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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 co-

defendants,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,7 or 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, 9 and 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-of-

court 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] self-

defense 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 self-

defense. 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 missing-

evidence 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 cross-
examination 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 co-

appellant). 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.
