concurring in part and dissenting in part:
I concur in reversal of the grand larceny conviction but respectfully dissent from the remand for entry of a judgment of conviction for petit larceny and for resentencing. I would reverse and remand for a new trial.
My colleagues acknowledge that reasonable jurors could have (1) accepted appellant’s claim of right defense as to the amplifier (which he concededly took) and based conviction solely on the remaining items; (2) rejected appellant’s claim of right defense while crediting the evidence that he did not aid and abet his companion’s theft of the other items, and thus based conviction solely on the amplifier; or (3) rejected both the claim of right defense and the defense evidence on aiding and abetting, and accordingly based conviction on theft of all the items. Specifically, they make this acknowledgement in the following sentence, ante at 416:
And, as to the defense of claim of right to the amplifier, [1] whether the jury accepted it (and based conviction on the remaining items), or [2] whether they rejected it (and based the conviction on the amplifier alone or [3] on the amplifier and the remaining items) there is no possibility that the verdict rested upon any insufficient or improper basis.
The last clause — “there is no possibility that the verdict rested upon any insufficient or improper basis” — is a non sequitur. Absent an instruction that the jury unanimously must agree either that appellant took the amplifier without a sustainable claim of right, or that he aided and abetted the theft of the other property, there is a reasonable possibility that the jury did not unanimously agree (as my colleagues acknowledge they must) “as to ‘what a defendant did’ as a predicate to determining whether the defendant is guilty of the crime charged. Hack v. United States, D.C.App., 445 A.2d 634, 641 (1982).” Ante at 415.
*417To arrive at their conclusion, my colleagues appear irresolute. They say “there is no indication that [the jury] did not, in fact, agree unanimously as to what property appellant stole.” Ante at 416. But, in the very next sentence, they allow for the possibility that the jury was not unanimous. They acknowledge that the jurors may have accepted different defenses, and thus may have differed as to what property appellant stole:
[Wjhatever credence the jury may have accorded appellant’s defenses, the jury was at least unanimous in finding that appellant took some of the complainant’s property, having some value, without his consent and without right. (Emphasis in original.) [Ante at 416.]
In sum, the majority permits a jury to tack together a unanimous verdict even when they disagree as to what property — clearly differentiable by reference to separate legal defenses — was stolen.
In Hack, supra, we precluded such dilution of the right to a unanimous jury:
Because of the possibility of a nonunani-mous verdict, when one charge encompasses two separate incidents, the judge must instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which incident or incidents they find the defendant guilty. [Id. at 641.]
Accord Davis v. United States, D.C.App., 448 A.2d 242 (1982) (per curiam); United States v. Mangieri, - U.S.App.D.C. -, 694 F.2d 1270 (1982). My colleagues find this ruling inapposite because Hack, supra, and similar cases1 “involved single verdicts which were based on two entirely separate incidents, acts which were conceptually sev-erable and chargeable as separate offenses.” Ante at 415 (footnote omitted). This is a distinction without a difference, for even though it can be said, in this case, that there is “just one set of factual circumstances not separated by time or by intervening incidents,” ante at 415, the alleged thefts here are conceptually severable — and thus legally quite “separate incidents,” Hack, supra 445 A.2d at 641 — given the separate defenses (claim of right and denial) directed at separate items of property.
. Hawkins v. United States, D.C.App., 434 A.2d 446 (1981); Johnson v. United States, D.C. App., 398 A.2d 354 (1979).