Appeal from the Superior Court of the District of Columbia; (Hon. Robert S. Tignor, Trial Judge)
Before Wagner and King, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: King
KING, Associate Judge: Appellant was charged in a six-count indictment with: 1) armed first-degree burglary, D.C. Code §§ 22-1801(a), -3202 (1989 Repl.); 2) assault with a dangerous weapon ("ADW"), D.C. Code § 22-502 (1989 Repl.); 3) possession of a firearm while committing a crime of violence ("PFCV"), D.C. Code § 22-3204(a)(1989 Repl.); 4) carrying a pistol without a license ("CPWL"), D.C. Code § 22-3204(a)(1989 Repl.); 5) possession of an unregistered firearm, D.C. Code § 6-2311(a)(1981 ed.); and 6) unlawful possession of ammunition, D.C. Code § 6-2361(3)(1981 ed.). He was convicted of first-degree burglary (a lesser included offense of the first count), ADW, PFCV, CPWL, possession of an unregistered firearm, and unlawful possession of ammunition. In this appeal he only challenges the conviction for PFCV. Appellant claims that the trial Judge improperly amended that count of the indictment. Finding no error, we affirm.
On December 18, 1990, Timothy Barksdale was awakened in his second-floor apartment by appellant (his neighbor) pounding on his door and calling his name. When Barksdale opened the door, appellant rushed into the apartment, grabbed Barksdale's neck and pushed him. Appellant then forced Barksdale into the hallway, where the two men continued to struggle with each other. During that struggle, appellant pulled a handgun from his sock and threatened Barksdale. Barksdale then ran back into his apartment and locked the door.
Later, appellant returned to Barksdale's apartment, again threatened to kill him, and kicked in the apartment door. When Barksdale heard appellant walking around inside his apartment, he jumped from a window and ran to call the police from a corner telephone. No evidence was presented that appellant had the pistol in his possession during this entry.
When the police arrived, they placed appellant under arrest and advised him of his rights. Appellant informed the police of the location of the pistol, which was recovered behind a radiator in a public hallway of the apartment building where appellant had hidden it.
At the close of the government's case, the trial court granted appellant's motion for judgment of acquittal with respect to the "while armed" element of the first count, leaving the lesser included offense of first-degree burglary for consideration. The trial Judge so ruled because, on the government's theory of the case, the armed first-degree burglary charge applied only to appellant's second entry into the Barksdale apartment. For that entry, the Judge found that there was insufficient evidence to show that appellant was armed.
Appellant also challenged count three of the indictment. That count charged:
on or about December 18, 1990, within the District of Columbia, Walter Farmer did possess a firearm, that is, a pistol, or imitation thereof, while committing the crimes of first degree burglary while armed and assault with a dangerous weapon, as set forth in the first and second counts of this indictment. (Possession of a Firearm During a Crime of Violence or Dangerous Offense, in violation of 22 D.C. Code, Section 3204(b)).
In moving for dismissal of that count, appellant argued that because the grand jury charged, in the conjunctive, that appellant possessed a firearm while committing both add first-degree burglary and assault with a dangerous weapon, the count could not stand since the government failed to prove the armed element of first-degree burglary.
The trial Judge denied the motion, noting that charging in the conjunctive is necessary to avoid claims of vagueness. The trial Judge concluded that the government was not required to prove that appellant possessed a firearm during the commission of both offenses set forth in the indictment in order for that count to survive. In short, Judge Tignor ruled that if the jury unanimously found, beyond a reasonable doubt, that appellant possessed the firearm during the commission of either one of the underlying offenses, i.e., the first-degree burglary or the assault with a dangerous weapon, such finding would be sufficient for a conviction of the PFCV charge.
Later, the trial Judge, sua sponte, informed counsel that he had reconsidered his previous ruling and had concluded that the motion for judgment of acquittal, with respect to the portion of the PFCV charge alleging commission of first degree burglary, should be granted. The trial Judge reasoned that if the evidence was insufficient to prove the armed element of first degree burglary in the first count of the indictment, it was necessarily insufficient to prove that appellant possessed the same firearm while committing the same burglary as alleged in the third count charging PFCV. Appellant did not object to the court's ruling. During final instructions, in accordance with his previously announced intentions, the trial Judge informed the jury that in order to find appellant guilty of possessing a firearm during a crime of violence, it must find that appellant possessed a firearm while committing the offense of assault with a dangerous weapon. Thereafter, the jury convicted appellant of that offense.
On appeal, appellant contends that the PFCV count of the indictment was improperly amended by the trial Judge. *fn1 He argues that since the indictment charged the two predicate offenses in the conjunctive, and the government failed to prove one of them, i.e., that appellant possessed a firearm while committing the crime of first-degree burglary, then the third count in its entirety should have been dismissed. We do not agree.
Appellant maintains that this issue is controlled by Whalen v. United States, 379 A.2d 1152 (D.C. 1977), rev'd on other grounds, 445 U.S. 684, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980). In Whalen, this court was presented with an analogous situation involving the offense of burglary. Whalen had been charged in a single count with entering the premises in question with the intent to both steal and commit an assault. Id. at 1156. At trial, the Judge permitted the government to strike the "intent to steal" language from the indictment after the government, in its case-in-chief, failed to produce evidence ...