Appeal from the Superior Court of the District of Columbia. (F-7476-01). (Hon. Geoffrey M. Alprin, Trial Judge).
Before Ruiz and Reid, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge.
Submitted February 23, 2005
On July 29, 2002, the appellant, Mr. Bertram M. Blackledge, was found guilty after a jury trial in the Superior Court of committing a lewd, indecent, or obscene act, D.C. Code § 22-1112 (b) (1981);*fn1 kidnapping, D.C. Code § 22-2101 (1981);*fn2 and enticing a child, D.C. Code § 22-4110 (1981).*fn3 On appeal, Mr. Blackledge challenges the sufficiency of the government's evidence, and claims that his conviction for kidnapping merges with enticing a child. We affirm.
The record before us demonstrates that at approximately 12:00 p.m. on July 13, 2001, T.C., a twelve-year-old boy, ascended the stairs to his mother's second floor apartment at 1108 I Street, in the northeast quadrant of the District of Columbia, and knocked on the rear door. T. C.'s mother did not answer. However, Mr. Blackledge, a thirty-three-year-old male who lived in the neighboring apartment, opened the door to his apartment to investigate the knocking. Mr. Blackledge, who was wearing "absolutely nothing," asked T.C. what he wanted. When T.C. stated that he was looking for his mother, Mr. Blackledge responded that she was not home and shut his door. Thinking that his mother might be asleep inside, T.C. continued knocking on the back door.
T.C.'s knocking prompted Mr. Blackledge to return to his door two more times. The second time, Mr. Blackledge, who was still completely naked, asked T.C. whether he wanted to wait for his mother inside Mr. Blackledge's apartment. T.C. declined Mr. Blackledge's invitation, stating that he was just "about to leave any way," and turned around and began walking back down the stairs. As T.C. was walking down the stairs, Mr. Blackledge unexpectedly ran out from his apartment and down the stairs. Mr. Blackledge caught T.C. halfway down the stairs, grabbed the boy's right arm, and forced him back up the stairs. T.C. struggled to break free from Mr. Blackledge's grip by repeatedly smacking and hitting him, however, he was unable to stop Mr. Blackledge from dragging him up the stairs and into Mr. Blackledge's apartment. Once inside the apartment, Mr. Blackledge shut and locked the door and propped T.C.'s scooter, which T.C. had kept tucked under his arm, under the door handle to prevent T.C. from leaving.
Mr. Blackledge then threw T.C., who was now crying, to the ground and demanded that he go into his bedroom. T.C. refused. Mr. Blackledge again demanded that T.C. go into his bedroom, this time threatening to put his "tarantulas" on him if he did not go. When T.C. still refused to move, Mr. Blackledge forcibly pushed him into the bedroom. He pushed T.C. onto his bed and made him sit down. Mr. Blackledge then sat down behind T.C., who was cradling his face in the palm of his hands, and told him to watch the pornographic movie playing on the television in front of them. T.C. refused. Grabbing the back of T.C.'s head, Mr. Blackledge pulled the boy's face out of his hands and forced him to watch the pornographic movie. Mr. Blackledge then bent down, put his arms around T.C.'s neck, and began kissing him on the neck. T.C. hit him in the face. Mr. Blackledge responded by tightening his arm around T.C.'s neck and strangling him. T.C. hit him in the face a second time. Mr. Blackledge strangled T.C. even harder, only stopping when he began to choke.
Mr. Blackledge then stood up and showed T.C. a bag of "twigs and stuff," presumably marijuana, and stated that he had been "smoking too much." Mr. Blackledge asked T.C. if he had any money and if he knew where to buy marijuana. T.C. stated that he did not have any money on him, but, seeing an opportunity to escape, told Mr. Blackledge that he knew where to buy marijuana. Mr. Blackledge searched his home, unsuccessfully, for money to give T.C. to buy marijuana. He returned to the bedroom a few minutes later and told T.C. that "[your] friends are downstairs so you got to go." As T.C. was leaving, Mr. Blackledge warned him not to tell anyone what happened. Exiting the apartment, T.C. immediately approached two police officers patrolling the alleyway behind Mr. Blackledge's apartment.
On February 6, 2002, Mr. Blackledge was charged in a six-count indictment with: (1) lewd, indecent, or obscene acts, D.C. Code § 22-1112 (b) (1981); (2) kidnapping, D.C. Code § 22-2101 (1981); (3) enticing a child, D.C. Code § 22-4110 (1981); (4) obscenity, D.C. Code § 22-2001 (b) (1981);*fn4 and (5) two counts of misdemeanor assault, D.C. Code § 22-504 (1981).*fn5 A three-day jury trial was held in the Superior Court, and on July 29, 2002, the jury found Mr. Blackledge guilty of committing a lewd, indecent, or obscene act, kidnapping, and enticing a child. Mr. Blackledge was also found guilty by the trial court of the two misdemeanor assault charges.*fn6 On April 30, 2003, Mr. Blackledge filed a timely notice of appeal.
Mr. Blackledge raises two challenges to his convictions. First, he claims that his conviction for kidnapping, D.C. Code § 22-2001, should be vacated because it merges with his conviction for enticing a child, D.C. Code § 22-4110. Second, he claims that the government presented insufficient evidence to sustain his conviction for enticing a child. Finding his arguments unpersuasive, we affirm.
Mr. Blackledge's first claim is that the offense of kidnapping merges with that of enticing a child. He argues that "in essence" the District's child enticement statute "constitutes a child kidnapping statute," and that "it is apparent that each of the elements of kidnapping is subsumed in the child enticement statute." Whether these two crimes merge is a question of first impression for this court.
"Whether two charged offenses merge into one is not for the jury to decide; rather, it is a question of law . . . ," see Spain v. United States, 665 A.2d 658, 662 n.5 (D.C. 1995) (citing Hagins v. United States, 639 A.2d 612, 617 (D.C. 1994)), which "[w]e review . . . de novo." Nixon v. United States, 730 A.2d 145, 151-52 (D.C.) cert denied, 528 U.S. 899 (1999) (citing Spain, supra, 665 A.2d at 662 n.5)). "Absent a clear indication of contrary legislative intent," we apply the rule articulated in Blockburger v. United States, 284 U.S. 299 (1932), to Mr. Blackledge's merger claim. See Pixley v. United States, 692 A.2d 438, 439 (D.C. 1997). "In Blockburger . . . the Supreme Court held 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.'" Alfaro v. United States, 859 A.2d 149, 155 (D.C. 2004) (quoting Blockburger, 284 U.S. at 304). See also D.C. Code § 23-112 (2001) ...