Lewis v. United States ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-0572
MICHAEL R. LEWIS, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(CF2-0037-19)
(Hon. Robert Okun, Trial Judge)
(Submitted November 12, 2020 Decided July 29, 2021)
David Reiter, for appellant.
Timothy Shea, United States Attorney at the time, with whom, Elizabeth
Trosman, Suzanne Grealy Curt, Tara Ravindra, Rachel Bohlen, and Michael
McGovern, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge, and
NEBEKER, Senior Judge.
BLACKBURNE-RIGSBY, Chief Judge: On April 5, 2019, a jury convicted
appellant Michael Lewis of receiving stolen property (D.C. Code §§
22-3232(a), -3232(c)(1)) (2021 Supp.), unauthorized use of a vehicle (D.C. Code §
22-3215) (2021 Supp.), felony fleeing (D.C. Code § 50-2201.05b(b)(2)) (2014
2
Repl.), reckless driving (D.C. Code § 50-2201.04) (2014 Repl.), and two destruction
of property counts (D.C. Code § 22-303) (2021 Supp.). 1 Appellant appeals only his
fleeing and reckless driving convictions. Appellant argues that (1) the charges of
felony fleeing and reckless driving must merge; and (2) there was insufficient
evidence to establish that the officer signaled appellant to stop, a necessary element
of the felony fleeing charge. We affirm.
I. Trial Proceedings
Based on the testimony elicited at trial, which appellant does not challenge on
appeal, on December 31, 2018, Metropolitan Police Department (“MPD”) Officers
Julito Drake and James Little made contact with appellant, who was sitting in the
driver’s seat of a stolen vehicle. 2 The officers “made a U-turn . . . to canvas[s] for
1
Appellant was also charged with and acquitted of felony assault on a police
officer while armed (D.C. Code §§ 22-405(c), -4502) (2021 Supp.), assault with a
dangerous weapon (D.C. Code § 22-402) (2021 Supp.), felony assault on a police
officer (D.C. Code § 22-405(c)) (2021 Supp.), resisting arrest (D.C. Code § 22-
405.01) (2021 Supp.), and possession of an open container of alcohol (D.C. Code §§
25-1001(a)(2), (d)) (2012 Repl.).
2
The officers were riding in a marked police car equipped with a license plate
reader system (“LPR”) when they came across a Hyundai in the 3200 block of 15th
Place in Southeast Washington, D.C. Shortly after turning onto 15th Place, the
officers received an alert from the LPR system concerning a possible stolen vehicle.
Officer Drake, who was in the passenger seat, reviewed the alert, saw the car with
3
the vehicle.” The officers saw the white Hyundai and pulled up next to it, stopping
at the front passenger quarter panel of the police car adjacent to the driver side rear
quarter panel of the Hyundai. Appellant was in the driver’s seat of the Hyundai, and
another man was standing outside the open passenger door of the car.
Officer Drake, who was closest to the Hyundai, exited the police vehicle and
approached the driver’s side door. When he reached the car, Officer Drake, who
was in full police uniform and wearing a high visibility jacket with his badge and
nametag on the outside, opened the driver’s door and identified himself as a police
officer. He then asked appellant to step out of the car. Appellant looked at Officer
Drake, shifted the car into drive, and started to drive off.
Officer Drake hung onto appellant’s arm and shoulder and yelled for appellant
to stop and place the car in park. Appellant continued to drive, dragging Officer
Drake’s feet along the ground as the officer held onto him. Appellant stopped only
after he “veered off and T-boned” a parked Volkswagen Beetle across the street.
Officer Drake restrained appellant in the driver’s seat after the crash until Officer
Little could assist.
the suspect plate, and ran the plate number through the Washington Area Law
Enforcement System “to confirm that that vehicle or the plate was stolen.”
4
The impact pushed the Volkswagen “on top of the curb,” significantly
bending the front, driver-side wheel axle and shearing the front, passenger-side
wheel off its axle. This resulted in damages to the Volkswagen totaling $3,881.98.
The collision also “crumpled in” the front of the Hyundai, causing damages
amounting to approximately $1,500.
Later that day, MPD Detective Adam Shaatal interviewed appellant. After
appellant waived his Miranda rights, he told Detective Shaatal that he was a “wheel
man”—meaning someone who drives other people around to do things that they are
not supposed to do. Appellant told Detective Shaatal that his “buddy” gave him the
stolen car at approximately 4:00 a.m. the prior morning. Later in the day he received
the car, appellant was dropping a passenger off at home when the car door opened,
and in response to the door being opened he automatically hit the gas pedal.
According to appellant, he did not know the man opening the door was a police
officer, but thought it may be someone trying to carjack him. When appellant saw
Officer Drake holding on, appellant took his foot off the gas and Officer Drake
grabbed the wheel of the car.
5
At trial, appellant did not present any evidence. However, he did move for
judgment of acquittal. Appellant’s counsel stressed to the trial court that the exact
position of the police car relative to the Hyundai left appellant unaware of the
officers’ presence. Thus, when Officer Drake opened the driver’s side door,
appellant was surprised and shocked. Consequently, he argued, appellant’s sudden
movements were involuntary reactions. Therefore, appellant argued, he could not
consciously discern that Officer Drake was a police officer when he was grabbed.
The trial court denied appellant’s motion. On June 14, 2019, Judge Okun
sentenced appellant to a concurrent term of twelve months of incarceration,
execution of sentence suspended as to all but time served; three years of supervised
release, suspended in favor of two years of supervised probation; and payment of
$550 in costs to the Victims of Violent Crime Compensation Act of 1996. Appellant
noted a timely appeal on July 12, 2019.3
3
The trial court sentenced appellant to ten months of imprisonment on the
fleeing count and sixty days of imprisonment on the reckless driving count and
suspended both terms of imprisonment as to all but time served in favor of
concurrent two and one-year terms of supervised probation, respectively.
6
II. Merger
For the first time on appeal, appellant argues that his convictions for reckless
driving and fleeing from a law enforcement officer merge. See Brown v. United
States, 795 A.2d 56, 61-62 (D.C. 2002) (reaching merger issues which were raised
for the first time on appeal). We review claims of merger of convictions de novo to
assess whether a violation of the Double Jeopardy Clause of the Constitution has
occurred. Cullen v. United States, 886 A.2d 870, 872 (D.C. 2005). “[W]here the
same act or transaction constitutes a violation of two different statutory provisions,
the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.” Frye v.
United States, 926 A.2d 1085, 1098 (D.C. 2005) (quoting Blockburger v. United
States, 284 U.S. 299, 304 (1932)); see also D.C. Code § 23-148 (2012 Repl.).
The first statute at issue, D.C. Code § 50-2201.04(b), proscribes reckless
driving:
(b) Any person who drives any vehicle upon a highway
carelessly and heedlessly in willful or wanton disregard of
the rights or safety of others, or without due caution and
circumspection and at a speed or in a manner so as to
endanger or be likely to endanger any person or property,
shall be guilty of reckless driving.
7
Next, D.C. Code § 50-2201.05b (b)(1) and (2) (2020) criminalize flight from
a law enforcement officer. The first subsection enacts a misdemeanor; the second,
a felony:
(1) An operator of a motor vehicle who knowingly fails or
refuses to bring the motor vehicle to an immediate stop, or
who flees or attempts to elude a law enforcement officer,
following a law enforcement officer’s signal to bring the
motor vehicle to a stop, shall be fined not more than
$1,000, or imprisoned for not more than 180 days, or both.
(2) An operator of a motor vehicle who violates paragraph
(1) of this subsection and while doing so drives the motor
vehicle in a manner that would constitute reckless driving
under § 50-2201.04(b), or causes property damage or
bodily injury, shall be fined not more than $5,000, or
imprisoned for not more than 5 years, or both.
(emphasis added).
In Fox v. United States, we held that where “the government established and
the jury specifically found that, in fleeing from the police, [where the defendant] not
only (1) engaged in reckless driving, but also (2) caused property damage” to another
vehicle, the offenses did not merge. 11 A.3d 1282, 1289 (D.C. 2011), abrogated on
other grounds by Robinson v. United States, 100 A.3d 95 (D.C. 2014). “Property
damage is not an element of reckless driving, so, in proving the offense of fleeing,
the government proved a fact not necessary to prove reckless driving.” Id.8
Six months later, in Pelote v. District of Columbia, we held that that D.C.
Code § 50-2201.05b (b)(2) fully incorporates the reckless driving statute, D.C. Code
§ 50-2201.04(b), and that only one could be applied to conviction for the single
occurrence at issue in that case. 21 A.3d 599, 607 (D.C. 2011). The occurrence in
Pelote concerned a high-speed chase, during which the appellant drove through
several stop signs and a red light, forcing other cars to stop to avoid a collision. Id.
at 601. The appellant’s flight caused no property damage or bodily injury, and thus
the felony flight conviction was predicated solely on the reckless driving element in
D.C. Code § 50-2201.05b (b)(2). Id.The government argued that the word “manner” in § 50-2201.05b (b)(2), as
in § 50-2201.04(b), describes only the action element—“the movement of the car”—
not “the driver’s state of mind.” Id. at 606. Accordingly, the government argued
that the reckless driving statute contains a mens rea element not embraced by the
merely mechanical recklessness sufficient to enhance the penalty to felony status
under the flight statute, § 50-2201.05b (b)(2). Id. In contrast, Mr. Pelote argued that
the reference to driving “the motor vehicle in a manner that would constitute reckless
driving under § 50-2201.04(b)” embraces all elements of reckless driving. Thus,
according to Mr. Pelote, the word “constitute” appears to cover reckless driving as
a whole.
9
Upon reviewing the legislative history, we determined that two plausible
interpretations existed, and that the rule of lenity should apply. 4 We ultimately held
that the reckless driving clause of D.C. Code § 50-2201.05b (b)(2) fully incorporates
the reckless driving statute, D.C. Code § 50-2201.04(b). Pelote, 21 A.3d. at 607.
As a result, because the reckless driving statute is wholly contained in the “reckless
driving” felony fleeing provision, we held that the two must merge under
Blockburger. Id.Both appellant and the government highlight the timing of our decisions in
Pelote and Fox for the purpose of determining which is the controlling precedent.
Fox was decided January 27, 2011, while Pelote was decided June 16, 2011.
However, we see no conflict between the two with respect to the issue in the present
case. Indeed, the central holdings in each case harmonize to reveal a straightforward
rule. Pelote holds that the reckless driving statute is wholly contained within the
reckless driving element of D.C. Code § 50-2201.05b (b)(2). 21 A.3d at 607. Fox
holds that, where a jury finds a defendant guilty of felony fleeing premised on
4
“When a penal statute is capable of two or more reasonable constructions
the ‘rule of lenity’ directs our attention to the least harsh among them.” U.S. Parole
Comm’n v. Noble, 693 A.2d 1084, 1103 (D.C.1997) (citation and internal quotation
marks omitted).
10
multiple theories—i.e., some combination of reckless driving, property damage, or
bodily injury—each theory is relevant under a Blockburger analysis. 11 A.3d at
1289. Together, the cases stand for the proposition that a felony fleeing conviction
based in part on theories of “property damage or bodily injury” does not merge with
a reckless driving conviction because the government must prove an additional fact
beyond what is necessary for a reckless driving conviction.
In this case, the indictment charged appellant with felony fleeing based on
both reckless driving and causing property damage and the trial court instructed the
jury on both theories. At trial, the government established, and the jury found, that
appellant caused property damage to both the Hyundai he was driving and the
Volkswagen he struck in the course of fleeing from law enforcement. Furthermore,
the parties stipulated that Ms. Alicsha Kelly was the owner of the Volkswagen Beetle
and that the collision on December 31, 2018, resulted in damages to her car totaling
$3,881.98. Accordingly, the offenses do not merge because the jury found appellant
guilty of felony fleeing premised in part on a theory of property damage, which is a
factual element that must be proved, but that is not contained in the reckless driving
statute.
11
III. Motion for Judgment of Acquittal
Next, appellant contends that the evidence presented at trial was insufficient
to establish that Officer Drake signaled appellant to stop. 5 D.C. Code §50-2201.05b
defines “signal” as “a communication made by hand, voice, or the use of emergency
lights, sirens, or other visual or aural devices.” Specifically, appellant points to the
lack of “audible proof” of a signal at trial and argues that the jury was required to
base its verdict on mere speculation, warranting reversal.
In assessing evidentiary insufficiency, we “view all of the evidence in the light
most favorable to the government and give deference to the right of the fact finder
to weigh the evidence, determine the credibility of the witnesses, and draw all
justifiable inferences of fact . . .” Belt v. United States, 149 A.3d 1048, 1053 (D.C.
2016) (cleaned up). To prevail, appellant “must establish that the government
presented no evidence upon which a reasonable mind could find guilt beyond a
5
As noted supra, “The felony offense of fleeing from a law enforcement
officer requires proof that a defendant (1) operated a motor vehicle; (2) knowingly
failed or refused to immediately stop the vehicle or fled or attempted to elude a law
enforcement officer, following a law enforcement officer’s signal to bring the motor
vehicle to a stop; and (3) drove the motor vehicle in a manner that (a) would
constitute reckless driving, or (b) caused property damage, or (c) caused bodily
injury.” Fox, 11 A.3d at 1289 (emphasis added) (citing D.C. Code §§ 50-2201.05b
(b)(1), (2)).
12
reasonable doubt.” Grissom v. United States, 102 A.3d 1163, 1166 (D.C. 2014)
(internal citations and quotations omitted).
Considered under these standards, appellant’s argument is unconvincing.
Officer Drake testified at trial that he not only identified himself as a police officer
when he opened the car door, but also instructed appellant to step out of the vehicle
and continued to instruct appellant to stop the car when appellant began to drive
away. See Tann v. United States, 127 A.3d 400, 430 (D.C. 2015) (“[T]he testimony
of a single witness is sufficient to sustain a conviction, even where contradicted by
other witnesses or evidence . . . .We afford the jury’s credibility determination
substantial deference on appellate review.”). When viewed in the light most
favorable to the government, Officer Drake’s testimony presents a sufficient basis
for “which a reasonable mind could find guilt beyond a reasonable doubt.” Watson
v. United States, 979 A.2d 1254, 1256 (D.C. 2009). Thus, the trial court did not err
in denying appellant’s motion.
IV. Conclusion
Accordingly, the trial court’s judgments on appellant’s fleeing and reckless
driving convictions are hereby
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Affirmed