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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 17-CF-1219

                          VICTOR ROGERS, APPELLANT,

                                         V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF1-830-17)
                      (Hon. Milton C. Lee, Jr., Trial Judge)
(Argued March 14, 2019                              Decided September 30, 2019) *
      Sean R. Day for appellant.
      Katherine M. Kelly, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney, and Elizabeth Trosman, Peter V. Taylor, and Marisa
S. West, Assistant United States Attorneys, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and THOMPSON,
Associate Judges.




      *
          The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of appellee’s and one other motion to publish.
      THOMPSON, Associate Judge: A jury convicted appellant Victor Rogers of

kidnapping while armed, assault with a dangerous weapon (“ADW”), first-degree

sexual abuse, and assault. In this appeal, appellant contends that (1) there was

insufficient evidence to support the kidnapping and first-degree sexual abuse

convictions; (2) the trial court plainly erred in failing to include a mens rea element

in its instructions to the jury on first-degree sexual abuse; (3) the convictions for

kidnapping while armed and ADW merge; and (4) his aggregate sentences for

kidnapping while armed and first-degree sexual abuse violate the Eighth

Amendment. We affirm.




                                           I.




      Appellant and complainant M.W., a married couple, had been homeless

“pretty much [their] whole marriage[.]” M.W. testified at trial that on January 12,

2017, appellant suggested that the two spend the night in M.W.’s U-Haul storage

unit (which according to M.W., was against the U-Haul facility’s rules). M.W.,

wanting heat and shelter, agreed, and, at around 5:00 or 6:00 in the evening,

appellant first locked her into the unit with her permission and then got into the
                                         3

locked unit himself by climbing through the top of the unit and lowering himself

into the unit. The two sat in the storage unit quietly until after the facility had

closed and “until maybe about [8:00 or 9:00], . . . just long enough for the manager

. . . to get out of the building[,]” at which point appellant began to accuse M.W. of

cheating on him with multiple men.           Even though M.W. denied appellant’s

accusations, appellant proceeded to beat M.W.’s head, arm, and back with a heavy,

metal-tipped wooden pole that had been sitting in the storage unit, as he yelled

vulgarities at M.W., calling her a “whore.” Appellant also beat M.W. with his

fists, kneed her in her face, and “choked” her. M.W.’s head and lip were “split . . .

open” from the beating; her head, nose, and mouth were bleeding; her arm was

“fractured” and was rendered “out of commission”; her arm, back and shoulders

were bruised; and she was “in so much pain.” A clinician testified that M.W. also

showed signs of strangulation, including, facial swelling and discoloration,

subconjunctival hemorrhaging, and petechiae (ruptured capillaries) in her eyes and

the back of her mouth.




      The beating went on in the “dark” storage unit for more than an hour (and

appellant broke the wooden pole in the process).        M.W. testified that in the

cramped storage unit, “there was really no room to fight back.” When the beating

stopped and appellant eventually went to sleep, M.W. “was scared he was going to
                                         4

wake back up and keep [beating her], so [she] just stayed as quiet as possible and

still.” She needed to go to the bathroom, but “held [her]self.” She testified that

she knew she needed medical treatment, but could not get out of the unit.




      M.W. testified that the next morning, appellant climbed out of the storage

unit. He unlocked the unit to allow M.W. to smoke a few cigarettes and escorted

her to the bathroom, but instructed her to put on a ski mask to cover up her injuries

and to hold her head down. That (Friday) night, appellant’s father, Willie Rogers,

came to pick up appellant and M.W., drove them to a motel on New York Avenue,

paid for a room for them, and gave them some money for food.




      M.W. testified that Friday night in the motel was “peaceful[,]” and appellant

left her alone to get them something to eat. M.W. told the jury that she did not try

to escape or tell anyone what had happened to her because she “was in a lot of

pain,” “had to build up the nerve and the heart to leave,” and “didn’t want

[appellant] to catch [her] trying to leave.” M.W. testified that she did not want

appellant to touch her but did not resist or protest having sex with appellant on

Friday or Saturday because she “just wanted to just make peace” and “keep some

peace.” M.W. stayed in the motel room on Saturday even when appellant went out
                                          5

again for food and “took a very long time to come back.” She explained that she

“was in so much pain[,]” 1 was hurting “[e]verywhere[,]” did not have “decent

clothes[,]” and could not see because her “eyes were beat shut.”




      On Sunday, appellant began once again to accuse M.W. of engaging in sex

acts with other men. Appellant “made [M.W.] get on [her] knees on the bed” and

proceeded to have sex with her even though she “told him to stop [and that she

was] in too much pain.” M.W. testified that she was “afraid of getting punched

and beat some more[,]” and “couldn’t fight” appellant because she “didn’t have but

one arm,” so “did it.” After the sex act was over, appellant hit M.W. over the head

with the T.V. remote control, breaking the device. Appellant then left the room,

apparently heading for the manager’s office to get a new remote control. M.W.,

who testified that she drew courage from a religious program she had been

watching on T.V., then left the room wearing only a coat, underwear, and shower

shoes, and eventually found help at the Fifth District police station. From there she

was taken to the hospital to receive medical attention.




                                         II.

      1
          M.W. described her pain as a “10 plus” on a scale of 1 to 10.
                                          6




      In reviewing appellant’s claim that the evidence was insufficient to support

his armed kidnapping and first-degree sexual abuse convictions, we will “view the

evidence in the light most favorable to the government, mindful of the jury’s right

to determine credibility, weigh the evidence, and draw justifiable inferences of

fact.” Hughes v. United States, 150 A.3d 289, 305 (D.C. 2016) (internal quotation

marks omitted).    We will reverse only if “the government . . . produced no

evidence from which a reasonable mind might fairly infer guilt beyond a

reasonable doubt.” Id. (internal quotation marks omitted).




      Appellant’s claim of instructional-error, which he did not raise in the trial

court, is subject to plain-error review. See Buskey v. United States, 148 A.3d 1193,

1205 (D.C. 2016). To obtain relief on plain-error review, appellant must show (1)

error, (2) that is plain or obvious, (3) that impacts substantial rights, and (4) that

would, if not corrected, seriously impact the fairness, integrity, or public reputation

of the judicial proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993).

“[P]lainness is assessed as of the time of appellate review regardless of the state of

the law at the time of trial.” Malloy v. United States, 186 A.3d 802, 815 (D.C.

2018) (internal quotation marks omitted).
                                         7




      We review merger issues and Eighth Amendment claims de novo. Nero v.

United States, 73 A.3d 153, 159 (D.C. 2013); Cook v. United States, 932 A.2d 506,

509 n.2 (D.C. 2007) (Schwelb, J., concurring).




                                          III.




      To prove that a defendant committed armed kidnapping, the government

must prove that the defendant “while armed, intentionally seized, confined, or

carried [the victim] away, and that [appellant] held or detained [the victim] against

her will.”   Kaliku v. United States, 994 A.2d 765, 786-87 (D.C. 2010).              A

kidnapping can occur even where the victim voluntarily enters the space where she

is subsequently confined. See Davis v. United States, 613 A.2d 906, 907, 912

(D.C. 1992). Appellant aptly summarizes the elements of kidnapping as requiring,

in this case, proof that he “confined M.W. . . . on purpose, against her will, for a

benefit.” Appellant acknowledges that he locked the storage unit from the outside

with M.W. inside the unit, but argues that there was no evidence that he did so with

the purpose of confining M.W. against her will. Appellant emphasizes that the

locking of the unit did not coincide with the assault, which happened hours later.
                                         8




      The trial court instructed the jury that to prove the kidnapping while armed

charge, the government had to prove beyond a reasonable doubt that “on

[Thursday] January 12th of 2017[,]” appellant “seized, confined, abducted or

carried away M.W. against her will[,]” “did so voluntarily and on purpose, not by

mistake or accident,” “held or detained M.W. for the purpose of assaulting her[,]”

and “at the time of the offense, . . . was armed with a dangerous or deadly weapon,

in this case making reference to the piece of wood with metal at the ends . . . .”

Thus, the court’s instruction did not focus on the moment when appellant locked

the storage unit; the court’s reference to appellant’s being armed with the wooden

pole at the time of the offense conveyed that the charge related to the period of

Thursday night when appellant beat M.W. (not to the time earlier that evening

when M.W. consented to enter the storage unit and appellant locked her in from

the outside). The court’s reference to the date further conveyed that the charge did

not relate to what happened on Friday, January 13, when appellant “bird-dogg[ed]”

M.W. as she went to the restroom and smoked cigarettes outside the storage unit. 2




      2
        The verdict sheet shows that the jury convicted appellant of
“KIDNAPPING WHILE ARMED (U-Haul [Thursday] Jan. 12, 2017)[.]”
                                         9

      We conclude that the evidence was sufficient to prove kidnapping while

armed of M.W. in the U-Haul storage facility on January 12, 2017. The “while

armed” portion of the charge was sufficiently proven by M.W.’s testimony that

appellant beat her with the metal-tipped wooden pole (notwithstanding the fact,

which defense counsel emphasized to the jury, that the government did not enter

the pole into evidence).3    As to the kidnapping aspect of the charge, M.W.

confirmed in her testimony that she did not want to be in the locked storage unit

with appellant during the beating. In addition, the jury heard testimony that over

the course of about an hour in the darkness, in a cramped storage unit where M.W.

had “no room to fight back” to try to escape or otherwise avoid injury, appellant

beat M.W. until her eyes were swollen shut, impairing her vision. In the course of

beating M.W., appellant also “fractured” her right arm, rendering it “messed up”

and “out of commission”; a police officer who interacted with M.W. at the 5D

police station testified that M.W. “couldn’t really lift her arms up[,]” and even

appellant recognized that her arm remained so injured by Sunday that she needed

help to wash herself in the motel shower. The foregoing testimony permitted the

jury to infer that any ability M.W. might otherwise have had during the beating to



      3
         M.W. testified that appellant carried several bags of trash, including items
with her blood on them and the broken stick, out of the storage unit before the
couple left the storage facility to go to the motel.
                                         10

escape by climbing out of the storage unit the same way appellant got in was

impaired.




      In short, the testimony established that by and during his actions that

inflicted incapacitating injury on M.W., appellant on purpose confined and

detained M.W. against her will, for the purpose of further assaulting her or for

whatever other benefit he derived from beating her in a place where she was out of

sight and beyond immediate rescue.        That was enough to prove kidnapping.

Richardson v. United States, 116 A.3d 434, 439 (D.C. 2015) (“[A]ll that is required

is a ‘seizing, confining’ or the like and a ‘holding or detaining’ for ransom or

reward ‘or otherwise.’” 4). And even though the charged confinement of M.W.

while appellant was armed lasted only while the beating was going on, our case

law is clear that “[t]he plain language of the [kidnapping statute] contains no

exception” for cases in which the conduct constituting the kidnapping “is

momentary or incidental to another offense.” Richardson, 116 A.3d at 439; see

also id. at 440-41 (declining “to construe the kidnapping statute to require an


      4
         The indictment charged appellant with intending to hold and detain M.W.
“for the purpose of assaulting [her,]” the prosecutor argued that appellant locked
M.W. in the storage unit “with the aim of assaulting her [. . .]”; and the court used
a similar phrase in its instructions. But the court also instructed that the
confinement “may be for a purpose that the defendant believed might benefit him.”
                                          11

element of ‘non-incidental’ confinement, and to find the evidence insufficient to

support [a] conviction[] if that element is not met”); Hagins v. United States, 639

A.2d 612, 617 (D.C. 1994) (rejecting an argument that the jury should have been

instructed that it could not convict Hagins of kidnapping “if the alleged

‘confinement’ . . . was factually incidental to” the charged rape).




                                           IV.



      D.C. Code § 22-3002(a) (2017) provides that a defendant commits first-

degree sexual abuse if he “causes another person to engage in or submit to a sexual

act . . . [b]y using force against that other person [or] [b]y threatening or placing

that other person in reasonable fear that any person will be subjected to death,

bodily injury, or kidnapping[.]” Id., § 22-3002(a)(1), (2). We are satisfied that the

evidence supported a finding that appellant caused M.W. to engage in a sexual act

on the motel bed on Sunday, January 15, 2017, by placing her in reasonable fear

that she would be subjected to (further) bodily injury if she resisted his effort to

have sex with her. Stated differently, the jury could reasonably find, as the

prosecutor urged, that appellant put M.W. “reasonably in fear that something like

bodily injury . . . [was] going to happen to her if she d[idn’t] submit.”
                                           12




      M.W. testified that just before appellant made her get on the bed for sex,

appellant began berating her again about sexual acts with other men, which was

exactly what had preceded the beating in the storage unit. M.W. testified, “I didn’t

want him to hit me, so I did it.” She was “afraid of being hit” and “afraid of

getting punched and beat some more[.]”           And right after the sex was over,

appellant hit M.W. in the head with the T.V. remote control, validating her fear

that he might hurt her. Appellant makes much of M.W.’s acknowledgment that

she had sex with appellant without protest on the previous nights (to keep “peace”)

and M.W.’s testimony that she said to appellant just before the Sunday incident,

“Baby, I don’t care what you do to me. Just please stop [harassing me about the

alleged cheating].” But M.W. also testified that when appellant proceeded to have

sex with her on the bed on Sunday, she told him to stop because she was in too

much pain. A reasonable jury could find that in the context M.W. described — a

resumption of appellant’s angry accusations — appellant caused M.W. to submit to

sex on that occasion by placing M.W. in reasonable fear that she would be

subjected to bodily injury if she tried to resist physically.
                                          13

      Citing Elonis v. United States, 135 S. Ct. 2001 (2015), and this court’s

opinion in Carrell v. United States, 165 A.3d 314 (2017) (en banc), appellant

argues, for the first time on appeal, that the trial court erred by failing to instruct

the jury that to find that appellant caused M.W. to engage in sex by threatening

her, the jury had to find “that something [appellant] said was (1) intended as a

threat and (2) reasonably perceived as a threat.” This argument is unavailing. We

see no possibility that the jury convicted appellant of first-degree sexual abuse on

the theory that the words appellant uttered just before M.W. submitted to sex on

the bed on January 15 constituted a threat. 5 M.W. testified that appellant’s words

were “Bitch, I might as well. Everybody else is getting it. No telling when I’ll get

some more.”     The prosecutor did not argue that this statement or any other

statement by appellant was the vehicle by which appellant overcame M.W.’s will

in causing her to have sex. It certainly is not plain that Elonis or Carrell applies in

the context presented here, i.e., appellant’s placing M.W. in fear by his conduct;

but even if we assume the instructional error appellant posits, the error was

harmless (under any standard of review).



      5
          We acknowledge, however, that the Certification of Sex Offender and
Notice Order in the record states that appellant was found guilty of “First Degree
Sex Abuse (Threatening)[,]” but the jury verdict form shows that the jury found
appellant guilty of “FIRST DEGREE SEXUAL ABUSE (Bedroom Jan. 15,
2017)[.]”
                                          14

                                          V.




      “The Double Jeopardy Clause compels merger of duplicative convictions for

the same offense, so as to leave only a single sentence for that offense.” Nero, 73

A.3d at 159 (internal quotation marks omitted).            “Where the same act or

transaction constitutes a violation of two distinct 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 does not.”             Id. (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)) (internal quotation marks

and brackets omitted). In applying the Blockburger test, we focus on the statutory

elements of each offense, not on the particular “proof offered to establish the

crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).




      Appellant’s contention is that his armed kidnapping and ADW convictions

merge. We disagree. As already discussed, a conviction of armed kidnapping

requires proof that the defendant “while armed, intentionally seized, confined, or

carried [the victim] away,” and “held or detained [the victim] against her will.”

Kaliku, 994 A.2d at 786-87. To prove that a defendant committed ADW, the

government must prove “the three elements of simple assault, plus the use of a
                                          15

dangerous weapon.” Vines v. United States, 70 A.3d 1170, 1180 (D.C. 2013), as

amended, No. 11-CF-843, 2013 D.C. App. LEXIS 616, at *25 (D.C. Sept. 19,

2013). To sustain a conviction for simple assault, “the government must establish:

(1) an act on the part of the defendant; (2) the apparent present ability to injure the

victim at the time the act is committed; and (3) the intent to perform the act which

constitutes the assault at the time the defendant commits the act.” Id. at 1179. In

short, armed kidnapping requires “proof of asportation or confinement,” while

ADW requires proof of “some form of assault.” Whitaker v. United States, 616

A.2d 843, 856 (D.C. 1992). Because each “requires proof of a fact which the other

does not[,]” Nero, 73 A.3d at 159 (internal quotation marks omitted), they do not

merge.




      Appellant, asserting that “[t]o the extent there was a kidnapping[,]” “it was

purely incidental to the assault[,]” relies on Nelson v. United States, 601 A.2d 582

(D.C. 1991). In Nelson, a division of this court, citing Robinson v. United States,

388 A.2d 1210 (D.C. 1978), stated that “[w]hen a kidnapping charge is joined with

other charges, the key inquiry is whether the seizure or asportation of the victim

was merely incidental to another crime, and thus an integral part of it, or whether

the confinement and restraint were significant enough in themselves to warrant an

independent prosecution for kidnapping.” Nelson, 601 A.2d at 598. Appellant’s
                                        16

reliance on Nelson and Robinson is misplaced, because in this court’s en banc

decision in Byrd v. United States, 598 A.2d 386 (D.C. 1991), we overruled

Robinson and held that the merger analysis should be governed by the Blockburger

“elements test[.]” Richardson, 116 A.3d at 439-40.




        Moreover, even if the factors the Nelson division found relevant are

considered, they do not help appellant’s cause. Nelson reasoned that “whether the

confinement and restraint were significant enough in themselves to warrant an

independent prosecution for kidnapping” “may depend on whether the kidnapping

substantially increased the risk of harm to the victim beyond that inherent in the

underlying crime” or “lessen[ed] the likelihood of [the perpetrator’s] capture” by

enabling him to act out of the sight of potential witnesses. 601 A.2d at 598.

M.W.’s confinement in the cramped space of the storage unit meant that “there was

really no room [for her] to fight back.” In addition, after the beating, M.W. had to

forgo medical attention, even though she knew she needed it, because she could

not get out of the storage unit. Thus, M.W.’s confinement increased her risk of

harm.     Thus, the Nelson test would, like the Blockburger test, dictate that

appellant’s kidnapping and ADW convictions do not merge.
                                         17

                                         VI.




      The trial court sentenced appellant to consecutive sentences of 12.5 years of

imprisonment for armed kidnapping and 250 months for first-degree sexual abuse,

for a total of over 33 years’ imprisonment. Appellant contends that these sentences

violate the Eighth Amendment prohibition against cruel and unusual punishments.

We cannot agree.




      “[T]he Eighth Amendment’s ban on cruel and unusual punishments prohibits

sentences that are disproportionate to the crime committed[.]”             Ewing v.

California, 538 U.S. 11, 22 (2003) (internal quotation marks and ellipsis omitted).

The Eighth Amendment “prohibits imposition of a sentence that is grossly

disproportionate to the severity of the crime.” Id. at 21 (internal quotation marks

omitted); see also Cook, 932 A.2d at 508 (recognizing that “the standard for claims

of disproportionate sentences has been narrowed and, at a minimum, now appears

to require a showing that a sentence is ‘grossly disproportionate’ to the crime”).




      Here, in imposing the sentences, the trial court noted “the significance of the

injuries M.W. suffered” and cited the testimony of the police officer who
                                         18

interacted with M.W. at the 5D police station, who “said she had never seen

anything so bad in her life.” The court also took into account appellant’s history of

violent behavior (including his history of beating up multiple women with bats),

which spanned years over most of appellant’s adult life and included his mother

and father as victims. The court observed that appellant appeared “to have no

ability to control [him]self” and cited a need not to “expose the community to the

risk of harm [appellant had] placed on other people” connected to him.




      Further, “courts should be reluctant to review legislatively mandated terms

of imprisonment, and . . . successful challenges to the proportionality of particular

sentences should be exceedingly rare.” Ewing, 538 U.S. at 22 (internal quotation

marks omitted).    Appellant’s sentences for armed kidnapping and first-degree

sexual abuse fall well below the applicable statutory maximums. Under D.C. Code

§ 22-4502(a)(2) (2017), appellant could have been sentenced to up to 30 years’

imprisonment for armed kidnapping. Under D.C. Code § 22-3002(b), he could

have been sentenced to up to 30 years’ imprisonment for first-degree sexual abuse.

His 12.5-year sentence for armed kidnapping and his 20 years and 10 months

sentence of first-degree sexual abuse, pale in comparison to those legislatively

mandated maximums. For that reason and all the foregoing reasons, we reject

appellant’s claim that his sentences were unconstitutional.
                                 19




                                 VII.




For the foregoing reasons, the judgment of conviction is




                                        Affirmed.
