IN RE: Z.B.

District of Columbia

Court of Appeals

No. 14-FS-0772 FEB - 4 2016

IN RE: Z.B.,

Appellant.

DEL-52-14

On Appeal from the Superior Court

of the District of Columbia

BEFORE: Fisher and Blackburne-Rigsby, Associate Judges; and Pryor, Senior

Judge .

JUDGMENT

This case came to be heard on the transcript of record, the briefs filed, and

was argued by counsel. On consideration whereof, and for the reasons set forth in the

opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the case is remanded to merge

appellant’s conviction of receiving stolen property (“RSP”) with robbery, as noted by the

trial court. In all other respects, the judgment on appeal is affirmed.

For the Court:

Dated: February 4, 2016.

Opinion by Senior Judge William C. Pryor.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-FS-0772 2/4/16

IN RE Z.B., APPELLANT.

Appeal from the Superior Court

of the District of Columbia

(DEL-52-14)

(Hon. Florence Y. Pan, Trial Judge)

(Argued November 12, 2015 Decided February 4, 2016)

William C. Collins, Public Defender Service, with whom Christine A.

Monta, James Klein, Samia Fam, and Jaclyn S. Frankfurt, were on the brief, for

appellant.

John J. Woykovsky, Assistant Attorney General, with whom Karl A. Racine,

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and

Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,

Senior Judge.

PRYOR, Senior Judge: Appellant was adjudicated involved with robbery,

D.C. Code § 22-2801 (2012 Repl.); receiving stolen property (“RSP”), D.C. Code

§ 22-3232 (2012 Repl.); and two counts of misdemeanor threats to do bodily harm,

D.C. Code § 22-407 (2012 Repl.). He contends on appeal that police officers

lacked reasonable articulable suspicion to seize him to conduct a show-up

identification, and thus all resulting evidence from the seizure should be

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suppressed. Further, he argues threats should merge with robbery. After

reviewing the record, we conclude that the judge did not err in denying the

suppression motion and the offenses do not merge. We remand to merge RSP with

robbery as noted by the trial court, but affirm in all other respects.1

I.

Appellant, age fourteen, along with two other teenagers, approached another

teenager and demanded his cell phone. Appellant told the complaining witness

that he would break his jaw if he continued to yell out for help from passersby, and

he said he would pull a “strap,” which complainant understood to be a gun. After

handing over his cell phone, the complaining witness ran away, flagged down an

officer, and provided a description of the suspects.

There was an initial radio broadcast for “three young black males” and

another more detailed description two minutes later. The second radio broadcast

was for a seventeen-year-old black male, 6’2”, wearing a black jacket and blue

1

The trial judge noted that RSP merges with robbery at the completion of

his appeal, and the government agrees.

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gloves, and stated his last known location. The broadcast did not mention that a

cell phone had been stolen. Two officers heard the description and saw appellant,

within a few minutes, standing on the street approximately two blocks away from

the incident. Appellant placed the cell phone in his pocket after seeing the officers.

He was shorter in height, wearing a black jacket, a black ski mask in which his

face was exposed, and displayed one aqua and blue glove on his hand. The

officers stopped him, radioed to the officer who was with the complaining witness,

and the witness was transported for a show-up identification. Upon positive

identification,2 he was placed under arrest, and spontaneously asked, “How you

going to say I robbed somebody?” A subsequent search revealed the stolen cell

phone.

During trial there was a motion to suppress the identification, appellant’s

volunteered question, and the cell phone on the basis that appellant’s seizure was

invalid. The judge found that appellant matched the description in all pertinent

aspects except being shorter in height. Based on the totality of the circumstances

2

Appellant, at the time of identification, was wearing an open-faced ski

mask.

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the trial judge denied the motion and found appellant involved with robbery, RSP,

and two counts of misdemeanor threats. Appellant filed this timely appeal.

II.

A. Reasonable Suspicion to Seize Appellant

Officers may seize an individual to conduct an investigatory stop if, in the

totality of the circumstances, they have particularized and objectively reasonable

articulable suspicion that criminal activity is afoot. See generally Terry v. Ohio,

392 U.S. 1 (1968). The officer must be able to provide “specific and articulable

facts” to justify the Fourth Amendment intrusion. See Curtis v. United States, 349

A.2d 469, 471 (D.C. 1975) (citation omitted). The government’s burden, however,

“is not an onerous one” because “articulable suspicion is substantially less than

probable cause . . . .” In re T.L.L., 729 A.2d 334, 339 (D.C. 1994) (citations

omitted). “[A]n imperfect description, coupled with close spatial and temporal

proximity between the reported crime and seizure, justifies a Terry stop.” United

States v. Turner, 699 A.2d 1125, 1129 (D.C. 1997) (summarizing cases of twenty-

five seconds to “minutes” between description and stop) (citations omitted).

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Our review is limited on an appeal concerning the denial of a motion to

suppress evidence. Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991).

“[W]e will not disturb the trial judge’s findings of fact unless they lack evidentiary

support in the record . . . . The evidence, and all reasonable inferences from the

evidence, must be viewed in the light most favorable to the District, as the party

that prevailed below.” In re T.L.L., supra, 729 A.2d at 339 (citing Peay v. United

States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc); Ruffin v. United States, 642

A.2d 1288, 1291 (D.C. 1994)). We apply the clearly erroneous standard to the

judge’s findings of fact, but the ultimate conclusion on whether the police had

reasonable articulable suspicion is a question of law we decide de novo. Brown,

supra, 590 A.2d at 1020.

Appellant contends that the initial descriptions of the robber given by the

complainant were markedly inaccurate and therefore deficient. Nonetheless,

appellant fit the general description given as to the age, ethnicity, ski clothing, and

glove. Further, appellant was observed by the officers just two blocks from the

robbery scene a few minutes later. Applying the familiar Terry measure of total

circumstances, we conclude that the evidence supports the trial judge’s finding of

reasonable articulable suspicion of criminal activity afoot to justify a temporary

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stop. See Turner, supra, 699 A.2d at 1128-29 (discussing that an imperfect

description “coupled with close spatial and temporal proximity between the

reported crime and seizure, justifies a Terry stop”). Thereafter, the complaining

witness’ positive identification of appellant at the show-up gave police probable

cause to arrest. See generally Oxner v. United States, 995 A.2d 205, 209 (D.C.

2010).

B. Merger of Threats With Robbery

Appellant also contends that the threats alleged in this instance were a part

of the robbery and were included in that offense. Even after applying the test

enunciated in Blockburger v. United States, 284 U.S. 299 (1932), appellant argues

that we should conclude that the legislative intent was to include threats as a

component of robbery.

The Double Jeopardy Clause of the Fifth Amendment “protects against

multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S.

711, 717 (1969). We review merger issues de novo. Robinson v. United States, 50

A.3d 508, 532 (D.C. 2012). To determine legislative intent regarding merger, we

have stated in Simms v. United States, 634 A.2d 443, 446-47 (D.C. 1993), “The test

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to be applied in assessing whether convictions merge for double jeopardy purposes

turns on the statutory elements of a particular violation rather than the evidence

adduced at trial.” (citation omitted); see D.C. Code § 23-112 (2012 Repl.).

In Byrd v. United States, 598 A.2d 386 (D.C. 1991) (en banc) we reaffirmed

the application of Blockburger. Id. at 390 (“We do not think the pure fact-based

analysis . . . can survive the recent affirmation by the Supreme Court . . . .”). If

offenses violate two distinct statutory provisions we consider whether each

requires proof of an element that the other does not. Id. at 389. We do not merge

the offenses if each offense has an element that the other does not. Norris v.

United States, 585 A.2d 1372, 1374 (D.C. 1991). Clearly a greater offense will

include a lesser offense. In such a situation, the lesser-included offense contains

the same elements as the greater offense, but the greater offense has at least one

additional element.

With regard to robbery, D.C. Code § 22-2801 provides:

Whoever by force or violence, whether against

resistance or by sudden or stealthy seizure or

snatching, or by putting in fear, shall take from the

person or immediate actual possession of another

anything of value. . . .

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D.C. Code § 22-407 provides that threats to do bodily harm is a

misdemeanor offense. We have defined the offense as follows:

(1) The defendant uttered words to another person;

(2) . . . of such a nature as to convey fear of bodily harm

or injury to the ordinary hearer; and

(3) . . . defendant intended to utter the words . . . .

Joiner-Die v. United States, 899 A.2d 762, 764 (D.C. 2006). Thus as we

concluded in Joiner-Die, robbery requires offensive conduct to obtain something

of value from a person, whereas threats requires a menacing communication or

utterance to a person. Thus there is no merger of offenses. See Joiner-Die, 899

A.2d at 767.

Moreover, in Kaliku v. United States, 944 A.2d 765 (D.C. 2010) we declined

to merge threats with kidnapping because the “coincidental[] overlap” of one

offense during the commission of another offense “cannot be imputed as an

inherent element of the crime,” id. at 788. Robbery essentially requires that the

government prove larceny and assault. Williams v. United States, 113 A.3d 554,

560 (D.C. 2015). Thus, it is not possible to commit robbery without also

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committing assault, and assault accordingly merges as a lesser-included offense.

See Norris, supra, 585 A.2d at 1374. However, it is possible to commit a robbery

without committing verbal threats—that is, through the use of violence or conduct

that puts one in fear.

Appellant’s rub, however, is not that the offenses should merge under

Blockburger, as he concedes they do not, but that the offenses should merge

because of the presumption that the legislature acts rationally and logically in

crafting its statutes to prevent “absurd results.” See Haney v. United States, 473

A.2d 393, 394 (D.C. 1984) (citation omitted). “The courts are to construe statutes

in a manner which assumes that [the legislature] has acted logically and

rationally.” Id. at 395 (citation omitted). This presumption functions as a safety

valve to the issue of merger. See Thomas v. United States, 602 A.2d 647, 650

(D.C. 1992) (declining to merge when it would “produce absurd results”). Thus,

appellant argues the “absurd result” is punishing someone who uses threats to

effectuate a robbery more severely than someone who commits an assault to

effectuate a robbery. This argument misses the mark because it fails to appreciate

that someone who commits a robbery necessarily commits an assault, and the

additional punishment here is because he not only committed an assault but also

committed threats.

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For the foregoing reasons, we affirm the trial court’s suppression ruling and

deny merging threats with robbery.

So ordered.