unanimity requirement in District of Columbia

2005Id. at 441 (citations omitted); see also Smith v. United States, 591 A.2d 229, 232-33 (D.C.1991) (“While we recognize that rebanee upon [the government’s views of possession] ... could present potential jury unanimity problems, no such objection was raised at trial or request for a unanimity instruction made, and we perceive no ‘plain error’ in that regard.”) (citing Shivers v. United States, 533 A.2d 258, 263 (D.C.1987)).

2002To meet the requirements of the unanimity rule, “if a single count encompasses two or more factually or legally separate incidents, the trial court is required to instruct the jury that it must reach unanimous agreement as to the incident or incidents upon which the verdict is based.” Id. (citing Shivers v. United States, 533 A.2d 258, 261 (D.C.1987)). 8 .

1988It is clear, however, that there were not two separate assaults here, only a single continuous event that occurred within the space of a few seconds and to which appellant presented a unified defense of misidentification and alibi. “[Wjhere there is a single incident charged in the indictment and it is unnecessary for the jury to reconstruct the fatal events step-by-step, we may presume the unanimity requirement was satisfied.” Derrington v. United States, 488 A.2d 1314, 1335 (D.C. 1985) (citing Burrell v. United States, 455 A.2d 1373, 1380 (D.C.1983)); accord, Shivers v. United States, 533 A.

1985These are the essential elements of the offense of petit larceny, D.C.Code 1981, § 22-2202, and under these circumstances involving a single uninterrupted event, we conclude that the unanimity requirement is satisfied. 6 Id. at 415-16 (emphasis in original); see Derrington v. United States, 488 A.2d 1314, 1335-36 (D.C.1985).

2012In Scarborough we held that a unanimity instruction may also be required for "legally separate incidents," such as when the appellant presented separate legal defenses to the charges. 522 A.2d at 873 .

2012A unanimity requirement is appropriate “whenever there is evidence tending to show legally separate incidents ... not just factually separate incidents.” Id.

1988It is clear, however, that there were not two separate assaults here, only a single continuous event that occurred within the space of a few seconds and to which appellant presented a unified defense of misidentification and alibi. “[Wjhere there is a single incident charged in the indictment and it is unnecessary for the jury to reconstruct the fatal events step-by-step, we may presume the unanimity requirement was satisfied.” Derrington v. United States, 488 A.2d 1314, 1335 (D.C. 1985) (citing Burrell v. United States, 455 A.2d 1373, 1380 (D.C.1983)); accord, Shivers v. United States, 533 A.

1985Ct.Crim.R. 31(a), 32 the unanimity rule “requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether that defendant is guilty of the crimes charged.” Johnson v. United States, 398 A.2d 354, 369 (D.C.1979) (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)); quoted in Burrell v. United States, 455 A.2d 1373, 1379 (D.C.1983), and Hack v. United States, 445 A.2d 634, 641 (D.C.1982).

2011Cf. Davis v. *1209 United States, 448 A.2d 242, 243 (D.C.1982) (finding the absence of a unanimity instruction plainly erroneous where defendant denied having possessed two different envelopes of marijuana).

1987Id. at 449 ; compare Davis, 448 A.2d at 244 (plain error), with Hack, 445 A.2d at 641 (error harmless beyond reasonable doubt).

2005“When the jury must choose between different versions of a single incident, we may presume that the unanimity requirement was satisfied.” Tyler v. United States, 495 A.2d 1180, 1182 (D.C.1985). .

2000We disposed of this issue in Tyler v. United States, 495 A.2d 1180, 1182 (D.C.1985), concluding that, under these circumstances, a unanimity instruction was not required.

1985Ct.Crim.R. 31(a), 32 the unanimity rule “requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether that defendant is guilty of the crimes charged.” Johnson v. United States, 398 A.2d 354, 369 (D.C.1979) (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)); quoted in Burrell v. United States, 455 A.2d 1373, 1379 (D.C.1983), and Hack v. United States, 445 A.2d 634, 641 (D.C.1982).

1985That right is reinforced by Super.Ct.Crim.R. 31(a). 10 “The unanimity rule ... requires jurors to be in substantial agreement as to just what a *1093 defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.” United States v. Gipson, 553 F.2d 453, 457-458 (5th Cir.1977), quoted in Johnson v. United States, 398 A.2d 354, 369 (D.C.1979); accord, Derrington v. United States, 488 A.2d 1314, 1335 (D.C.1985) (citing cases).

1988The unanimity rule “ ‘requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.’ ” Scarborough, supra, 522 A.2d at 873 (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)).

1985Ct.Crim.R. 31(a), 32 the unanimity rule “requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether that defendant is guilty of the crimes charged.” Johnson v. United States, 398 A.2d 354, 369 (D.C.1979) (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)); quoted in Burrell v. United States, 455 A.2d 1373, 1379 (D.C.1983), and Hack v. United States, 445 A.2d 634, 641 (D.C.1982).

2013Rather, this case was appropriately resolved with the court’s unanimity instruction because each count “encompasse[d] two (or more) factually separate criminal incidents” and the jury was required to “reach unanimous agreement as to a particular incident in order to find the defendant guilty as charged.” Williams v. United States, 981 A.2d 1224, 1228 (D.C.2009).

2012Therefore, a trial court must provide a unanimity instruction “where ‘a single count encompasses two or more factually or legally separate incidents,’ ” Washington v. United States, 760 A.2d 187, 197 (D.C.2000) (quoting Parks v. United States, 627 A.2d 1, 8 (D.C.1993)), because “[w]hen a single count encompasses factually separate criminal incidents, each incident is not merely an alternative ‘means’ of committing an element (or multiple elements) of the charged offense; rather, each incident actually constitutes one or more elements of the offense.... ” Williams v. United States, 981 A.2d 122

1987Id. at 449 ; compare Davis, 448 A.2d at 244 (plain error), with Hack, 445 A.2d at 641 (error harmless beyond reasonable doubt).

1985Ct.Crim.R. 31(a), 32 the unanimity rule “requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether that defendant is guilty of the crimes charged.” Johnson v. United States, 398 A.2d 354, 369 (D.C.1979) (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)); quoted in Burrell v. United States, 455 A.2d 1373, 1379 (D.C.1983), and Hack v. United States, 445 A.2d 634, 641 (D.C.1982).

2012Therefore, a trial court must provide a unanimity instruction “where ‘a single count encompasses two or more factually or legally separate incidents,’ ” Washington v. United States, 760 A.2d 187, 197 (D.C.2000) (quoting Parks v. United States, 627 A.2d 1, 8 (D.C.1993)), because “[w]hen a single count encompasses factually separate criminal incidents, each incident is not merely an alternative ‘means’ of committing an element (or multiple elements) of the charged offense; rather, each incident actually constitutes one or more elements of the offense.... ” Williams v. United States, 981 A.2d 122

1994See Warrick, supra, 528 A.2d at 439 (convictions of burglary with intent to steal and burglary with intent to assault could not both stand because the societal interest protected by the burglary statute was offended only once); cf. Parks v. United States, 627 A.2d 1, 8 (D.C.1993) (although there are two different ways to commit an assault, “a unanimity instruction as to which type of.assault appellant committed was not required ... because the alleged assault was based on a single incident”).

2012Even if we assume that the trial court’s failure to give a unanimity instruction was obvious error, 11 however, appellant cannot “ ‘show that the lack of a unanimity instruction jeopardized the fairness and integrity of his trial.’” Howard, 867 A.2d at 975 (quoting McKinnon v. United States, 644 A.2d 438, 441 (D.C.1994)).

2005Id. at 441 (citations omitted); see also Smith v. United States, 591 A.2d 229, 232-33 (D.C.1991) (“While we recognize that rebanee upon [the government’s views of possession] ... could present potential jury unanimity problems, no such objection was raised at trial or request for a unanimity instruction made, and we perceive no ‘plain error’ in that regard.”) (citing Shivers v. United States, 533 A.2d 258, 263 (D.C.1987)).

1987If a special unanimity instruction is required when the evidence, under a single count, tends to show that the defendant received different items of stolen property at different times, People v. Parsons, 156 Cal.App.3d 1165, 1173-74 , 203 Cal.Rptr. 412, 418 (1984); see Davis, 448 A.2d at 244 ; Hack, 445 A.2d at 641 , there is no principled basis for saying that such an instruction is not required when a defendant presents separate defenses to a single count charging receipt of different items of stolen property at the same time.

1987If a special unanimity instruction is required when the evidence, under a single count, tends to show that the defendant received different items of stolen property at different times, People v. Parsons, 156 Cal.App.3d 1165, 1173-74 , 203 Cal.Rptr. 412, 418 (1984); see Davis, 448 A.2d at 244 ; Hack, 445 A.2d at 641 , there is no principled basis for saying that such an instruction is not required when a defendant presents separate defenses to a single count charging receipt of different items of stolen property at the same time.

1993Scarborough v. United States, 522 A.2d 869, 873 (D.C.1987) (en banc); see also Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (plurality opinion).

1993Scarborough v. United States, 522 A.2d 869, 873 (D.C.1987) (en banc); see also Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (plurality opinion).

2017See United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015).

2012Therefore, a trial court must provide a unanimity instruction “where ‘a single count encompasses two or more factually or legally separate incidents,’ ” Washington v. United States, 760 A.2d 187, 197 (D.C.2000) (quoting Parks v. United States, 627 A.2d 1, 8 (D.C.1993)), because “[w]hen a single count encompasses factually separate criminal incidents, each incident is not merely an alternative ‘means’ of committing an element (or multiple elements) of the charged offense; rather, each incident actually constitutes one or more elements of the offense.... ” Williams v. United States, 981 A.2d 122

2012Therefore, a trial court must provide a unanimity instruction “where ‘a single count encompasses two or more factually or legally separate incidents,’ ” Washington v. United States, 760 A.2d 187, 197 (D.C.2000) (quoting Parks v. United States, 627 A.2d 1, 8 (D.C.1993)), because “[w]hen a single count encompasses factually separate criminal incidents, each incident is not merely an alternative ‘means’ of committing an element (or multiple elements) of the charged offense; rather, each incident actually constitutes one or more elements of the offense.... ” Williams v. United States, 981 A.2d 122

2005Id. at 441 (citations omitted); see also Smith v. United States, 591 A.2d 229, 232-33 (D.C.1991) (“While we recognize that rebanee upon [the government’s views of possession] ... could present potential jury unanimity problems, no such objection was raised at trial or request for a unanimity instruction made, and we perceive no ‘plain error’ in that regard.”) (citing Shivers v. United States, 533 A.2d 258, 263 (D.C.1987)).

1999Harris v. United States, 622 A.2d 697, 701 (D.C.1993).

1996FinaEy, the trial court: did not abuse discretion in refusing to sever the December and February incidents, Bond v. United States, 614 A.2d 892, 896 (D.C.1992); committed no error when it faEed to sua sponte, give a unanimity instruction, Simms v. United States, 634 A.2d 442 (D.C.1993); and, had jurisdiction over the assaultive conduct occurring in the District in the December incident, even though some of BeE's conduct, as recited in trial testimony, occurred outside the District, Adair v. United States, 391 A.2d 288 (D.C.1978). 4 .The procedure foEowed by the parties and the trial court is s

1994See Warrick, supra, 528 A.2d at 439 (convictions of burglary with intent to steal and burglary with intent to assault could not both stand because the societal interest protected by the burglary statute was offended only once); cf. Parks v. United States, 627 A.2d 1, 8 (D.C.1993) (although there are two different ways to commit an assault, “a unanimity instruction as to which type of.assault appellant committed was not required ... because the alleged assault was based on a single incident”).

1994See Warrick, supra, 528 A.2d at 439 (convictions of burglary with intent to steal and burglary with intent to assault could not both stand because the societal interest protected by the burglary statute was offended only once); cf. Parks v. United States, 627 A.2d 1, 8 (D.C.1993) (although there are two different ways to commit an assault, “a unanimity instruction as to which type of.assault appellant committed was not required ... because the alleged assault was based on a single incident”).

1993See Harris, supra, 602 A.2d at 159 (citing Frady, supra, 456 U.S. at 163 n. 14), 102 S.Ct. at 1592 n. 14); cf. Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) *9 (jury unanimity not required where charges included premeditated and felony murder, because these simply represented two different states of mind as alternative means of committing the same crime).

1993See Harris, supra, 602 A.2d at 159 (citing Frady, supra, 456 U.S. at 163 n. 14), 102 S.Ct. at 1592 n. 14); cf. Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) *9 (jury unanimity not required where charges included premeditated and felony murder, because these simply represented two different states of mind as alternative means of committing the same crime).

1993A unanimity instruction is required where “a single count encompasses two or more factually or legally separate incidents.” Gray v. United States, 544 A.2d 1255, 1257 (D.C.1988).

1993See Harris, supra, 602 A.2d at 159 (citing Frady, supra, 456 U.S. at 163 n. 14), 102 S.Ct. at 1592 n. 14); cf. Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) *9 (jury unanimity not required where charges included premeditated and felony murder, because these simply represented two different states of mind as alternative means of committing the same crime).

1993See Harris, supra, 602 A.2d at 159 (citing Frady, supra, 456 U.S. at 163 n. 14), 102 S.Ct. at 1592 n. 14); cf. Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) *9 (jury unanimity not required where charges included premeditated and felony murder, because these simply represented two different states of mind as alternative means of committing the same crime).

1988It is clear, however, that there were not two separate assaults here, only a single continuous event that occurred within the space of a few seconds and to which appellant presented a unified defense of misidentification and alibi. “[Wjhere there is a single incident charged in the indictment and it is unnecessary for the jury to reconstruct the fatal events step-by-step, we may presume the unanimity requirement was satisfied.” Derrington v. United States, 488 A.2d 1314, 1335 (D.C. 1985) (citing Burrell v. United States, 455 A.2d 1373, 1380 (D.C.1983)); accord, Shivers v. United States, 533 A.