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01/22/91 SAMUEL J. JOINER v. UNITED STATES

January 22, 1991

SAMUEL J. JOINER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge

Belson, Schwelb and Wagner, Associate Judges.

The opinion of the court was delivered by: Belson

Appellant Samuel Joiner challenges his convictions on seven counts of assault with a dangerous weapon in violation of D.C. Code § 22-502 (1989) and two counts of threatening to injure the person of another in violation of D.C. Code § 22-2307 (1989). On appeal, he contends (1) the seven assault convictions merge and constitute one offense, (2) the evidence is insufficient to sustain his conviction for threatening to injure Luis Lopez, and (3) his act of threatening two individuals constitutes only one offense. We remand to the trial court for the dismissal of six of appellant's convictions for assault with a dangerous weapon, but affirm the conviction of both counts of making threats. Because the trial court failed to impose legal sentences for the violations of the felony threats statute, D.C. Code § 22-2307, we remand for resentencing on those counts.

I.

At approximately 9:30 p.m. on January 20, 1987, Gustavo Landaverde, Luis Lopez and Rafael Diaz, employed by the Suchiko Restaurant at 2309 Wisconsin Ave., N.W., went out the back door of the restaurant to investigate the sound of breaking glass in the parking lot. After seeing a man later identified as Timothy Entsminger breaking out the windows of parked cars with a wooden board, Diaz attempted to question Entsminger. Entsminger threw the board at Lopez' feet and began to run as Diaz and Lopez chased him. They captured Entsminger and brought him back to the rear of the restaurant where Daisuke Utagawa, Freddie Romero, Yugi Hashimoto and Kenji Saiki (other Suchiko employees) stood nearby or on the backstairs. Appellant Samuel Joiner then appeared and, as he approached the group of men, told them to let Entsminger go because he had not done anything. Appellant then pulled a gun, fired one shot in the direction of the men, and ran. The police recovered a bullet from a balcony located at 2320 Wisconsin Ave., N.W., across the street from where Joiner fired the shot.

At approximately 11:00 p.m. police apprehended appellant through a description given by some of the victims. Following a show-up identification at the corner of Wisconsin Ave. and W St., N.W., where each of the men identified appellant as the person who fired the shot toward them, the police arrested appellant. Three days later, as Mr. Utagawa and Mr. Lopez drove into the alley near the Suchiko Restaurant, appellant exited a vehicle and approached their truck. He reached inside and pointed to each man, first touching Utagawa's nose and then striking Lopez above the eye, while uttering "I will remember this," "I will get you for this" and "[I don't] forget faces."

II.

Appellant contends, and the government does not contest, that his seven convictions for assault with a dangerous weapon merge and constitute one offense. Specifically, he argues that because he fired a single shot in the direction of the group of seven men, only one assaultive act occurred. We agree.

In Ladner v. United States, 358 U.S. 169, 3 L. Ed. 2d 199, 79 S. Ct. 209 (1958), the Supreme Court, holding that a single assaultive act directed at two federal officers constituted a single offense, did not find any evidence that Congress intended "to create multiple offenses from a single act affecting more than one federal officer." Id. at 178. Similarly, a defendant is guilty of only one offense if he puts in fear different members of a group towards which collectively he directs his action. United States v. Alexander, 152 U.S. App. D.C. 371, 381, 471 F.2d 923, 933 (D.C.), cert. denied, 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494 (1972).

Appellant approached the group of seven men in the alley behind the Suchiko Restaurant and told them to let Entsminger go. Appellant then fired one shot toward the group of men and ran out of the alley. The jury convicted appellant on all seven counts of assault with a dangerous weapon and the trial court sentenced him to two consecutive terms of fifteen to forty-five months, the remaining counts to run concurrently.

It is clear that appellant committed but one criminal act by firing a single shot toward the men. See Horton v. United States, 541 A.2d 604, 612 n.10 (D.C. 1988). Accordingly, six of his convictions merge and all but one of his sentences arising therefrom must be dismissed. *fn1 We emphasize, however, that the trial court did not err in allowing the seven convictions to stand pending appeal because "initially permitting convictions on both counts serves the useful purpose of allowing this court to determine whether there is error concerning one of the counts that does not affect the other." Warrick v. United States, 528 A.2d 438, 443 (D.C. 1987) (quoting Garris v. United States, 491 A.2d 511, 514-15 (D.C. 1985)), appeal after remand, 551 A.2d 1332 (D.C. 1988).

III.

We next address appellant's contention that insufficient evidence existed to prove that he threatened to injure Mr. Lopez in violation of D.C. Code § 22-2307 (1989). Appellant argues that he never communicated the threat to Mr. Lopez because Mr. Lopez could not understand English. Appellant further asserts that even apart from that communication problem, the government failed to prove that the threat was communicated to Mr. Lopez within the District of Columbia. Further, if it is held that appellant did threaten Mr. Lopez, appellant asserts that he directed a single threat to both Mr. Lopez and Mr. Utagawa that constituted one offense. We find all three of these contentions unpersuasive.

For the purpose of addressing the first of these arguments, we will assume that it is true that Mr. Lopez could not understand English. We begin by noting that appellant was indicted ...


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