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McKinnon v. U.S.

July 7, 1994

GERALD MCKINNON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)

Before Ferren and Schwelb, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Belson

BELSON, Senior Judge: At the Conclusion of a two-day trial, a jury convicted appellant, Gerald McKinnon, of first-degree burglary while armed, *fn1 assault with intent to kill while armed, *fn2 mayhem while armed, *fn3 and carrying a dangerous weapon. *fn4 Subsequent to sentencing, appellant filed a timely direct appeal, arguing principally that the evidence was insufficient to sustain the burglary and mayhem convictions. He later made a collateral attack on his convictions as well, filing a motion for new trial pursuant to D.C. Code § 23-110 (1989 Repl.), in which he asserted ineffective assistance of counsel. The trial court denied the § 23-110 motion. *fn5 We consolidated appellant's appeal from denial of the motion with his direct appeal. We find no merit in either appeal, and therefore affirm.

I.

Evidence produced at trial showed that appellant arrived unexpectedly at the apartment of his former girlfriend, complainant Denise Smith, the morning of August 19, 1990. Although Smith was "shocked" to see him, she admitted him to her apartment. Smith's friend, Blanche Farrish, was inside Smith's apartment at the time; but Farrish left shortly after appellant's arrival to locate a telephone in order to make some calls. After appellant and Smith had conversed for a short while, Smith stated that she was going to leave to meet Farrish outside. Appellant and Smith then left the apartment together.

Upon exiting the apartment building, appellant stated that he had left his cigarettes inside Smith's apartment. Refusing her offer to buy him a new pack, he insisted that she return to her apartment to retrieve them. He then followed her as she ascended the stairs to her apartment, entered the apartment with her, and immediately locked the door behind them.

Appellant then attempted to initiate a conversation about the couple's relationship. Smith was unreceptive. After a period of argument, the length of which was not clearly established at trial, appellant stated that neither of them had anything to live for. He drew out a ten to twelve inch butcher knife that he had concealed in his clothing and began to cut and stab Smith.

Farrish, who was standing outside the apartment building, heard Smith scream. Farrish attempted to gain entry to Smith's apartment but, because appellant had locked the door, could not. While the attack continued, Smith made her way to a window of her third-floor apartment and jumped out. This attempt to evade appellant was at first unsuccessful, as he jumped out after her, knife in hand.

A neighbor who heard the argument called the police and, while doing so, saw Smith and appellant land on the ground beneath her window and saw appellant's bloody knife. She shouted at appellant. At that point appellant abandoned the attack, wiped off the knife, and departed on foot.

In his defense, appellant presented two alibi witnesses who testified that he was elsewhere on the morning of the assault. The jury convicted appellant of the four offenses listed above.

II.

On direct appeal appellant asserts: (1) the evidence was insufficient to establish the "intent" element necessary to sustain the burglary conviction; (2) the evidence was insufficient to establish the "permanent injury" element necessary to sustain the mayhem conviction; (3) the court committed plain error in failing to give a unanimity instruction; and (4) the jury possibly convicted him on an improper theory (a variation of the unanimity argument, as the allegedly improper prosecution theory is essentially that the first entry constituted a burglary). Only the first two of these four arguments warrant extended Discussion here. *fn6

The Burglary Conviction

Appellant argues that the trial court committed reversible error when it denied his motion for judgment of acquittal on the basis of insufficiency of the evidence of the "intent" element of the burglary charge. The elements of burglary in the first degree are: (1) the entering of a dwelling, or room of another used as a sleeping apartment, while it is occupied by any person; (2) with intent to commit a criminal offense. See D.C. Code ยง 22-1801 (a) (1989 Repl.); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.34 (4th ed. 1993). Appellant contends that on the basis of the evidence presented ...


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