Before Reid and Glickman, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Melvin R.Wright, Trial Judge)
After a jury trial, appellant Cornell G. Mack was convicted of assaulting a police officer ("APO"), in violation of D.C. Code § 22-505 (a) (1996); escape from an officer, in violation of § 22-2601 (a)(2); carrying a pistol without a license ("CPWL"), in violation of § 22-3204 (a); possessing an unregistered firearm ("UF"), in violation of § 6-2311 (a) (1995); and possessing unregistered ammunition ("UA"), in violation of § 6-2361 (3). *fn1 On appeal, Mack contends that: 1) his conviction of APO merges with his conviction of escape; and 2) the evidence presented at trial was insufficient to sustain a conviction under § 22-2601. We affirm.
At trial, the government's evidence showed that, at approximately 9:00 p.m. on February 23, 1999, Officer Albert Williams, a six-year veteran of the Metropolitan Police Department ("MPD"), was "working mountain bike patrol" along the 1100 block of Montello Avenue, N.E., in the District. During this patrol, Officer Williams was wearing his official blue "mountain bike uniform" which visibly contained the word "Police."
As Officer Williams was riding north between Montello and Trinidad Avenues, N.E., he heard someone shout out "one time," *fn2 and immediately observed Mack "coming from an alley . . . [with] a marijuana cigarette in his right hand[,] and a[n] . . . open container of alcohol [in the other]." Intending to place Mack under arrest, Officer Williams "told him to get on his knees," and proceeded to go "over to him." However, "[Mack] . . . sprung up and started . . . swinging . . . like [he was] trying to get away." As Officer Williams attempted to restrain him by "grab[bing] him around the shoulders," Mack "took his jacket off" and started "throwing punches." Officer Williams then "grabbed ahold of him and picked him up and . . . kind of threw him to the ground." As he proceeded to "place him under arrest," Mack "punched [Officer Williams] in [his left] eye" and absconded without pursuit. After retrieving Mack's jacket and searching it, Officer Williams found a .38 caliber loaded handgun, a cell phone, a scale, and "some papers" which bore Mack's name.
Later that evening, after being shown a single photograph by a fellow officer, Officer Williams identified Mack as his assailant. Officer Williams was confident that Mack was the individual who assaulted him because he "had seen [Mack] plenty of times in the area."
At trial, Mack testified on his behalf as the only defense witness, and argued misidentification. After admitting that the recovered jacket may have belonged to him, he stated that his jacket was stolen from him one day prior to the assault on Officer Williams.
Mack asserts that if this court finds that he was in lawful custody during his altercation with Officer Williams, it must nevertheless reverse and remand this matter for a new trial because the "[APO] conviction [should have] merged with [the] Escape [conviction], as a lesser-included offense." The government contends that Mack's merger argument "fails as a matter of law [because] [e]ach of the offenses require proof of a fact or element not found in the other." In Silver v. United States, 726 A.2d 191 (D.C. 1999), a case where the appellant alleged his conviction of cruelty to animals merged with his conviction for animal fighting because animal cruelty was a lesser included offense of animal fighting, we recently observed that
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. Id. at 194 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)); accord Byrd v. United States, 598 A.2d 386, 389 (D.C. 1991) (en banc)) (other citation omitted). See also Simms v. United States, 634 A.2d 442, 447 (D.C. 1993).
A review of §§ 22-505 (a) *fn3 , and -2601 (a)(2) *fn4 illustrates that "each crime requires proof of an element which the other does not . . . ." Silver, supra, 726 A.2d at 194. An individual who unjustifiably assaults, resists, opposes, impedes, intimidates, or interferes with a District of Columbia police officer while the officer is performing his or her official duties, at a time when the individual knew or had reason to believe that the complainant was a District police officer, may be found guilty of APO. See D.C. Code § 22-505 (a); Criminal Jury Instructions for the District of Columbia, No. 4-11 (4th ed. 1993). In contrast, to obtain a conviction for escape, the government must show that a person was in lawful custody and attempted to escape. See § 22-2601 (a)(2); Criminal Jury Instructions for the District of Columbia, No. 4.99 A (1996 Supp.). Thus, since each of these crimes demands ...