Appeals from the Superior Court of the District of Columbia (F-2764-98, F-2902-98 & F-2827-91) (Hon. Stephen G. Milliken, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, FARRELL, Associate Judge, and SCHWELB, Senior Judge.*fn2
Appellants Walter A. Bolanos ("Bolanos"), Luis M. Palacio ("Palacio"), and Edgar A. Cruz ("Cruz") appeal from their convictions of aggravated assault while armed ("AAWA"),*fn3 assault with a dangerous weapon ("ADW"),*fn4 and carrying a dangerous weapon ("CDW").*fn5 Appellants' convictions stem from an altercation at school, during which Jose Mejia ("Mejia"), Omar Gonzalez ("Gonzalez"), and David Rodriguez ("Rodriguez") were stabbed. Each appellant contends that there is insufficient evidence to support the "serious bodily injury" element of AAWA. Separately, Palacio contends that there was insufficient evidence to support his conviction for ADW. Appellants Bolanos and Palacio contend that the trial court erred when it failed to dismiss the indictments for the AWIMWA counts. Cruz contends that the trial court erred by denying his pretrial motion to suppress out-of-court identifications by the victims and that his conviction should be reversed on grounds that his indictment was improperly amended. Finally, all appellants contend that if their convictions for AAWA are upheld, then their convictions for ADW merge into them as lesser-included offenses and that two convictions as to the same victim should also merge. We affirm in part, reverse in part, and remand in part.
During the afternoon of April 14, 1998, victims Mejia, Gonzalez, Rodriguez, and three of their friends left Bell Multicultural School, where they attended high school. Although claiming not to be a gang, the group called themselves the Graffiti Kings because they liked to "tag" -- i.e., write their names -- on the school's walls. As they crossed the school playground, they encountered a group of approximately fifteen young men, including appellants Bolanos, Palacio, and Cruz. According to the three victims, the appellants were members of a rival group called the Little Brown Union. Allegedly, as the two groups crossed paths, Palacio confronted the Graffiti Kings regarding an earlier dispute.*fn6 A fight soon ensued between the two groups. At one point, a member of the Graffiti Kings shouted that someone from Little Brown Union had a knife. Almost immediately three members of the Graffiti Kings ran. Mejia, Gonzalez, and Rodriguez, however, could not get away and each was stabbed multiple times during the fight.
At trial, all three victims testified about the extent of their injuries. Their medical records, documenting their injuries, were stipulated. There was, however, no testimony, expert or otherwise, explaining the medical records or their contents.
Following trial, the jury convicted Bolanos of: two counts of ADW as a lesser-included offense of both AWIMWA and AWIKWA, both as to the victim Mejia; one count of AAWA, as to Mejia; and, one count of CDW. Palacio's convictions are: two counts of ADW as a lesser-included offense of both AWIMWA and AWIKWA, both as to the victim Rodriguez; one count of ADW as a lesser-included offense of AWIKWA, as to the victim Gonzalez; one count of AAWA, as to Rodriguez; and, one count of CDW. Cruz's convictions are: two counts of ADW as a lesser-included offense of AWIKWA, as to Mejia and Gonzalez; two counts of AAWA, as to Mejia and Gonzalez; and, one count of CDW.
II. Sufficiencyof the Evidence Claims with Respect to Appellants' AAWA Convictions
All three appellants argue that there was insufficient evidence to permit a reasonable trier of fact to find that they inflicted "serious bodily injury," an essential element of AAWA, on any of the victims in this case. See e.g., Riddick v. United States, 806 A.2d 631, 639 (D.C. 2002). This court reviews sufficiency of the evidence claims "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 from fact." Gibson v. United States, 792 A.2d 1059, 1065 (D.C. 2002). The evidence is insufficient when the government produces "no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Id.
This court defines serious bodily injury to encompass "bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious 5 disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty." (Troy) Nixon v. United States, 730 A.2d 145, 149 (D.C. 1999). Since Nixon, this court has emphasized the "high threshold of injury" that "the legislature intended in fashioning a crime that increases twenty-fold the maximum prison term for simple assault." Swinton v. United States, 902 A.2d 772, 775 (D.C. 2006) (citing Jenkins v. United States, 877 A.2d 1062, 1069 (D.C. 2005)). For example, the fact that an individual suffered from knife or gunshot wounds does not make that injury a per se "serious bodily injury." Zeledon v. United States, 770 A.2d 972, 977 (D.C. 2001). We have found grievous stab wounds, however, to be sufficient to satisfy the definition of serious bodily injury. See Jenkins, 877 A.2d at 1071 (multiple deep stab wounds to victim's chest, stomach and arm, inflicted with a seven or eight-inch knife); Baker v. United States, 867 A.2d 988, 995, 1009 (D.C. 2005) (victim stabbed in stomach, head and arm, with substantial loss of blood); Hart v. United States, 863 A.2d 866, 875 (D.C. 2004) (woman stabbed multiple times in the arms and in the vagina). The difference is a matter of degree. Serious bodily injury usually involves a life-threatening or disabling injury, but the court must also consider all the consequences of the injury to determine whether the appropriate "high threshold of injury" has been met. See Swinton, supra, 902 at 776 (internal quotations omitted).
In the present case, the trial was held before we issued our opinion in Nixon, and as a result the trial court failed to instruct the jury on two of the Nixon prongs -- extreme pain and unconsciousness. Instead, thetrial court defined serious bodily injury as an injury that causes substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the functions of a bodily member or organ. Because the trial court only instructed the jury on three of the five factors, the instruction was incorrect. See Johnson v. United States, 520 U.S. 461, 467 (1997) (new criminal rules will apply retroactively to cases pending on direct review).
This instructional error, however, does not result in per se reversal. If there was sufficient evidence to convict based upon the instruction given, then, necessarily, the verdict satisfies one of the Nixon elements of serious bodily injury. In addition, where this court finds instructional error but sufficient evidence in the record to support a conviction under the correct instruction, we will remand for further proceedings to allow the government, at its election, to re-try the appellant on the original charge. Gathy v. United States, 754 A.2d 912, 920 (D.C. 2000).*fn7 It is only when the evidence is insufficient to permit a trier of fact to conclude guilt beyond a reasonable doubt under either the instruction given or the Nixon instruction that we reverse the conviction with instructions to the trial court to enter judgment on any appropriate lesser-included offenses. Id.
Cruz's AAWA Conviction for Assaulting Gonzalez
Gonzalez testified that Cruz stabbed him through his arm, that the knife then penetrated into his stomach, and that he underwent surgery. Gonzalez's medical records state that to repair the perforation of his intestine, Gonzalez underwent surgery to suture the laceration. In addition, Gonzalez's medical records state that after three days and upon discharge, Gonzalez was prescribed Percocet for pain and given a follow-up appointment at the trauma clinic. There was no expert testimony presented regarding the effects of the knife wounds, or whether these types of wounds could be considered life-threatening.*fn8 The evidence in the record also fails to demonstrate if the wounds or incisions from the surgery physically scarred Gonzalez and the extent of the scarring, if any. Based on this record, we conclude that the evidence presented to the jury was insufficient to support a finding that Gonzalez faced a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the functions of any bodily organ.
Nevertheless, the government, relying on this court's holding in Wilson v. United States, 785 A.2d 321, 329 (D.C. 2001), argues that the jury could reasonably conclude that Gonzalez suffered an impairment of the function of a bodily organ because Gonzalez underwent surgery to repair the perforation of his bowel. Id. at 329. The victim in Wilson, however, sustained a laceration in his right eye, which required four interrupted stitches, and a cut in his left eye. In addition, medical testimony was presented as to the seriousness of the injury and that the victim required close monitoring for development of complications. Moreover, because the victim was legally blind in his right eye at the time, the cut to his left eye was even more serious because the victim's entire vision could be compromised. The victim, after three months and presumably after the return of his vision, returned to work, but testified that he was reading at an appreciably slower rate. Based on this evidence, this court concluded the victim suffered an impairment of a bodily organ sufficient to support a finding of serious bodily injury. Id. (affirming on other grounds). In contrast, there was no evidence presented to the jury in this case regarding the severity of Gonzalez's perforated intestine or whether Gonzalez suffered lingering effects from the knife wounds. Nor is there any indication that Gonzalez required additional monitoring, except for the one ...