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               DISTRICT OF COLUMBIA COURT OF APPEALS

                          Nos. 12-CF-1303 and 12-CF-1409

                     ANTHONY RICHARDSON and JAMES WALKER,
                                                    APPELLANTS,
                                     V.

                                   UNITED STATES,
                                                           APPELLEE.

                          Appeals from the Superior Court
                            of the District of Columbia
                         (CF3-22507-11 and CF3-22508-11)

                         (Hon. J. Michael Ryan, Trial Judge)

(Argued October 29, 2014                                     Decided June 11, 2015)

      Cory L. Carlyle for appellant Richardson.

       Mikel-Meredith Weidman, Public Defender Service, with whom James
Klein, Public Defender Service, was on the brief, for appellant Walker.

      Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time, and Elizabeth Trosman and Lauren
Dickie, Assistant United States Attorneys, were on the brief, for appellee.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PAN,
Associate Judge, Superior Court of the District of Columbia.*



      *
          Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
                                        2
       PAN, Associate Judge: Following a jury trial, appellants James Walker and

Anthony Richardson were convicted of kidnapping while armed, felony threats,

simple assault, unlawful entry, carrying a dangerous weapon (a knife), and various

firearms offenses. On appeal, appellants challenge their kidnapping convictions,

arguing that the evidence was insufficient because the conduct underlying the

kidnappings was incidental to the offenses of robbery and assault.1 Appellant

Richardson also contends that (1) there was insufficient evidence to support his

conviction for carrying a dangerous weapon (“CDW”) and (2) his kidnapping

conviction should merge with his simple-assault convictions. For the reasons that

follow, we find appellants’ arguments unpersuasive and affirm the judgments of

the trial court.



                                I.     Background



       In the early morning hours of Sunday, November 20, 2011, Metropolitan

Police Department officers went to 611 Florida Avenue, N.W., Washington, D.C.,

in response to a 911 call reporting a break-in at that residence. In a first-floor

bedroom, the police found four people: Jazzmen Johnson, Silas O’Brien, and the

       1
        Appellant Walker is the primary proponent of this argument on appeal.
Appellant Richardson has adopted the argument.
                                           3
two appellants. Mr. O’Brien was nude from the waist down and was bleeding

from an injury to his ear; his hands were bound behind his back. At trial, the

government advanced the theory that appellants had assaulted and attempted to rob

Mr. O’Brien and Ms. Johnson; and that appellants had kidnapped the victims –

both by detaining them in the bedroom against their will, and by forcing Mr.

O’Brien to go into the house and into the bedroom.



      Mr. O’Brien testified that on the evening of November 19, 2011, he attended

a party at Howard University with his friends, the Thomas brothers. He then went

to the Thomases’ apartment on the second floor of 611 Florida Avenue, N.W.

Shortly after arriving, Mr. O’Brien went outside to retrieve his jacket from the

Thomases’ car. After he got his jacket and turned to re-enter the house, Mr.

O’Brien saw a man walking toward him on top of a fence near the home. Mr.

O’Brien froze, and then saw another man pointing a gun at him. Mr. O’Brien

grabbed the gun, and started struggling with the two men. One man struck Mr.

O’Brien in the face, and the other struck him over the ear with the gun. The two

men were later identified as appellants.



      Appellants forced Mr. O’Brien to go into the house with them. Once inside,

appellants asked Mr. O’Brien who else was in the house and who was upstairs.
                                         4
Not wanting his friends to be surprised by the assailants, Mr. O’Brien fought

appellants in the kitchen and dining room of the house. Appellants struck Mr.

O’Brien multiple times, knocked him to the floor, and pulled off his pants and

underwear. With his pants removed, Mr. O’Brien ceased struggling. Appellants

used a zip tie to bind his hands behind his back. When the zip tie broke, appellants

struck Mr. O’Brien in the head and bound his hands with another zip tie.



      Appellants then brought Mr. O’Brien to the door of the bedroom nearest the

kitchen, where they sat him against a wall. One of the appellants questioned Mr.

O’Brien about who was in the bedroom and how many people were upstairs, while

the other manipulated the door handle and tried to enter the bedroom.          The

bedroom belonged to Jazzmen Johnson, a chemical-engineering student at Howard

University. She was in bed and awoke to the sound of voices and “tussling” in the

hallway. When Ms. Johnson heard someone whisper, “Bust down the door,” she

called 911 to report a break-in. While Ms. Johnson was still on the phone with the

police, appellants broke into her room and threw Mr. O’Brien onto the floor.

Appellant Walker jumped onto the bed on top of Ms. Johnson and pointed a gun at

her. He snatched the phone from her hands and ordered her to get out of bed and

onto the floor. Appellant Walker pushed the gun against Ms. Johnson’s neck as
                                         5
appellants bound her hands behind her back with zip ties. Appellant Richardson

turned on the lights and searched the room for valuables.



      After a few minutes, a police officer, Gerald Anderson, arrived. Officer

Anderson noticed blood on the door and wall outside of Ms. Johnson’s bedroom,

and a piece of a broken doorjamb and zip ties on the floor. He knocked on the

door of the bedroom and identified himself as the police. Appellant Walker held a

gun to Ms. Johnson’s head and instructed her to tell the officer that everything was

fine. She complied. Appellant Walker unbound Ms. Johnson’s hands and got into

bed with her. He told her to say that she was with her boyfriend; if she did not

cooperate, he would cut her. Ms. Johnson complied. Officer Anderson continued

to insist on speaking to Ms. Johnson face-to-face, but she refused to open the door,

stating that she was not dressed, that she was in bed, and that she did not need to

see the police. Officer Anderson persisted in knocking on the door and demanding

that Ms. Johnson open it; Ms. Johnson, under pressure from appellants, continued

to give false excuses as to why she could not come to the door. This standoff

continued for eight to ten minutes.



      Eventually, appellant Walker instructed Ms. Johnson to open the door,

which she did. Ms. Johnson walked out of the room and whispered to the police,
                                        6
“There are two men in my room that I don’t know.” The police entered the room

and arrested appellants. The police also released Mr. O’Brien from his bindings.

During a search incident to arrest, the police recovered a knife from appellant

Walker’s belt, and zip ties and a bloody glove from appellant Walker’s pockets.

The police found a loaded .25-caliber pistol outside, underneath Ms. Johnson’s

bedroom window.



      In the defense case, appellant Walker presented a very different account of

what had happened. Appellant Walker testified that he possessed zip ties that day

because he worked at a moving company and had helped someone move

electronics. He and appellant Richardson lived in the same house. On the day in

question, they went to a club on U Street and then got some food. At about 5:15

a.m., they went to 611 Florida Avenue, N.W., to purchase marijuana from Mr.

O’Brien.



      Mr. O’Brien sold appellant Walker a half of an ounce of marijuana for fifty

dollars. But appellant Walker was dissatisfied with the product, and asked for his

money back. When Mr. O’Brien refused to return the money, appellant Walker

and Mr. O’Brien engaged in a “fistfight.” Appellant Richardson came to Walker’s
                                        7
aid. During the struggle, appellant Walker pulled out Mr. O’Brien’s earring and

pulled off Mr. O’Brien’s pants in an attempt to recover his money.



      According to appellant Walker, Mr. O’Brien then obtained a gun from a

kitchen cabinet, and the three men struggled for the gun. The tussle moved

through the hallway, bouncing from wall to wall, until the men burst into Ms.

Johnson’s bedroom. When the police knocked on the front door, Mr. O’Brien

threw the gun out the window and told Ms. Johnson, “You know I have weed

upstairs, so you got to make up a plan to get the police away.” Ms. Johnson then

spoke to the police through the door, of her own accord. Appellant Walker denied

that either appellant searched Ms. Johnson’s room for valuables, and denied ever

using zip ties to bind the hands of Ms. Johnson or Mr. O’Brien.



      Based on the foregoing evidence, the jury convicted appellant Walker of the

following offenses: armed kidnapping and simple assault as to Mr. O’Brien; and

armed kidnapping, felony threats, simple assault, and possession of a firearm

during a crime of violence as to Ms. Johnson. The jury convicted appellant

Richardson of unarmed kidnapping and simple assault as to Mr. O’Brien; and

armed kidnapping, simple assault, and possession of a firearm during a crime of

violence as to Ms. Johnson. Both appellants also were convicted of unlawful
                                         8
entry, numerous firearms offenses, and carrying a dangerous weapon (a knife).

The jury acquitted both appellants of burglary, destruction of property, assault with

intent to rob while armed, assault with significant bodily injury, conspiracy to

commit robbery, and related counts of possession of a firearm during a crime of

violence. Appellant Walker was sentenced to an aggregate term of 236 months’

imprisonment. Appellant Richardson was sentenced to an aggregate term of 139

months’ imprisonment.



                           II.   The Kidnapping Charges



      On appeal, appellants argue that the evidence at trial was insufficient to

support their convictions for kidnapping. Appellants urge this court to adopt what

they call “the majority approach” to construing the elements of kidnapping, which

would require the government to prove that the detention underlying the

kidnapping was “prolonged” or for an “appreciable length of time,” and not

incidental to another offense. They argue that such an interpretation is necessary

to prevent injustice because some offenses, such as rape and robbery, often

necessarily include some period of detention, and it was not the intent of the

legislature to allow the government to bring an additional charge of kidnapping

where the detention is not distinct from another offense.       In support of their
                                         9
position, appellants rely on cases from other jurisdictions that have construed

kidnapping statutes narrowly, in order to address the risk of severe sanctions being

imposed for kidnapping based on “a broad and ill defined range of behavior,

including relatively trivial types of restraint.” State v. Salamon, 949 A.2d 1092,

1115 (Conn. 2007); see also, e.g., Government of the Virgin Islands v. Berry, 604

F.2d 221, 227 (3d Cir. 1979) (interpreting Virgin Islands kidnapping statute);

People v. Levy, 204 N.E.2d 842, 844-45 (N.Y. 1965).



      Although appellants raise interesting issues of statutory interpretation, their

argument is foreclosed by a binding precedent of this court.         Moreover, the

evidence in the instant case would be sufficient even under the standard that

appellants propose. We therefore affirm appellants’ kidnapping convictions and

decline to address their statutory-interpretation arguments because consideration of

those arguments is not necessary to resolve the cases on appeal. See Koonce v.

District of Columbia, No. 13-CT-494, slip op. at 32 (D.C. Mar. 19, 2015)

(McLeese, J., concurring in the judgment) (citing United States v. Adams, 740 F.3d

40, 43 (1st Cir. 2014) (“This prudential approach makes eminently good sense: . . .

[d]iscretion is often the better part of valor, and courts should not rush to decide

unsettled legal issues that can easily be avoided.”); Crown EMAK Partners, LLC v.

Kurz, 992 A.2d 377, 398 (Del. 2010) (“[I]t is unnecessary for this Court to decide
                                           10
that issue, because a decision either way would not alter the result we have reached

nor would a gratuitous statutory interpretation resolving this difficult issue be

prudent.”)).



      Appellants assert that the kidnapping statute, D.C. Code § 22-2001 (2001),

presents a “problem” because its broad language encompasses a wide range of

conduct inherent in other crimes, such as assault, robbery, and rape.               The

kidnapping statute is, indeed, worded expansively. It provides:



               Whoever shall be guilty of, or of aiding or abetting in,
               seizing, confining, inveigling, enticing, decoying,
               kidnapping, abducting, concealing, or carrying away any
               individual by any means whatsoever, and holding or
               detaining, or with the intent to hold or detain, such
               individual for ransom or reward or otherwise, except, in
               the case of a minor, by a parent thereof, shall, upon
               conviction thereof, be punished by imprisonment for not
               more than 30 years.



D.C. Code § 22-2001 (2001). The plain language of the statute contains no

exception for cases in which the conduct underlying the kidnapping is momentary

or incidental to another offense. Indeed, we have previously stated that “there is

no requirement that the victim be moved any particular distance or held for any

particular length of time to constitute a kidnapping; all that is required is a ‘seizing,
                                         11
confining’ or the like and a ‘holding or detaining’ for ransom or reward ‘or

otherwise.’” West v. United States, 599 A.2d 788, 793 n.9 (D.C. 1991).



       Nevertheless, this court has acknowledged the issue identified by appellants

and previously addressed it by applying the doctrine of merger. In (Thomas)

Robinson v. United States, 388 A.2d 1210 (D.C. 1978), a decision which has since

been overruled, we considered whether the offense of kidnapping should merge

with the offense of assault with intent to rape. In that case, the defendant had

dragged the complaining witness across a street, into a park, and through some

woods before pulling down her underpants. Id. at 1211. In holding that the

offenses should merge, we noted that “some type of seizure, detention or

confinement is an integral part of every rape,” and that it is “unlikely that Congress

intended that every person who commits a rape be also charged and convicted of

[kidnapping], with its generally more severe penal consequences.” Id. We applied

a test of “whether the asportation (or seizure) in a given case was of the type

incidental to every rape or whether the confinement and restraint were significant

enough of themselves to warrant an independent prosecution for [kidnapping].” Id.

at 1211-12 (citing Levy, 204 N.E.2d at 842). Moreover, we held that because the

detention in (Thomas) Robinson was “momentary and coextensive in time and
                                             12
place with the assault,” it was “an integral element of the assault” and did not

constitute a separate crime. Id. at 1212.2



      The standard we applied in (Thomas) Robinson is substantially the same as

the one advocated by appellants in the present appeal, albeit in a different legal

framework (that of merger instead of sufficiency of evidence). But in Byrd v.

United States, 598 A.2d 386 (D.C. 1991) (en banc), we overruled (Thomas)

Robinson and various other cases that also employed a “factual analysis” to

determine whether offenses should merge. See Parker v. United States, 692 A.2d

913, 916 (D.C. 1997) (confirming that merger analysis applied in Robinson was

superseded by Byrd). We held in Byrd that merger should be governed by the

“elements test” established in Blockburger v. United States, 284 U.S. 299 (1932),

      2
          In the years following (Thomas) Robinson, we applied this fact-based
merger inquiry in numerous other kidnapping cases. See, e.g., Sinclair v. United
States, 388 A.2d 1201, 1207-08 (D.C. 1978) (kidnapping conviction affirmed
where victim was inveigled into an automobile at gunpoint and driven twenty-five
blocks, because such confinement was not “approximately coextensive or a
necessary incident to the crime of robbery”); Beck v. United States, 402 A.2d 418,
423 (D.C. 1979) (kidnapping conviction affirmed where defendant forced victim
from the street into a nearby house at knifepoint before raping and robbing her);
Catlett v. United States, 545 A.2d 1202, 1215-16 (D.C. 1988) (kidnapping
conviction affirmed where victim “was forced from a busy intersection into an
alley” and then “forced one hundred and sixty feet further into the alley” before
robbery); West v. United States, 599 A.2d 788 (D.C. 1991) (kidnapping conviction
affirmed where confinement lasted for more than fifteen minutes and extended “for
a period of time following the [rape and robbery]”).
                                        13
which provides: “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.” Byrd, 598 A.2d at 389 (quoting Blockburger, 284 U.S. at

304). The Blockburger test does not consider the facts of the case, but instead

looks solely to the elements of the offenses of conviction. Under the elements test

prescribed by Blockburger, kidnapping does not merge with robbery,3 rape,4 or

assault.5




       3
         Compare D.C. Code § 22-2001 (kidnapping), with D.C. Code § 22-2801
(2001) (robbery). See also Hanna v. United States, 666 A.2d 845, 855-56 (D.C.
1995) (“Kidnapping requires proof that the victim was seized or detained, which
[robbery] does not. [Robbery] requires proof that property of value was taken,
which kidnapping does not.”).
       4
         Compare D.C. Code § 22-2001 (kidnapping), with D.C. Code § 22-3002
(2001) (first-degree sexual abuse). See also Bryant v. United States, 849 A.2d
1093, 1108 (D.C. 2004) (“[D]etention is not an element of sexual abuse, and each
offense has at least one element that the other does not have, thereby precluding
merger.”).
       5
         Compare D.C. Code § 22-2001 (kidnapping), with D.C. Code § 22-404
(2001) (simple assault). See also (Michael) Robinson v. United States, 50 A.3d
508, 533 (D.C. 2012) (holding that assault and kidnapping charges do not merge
“as they are not the ‘same act’ for purposes of Blockburger . . . and as each
required proof of an element the other did not”).
                                         14
      With merger foreclosed by Byrd and Blockburger, appellants essentially

seek to resurrect (Thomas) Robinson’s “factual analysis” of kidnapping convictions

by asking us to construe the kidnapping statute to encompass the Robinson test;

appellants urge us to find the evidence insufficient to sustain a kidnapping

conviction if that test is not met. As noted supra, support for this approach may be

found in cases from other jurisdictions. See, e.g., State v. Brooks, 56 A.3d 1245,

1265 (N.H. 2012); Salamon, 949 A.2d at 1092; State v. Stouffer, 721 A.2d 207,

215 (Md. 1998); Berry, 604 F.2d at 227; Levy, 204 N.E.2d at 842. But before

relying on precedents that do not bind us, we must first look to our own case law.

We believe that a binding precedent forecloses our adoption of appellants’

approach.



      We previously considered a claim that the offense of kidnapping should

include an element of “non-incidental” confinement in Hagins v. United States,

639 A.2d 612, 617 (D.C. 1994). The defendant in Hagins was charged with both

rape and kidnapping.      He argued on appeal that the jury should have been

instructed that it could not convict him of kidnapping “if the alleged ‘confinement’

was factually incidental to the sexual assaults.” Id. at 617. We rejected that

argument, noting that “[t]he jury’s function is to apply the statutory elements of the

crime to the facts at hand, and ‘non-coextensive’ (or ‘non-incidental’) confinement
                                         15
under Robinson is not such an element.” Id. Our holding in Hagins appears to

foreclose reconsideration of this issue. Contrary to Hagins, appellants are asking

us to construe the kidnapping statute to require an element of “non-incidental”

confinement, and to find the evidence insufficient to support their convictions if

that element is not met. We are bound by Hagins, for a panel of this court may not

overrule a prior panel decision. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.

1971). We thus must reject the approach advocated by appellants.



      Appellants suggest that our holding in Hagins is called into question by a

footnote in Parker, 692 A.2d at 917 n.5. As noted supra, we confirmed in Parker

that the Blockburger test should be applied instead of the (Thomas) Robinson test

in determining whether a kidnapping conviction should merge. We stated in

Parker, however, that “[a]ny lingering question that the same conduct does not

support two separate offenses is properly framed as a challenge to the sufficiency

of the evidence to prove each of the elements of the offense beyond a reasonable

doubt.”   Id.   This general statement, which is dictum, does not overrule or

specifically address Hagins; nor is it inconsistent with the holding of Hagins. At

most, it may reflect an erroneous assumption that the issue of evidentiary

sufficiency in this context had not yet been addressed. We are unwilling to

conclude that the footnote in Parker overrules a case that it does not even mention.
                                        16


      In any event, even if we were not bound by Hagins and were writing on a

clean slate, this case is an inappropriate vehicle to consider adoption of the

approach advocated by appellants. The evidence presented in this case supports

appellants’ convictions for kidnapping even under the new standard that appellants

propose. Appellants were not charged with robbery, and were acquitted of assault

with intent to commit robbery.    Appellants thus fight an uphill battle in arguing

that the detention of Mr. O’Brien or Ms. Johnson was incidental to either of those

offenses, and that it would be unjust to allow the kidnapping convictions to stand.

Cf. Davis v. United States, 613 A.2d 906, 913 (D.C. 1992) (even under (Thomas)

Robinson test, “there is nothing to prohibit the government from charging both

offenses, with the kidnapping charge surviving when there is an acquittal on the

charge [that allegedly encompasses the kidnapping].”). On this record, appellants

are forced to argue that the kidnappings were incidental to simple assault, the

offense of conviction. The assaults on Mr. O’Brien and Ms. Johnson did not

necessarily encompass or require moving Mr. O’Brien into the bedroom, binding

both victims’ wrists, and detaining the victims for 8-10 minutes.        Thus, the

detention of Mr. O’Brien and Ms. Johnson was not incidental to the assaults on

those victims.
                                            17
       In sum, appellants’ proposal is inconsistent with one of our own precedents,

and appellants’ convictions for kidnapping are supported by the evidence even

under appellants’ view of the statute.           Accordingly, we decline to reverse

appellants’ kidnapping convictions.



                   III.   Appellant Richardson’s CDW Conviction



       Appellant Richardson argues that his conviction for CDW was not supported

by sufficient evidence. He notes that the knife that is the subject of that charge was

found in the possession of appellant Walker in a search incident to arrest, and that

the knife was not displayed or used against Mr. O’Brien or Ms. Johnson. The

government argues that the evidence was sufficient under a Pinkerton theory of co-

conspirator liability. See Pinkerton v. United States, 328 U.S. 640 (1946).6



       At the close of the evidence, the jury was instructed on both aiding-and-

abetting liability, and co-conspirator liability under Pinkerton. With respect to the

latter, the trial court instructed the jury as follows:


       6
         The government and appellant Richardson dispute whether Richardson
preserved this issue for appeal. We need not resolve this dispute because the
outcome is the same under any standard of review.
                                        18


            A defendant is responsible for an offense committed by
            another member of the conspiracy if the defendant was a
            member of the conspiracy when the offense was
            committed and if the offense was committed in
            furtherance of and as a natural consequence of the
            conspiracy.



Where a jury has been properly instructed on two alternate theories of liability for

an offense, a conviction may be upheld if either of the two is supported by

sufficient evidence. See Gilliam v. United States, 80 A.3d 192, 210 n.61 (D.C.

2013) (citing Griffin v. United States, 502 U.S. 46, 59 (1991)).          Here, the

government relies only on Pinkerton liability to defend appellant Richardson’s

CDW conviction.



      “As articulated by this [C]ourt, ‘the Pinkerton doctrine provides that a co-

conspirator who does not directly commit a substantive offense may [nevertheless]

be held liable for that offense if it was committed by another co-conspirator in

furtherance of the conspiracy and was a reasonably foreseeable consequence of the

conspiratorial agreement.’” Wilson-Bey v. United States, 903 A.2d 818, 840 (D.C.

2006) (en banc) (quoting Gordon v. United States, 783 A.2d 575, 582 (D.C.

2001)).   “The government is not, however, required to establish that the co-
                                        19
conspirator actually aided the perpetrator in the commission of the substantive

crime, but only that the crime was committed in furtherance of the conspiracy.” Id.

A defendant’s participation in a conspiracy must be established beyond a

reasonable doubt before Pinkerton liability may attach.      See United States v.

Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980) (citing United States v. Michel, 588

F.2d 986, 999 (5th Cir. 1979)).



      Here, viewing the evidence in the light most favorable to the government,

the evidence was sufficient under a straightforward application of Pinkerton. The

jury could reasonably have found that a conspiracy existed, based on evidence that

appellants arrived at the home together, and then worked in tandem to restrain,

assault, and attempt to rob Mr. O’Brien and Ms. Johnson. See, e.g., Harrison v.

United States, 76 A.3d 826, 835 (D.C. 2013) (jury reasonably inferred existence of

conspiracy where two defendants armed with guns accompanied third defendant to

drug deal and then followed him back to vehicle); Mitchell v. United States, 985

A.2d 1125, 1135 (D.C. 2009) (jury reasonably inferred existence of conspiracy

where defendants ran from the scene of the crime and got into a vehicle together).



      Moreover, the evidence supports a finding that it was foreseeable that

appellant Walker would possess a knife in furtherance of the conspiracy. The
                                        20
evidence established that appellants were close to each other and lived in the same

home; that they openly used another weapon (a gun) to commit the assaults and

kidnappings; that appellant Walker threatened to “cut” Ms. Johnson while

appellants were detaining her in the bedroom; and that appellants bound the

victims’ hands with zip ties, which presumably could be removed with a knife.

See United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990) (“[W]here, as here,

co-conspirators are few in number and know each other well, the court may infer

that each participant knew the others’ methods of operation.”); see also United

States v. Smith, 697 F.3d 625, 635 (7th Cir. 2012) (co-conspirator’s possession of a

weapon was reasonably foreseeable where co-conspirators planned bank robbery

together); United States v. Aduwo, 64 F.3d 626, 630 (11th Cir. 1995) (co-

conspirator’s possession of a weapon was reasonably foreseeable where co-

conspirators planned together to rob a drug dealer); United States v. DeMasi, 40

F.3d 1306, 1319-20 (1st Cir. 1994) (co-conspirator’s possession of a weapon was

reasonably foreseeable where co-conspirators planned together to rob a truck).



      Appellant Richardson argues that Pinkerton liability is unsupportable in a

case where, as here, the jury acquitted both appellants of a charged conspiracy to

commit robbery. Appellant Richardson argues that Pinkerton liability requires a

finding beyond a reasonable doubt that a conspiracy existed, but the jury in this
                                         21
case clearly declined to make such a finding when it acquitted appellants of the

conspiracy charge. Although appellant Richardson’s argument seems logical at

first blush, the apparent contradiction is, at most, an inconsistent verdict on the

CDW and conspiracy counts. It is well established that “a not guilty verdict to one

count of an indictment that is inconsistent with a guilty verdict to another count

cannot invalidate the guilty verdict so long as the guilty verdict is based upon

sufficient evidence.” Ransom v. United States, 630 A.2d 170, 172 (D.C. 1993).7

In reviewing appellant’s conviction of CDW, we look at that count of conviction

independently, as if it were in a separate indictment. See United States v. Powell,

469 U.S. 57, 62 (1984) (“Consistency in the verdict is not necessary. Each count

in an indictment is regarded as if it was a separate indictment.” ); United States v.

Martin, 893 F.2d 1404, 1404 (D.C. Cir. 1990) (“[It is] settled law that the jury’s

verdict on each count stands alone and that inconsistent verdicts do not necessarily

      7
         See also Hart v. United States, 863 A.2d 866, 874 (D.C. 2004) (“It is now
well-established that inconsistent verdicts by themselves do not mandate
reversal.”) (citing United States v. Dobyns, 679 A.2d 487, 490 (D.C. 1996));
District of Columbia v. Tulin, 994 A.2d 788, 798 (D.C. 2010) (“In criminal cases,
inconsistent verdicts, while not favored, are generally allowed to stand.”); Evans v.
United States, 987 A.2d 1138, 1140 (D.C. 2010) (“Both the Supreme Court and
this court have long tolerated inconsistent verdicts.”); McClain v. United States,
871 A.2d 1185, 1193 (D.C. 2005) (“However inconsistent the verdict in this case
is, we are precluded from second-guessing that verdict.”); Mayfield v. United
States, 659 A.2d 1249, 1255 (D.C. 1995) (“[J]ury verdicts will not be overturned
for inconsistency.”).
                                        22
render a conviction infirm.”).    Thus, appellant Richardson’s acquittal on the

conspiracy count does not affect our conclusion, discussed supra, that the evidence

was sufficient to support the CDW conviction under Pinkerton. “[T]here is no

reason to vacate [appellant’s] conviction [for CDW] merely because the verdicts

cannot rationally be reconciled.” Powell, 469 U.S. at 69.8



                                  IV.   Conclusion



      For the foregoing reasons, we affirm the judgments of conviction.



                                                                So ordered.




      8
         Appellant Richardson also argues that his convictions for simple assault
and kidnapping should merge under Blockburger, 284 U.S. at 299. As noted in
footnote 5, supra, we held in (Michael) Robinson, 50 A.3d at 533, that assault and
kidnapping charges do not merge “as they are not the ‘same act’ for purposes of
Blockburger . . . as each required proof of an element the other did not.”
Kidnapping requires proof of asportation or confinement, while assault requires the
actual or threatened infliction of injury. See id. Appellant Richardson’s claim that
every kidnapping necessarily encompasses an assault is unfounded. We agree with
the government that numerous factual scenarios could support a conviction for
kidnapping but not assault – e.g., where a victim is locked in a room, or enticed
into a stranger’s car under false pretenses. We therefore reject appellant
Richardson’s argument, and affirm his convictions for simple assault.
