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12/06/93 COREY A. SIMMS v. UNITED STATES

December 6, 1993

COREY A. SIMMS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge)

Before Rogers, Chief Judge, Terry and Sullivan, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant, Corey A. Simms, appeals his conviction by a jury of kidnapping while armed, unauthorized use of a vehicle, destruction of property, armed robbery and assault with a deadly weapon, D.C. Code §§ 22-2101, -3202; § 22-3815; § 22-403; §§ 22-2901, -3202; § 22-502. Because we conclude that appellant's conviction of assault with a dangerous weapon merges with his conviction of armed robbery, we reverse so much of the judgment as pertains to the assault with a dangerous weapon conviction; otherwise we affirm.

I.

The evidence at trial showed that while visiting a customer in Silver Spring, Maryland as a salesperson for Snap-on Tools, Robert Lee parked his tool van near a Merchant's Tire store and went into the store to meet with his customers. When he returned to the van to retrieve some tools, he observed two males standing at the rear of the van. One of the men looked straight at Lee; the other man kept his head to the side. Mr. Lee unlocked the van, entered, and was beginning to close the door when the two men attempted to gain entry into the van. One man pointed a handgun at Lee while trying to force the van door open, and eventually held the gun to Mr. Lee's head and told him to get on his knees and give them the money. Mr. Lee gave the men $300, after which they handcuffed him, pushed him onto the floor, handcuffed his ankles, and put a jacket over his head. The men asked Mr. Lee how to turn off the flashers and start the van and told Mr. Lee that they would "do " if he didn't tell them.

One man drove the van toward the District of Columbia while the other knelt on Mr. Lee's back, holding a gun to his head. Within the first hour of the ride, Mr. Lee felt the van hit something, but the van did not stop. It was subsequently determined that the van had hit a Murray's Steak truck in the 5200 block of Georgia Avenue in the District of Columbia. Later, the men parked the van and searched the toolbox drawers at the front of the van, and upon finding $1,000 cash they told Mr. Lee to tell them where more money was or they would "do ass." Mr. Lee then told them that there was $20,000 hidden in the toolbox in the back compartment of the van, and the men took that cash as well. The men also discovered Mr. Lee's pistol and "came back, real angry with [Mr. Lee], and said they were going to do with own gun.

The men stopped the van again for ten to twenty minutes, at which time at least one of them left and re-entered the van. Mr. Lee heard the men discuss their plans for him, and Mr. Lee thought that one of them wanted to kill him while the other man was more hesitant about it. Mr. Lee heard some talk about a dumpster and a river, and he believed the men were going to dispose of his body in one of those two places. When Mr. Lee repeatedly pleaded with the men to spare him, one of the men hit Mr. Lee on the face with something hard.

Upon their final stop, the two men removed tools from the van for a fifteen to twenty minute period. Thereafter, because the engine was still running and the handbrake was not set, the van rolled backwards and crashed into a building. A Metropolitan Police Department officer entered the van and released Mr. Lee from the handcuffs.

As a result of an ensuing investigation, appellant was arrested. At two lineups nearly two months after his abduction, Mr. Lee identified someone other than appellant as his assailant. However, Detective Patrick McNerney of the Montgomery County (Md.) Police interviewed Lawrence Krupnak, *fn1 a Silver Spring, Maryland resident who had seen two men park a red sports car near his house and walk towards the Merchant's Tire store on the day of the crime. At a lineup, Mr. Krupnak identified appellant as one of the two men he had seen that day in Silver Spring. Appellant's fingerprints were found inside the red sports car and Mr. Lee's van.

Upon his arrest, appellant confessed, giving a detailed account of the events and signing a typed statement. At trial, appellant denied involvement in the armed robbery and kidnapping of Mr. Lee, and implicated Stephen Wilson as the sole perpetrator of the crimes. Appellant explained that his familiarity with the details of the crimes was due to the fact that Wilson had told him and several others about the crimes that Wilson had committed. Appellant admitted, however, that he had assisted Wilson in removing items from the van and had seen Mr. Lee handcuffed on the van floor. The jury found appellant guilty on all charges except two firearm charges under D.C. Code § 22-3204 (a) and (b).

II.

Appellant contends that the trial Judge erred in failing, sua sponte, to give special instructions to the jury that it was required to agree unanimously whether (1) appellant's conviction of armed robbery was based on the robbery of the van or the money and tools contained therein; (2) appellant's conviction for assault with a dangerous weapon was predicated on appellant's holding a gun to Mr. Lee's head or striking Lee in the face with something hard; and (3) appellant was guilty as an aider and abettor (based on appellant's testimony) or as a principal. We find no error, much less plain error. See Green v. United States, 544 A.2d 714, 715 (D.C. 1988); see also Shivers v. United States, 533 A.2d 258, 263 (D.C. 1987) (no "miscarriage of Justice" occurred below due to lack of sua sponte instruction).

The requirement for a special unanimity instruction arises when the court cannot deduce from the record whether the jury must have agreed upon one particular set of facts. See Horton v. United States, 541 A.2d 604, 611 (D.C. 1988). Generally, for the unanimity requirement to apply, there must be evidence tending to show either legally or factually separate incidents. Scarborough v. United States, 522 A.2d 869, 873 (D.C. 1987) (en banc); see also Schad v. Arizona, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991) (plurality opinion). Incidents have been held to be legally separate when "the appellant presents different defenses to separate sets of facts, or when the court's instructions are ambiguous, but tend to shift the legal theory from a single incident to two separate incidents." Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988) (citations omitted). Incidents have been held to be factually separate when independent criminal acts have occurred at different times, or when a subsequent criminal act is motivated by "a fresh impulse." Id.

There is no merit to appellant's contention that a special unanimity instruction was necessary to ensure unanimity by the jury on whether appellant was guilty of armed robbery of the van or of the tools and money inside the van. These are not legally or factually separate incidents. See id. at 1258 (single unbroken chain of events). Appellant was charged with one count of armed robbery for robbing Mr. Lee of his property, which included both the van and its contents. The robbery of the van and the goods therein were not "detached incidents but a continuing course of . . . conduct." Shivers v. United States, supra, 533 A.2d at 262 (quoting Glymph v. United States, 490 A.2d 1157, 1160 (D.C. 1985)). Nor did appellant raise separate defenses for the van and for ...


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