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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19

- CF

- 0572

M ICHAEL R. L EWIS

, A PPELLANT

,

v.

U NITED S TATES

, A PPELLEE

.

Appeals from the S uperior Court of the

District of Columbia

( CF2

- 00 37

- 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 B LACKBURNE

- R IGSBY

, Chief Judge

, T HOMPSON

, Associate Judge

, and

N EBEKER

, Senior Judge

.

B LACKBURNE

- R IGSBY

, Chief Judge : On April 5, 2019, a jury convicted

appellant Mich a el 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)) (20142

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

dri ver ’ 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 T he 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 1 5th

Place in Southeast Washington, D.C. Shortly after turning onto 1 5th Place, the

officers received a n alert from the LPR system concerning a possible stolen vehicle

. Officer Drake, who was in the passenger seat, reviewed the alert, saw the car with3

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 dri ver ’ 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 app ellant to step out of the car

. Appellant looked at Officer

Drake, shifted the car into drive, and started to drive off

.

Office r 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 th e 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 Volkswag en 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 pri or morning

. Later i n 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 whe el of the car

.5

At trial, a ppellant 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, w hen 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,

executio n 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 s erved in favor of

concurrent two and one

- year terms of supervised probation, respectively

.6

II. Merger

For the first time o n appeal, a ppellant 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 d oes 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

- 1 48 ( 20 12 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, shal l 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 dri ving

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 st a tute, D.C. Code

§ 50

- 2201.04(b)

, and that o nly 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. T he 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), describe s 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 contain s 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. I n 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 W e 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 60 7

.

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

Co mm ’ n v. Noble , 693 A.2d 1084, 1103 (D.C.1997) (citation and internal quotation

marks omitted).10

m ultiple theories

— i.e.

, some combination o f reckless driving, property damage, or

bodily injur y

— 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

appellan t 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 collisio n 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

fact ual element that must be proved, but that is not contained in the reckless driving

statute.11

III. Motion for Judgment of Acquittal

Next, a ppellant contends that the evidence presented at trial was in sufficient

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 f act 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 appel lant 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) . Th u s, th e trial court did not err

in deny ing appellant ’ s motion.

IV. Conclusion

Accordingly, the trial court ’ s judgments on appellant ’ s fleeing and reckless

driving convictions are hereby13

Affirmed