. He called upstairs to his son, Billy, and his stepson, Lucius Fowler. These two came down along with Lucius' wife, Marion. Lucius joined in the struggle while Billy and Marion watched from the stairway. During the struggle, Lucius picked the knife up off the floor and stabbed the intruder twice. The struggle continued, the three men working their way out the front door onto the outside steps. Malone tried to pull the intruder back into the house, but Lucius shouted to him to let the man go. The latter escaped and fled. Malone gave chase unsuccessfully. Afterward, his son Billy called the police, and he was taken to the hospital where he was treated for his neck wounds. Malone testified that during the struggle, the intruder kept repeating, "Sharon let me in." Malone knew nobody by the name of Sharon.

Lucius Fowler's testimony essentially corroborated that of William Malone as to the events occurring after Malone called for his sons. After the intruder had fled, Fowler disposed of the knife with which he had stabbed the intruder (and with which the intruder had earlier stabbed Malone) by throwing it into a dumpster.² He testified that he did not recognize the kitchen knife as one belonging to the Malone home.

Fowler further testified that after the excitement was over, he noticed that one of the household's T.V.'s was sitting in a carrying bag on the living room floor. When he had gone to bed the night before, the T.V. had been in its usual place on a table in the living room. The carrying bag was one in which Billy Malone had brought his clothes when he came to visit for the weekend. Billy's clothes were now lying on a kitchen counter.

Billy Malone testified that the previous night when he went to bed, his carrying bag containing his clothes was lying on the floor by the front door. In the morning, he came downstairs upon hearing his father's call. His testimony as to the ensuing events corroborated that of Lucius Fowler and his father. Like Fowler, Billy Malone testified that the kitchen knife did not look like the ones in the Malone home.

Detective Langery Tucker, who had come to the Malone home in response to a radio call concerning the stabbing, testified that an inspection revealed no signs of forced entry. However, the front door was of the type that locks automatically upon closing. This particular door was such that if it was not pulled tightly closed or slammed, it would appear closed but would not lock, and could be pushed open from the outside.

Appellant Warrick presented a defense of self-defense. He testified that on February 8, 1985 (the day before the above events took place), he met an attractive woman, known to him only as Sharon. The two struck up a conversation, after which she gave him a ride home. Around midnight that evening, Sharon telephoned him to ask if he wanted to go out. He accepted.

They went to dinner, then to a club, then drove around and talked. By that time it was 4:00 or 5:00 a.m. Sharon bought some cocaine on the street from two prostitutes. She told Warrick she needed to stop at her place to get a pipe and some other things. She drove him to what he thought was her apartment; he followed her inside. She invited him into the kitchen for something to eat, but then said that she had forgotten something, and walked out. Warrick remained in the kitchen, waiting for her.

Warrick had waited about ten minutes when he heard the sound of a key in the door, followed by footsteps. He thought it must be Sharon, but when he looked up there was a man coming around the corner into the kitchen. Without saying anything, the man attacked him. Warrick reached for a knife that was sitting on the kitchen counter, and threatened the man with it in order to ward him off. He did not intend to harm the man, and soon dropped the knife on the floor without having used it. His assailant still refused to release him. The two tussled into the living room. Two young men came down the stairs, one of whom, he later saw, held a knife in his hand. Warrick struggled free of the older man and went to the door. At some point during the scuffle, he was stabbed in the side. He asked several times where Sharon was, but to no avail. He turned and fled.

After returning home and discovering the seriousness of his injuries, Warrick called the police, who in turn called an ambulance which took him to the hospital. He denied having stabbed William Malone or threatening to kill him.

II

We are first called upon to determine whether the evidence was sufficient to support Warrick's conviction for first degree burglary while armed with intent to commit assault. In evaluating a claim of insufficient evidence, we must view the evidence in the light most favorable to the government, mindful of the jury's right to determine credibility, weigh the evidence, and draw justifiable inferences of fact. McClain v. United States, 460 A.2d 562, 567 (D.C. 1983). We will reverse a conviction only if there is no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt. Head v. United States, 451 A.2d 615, 622 (D.C. 1982).

Under our burglary statute, D.C. Code § 22-1801 (1981), the government must prove beyond a reasonable doubt that the defendant entered the premises having already formed an intent to commit a crime therein.³ "`The requisite intent . . . is a state of mind particular to the accused and unless such intent is admitted, it must be shown by circumstantial evidence.'" Shelton v. United States, 505 A.2d 767, 770 (D.C. 1986), quoting Massey v. United States, 320 A.2d 296, 299 (D.C. 1974). Unauthorized presence in another's premises does not alone support an inference of criminal purpose at the time of entry; but when the unauthorized presence is aided by other circumstances, such an inference may be drawn. Shelton, supra, 505 A.2d at 770, citing United States v. Fox, 140 U.S. App.D.C. 129, 131, 433 F.2d 1235, 1237 (1970). We have never attempted to narrowly define the kind of "other circumstances" which might support an inference of criminal intent, preferring to consider in each case whether the circumstances are such as "might lead reasonable people, based upon their common experience, to conclude beyond a reasonable doubt that appellant intended to commit some...