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If , ,II.-,

fLIr 'DISTRICT OF COLOMBIA COURT OF APPEALS MAY 2 4 934o. 92-CF-1144DEXTER E. WOODS APPEllANT COURTO APPEALS

v. F4330-92UNITED STATES APPEllEE.

No. 92-CF-1310EDWARD ROBINSON APPEllANT

v. F4328-92UNITED STATES ApPEllEE.

Appeal from the Superior Courtof the Dis t r ic t of Columbiacriminal Division(Hon. Truman A. Morrison, I I I Tria l Judge)

(Argued May 11, 1994 Decided May 24, 1994)Before TERRY and FARREll. Associate Judges and BELSON Senior Judge.

HBKORANDUK OPI IO lUID JUDGKBH lFollowing a jury t r i a l appellants were convicted of armedrobbery, D.C. Code 22-2901, -3202 (1989 Repl. 1993 Supp.),

possession of a firearm during a crime of violence, D.C. Code 22-3204 (b) (1989 Repl. 1993 Supp.), unauthorized use of a motorvehicle, D.C. Code 22-3815 (1989 Repl.) , and receiving stolenproperty, D. C. Code 22-3832 Ca), -3832 (c) (1) (1989 Repl.) .Appellants challenge the i r respective convictions and sentences onseveral grounds. We remand the case to the t r i a l court to vacatethe i r convictions and sentences for receiving stolen property, butotherwise affirm.The government s evidence demonstrated tha t on the night ofApril 21, 1992, appellants Dexter Woods and Edward Robinson robbedSher i f f Alabi, a taxicab driver , in his taxicab. At the time ofth is incident, Robinson, who was holding what appeared to be a

handgun, instructed Alabi to give them a l l of his money andthreatened to shoot him i f he did not comply. Alabi handed f i f tydol lars over to Robinson. Ulyses Randall, a passenger in the cabwho had witnessed the robbery, f led from the vehicle. In additionto the money, Alabi relinquished his wrist watch and taxicab toappellants. Alabi fled from the scene and l a te r found Randall anda group of police off icers who were invest igat ing a nearby t ra f f icaccident. After he recounted the robbery incident to the police

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2off icers Alabi accompanied two police off icers in the i r patrol carin an effor t to locate his taxicab. Appellants were found inAlabi 's taxicab a few blocks from the robbery scene. Duringappellants ' arrest the police off icers recovered a plast ic gunfrom Robinson's person and the complainant's watch.

At t r i a l Woods asserted a claim of r ight defense withrespect to the money taken from Alabi. Woods t es t i f i ed tha t heasked Robinson to accompany him while he attempted to col lect analleged debt from Alabi. Following conviction, Woods was sentencedto concurrent terms of incarceration consist ing of s ix to eighteenyears for armed robbery, five to f i f teen years for possession ofa firearm during a crime of violence, one to three years forunauthorized use of a motor vehicle, and one to three years forreceiving stolen property. Except for Robinson's sentence to aterm of incarceration of f ive to f i f teen years for armed robbery,he received the same sentences as Woods, a l l of which were to beserved concurrently.i e w i n ~ the evidence in the l ight most favorable to thegovernment, we find tha t there i s suffic ient evidence in therecord to support Woods' convictions on an aiding and abett ingtheory. See West.. v United States, 547 A.2d 1022, 1025-1027 (D.C.1988 ; Ingram v United States, 592 A.2d 992, 1003-1004 (D.C.), em.

denied, 112 S. ct . 667 (1991). We also find tha t Woods i s mistakenin assert ing tha t he was subjected to an improper mandatoryminimum sentence under D.C. Code 22-3202 (a)(1) (1989 Repl. &1993 Supp.) based upon Robinson's possession of an imitation pis to lwhile committing the robbery. The t r i a l judge correct ly imposedthe five-year mandatory-minimum sentence against Woods under D.C.Code 22-3204 (b) (1989 Repl. 1993 Supp.), which applies toimitation firearms. 2

Finding no merit in any of the contentions raised by Woodsonly, we turn to appellants ' assert ion tha t the i r convictions of

See Carter v United States, 591 A.2d 233, 234 (D.C. 1991) (percuriam); Curry v United States, 520 A.2d 255, 263 (D.C. 1987); Stack vUnited States, 519 A.2d 147, 159-60 (D.C. 1986).2 This s ta tu te provides tha t [n]o person shal l within theDis t r ic t of Columbia possess a pis to l machine gun, shotgun, r i f leor any other firearm. or imitationftrearm while committing a crime ofviolence Upon conviction of a viola t ion of th is subsection,the person shal l be sentenced to imprisonment for amandatory-minimum term. of not less than 5 years D C Code 22-3204 (1989 Repl. & 1993 Supp.).

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3receiving stolen property ( RSP )l should be vacated on the groundtha t the government fa i led to establ ish the value of the taxicab.

Although the government concedes tha t appellants ' RSPconvictions should be vacated due to insuf f ic ient evidence, we neednot reach th is question, as the charges of RSP and armed robberyconvictions are al ternat ive offenses aris ing from the same courseof conduct. Specif ical ly, the subject of the RSP offense (taxicab)was one of three objects the thef t of which served jo in t ly as thepredicate for the armed robbery offense and which derived from thesame act or course of conduct. SeeByrdv. United States 598 A.2d 386,391 (D.C. 1991). Therefore, appellants could not be convicted ofboth armed robbery and RSP with respect to the same property. SeeFranklin v. United States 392 A.2d 516, 517 (D.C. 1978), cm. denied 440U.S. 948 (1979); see also Heflin v. Untted States 358 U.S. 415, 419-420(1959) (person who violated federal bank robbery s ~ t u t e could notalso be convicted of receiving or possessing the proceeds stolenin the same bank robbery); United States v. Gaddis 424 U S. 544, 54849 (1976). Since the t r i a l cour t s judgment contemplated tha tappellants ' RSP convictions should be vacated upon exhaustion ofthei r appeals, there is no Milanovich concern presented in theins tant case requiring us to remand the case for re t r ia l orresentencing_ Cf Franklin, supra 392 A.2d a t 519-20; Stepney v. UnitedStates 443 A.2d 555, 558 (D.C. 1982) (per curiam).5

l The taxicab was the object of the RSP conviction and one ofthree objects underlying the armed robbery conviction.4 Milanovich v. United States 365 U.S. 551, 555-56 (1961).5 We have examined the other arguments raised in appellants 'briefs , and find them unpersuasive.

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Accordingly, we remand the case to the tr i l court to vacateappellants' RSP convictions, but otherwise affirm. 6FOR THE COURT:

c J ~William H NgClerk of the CourtCopies to:Honorable Truman A. MorrisonClerk Superior CourtBetty J Clark Esquire601 Pennsylvania Ave" NW Suite 700 NorthWashington DC 20004Richard Todd Hunter Esquire801 North Pi t t Stree tSuite 209Alexandria V 22314John R. Fisher EsquireAssistant United States Attorney

6 Robinson' s reliance upon Kingsbury v United States 537 A.2d 208D.C. 1988) to support his claim that unauthorized use of a motorvehicle i s a lesser-included offense of armed robbery i s misplacedin l ight of our subsequent en bane decision in Byrd supra 598 A.2dat 390. See also Monroe v United States 600 A.2d 98, 99 D. C 1991)(per curiam) ( the armed robbery and unauthorized use of a vehicleconvictions contain dist inct elements ).