Appeal from the Superior Court of the District of Columbia (F6875-96) (Hon. Wendell P. Gardner, Jr., Trial Judge) .
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge,REID, Associate Judge, and TERRY, Senior Judge.*fn1
After a jury trial, appellant Jack Bodrick was convicted of several crimes, including first-degree burglary (on July 26, 1996), in violation of D.C. Code § 22-1801 (a) (1996);*fn2 mayhem (on June 20, 1996), in violation of § 22-506;*fn3 aggravated assault (on June 20, 1996), in violation of § 22-504;*fn4 and assault with a dangerous weapon (on June 20, 1996) (ADW), in violation of § 22-502.*fn5 He primarily challenges the sufficiency of the evidence as to the first-degree burglary charge on the ground that as a matter of law the government failed to sustain its burden of proving beyond a reasonable doubt the elements of the crime; and also contends that his convictions for mayhem and ADW merge with his conviction for aggravated assault. We hold that to prove the first element of first-degree burglary, the government need only establish that the complainant occupied and used the residential dwelling, even though the apartment was in the sole name of the appellant; and that the government met its burden of proof with respect to the other elements of the statute. We also hold that the offense of ADW does not merge with aggravated assault because "serious bodily injury" is an element of aggravated assault but not ADW, and the use of a weapon is an element of ADW, but not aggravated assault.
The government presented evidence showing that Theodora Bodrick resided in an apartment in the 600 block of 46th Street, in the Southeast quadrant of the District of Columbia, with her three children. Ms. Bodrick had occupied the apartment for ten years. She met Jack Bodrick in 1988, and married him on December 7, 1993. Ms. Bodrick testified that she and Mr. Bodrick "weren't even together for a good six months" before Mr. Bodrick departed and they separated. The lease to the apartment, however, remained in Mr. Bodrick's name.
On June 20, 1996, Mr. Bodrick "kicked the [apartment] door [open]" and entered "yelling [and] screaming." He followed Ms. Bodrick into the bathroom and "kicked [her] in [the] mouth and made [her] teeth bleed." Ms. Bodrick "ran in [her] daughter's room." Mr. Bodrick followed her "and tried to pull [her] out of the room," but she resisted. Ms. Bodrick's daughter witnessed the events in the bathroom and her room. Eventually Ms. Bodrick left her daughter's room and "ran outside." A call was made to the police and Officer Albert R. Lorraine "received a radio run for an assault in the 600 block of 46th Street, S.E." He saw Ms. Bodrick in front of the premises and she informed him "that she was assaulted by Mr. Bodrick." He went to the apartment and placed Mr. Bodrick under arrest. While Officer Lorraine was transporting Mr. Bodrick to the police station, Mr. Bodrick stated: "I'm gonna kill the b**** sooner or later." When Ms. Bodrick showed the officer her mouth where Mr. Bodrick had kicked her, Officer Lorraine observed that "her lower teeth were pushed back." The "next morning" after the incident Ms. Bodrick went to the dentist, and her teeth were pulled. Ms. Bodrick's dental treatment at the D.C. General Hospital was confirmed by government witness Aaron Dunmore, a medical records technician.
About a month later, on July 26, 1996, Ms. Bodrick was in the hallway of her apartment building when Mr. Bodrick approached and asked to enter her apartment, despite a "stay-away order" against him. When she told him no, and proceeded to enter the apartment from the hallway, Mr. Bodrick "came in behind [her]" by "push[ing] his way in." As she tried "to call the police, . . . he choked [her]." She managed to call the police. Officer John Hunt, responding to a radio assignment on the afternoon of July 26, 1996, encountered Ms. Bodrick outside her apartment building where she pointed at Mr. Bodrick, saying, "he's the one, he did it, he's the one." She explained that Mr. Bodrick "accused her of having another man in the apartment . . . ," and when she refused to let Mr. Bodrick go inside, "he kicked in the door, went [in with Ms. Bodrick following], [l]ooked around the apartment, looked back in the bedroom . . . and at one point he grabbed her, threw her down on the bed and started choking her."
Mr. Bodrick contends that he "was the only legal lessee" of the apartment where Ms. Bodrick resided, and that while "an individual may commit an offense against co-owned property, he or she cannot do so against solely owned property." He maintains that a civil protection order obtained against him by Ms. Bodrick was defective since it listed no address or work place for Ms. Bodrick, and left blank the section of the CPO providing for the address of the residence that the respondent is required to vacate. In addition, he argues that "the evidence in this case did not establish that anyone was inside [the apartment] . . . when Mr. Bodrick entered it" on July 26, 1996; nor did it prove that Mr. Bodrick entered the apartment with intent to assault Ms. Bodrick. And, he also claims that the instruction given to the jury regarding the CPO constituted plain error.
The standard for reviewing the sufficiency of the evidence is a familiar one. "We must view all the evidence in the light most favorable to the government, keeping in mind the jury's right to assess credibility and to draw reasonable inferences from the evidence it has heard." Nelson v. United States, 601 A.2d 582, 593 (D.C. 1991) (citations omitted). "We recognize no distinction between direct and circumstantial evidence." Id. (citation omitted). "'It is only where there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the trial court may properly take the case from the jury.'" Id. (quoting Williams v. United States, 357 A.2d 865, 867 (D.C. 1976)).
The indictment against Mr. Bodrick charged first-degree burglary as follows: "On or about July 26, 1996, within the District of Columbia, Jack Bodrick entered the apartment of Theodora Bodrick, while a person was inside that apartment with intent to assault another." D.C. Code § 22-801 (a) specifies that:
(a) Whoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the ...