Appeals from the Superior Court of the District of Columbia. (F1501-02) Hon. Russell F. Canan, Trial Judge.
The opinion of the court was delivered by: Wagner, Associate Judge
Before FARRELL, WAGNER*fn1 and RUIZ, Associate Judges.
Following a trial by jury, appellant, James J. Frye, was convicted of attempted aggravated assault while armed (attempted AAWA) (D.C. Code §§ 22-404.01, -4502, -1803) (2002) and assault with a dangerous weapon (ADW) (D.C. Code § 22-402) (2002). After he was sentenced, the trial court issued two orders correcting his sentence by adding a term of supervised release. Appellant appealed from his convictions and from the orders correcting sentence, all of which were consolidated in this appeal. Appellant argues for reversal on the grounds that: (1) the trial court erred in allowing introduction of prior bad acts evidence; (2) the evidence was insufficient to convict him of attempted AAWA and ADW; (3) the offenses of ADW and attempted AAWA merge; (4) the prosecutor's improper remarks in opening statement and closing argument prejudiced his case; and (5) the trial court violated his right to be present at all proceedings by increasing his sentence in his absence. We conclude that attempted AAWA and ADW merge, requiring the vacation of one of the convictions, and that although appellant has a right to be present at re-sentencing, any error in that regard was harmless beyond a reasonable doubt. In all other respects, we affirm appellant's conviction.
The following facts appeared from the evidence at trial. The complaining witness, Grace Butler, had a romantic relationship with appellant for about a year and a half that she severed in December 2001. Thereafter, appellant continued to call and find ways to encounter Ms. Butler. When appellant saw Ms. Bulter, he would argue and sometimes strike her. During February 2002, appellant, apparently intoxicated, called the complainant on her cell phone and demanded to see her. He informed her that he knew that she was at work and where her vehicle was parked and that he would wait for her. Ms. Butler avoided appellant by working a double shift that evening. During that same month, Ms. Butler arrived home late, and appellant was waiting at her apartment complex where he blocked her vehicle with his van. Appellant then approached Ms. Butler, yelled at her for not returning his call, and accused her of lying when she explained that she had been visiting her daughter at the hospital. During their conversation, appellant asked Ms. Butler to prepare his tax returns, as she had done previously. She agreed because she wanted him to leave her alone. At first, she opened the window of her vehicle to accept appellant's papers, and appellant promised that he would not hit her. However, when she opened the door of her truck, appellant grabbed her by the hair and struck her in the face before entering her truck where he continued to assault her physically and to abuse her verbally for the next four hours. Another incident occurred in February 2002, after Ms. Butler agreed to meet appellant. She conversed with him in his van, and appellant became upset and drove into an alley where he screamed at her and reached for a tire jack. Ms. Butler pleaded with appellant not to attack her. Appellant got out of the van, paced up and down the alley and threatened that he would wind up killing her. Only after Ms. Butler promised that she would call appellant did he let her go.
On March 6, 2002, Ms. Butler's birthday, she left home about 4:30 or 5:00 a.m. to meet her sister and go to Atlantic City. When she drove out of her apartment complex, she noticed what appeared to be appellant's van. When she turned onto Suitland Parkway, appellant pulled his vehicle into the lane next to her, yelled and motioned her to pull over. Appellant followed Ms. Butler, and she placed her phone on speaker and called the 911 emergency number and reported to the operator that appellant was following her. Ms. Butler turned off Suitland Parkway in order to get onto I-295 and stopped for a red light, and appellant pulled up next to her and ordered her to pull over or he would run into her. Ms. Butler pulled away when the light changed. Appellant aimed his van at her truck and forced her onto the shoulder of the road, but she did not stop. Appellant drove at Ms. Butler several times, ultimately moving his van in front of her vehicle. Ms. Butler turned off at Pennsylvania Avenue after appellant passed the ramp for that exit, but he put his van in reverse and followed Ms. Butler down the ramp. At the merger area on Pennsylvania Avenue, appellant positioned his vehicle to the right of Ms. Butler's, blocking her forward movement and forcing her into oncoming traffic from the left. Ms. Butler testified that even through her closed window, she could hear appellant threatening to whip her, ram her and to kill her if he caught her. After merging onto Pennsylvania Avenue, Ms. Butler ran at least one traffic light in order to avoid appellant during the chase. After they had gone several additional blocks, the police pulled appellant over. Throughout the chase, Ms. Butler had kept her telephone line open to the police, and the officer on the other end told her to pull her vehicle over. She did so once the police were on the scene.
II. Prior Bad Acts Evidence
A. Factual Context and Trial Court's Ruling
Appellant argues that the trial court erred in allowing the introduction of evidence of prior bad acts by him against the complaining witness. He contends that this evidence was inadmissible because: (1) the purpose for which offered, identity, was not a material issue; (2) the prejudicial effect of the evidence outweighed its probative value; (3) the evidence was confusing and impossible for the jury to use for the limited purpose intended; and (4) no evidence supported the uncharged offenses except for the complainant's testimony. The government responds that the evidence was properly admitted under the motive and identity exceptions to the general rule precluding the admission of evidence of uncharged crimes against the accused. Further, the government contends that the trial court did not abuse its discretion in concluding that the evidence was more probative than prejudicial and that the court provided an adequate limiting instruction for the jury's guidance in considering the evidence.
The challenged evidence consisted of complainant's account of appellant's conduct towards her during the month of February 2002. Specifically, he refers to her testimony describing the three separate incidents when appellant had: (1) pulled his van in front of her truck and blocked her before entering her vehicle and striking her about the face; (2) called her at work to tell her that he would be waiting for her at her car; and (3) threatened her with a tire jack. During cross-examination, defense counsel requested that the court give a limiting instruction on the use of this evidence, and the trial court gave the standard instruction, CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2.51 (4th ed. 2002). Prior to her testimony, the trial court had ruled the evidence admissible to show motive and identity. At the close of the evidence, the trial court explained its ruling further. Specifically, the trial court stated that evidence of prior acts of hostility between spouses or individuals involved in a close personal relationship are admissible to prove a defendant's motive or identity without regard to the defense offered. The court determined that the evidence could be used to establish identity because: (1) appellant had denied involvement in the crime; (2) the evidence was relevant to the motivations of appellant and the complainant with respect to each other; (3) the evidence had been proven clearly and convincingly; and (4) the probative value of the evidence outweighed its prejudicial effect.
B. Applicable Legal Principles
Evidence of crimes, independent of the crime charged, are inadmissible to prove a defendant's disposition to commit the crime charged. Drew v. United States, 118 U.S. App. D.C. 11, 15, 331 F.2d 85, 89 (1964). However, such evidence is admissible for legitimate purposes, such as to prove motive, intent, absence of mistake or accident, a common scheme or plan, or identity of the person charged with the crime on trial. 118 U.S. App. D.C. at 16, 331 F.2d at 90; Hazel v. United States, 599 A.2d 38, 41-42 (D.C. 1991). Prior hostility between a couple, married or not, is admissible under the "motive" exception of Drew.*fn2 Mitchell v. United States, 629 A.2d 10, 13 & n.6 (D.C. 1993) (for purposes of the motive exception under Drew, "a significant relationship can be the functional equivalent of a marriage") (citing Rink v. United States, 388 A.2d 52, 56 n.4 (D.C. 1978)); see also (Arnold) Hill v. United States, 600 A.2d 58, 61 (D.C. 1991) (holding prior assaultive acts by the accused against the murder victim equally relevant as in marital homicides, where the accused and decedent had a "sufficiently close" relationship "over an extended period of time"). "Where one spouse or partner in a relationship commits a crime against the other, 'any fact or circumstance relating to ill-feeling; ill-treatment; jealousy; prior assaults; personal violence; threats; or any similar conduct or attitude by [the accused] are relevant to show motive and malice in such crimes.'" Mitchell, 629 A.2d at 13 (quoting Gezmu v. United States, 375 A.2d 520, 522 (D.C. 1977)) (in turn quoting Romero v. People, 460 P.2d 784, 788 (Colo. 1969) (emphasis in original; footnote omitted)); Garibay v. United States, 634 A.2d 946, 948 (D.C. 1993) (citation omitted) (holding appellant's prior assault of the victim properly admitted under the motive exception to Drew where self-defense claim made motive a material issue). We have also held that motive evidence may be "highly probative" of the identity of the perpetrator of the offense. Hazel, 599 A.2d at 42 (upholding trial court's ruling admitting other crimes evidence related to "bad blood" motive as "relevant to the contested issue of [defendant's] identity" as the perpetrator of the crime charged). Prior instances of unlawful conduct may be admitted under a Drew exception although not previously adjudicated a crime. Page v. United States, 438 A.2d 195, 198 (D.C. 1981) (citing Willcher v. United States, 408 A.2d 67, 75 (D.C. 1979); Light v. United States, 360 A.2d 479 (D.C. 1976)) (explaining that "we [have] recognized that the Drew exception applied to unlawful activity that had not been adjudicated a crime").
The trial court's determination of the relevance of prior evidence of bad acts is reviewed for an abuse of discretion. See Hazel, supra, 599 A.2d at 42; Derrington v. United States, 488 A.2d 1314, 1338 (D.C. 1985) (citation omitted), cert. denied, 486 U.S. 1009 (1988). Even if otherwise meeting the test for admissibility as an exception to Drew, the evidence must still be excluded "if the danger of unfair prejudice [resulting from its admission] substantially outweighs its probative value." Johnson v. United States, 683 A.2d 1087, 1101 (D.C. 1996) (en banc). "[T]he evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of ...