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Tolbert v. United States

July 27, 2006; as amended August 30, 2006

ROY L. TOLBERT, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F11757-94) (Hon. John H. Bayly, Jr., Trial Judge).

The opinion of the court was delivered by: Washington, Chief Judge

Argued February 5, 2003

Before WASHINGTON,*fn1 Chief Judge, FARRELL, Associate Judge, and WAGNER,*fn2 Senior Judge.

Appellant, Roy L. Tolbert, was charged with assault with intent to kill while armed in violation of D.C. Code § 22-401 (2001), and aggravated assault while armed in violation of D.C. Code § 22-404 (2001), in connection with the stabbing of Todd Hopkins. Appellant argues on appeal that: 1) there was insufficient evidence to support his conviction; 2) the charges of assault with intent to kill while armed and aggravated assault while armed should merge; 3) the trial court should have granted a new trial based on jury misconduct; and 4) the trial court abused its discretion by denying his ineffective assistance of counsel claim without holding a hearing.*fn3 After reviewing the supplemental record after remand, we affirm.

On December 1, 1994, appellant visited the Eastside Club in Washington, D.C. along with several friends. Todd Hopkins and several of his friends were also at the club. Hopkins and appellant were not friends*fn4 and at some point, according to Hopkins, he became intimidated by appellant and his friends, who seemed to be surrounding him, and Hopkins decided to leave the club. Hopkins and his friend, Ricky Skipper, began running upon leaving the club and were followed by a group that included appellant. Shortly thereafter, Hopkins and Skipper were found stabbed in separate locations. Hopkins testified during the trial that appellant stabbed him. He also identified appellant as the stabber to a police officer and one of his friends while he was recuperating in the hospital. He told an investigator for appellant's defense counsel, however, that he did not know who stabbed him.*fn5

While appellant was observed by others running in the same direction as Hopkins, none of the government's witnesses, besides Hopkins, testified that they saw appellant with a knife or observed the stabbing. Appellant was arrested a short distance from where Hopkins was found stabbed. Police did not find a knife on appellant, but there were knives found near the location where Hopkins had been lying. Appellant was tried three times for the stabbing of Hopkins. The first two trials resulted in hung juries. At the third trial, appellant was convicted of both charges.

I.

Appellant first argues that there was insufficient evidence to support his conviction. In reviewing such a claim this court:

views the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact . . . . The evidence may be deemed sufficient even if it does not exclude every reasonable hypothesis other than guilt. 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.

Gibson v. United States, 792 A.2d 1059, 1065 (D.C.) (citations and internal quotation marks omitted), cert. denied, 122 S.Ct. 2692 (2002).

Appellant contends that the only evidence that an assault took place is the testimony of the victim. However, evidence supplied by the victim may provide sufficient evidence for a conviction. Settles v. United States, 570 A.2d 307, 308 (D.C. 1990). Furthermore, the testimony of a single eyewitness is also sufficient evidence. Gibson, 792 A.2d at 1066 ("This court has often and consistently held that the testimony of a single witness is sufficient to sustain a criminal conviction, even when other witnesses may testify to the contrary."); In re R.H.M., 630 A.2d 705, 708 (D.C. 1993).

"To prove the [assault with intent to kill while armed] AWIKWA . . . the government had to show beyond a reasonable doubt that [appellant]: (1) made an assault on [Mr. Hopkins]; and (2) did so with specific intent to kill; (3) while armed." Nixon v. United States, 730 A.2d 145, 148 (D.C. 1999). Mr. Hopkins testified that a few days before the stabbing, appellant had accused him of being involved in the killing of his friend, Andre Newton. Therefore, the jury could infer that there was animosity between appellant and Mr. Hopkins. See Bedney v. United States, 471 A.2d 1022, 1024 (D.C. 1984). Mr. Hopkins also testified that appellant stabbed him with a knife in the abdomen and chest. Because Mr. Hopkins' testimony was sufficient evidence for a jury to find all of the elements of AWIKWA, appellant's argument that there was insufficient evidence to support his AWIKWA conviction fails.

"To prove aggravated assault while armed [AAWA] beyond a reasonable doubt, the government had to show that [appellant]: (1) caused serious bodily injury to [Hopkins]; and (2) either 'knowingly or purposely cause[d] serious bodily injury to [him]' . . . ; (3) while armed." Nixon, 730 A.2d at 149. Again, a reasonably minded juror could rely upon Hopkins' testimony regarding the events of the stabbing to reach the conclusion that appellant intended to cause Hopkins serious bodily ...


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