Graure v. United States
18 A.3d 743, 2011 D.C. App. LEXIS 160, 2011 WL 1496260 (2011)
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Rule of Law:
Multiple convictions for attempted-battery assault with a deadly weapon stemming from a single act, such as setting one fire, do not merge when each conviction corresponds to a different victim who was in the direct path of physical injury, as the unit of prosecution is each individual exposed to harm, not the singular act itself.
Facts:
- Vasile Graure was a patron at the Good Guys strip club on November 3, 2007.
- After Graure violated a club rule by photographing a dancer, manager Kathleen Lazorchack asked him to leave.
- In response, Graure shouted, cursed at Lazorchack, and smashed his beer glass on the ground before departing.
- Shortly thereafter, Graure purchased a two-gallon gasoline can and a lighter from a nearby Chevron gas station, filled the can with gasoline, and walked back towards the club.
- Graure re-entered the club where an employee, Vladimir Djordjevic, attempted to stop him near the entrance.
- During a struggle with Djordjevic, Graure poured gasoline over him and the surrounding area at the front of the club.
- Graure then used the lighter to ignite the gasoline, creating a large fireball that engulfed Djordjevic.
- The fire spread across the front of the club, blocking the main exit and placing several employees and patrons who were seated nearby—including Valerie Kremer, Samuel Bond, Michael O’Quin, and Jessica Schaeffer—in the direct path of the flames.
Procedural Posture:
- Vasile Graure was prosecuted in the trial court on multiple charges related to a fire at a strip club.
- A jury found Graure guilty of, among other things, three counts of assault with intent to kill while armed (AWIKWA) and four counts of assault with a deadly weapon (ADW).
- The trial court sentenced Graure to 368 months of incarceration.
- Graure, as appellant, appealed his convictions and sentence to the District of Columbia Court of Appeals, arguing that his four ADW convictions should merge into a single offense.
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Issue:
Do multiple convictions for Assault with a Deadly Weapon (ADW) based on a single act of arson merge when each conviction is for a different victim and the legal theory is attempted-battery assault rather than intent-to-frighten assault?
Opinions:
Majority - Thompson, Associate Judge
No, the convictions do not merge. The court distinguishes between two types of assault: 'intent-to-frighten' assault, where a single threat to a group may constitute a single offense, and 'attempted-battery' assault, where the focus is on the act's potential to cause physical injury. In this case, the jury was instructed on attempted-battery assault. Because the legislative intent of the assault statute is to protect individuals, the 'unit of prosecution' is each person actually exposed to the risk of physical injury. By setting a fire that created a zone of immediate physical danger, Graure committed a separate act of attempted-battery assault against each individual (Kremer, Bond, O’Quin, and Schaeffer) who was in the direct path of that danger, justifying separate convictions.
Analysis:
This decision clarifies the merger doctrine in the District of Columbia for assault cases involving a single criminal act affecting multiple victims. It establishes a critical distinction between 'intent-to-frighten' and 'attempted-battery' theories of assault for merger purposes. The holding significantly increases potential criminal liability for defendants whose single act, like arson or setting off a bomb, creates a zone of direct physical danger, by defining the unit of prosecution as each individual victim rather than the act itself. This precedent will guide prosecutors in charging decisions and courts in sentencing for similar mass-victim scenarios, emphasizing the protection of each individual.
