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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 11-CF-1670, 11-CF-1671 and 12-CF-7

JAMARR MEDLEY

ANTOINE RICHARDSON and

LUCIOUS MCLEOD, APPELLANTS,

V.

UNITED STATES, APPELLEE. 

Appeals from the Superior Court

of the District of Columbia

(CF3-25785-09, CF3-4288-10 and CF3-2027-11)

(Hon. Ann O‟Regan Keary, Trial Judge)

(Argued September 16, 2014 Decided December 18, 2014)

Mikel-Meredith Weidman, Public Defender Service, with whom James 

Klein, Jaclyn Frankfurt and Shilpa Satoskar, Public Defender Service, were on the 

brief, for appellant Medley.

Antoine F. Richardson, pro se.

Cory L. Carlyle for appellant McLeod.

Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald 

C. Machen, Jr., United States Attorney, and Elizabeth Trosman, John P. 

Mannarino and David Gorman, Assistant United States Attorneys, were on the 

brief for appellee.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and REID, 

Senior Judge.
2

THOMPSON, Associate Judge: Following a joint jury trial, appellants Antoine 

Richardson and Jamarr Medley were found guilty of assault with a dangerous 

weapon (ADW), aggravated assault while armed (AAWA), and assault with 

significant bodily injury (ASBI), and appellant Lucious McLeod was found guilty 

of assault with intent to kill while armed (AWIKWA), AAWA, ASBI, and 

obstruction of justice. Appellants raised several claims on appeal. Richardson 

argues that the trials were misjoined under Super. Ct. Crim. R. 8 (b). Each 

appellant argues that his trial should have been severed from the trial of the other 

appellants. Medley and McLeod contend that statements made by appellant 

Richardson during recorded jail calls should not have been admitted without 

(further) redaction and also argue that some of their convictions merge. 

Richardson and Medley argue that the victim did not suffer “serious bodily injury” 

for purposes of the AAWA statute, and therefore that their AAWA convictions 

should be reversed. In addition, Richardson assigns as error the trial court‟s (1) 

admission of evidence that he previously assaulted another individual; (2) failure to 

instruct the jury that Richardson‟s initial encounter with the victim was not part of 

the charged conduct; and (3) refusal to provide a missing evidence instruction to 

the jury. Richardson also raises an issue with respect to the Bureau of Prison‟s 

payment schedule for the fines imposed as part of his sentence. For the reasons 
3

that follow, we affirm but remand for the trial court to vacate the convictions that 

merge with appellants‟ AAWA convictions. 

I. Background

Appellants‟ convictions arose out of two assault incidents, involving the 

same victim but transpiring a year apart from each other. Only Medley and 

Richardson were charged with the first assault; only McLeod was charged with the 

second assault. The jury heard the following evidence. 

A. The November 10, 2009, Assault (Richardson and Medley)

Cordell Brown testified that on November 10, 2009, he was walking on B 

Street, S.E., near its intersection with Bass Place, when appellant Richardson 

approached him. According to Brown, Richardson asked him why he had 

provided cocaine to Jeanetta Smith, a young woman with whom Richardson was 

romantically involved. Although Brown denied having given cocaine to Smith, 

Richardson responded by hitting Brown on the head with a pole. 
4

Brown testified that he walked around a corner to escape Richardson, but 

saw Richardson come around the corner, following him. When Brown approached 

Richardson and said, “Man, you hit me,” Richardson again used the pole to hit 

him. Brown and Richardson began grappling, with Brown pinning Richardson‟s 

arms, pushing him against a wall, and head-butting him. Brown then felt 

something hit his back. He turned and saw appellant Medley (and no one else) 

directly behind him. Moments later, Brown felt something stab him in his side.

Cheryl Jones, Brown‟s girlfriend at the time, testified that she was in a first 

floor apartment on Bass Place on November 10, 2009, when she heard Brown, 

from outside, saying that a man had hit him for no reason. Jones came outside and 

saw that Brown had a bleeding knot on his head. Brown told her that Richardson 

had just hit him, and, a moment later, Jones saw Richardson come around the 

corner. Brown then approached Richardson, and the two began fighting. Jones 

saw Richardson hit Brown with a “black gate” and saw Medley hit Brown with a 

chair. Richardson and Medley fled soon after. 

B. Richardson’s calls from jail
5

Richardson was arrested on December 6, 2009, but Medley was not arrested 

until May 7, 2010. While in jail, Richardson made a series of phone calls that were 

recorded and which the government introduced at trial, with some redactions. In 

one call, Richardson said that he needed McLeod to “get on top of” the situation 

and to “talk to people.” A few seconds later, Richardson added that Medley 

“need[ed] to do something” as well. In still another call, Richardson asked the 

other speaker to find McLeod and tell him, “[Richardson] says he needs you on 

this.” 

C. Medley’s and McLeod’s repeated approaches to Brown and Jones

The jury heard from Jones, who confirmed her grand jury testimony, that, 

shortly after the 2009 assault, Medley approached her twice, once in a laundromat 

to ask her for Brown‟s location, and once to ask her to “make peace” and have 

Brown drop the charges. Brown testified that, on one occasion after the November 

2009 assault, he was at the Benco Shopping Center, a few blocks from the scene of 

the assault, when he saw McLeod and Medley coming towards him.1 At seeing 

Medley, Brown fled to the nearby Metro station. Jones testified similarly about the 

 

1

 During cross-examination, Brown clarified that McLeod and Medley were 

not approaching together.
6

event, adding that Medley specifically asked to speak with Brown during this 

incident. 

On another occasion after the November 2009 assault, McLeod approached 

Brown and repeatedly said, “I know you ain‟t going to court[.]” Brown responded 

by expressing his intention to testify against his assailants. On a third occasion, 

McLeod offered Brown money to not go to court. 

D. The November 1, 2010, Assault (McLeod)

On November 1, 2010, four weeks before the scheduled trial date for the 

2009 assault, Brown was attacked again. According to Brown‟s testimony, he was 

walking alone on Texas Avenue, heard someone call his name, turned around, and 

saw appellant McLeod, whom he had known for several years as a friend of 

Richardson‟s, immediately behind him. McLeod stabbed Brown in his left breast 

and said, as Brown slumped to the ground, “I knew I would catch you by 

yourself.” Brown testified that McLeod struck him several times before he was 

able to escape down Texas Avenue. He remembered stopping to throw up blood, 

and the next thing he knew, he was in an ambulance. 
7

II. Analysis

A. Joinder

Richardson challenges the trial court‟s decision to join appellants‟ trials 

under Super. Ct. Crim. R. 8 (b), a decision the court based on its finding that the 

two assaults were part of the “same series of acts or transactions[.]” 2 Super. Ct. 

Crim. R. 8 (b). Our case law establishes that separate offenses can constitute a 

joinable “series of acts or transactions” where “one offense logically leads to 

another[.]” Settles v. United States, 522 A.2d 348, 352 (D.C. 1987) (quoting Davis 

v. United States, 367 A.2d 1254, 1262 (D.C. 1976). An offense leads logically to 

another when one crime is a “sequel” to the other. Bush v. United States, 516 A.2d 

186, 192 (D.C. 1986). “Sequel” offenses include, inter alia, attempts to obstruct 

justice, which make appropriate the joint trial of an underlying offense and 

 

2

 A trial court‟s decision to jointly try defendants presents a question of law 

and is subject to de novo review. Ball v. United States, 26 A.3d 764, 767 (D.C. 

2011) (citing Ray v. United States, 472 A.2d 854, 857 (D.C. 1984)). “There is, 

traditionally, a presumption in favor of joinder . . . because joint trials „do conserve 

state funds, diminish inconvenience to witnesses and public authorities, and avoid 

delays in bringing those accused of crime to trial.‟” Carpenter v. United 

States, 430 A.2d 496, 502 (D.C. 1981) (en banc) (citation omitted).
8

additional offenses committed by others in an attempt to hide the underlying 

offense. See id.3 

Here, trials for the 2009 and 2010 assaults were properly joined because 

“joinder of defendants is proper under Rule 8 (b) „if they are alleged to have 

participated in the . . . same series of acts or transactions[.]‟” Jackson, 329 A.2d at 

787 (emphasis in original). The 2010 assault was motivated, according to the 

government‟s theory of the case, by McLeod‟s desire to prevent Brown from 

testifying against Richardson as to the 2009 assault, and the government so alleged 

in the indictment. Further, the government introduced evidence at trial to 

corroborate its theory, including evidence that Richardson and McLeod were 

friends, that Richardson asserted in telephone calls made from jail that he needed 

McLeod to “get on top of” the situation, and that McLeod repeatedly attempted to 

talk Brown out of testifying before he resorted to violence. Thus, “while [the 

government‟s theory] rest[ed] upon inference, the evidence show[ed] a sufficient 

 

3

 See also, e.g., Sams v. United States, 721 A.2d 945, 953-54 (D.C. 1998) 

(affirming joinder of assault charge with obstruction of justice charge when one of 

the assailants threatened a material witness); Taylor v. United States, 603 A.2d 

451, 455-56 (D.C. 1992) (affirming joinder of defendants charged with assault and 

perjury, respectively, as the perjury was an attempted cover-up of the other 

offense); Jackson v. United States, 329 A.2d 782, 787 (D.C. 1974) (affirming 

joinder of two defendants when one was charged with murder and the other with 

intimidating a witness).
9

nexus between [Richardson and McLeod] to support the inclusion in the indictment 

of a charge” that McLeod endeavored forcibly to obstruct justice by assaulting 

Brown. Id. 

B. Severance

Even in cases where joinder under Rule 8 (b) is appropriate, severance may 

still be necessary under Rule 14, which protects parties from “manifest prejudice as 

a result of being tried jointly.” Harrison v. United States, 76 A.3d 826, 834 (D.C. 

2013) (quoting Hargraves v. United States, 62 A.3d 107, 115-16 (D.C. 2013) 

(internal quotation marks omitted); Super. Ct. Crim. R. 14. A party seeking 

reversal based on the trial court‟s refusal to sever properly joined offenses must 

show the “most compelling prejudice.” Winestock v. United States, 429 A.2d 519, 

527 (D.C. 1981) (quoting United States v. Rhodes, 569 F.2d 384, 390 (5th Cir. 

1978)). “[S]ome amount of prejudice will be permitted in favor of judicial 

economy and the concomitant expedition of cases.” Carpenter, 430 A.2d at 502. 

The decision to sever properly joined offenses is committed to the discretion of the 

trial court and will be reversed only when the appellant makes a “clear showing 

that [the trial court] has abused its considerable discretion.” Sterling v. United 

States, 691 A.2d 126, 135 (D.C. 1997). 
10

1. Medley’s arguments

Medley argues that he suffered compelling prejudice from joinder because it 

enabled the prosecutors, in their opening statement and closing argument, to 

portray the two assaults as if they were part of “a protracted joint campaign” or 

“uncharged conspiracy to obstruct justice,” and as if the 2010 stabbing that left 

Brown “on the brink of death” — evidence of which “would not have been 

admissible if Medley had been tried separately on . . . the 2009 assault” — was 

“the product of coordination and cooperation among” the three defendants. 

Medley contends that joinder “created an impression that [he] participated in his 

codefendants‟ efforts to obstruct justice” and thus “significantly increased the 

likelihood that the jury would find him guilty of the 2009 assault.” He argues that 

the joinder, which permitted the jury to hear evidence that suggested his 

connection with a plan to silence Brown, made it “more plausible that [he] was 

participating in a violent assault at the behest of Richardson, rather than defending 

his friend after he saw him pinned against a wall.” 

Medley‟s arguments do not persuade us that he suffered manifest prejudice 

from joinder. It is settled that “[t]he fact that „a defendant would have had a better 
11

chance of acquittal had he been tried alone‟ is not, in and of itself, a basis for 

holding that the denial of severance constitutes an abuse of discretion.” Sousa v. 

United States, 400 A.2d 1036, 1042 (D.C. 1979). We have found manifest 

prejudice, such as would require severance under Rule 14, where one defendant is 

associated with a significantly more heinous crime committed solely by codefendants,4 where the evidence against one defendant is de minimis compared to 

the evidence against another,5 where one defendant makes an inculpatory statement 

that cannot be admitted against a co-defendant,6 where refusal to sever prevents a 

defendant from testifying on a co-defendant‟s behalf,7or where defendants present 

conflicting defenses such that there is “a danger or risk „that the jury will conclude 

guilt from the conflict alone[.]‟”8 None of these circumstances was present in this 

case. The 2009 and 2010 assaults were similarly heinous, both resulting in 

 

4

 Sousa, 400 A.2d at 1041-42 (holding severance required when assault and 

weapon possession charges against one defendant where joined with murder 

charges against other defendants). 

5

 Bush, 516 A.2d at 192. 

6

 Morris v. United States, 548 A.2d 1383, 1387 (D.C. 1988); see also 

Ingram v. United States, 40 A.3d 887, 897 (D.C. 2012). 

7

 Williams v. United States, 884 A.2d 587, 593-94 (D.C. 2005). 

8

 Sams, 721 A.2d at 954 (quoting Tillman v. United States, 519 A.2d 166, 

170 (D.C. 1986)); see also Dancy v. United States, 745 A.2d 259, 266 (D.C. 2000). 
12

Brown‟s hospitalization due to multiple stab wounds. The evidence against 

Medley was not de minimis compared to the evidence against Richardson and 

McLeod. The government produced two eyewitnesses, Brown and Jones, to 

Medley‟s role in the 2009 attack, just as it did with respect to Richardson‟s, and 

presented post-incident consciousness-of-guilt evidence as to Medley (testimony 

about the numerous times Medley approached Jones or Brown after the 2009 

assault) just as it did as to Richardson. The government would have been able to 

introduce such evidence even if Medley had been tried separately. Jurors were 

instructed not to consider Richardson‟s jail calls against Medley,9and the calls‟ 

probative value after redaction10 was of such limited utility (except as to 

Richardson‟s state of mind) that we are satisfied Medley did not suffer manifest 

prejudice from the jury hearing them. Further, the very severity of the injuries that 

Medley allegedly inflicted on Brown — stab wounds that came close to the 

peritoneal cavity and that would have been life-threatening had they gone a little 

deeper — made Medley‟s defense-of-another claim suspect. 

 

9

 The jury is “presumed to have followed” the court‟s instruction. Catlett v. 

United States, 545 A.2d 1202, 1212 (D.C. 1988).

10

 The trial court redacted Richardson‟s statements that he was “sitting here 

[in prison] taking the lick by [him]self . . . .” and that Medley was “dipping and 

dodging[,]” reasoning that those statements suggested Medley shared responsibility 

for the 2009 assault. 
13

Medley also emphasizes that the trial court did not keep the evidence of the 

two assaults “separate and distinct.” This is correct as a factual matter: Many of 

the government witnesses, including Brown, Jones, and Dr. Cooper (who treated 

Brown at the hospital after each assault), testified about both assaults; the

prosecutor elicited testimony about the incidents by going back and forth between 

both assaults during the same examination; and the testimony was not presented in 

strict chronological order. In short, the presentation of evidence fluctuated back 

and forth between the two events in a manner we have previously found 

unacceptable in matters joined under Super. Ct. Crim. R. 8 (a).11 Importantly, 

however, the “separate and distinct” standard does not govern our review of 

appellants‟ severance claims because joinder was pursuant to Rule 8 (b). 

The requirement that properly joined offenses be tried in a “separate and 

distinct” manner was originally articulated in United States v. Drew. 331 F.2d 85, 

91 (D.C. Cir. 1964). As the D.C. Circuit explained, when offenses alleged to have 

been committed at different times by a single defendant are joined for trial under 

Rule 8 (a), “the defendant may be prejudiced [because] . . . the jury may cumulate 

 

11

 See Bright v. United States, 698 A.2d 450, 456-57 (D.C. 1997); Long v. 

United States, 687 A.2d 1331, 1339-40 (D.C. 1996); Arnold v. United States, 511 

A.2d 399, 404-05 (D.C. 1986). Rule 8 (a) allows a prosecutor to try a single 

defendant for a multiple crimes allegedly committed at an assortment of times and 

places. See Bailey v. United States, 10 A.3d 637, 642-43 (D.C. 2010).
14

the evidence of the various crimes charged and find guilt when, if considered 

separately, it would not so find.” Drew, 331 F.2d at 88 (emphasis added). But, the 

Drew court reasoned, a defendant will not suffer prejudice from joinder when the 

evidence is presented in a “simple and distinct” manner, because a properly 

charged jury could “easily keep such evidence separate in their deliberations” and, 

therefore “[substantially reduce] the danger of . . . cumulating the evidence[.]” 

Drew, 331 F.2d at 91. This court has consistently applied this “simple and 

distinct” requirement, which has come to be known as the “separate and distinct” 

test,12 in Rule 8 (a) cases (including the cases on which Medley relied on pages 31 

and 32 of his brief). See, e.g., Bailey, 10 A.3d at 643-44; McFerguson v. United 

States, 870 A.2d 1199, 1202-03 (D.C. 2005); Taylor, 603 A.2d at 456-57. We 

have not, however, required application of the “separate and distinct” test in 

resolving claims, such as appellants‟ claims here, that are based on joinder under 

Rule 8 (b).13 Nor is it appropriate to do so, since Rule 8 (b)‟s “same series of acts 

 

12

 See Long, 687 A.2d at 1340 n.5.

13

 This is notwithstanding the reference in Sanders v. United States, 809 

A.2d 584, 598 (D.C. 2002), to certain evidence having been kept separate and 

distinct in matters joined for trial under Rule 8 (b).
15

or transactions” criterion is antithetical to trying joined offenses in a “separate and 

distinct” manner.14 

2. Richardson’s and McLeod’s arguments

 

Richardson argues that severance was required because of “unfair prejudice 

resulting from the brutal 2010 injuries,” as to which only McLeod was charged. 

However, although Brown remained in the hospital longer (seven days) after the 

2010 assault than he had after the 2009 attack, his injuries during the two assaults 

were similarly serious. During the 2009 assault, he suffered a stellate (or 

“starburst”-type) injury to the back of his head, a stab wound to his left, upper 

back, a stab wound to his left flank, and lacerations to his forehead and chin. Upon 

admission to the hospital after the 2010 assault, he was suffering from severe 

respiratory distress due to two punctured lungs and five stab wounds. He was 

given the same pain medication as was prescribed after the 2009 assault: Percocet, 

morphine, and Motrin. 

 

14 See Davis, 367 A.2d at 1261 (“The series of acts envisioned by the 

drafters of Rule 8 (b) is one in which the individual offenses are connected or 

interrelated in such a manner that proof of charges against one defendant would 

necessarily have to be introduced in proving the jointly-charged offenses . . . .”). 
16

Richardson also asserts that he was prejudiced by joinder because the jury 

heard what he argues were hearsay statements that McLeod made to Brown. We 

agree with the government that McLeod‟s statements, “I know you ain‟t going to 

court” and “I knew I would catch you by yourself[,]” were non-hearsay verbal acts 

or evidence of McLeod‟s state of mind. Richardson‟s suggestion that the jury 

might not have heard the statements had Richardson been tried separately 

overlooks the point that statements McLeod made in an effort to convince Brown 

not to testify still would have been admissible as consciousness-of-guilt evidence 

against Richardson (in conjunction with the jail calls in which Richardson called

for McLeod to “talk to people”). 

McLeod acknowledges that “some evidence of the 2009 assault may have 

been admissible as background to the 2010 assault[.]” We are not persuaded by his 

vague argument that he nevertheless was unfairly prejudiced by joinder because 

much of the “duplicative” evidence about the 2009 assault would not have been 

admissible had he been tried separately. McLeod also argues that absent joinder, 

Richardson‟s “hearsay” statements in the jail calls could not have been introduced. 

However, for the reasons discussed infra, Richardson‟s statements in the redacted 

jail calls were not hearsay. Also, the statements would have been admissible 
17

against McLeod in a separate trial to prove the close friendship between 

Richardson and McLeod. 

C. Admission of Richardson’s Jail Calls

The trial court admitted Richardson‟s jail calls as substantive evidence 

against both Richardson and McLeod but instructed the jury not to use the calls 

against Medley.15 Medley and McLeod now argue that Richardson‟s jail calls 

should not have been admitted at trial without first redacting their (nick)names 

from the recordings. 

As we recognized in Carpenter v. United States, trial courts have a duty “to 

reduce or eliminate any prejudice arising from” the joint trial of defendants. 

Carpenter, 430 A.2d at 503. This duty includes “minimiz[ing] potential prejudice” 

to one defendant that would stem from the admission of his co-defendant‟s out-ofcourt statement if that statement would not have been admissible against the 

defendant in a separate trial. Carpenter, 430 A.2d at 505. Hence, in a joint trial, 

inculpatory statements admissible against a single defendant should be redacted so 

 

15

 We note that, in closing argument, the prosecutor told the jury that the 

calls were “only admitted for Mr. Richardson‟s case.” 
18

as to remove incriminating references to a co-defendant “whenever such portions 

may be effectively deleted and the statement thus „sanitized[.]‟” Carpenter, 430 

A.2d at 505. However, the requirements of Carpenter do not apply when the 

statement at issue “falls within an exception to the hearsay rule[.]” Thomas v. 

United States, 978 A.2d 1211, 1224 (D.C. 2009). 

The Carpenter requirements do not apply here because none of the 

statements about which Medley and McLeod complain constituted hearsay, i.e., 

out-of-court statements “offer[ed] in evidence to prove the truth of the matter 

asserted in the statement.” Fed. R. Evid. 801(c)(2); Jenkins v. United States, 80 

A.3d 978, 989 (D.C. 2013). None of Richardson‟s statements asserted that 

something happened or that a certain fact was true. The statements, which were 

relevant as evidence of Richardson‟s consciousness of guilt, were either assertions 

that something ought to occur or were directives or verbal acts introduced by the 

government in support of its theory that Richardson was seeking to have his friends 

silence Brown. See Walker v. United States, 982 A.2d 723, 737 (D.C. 2009) 

(quoting Butler v. United States, 481 A.2d 431, 438 n.10 (D.C. 1984)). 
19

Even if we assume arguendo that Richardson‟s statements were hearsay, we 

are satisfied, as to both Medley and McLeod, that any prejudicial effect of the 

phone calls was minimal. Throughout the portions of the calls heard by the jury, 

Richardson referred to obtaining statements on behalf of his investigator. 

Although the prosecutor argued, outside the presence of the jury, that Richardson 

was using code to communicate a much more sinister message, the jury did not 

hear that interpretation, and, as discussed above, the most obviously prejudicial 

aspects of the phone calls were redacted, leaving the jury with little to hear but 

Richardson asking his friends to help the investigator. We also are satisfied that 

any prejudicial effect as to Medley was minimized still more by the court‟s 

limiting instruction that the calls were not to be used as evidence against him. As 

to McLeod, given the much more powerful and less ambiguous evidence the jury 

heard — Brown‟s testimony about McLeod‟s efforts to persuade him not to testify 

and about McLeod‟s vicious assault on him — we can say “with fair assurance” 

that the jury‟s “judgment was not substantially swayed” by admission of the calls. 

Kotteakos v. United States, 328 U.S. 750, 765 (1946). 

D. Sufficiency of Evidence for “Serious Bodily Injury”
20

Appellants Richardson and Medley argue that the government produced 

insufficient evidence for a reasonable jury to find that the injuries Brown suffered 

from the 2009 assault rose to the level of “serious bodily injury,” which is an 

element of the crime of aggravated assault while armed (AAWA).16 We disagree.

This Court has adopted the following definition of “serious bodily injury”: 

bodily injury that involves a substantial risk of death, 

unconsciousness, extreme physical pain, protracted and 

obvious disfigurement, or protracted loss or impairment 

of the function of a bodily member, organ or mental 

faculty. 

Nixon v. United States, 730 A.2d 145, 149 (D.C. 1999). We have clarified that 

“the „substantial risk‟ of which Nixon speaks is only a substantial risk of death, not 

a substantial risk of extreme pain, disfigurement, or any of the other conditions 

listed.” Scott v. United States, 954 A.2d 1037, 1046 (D.C. 2008). 

 

16

 When analyzing the sufficiency of the evidence, we view the evidence 

“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 of 

fact, and making no distinction between direct and circumstantial 

evidence.” Curry v. United States, 520 A.2d 255, 263 (D.C. 1987) (citations 

omitted). “[I]t is only where the government has produced no evidence from 

which a reasonable mind might fairly infer guilt beyond a reasonable doubt that 

this court can reverse a conviction.” Zanders v. United States, 678 A.2d 556, 563 

(D.C. 1996) (citations omitted).
21

The government relies on two elements from the definition of “serious 

bodily injury” to support its argument that the evidence was sufficient to prove 

serious bodily injury: extreme physical pain and unconsciousness. As to pain, we 

have said that victims need not describe their pain in a particular manner in order 

to meet the “extreme” standard, Swinton v. United States, 902 A.2d 772, 777 (D.C. 

2006), and that jurors may “infer from the nature of [the victim‟s] injuries, and 

from [the victim‟s] reaction to them, that the pain was extreme.” Gathy v. United 

States, 754 A.2d 912, 918 (D.C. 2000). Other factors that may be relevant to 

whether a reasonable juror could find that a particular injury caused “extreme 

physical pain” include (1) the need for and number of stitches the victim received; 

(2) the length of the victim‟s hospital stay; (3) the victim‟s behavior immediately 

after the assault; and (4) whether the victim received prescription pain medication. 

Several of our previous cases are instructive. In Jenkins v. United States, the 

victim was attacked with a seven or eight inch knife, suffered multiple stab wounds 

in the stomach, chest, and arm, was bleeding profusely, required emergency 

exploratory surgery, remained in the hospital for five days, and received 

prescription pain medication. Jenkins v. United States, 877 A.2d 1062, 1071-72 

(D.C. 2005). Hence, even though the victim was found leaning against a mailbox 

at the scene of the attack and never testified that he suffered “extreme” pain, his 
22

injuries were sufficient for a reasonable jury to find that he suffered the “extreme 

physical pain” of a “serious bodily injury.” Id. at 1071-72. In Anderson v. United 

States, the evidence sufficed to prove severe bodily injury because it showed that 

the victim was stabbed in her kidney, required immediate surgery that left a “six to 

eleven inch scar on [her] belly,” suffered a broken nose and sinus bone, and 

received prescription pain medication. Anderson v. United States, 857 A.2d 451, 

464-65 (D.C. 2004), We reached the same conclusion in Hart v. United States, 

where the victim suffered multiple stab wounds in her arm and vagina, required 

seventy-two stitches, spent four days in the hospital, and continued to feel pain 

from her injuries at the time of trial. Hart v. United States, 863 A.2d 866, 875 

(D.C. 2004). And in Baker v. United States, the victim was stabbed five or six 

times, including three times in the head; remained in the hospital for five days; 

received 40 staples in his arm and 35-40 staples in his stomach; and suffered 

severe blood loss. Baker v. United States, 867 A.2d 988, 995, 1009 (D.C. 2005). 

Again, these injuries were sufficient for a reasonable jury to find that the victim 

suffered “extreme physical pain,” even though he did not testify about the extent of 

his pain at trial. Id. at 1009 n.26. 

Here, the jury heard evidence that during the November 2009 incident, 

Brown suffered a stellate or starburst-type injury to the back of his head, a stab 
23

wound to his left, upper back, a stab wound to his left flank, and lacerations to his 

forehead and chin. He received 18 staples to close the wound to his head, and his 

other injuries were also treated with sutures and staples. According to Dr. Cooper, 

Brown‟s injuries were “very painful,” and the “only reason [Dr. Cooper] admitted 

him to the hospital was to control his pain, as well as to make sure that none of the 

injuries that he had evolved into other things.” Brown remained in the hospital 

from the night of November 10 until November 12 and received morphine, 

Percocet, and Motrin for his pain. Brown described the pain as “terrible,” as if 

someone had “split [his head] open.” Unlike the situation of the victims in 

Bolanos v. United States, there is no indication that Brown was able to walk away 

from the scene on his own. Bolanos v. United States, 938 A.2d 672, 681-82 (D.C. 

2007). Months after the 2009 assault, Brown was “still hurting” from the attack 

and in need of pain medication. And, at the time of trial, he testified that he still 

suffered from headaches and pain from the stab wound to his flank. 

Considering the foregoing evidence of Brown‟s pain, we cannot say, as a 

matter of law, that the evidence was insufficient to prove that he suffered “serious 

bodily injury” within the meaning of the aggravated assault statute.17 This is 

 

17

 Given the foregoing conclusion, we need not discuss the government‟s 

argument that the evidence of unconsciousness in this case sufficed to establish 

(continued...)
24

especially so in light of the additional evidence that Brown suffered some 

“protracted . . . impairment of the function” of bodily members. Nixon, 730 A.2d 

at 149. The officer who arrived at the scene of the assault found Brown to be 

“confused, dazed . . . [and] unsteady,” and, at the time of the 2010 attack nearly a 

year later, Brown was still using a cane due to dizziness. He also testified that he 

could not sit too long because, if he did, the wound to his side would cause him to 

cramp, and he would be unable to “move [his] leg right.” 

E. Evidence of the Earlier Assault on “Black”

Appellant Richardson argues that the trial court erroneously admitted 

evidence of a prior bad act when it allowed Jeanetta Smith to testify that he 

assaulted a man known as “Black.” Specifically, Smith testified that she admitted 

to Richardson that Black had provided her with cocaine and that, after hearing this 

 

(...continued)

serious bodily injury or Medley‟s argument that the evidence of unconsciousness 

was speculative. We note, however, that while Brown‟s testimony that he fell 

unconscious after the 2009 assault was contradicted at least in part by the 

testimony from Officer Smith, Detective Herndon, and Dr. Cooper, each of whom 

reported he spoke with Brown at a time when Brown claimed to have been 

unconscious, the testimony of those witnesses did not cover the entire timespan 

between the assault and Brown‟s treatment at the hospital. The jury was also not 

required to conclude that Brown‟s inability to remember some of what happened 

after the 2009 assault was attributable to memory problems from his head injury 

rather than to a period(s) of unconsciousness. 
25

news, Richardson physically assaulted Black. The government offered this 

evidence to show Richardson‟s motive for attacking Brown — outrage at someone 

he understood to have supplied drugs to Smith — thus countering Richardson‟s 

contention that he acted against Brown in self-defense. 

While evidence of prior criminal conduct is not admissible to prove that a 

defendant has the propensity to engage in criminal behavior, Drew, 331 F.2d at 89-

90, evidence of prior bad acts may be admissible for other purposes, such as to 

prove motive. Johnson v. United States, 683 A.2d 1087, 1092 (D.C. 1996) (citing 

Drew, 331 F.2d at 90). Even if evidence of a prior bad act falls into an exception, 

however, before admitting it the trial court must find, inter alia, that the evidence 

is relevant to “a genuine and material issue” in the case;18 that the prosecution has 

established, by clear and convincing evidence, that the prior bad act did occur;19

and that the prejudicial effect of the evidence does not substantially outweigh its 

 

18

 Thompson v. United States, 546 A.2d 414, 420, 423 (D.C. 1988) (“We . . . 

hold that where intent is not controverted in any meaningful sense, evidence of 

other crimes to prove intent is so prejudicial per se that it is inadmissible as a 

matter of law.”); Campbell v. United States, 450 A.2d 428, 430 (D.C. 1982). 

19

 Johnson, 683 A.2d at 1093. 
26

probative value.20 “Regarding the last factor, the appropriate balancing test is 

whether the prejudicial impact of the evidence „substantially‟ outweighs its 

probative value.” Bacchus, 970 A.2d at 273 (citation omitted). We review a trial 

court‟s admission of evidence, including its decision on whether evidence is more 

prejudicial than probative, for abuse of discretion. Jackson v. United States, 856 

A.2d 1111, 1117 (D.C. 2004). 

Here, Richardson‟s defense was that he acted in self-defense. By doing so, 

he put his own state of mind at issue, causing the government to have to prove that 

Richardson was not motivated by a reasonable belief that he needed to protect 

himself. Garibay v. United States, 634 A.2d 946, 948 (D.C. 1993) (“[A] selfdefense claim raises the issue of whether the defendant was acting out of an actual 

and reasonable fear of imminent bodily harm, or whether, instead, the defendant 

had some other motive and was, in fact, the aggressor.”). The issue of 

Richardson‟s motive was, therefore, a genuine and material issue before the jury.

In determining whether the government provided clear and convincing 

evidence that Richardson assaulted Black, the trial court was permitted to base its 

 

20

 Bacchus v. United States, 970 A.2d 269, 273 (D.C. 2009); Thompson, 546 

A.2d at 420. 
27

ruling on a “detailed proffer from the government.” Daniels v. United States, 613 

A.2d 342, 347 (D.C. 1992) (quoting Groves v. United States, 564 A.2d 372, 375

(D.C. 1989)). In this case, the trial court did not explicitly find that the 

government had proffered clear and convincing evidence of Richardson‟s 

involvement in the earlier assault, despite a request by Richardson‟s counsel for 

such a finding. As we stated in Lewis v. United States, where “the trial court and 

counsel engaged in several extensive colloquies regarding the Drew issue” without 

the trial court ever making an express finding as to the sufficiency of the 

government‟s evidence, “the failure of the trial court to make all the necessary 

inquiries in exercising its discretion constitutes error.” Lewis v. United States, 567 

A.2d 1326, 1330 (D.C. 1989). Accordingly, we review the trial court‟s failure 

explicitly to make the requisite finding for harmless error. White v. United States, 

613 A.2d 869, 874 (D.C. 1992). We conclude that the error was harmless, because 

the government‟s proffer was clearly adequate. The government proffered that 

Smith had testified before the grand jury that (1) shortly before the 2009 assault on 

Brown, she told Richardson that Black had provided her with a cocaine-laced 

marijuana cigarette; (2) she named Brown as another individual who was with her 

when she smoked the drugs or was supplied the drugs; (3) Richardson became very 

angry when she told him these things; and (4) she shortly thereafter witnessed 

Richardson “beat up” Black. Although defense counsel proffered that Black 
28

himself disagreed with Smith‟s characterization of his fight with Richardson, 

“[t]his court has held that an eyewitness‟ testimony of h[er] observations of the 

prior bad acts meets the required standard of showing by clear and convincing 

evidence that the defendant was connected with the prior unlawful conduct for 

purposes of admission of evidence under a Drew exception.” Frye v. United 

States, 926 A.2d 1085, 1094 (D.C. 2005). 

We next must determine whether evidence of Richardson‟s earlier assault on 

Black was probative of Richardson‟s motive to attack Brown in a way that “did not 

depend „wholly or primarily on the jury inferring‟ that appellant „was predisposed 

or had a propensity to commit the charged crimes.‟” Legette v. United States, 69 

A.3d 373, 384 (D.C. 2013) (quoting Harrison v. United States, 30 A.3d 169, 178 

(D.C. 2011). We have recognized on numerous occasions that previous assaults 

against the same victim can serve as motive evidence, demonstrating the 

appellant‟s incentive to attack the victim yet again. See, e.g., Garibay, 634 A.2d at 

948-49; Hill v. United States, 600 A.2d 58, 62 (D.C. 1991). By contrast, we have 

recognized that when successive victims are involved, evidence of motive can 

“verge[] upon inadmissibility as mere propensity evidence.” Harrison v. United 

States, 30 A.3d at 178 (quoting Robinson v. United States, 623 A.2d 1234, 1239 

(D.C.1993)) (internal quotation marks omitted) (holding that evidence that a school 
29

teacher had made inappropriate, sexual remarks to teenage girls was inadmissible 

propensity evidence when he was on trial for sexually assaulting a different 

teenager). Here, however, we are satisfied that the motive evidence was not 

evidence suggesting that appellant had a general propensity to commit assaults; 

rather, it was evidence suggesting that, if the information appellant received about 

Black and Brown supplying cocaine to Smith led Richardson to be angry at both 

men and to attack Black, that information and anger — and not self-defense, as 

Richardson claimed — were what led Richardson to attack Brown not long after 

attacking Black. We therefore agree with the trial court that evidence of 

Richardson‟s earlier assault on Black was not mere propensity evidence, elicited to 

show Richardson‟s violent nature. Rather, it was probative of Richardson‟s 

narrow, specific motive to single out Brown and physically harm him. 

We are also satisfied that the evidence of Richardson‟s earlier assault on 

Black was not substantially more prejudicial than probative. Bacchus, 970 A.2d at 

273. The evidence was highly probative, demonstrating not only the depth of 

Richardson‟s anger but aiding the jury in weighing whether the government had 

carried its burden of proof against Richardson‟s contention that he acted in selfdefense. At the same time, the prejudicial effect, while certainly present, was 

minimal. Few specifics about the attack on Black were provided, and the jury was 
30

not even told whether Black sustained any injuries, learning only that Richardson 

“[b]asically” got the better of Black and “put him out of the house.” 

F. The Initial Encounter Between Brown and Richardson as Part of the 

Charged Conduct

As described above, Brown testified that the November 10, 2009 incident 

occurred in two separate locations. Brown testified that, during what Richardson 

refers to as the “first encounter,” Richardson confronted Brown about providing 

cocaine to Smith and then struck Brown on the head with a pole. After Brown 

escaped around a corner, Richardson followed, and, in what Richardson refers to as 

the “second encounter,” the two men approached each other, the two began 

grappling, Medley appeared on the scene behind Brown, and Brown was stabbed.

Richardson argues that since the indictment charged both Richardson and Medley 

with committing an aggravated assault on Brown and since there was no evidence 

that Medley was involved in the “first encounter,” the “first encounter” could not 

have been part of the charged conduct. He argues that the trial court therefore 

erred in refusing to instruct the jury that “the charges in this case are based only on 

the second encounter.”
31

We reject Richardson‟s argument. An assault can (and often does) consist of 

a series of related events. See, e.g., Glymph v. United States, 490 A.2d 1157, 

1159-61 (D.C. 1985) (concluding that where the appellant, although twice 

interrupted by phone calls, engaged in an hour-long assault of his ex-girlfriend, the 

beatings were properly joined under a single count as a “continuing course of 

assaultive conduct”). The government‟s theory, which it sought to prove through 

Brown‟s testimony, was that the “first encounter” and “second encounter” were 

part of the same, continuing course of assaultive conduct, in which Medley joined 

when Richardson and Brown moved around the corner. Of course, the jury was 

not required to accept that theory and could have instead accepted the defense 

theory of the case — which the trial court read to the jury [9/6: 152-53] — that 

what occurred initially was a mere verbal altercation between Richardson and 

Brown and that Brown was the eventual aggressor against Richardson. But we 

discern no error in the trial court‟s refusal to instruct the jury that “[t]here are no 

charges associated with the second encounter.” 

G. Refusal to Give a Missing Evidence Instruction

After the 2009 assault, the police took pictures of the crime scene. These 

pictures depict pieces of a broken chair, a red-stained seat cushion, and a broken 
32

railing, but the crime scene search officer gathered only one leg from the broken 

chair and Brown‟s bloody clothing. No tests were run on these objects, and thus 

neither fingerprints nor DNA evidence was recovered from the scene. Richardson 

contends that the failure to recover or test all of the physical evidence at the scene 

of the assault caused the defense to lose “potentially compelling exculpatory 

evidence.” He argues that the trial court erroneously refused to give a missingevidence instruction to the jury. 

We have recognized that a missing evidence instruction allows the jury to 

infer from the absence of evidence that, if the evidence had been produced, it 

would have been unfavorable to the party who could have produced it yet did not. 

Dent v. United States, 404 A.2d 165, 170 (D.C. 1979). There is therefore a strong 

risk that the trial court giving the instruction will “in effect create[] evidence from 

nonevidence, [and] may add a fictitious weight to one side of the case . . . .” Evans 

v. United States, 12 A.3d 1, 12 (D.C. 2011) (quoting Dent, 404 A.2d at 170-71). 

Hence, we accord the trial court “considerable discretion” in determining whether 

a missing evidence instruction should be given. Tyer v. United States, 912 A.2d 

1150, 1164 (D.C. 2006). The burden is on the party seeking the instruction to 

show that the evidence (1) was “likely to elucidate the transaction at issue” and (2) 

was “peculiarly available to the party against whom the adverse inference is sought 
33

to be drawn.” Tyer, 912 A.2d at 1164 (quoting Hinnant v. United States, 520 A.2d 

292, 294 (D.C. 1987)). 

Here, we discern no erroneous exercise of discretion in the trial court‟s 

refusal to give the instruction because Richardson did not meet the requirements of 

the first prong of this analysis. It is by no means clear that the missing objects 

were “likely to elucidate” whether Richardson acted in self-defense — which was 

the actual question before the jury, as Richardson at no point denied that he was 

both at the scene and involved in a physical altercation with Brown. Cf. Tyer, 912 

A.2d at 1165-66.21 Therefore, even if we analyze the issue as whether the trial 

court erroneously exercised its discretion when it declined to give the requested 

instruction as a sanction against the government for failure to preserve crime-scene 

evidence, we would hold that Richardson is not entitled to relief because the 

alleged error “did not substantially prejudice appellant or significantly contribute 

to the verdict rendered against him.” Simmons v. United States, 999 A.2d 898, 901 

(D.C. 2010) (quoting Cotton v. United States, 388 A.2d 865, 871 (D.C. 1978)). 

 

21

 Even if the instruction had been warranted, we are persuaded that any 

error in failing to give it was harmless. See Tyer, 912 A.2d at 1164. Defense 

counsel argued in closing that reasonable doubt existed because the government 

failed to preserve crucial items at the crime scene and engaged in an able crossexamination of the crime scene search officer on this topic. 
34

H. Richardson’s Fine Payment Schedule

Richardson‟s final argument is that the trial court improperly delegated to 

the Bureau of Prison‟s Inmate Financial Responsibilities Program the court‟s 

authority to establish the timing of the payment he was ordered to make to the 

Victims of Violent Crime Compensation Fund. The authorities Richardson cites 

for his argument are inapposite, as all pertain to delegation by federal district 

courts and are inapplicable as to the District of Columbia Superior Court. 

I. Merger of Certain Convictions

Appellant Medley argues that his convictions for ADW and ASBI merge 

with his AAWA conviction, and appellant McLeod argues that his conviction for 

ASBI merges with his conviction for AAWA. They are correct. “ADW is a lesser 

included offense of aggravated assault while armed.” Gathy, 754 A.2d at 919. 

Additionally, “ASBI is a lesser-included offense of aggravated assault.” Collins v. 

United States, 73 A.3d 974, 985 (D.C. 2013). Richardson does not argue that his 

convictions for ADW and ASBI merge with his conviction for AAWA, but we 

conclude for the foregoing reasons that they do merge. See Carter v. United 
35

States, 957 A.2d 9, 22 (D.C. 2008) (raising merger issue sua sponte as to coappellant). Therefore, we remand to the trial court to vacate (1) Medley‟s and 

Richardson‟s convictions for ADW and ASBI and (2) McLeod‟s conviction for 

ASBI. No resentencing is required. See Collins, 73 A.3d at 985 (“Resentencing is 

not required, as appellant‟s sentences for these counts are concurrent and 

congruent.”).

III. Conclusion 

We remand for the trial court to vacate the lesser-included convictions that 

are affected by merger. In all other respects, the judgments of the trial court are 

Affirmed.