Argued October 29, 2014.
Appeals from the Superior Court of the District of Columbia. (CF3-22507-11 and CF3-22508-11). (Hon. J. Michael Ryan, Trial Judge).
Cory L. Carlyle for appellant Richardson.
Mikel-Meredith Weidman, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Walker.
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time, and Elizabeth Trosman and Lauren Dickie, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PAN, Associate Judge, Superior Court of the District of Columbia.[*]
Pan, Associate Judge :
Following a jury trial, appellants James Walker and Anthony Richardson were convicted of kidnapping while armed, felony threats, simple assault, unlawful entry, carrying a dangerous weapon (a knife), and various firearms offenses. On appeal, appellants challenge their kidnapping convictions, arguing that the evidence was insufficient because the conduct underlying the kidnappings was incidental to the offenses of robbery and assault. Appellant Richardson also contends that (1) there
was insufficient evidence to support his conviction for carrying a dangerous weapon (" CDW" ) and (2) his kidnapping conviction should merge with his simple-assault convictions. For the reasons that follow, we find appellants' arguments unpersuasive and affirm the judgments of the trial court.
In the early morning hours of Sunday, November 20, 2011, Metropolitan Police Department officers went to 611 Florida Avenue, N.W., Washington, D.C., in response to a 911 call reporting a break-in at that residence. In a first-floor bedroom, the police found four people: Jazzmen Johnson, Silas O'Brien, and the two appellants. Mr. O'Brien was nude from the waist down and was bleeding from an injury to his ear; his hands were bound behind his back. At trial, the government advanced the theory that appellants had assaulted and attempted to rob Mr. O'Brien and Ms. Johnson; and that appellants had kidnapped the victims -- both by detaining them in the bedroom against their will, and by forcing Mr. O'Brien to go into the house and into the bedroom.
Mr. O'Brien testified that on the evening of November 19, 2011, he attended a party at Howard University with his friends, the Thomas brothers. He then went to the Thomases' apartment on the second floor of 611 Florida Avenue, N.W. Shortly after arriving, Mr. O'Brien went outside to retrieve his jacket from the Thomases' car. After he got his jacket and turned to re-enter the house, Mr. O'Brien saw a man walking toward him on top of a fence near the home. Mr. O'Brien froze, and then saw another man pointing a gun at him. Mr. O'Brien grabbed the gun, and started struggling with the two men. One man struck Mr. O'Brien in the face, and the other struck him over the ear with the gun. The two men were later identified as appellants.
Appellants forced Mr. O'Brien to go into the house with them. Once inside, appellants asked Mr. O'Brien who else was in the house and who was upstairs. Not wanting his friends to be surprised by the assailants, Mr. O'Brien fought appellants in the kitchen and dining room of the house. Appellants struck Mr. O'Brien multiple times, knocked him to the floor, and pulled off his pants and underwear. With his pants removed, Mr. O'Brien ceased struggling. Appellants used a zip tie to bind his hands behind his back. When the zip tie broke, appellants struck Mr. O'Brien in the head and bound his hands with another zip tie.
Appellants then brought Mr. O'Brien to the door of the bedroom nearest the kitchen, where they sat him against a wall. One of the appellants questioned Mr. O'Brien about who was in the bedroom and how many people were upstairs, while the other manipulated the door handle and tried to enter the bedroom. The bedroom belonged to Jazzmen Johnson, a chemical-engineering student at Howard University. She was in bed and awoke to the sound of voices and " tussling" in the hallway. When Ms. Johnson heard someone whisper, " Bust down the door," she called 911 to report a break-in. While Ms. Johnson was still on the phone with the police, appellants broke into her room and threw Mr. O'Brien onto the floor. Appellant Walker jumped onto the bed on top of Ms. Johnson and pointed a gun at her. He snatched the phone from her hands and ordered her to get out of bed and onto the floor. Appellant Walker pushed the gun against Ms. Johnson's neck as appellants bound her hands behind her back with zip ties. Appellant Richardson turned on the lights and searched the room for valuables.
After a few minutes, a police officer, Gerald Anderson, arrived. Officer Anderson noticed blood on the door and wall outside of Ms. Johnson's bedroom, and a piece of a broken doorjamb and zip ties on the floor. He knocked on the door of the bedroom and identified himself as the police. Appellant Walker held a gun to Ms. Johnson's head and instructed her to tell the officer that everything was fine. She complied. Appellant Walker unbound Ms. Johnson's hands and got into bed with her. He told her to say that she was with her boyfriend; if she did not cooperate, he would cut her. Ms. Johnson complied. Officer Anderson continued to insist on speaking to Ms. Johnson face-to-face, but she refused to open the door, stating that she was not dressed, that she was in bed, and that she did not need to see the police. Officer Anderson persisted in knocking on ...