Appeal from the Superior Court of the District of Columbia (F-03684-02) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: King, Senior Judge
Before GLICKMAN, Associate Judge, and PRYOR and KING, Senior Judges.
Following a jury trial, William Peay was found guilty of four counts of assault with a deadly weapon (automobile) ("ADW"), in violation of D.C. Code § 22-402 (2001), and one count of felony destruction of property, in violation of D.C. Code § 22-303 (2001). On appeal, Peay argues (1) that the four counts of ADW should merge, and (2) that the trial court erred by constructively amending the indictment. Additionally, because we observed that the destruction of property indictment did not specify the property value required to distinguish between a misdemeanor and felony offense, we requested supplemental briefs*fn1 addressing "whether Peay could be convicted of felony destruction of property based on this indictment." For the reasons stated below, we conclude that Peay was properly convicted of felony destruction of property. As the government concedes that Peay's ADW convictions merge, however, we remand the case for the trial court to vacate those convictions that merge. In all other respects, we affirm.
This case arose after a dispute between one of the complainants, Stanley Wagoner, and Peay over Peay's purchase of a vehicle from Wagoner. Wagoner drove away from Peay's home in his own vehicle and Peay gave chase, ramming his vehicle into the the "left-side quarter panel" of Wagoner's vehicle, on a street near Hadley Memorial Hospital. Peay then deliberately struck Wagoner's vehicle again in the hospital parking lot. The latter vehicle was also occupied by Wagoner's two children, and another adult, Sean Woodard. The second collision damaged the headlights, radiator, bumper and grill on the front of Wagoner's vehicle. The damage from the second collision was estimated at $750.
Peay was indicted on four counts of ADW, with each count naming a different occupant of the car as complainant. In addition, the indictment charged Peay with destroying Wagoner's vehicle in violation of D.C. Code § 22-303,*fn2 alleging that
[o]n or about June 8, 2002, within the District of Columbia, William Peay, Jr. maliciously did injure, break, and destroy certain property, that is, an automobile, property of Stanley Wagoner, Jr.
This count did not specify whether the indictment was for a felony or misdemeanor nor did it state the value of the property destroyed. However, in its preliminary instructions, the court instructed the jury on felony destruction of property as follows:
The essential elements of malicious destruction of property, each of which the government must prove beyond a reasonable doubt are, one, that the defendant injured, that is, damaged or destroyed, attempted to injure or destroy property, that is an automobile; two, that the property was not the defendant's property; three, that the defendant acted voluntarily and on purpose, not by mistake or accident; four, that the defendant acted either with intent to injure or destroy the property, or with a conscious disregard of known and substantial risk of harm that was likely to result to the property from his actions; and five, that the value of the damaged or destroyed property was $200 or more.
In discussing jury instructions with the court, Peay requested a lesser included offense instruction of misdemeanor destruction of property, which the court agreed to give. The court then proposed including a unanimity instruction because of the allegations that Peay had struck Wagoner's car two times. Peay objected to the unanimity instruction, arguing that by doing so the court was "basically amending the indictment." At the close of testimony the court again instructed the jury on the elements of felony destruction of property and, as a lesser included offense, misdemeanor destruction of property, noting that the only distinguishing factor between the two offenses is that for a misdemeanor "there's no monetary value, it doesn't have to be $200 or more." The trial court then gave the jury a unanimity instruction as follows:
Now, the defendant has been charged with one count of destruction of property, felony, and for your considerations is the lesser included offense of destruction of property, misdemeanor. There has been evidence of more than one act or incident upon which a conviction on these counts may be based. Again, it is alleged that the defendant while driving a white car initially struck the complainant's black [car] on the left side corner panel as the complainant was driving away on Martin Luther King Avenue; and then a separate incident moments later when it is alleged that the defendant, while driving a white car, struck the complainant's black car in the parking lot of the Hadley Memorial Hospital. You may find the defendant guilty on these counts if the government proves beyond a reasonable doubt that the defendant committed either of these acts. However, in order to return a guilty verdict on the destruction of property felony count, all jurors must unanimously agree that this destruction of property, felony count, refers to the act or incident that occurred in the parking lot of the Hadley Memorial Hospital.*fn3 The destruction of property felony relates to the alleged incident that occurred in the Hadley Memorial parking lot.
However, in order to return a guilty verdict on the lesser included offense of destruction of property misdemeanor, all jurors must unanimously agree as to at least one of the two specific acts. In other words, you must all agree that the defendant committed destruction of property misdemeanor when the defendant, while driving a white car initially, struck the complainant's black car, left side corner panel, as the complainant was driving away from Martin Luther King Avenue, or that the defendant committed destruction of property misdemeanor when, while driving a white car, struck the complainant's black car in the parking lot of the Hadley Memorial Hospital.
The jury ultimately returned a guilty verdict on the four ADW charges and felony destruction of property. Peay was sentenced to concurrent terms of seven years in prison, followed by three years of supervised release, for each ADW conviction. For the destruction of property conviction, he was sentenced to three years in prison, consecutive to ...