Before Schwelb and Reid, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
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Appeal from the Superior Court of the District of Columbia (Hon. Michael L. Rankin, Trial Judge)
After a jury trial, appellant Troy Nixon was convicted of four counts of assault with intent to kill DeMetrius Spencer, Aman Ball, *fn1 Joseph Jones and Robert Taylor while armed, in violation of D.C. Code §§ 22-501, -3202 (1996); three counts of aggravated assault of Mr. Spencer, Mr. Ball and Mr. Jones while armed, in violation of §§ 22-504.1, -3202; one count of mayhem (of Mr. Spencer) while armed, in violation of §§ 22-506, -3202; three counts of possession of a firearm during a crime of violence (assault with intent to kill while armed, aggravated assault while armed, and mayhem while armed), in violation of §§ 22-3204 (b); one count of carrying a pistol without a license, in violation of § 22-3204 (a); one count of possession of an unregistered firearm, in violation of § 6-2311 (a); and one count of possession of unregistered ammunition, in violation of § 6- 2361 (3). *fn2 He raises six arguments on appeal in an effort to obtain a new trial or to vacate certain of his convictions: (1) the trial court erred in failing to grant his motion for judgment of acquittal as to the charges of assault with intent to kill while armed and aggravated assault while armed; (2) certain of his assault and weapons charges merge; (3) the trial court erred in failing to limit the government's cross-examination of the central defense witness; (4) the trial court failed to keep its commitment to voir dire him on his decision not to testify; (5) the trial court erred in not conducting an inquiry into his request for a missing witness instruction; and (6) the trial court's Winters *fn3 instructions to the jury during its deliberations effectively coerced the verdict against him. We discuss the first two arguments in some detail. With respect to the first argument, we reverse Nixon's convictions for aggravated assault of Mr. Jones and Mr. Ball while armed because the government failed to prove that they suffered "serious bodily injury" within the meaning of §§ 22- 504.1, -3202. As to the second argument regarding merger of certain of Nixon's convictions, we remand the case to the trial court, with instructions to vacate either Nixon's conviction for mayhem of Mr. Spencer while armed or aggravated assault of Mr. Spencer while armed and to merge his possession of a firearm during crime of violence convictions into one PFCV conviction. We discuss the third through sixth arguments summarily and find no error as to them. Accordingly, we affirm the trial court's judgment in part, and reverse it in part and remand it for further proceedings consistent with this opinion.
The government's evidence showed that on October 8, 1996, a car owned by Robert Taylor was driven to 16th and U Streets, S.E., near Tony's market, by DeMetrius Spencer. Inside the car were four young men, Mr. Spencer, Mr. Taylor, Aman Ball and Joseph Jones. According to the testimony of Mr. Taylor, before the young men were able to get out of the car, the "car was shot up." Later, Mr. Taylor noticed that there were "bullet holes all around [his] car."
Mr. Taylor was asked during his testimony: "[D]id you see anybody in this courtroom who you saw that night?" He responded: "I wasn't really sure that I saw him. I'm not going to say something that I don't know." However, when confronted with his January 27, 1997 grand jury testimony, Mr. Taylor acknowledged that he was asked: "[D]o you recall telling the ladies and gentlemen of the grand jury that it was Troy Nixon who shot at you on October of 1996, correct?" Mr. Taylor replied: "Yes, that is correct." He also admitted that he did not "express any hesitancy that it was Troy Nixon." Although the windows of Mr. Taylor's car were tinted, he said: "I tint the windows real light, you know. You could see in and out of the car . . ." At the time of the trial, Mr. Taylor had known Troy Nixon for some ten years. The relationship between the two men was not good. Indeed, Mr. Taylor, Spencer, Jones and Ball "[were] having problems" with Nixon.
When the shooting started, Mr. Taylor "jumped out, rolled out of the car" and headed for an elementary school. As he ran, he saw "two people running behind [him]." Because of his asthma, Mr. Taylor "gassed out and gave up [running]." The men turned out to be Mr. Ball and Mr. Jones. Mr. Taylor noticed that: "[Mr. Jones] had a hole right here. And a hole coming out behind his ear and it was blood coming out." *fn4 Mr. Ball "was grabbing his shoulder and the back of his shirt was bleeding like he got hit in the back of his neck or his shoulder." Mr. Taylor continued to run toward the elementary school and eventually found a police officer. He told the officer that his "car was shot up and [his] friends were hurt." He informed the officer that Mr. Spencer was still in the car and was hurt.
Metropolitan Police Department Officer Vincent Tucci testified that when he arrived at the crime scene, he saw Mr. Spencer, who appeared to be seriously injured. Paramedics were attending him. It was discovered, later, that Mr. Spencer was paralyzed. Officer Calvin Hopkins, who also went to the crime scene, stated that he saw a car with bullet holes in the front windshield, both sides of the rear mirror, the passenger side window, the front driver's door and the rear passenger's door. Bullets were found in the rear of the car; the rear windows were shattered, and shell casings were found on the ground.
Appellant's Challenge To His Assault With Intent To Kill While Armed and Aggravated Assault While Armed Convictions
Nixon contends that the trial court erred in failing to grant his motion for judgment of acquittal on three of the assault with intent to kill while armed ("AWIKWA") charges -- those pertaining to Mr. Taylor, Jones and Ball. He asserts that the government failed to show his specific intent to kill these three individuals. The government argues that the evidence was sufficient to establish specific intent with respect to all of the AWIKWA offenses, and thus, that the trial court did not err in denying Nixon's motion for judgment of acquittal. We agree with the government's position.
"'In reviewing [the denial of a motion for judgment of acquittal based on] the sufficiency of evidence presented at trial we must consider the evidence in the light most favorable to the government to determine if it was sufficient to permit reasonable jurors to find guilt beyond a reasonable doubt.'" Zanders v. United States, 678 A.2d 556, 562 (D.C. 1996) (quoting United States v. Thomas, 987 F.2d 697, 704 (11th Cir. 1993) (quoting Dyson v. United States, 450 A.2d 432, 436 (D.C. 1982) (citation omitted))). "Moreover, 'it is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction.'" Id. (quoting Gayden v. United States, 584 A.2d 578, 580 (D.C. 1990) (citation omitted)).
To prove the AWIKWA charges with respect to Mr. Taylor, Jones and Ball, the government had to show beyond a reasonable doubt that Nixon: (1) made an assault on the three men; and (2) did so with specific intent to kill; (3) while armed. D.C. Code §§ 22-501, -3202. Reasonable jurors could find beyond a reasonable doubt that Nixon made an assault on the three men because he shot at the back, front and sides of Mr. Taylor's car in which the men were seated as the firing began. To prove a specific intent to kill, the government is not required to show that the accused actually wounded the victim. Bedney v. United States, 471 A.2d 1022, 1024 (D.C. 1984) ("[A] lethal intent can be demonstrated without showing that the assailant succeeded in wounding his intended victim.") (citations omitted). Nor must testimony be presented by the victim at trial since specific intent may be shown through circumstantial evidence. See Jones v. United States, 516 A.2d 929, 931 (D.C. 1986), cert. denied, 481 U.S. 1054 (1987).
In this case, Nixon and the men who occupied Mr. Taylor's car, were having problems. Although the windows of Mr. Taylor's car were tinted, the tint was light and Nixon could look into the car and see its occupants. Moreover, when Nixon started to fire at Mr. Taylor's car, he placed all of its occupants in "a zone of harm." In Ruffin v. United States, 642 A.2d 1288 (D.C. 1994), we recognized that:
"[w]here the means employed to commit the crime against a primary victim created a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone." Ruffin, supra, 642 A.2d at 1298 (citation omitted).
In short, sufficient evidence was presented by the government at trial to satisfy the element of specific intent to kill Mr. Taylor, Jones and Ball beyond a reasonable doubt. Consequently, we affirm Nixon's ...