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October 8, 1998



Before Farrell and Ruiz, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Ruiz, Associate Judge:

[718 A2d Page 1085]

After a three-day trial, a jury found appellant, Troy P. James, guilty of four counts of assault with a dangerous weapon ("ADW"), in violation of D.C.Code § 22-502 (1996); one count of possession of a firearm during a crime of violence, in violation of D.C.Code § 22-3204(b) (1996); and one count of destruction of property, in violation of D.C.Code § 22-403 (1996). The trial court sentenced James to concurrent sentences of not less than forty months and not more than ten years' incarceration for each of the ADW convictions, not less than five and not more than fifteen years' incarceration for the possession of a firearm during a crime of violence conviction, and imposed a fine of $300 for the destruction of property conviction. In his direct appeal (No. 94-CF-1555), James argues that 1) three of his ADW convictions should be vacated because they merge as a matter of law; and 2) the trial court erred when it denied his motion for judgment of acquittal because the evidence at trial was insufficient to support a guilty verdict. In his collateral appeal (No. 96-CO-1792), James contends that the trial court erred in denying, without a hearing, his § 23-110 *fn1 motion alleging ineffective assistance of counsel. With respect to the merger issue, we hold that two of James' four ADW convictions merge as a matter of law, and reverse and remand to the trial court for vacation of two of the ADW convictions. As to the remaining points of alleged error, we affirm.

The Facts

Evidence presented at trial showed that on February 3, 1994, at approximately 6:30 p.m., James phoned the complaining witness, Ms. Shannon Whitmire, an ex-girlfriend and the mother of his seven-month-old child, Stefone, to ask her why she had not called to invite him over to spend the night. She replied that she had made plans to take a friend out for her birthday. In addition, she declined his offer to baby-sit Stefone, stating that she "had already made arrangements for the kids to be kept." Throughout the conversation, James insisted that she not go out. *fn2

Later that evening, at around 8:30 p.m., Whitmire heard someone calling her name from outside her apartment and "little tapping noises" caused by rocks being thrown at her window which she recognized as James' customary signal to her that he was waiting outside. She immediately called the police. Shortly thereafter, Whitmire heard "banging" [718 A2d Page 1086]

and "kicking" noises at the back porch door. She again called the police. During both calls she identified James as the man outside her apartment causing the disturbance.

Whitmire called the police yet again when the rock throwing resumed. Upon completing her call, Whitmire received a call from James at a number she recognized as belonging to a pay-phone down the street. James threatened to "come in front of [Whitmire's] house and drink bleach" if she went out. When Whitmire informed him that the police were on their way, James said that he did not care and that he would sit there until they arrived.

The rock throwing then resumed with greater intensity, breaking one of the windows in the living room. In response, Whitmire again called the police — her fourth call. She then looked out the window and saw James standing alone on the sidewalk by the gate of her building. At that point another rock came through the window. Fearing for the safety of her three children, four-year-old Shannika, two-year-old Shante, and seven-month-old Stefone, she moved them into the bedroom. From there, Whitmire heard James banging at the back door, calling out to her and demanding to be let in. After the door banging stopped, Whitmire heard James run down the steps. According to Whitmire, "within a matter of seconds" gunshots were fired, sending two bullets through the bedroom window right above her children's heads. *fn3 The police arrived shortly thereafter.

I. Appeal No. 94-CF-1555

James argues that his four ADW convictions should merge as a matter of law. The indictment charged four separate counts of ADW, one count for each of the four individuals in the apartment. At the conclusion of the case, James argued that the counts should be dismissed as to the children because there had been no evidence that James knew the children were in Whitmire's apartment. Although the trial judge was "troubled" by a lack of evidence of a "specific intent to cause any injury to any of the children," he concluded that "behavior that is in conscious disregard to the life and safety" of other people might suffice to cover all four counts. The trial court noted that ADW is a general intent crime, which would be supported by the evidence that appellant "was aware that . . . other children were in the home." *fn4

James argues that three of the four ADW convictions must be vacated as a matter of law because even concurrent sentences are prohibited for merging offenses. See Doepel v. United States, 434 A.2d 449, 459 (D.C.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981). The government counters that this court should affirm two of the ADW convictions because James placed at least two victims at risk of serious injury by firing two bullets. The government relies on Ruffin v. United States, 642 A.2d 1288, 1295-96 (D.C. 1994), for the proposition that where a defendant fires multiple shots at a group of persons, with the general intent to assault those persons, multiple convictions, equal to the number of shots putting persons at risk, are appropriate.

Our review of merger issues is "limited to assuring that the sentencing court does not exceed its legislative mandate by imposing multiple punishments for the same offense." Ball v. ...

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