Appeal from the Superior Court of the District of Columbia (F1001-05) (Hon. Hiram E. Puig-Lugo, Trial Judge).
The opinion of the court was delivered by: Greene, Senior Judge of the Superior Court of the District of Columbia
Before WASHINGTON, Chief Judge, REID, Associate Judge, and GREENE, Senior Judge of the Superior Court of the District of Columbia.*fn1
On May 4, 2005, a grand jury indicted appellant on one count of armed carjacking (knife) (D.C. Code §§ 22-2803 and-4502), three counts of armed kidnapping (knife) (D.C. Code §§ 22-2001 and-4502), three counts of armed second degree cruelty to children (D.C. Code §§ 22-1101(b) and 22-4502) (subsequently amended to delete the "armed" element pursuant to D.C. Code §§ 22-4501 (f)-(g)), one count of assault with a dangerous weapon (car) (D.C. Code § 22-402) (hereinafter, "ADW"), and one count of carrying a dangerous weapon (knife) (D.C. Code § 22-4504 (a)) (hereinafter, "CDW").
A jury trial began before the Honorable Hiram E. Puig-Lugo on June 7, 2005, and concluded in part on June 20, 2005, when the jury returned verdicts of guilty on the three second-degree cruelty to children counts. The following day, the jury acquitted appellant of armed carjacking, armed kidnapping and CDW, and announced it was unable to reach verdicts on ADW and the lesser included offenses of unarmed carjacking and unarmed kidnapping. Judge Puig-Lugo declared a mistrial as to those offenses. On July 6, 2005, appellant entered an Alford*fn2 plea to the ADW count in exchange for the government's agreement to dismiss the remaining charges.
On September 9, 2005, Judge Puig-Lugo sentenced appellant to consecutive twenty-four-month terms of imprisonment on the three counts of second-degree cruelty to children and a concurrent term of five years on the ADW count, suspended execution of all four sentences, and imposed concurrent three-year probationary periods on each count.
On appeal, appellant asserts that the trial court erred in two respects regarding the imposition of his sentences. First, he argues that imposing consecutive sentences for the three cruelty to children counts violated the Double Jeopardy Clause because the three counts merged into a single offense, having arisen from a single act that caused a grave risk of bodily injury to three children. Second, he contends that the trial court abused its discretion by purporting to comply with the court's voluntary sentencing guidelines, yet erroneously interpreting the guidelines as not requiring concurrent sentences for the three cruelty to children counts.
For the reasons which follow we reject appellant's merger argument, and we further hold that (1) where a trial court's sentence is indisputably lawful as being in compliance with statutory limits, (2) the record clearly reflects that the trial court meaningfully exercised its discretion in imposing the sentence, and (3) no other grounds for illegality of the sentence are shown, this court will not review a sentence based solely upon a contention that it is not in compliance with the guidelines. Consequently, we reject appellant's attack on his sentences and affirm his convictions.
The evidence adduced at trial established, inter alia, that early in the evening on February 18, 2005, Lichelle Foster strapped her three young daughters--five-year-old Rayonna and two-year-old twins, Tanaya and Taniya--in their car seats and set out in her vehicle. While stopped at a red light on Eastern Avenue at the intersection with Division Avenue, appellant, a stranger to Ms. Foster, opened the front passenger door of her vehicle and got in. At first appellant said nothing and Ms. Foster attempted to push him out of the car. As she pushed, he then said in a low voice, "can you help me?" She replied, "no, can you get out of my car?," whereupon appellant reached towards his side and then lunged at her, swinging his hand in an "overhead motion," and prompting Ms. Foster to open her door and fall out of the car into the street.
Hearing her daughters scream and realizing that they were still in the vehicle, Ms. Foster grabbed hold of the driver's side door and held on, but as the light changed and the car accelerated through the intersection, she was dragged a short distance, then fell to the roadway. After she briefly observed her car careen to the left of the center line, then "jerk" back to the right to avoid oncoming traffic as it drove away, Ms. Foster ran for help, eventually accepting a ride from an unknown man who drove off with her in the direction Ms. Foster's car had gone. About a block-and-a-half later, traffic had come to a standstill, and Ms. Foster saw that her car had crashed into a parked car. She got out of the car she was in and ran towards her car, screaming for her children. Once at her car, she "grabbed all three" girls who were "just screaming" and "very terrified." After she identified appellant on the scene, she and the children were taken to a hospital where it was determined that she and Rayona had sustained minor physical injuries. Photographs received in evidence showed that the passenger side of Ms. Foster's vehicle was damaged by the collision and that her car's air bags had deployed. The parked car impacted by the collision had been "totaled."
D.C. Code § 22-1101 (b) provides, inter alia:
A person commits the crime of cruelty to children in the second degree if that person intentionally, knowingly, or recklessly:
(1) Maltreats a child or engages in conduct which causes a grave risk of bodily injury to a child;...
Cruelty to children--unlike assault--includes the infliction of mental or emotional pain or suffering upon a child, as well as physically assaultive conduct. Alfaro v. United States, 859 A.2d 149, 157 (D.C. 2004). As we previously have noted on more than one occasion, our statutes prohibiting cruelty to children are not limited to bodily harm; they were enacted pursuant to the authority of the state, "acting as parens patriae, to protect'the physical, mental or moral ...