ALAZAJUAN M. GRAY and CLIFTON SMITH v. UNITED STATES.

District of Columbia
Court of Appeals
Nos. 13-CF-854 & 13-CM-109
OCT 20 2016
ALAZAJUAN M. GRAY and CLIFTON SMITH,
Appellants,

v. CF2-17021-12 &
CMD-17022-12
UNITED STATES,
Appellee.

On Appeal from the Superior Court of the District of Columbia
Criminal Division

BEFORE: FISHER and BECKWITH, Associate Judges; and NEWMAN, Senior Judge.

JUDGMENT

This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

ORDERED and ADJUDGED that the matter is remanded with instructions
to vacate appellants’ convictions for the unarmed robbery of Takai and appellant Smith’s
conviction for receipt of stolen property and, should the government choose to retry
appellants, for further proceedings consistent with this opinion. Appellant Gray’s
conviction of committing an offense during release (“OCDR”) should also be vacated.
Gray’s sentences for armed robbery and carrying a dangerous weapon (“CDW”) must be
enhanced. In all other respects, the judgments of the trial court are affirmed.

For the Court:

Dated: October 20, 2016.

Opinion by Associate Judge John Fisher.

Opinion, concurring in part and dissenting in part, by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS 10/20/16

Nos. 13-CF-854 and 13-CM-1039

ALAZAJUAN M. GRAY and CLIFTON SMITH, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court
of the District of Columbia
(CF2-17021-12 and CMD-17022-12)

(Hon. Herbert B. Dixon, Jr., Trial Judge)

(Argued September 30, 2015 Decided October 20, 2016)

Matthew C. Leefer for appellant Alazajuan Gray.

Marie L. Park for appellant Clifton Smith.

Peter S. Smith, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman and Philip Selden, Assistant United States Attorneys, were on the brief,
for appellee.

Before FISHER and BECKWITH, Associate Judges, and NEWMAN, Senior
Judge.

Opinion for the court by Associate Judge FISHER.

Opinion by Associate Judge BECKWITH, concurring in part and dissenting in
part, at page 41.
 2

FISHER, Associate Judge: Appellants Alazajuan Gray and Clifton Smith

appeal their convictions for robbing Metro passengers of cellphones on two

separate occasions. They primarily contend that the charges stemming from each

event should have been tried separately. Because the court should have severed

the counts, we reverse appellants’ convictions for unarmed robbery on

September 28, 2012, and Smith’s conviction for receiving stolen property on that

same date. We are not persuaded by appellants’ remaining arguments, but direct

that the judgments be corrected in certain respects.

I. Factual and Procedural History

A. The September 21 Armed Robbery

Viewed in a light favorable to the government, the evidence showed that, on

Friday, September 21, 2012, around 11:00 p.m., Gerald McIntosh entered the

Silver Spring Metro station with his girlfriend and two female friends, Radia Tabur

and Michele St. Julien. As the group waited on the platform, three African

American men, including appellants Alazajuan Gray and Clifton Smith,

approached the women and tried to talk with them. Unsuccessful, Gray made
 3

some crass and insulting remarks to McIntosh before lifting his hands above his

head to reveal the butt of a gun in the waistband of his pants.

When the train arrived, McIntosh and his friends separated themselves from

appellants and stepped into a different car. However, when the train reached the

Takoma Park station, the three men entered the car where the group was sitting.

Gray took a seat behind McIntosh. Smith stood in front of McIntosh, and said,

“[O]h, y’all thought y’all was gonna get away.” On Smith’s command, Gray stood

up, took the gun out of his pants, keeping it at waist level, and took an iPhone and

$20 from McIntosh’s pockets. The train stopped and, as the men left, Smith told

McIntosh not to “snitch” or he would “beat [his] ass.” “Scared” and “aggravated,”

McIntosh heeded the threat and did not report the robbery to the police.

A week later, on September 28, McIntosh encountered appellants once

again. Entering the Fort Totten Metro station around 8:00 p.m., McIntosh noticed

Gray and Smith walking towards him on the platform. Gray asked McIntosh if

they could talk. Scared, and believing he saw Gray flash a gun, McIntosh ran up

the escalator and found Station Manager Vinson Bellamy. Appellants chased

McIntosh to the station kiosk. While Bellamy called the police, Smith opened the

kiosk door and asked McIntosh if he was “snitching.” When McIntosh said
 4

“yeah,” Smith came into the kiosk and punched McIntosh in the face. Bellamy

broke up the fight and appellants fled.

Not long after, Metro Transit Police Officers Leron Elliston, Thomas Leahy,

and Syreeta Jackson responded to the scene. After they conducted a show-up

procedure, during which McIntosh described and then identified appellants, Officer

Elliston arrested Gray and Smith. At trial, the officers described Gray as an

African American male with short hair, who, on September 28, was wearing a blue

and yellow hat and a “dark blue” or “dark-colored” shirt. The officers described

Smith as an African American male with dreadlocks wearing a white T-shirt.

At trial, eyewitnesses McIntosh, St. Julien, and Tabur identified appellants

as the men who robbed McIntosh on September 21, and Bellamy identified

appellants as the men who chased and attacked McIntosh on September 28. The

government also introduced cellular data, which showed a phone registered to

Gray had been in the area of the Silver Spring Metro station on September 21

around the time of the robbery, as well as a black and white video, which showed

appellants confronting and chasing McIntosh in the Fort Totten Metro station on

September 28.
 5

Appellants challenged the eyewitness identifications through the expert

testimony of Dr. Steven Penrod, who testified about the accuracy of identifications

in hypothetical situations mirroring the facts of this case. Additionally, both

appellants testified, claiming they were not present for the September 21 robbery.

Gray testified that he was either at home or at work, because he had recently

received a court-imposed curfew between “10 p.m. and 6 a.m.” when he was

released in another Superior Court case. Gray also testified that the eyewitnesses

must have confused him with “other individuals” and that his brothers’ use of his

cellphone might explain the cellular evidence.

Similarly, Smith stated he was not at the Silver Spring Metro station on

September 21 but rather at his mother’s house or his aunt’s house. Based on the

time his Metro card was swiped on an A2 bus (the bus he normally takes to his

aunt’s house), he contended that he could not have made it to the Silver Spring

Metro station by the time the robbery occurred.

Smith stated that he chased and punched McIntosh on September 28 because

he thought McIntosh was “trying to snitch on me for something I didn’t do.” Gray

said he participated in the chase because he thought the three men were “about to

fight.”
 6

B. The September 28 Unarmed Robbery

Around 7:10 p.m., a little less than an hour before Gray and Smith

confronted McIntosh at Fort Totten, Katherine Takai boarded a yellow line train at

the Pentagon City Metro station. In her train car, she noticed three African

American men sitting together. One of them moved closer to her, sitting

somewhere behind her. When the Metro doors opened at Gallery Place, that man

ripped the phone out of her hands and sprinted out of the car. Takai tried to chase

him, but the remaining two men stood in her way, purposefully blocking her

attempt to exit the car.

Later that night, Officer Elliston and a Metropolitan Police Department

canine unit found Takai’s stolen iPhone in a park outside the Fort Totten Metro

station – where Elliston had cuffed and detained Smith approximately forty-five to

fifty minutes earlier in response to Station Manager Bellamy’s call regarding the

assault on McIntosh.

Takai was unable to identify the robbers either in a photo array or at trial.

However, she testified that the man who took her phone had short hair and was
 7

wearing a light blue shirt. She also said that one of the men who blocked her exit

had dreadlocks and was wearing a white T-shirt.

In their testimony at trial, Gray and Smith claimed they did not rob Takai or

ride the yellow line that night. Both admitted that they passed through Gallery

Place, but Gray claimed he was coming back from his baby’s mother’s house on

the red line and Smith claimed he was traveling from his house on the green line.

Both testified that they met on the train and had plans to meet more people in Fort

Totten before heading to a party on New York Avenue together. Smith also

asserted that he had Takai’s phone, not because he stole it, but because, while

riding the red line to Fort Totten, he bought it from another young, African

American man who offered to sell the iPhone for $50.00.

C. The Verdicts

Among other offenses, the jury found both appellants guilty of one count of

armed robbery, based on the September 21, 2012, robbery of McIntosh, and one

count of unarmed robbery, based on the September 28, 2012, robbery of Takai.
 8

II. Joinder/Severance

Appellant Smith argues that the September 21 armed robbery charges and

the September 28 unarmed robbery charges were improperly joined under

Rule 8 (b).1 Both appellants argue that, even if proper, the joinder was prejudicial,

and the court abused its discretion in denying their motions to sever. Finally, Gray

argues that the contempt charge should have been tried separately.

A. Joinder of the Robbery Charges

Two or more defendants may be charged in the same indictment “if they are

alleged to have participated . . . in the same series of acts or transactions

constituting an offense or offenses.” Super. Ct. Crim. R. 8 (b). The government

argues that the robberies were a joinable “series of acts” because “the offenses

were so closely connected ‘that there [was] necessarily a substantial overlap in

proof of the various crimes and it would [have been] difficult to separate proof of

1
Appellants do not argue that the trial court should have severed the
charges against Smith from the charges against Gray, and Gray does not challenge
the initial joinder of offenses.
 9

one from the other.’” Brief for Appellee at 20 (quoting Settles v. United States,

522 A.2d 348, 352 (D.C. 1987)).2

There undoubtedly was some overlap in proof (centering on the arrest of

appellants on September 28), but the robberies at issue occurred on different dates,

were largely self-contained events, had different victims, and were proven by

different witnesses. There was no common modus operandi. To tell the story of

the unarmed, September 28 robbery, the government would not need to show that

McIntosh was robbed on the 21st or confronted again by his robbers on the 28th. It

would suffice to show that appellants were together less than an hour after the

robbery of Takai, they matched the victim’s descriptions, and one of them

possessed the stolen iPhone.

Similarly, although McIntosh’s second encounter with appellants was an

integral part of the proof that they robbed him on September 21, there was no need,

for those purposes, to reveal that Smith possessed the cellphone recently stolen

2
Elaborating on Rule 8 (b), our decisions have held that multiple offenses
are properly joined if they are “part of a common scheme or plan, involving the
same place, a short period of time, and a similar modus operandi, so that there is
necessarily a substantial overlap in proof of the various crimes and it would be
difficult to separate proof of one from the other.” King v. United States, 74 A.3d
678, 684 (D.C. 2013) (emphasis added).
 10

from Takai. We thus have serious doubts that the robberies in this case were

properly joined. Nevertheless, we need not decide this question because the trial

court should have severed the robbery offenses under Rule 14.

B. Severance of the Robbery Charges

Even when joinder is proper under Rule 8 (b), “[i]f it appears that a

defendant . . . is prejudiced by a joinder of offenses . . . , the court may order . . .

separate trials of counts, grant a severance of defendants, or provide whatever

other relief justice requires.” Super. Ct. Crim. R. 14. See Zafiro v. United States,

506 U.S. 534, 538 (1993). However, “a motion to sever [joined offenses] will be

granted only where the evidence would not be mutually admissible at separate

trials, or the evidence of the multiple charges is likely to be amalgamated in the

jury’s mind into a single inculpatory mass.” Bailey v. United States, 10 A.3d 637,

643 (D.C. 2010) (citation omitted).

The trial court recognized that not all of the evidence would be mutually

admissible in separate trials, but nonetheless denied appellants’ motions to sever.

We conclude that none of the evidence of what occurred on September 21 was

admissible to prove the identities of the September 28 robbers or to place the
 11

September 28 robbery in an understandable context. Although the assault of

McIntosh and the arrest of appellants on the 28th would be admissible in separate

trials, the benefits to judicial economy achieved by a joint trial were far

outweighed by the prejudice to appellants.

1. Identity Evidence

Evidence of one crime is generally inadmissible in the trial of another

because of the substantial risk that the jury will improperly infer the defendant’s

propensity to commit crime. However, “other crimes” evidence may be admissible

to help prove who committed the crime on trial if it promises “‘a real contribution

in the process of proof.’” Easton v. United States, 533 A.2d 904, 906 (D.C. 1987)

(quoting Bittle v. United States, 410 A.2d 1383, 1387 (D.C. 1980)). Such evidence

must show that there is “‘a reasonable probability that the same person committed

both crimes due to the concurrence of unusual and distinctive facts.’” Id. at 907

(quoting Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964)).

However, the similarities between crimes must go beyond the commonplace

and remain meaningful even when measured against the differences. Tornero v.

United States, 94 A.3d 1, 13 (D.C. 2014). In Easton, we held that “[r]obberies of
 12

middle-aged cab drivers during evening hours” were not especially unusual

occurrences, nor was the “use of a sharp instrument in such a robbery.” 533 A.2d

at 909. Other shared features of the attacks, “including the ruse of not having

enough money for the fare,” did not persuade us to hold that there was a

“reasonable probability” that the robberies were committed by the same person.

Id.

In this case, the government touts six similarities between the September

21 and September 28 robberies:

(1) the robbers initially were traveling on the Metro with
a group, and then broke away from the group; (2) a
robber fitting Gray’s description sat behind the victim,
and a robber fitting Smith’s description sat in front of the
victim; (3) the robber fitting Smith’s description gave
instructions to the robber who fit Gray’s description; (4)
the robber fitting Gray’s description stole property from
the victims as the train was between stops; (5) the
primary objective of each of the robberies was to steal
the victim’s iPhone; and (6) the robbers fled by running
from the Metro train at the next stop.

The government asserts that these points of similarity create a reasonable

probability that Gray and Smith committed both robberies, rendering the evidence

mutually admissible to establish identity.
 13

It is doubtful that we should even consider this argument. The government

assured the trial court that it was not planning “to use the similarities of either

robbery to prove the identity of the assailants in the other robbery.” But even if we

consider the merits of its current argument, the government’s concession at trial

was prudent. Just as “robberies of middle-aged cab drivers during evening hours”

are too commonplace to be “unusual and distinctive,” so too, regrettably, are

robberies of iPhones from Metro passengers. That the robbers stole the iPhones

between stops and then (predictably) left the train at the next stop hardly changes

this analysis. Moreover, the record does not substantiate certain similarities

claimed by the government.

There is, for instance, no clear evidence that the robbers on September 21

“fled” or “ran” from the Metro, or that the robbers on September 28 were

“traveling with a group and then broke away from the group.” There is also

nothing in Takai’s testimony that suggests a robber fitting Smith’s description sat

in front of Takai and gave instructions to the robber fitting Gray’s description.

Finally, while the September 21 robbers tried to humiliate McIntosh and then take

“whatever” he had in his pockets, it is not clear from the record that they knew

McIntosh had a cellphone before they robbed him.
 14

Basic differences overwhelm any remaining similarities. The September 21

robbery was armed, accomplished through intimidation, and ended when the

robbers threatened McIntosh “not [to] snitch.” By contrast, the September 28

robbery was unarmed, accomplished through stealthy snatching, and ended in a

short, fruitless chase. On September 21, two robbers3 targeted McIntosh, a young

male traveling with three female friends. On September 28, three robbers4 targeted

Takai, a young female, traveling alone.

The evidence of the September 21 robbery thus would not have been

admissible to prove identity in a separate trial of the September 28 robbery, and it

unfairly bolstered the government’s comparatively weaker effort to prove that

appellants were the ones who robbed Takai.

3
McIntosh said that a third man was present, but he did not describe him
participating in the robbery. In opening statement, the prosecutor said that the
third man “did not play an active role, but he was present that night.”
4
Takai described each man playing a specific role. One snatched her
phone, and the other two blocked Takai from exiting the Metro car in pursuit.
 15

2. Understandable Context

Evidence of another crime may still be admitted if it is “necessary to place

the charged crime in an understandable context.” Johnson v. United States, 683

A.2d 1087, 1098 (D.C. 1996) (en banc). But the details of the September 21

robbery do not help explain any aspect of the September 28 crime. Evidence of the

earlier robbery may help explain why McIntosh summoned the police who stopped

Gray and Smith on September 28 (and found Takai’s phone), but revealing that

McIntosh had been robbed was not necessary to place the September 28 robbery of

Takai in an understandable context. Ample context would have been provided

simply by explaining that appellants had chased, and Smith had assaulted,

McIntosh on September 28. The arrest of Smith for that crime led to the discovery

of Takai’s cellphone.

3. Prejudice

Finally, the probative value of the evidence of the September 21 robbery was

“substantially outweighed by the danger of unfair prejudice.” Jones v. United

States, 27 A.3d 1130, 1147 (D.C. 2011) (citation omitted). Had the September 28

robbery been tried separately, the government would have presented Takai’s
 16

narrative of the offense, the video of appellants together at Fort Totten later that

night, testimony that appellants had been arrested there, and proof that Smith

possessed Takai’s phone. 5 The jury would have learned that Takai could not

identify either appellant. Especially in light of the conflicting evidence describing

Gray 6 and the rather generic description of Smith, 7 this does not constitute

sufficiently powerful evidence of the appellants’ guilt to overcome the prejudice

from a joint trial.

Once admitted, the much stronger evidence of the September 21 robbery

(three eyewitnesses to the robbery, cellular data, and video evidence of the

“sequel” attack on McIntosh) would necessarily alter the jury’s perception of the

September 28 robbery. It would look less like a simple phone snatching and more

5
Although at trial Gray and Smith admitted passing through Gallery Place
on the 28th and Smith admitted possessing Takai’s stolen iPhone, they might have
chosen not to testify if the robbery charges had been severed, especially if the
September 28 robbery had been tried first.
6
Takai described the robber as an African American man with short hair
wearing a light blue T-shirt. By contrast, the officers described Gray as wearing a
hat and a dark blue or dark-colored shirt. Through his own testimony and that of a
corroborating witness, Gray also pointed out that Takai did not notice the tattoos
on his forearms.
7
Takai described one of the African American men as having dreadlocks
and wearing a white T-shirt. The Metro police officers testified that Smith had
dreadlocks and a white T-shirt.
 17

like the work of an experienced gang of robbers. The details of the McIntosh

robbery strongly suggested criminal propensity, rather than being fairly probative

of identity. Instead of making “a real contribution in the process of proof,” Easton,

533 A.2d at 906, the evidence of the separate robbery was “likely to be

amalgamated in the jury’s mind into a single inculpatory mass.” Bailey, 10 A.3d at

643.8

Because the evidence of the September 21 robbery should not have been

admitted as identity or context evidence, and that error was unfairly prejudicial to

appellants, we vacate their convictions for the September 28 robbery, and Smith’s

related conviction for receiving stolen property, and remand those charges for

further proceedings. However, we need not reverse the appellants’ convictions for

the September 21 armed robbery. The government presented four eyewitnesses

(three who watched the appellants rob McIntosh and one who saw appellants

attack and chase him), cellular data suggesting Gray was present at the Silver

8
Although the government largely presented its evidence of the two
robberies separately and distinctly, the prosecutor began his opening statement by
explaining that “[o]ver the course of one week in September of 2012, the
defendants in this case committed a series of robberies.” Furthermore, the trial
court did not carefully instruct the jury to consider the evidence separately as to
each offense. See Cox, 498 A.2d at 237 n.4 (quoting model criminal jury
instructions for joined offenses).
 18

Spring Metro on September 21, and video evidence of the “sequel” attack on

McIntosh on September 28. The error in denying severance was harmless as to

this offense.

C. Failure to Sever the Contempt Charge Against Gray

To prove contempt, the government introduced a stipulation that, “On

September 17th, 2012, Alazajuan Gray was released in a D.C. Superior Court case,”

where he promised to abide by a curfew “between 10 p.m. and 6 a.m.” The jury

heard neither the nature nor the seriousness of the pending charge, and the

government mentioned the prior case only as necessary to prove contempt. In its

final instructions, the court cautioned the jury that Gray’s stipulation to his curfew

hours “was admitted for no other reason” than to prove one of the elements of

contempt—that Gray had to observe a court-ordered curfew.

Moreover, Gray openly testified about the curfew, using it to support his

alibi defense. Gray stated he knew he was at home and not at the scene of the

robbery on September 21 because it would have been foolish to risk getting caught

violating his curfew. Finally, the jury properly learned that Gray had a criminal

record when he was impeached with his prior theft conviction during cross
 19

examination. Because Gray was not unfairly prejudiced, the trial court did not

abuse its discretion by denying his motion to sever the contempt charge.9

III. Aiding and Abetting Armed Robbery

Appellant Smith was convicted of the September 21 armed robbery of

McIntosh under an aiding and abetting theory of criminal liability. Smith now

complains that the trial court failed to instruct the jury that, to be guilty of armed

robbery, an unarmed aider and abettor must have had “actual knowledge” that the

principal offender was armed. Robinson v. United States, 100 A.3d 95, 106 (D.C.

2014). Appellant did not raise this objection at trial.

9
There is no merit to Gray’s alternative argument that the contempt charge
should not have been tried by the jury. The government had discretion to charge
Gray under D.C. Code § 11-944 (2012 Repl.) rather than D.C. Code § 23-1329
(2012 Repl.). See Caldwell v. United States, 595 A.2d 961, 965-66 (D.C. 1991)
(citation omitted) (holding the two contempt statutes “merely provide alternative
means of prosecuting” contempt for a violation of a condition of pretrial release).
Due to the penalty authorized by § 11-944, that charge was presumptively triable
by a jury. Moreover, a defendant cannot waive a jury trial without the approval of
the court and the consent of the prosecuting officer. Super. Ct. Crim. R. 23.
Although the government has not satisfactorily explained why it agreed to a non-
jury trial of the OCDR allegations but refused to consent to a non-jury trial of the
contempt charge, we are satisfied that appellant was not prejudiced by the fact that
the jury adjudicated this offense. See infra text accompanying note 13.
 20

The court instructed that, along with the other elements of armed robbery,

the government had to prove that “the defendant was armed with or had readily

available a firearm.” The court also instructed that an aider and abettor must have

“personally acted with the [same] intent as defined in” the instructions on the

elements of each offense.

If the principal was armed, he necessarily would have had “actual

knowledge” that he had armed himself. The court reinforced this logical

requirement, explaining that to prove Gray was guilty of PFCV (that is, possession

of a firearm during the robbery), the government was required to show that he

possessed the firearm “voluntarily and on purpose and not by mistake or accident.”

Although there are distinctions between intent and knowledge, in this context it is

most unlikely that the jury failed to understand that Smith, as the aider and abettor,

must have also known that the principal, Gray, had armed himself.

It undoubtedly would be clearer to add that the aider and abettor needed to

have “actual knowledge” that his accomplice was armed with a weapon, but the

instructions given sufficiently conveyed this requirement and did not affect

Smith’s “substantial rights” or seriously affect the “fairness, integrity or public
 21

reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 726,

736 (1993). Appellant thus has not demonstrated that plain error occurred.

Moreover, the government presented sufficient evidence to prove beyond a

reasonable doubt that Smith knew Gray was carrying a firearm. In Smith’s

presence, on the platform in the Silver Spring Metro station, Gray lifted his hands

above his head, revealing the butt of a gun in his waistband. Later, in the subway

car, Smith commanded Gray to take what McIntosh had in his pockets, and Gray

displayed the gun to do so.

IV. Restrictions on Expert Testimony

“[E]xpert testimony is admissible to help the jury to do its work and not to

do the jury’s work for it.” Hager v. United States, 856 A.2d 1143, 1147 (D.C.

2004) (internal quotation marks omitted). The trial court permitted Dr. Penrod to

explain general principles of psychology that might affect the accuracy of

eyewitness identifications, leading research on factors impacting eyewitness

reliability, and the results of experimental studies. The court also allowed

Dr. Penrod to comment on hypothetical scenarios that closely mirrored the

circumstances of the identifications in this case. However, it prohibited questions
 22

which essentially asked Dr. Penrod to comment on the accuracy of those

identifications.

For example, during the opening statement for appellant Smith, the court

clarified that Dr. Penrod could not “comment on a witness’[s] ability to identify

[the defendants,]” but he could testify generally about the percentage of times that

people make an incorrect identification when presented with “individuals whom

they’ve been given some pre-notice are supposedly the persons they’re sought to

identify[.]” Similarly, the court explained that Dr. Penrod could not answer the

question “What is your opinion of the accuracy of [Ms. Tabur’s] identification?”

However, he could discuss what research had been done with respect to witnesses

making their first identification a long time after first seeing the perpetrator.

Although the court later sustained several objections, this usually was because the

defense attorney was unable to successfully rephrase his question into an

appropriate hypothetical.

Dr. Penrod’s testimony explained percentages, probabilities, and statistics

that would help the jury evaluate eyewitness testimony, but could not determine

whether the identification made by any particular eyewitness was accurate. He

also explained, among other things, the concept of weapon focus, the effects of
 23

stress or fear and the amount of time during which the witness saw an assailant, the

accuracy of cross-racial identifications, the correlation between the confidence of a

witness and the accuracy of her identification, and the impact of the amount of

time that passes before an identification is made.

Given the strong evidence confirming the eyewitness identifications in the

robbery of McIntosh, any erroneous curtailment of Dr. Penrod’s testimony did not

affect appellants’ substantive rights. Thus, there was no abuse of discretion. See

Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979) (only when “the exercise

of discretion was in error” and “the impact of that error requires reversal” do “we

hold that the trial court ‘abused’ its discretion”).

V. Restrictions on Defense Testimony

Gray next argues that the trial court erred by restricting the admission of

photographic evidence purportedly showing how similar Gray and one of his

brothers looked, and Smith contends the trial court erred by precluding his

testimony that he was not charged with the September 21 armed robbery until

December 2012.
 24

During the direct examination of Gray’s father, Calvestri Clark, the trial

court granted Gray’s counsel time to look for a photograph of Cooper Gray to

show to Clark, but, upon inquiry from the prosecution, the court asked Gray’s

counsel to explain the purpose of introducing the photograph. Gray’s counsel

stated, “That’s the other son.” The government then objected and the trial court

sustained the objection. It is not clear what the basis of the objection was or on

what grounds it was sustained. Regardless, Gray’s counsel did not request an

explanation for the ruling and did not pursue the chance to authenticate the photo

during his client’s testimony the next day.

Gray asserts that the photograph was relevant to his theory of defense – that

McIntosh and the other eyewitnesses mistook Gray for “other individuals who may

have committed these crimes.” For the first time on appeal, he presents a Winfield

argument, claiming that “it may have been Cooper Gray who robbed Gerald

McIntosh on September 21, not Alazajuan Gray.” However, Gray did not plainly

raise a third party perpetrator defense at trial, much less satisfy the requirements of

Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc).

Even so, through the testimony of Calvestri Clark, Gray established that he

looked similar to his brother Cooper. He also had an opportunity to cross examine
 25

the eyewitnesses who identified him and to present favorable expert testimony on

the accuracy of eyewitness identifications. Given the photograph’s minimal

probative value and the fact that it would have been cumulative of Calvestri

Clark’s testimony that his sons looked alike, we are satisfied that the trial court did

not abuse its discretion in excluding the photograph.

Smith contends that he should have been allowed to establish that the

government did not charge him with robbing McIntosh until December in order to

explain why he did not remember precisely where he was on September 21 and

why the defense did not retrieve video evidence from the bus he might have been

riding that night. However, the trial court found that asking Smith about the delay

in charging would be prejudicial to the government because it would “suggest[] the

government is [unfairly] adding additional charges on the case, which is not

relevant for this jury.” If the trial court had permitted this line of questioning, the

government would have been allowed to cross-examine Smith on the Gerstein

proffer, filed when he first appeared in court on September 29. The government

claimed that this proffer put Smith on notice that he was a suspect in the McIntosh

robbery, and that Smith should therefore have been prepared to seek out any videos

helpful to his defense. Presumably, the government would also have been allowed
 26

to explain that the grand jury often (and quite properly) adds charges well after a

suspect’s arrest.

To avoid admitting evidence that would have been “unfairly prejudicial . . .

to both sides[,]” and which would have inevitably muddled the issues before the

jury, the trial court chose instead to preclude the government from mentioning that

there was no video evidence to support Smith’s alibi. Additionally, while Smith

did not remember exactly where he was on September 21, he had the opportunity

to testify that he was either at home or at his aunt’s house and to support this

contention with corroborating evidence.

We therefore hold that the court did not arbitrarily restrict appellants’ right

to present a meaningful defense, but rather deliberately weighed the probative

value of the evidence against “factors such as unfair prejudice, confusion of the

issues, . . . [and] the potential to mislead the jury.” Johnson v. United States, 960

A.2d 281, 293, 295 (D.C. 2008). There was no abuse of discretion.
 27

VI. Admission of Government Testimony

Gray argues the court erred by allowing Officer Jackson to recount what

McIntosh told her on the night of September 28, claiming her testimony was

inadmissible hearsay. Portions of what McIntosh told Officer Jackson before and

during the show-up procedures were non-hearsay identifications of appellants, 10

and some of the testimony was admissible as “context” to make McIntosh’s

identifications understandable to the jury. (Thomas) Johnson v. United States, 820

A.2d 551, 559 n.4 (D.C. 2003). Other portions of the testimony contained more

detail than was necessary, but the excess detail was harmless because it merely

echoed McIntosh’s previous testimony, which had already been corroborated by

the eyewitness testimony of St. Julien and Tabur.

VII. Sufficiency of the Evidence

Gray contends there was insufficient evidence to convict him of the

September 28 robbery and of carrying a dangerous weapon (“CDW”) on that day.

Smith argues there was insufficient evidence to convict him of aiding and abetting

10
McIntosh identified appellants, testified at trial, was subject to cross-
examination, and made his statements to Officer Jackson soon after perceiving the
appellants. See D.C. Code § 14-102 (b)(3) (2012 Repl.).
 28

the September 21 armed robbery (an issue we have addressed above) and of

obstruction of justice.

“We review a challenge for sufficiency of the evidence ‘in the light most

favorable to the government, giving full play to the right of the jury to determine

credibility, weigh the evidence, and draw justifiable inferences of fact, and making

no distinction between direct and circumstantial evidence.’” Terry v. United

States, 114 A.3d 608, 616 (D.C. 2015) (quoting Gathy v. United States, 754 A.2d

912, 917 (D.C. 2000)). “Thus, ‘it is only where there is no evidence upon which a

reasonable mind might fairly conclude guilt beyond a reasonable doubt that the

trial court may properly take the case from the jury.’” Id. (quoting Gathy, 754

A.2d at 917) (internal alteration omitted).

A. September 28 Robbery (Gray)

While there was not “overwhelming” evidence of Gray’s guilt, a reasonable

jury could conclude that he robbed Takai on September 28. 11 Gray matched

11
Although we are overturning Gray’s conviction for the September 28
robbery on other grounds, we address his sufficiency argument because “[t]he
Double Jeopardy Clause forbids a second trial for the purpose of affording the
(continued…)
 29

Takai’s description,12 admitted to being at the scene of the robbery (Gallery Place)

twice that night, and later traveled with Smith, a man who matched Takai’s

description and possessed Takai’s iPhone. Additionally, the video of the two men

at Fort Totten portrays more than simultaneous presence. Rather, it (and the

related testimony of various witnesses) shows that they were collaborating in

criminal activity (chasing McIntosh to prevent him from “snitching”). Moreover,

the jury knew that Gray and Smith had been accomplices in a similar robbery a

(…continued)
prosecution another opportunity to supply evidence which it failed to muster in the
first proceeding.” Burks v. United States, 437 U.S. 1, 11 (1978).
12
Viewed in the light most favorable to the government, the evidence
shows that Gray matched Takai’s description of an African American male with
short hair and a blue shirt. Although Takai said the robber’s shirt was “light blue,”
one of the responding officers said Gray’s shirt was “dark blue,” and another
officer said the shirt was “dark-colored,” the jury knew the conditions under which
each witness would have seen Gray (such as where each witness saw him, for how
long, and under what levels of stress). The jury also saw the very shirt Gray was
wearing that night because it was entered into evidence, and the jury watched a
black and white video of Gray wearing the T-shirt. Based on this evidence, the
jurors resolved any discrepancies about the color of Gray’s T-shirt in favor of the
government, and the evidence permitted them to do so.

Finally, although Takai did not notice Gray’s tattoos or hat, neither
McIntosh nor the officers who interacted with Gray on September 28 noticed
Gray’s tattoos, and Bellamy did not remember Gray wearing a hat. It would
therefore be permissible for a jury to give little weight to the fact that Takai did not
remember the tattoos or hat when other witnesses who spent more time looking at
and interacting with appellant did not notice them either.
 30

week earlier.13 Considered as a whole, the evidence was sufficient to identify Gray

as Smith’s accomplice on September 28.14

B. CDW (Gray)

When the police arrested Gray on September 28, they found a switchblade

knife in his possession; Gray admitted at trial that he carried that knife in his hand

when he approached McIntosh.15 He nevertheless contends that the government

failed to present sufficient evidence from which a reasonable jury could find that

he carried a “deadly or dangerous weapon.” See D.C. Code § 22-4504 (a) (2012

Repl.).

13
For present purposes, “[w]e evaluate sufficiency based on the evidence
that was before the trial court, even if it was admitted erroneously.” Best v. United
States, 66 A.3d 1013, 1019-20 (D.C. 2013) (citing Lockhart v. Nelson, 488 U.S.
33, 40-42 (1988)).
14
Our dissenting colleague suggests that the judges in the majority are
drawing an improper propensity inference. Not so. We are, rather, taking into
account all the direct and circumstantial evidence that tends to prove the identity of
Smith’s accomplice on September 28.
15
Although Gray committed the CDW offense on September 28, the
offense is based on Gray’s confrontation with McIntosh and is therefore not
affected by our severance analysis.
 31

Some objects, such as a hammer or a screwdriver, have benign uses, and to

establish the offense of CDW, the government must prove “that the defendant

intended to use the [potentially benign] object in question as a dangerous weapon.”

Wright v. United States, 926 A.2d 1151, 1155 (D.C. 2007) (emphasis in original).

However, because a switchblade is “nothing but a dangerous weapon,” we need

not rely upon the evidence that Gray carried the knife in his hand as he approached

McIntosh to prove his intent.

Addressing a similar situation in Wright, we held that “since the plain

language of D.C. Code § 22-4514 flatly prohibits the possession of sawed-off

shotguns, the additional act of carrying such a weapon, if it can be concealed, as a

matter of law evidences appellant’s unlawful intent as there are no lawful uses for

such an item.” Id. (footnote omitted). Switchblades likewise are listed in § 22-

4514 (a), which prohibits the possession of enumerated weapons without regard to

intent. See Reed v. United States, 584 A.2d 585, 588 (D.C. 1990) (“[C]ertain

objects are weapons by design, for instance . . . a switchblade . . . .”). As all

switchblade knives are inherently dangerous weapons and Gray admitted he was

carrying one, the evidence was sufficient to support his conviction for carrying a

dangerous weapon.
 32

C. Obstruction of Justice (Smith)

To prove obstruction of justice, as charged here, the government had to

establish that Smith “harass[ed] Gerald McIntosh, with intent to hinder, delay,

prevent, and dissuade Gerald McIntosh from reporting to law enforcement the

commission of and any information concerning, a criminal offense.” See D.C.

Code § 22-722 (a)(3). Based on his threat to McIntosh on September 21 and his

assault of McIntosh on September 28, Smith was convicted of obstructing justice.

Smith first argues that he did not “harass” McIntosh within the meaning of

the statute because there is insufficient evidence that his verbal threat on

September 21 not to “snitch” “annoyed, alarmed, or caused substantial emotional

distress in the person.” Wynn v. United States, 80 A.3d 211, 218 (D.C. 2013)

(quoting Black’s Law Dictionary (9th ed. 2009)). This argument is without merit.

At trial, McIntosh specifically said he initially heeded the threat not to “snitch”

because he was “scared” and “aggravated.”

Smith next argues that the government failed to prove he had the necessary

mens rea to “hinder” McIntosh from reporting the commission of a crime when he

punched him in the station kiosk. Smith states that punching McIntosh in the kiosk
 33

would only increase the likelihood that the police would be called and

subsequently learn about the September 21 robbery. However, the statute does not

require a defendant to successfully prevent the victim from reporting a crime to

authorities. Rather, it requires that the defendant “harass[] another person with the

intent to hinder . . . .” D.C. Code § 22-722 (a)(3) (emphasis added). Smith had

the requisite intent and openly admitted at trial that he punched McIntosh because

he “wanted to make sure [McIntosh] wasn’t lying on [him]” and because he was

concerned that McIntosh was “going to go to transit” to say that Smith robbed him.

A reasonable jury could therefore conclude that Smith punched McIntosh to

“hinder, delay, prevent, or dissuade” McIntosh from reporting a crime to the

authorities.

Smith makes three additional arguments attacking his obstruction of justice

conviction. He complains, for the first time on appeal, that the trial court failed to

instruct the jury on the legal definition of “harass.” However, “[a] court need not

give an instruction defining a term unless it has a technical meaning so different

from its ordinary meaning that the jury, without further explanation, would

misunderstand its import in relation to the factual circumstances.” Wilson v.

United States, 785 A.2d 321, 327 n.8 (D.C. 2001) (citation omitted). The standard

definition of “harass” comports with its ordinary meaning and fits these
 34

circumstances perfectly. Red Book Instruction No. 6.101C defines “harass,” in

part, as “to threaten, intimidate, or use physical force against a person . . . .”

Standardized Criminal Jury Instructions for the District of Columbia (the “Red

Book”), No. 6.101C (5th ed. rev. 2013). The jury convicted Smith of

corresponding charges of threats and assault, offenses which clearly satisfy the

definition of “harass.”

Smith therefore was not prejudiced by the omission of this instruction.

There is no persuasive evidence that the jury misunderstood the term harass,

“could not properly apply the term to the facts[,]” or found guilt based on

something that did not rise to the level of harassment. See Atkinson v. United

States, 121 A.3d 780, 786 (D.C. 2015) (failure to define “course of conduct” not

plain error).

Smith next argues the trial court constructively amended the indictment to

charge two counts of obstruction of justice instead of one. The indictment alleged

one count of obstruction of justice that encompassed two separate incidents—the

threat to McIntosh on September 21 and the assault of McIntosh on September 28.

The jury found in a special verdict that both the threat and the assault had been

proven, but the judge expressly noted at sentencing that “Mr. Smith was found
 35

guilty of . . . one charge of obstructing justice[.]” When instructing the jury, the

judge had emphasized this point, saying, “you will have to consider that one charge

as it relates to two separate dates, September 21st, 2012, and September 28th, 2012.

But there’s only one charge of obstruction of justice[.]” Contrary to appellant’s

argument, the sentence of seventy-two months (six years) does not represent an

improper division of a single count of obstruction of justice into two separate

counts for sentencing purposes. The six-year term is well below the maximum

sentence of “not more than 30 years” for one obstruction offense, and it does not

represent, as appellant suggests, the “mandatory minimum required for a

conviction of two counts of obstruction.” D.C. Code § 22-722 (b).

Finally, the trial court did not commit reversible error by declining to

include Smith’s theory of the defense instruction (that Smith “did not knowingly

attempt to hinder Gerald McIntosh from reporting a legitimate crime to the

police”). A defendant is “not entitled to an instruction that does no more than

rehearse or summarize the defense evidence, because this would give special

emphasis to the defendant’s testimony.” Payne v. United States, 932 A.2d 1095,

1100 (D.C. 2007) (quoting Durham v. United States, 743 A.2d 196, 200 n.5 (D.C.

1999)). The defense theory was clearly presented to the jury during Smith’s

testimony and through his counsel’s closing argument.
 36

VIII. Merger of Convictions

Gray contends that two of his three convictions for violating D.C.

Code § 23-1328 (a)(1) (committing an offense during release (“OCDR”)) should

merge under the Double Jeopardy Clause because those offenses were both

committed on September 28.16 We disagree with this argument, but direct that the

judgment be reformed to reflect that § 23-1328 does not create a separate offense,

but requires, rather, that an enhanced sentence be imposed for any offense

committed while on release. Eady v. United States, 44 A.3d 257, 261 (D.C. 2012);

Tansimore v. United States, 355 A.2d 799, 803 (D.C. 1976).

We have previously held that “the imposition of a § 23-1328 enhancement

for each of [a defendant’s] separate, non-merged offenses does not violate the

Double Jeopardy Clause.” Sanders v. United States, 809 A.2d 584, 606 (D.C.

2002). Robbery and CDW are separate offenses which do not merge because each

requires proof of an element the other does not. Compare D.C. Code § 22-2801

(robbery requires proof of taking), with § 22-4504 (a) (CDW requires carrying a

dangerous weapon); see also Byrd v. United States, 598 A.2d 386, 389 (D.C. 1991)

16
All three OCDR charges were tried by the court, not the jury.
 37

(en banc) (test for merger). Moreover, these offenses were committed at different

times and in different locations. As the underlying offenses do not merge, the

Double Jeopardy Clause does not prohibit enhancement of the sentences for both.

However, the application § 23-1328 (a)(1) should not have resulted in

convictions. We therefore remand for the trial court to vacate those convictions.

and, in the reformed judgment and commitment order, reflect the required OCDR

enhancements as part of the sentences for armed robbery and CDW. See

Washington v. United States, 122 A.3d 927, 929 n.2 (D.C. 2015) (“On remand, to

implement the enhancement, the trial court must add a separate consecutive

sentence to each underlying conviction.”). Because we have overturned Gray’s

conviction for the September 28 robbery of Takai, there is no basis for applying an

OCDR enhancement.17

IX. Smith’s Sentencing Arguments

17
We have also overturned appellant Smith’s conviction for receiving
stolen property (“RSP”). Thus, while appellant Smith argues, and the government
agrees, that Smith cannot remain convicted of both RSP and committing robbery
on September 28, that argument is moot. We reject Smith’s argument that his
conviction for threats to do bodily harm should merge with his conviction for
obstruction of justice. Ball v. United States, 429 A.2d 1354, 1359-60 (D.C. 1981).
 38

In the first of four sentencing arguments, Smith contends that the trial court

erred by ordering him to register as a gun offender, but the trial court’s order was

proper. D.C. Code § 7-2508.01 defines a gun offender as “a person convicted at

any time of a gun offense in the District,” and a gun offense includes “use . . . of a

firearm under Chapter 45 of Title 22.” D.C. Code § 7-2508.01 (2)-(3). A

conviction of armed robbery is a compound offense that violates D.C. Code § 22-

2801 and § 22-4502. Although he was convicted as an aider and abettor, Smith

committed a gun offense under Chapter 45 of Title 22. See D.C. Code § 22-1805

(2012 Repl.) (“In prosecutions for any criminal offense all persons . . . aiding or

abetting the principal offender shall be charged as principals and not as

accessories[.]”).

When imposing Smith’s sentence, the court noted that this was not his first

offense. Appellant now asserts that “[w]ithout § 23-111 compliance, the trial court

was statutorily barred from considering any prior offenses at sentencing.” His

argument betrays a fundamental misunderstanding of the statute.

Section 23-111 declares that “[n]o person who stands convicted of an

offense under the laws of the District of Columbia shall be sentenced to increased

punishment by reason of one or more previous convictions” unless specified
 39

procedures are followed. D.C. Code § 23-111 (a)(1) (emphasis added). This

statute only applies when enhanced penalties are imposed by virtue of prior

convictions. See Brown v. United States, 474 A.2d 161, 163 (D.C. 1984); Morris

v. United States, 436 A.2d 377, 378 (D.C. 1981). It does not restrict a judge’s

consideration of a defendant’s prior criminal record when sentencing him within

the normal range. See generally Powers v. United States, 588 A.2d 1166, 1169

(D.C. 1991) (“A trial judge, when imposing sentence, may conduct an inquiry

broad in scope, largely unlimited as to the kind of information received and the

source from which it is received.”) (citation omitted).

Smith did not receive increased punishment by reason of prior convictions.

The sentences for armed and unarmed robbery fell within the normal sentencing

ranges for those offenses.18 Additionally, the trial judge need not follow § 23-111

procedures before applying OCDR enhancements, which are not imposed because

of prior convictions but for committing crimes while on release. Thus, section 23-

111 did not apply to Smith’s sentence.

18
Any person convicted of violating D.C. Code § 22-2801 (robbery) “shall
suffer imprisonment for not less than 2 years nor more than 15 years.” The court
sentenced Smith to four years for the robbery committed on September 28.
Section 22-4502 (committing a crime while armed) subjects first offenders to a
term of not less than five years and up to thirty years for committing a robbery
while armed with a firearm. The court sentenced Smith to seven years for the
armed robbery committed on September 21.
 40

Smith next argues that the trial court did not realize it had the discretion to

impose a D.C. Youth Rehabilitation Act (“DCYRA”) sentence under D.C. Code

§ 24-903 (2012 Repl.). His argument fails to acknowledge the record. The court

expressly stated that it had “reviewed the youth study” before choosing not to

sentence him under the DCYRA. See Veney v. United States, 681 A.2d 429, 433

(D.C. 1996) (holding “an adult sentence may be imposed if the record reflects the

judge was aware of the availability under the Act of youth offender treatment, that

he considered the rehabilitative option, and that he rejected it”). The trial court’s

expression of regret in no way signals a belief that it lacked discretion to sentence

under the DCYRA.

Finally, Smith contends the trial court erred by not “assuring itself” that the

information upon which Smith’s sentences were based was reliable and accurate.

We are satisfied the court did not abuse its discretion in sentencing the appellant,

because even if there were mistakes in the government’s Memorandum in Aid of

Sentencing, the burden rests on the defendant to show the information was

materially false or misleading and that the sentence was based on that information.

Smith has not successfully shown either.
 41

X. Conclusion

We remand with instructions to vacate appellants’ convictions for the

unarmed robbery of Takai and Smith’s conviction for receipt of stolen property

and, should the government choose to retry appellants, for further proceedings

consistent with this opinion. Gray’s OCDR convictions should also be vacated.

As explained above, Gray’s sentences for armed robbery and CDW must be

enhanced. In all other respects, the judgments of the trial court are affirmed.

It is so ordered.

BECKWITH, Associate Judge, concurring in part and dissenting in part: No

witness ever identified Alazajuan Gray as one of the men who robbed Katherine

Takai, and innumerable young black men on the Metro that day would have shared

the traits that Mr. Gray himself shared only roughly with Ms. Takai’s description

of the robbers. I am unwilling to conclude that the additional evidence that Mr.

Gray was hanging out with—and causing trouble with—one of the other robbers

an hour later and miles away from the Takai robbery and that Mr. Gray a week

earlier committed a very different kind of robbery with this other robber renders

the evidence sufficient to support his conviction. So while I join the court’s
 42

opinion in every other respect, I dissent from its holding that the evidence was

sufficient to convict Mr. Gray of robbing Ms. Takai on September 28, 2012.

Review for sufficiency of the evidence “is deferential, but it is not a rubber

stamp.” Swinton v. United States, 902 A.2d 772, 776 n.6 (D.C. 2006). As this

court has explained, “[p]roof beyond a reasonable doubt is not merely a guideline

for the trier of fact; it also furnishes a standard for judicial review . . . .” Rivas v.

United States, 783 A.2d 125, 134 (D.C. 2001) (en banc). We therefore have an

obligation to decide whether the evidence is “strong enough that a jury behaving

rationally really could find it persuasive beyond a reasonable doubt.” Id.

While a reasonable jury could have found beyond a reasonable doubt that
1
Mr. Gray’s codefendant, Clifton Smith, robbed Ms. Takai, the evidence

connecting Mr. Gray to the crime was significantly weaker. It consisted only of

(1) Mr. Gray’s partial match to Ms. Takai’s vague description of one of the three

people who robbed her, (2) Mr. Gray’s admission that he passed through the busy

Gallery Place transfer station on the night of the robbery, and (3) Mr. Gray’s

1
Not only did Mr. Smith match Ms. Takai’s description of one of the three
people who stole her cellphone, but Mr. Smith also admitted that he possessed Ms.
Takai’s phone on the night of the robbery, and the phone was later recovered at the
location where Mr. Smith was arrested.
 43

association with Mr. Smith and participation with Mr. Smith in other criminal

activity on the night of the robbery and a week earlier.

Ms. Takai described the people who robbed her at the Gallery Place station

as three young black men. 2 One of the men—who, based on other evidence

offered at trial, was likely Mr. Smith—had dreadlocks and a dark complexion and

“was dressed informally” in a white T-shirt. The other two men had “shorter hair”

and were wearing “[d]arker clothes.” Ms. Takai later clarified that one of these

two men was wearing a light blue shirt, “not [a] dark blue” shirt. The man in the

light blue shirt “was a little bit taller than [she was], and he was about average

height.” Ms. Takai testified that none of the three men was wearing a hat. When

Mr. Gray was arrested about an hour later at a bus stop near the Fort Totten station,

he was “wearing a . . . dark blue hat, yellow rim around the hat, and a dark blue

shirt.”3 Ms. Takai was later shown photographs of Mr. Gray and Mr. Smith but

2
Ms. Takai testified that the men were “about [her] age.” Ms. Takai further
testified that she was twenty-five years old at the time of the trial, which was held
less than a year after the robbery. According to court documents, Mr. Gray was
nineteen years old at the time of the robbery, although no mention of Mr. Gray’s
age was made at trial.
3
The surveillance footage from the Fort Totten station shows Mr. Smith
with at least three other people, including two companions with dark-colored
shirts.
 44

was unable to identify them as the people who robbed her and did not identify

them at trial.

Ms. Takai’s description alone—of a young black man of average height,

with short hair and a light blue shirt—could have applied to any number of people

and was plainly insufficient to link Mr. Gray to the robbery. And Mr. Gray only

imperfectly matched this vague description. At the time of his arrest, Mr. Gray

was wearing a dark blue shirt, not the light blue shirt described by Ms. Takai,4 and

he was wearing a hat, unlike the robbers Ms. Takai described. 5 Ms. Takai’s

description would not have provided probable cause for an arrest or reasonable

suspicion for an investigatory stop. See In re T.L.L., 729 A.2d 334, 340 (D.C.

1999) (holding that the description of robbers as “two . . . black teenagers wearing

dark clothing,” one with “a ‘dark’ complexion, the other a ‘medium’

complexion,’” was “altogether lacking in particularity” and thus insufficient to

4
Mr. Gray was perhaps a closer match to the other young black man with
short hair whom Ms. Takai simply described as wearing “darker clothes.” But this
description is even more general than Ms. Takai’s description of the man in the
light blue shirt, and the match thus has little probative force.
5
Mr. Gray also offered evidence at trial that he had tattoos on his arm and
neck. Ms. Takai did not describe any of the three robbers as having tattoos. Given
that none of the government’s other witnesses remembered Mr. Gray having
tattoos, a reasonable jury could have decided not to credit Mr. Gray’s tattoo
evidence or to give it little weight.
 45

justify an investigatory stop); see also McFerguson v. United States, 770 A.2d 66,

74 n.13 (D.C. 2001) (collecting Fourth Amendment cases involving vague suspect

descriptions). It is hard to see, then, how a reasonable jury could have relied on

Ms. Takai’s description to find beyond a reasonable doubt that Mr. Gray

participated in her robbery. See Hoffa v. United States, 385 U.S. 293, 310 (1966)

(“[T]he minimum evidence to establish probable cause . . . may fall far short of the

amount necessary to support a criminal conviction.”); see also Paret-Ruiz v. United

States, 827 F.3d 167, 179 (1st Cir. 2016) (explaining that the sufficiency of the

evidence standard requires “a higher degree of certainty than the probable cause

standard”); State v. Suddith, 842 A.2d 716, 726 (Md. 2004); Commonwealth v.

Collado, 690 N.E.2d 424, 428 n.8 (Mass. 1998); State v. Williams, 534 A.2d 230,

240 (Conn. 1987); State v. Hussong, 739 N.W.2d 922, 928 (Minn. Ct. App. 2007).

Ms. Takai’s failure to identify Mr. Gray further undermines whatever minimal

probative force is provided by the partial match between Ms. Takai’s vague

description and Mr. Gray’s appearance.

The government’s other evidence against Mr. Gray adds little to the picture.

First, there is evidence that Mr. Gray passed through the Gallery Place station on

the night of Ms. Takai’s robbery. But given that Gallery Place is a busy transfer

station connected to the Fort Totten station by the yellow, green, and red lines, this
 46

evidence does not meaningfully bolster what can already be inferred from the fact

that Mr. Gray was later seen at the Fort Totten station.

Second, there is surveillance footage from the Fort Totten Metro station and

testimony showing that Mr. Gray and Mr. Smith were together at the Fort Totten

station about an hour after Ms. Takai was robbed. The footage and testimony

show that Mr. Gray and Mr. Smith encountered Gerald McIntosh at the Fort Totten

station, chased him when he tried to flee, and attacked him for “snitching.” In

addition to establishing that Mr. Gray and Mr. Smith were together for at least part

of the evening on September 28,6 the surveillance footage and testimony support

an inference that they were friends who were willing to engage in risky and

possibly illegal behavior with each other. In these respects, the surveillance

footage and related testimony give rise to an identity inference that Mr. Gray was

the individual who worked with Mr. Smith and the third unknown man to rob Ms.

Takai. See Johnson v. United States, 683 A.2d 1087, 1093 n.4 (D.C. 1996) (en

banc). But this inference is worth very little, given that an hour passed between the

two incidents and the later incident occurred at a different Metro station, miles

away. September 28 was a Friday night, and surveillance footage from the Fort

6
Mr. Gray and Mr. Smith also both admitted at trial that they were together
on September 28.
 47

Totten station shows Mr. Smith socializing with at least three individuals—only

one of whom was possibly Mr. Gray.

The evidence from the Fort Totten station has little further probative value.

It is not probative of “motive, intent, common plan, . . . or absence of mistake or

accident,” the other four categories (besides “identity”) under which bad acts

evidence is typically admissible. Jones v. United States, 127 A.3d 1173, 1184

(D.C. 2015); see also Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964).

Indeed, there is no apparent connection between the encounter with Mr. McIntosh

and the robbery of Ms. Takai, and the two episodes are not similar in any way,

except that they both allegedly involved Mr. Smith and Mr. Gray and occurred on

the same night.

Third, as the court explains in the majority opinion, there is significant

evidence that Mr. Gray and Mr. Smith robbed Mr. McIntosh on September 21.

Ante at 2–3. Although the evidence of the September 21 robbery of Mr. McIntosh

would be excluded in a retrial of the September 28 robbery of Ms. Takai, the court

is required to consider it in its sufficiency analysis. See Lockhart v. Nelson, 488

U.S. 33, 40–41 (1988). But as the court explains, this evidence is of negligible

probative value on the issue of identity, given the dissimilarity between the two
 48

crimes. See ante at 11–15. Most significantly, the McIntosh robbery “was armed,

accomplished through intimidation,” while the Takai robbery “was unarmed,

accomplished through stealthy snatching.” Ante at 14. Indeed, as the court notes,

the prosecutor even told the trial court that it did not intend to use the evidence of

the September 21 robbery to prove the identity of Ms. Takai’s robbers. Ante at 13.

At most, the evidence of the September 21 robbery, like the evidence of the

September 28 McIntosh assault, gives rise to an inference that Mr. Gray and Mr.

Smith were friends who were willing to participate in risky and illegal activity

together.

The weak inferences summarized above that can be drawn from the evidence

of the September 21 robbery and the September 28 assault can scarcely

compensate for the mismatch between Mr. Gray’s appearance and Ms. Takai’s

vague description of the robber in the light blue shirt—let alone Ms. Takai’s

inability to identify Mr. Gray as one of the robbers. To the extent that the majority

is able to squeeze any further probative value out of the evidence of the September

21 robbery and the September 28 assault, it must be drawing a propensity

inference, notwithstanding its denial that it is doing so. Ante at 30 n.14; see

Holmes v. United States, 580 A.2d 1259, 1268 (D.C. 1990) (“Evidence designed to

show that [defendants] had a criminally-oriented relationship with one another is
 49

not so very different from proof that [they] were predisposed to commit crimes

together . . . .”).

Our case law does not allow the government to prove guilt through evidence

of a defendant’s criminal propensity, see Johnson, 683 A.2d at 1101; Drew, 331

F.2d at 88, 7 and a reasonable jury could not rely on a propensity inference in

reaching a verdict. Moreover, although Lockhart requires appellate courts to

consider even improperly admitted evidence when conducting a sufficiency

analysis, 488 U.S. at 40–41, nothing in Lockhart compels appellate courts to draw

improper inferences from evidence admitted, properly or improperly, at trial.

7
In addition to violating our rules of evidence, the use of bad acts evidence
to establish guilt based on the defendant’s criminal propensity “is contrary to
firmly established principles of Anglo-American jurisprudence.” McKinney v.
Rees, 993 F.2d 1378, 1380–81 (9th Cir. 1993); see also Michelson v. United States,
335 U.S. 469, 475 (1948) (“Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the prosecution to any kind of
evidence of a defendant’s evil character to establish a probability of his guilt.”).
Propensity and character evidence prejudices a defendant by “deny[ing] him a fair
opportunity to defend against [the] particular charge.” Michelson, 335 U.S. at 476;
accord, Old Chief v. United States, 519 U.S. 172, 181–82 (1997). And while the
Supreme Court has not decided the question, it is at least arguable that the Due
Process Clause is implicated when the factfinder relies on improper inferences of
“criminal disposition” in finding a defendant guilty. Spencer v. Texas, 385 U.S.
554, 572–74 (1967); see also Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991); Sims
v. Stinson, 101 F. Supp. 2d 187, 195–96 (S.D.N.Y. 2000) (holding that the
admission of improper propensity evidence violates due process if there is a
reasonable probability that the evidence affected the verdict), aff’d, 8 F. App’x 14
(2d Cir. 2001).
 50

Accordingly, Lockhart cannot justify the majority’s drawing an improper

propensity inference from the surveillance footage and testimony.

It is particularly inappropriate for the court to rely on a propensity inference

where, as here, such an inference would be at odds with the trial court’s

instructions to the jury. In the preliminary instructions, the trial court gave an

instruction similar to Criminal Jury Instructions for the District of Columbia, No.

2.404 (5th ed. rev. 2012):

Each defendant is entitled to have the issue of his guilt as
to each of the crimes for which he is on trial determined
from his own conduct and from the evidence that applies
to him, as if he were being tried alone. You should
therefore consider separately each offense and the
evidence which applies to it, and you should return
separate verdicts as to each charge, as to each defendant,
unless I instruct you to do otherwise. The fact that you
may find one defendant guilty or not guilty on one charge
should not influence your verdict with respect to any
other charge for that defendant. Nor should it influence
your verdict with respect to the other defendant as to that
same charge or any other charge.

A similar instruction, patterned on Criminal Jury Instructions for the District of

Columbia, No. 2.403 (5th ed. rev. 2012), was included in the final instructions.

Only by disregarding these instructions could the jury have drawn a propensity
 51

inference from Mr. Gray and Mr. Smith’s harassment and assault of Mr. McIntosh.

A reasonable jury could not have disregarded these instructions, see Jordan v.

United States, 18 A.3d 703, 709 (D.C. 2011) (“[J]urors are presumed to follow the

trial court’s instructions . . . .”), and neither can we in deciding whether sufficient

evidence supports Mr. Gray’s conviction, cf. Anderson v. Liberty Lobby, 477 U.S.

242, 255 (1986) (explaining, in the civil context, that “it makes no sense” to talk

about what conclusions a reasonable jury could reach “without some benchmark as

to what standards govern its deliberations and within what boundaries its ultimate

decision must fall”). In sum, the court’s apparent reliance on a propensity

inference in rejecting Mr. Gray’s sufficiency claim is unjustified by Lockhart and

contrary to law.

This court’s decision in Smith v. United States, 561 A.2d 468 (D.C. 1989),

provides strong authority on a very similar fact pattern that the evidence here is

insufficient. In Smith, two defendants, Darryl Harris and Michael Smith, were

alleged to have committed three robberies over a period of a few hours. Id. at 469–

70. The victim of one of the robberies, Ms. Adami, described the robbers as “two

black men,” one with a “short brown leather coat” and the other with a “light-

colored cream coat.” Id. at 469. Ms. Adami testified that the men pushed her as

she was leaving a building, and she then noticed that her wallet had been taken
 52

from her shoulder bag. Id. She confronted the two men, but they denied taking her

wallet and walked away “briskly.” Id. Still photographs from a surveillance

camera in the building’s lobby corroborated Ms. Adami’s account, showing a man

“wearing a tan trenchcoat draped over his shoulders and a dark-colored hat” and

another man “wearing a waist-length dark-colored jacket.” Id. The stills were

“extremely blurry,” however, “rendering identification of the attire or facial

characteristics of the individuals . . . impossible.” Id. at 470. Mr. Harris and Mr.

Smith were arrested several hours later, after committing the other two robberies.

Id. at 470. At the time of arrest, Mr. Harris was wearing, among other things, a

“tan trenchcoat draped over his shoulder[ and] a dark-colored beret,” and Mr.

Smith was wearing “a brown waist-length leather jacket.” Id. Ms. Adami was not

able to identify Mr. Harris or Mr. Smith as the robbers, but Mr. Harris confessed to

the robbery. Id. at 469, 471. In a joint trial, the two men were convicted of

committing two of the three robberies, including the one involving Ms. Adami.8

Id. at 469.

8
Mr. Harris was only charged with two of the robberies. Mr. Smith was
charged with all three but was acquitted on one of the counts. Smith, 561 A.2d at
469.
 53

This court reversed Mr. Smith’s conviction for the Adami robbery on

sufficiency grounds. Id. at 472. The court relied on the fact that Ms. Adami could

not identify either man and that the surveillance stills were too fuzzy to permit

identification. Id. Given that in the present case Ms. Takai was similarly unable to

identify the people who robbed her, and given that, as was the case with Michael

Smith in Smith, there is little other evidence connecting Mr. Gray to the robbery,

the evidence supporting Mr. Gray’s robbery conviction is likewise insufficient.

This conclusion is strengthened by the fact that Ms. Adami’s description of her

assailants in Smith, as bolstered by the admittedly fuzzy surveillance stills, was less

generic than Ms. Takai’s description of her robbers, and yet was still held to be

insufficient.

The court in Smith apparently also deemed it inappropriate to consider the

fact that Mr. Smith committed at least one other robbery with Mr. Harris—or

considered this fact to be of little probative significance: it made no mention of the

other robbery in its sufficiency analysis of the Adami robbery. See id. at 472.9

9
Judge Steadman highlighted this evidence in his partial dissent in the case.
See Smith, 561 A.2d at 475 (Steadman, J., concurring in part and dissenting in part)
(“[T]he jury could properly have found Smith to have been a proven confederate of
Harris in [one of the other three robberies]. Harris by his own admission
participated in both the [other robbery] and [the] Adami robber[y] . . . .”). The
court nevertheless declined to rely on it.
 54

The court in the present case should similarly refrain from drawing improper

propensity inferences about Mr. Gray from the evidence about Mr. Smith and Mr.

Gray’s other bad acts.

For these reasons, and under our precedent in Smith, the government’s

evidence in support of Mr. Gray’s conviction for the robbery of Ms. Takai is

insufficient. 10 A reasonable jury—particularly one that is not relying on an

improper propensity inference—could not conclude beyond a reasonable doubt that

Mr. Gray is guilty of the robbery. Accordingly, I would hold that the Double

Jeopardy Clause bars a retrial of Mr. Gray’s September 28 robbery charge.

10
See also United States v. Bonner, 648 F.3d 209 (4th Cir. 2011) (holding
that the evidence that the defendant committed an armed robbery was insufficient
where the defendant’s girlfriend’s vehicle was seen leaving the scene of the crime;
a search of the vehicle revealed, among other things, ammunition and the
defendant’s identification card, wallet, and cell phone; a Yankees hat containing
the defendant’s and others’ DNA was found at the scene; and the victims described
one of the robbers as an “African American male” wearing a Yankees hat, but
could not identify the defendant, who was an African American); Christopher v.
State, 82 So. 3d 1238, 1239 (La. 2012) (same where “the victim . . . could not
positively identify his assailant and gave a description at odds with [the
defendant’s] appearance and with the descriptions of their assailant provided by the
. . . victims” of other armed robberies of which the defendant was convicted, and
where this robbery was separated in time from the other robberies); State v.
Walker, 731 A.2d 545, 550–51 (N.J. Super. Ct. App. Div. 1999) (same where the
victim could not identify the defendant in court and said only that a photograph of
the defendant “looked like” the robber and where the victim could not remember
the details of the car that the robber drove).