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Nero v. United States

Court of Appeals of Columbia District

August 15, 2013

Antonio C. Nero, Appellant,
v.
United States, Appellee.

Submitted May 21, 2013

Appeal from the Superior Court of the District of Columbia CF3-10889-10, Hon. William M. Jackson, Trial Judge

Nancy E. Allen was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, James E. Smith, and Lauren R. Bates, Assistant United States Attorneys, were on the brief for appellee.

Before Glickman and Oberly, Associate Judges, and Reid, Senior Judge.

OBERLY, ASSOCIATE JUDGE.

Following a jury trial, appellant, Antonio Nero, was convicted of assault with a dangerous weapon (ADW), [1] mayhem while armed, [2] aggravated assault while armed (AAWA), [3] felony assault, [4] and three counts of possession of a firearm during a crime of violence (PFCV)[5] as to Balvin Richards; ADW, felony assault, and PFCV as to Randy Brown; ADW, felony assault, and PFCV as to Mark Brown; and unlawful possession of a firearm by a convicted felon, [6] possession of an unregistered firearm, [7] and unlawful possession of ammunition.[8] Appellant was sentenced to sixty months' imprisonment for each count of ADW, mayhem while armed, AAWA and PFCV; thirty-two months' imprisonment for each count of felony assault; and twelve months' imprisonment for each remaining charge. The trial court ordered that appellant's sentences all run concurrently with one another, except that the sentences for each victim run consecutively to one another. Accordingly, appellant was sentenced to a total term of 180 months' imprisonment, to be followed by five years of supervised release, and appellant was ordered to pay $1, 500 to the Victims of Violent Crime Compensation Fund.

On appeal, appellant argues, first, that the trial court erred in informing the jury of his prior felony conviction; second, that the jury lacked sufficient evidence to convict him of two of the three charges of felony assault; and third, that several of his convictions merge. Appellant does not separately challenge his ADW convictions except to the extent that he contends the court erred as to all charges in letting the jury know he had a prior felony conviction. We affirm in part, reverse in part, and remand for vacation of several of his convictions.

I. BACKGROUND

On April 18, 2010, appellant's mother hosted a birthday party in her backyard, which was attended by appellant and other friends and family. Ronald Walthall, one of the guests, invited Mark Brown and asked him to bring marijuana. Mark Brown contacted Balvin Richards, who agreed to provide the marijuana, and then arranged for his nephew, Randy Brown, to drive them to the party.

After the men arrived at the party, Mark Brown went to the backyard, leaving Randy Brown and Richards with the car parked in the adjacent alley. Approximately thirty minutes later, appellant, Mark Brown, and Walthall joined Randy Brown and Richards in the alley. An argument ensued, during which appellant shot Richards at close range.

After he heard the gunshot, Mark Brown ran down the alley, and when he looked over his shoulder, he saw appellant turning toward him and then heard another gunshot. He could not tell if appellant's second shot hit anyone. Then, standing on the passenger's side of the car, appellant shot Randy Brown in his bicep through the car's raised window. Randy Brown drove away after Mark Brown got into the car, and the two were soon spotted by a police officer. After they told the police officer the location of the shooting, police officers and paramedics were dispatched to the scene where they found Richards bleeding in the alley.

All three men eventually were transported to the hospital. The doctors treating Richards discovered his spinal canal had been severed by bullet fragments, resulting in paralysis below the bullet wound. After examining his bicep, doctors gave Randy Brown "antibiotics, . . . pain control, and wound care." Mark Brown, who realized his shoulder had been injured only after a paramedic ...


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