special unanimity instruction in District of Columbia

2014See Simms v. United States, 634 A.2d 442, 445 (D.C. 1993) (“The requirement for a special unanimity instruction arises when the court cannot deduce from the record whether the jury must have agreed upon one particular set of facts.”); Scarborough, 522 A.2d at 873 (“Properly framed, then, the question is whether, on this record, some jurors reasonably could have believed [one factual predicate for an offense], while other jurors reasonably could have believed [another factual predicate].”).

2014See Wynn, 48 A.3d at 192 (concluding that the jury “could” have determined guilt based on different factual scenarios); Scarborough, 522 A.2d at 873 (noting that a special unanimity instruction is required “whenever there is evidence tending to show” separate incidents).

2014See Shivers v. United States, 533 A.2d 258 , 263 n. 13 (D.C.1987) (noting that “federal courts consider a general unanimity instruction sufficient to insure a unanimous verdict ‘except in cases where the complexity of the evidence or other factors create a genuine danger of jury confusion’ ”) (quoting United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir.1986)); Owens, 497 A.2d at 1094 (finding harmless the failure to give a special unanimity instruction when there was “no rational way” for jurors to have come to a verdict predicated on different sets of fact).

2013And while the record is not entirely clear as to the exact length of Silvano Lopez’s abduction, it appears to have occurred within a relatively short time frame (apparently about forty-five minutes; less than an hour). 14 Compare id. (requiring special unanimity instruction where separate threats were made over the course of four months), with Shivers v. United States, 533 A.2d 258, 261-62 (D.C.1987) (finding no plain error where two instances of assaultive conduct were separated by a “break of less than half an hour”).

2014See Simms v. United States, 634 A.2d 442, 445 (D.C. 1993) (“The requirement for a special unanimity instruction arises when the court cannot deduce from the record whether the jury must have agreed upon one particular set of facts.”); Scarborough, 522 A.2d at 873 (“Properly framed, then, the question is whether, on this record, some jurors reasonably could have believed [one factual predicate for an offense], while other jurors reasonably could have believed [another factual predicate].”).

2014Under these circumstances, appellant can make no showing of plain error.”); Simms, 634 A.2d at 446 (finding "no indication of jury confusion” requiring a special unanimity instruction because only one incident was encompassed in the indictment and the prosecutor focused on only that single incident in his closing argument); Gray, 544 A.2d at 1258-59 (concluding that the single perpetrator’s actions — three acts of rape with "short spatial and temporal separation”— showed "a continuous course of conduct" with "no significant break between events”); Owens, 497 A.2d at 1094 ("The arguments of the

2015Thus, whenever one count in an indictment encompasses two or more separate criminal acts, the trial judge must instruct the jury that a guilty verdict may be returned only if all jurors agree “as to the. specific act the defendant committed.” Id.; see also Wynn v. United States, 48 A.3d 181, 192 (D.C.2012). 2 A special unanimity instruction is not required, however, “when a single count is charged and the facts show a continuing course of conduct, rather than a succession of clearly detached incidents.” Gray v. United States, 544 A.2d 1255, 1258 (D.C.1988).

2014A special unanimity instruction is not required, on the other hand, where the jury is presented “with alternative theories of criminal liability for a single incident,” Hargrove, 55 A.3d at 857 , or “when a *218 single count is charged and the facts show a continuing course of conduct, rather than a succession of clearly detached incidents.” Gray v. United States, 544 A.2d 1255, 1258 (D.C.1988).

1988In such instances, we have excused a failure to request a special unanimity instruction in trials arising prior to the Scarborough decision because of justified reliance on our second holding in Barkley v. United States, 455 A.2d 412, 415-16 (D.C.1983), which was overruled in Scarborough.

1988Compare Barkley v. United States, 455 A.2d 412, 416 (D.C.1983) (Ferren, J., concurring in part and dissenting in part), with Scarborough, 522 A.2d at 874-75.

2014A special unanimity instruction protects the right to a jury trial by guarding against “the possibility that some jurors might vote to convict based solely on one incident while others vote to convict solely based on the other.” Id.; see also Schad v. Arizona, 501 U.S. 624, 651 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (Scalia, J., concurring); Johnson v. United States, 398 A.2d 354, 369 (D.C.1979).

1988See Scarborough, supra 522 A.2d at 873 . 2 Here, however, two clearly separate incidents were involved, which our case law has recognized as open to a special unanimity instruction at least since Johnson v. United States, 398 A.2d 354 (D.C.1979).

2000See, e.g., Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C. 1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).

2000See, e.g., Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C.1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).

2014A special unanimity instruction protects the right to a jury trial by guarding against “the possibility that some jurors might vote to convict based solely on one incident while others vote to convict solely based on the other.” Id.; see also Schad v. Arizona, 501 U.S. 624, 651 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (Scalia, J., concurring); Johnson v. United States, 398 A.2d 354, 369 (D.C.1979).

2014A special unanimity instruction protects the right to a jury trial by guarding against “the possibility that some jurors might vote to convict based solely on one incident while others vote to convict solely based on the other.” Id.; see also Schad v. Arizona, 501 U.S. 624, 651 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (Scalia, J., concurring); Johnson v. United States, 398 A.2d 354, 369 (D.C.1979).

2014See Wynn, 48 A.3d at 193 . 22 Even if the error is clear, to warrant reversal of their convictions on plain error review appellants must also demonstrate that the error affected their substantial rights and, further, that it “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 193-94 (alteration in original); accord Olano, 507 U.S. at 732 , 113 S.Ct. 1770 .

2014See Wynn, 48 A.3d at 193 . 22 Even if the error is clear, to warrant reversal of their convictions on plain error review appellants must also demonstrate that the error affected their substantial rights and, further, that it “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 193-94 (alteration in original); accord Olano, 507 U.S. at 732 , 113 S.Ct. 1770 .

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.

2012Instead, the facts of this case are analogous to those in Hack v. United States, where we held that the defendant’s possession of marijuana laced with PCP (which he discarded while fleeing police), and his possession of marijuana only moments later in the back of a police car, were two factually separate incidents requiring a special unanimity instruction. 445 A.2d 634, 641 (D.C.1982).

1988In Hack v. United States, 445 A.2d 634 (D.C.1982), we held that where, on the facts of the case, a potential unanimity problem presents itself, a special unanimity instruction may be required.

2015Thus, whenever one count in an indictment encompasses two or more separate criminal acts, the trial judge must instruct the jury that a guilty verdict may be returned only if all jurors agree “as to the. specific act the defendant committed.” Id.; see also Wynn v. United States, 48 A.3d 181, 192 (D.C.2012). 2 A special unanimity instruction is not required, however, “when a single count is charged and the facts show a continuing course of conduct, rather than a succession of clearly detached incidents.” Gray v. United States, 544 A.2d 1255, 1258 (D.C.1988).

2015We need not resolve this diffir cult question, however, because appellant’s failure to request a special unanimity instruction at trial subjects his claim to plain error review on appeal, see id. at 217 ; Wynn, 48 A.3d at 192 , and appellant cannot satisfy the plain error standard.

2014See Wynn, 48 A.3d at 193 ; Scarborough, 522 A2d at 871-72 ; see also Youssef v. United States, 27 A.3d 1202, 1208 (D.C.2011) (holding that trial court erred in denying defendant’s request for special unanimity instruction).

2012See Youssef, 27 A.3d at 1207 .

2013Cf. Williams, supra, 981 A.2d at 1225 (a special unanimity instruction was required where multiple threats against an ex-girlfriend were delivered through different persons, on different days, and through different modes of communication).

2013Cf. Williams, supra, 981 A.2d at 1225 (a special unanimity instruction was required where multiple threats against an ex-girlfriend were delivered through different persons, on different days, and through different modes of communication).

2013Cf. Horton v. United States, 541 A.2d 604, 611 (D.C.1988) (holding that it was plain error not to deliver a special unanimity instruction where the presentation of separate defenses to separate alleged gunshots caused “inherent” confusion).

1993See Horton v. United States, 541 A.2d 604, 611 (D.C.1988).

2000See, e.g., Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C.1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).

2000See, e.g., Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C.1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).

2000See, e.g., Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C. 1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).

2000See, e.g., Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C.1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).

1998See Griffin v. United States, 502 U.S. 46, 49-51 , 112 S.Ct. 466 , 116 L.Ed.2d 371 (1991); Roy v. United States, 652 A.2d 1098, 1103 (D.C. 1995); cf. Tyler v. United States, 495 A.2d 1180, 1182 (D.C.1985) (rejecting claim of error in failure to give a special unanimity instruction on ground that "appellant could not have been prejudiced, because it was unnecessary for the jury to agree” on whether he was a principal or an aider and abettor). 6 .

1993Tyler v. United States, supra, 495 A.2d at 1182 (when there is only one event at issue, a special unanimity instruction is not required to determine whether the defendant was a principal or an aider or abettor); D.C.Code § 22-105 (1989).

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.

2014See Guevara, 77 A.3d at 422 (concluding that a special unanimity instruction was not required because "there is no objective reason to believe the jury actually disagreed as to what threatening behavior served as the basis for [appellant’s] conviction” since the facts showed that all three incidents of threatening "occurred in the course of carrying out a single criminal scheme — the abduction” of the victim); Hargrove, 55 A.3d at 857-58 (determining there was no clear error where it is "anything but obvious ... that the jury was in disagreement over which of these acts had taken place” and wh

2011Rather, appellant must show that the lack of a unanimity instruction jeopardized the fairness and integrity of his trial.” McKinnon v. United States, 644 A.2d 438 , 441 n. 6 (D.C.1994) (internal quotations and alterations omitted) (finding no plain error where defendant failed to object to the lack of a special unanimity instruction at trial); accord, Howard v. United States, 867 A.2d 967, 974-75 (D.C.2005); Green v. United States, 544 A.2d 714, 715 (D.C.1988).

1987Therefore, unless there is a special unanimity instruction, there can be no assurance that the jury unanimously agreed "as to just what a defendant did." Id. at 457 .

1987Therefore, unless there is a special unanimity instruction, there can be no assurance that the jury unanimously agreed “as to just what a defendant did.” Id. at 457 .

2015See Marshall, 15 A.3d at 710 .

2015On the one hand, we have held in the merger context that the act of carrying or possessing a weapon “is continuous and may be committed by a person who is moving from place to place,” Bruce v. United States, 471 A.2d 1005, 1007 (D.C.1984), and there is no evidence in the record that appellant ever broke his continuous (and unlawful) carrying and possession of the Bulldog revolver throughout the events at issue by putting it away or (as to the charge of carrying a pistol without a license) by returning it to his home, place of business, or other location at which his carrying of the weapon migh

2015On the one hand, we have held in the merger context that the act of carrying or possessing a weapon “is continuous and may be committed by a person who is moving from place to place,” Bruce v. United States, 471 A.2d 1005, 1007 (D.C.1984), and there is no evidence in the record that appellant ever broke his continuous (and unlawful) carrying and possession of the Bulldog revolver throughout the events at issue by putting it away or (as to the charge of carrying a pistol without a license) by returning it to his home, place of business, or other location at which his carrying of the weapon migh

2014Under these circumstances, appellant can make no showing of plain error.”); Simms, 634 A.2d at 446 (finding "no indication of jury confusion” requiring a special unanimity instruction because only one incident was encompassed in the indictment and the prosecutor focused on only that single incident in his closing argument); Gray, 544 A.2d at 1258-59 (concluding that the single perpetrator’s actions — three acts of rape with "short spatial and temporal separation”— showed "a continuous course of conduct" with "no significant break between events”); Owens, 497 A.2d at 1094 ("The arguments of the

2014See Shivers v. United States, 533 A.2d 258 , 263 n. 13 (D.C.1987) (noting that “federal courts consider a general unanimity instruction sufficient to insure a unanimous verdict ‘except in cases where the complexity of the evidence or other factors create a genuine danger of jury confusion’ ”) (quoting United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir.1986)); Owens, 497 A.2d at 1094 (finding harmless the failure to give a special unanimity instruction when there was “no rational way” for jurors to have come to a verdict predicated on different sets of fact).

2014See Shivers v. United States, 533 A.2d 258 , 263 n. 13 (D.C.1987) (noting that “federal courts consider a general unanimity instruction sufficient to insure a unanimous verdict ‘except in cases where the complexity of the evidence or other factors create a genuine danger of jury confusion’ ”) (quoting United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir.1986)); Owens, 497 A.2d at 1094 (finding harmless the failure to give a special unanimity instruction when there was “no rational way” for jurors to have come to a verdict predicated on different sets of fact).

2014A special unanimity instruction is not required, on the other hand, where the jury is presented “with alternative theories of criminal liability for a single incident,” Hargrove, 55 A.3d at 857 , or “when a *218 single count is charged and the facts show a continuing course of conduct, rather than a succession of clearly detached incidents.” Gray v. United States, 544 A.2d 1255, 1258 (D.C.1988).

2014See Guevara, 77 A.3d at 422 (concluding that a special unanimity instruction was not required because "there is no objective reason to believe the jury actually disagreed as to what threatening behavior served as the basis for [appellant’s] conviction” since the facts showed that all three incidents of threatening "occurred in the course of carrying out a single criminal scheme — the abduction” of the victim); Hargrove, 55 A.3d at 857-58 (determining there was no clear error where it is "anything but obvious ... that the jury was in disagreement over which of these acts had taken place” and wh

2014Ultimately, however, the Guevara court concluded that "even assuming ... that [appellant] could show the trial judge committed an obvious error [in not sua sponte delivering a special unanimity instruction], we would nevertheless affirm her conviction because she has not established any prejudice to her substantial rights.” Id. at 423 . 21 .

2014See Guevara, 77 A.3d at 422 (concluding that a special unanimity instruction was not required because "there is no objective reason to believe the jury actually disagreed as to what threatening behavior served as the basis for [appellant’s] conviction” since the facts showed that all three incidents of threatening "occurred in the course of carrying out a single criminal scheme — the abduction” of the victim); Hargrove, 55 A.3d at 857-58 (determining there was no clear error where it is "anything but obvious ... that the jury was in disagreement over which of these acts had taken place” and wh

2013This court has held that a special unanimity instruction is required when “a single count encompasses two or more factually or legally separate incidents.” Parks v. United States, 627 A.2d 1, 8 (1993) (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C.1988)); see also Washington, supra, 760 A.2d at 197 (“The requirement for a special unanimity instruction arises when the court cannot deduce from the record whether the jury must have agreed upon one particular set of facts.” (quoting Simms v. United States, 634 A.2d 442, 445 (D.C.1993) (quotation marks omitted))); Scarborough v. United St