Vines v. United States

70 A.3d 1170, 2013 WL 3466402, 2013 D.C. App. LEXIS 395

• Court: District of Columbia Court of Appeals
• Decided: July 11, 2013
• Docket: No. 11-CF-843
• Status: Published

Opinions

KING, Senior Judge:

On May 11, 2011, a jury found appellant Tavon E. Vines guilty of eight separate charges, including one count of robbery,¹ two counts of malicious destruction of property,² and one count of simple assault.³ On appeal from those convictions, Vines argues: (1) the trial court erred by allowing the joinder of all charges against him in a single trial; (2) his two convictions for malicious destruction of property merged under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution; and (3) the evidence at trial was insufficient to convict him of either simple assault or malicious destruction of property. Because Vines’ arguments are unpersuasive, we affirm.

I. Factual Background

The charges against Vines arise from two robberies on July 26, 2010, and the efforts of law enforcement officers to apprehend him in connection with those robberies on the following day. The government ultimately charged Vines with a total of thirteen charges arising from the events of these two days, all of which were joined for a single trial.⁴

At trial, the government presented the testimony of Serguei Korpein and Mareie Bane. Both Bane and Korpein testified that a young black man stole their iPhones from them on July 26. The government also offered the testimony of Jon-David Schlough, who testified that he was nearby when a man stole Bane’s phone. He further testified that he overheard Bane’s cry for help and chased the perpetrator to an eggshell-white Cadillac Escalade SUV. Schlough noted the license plate number on the vehicle, called 911, and reported the number.

The government also presented the testimony of Officer Robert Ferretti. Ferret-ti testified that on July 27, he began following a white Cadillac Escalade SUV with a license plate number similar to the number Slough provided the previous day. He pulled behind the SUV and began to “pace” it. Vines, the driver of the SUV, then began to make “evasive” maneuvers. Officer Ferretti attempted to pull the SUV over, at which point it fled down Pennsylvania Avenue toward Washington Circle. Vines then made a number of reckless maneuvers in traffic. As Officer Ferretti gave chase, Vines drove the SUV down the wrong side of the road toward oncoming traffic at a rate of approximately 35^40 mph. Vines drove through a red light, nearly striking a group of pedestrians. The chase ended when the SUV collided with multiple vehicles in an intersection, leaving the SUV disabled. The SUV’s occupants, including Vines, then abandoned their vehicle and fled on foot. Officer Ferretti ultimately apprehended Vines outside a nearby office building.

II. Joinder and Severance

We first consider Vines’s argument that the trial court improperly allowed joinder of the charges arising from the July 26 robberies and the charges arising from the July 27 car chase for a single trial. Whether initial joinder was proper is a matter of law this court considers de novo. Crutchfield v. United States, 779 A.2d 307, 321 (D.C.2001). Under Super. Ct.Crim. R. 8(a), joinder of two or more criminal charges for trial is permissible so long as those charges are: (1) “of the same or similar character,” (2) “based on the same act or transaction,” or (3) based on “acts or transactions connected together or constituting parts of a common scheme or plan.” Gooch v. United States, 609 A.2d 259, 262 (D.C.1992). Two crimes are sufficiently “connected together” if “proof of one crime constitutes a substantial portion of proof of the other.” Sweet v. United States, 756 A.2d 366, 375 (D.C. 2000) (internal quotation marks and citation omitted). We construe Rule 8(a) broadly in favor of initial joinder. Id.

In this case, we conclude that the trial court did not err by permitting the initial joinder of all charges. It is true that the charges against Vines encompassed two logically distinct sets of offenses. The first set, including the two robbery charges, arose from the events that took place on July 26. The second set of charges arose from the July 27 car chase. However, the two sets of charges were sufficiently “connected together” to justify joinder. There was a substantial overlap of evidence between the sets of charges. The July 27 charges arose after Officer Ferretti attempted to detain Vines on suspicion of his having been involved in the July 26 robberies. At the time Officer Ferretti attempted to detain him, Vines was operating the same SUV that Slough saw him use to flee the scene of the robberies on the previous day. Based on this connection, evidence regarding the July 26 robberies would have been admissible in a separate trial on the July 27 charges to show Vines’ motive for fleeing from police. See Johnson v. United States, 683 A.2d 1087, 1092 (D.C.1996) (evidence of other crimes admissible to prove motive) (citing Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (1964)). Moreover, evidence regarding the July 27 events would have been admissible in a separate trial on the July 26 charges to show Vines’ consciousness of guilt and his identity as the perpetrator of the robberies. See id. (evidence of other crimes admissible to prove identity); see also Smith v. United States, 777 A.2d 801, 807 (D.C.2001) (“It is well settled in this jurisdiction that evidence of flight or disappearance can be admitted at trial as evidence of consciousness of guilt”). This “substantial overlap” in evidence was sufficient to justify join-der. Sweet, supra, 756 A.2d at 375. Finally, because there was such an overlap, joinder served the goals of “trial economy and convenience” by insuring that the relevant events “need only be proved once.” Gooch, supra, 609 A.2d at 264. Thus, join-der in this case served the “primary purpose” of Rule 8(a). Id. As a result, we are unable to say that the trial court erred by permitting initial joinder.

In a related argument, Vines contends that the trial court erred by denying his motion to sever under Super. Ct.Crim. R. 14. We review the trial court’s ruling on a motion to sever for abuse of discretion. Cox v. United States, 498 A.2d 231, 235 (D.C.1985). Rule 14 permits the trial court to sever otherwise properly joined offenses to avoid prejudice, as “justice requires.” Workman v. United States, 15 A.3d 264, 266 (D.C.2011). To justify severance, a defendant must show “the most compelling prejudice,” from which the trial court will be unable to protect if the offenses are tried together. Id.

We conclude that the trial court did not err by denying Vines’ motion to sever the offenses. Vines failed to make any proffer or otherwise attempt to show he would suffer prejudice from the joinder of all charges for trial, other than to argue in conclusory fashion that “[r]obbery is not of the same or similar character as the other offenses.” Yet as we noted supra, evidence regarding each set of charges would have been admissible in a separate trial on the other set. Thus, it is unclear exactly how a single joint trial on all charges could have prejudiced Vines, regardless of the character of the offenses. See Bailey v. United States, 10 A.3d 637, 643 (D.C.2010) (“[A] motion to sever will be granted only where the evidence would not be mutually admissible at separate trials.”). Furthermore, the trial court instructed the jury to consider the charges separately and distinctly. On appeal, this court presumes juries to have understood and followed the trial court’s instructions. Smith v. United States, 315 A.2d 163, 167 (D.C.1974), cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 139 (1974). Thus, absent some evidence that the jury ignored the court’s instruction and failed to consider each offense distinctly, we cannot find prejudice resulting from joinder. The record is utterly lacking in such evidence. Indeed, the jury’s verdicts affirmatively show that it acted in accordance with the court’s instructions. While the jury convicted Vines of robbing Korepin, it was unable to reach a verdict on the Bane robbery. The jury’s ability to consider these offenses separately and distinctly shows that it did not “cumulate the evidence improperly to find guilt or to infer that appellant had a criminal disposition.” Arnold v. United States, 511 A.2d 399, 406 (D.C.1986) (no prejudice resulting from joinder of offenses where colloquy between court and jury forewoman showed that jury reached its verdict on two separate counts of armed robbery on two different days during course of deliberations). Because of the mutual admissibility of evidence between both sets of charges and the jury’s ability to consider those charges separately and distinctly, we cannot conclude that Vines suffered any prejudice as a result of the denial of his motion to sever. Thus, we are satisfied that the trial court did not abuse its discretion by denying Vines’ severance motion.

III. Merger

We next consider Vines’s argument that his two convictions for malicious destruction of property merged as a matter of law.⁵ This court considers whether two convictions merge under the Double Jeopardy Clause de novo. Owens v. United States, 497 A.2d 1086, 1095 (D.C.1985). The Double Jeopardy Clause prohibits multiple punishments for the same offense. Maddox v. United States, 745 A.2d 284, 294 (D.C.2000). Punishments do not merge, however, when they arise out of separate criminal acts or transactions. Hanna v. United States, 666 A.2d 845, 852 (D.C.1995). Punishments also do not merge when a defendant perpetrates separate crimes against separate victims. Id. at 855. In such cases, there is no constitutional limitation on imposing separate punishments for each crime. Id. at 858.

Here, we conclude that Vines’s two separate convictions for destruction of property do not merge, because each conviction was the result of a separate criminal act against a separate victim. The testimony at trial showed that Vines’s two convictions arose from two collisions. The first conviction arose from the damage he inflicted on Sharon Garrett’s vehicle. The second conviction was based on his subsequent collision with Laura May’s vehicle. At trial, Garrett testified that Vines’s vehicle struck her vehicle first, and then proceeded to strike May’s vehicle. This testimony established two distinct collisions with two separate vehicles and two separate victims.⁶

That Vines committed a single reckless act does not control our analysis. In deciding whether certain conduct constitutes a single offense or multiple offenses, we do not simply count the number of discrete “acts.” That is, there is no general rule that a single act can support only a single conviction; multiple punishments are permissible even where multiple charges are the product of a single act. See, e.g., Ruffin v. United States, 642 A.2d 1288, 1298 (D.C.1994) (“[W]here a single assaultive act results in the criminal injury of multiple victims, there may be as many offenses as there are victims.”); Williams v. United States, 569 A.2d 97, 104 (D.C. 1989) (assuming defendant’s conduct constituted a single assaultive act, yet nevertheless upholding seven separate manslaughter convictions); Murray v. United States, 358 A.2d 314, 320 (D.C.1976) (affirming two negligent-homicide convictions in connection with a single car crash). Rather than simply tallying “acts,” we have looked to the offense’s definition. Where the definition contemplates that an injury to each new victim will constitute a separate offense, we have endorsed the imposition of multiple punishments. See Williams, supra, 569 A.2d at 104 (looking to background principles of District of Columbia law); Murray, supra, 358 A.2d at 320 (looking to legislative intent).⁷

As to malicious destruction of property, we understand D.C.Code § 22-303 to contemplate a new offense for each new victim. The statute punishes the destruction of “any public or private property,” but does not further define “property.” Nevertheless, that term is not ambiguous: “property” is generally defined by reference to the individual interests therein. See Black’s Law Dictionary 402 (8th ed.1999) (defining “criminal damage to property” as “[i]njury, destruction, or substantial impairment to the use of property ... without the consent of a person having an interest in the property.” (emphasis added)); Webster’s THIRD New International Dictionary 1818 (1993) (defining “property” as “something which may be owned or possessed .... a valuable right or interest primarily the source of wealth” (emphasis added)). Indeed, § 22-303 itself punishes the offender for destroying property only when that property is “not his or her own” — explicitly distinguishing between individual interests. Likewise, for other offenses, our law explicitly defines “property” by reference to such interests. See D.C.Code § 22-3201 (2009) (defining “property of another” as “any property in which a government or a person other than the accused has an interest” (emphasis added)). Moreover, we have recognized that the statute’s protection extends to individual interests in property. See Baker v. United States, 891 A.2d 208, 215 (D.C.2006) (defining “injury” to property as “detriment to, or violation of, person, character, feelings, rights, property, or interests, or value of the thing” (internal quotations omitted)); Jackson v. United States, 819 A.2d 963, 965 (D.C. 2003) (“In fact, to interpret such statutes as not protecting individuals with partial ownership rights would be inconsistent with the general purpose of such a statute.”). Finally, § 22-303 does not prohibit any particular defined “act,” but rather proscribes only conduct which has a particular effect: i.e., “maliciously injuring] or breaking] or destroying] ... any public or private property.” This is “a powerful indication of the legislative intent” that the offense be defined not by reference to the “acts” committed, but to the property interests injured. Speaks v. United States, 959 A.2d 712, 716-17 (D.C.2008) (discussing D.C.Code § 22-1101 (2001)). Accordingly, we read § 22-303 as contemplating a separate offense as to the destruction of each separate victim’s property, rather than the destruction of “property” in some more-general sense.⁸

Here, Vines caused two separate victims to suffer injuries to two distinct property interests. May and Garrett each suffered an injury to their interests in their respective vehicles.⁹ Accordingly, Vines is guilty of malicious destruction of property against two separate victims. And because his act caused distinct injuries to two separate victims, his convictions do not merge. See Hanna, supra, 666 A.2d at 855; see also Wages v. United States, 952 A.2d 952, 964-65 (D.C.2008) (two convictions for possession of a firearm during a crime of violence arising out of a single incident did not merge despite proximity in time where they involved distinct assaults against separate victims).¹⁰

IV. Sufficiency of the Evidence

Finally, we consider Vines’ argument that the evidence was insufficient to convict him of either simple assault or malicious destruction of property. When reviewing for sufficiency of the evidence, we consider the evidence in the light most favorable to the government. Mitchell v. United States, 985 A.2d 1125, 1133-34 (D.C.2009). We draw all inferences in favor of the prosecution, so long as they are supportable under any view of the evidence. Rose v. United States, 49 A.3d 1252, 1259 (D.C.2012). The evidence at trial need not conclusively establish guilt to sustain a conviction. United States v. Walker, 545 F.3d 1081, 1088 (D.C.Cir. 2008). Rather, it is sufficient that a reasonable juror could have concluded that the evidence established the defendant’s guilt beyond a reasonable doubt. Id.

Based on our review, we are persuaded that the evidence was sufficient to convict Vines of simple assault. In order 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. Bradley v. United States, 856 A.2d 1157, 1161 (D.C.2004). We have described simple assault as a general intent crime. See, e.g., Stroman v. United States, 878 A.2d 1241, 1245 (D.C. 2005); Lee v. United States, 831 A.2d 378, 381 (D.C.2003). The finder of fact may permissibly infer the general intent to commit a crime from the mere doing of the act that constitutes the crime. Stroman, supra, 878 A.2d at 1245. Here, the evidence at trial demonstrated that Vines committed the acts constituting the assault on May. The government presented evidence that Vines led police on a high-risk chase down a busy street in downtown Washington, D.C., the result of which was a violent collision with May’s vehicle. May suffered physical injuries as a result of this collision, including injuries to her right arm and neck. There is no suggestion that Vines acted unconsciously or involuntarily. Thus, based on Vines’ actions, the jury could reasonably have inferred he intended to commit the act constituting the assault.

Vines argues, however, that although this court has consistently referred to simple assault as a general intent crime, some of our decisions effectively treat simple assault as a specific intent crime. See Buchanan v. United States, 32 A.3d 990, 992-1002 (D.C.2011) (Ruiz, J., concurring) (reviewing cases). He argues that these decisions require the government to prove that he had either: (a) the specific intent to cause bodily harm; or (b) the specific intent to place his victim in reasonable apprehension of bodily harm in order to sustain a conviction. However, we need not address the correctness of Vines’ understanding of our case law to resolve this appeal. Even assuming Vines is correct, a reasonable juror could have inferred the intent to cause bodily harm from his extremely reckless conduct, which was almost certain to cause bodily injury to another. See Wilson-Bey v. United States, 903 A.2d 818, 839 n. 38 (D.C.2006) (en banc) (jury may infer from the performance of an act the intent to cause the natural and probable consequences of that act).

This result is consistent with our case law, which permits a finder of fact to infer the general intent to commit a crime from reckless conduct. For instance, this court has sustained convictions for assault with a dangerous weapon (“ADW”) based on reckless conduct. In Powell v. United States, 485 A.2d 596, 597 (D.C.1984), we affirmed the defendant’s conviction for ADW in violation of D.C.Code § 22-502 (1981) (current version at D.C.Code § 22^02 (2001)). In circumstances very similar to this case, the defendant in Powell was fleeing police at a high rate of speed when he struck another vehicle. Id. at 597-98. The collision caused serious injuries to one passenger and the death of another. Id. at 598. The evidence at trial did not indicate that the defendant specifically intended to injure his victims. Id. at 597-98. Indeed, there was substantial evidence to the contrary. See id. at 598. Nevertheless, this court affirmed the ADW conviction. Id. at 597. Likewise, in Parker v. United States, 123 U.S.App.D.C. 343, 359 F.2d 1009 (1966),¹¹ the D.C. Circuit held that proof of specific intent to injure is not necessary to sustain a conviction for ADW. The court noted that former D.C.Code § 22-502 did not include any words of intent, such as “willfully” or “with intent.” Id. at 345, 359 F.2d at 1101. Rather, it “simply says that ‘every person convicted ... of an assault with a dangerous weapon, shall be sentenced to imprisonment for not more than ten years.’” Id. at 345-46, 359 F.2d at 1011-12 (quoting § 22-502). The court concluded that, “[w]hether ... weapons are used purposely to inflict injury or only recklessly, if the other elements of an assault are present, the conduct still falls within the ambit of the statute.” Id. at 346, 359 F.2d at 1012 (emphasis added) (footnote omitted). Thus, it is clear that a conviction for ADW can be sustained by proof of reckless conduct alone.

If reckless conduct is sufficient to establish the requisite intent to convict a defendant of ADW, it necessarily follows that it is enough to establish the intent to convict him of simple assault. The four elements of ADW are simply the three elements of simple assault, plus the use of a dangerous weapon. Williamson v. United States, 445 A.2d 975, 978 (D.C.1982). The intent elements for the two offenses are identical. See id. at 977 (noting that both ADW and simple assault are general intent crimes). Moreover, the relevant statutory language suggests the intent elements are the same. D.C.Code § 22-404 (2001) codifies criminal assault in the District of Columbia, but does not define the term “assault.” Section 22^02, which codifies ADW, also uses the term “assault” without any additional definition. Neither statute contains any language specifying the requisite mens rea. See Parker, supra, 123 U.S.App.D.C. at 345, 359 F.2d at 1011 (noting that former § 22-502 used no terms of intent). Given that this court has affirmed convictions under § 22-402 based on purely reckless conduct, see Powell, supra, 485 A.2d at 597, it follows that the same conduct is sufficient to establish the requisite intent under § 22-404.

Based on the foregoing, and making all reasonable inferences in favor of the government, we conclude that the evidence was sufficient to convict Vines of simple assault. We need not decide whether it was necessary for the government to show that Vines possessed the intent to injure May and Garrett or only the intent to commit the acts constituting the assault. Even if the greater proof was necessary, the jury could permissibly infer such intent from Vines’ extremely reckless conduct, which posed a high risk of injury to those around him.

Likewise, we are persuaded that the evidence was sufficient to convict Vines of malicious destruction of property. He argues on appeal that the evidence at trial failed to establish he acted with “malice.” In order to prove a defendant acted with “malice,” the government must show: (1) the absence of all elements of justification, excuse or recognized mitigation; and (2) either (a) the actual intent to cause a particular harm, or (b) “the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result.” Guzman v. United States, 821 A.2d 895, 898 (D.C.2003) (quoting Thomas v. United States, 557 A.2d 1296, 1299 (D.C.1989)) (emphasis in original). In this case, the government presented evidence that Vines fled police officers at a high rate of speed, drove down the wrong side of the road, ran through a red light, and collided with multiple vehicles. As noted supra, this evidence suggests a high degree of recklessness. The jury could reasonably infer from this reckless behavior that Vines acted willfully and in spite of a “plain and strong likelihood” that his actions would result in property damage. Guzman, supra, 821 A.2d at 898. Thus, the evidence was clearly sufficient to show that Vines acted with “malice.”

For the foregoing reasons, we affirm the convictions of all counts.

1 . D.C.Code § 22-2801 (2001).

2 . D.C.Code § 22-303 (2001).

3 . D.C.Code § 22-404(a)(l) (2001).

4 .Prior to trial, the court denied Vines motion to sever the charges arising from the July 26 robberies from the charges arising from his conduct on July 27.

5 . Vines also argues that the evidence was insufficient to convict him of two counts of malicious destruction of property because there was no evidence to show he committed two separate criminal acts. These arguments are effectively identical for our purposes here. Thus, we consider both under the rubric of merger.

6 . The record is somewhat murky regarding the exact order of events during these collisions. At trial, Garrett testified that Vines’s vehicle struck three different vehicles: her vehicle, a green Honda, and a mail truck. She stated that Vines’s vehicle struck her vehicle first. It then struck the Honda, and then the mail truck.

May, who was driving the green Honda testified that she did not see Vines's vehicle before it struck her. Because she did not see what happened before the second collision, her testimony is largely unhelpful in sorting out the exact sequence of events.

Likewise, Officer Ferretti's testimony does not do much to clarify the ambiguity in the record. He testified: “From what I remember, I think [Vines’s] vehicle hit the back of one car and the front of another.” His testimony does not make clear whether this was a single collision or two collisions, one closely following the other.

Because Ferretti and May’s testimony do not resolve the issue, we are left with Garrett's version of the events. We think the jury could fairly conclude, based on Garrett’s testimony, that there were two distinct collisions involving Garrett's and May’s vehicles. Because there were two collisions, and those two collisions led to two charges regarding acts against two separate victims, the convictions do not merge. See Hanna, supra, 666 A.2d at 855.

7 . The dissent would take a different approach. Because Vines's collision with May’s and Garrett’s vehicles were not "each the result of its own fresh impulse,” the dissent would find only one offense. But that is not our law. Indeed, as the dissent concedes, had May and Garrett died as a result of Vines’s single reckless act, he could be charged with two counts of negligent homicide, regardless of whether Vines acted with a fresh impulse, as to each victim. See Murray, supra, 358 A.2d at 320.

The dissent attempts to distinguish this case by arguing that malicious destruction of property is not a victim-specific crime; thus, we need do no more than add up Vines’s “acts.” But as discussed infra, we understand D.C.Code § 22-303 to distinguish between separate harms to individual victims.

8 . The dissent argues that the Rule of Lenity requires us to reach its — and Vines’s — -preferred interpretation: that the statute does not distinguish between individual interests in property. But the Rule of Lenity is merely a "secondary rule of construction,” which " 'can tip the balance in favor of criminal defendants only where, exclusive of the rule, a penal statute’s language, structure, purpose, and legislative history leave its meaning genuinely in doubt.’ ” Luck v. District of Columbia, 617 A.2d 509 (D.C. 1992) (quoting Lemon v. United States, 564 A.2d 1368, 1381 (D.C. 1989)). It "comes into operation at the end of the process of construing what [the legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Id. (quoting Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)). Thus, because § 22-303 is not ambiguous, appeals to the Rule of Lenity are misplaced.

9 . The dissent argues that May and Garrett "never testified that they owned the cars they were driving and the record at least suggests that others had property interests in these vehicles.” We disagree. Rather, the record plainly shows that the government both sought to establish that May and Garrett owned their vehicles and was successful in doing so. First, the charging indictment alleged that Vines "did injure, break, and destroy ... a car, property of Sharon Garrett,” and "a car, property of Laura May.” At trial, both May and Garrett repeatedly referred to their respective vehicles as "my truck” and "my car,” and both described the amounts they spent on repairs. May indicated that she carried insurance on her car, and Garrett brought to court receipts for the amounts she paid out-of-pocket. Moreover, Vines himself did not complain of any lack of proof of ownership: in his motion for judgment of acquittal, his attorney did not raise the issue. Nor did he raise the issue in his briefs in this court. Accordingly, we think the record clearly shows that the government both sought to and did establish ownership of the vehicles.

We also note that, by its terms, the statute did not require the government to prove who owned the affected property beyond proving that the defendant did not own it. See § 22-303 (requiring proof that the property the defendant damaged was "not his or her own”). On this point, the government was successful. And for the purposes of our merger analysis, there is no suggestion that the same person owned both cars.

10 .Vines's and the dissent’s reliance on Carter v. United States, 531 A.2d 956 (D.C. 1987), is misplaced. In Carter, this court held that two of the defendant’s five convictions for malicious destruction of property merged. The sequence of events in Carter was as follows: Carter, driving a vehicle owned by Barber without Barber’s permission, struck a vehicle owned by J. Wilson, which was then shoved into a vehicle owned by Blake. 531 A.2d at 957-58. The Barber vehicle then collided with a stop sign, dragging the stop sign into a vehicle owned by E. Wilson, causing damage to that vehicle. Id. at 958. The Barber vehicle then struck a police cruiser, causing damage to it. Id. at 958. Carter was convicted of malicious destruction of property as to the Barber, J. Wilson, Blake, and E. Wilson vehicles and the police cruiser. Id. at 958. The government conceded, and we agreed, that the charge with respect to Blake's vehicle merged with the conviction for the J. Wilson vehicle, and the charge with respect to the Barber vehicle merged with respect to the cruiser. Id. at 957, 964. The damage to the Blake vehicle occurred when it was struck by the J. Wilson vehicle — i.e., the damage to those two vehicles was clearly simultaneous. The damage to the Barber vehicle was caused when it collided with the J. Wilson vehicle, the E. Wilson vehicle, and the police cruiser. Thus, the charge with respect to the J. Wilson vehicle did not merge with the charge related to the E. Wilson vehicle or the charge related to the cruiser. Id. at 964. We are satisfied in this case that the collision of Vines’s vehicle with May's vehicle was a separate incident from the collision with Garret’s vehicle, just as we determined in Carter that the E. Wilson and cruiser collisions were separate from each other and from the collision with the J. Wilson vehicle. Id. at 964. Therefore, they do not merge.

Finally, we also note that the circumstances of the merged counts in Johnson v. United States, 883 A.2d 135, 144-45 (D.C.2005), were the same as the circumstances of the collision of the Barber vehicle and the police cruiser in Carter. In both cases the accused was driving a vehicle without the consent of the owner of that vehicle, and because the damage to the vehicle being driven and the vehicle struck occurred simultaneously, the separate charges of destruction of property merged. See id. at 138, 144-45; Carter, supra, 531 A.2d at 957-58, 964.

11 . Because these cases were decided before February 1, 1971, this court considers them binding precedent. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).