Before Terry, Steadman and Ruiz, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Henry F. Greene, Trial Judge)
Argued September 23, 1999
Before us is an interlocutory pretrial appeal. Appellant Rose Young was acquitted at a prior trial of first-degree child abuse. She now challenges on double jeopardy grounds the government's right to try her on a new count of first-degree child abuse. The government asserts that the new count is based on an act of abuse (scalding the child's foot) distinct from the act of abuse in the prior count (malnutrition). The trial court denied appellant's motion to dismiss the new count. We affirm.
Appellant's 23-month-old son Devonta died on August 20, 1996. Appellant was subsequently indicted and tried on three counts: (1) first degree cruelty to a child in violation of D.C. Code § 22-901(a) based on failure to provide adequate food and nutrition to Devonta from October 1995 to August 20, 1996; (2) second degree cruelty to a child in violation of D.C. Code § 22-901(b) based on daily beatings administered to Devonta from June 1 to August 18, 1996; and (3) second degree murder of Devonta based on his death as the result of a single beating administered on August 18, 19, or 20, 1996.
At the trial in June 1997, in addition to offering evidence of the charged acts, the government introduced evidence of certain uncharged acts of abuse and neglect of Devonta in an attempt to disprove appellant's contention that she had never mistreated her son. One of these uncharged acts was an incident on October 22 or 23, 1995, during which appellant allegedly scalded Devonta's foot in hot water and then failed to seek appropriate medical attention for him.
The jury acquitted appellant on the first count, convicted her on the second count, acquitted her on the third count of second-degree murder, but hung on the lesser-included offense of involuntary manslaughter. Over a year later, in July 1998, the government obtained a new indictment of appellant for first degree cruelty to a child in violation of D.C. Code § 22-901(a), this time based on the scalding of Devonta's foot on October 22 or 23, 1995.*fn1 Appellant filed a motion to dismiss, which was denied.
Denial of a motion to dismiss an indictment on double jeopardy grounds is the proper subject of an interlocutory appeal and receives de novo review. Green v. United States, 584 A.2d 599, 601 (D.C. 1991). Appellant argues that the new indictment violates double jeopardy in two ways. Appellant first contends that she is being put in jeopardy twice for the "same offense" under the "same elements" test formulated in Blockburger v. United States, 284 U.S. 299 (1932). Specifically, she argues that the government prosecuted her for a single course of conduct during her 1997 trial, namely, abuse of Devonta from October 1995 until his death in August 1996, and that it therefore cannot prosecute her now for a single act of abuse during that same time period. Second, appellant suggests that, even if Blockburger would allow a single trial on multiple counts, it does not permit successive trials. Alternately, she urges us to voluntarily adopt such a distinction.*fn2
Appellant relies heavily on the Blockburger "same elements" test to argue that she is being tried twice for the "same offense." In Blockburger, the Supreme Court established the rule that absent any expressed legislative intent, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304. It is settled by subsequent Supreme Court cases applied in our own jurisprudence that this test involves a comparison of the statutory elements of the offenses, not the facts and evidence underlying each charge. Byrd v. United States, 598 A.2d 386, 389 (D.C. 1991)(en banc). See also, e.g., Silver v. United States, 726 A.2d 191, 194 (D.C. 1999)(applying test); Hanna v. United States, 666 A.2d 845, 852 (D.C. 1995)(same). While appellant properly states the "same elements" test, she misapplies it in practice. The "same elements" test is used to determine whether separate statutory provisions both criminalize a single act. Since appellant's 1996 and 1998 indictments plainly charge the same "offense," namely, first degree cruelty to a child pursuant to D.C. Code § 22-901(a), the "same elements" test simply does not apply. Similarly, appellant is obviously correct that second degree cruelty to a child under D.C. Code § 22-901(b) is a lesser included offense of first degree cruelty under D.C. Code § 22-901(a). The critical question for double jeopardy purposes is whether the same criminal act is at issue.
Once extracted from the "same elements" framework in which she tries to place it, appellant's argument at bottom turns on whether the two counts are based upon legally and factually distinct acts of child abuse. "[T]he Fifth Amendment does not prohibit separate and cumulative punishment for separate criminal acts." Owens v. United States, 497 A.2d 1086, 1094-95 (D.C. 1985). See, e.g., Jones v. United States, 362 A.2d 718 (D.C. 1976)(two separate armed robbery convictions for taking money from cash register and from salesclerk's purse). Appellant claims that the government is trying her twice, under the same statutory provision, for a single criminal act. Although she concedes that the government could have tried her for the foot-scalding incident during her 1997 trial as a separate crime, she argues that it cannot "carve out" a single incident now when it previously had consciously elected to prosecute her for a "course of conduct" including that incident.
In arguing that the government prosecuted her for a "course of conduct," appellant makes several observations. First, she notes, throughout the trial, the government theorized that appellant abused and neglected Devonta for most of his life and introduced evidence of other uncharged acts of abuse, including the foot-scalding.*fn3 Second, she says, both of the 1997 cruelty counts bore indicia of "continuing crimes" in that the indictments covered broad time frames, the government ...