Fitzgerald v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CF-432

LORI FITZGERALD, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(CF3-6343-17)

(Hon. Danya A. Dayson, Trial Judge)

(Argued January 29, 2020 Decided June 4, 2020)

Gregory M. Lipper for appellant.

Eric Hansford, with whom Jessie K. Liu, United States Attorney at the time
the brief was filed, and Elizabeth Trosman, John P. Mannarino, Michael
McCarthy, and Gregory Rosen, Assistant United States Attorneys, were on the
brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and MCLEESE,
Associate Judges.

BLACKBURNE-RIGSBY, Chief Judge: Appellant Lori Fitzgerald, whose legal

name is now Zakiya Ahmed, was convicted by a jury of several offenses arising

out of a home invasion of the apartment of complainant Hunion Henderson. On

appeal, appellant raises an evidentiary sufficiency challenge to her firearm-related
 2

and robbery convictions and an instructional challenge to her obstruction of justice

conviction. For the reasons explained below, we reverse the obstruction of justice

conviction and affirm the other convictions.

I. Factual and Procedural Background

A. The Charges

On July 11, 2017, appellant was indicted for multiple offenses arising out of

a January 5, 2017, incident at the home of Henderson. She was tried by a jury in

December 2017. Appellant had been indicted on seventeen counts, but, soon after

opening arguments, the government dismissed the six counts that had been based

on the testimony of cooperating witness Larry Kimbrugh, whom the government

decided it would no longer sponsor due to inconsistencies in his statements that

emerged just before and immediately after the start of trial.1 Thus, with the

exception of an obstruction of justice count, which had no complaining witness,

1
Appellant’s counsel moved for a mistrial when the government announced
that it would no longer be sponsoring Kimbrugh. The trial court denied the
motion, ruling that any prejudice to appellant was cured by the court explaining to
the jury that the counts of the indictment that had been dismissed were related to
Kimbrugh and by the court permitting appellant to call Kimbrugh as a hostile
witness. Appellant does not raise this issue on appeal.
 3

Henderson was the complaining witness for the remaining counts, which included

several violent offenses and several charges of Possession of a Firearm during a

Crime of Violence (“PFCV”) pertaining to the predicate offenses:

 Count 1 – Conspiracy to Commit Burglary (D.C. Code §§ 22-1805a, -801, -
4502) (2012 Repl. & 2019 Supp.)
 Count 2 – Kidnapping while Armed (D.C. Code §§ 22-2001, -4502) (2019
Supp.)
 Count 3 – PFCV as to Kidnapping while Armed (D.C. Code § 22-4504(b))
(2019 Supp.)
 Count 6 – First Degree Burglary while Armed (D.C. Code §§ 22-801(a), -
4502) (2019 Supp.)
 Count 7 – PFCV as to First Degree Burglary while Armed (D.C. Code § 22-
4504(b)) (2019 Supp.)
 Count 8 – Robbery while Armed (D.C. Code §§ 22-2801, -4502) (2019
Supp.)
 Count 9 – PFCV as to Robbery while Armed (D.C. Code § 22-4504(b))
(2019 Supp.)
 Count 12 – Assault with a dangerous weapon (“ADW”) (D.C. Code § 22-
402) (2019 Supp.)
 Count 13 – PFCV as to ADW (D.C. Code § 22-4504(b)) (2019 Supp.)
 Count 16 – Threats to Injure or Kidnap (D.C. Code § 22-1810) (2019 Supp.)
 Count 17 – Obstruction of Justice (D.C. Code § 22-722(a)(4)) (2019 Supp.)

B. The Evidence at Trial

The government’s main witness at trial was Henderson, who testified as

follows. He was fifty-four years old, had several physical and mental health

issues, and had been addicted to crack cocaine for decades. Appellant was a fellow
 4

drug user whom Henderson had met and gotten to know in the drug scene;

Henderson considered appellant, who was older than him, to be like an aunt to him

and referred to her as “auntie.” During 2016, while Henderson was in and out of

rehab, his health was poor, and he needed assistance at home, he invited appellant

and her boyfriend, known as “Fanbone,” to live with him and take care of him. At

first, appellant treated Henderson well; she would cook for him, help him pay bills,

and negotiate with people to whom he owed money. However, appellant and

Fanbone then began bringing other drug users to Henderson’s apartment, and using

and selling drugs – including crack and heroin – in the apartment. Although

Henderson did not like the drug traffic in his home, particularly because he was in

public housing, he acquiesced. As Henderson’s relationship with appellant

deteriorated and he came to feel that appellant did not care about him anymore,

Henderson told appellant and Fanbone that he was afraid of them and

uncomfortable with what was happening in the apartment, and he asked them to

move out several times, but they refused to do so.

At some point, Henderson talked with his family about the problems he was

having at his apartment due to appellant and Fanbone’s behavior, and his brother

connected him with the police. Henderson spoke to Sergeant Curt Sloan of the

Metropolitan Police Department (“MPD”), telling Sergeant Sloan that there were
 5

drugs in his apartment, as well as guns that an acquaintance of appellant had

brought in. Henderson then told appellant that his brother had spoken to the police

and that the police would be coming to the apartment; Henderson recommended

that appellant and Fanbone leave, but they refused to do so.

On the evening of January 4, 2017, MPD officers, including Sergeant Sloan,

arrived at the apartment with a search warrant. The officers searched the premises

and detained the six individuals who were inside the apartment: Henderson,

appellant, Fanbone, Kimbrugh, and two others. Some of the officers took

appellant and the others outside, while Henderson remained in the apartment with

Sergeant Sloan. While she was outside, appellant called Henderson’s phone;

Henderson answered and gave the phone to Sergeant Sloan, who told appellant not

to come back to the apartment.

In the very early morning hours of January 5, 2017, appellant and Henderson

exchanged several text messages, in which appellant told Henderson that she

needed to return to the apartment to retrieve some of her belongings, including her

“papers” because she was meeting with her “case manager” the next day; her

clothes and shoes; and Fanbone’s “black bank card.” Henderson responded by text

message that appellant could not return because the police were watching his place
 6

and he did not want to get in trouble. Appellant replied, “Let’s do it your way. As

long as you give me our stuff, there won’t be a problem”; she also sent messages

saying: “I’m out in the street,” “I don’t mean you harm,” and “I just want my

things.” At one point, appellant asked if she should send “Rochelle or India or

[her] protector.” Rochelle Gordon was Henderson’s neighbor and a friend of

appellant’s, and India Frazier was a friend of appellant’s whom Henderson knew,

though Henderson did not know who the “protector” was. Henderson agreed to let

Gordon into the apartment to retrieve appellant’s things, but she never came.

During the time that he was exchanging text messages with appellant,

Henderson had let Kimbrugh into the apartment; when Kimbrugh began getting

high, Henderson told Kimbrugh to leave and he did. Kimbrugh later came back

and banged on the door, saying he wanted his things, and, as Henderson opened the

door, three people pushed their way into the apartment: Kimbrugh, Frazier, and

Steve Wilson – an acquaintance whom Henderson had met four days earlier when

appellant and Fanbone had invited him to a New Year’s get-together at the

apartment. Wilson hit Henderson with a gun, pointed the gun at him and ordered

him to the ground, stomped on his head, kicked him in his side, threatened to shoot

him, called him a “fa**ot,” and accused him of “snitch[ing] on [his] friend.”
 7

Frazier asked Henderson, “[W]hy did you do that” when “[t]hey took care of

[you]?” – without specifying to whom “they” referred – and also kicked him.

While Henderson was on the ground, Wilson covered Henderson’s head

with clothes. Although Henderson’s view was mostly obstructed, he observed

Wilson, Frazier, and Kimbrugh putting items from the apartment into laundry bags

and taking the bags and other things out of the apartment. Henderson listed several

items that were taken: (1) some groceries from the refrigerator; (2) two TVs, one

of which had been brought in by appellant and Fanbone, and the other of which

had been brought in by another acquaintance; (3) some “money,” which Henderson

then clarified was a “black bank card” that belonged to Fanbone and that

Henderson had put in his own pocket; (4) “a chain that didn’t belong to me

[Henderson]” but “belong[ed] to family members”; (5) “a ring that belonged to me

[Henderson]”; and (5) other unspecified “stuff.”

About ten minutes after Kimbrugh, Frazier, and Wilson had entered,

appellant entered the apartment. Appellant leaned over and quietly spoke into

Henderson’s ear, calling him a “snitch” and saying, “You thought I wouldn’t be

able to get in. You thought you had got away,” as well as something like, “You
 8

thought that you were going to get away with this, and you’re going to pay for

this.” Then all four individuals left and Henderson called the police.

On cross-examination, Henderson admitted that he had testified before the

grand jury that appellant, upon entering the apartment after Wilson and Frazier,

said to them, in reference to Henderson: “Don’t do nothing to him yet. Don’t do

nothing to him.” Henderson also admitted to inaccuracies in his grand jury

testimony. Before the grand jury, he had testified that the things that were taken

during the incident belonged to him; however, on cross, he admitted that several

items belonged to appellant, Fanbone, or others – including both TVs, the bank

card, and some of the groceries in the fridge. He also appeared to admit that the

chain that was taken actually belonged to Fanbone. When defense counsel pressed

Henderson regarding his ownership of the items taken from the apartment, he

stated that he “considers” “[e]verything in the apartment” to be his, “whether it’s

[his] or not.”

After the government rested,2 the defense called Rochelle Gordon, who

testified that appellant contacted her in the early morning hours of January 5 and

2
After Henderson stepped down, the government called Sergeant Sloan,
who testified about the January 4 raid.
(…continued)
 9

asked her to retrieve appellant’s clothes and belongings from Henderson’s

apartment. Gordon testified that appellant showed her text messages in which

Henderson requested that Gordon retrieve appellant’s things. She testified that she

went to Henderson’s apartment, but, despite banging on the door and announcing

herself for ten minutes, Henderson never answered, so she left. She also testified

that, upon leaving the building, she saw Kimbrugh exit the building, walk to

appellant’s car on the street, and talk to three people who were sitting in the car –

two of whom were appellant and India Frazier, and the third of whom she did not

recognize.3

In his closing argument, the prosecutor acknowledged the weaknesses in

Henderson’s testimony regarding the taking of property during the home invasion,

but stated: “[D]on’t get wrapped up in that. The point is that there was

indiscriminate taking of property, including property of his, from him, off of his

person; he referenced a ring. That is the basis for the armed robbery charge in this

case.”

(…continued)
3
In addition to Gordon, the defense also called three other witnesses, not
relevant here. Appellant did not testify.
 10

C. Jury Deliberations

In instructing the jury, the trial judge followed the pattern criminal jury

instructions for the District of Columbia, commonly referred to as the “Red Book.”

In doing so, she included instructions on co-conspiracy liability and aiding and

abetting liability as to the charged offenses. See Criminal Jury Instructions for the

District of Columbia, No. 7.103 (“Co-Conspirator Liability”), No. 3.200 (“Aiding

and Abetting”) (5th Ed. rev. 2019). She also included an instruction on robbery,

and, at the defense’s request and without objection from the government, an

instruction on the claim of right defense to robbery, stating, in part, that “if a

person takes the property of another in good faith belief that she has the right to

take it, the specific intent of the element of robbery is lacking.” See id. No. 4.300

(“Robbery”), No. 9.521 (“Claim of Right”).

Finally, the judge included the Red Book instruction on obstruction of

justice under D.C. Code § 22-722(a)(4), stating:

The elements of the offense of obstructing justice, each
of which the Government must prove beyond a
reasonable doubt:

That Zakiya Ahmed or an alleged co-conspirator or
alleged principal actor injured or threatened to injure Mr.
Hunion Henderson;
 11

two, that Zakiya Ahmed or an alleged co-conspirator or
alleged principal actor acted voluntarily, on purpose and
not by mistake or accident; and

three, that Zakiya Ahmed, an alleged co-conspirator or
alleged principal actor injured or threatened to injure
Hunion Henderson because he had given information to a
criminal investigator.

See Criminal Jury Instructions, No. 6.101(D) (“Obstructing Justice: Injuring

witness or his property”).

During deliberations, the jury announced that it had convicted on eight

counts and acquitted on two counts (discussed further below). It then resumed

deliberations only on the obstruction of justice count; soon thereafter, it sent a note

to the trial judge seeking clarification on the obstruction count. The note stated:

If we find beyond a reasonable doubt that these three
facts . . . independent of each other, are true,

A, Onion (phonetic) [Hunion Henderson] had
given information to a criminal investigator;

B, police/criminal investigators kept Zakiya from
her belongings in the apartment; and

three, the assault and its resulting injuries
happened in an attempt to get Zakiya’s belongings
that were in the apartment,
 12

does that satisfy element 3 of count 17, obstruction of
justice?

The judge heard extensive argument from the parties regarding the proper response

to the jury note.4 The judge then delivered this re-instruction to the jury, both

orally and in writing:

In order to prove the third element of the offense of
obstruction of justice, the Government must prove
beyond a reasonable doubt that Zakiya Ahmed’s actions
and Mr. Henderson’s injuries came about as a result of
Mr. Henderson providing information to the criminal
investigator.

If you find that Mr. Henderson providing information to
the criminal investigator was not a reason for the injuries
to Mr. Henderson, you must find the defendant not guilty
of the obstruction of justice charge.

4
During this exchange, in which the judge solicited input from both sides,
defense counsel stated: “[I]t’s got to be a specific intent to obstruct justice, not to
get your property.” The judge did not accept this proposal. Counsel then “not[ed],
just for the record,” that her request had been denied and that she was “preserving
it.” When the judge asked for clarification, she stated: “[I]f the assault and its
injuries happened when [appellant] was trying to get her belongings that were in
the apartment, that does not satisfy the third element for obstructing justice”; she
elaborated that “[t]here has to be a nexus” between the facts that the jury posited in
its note, as they cannot “be independent of each other,” as the jury proposed. The
judge “note[d] [the] objection” but proposed an alternative formulation, to which
the government agreed, and to which defense counsel, after reviewing it, simply
said “Thank you.”
 13

If the criminal investigation is wholly independent from
the cause of the injuries, you may not find the defendant
guilty of obstruction of justice.

Less than an hour later, the jury returned a guilty verdict on the obstruction charge.

Ultimately, the jury acquitted appellant of the conspiracy charge, the

burglary charge, and the PFCV charge related to burglary, but it convicted her of

unlawful entry as a lesser-included offense of burglary while armed and convicted

her of all the other charged offenses. Specifically, appellant was convicted of the

following:

 Count 2 – Kidnapping while Armed
 Count 3 – PFCV as to Kidnapping while Armed
 Count 6 – Unlawful Entry
 Count 8 – Robbery while Armed
 Count 9 – PFCV as to Robbery while Armed
 Count 12 – ADW
 Count 13 – PFCV as to ADW
 Count 16 – Threats to injure or kidnap
 Count 17 – Obstruction of Justice

Appellant timely appealed.

II. Standard of Review
 14

We review the sufficiency of the evidence de novo, Nero v. United States,

73 A.3d 153, 157 (D.C. 2013), “view[ing] the evidence in the light most favorable

to sustaining the judgment,” Davis v. United States, 834 A.2d 861, 866 (D.C.

2003), and “making no distinction between direct and circumstantial evidence,”

Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C. 2017) (citation omitted).

“Judicial review is deferential, giving full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Davis, 834 A.2d at 866

(citation and internal quotation marks omitted). “The evidence need not compel a

finding of guilt beyond a reasonable doubt, and it need not negate every possible

inference of innocence.” Napper v. United States, 22 A.3d 758, 770 (D.C. 2011)

(citation and internal quotation marks omitted). Rather, “proof of guilt is sufficient

if . . . any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Davis, 834 A.2d at 866 (citation and internal

quotation marks omitted).

Decisions regarding instructing the jury are committed to the discretion of

the trial court and are reversed only for abuse of discretion; however, the accuracy

of an instruction itself is a legal question that we review de novo. See, e.g., Brown

v. United States, 139 A.3d 870, 875 (D.C. 2016); Taylor v. District of Columbia,
 15

49 A.3d 1259, 1263-64 (D.C. 2012); Jordan v. United States, 18 A.3d 703, 707

(D.C. 2011); see also Fleming v. United States, 224 A.3d 213, 219 (D.C. 2020) (en

banc) (“Although our terminology has not always been entirely clear on this point,

we review de novo whether challenged jury instructions adequately state the

law.”). With respect to re-instruction in particular, we have stated that the trial

court must appropriately and effectively respond to demonstrated confusion on the

part of the jury and must address, with “concrete accuracy,” any specific

difficulties the jury is having in understanding the law. Colbert v. United States,

125 A.3d 326, 334 (D.C. 2015).

III. Discussion

A. Firearm-Related Offenses

Appellant argues that the evidence was insufficient to convict her of the

three charges that involved an “armed” element (kidnapping while armed, burglary

while armed, and ADW) and the three PFCV charges related to those predicate

crimes. In particular, she argues that the government failed to carry its burden to

convict her of these six firearm-related offenses under co-conspiracy liability

because the evidence was too speculative to demonstrate the mens rea required to
 16

convict a co-conspirator on these counts, i.e., that it was reasonably foreseeable

that Wilson would use or possess a gun during the incident.5 We disagree.

In the District, the elements of co-conspiracy liability are the existence of an

agreement, the commission of a substantive crime in furtherance of that agreement,

and the reasonable foreseeability of the substantive crime as a consequence of the

agreement. Clark, 147 A.3d at 327; Wilson-Bey v. United States, 903 A.2d 818,

840 (D.C. 2006) (en banc); see also Criminal Jury Instructions, No. 7.102 cmt.

(“Conspiracy”), No. 7.103 (“Co-Conspirator Liability”).6

5
Appellant appears to acknowledge that, although the jury acquitted her of
the conspiracy charge (count 1), it was entitled to convict her of other charges
under co-conspiracy liability. Indeed, we have repeatedly held that jury verdicts
need not be consistent with each other, and that we review each conviction
independently, as if it were in a separate indictment. Clark v. United States, 147
A.3d 318, 328 n.14 (D.C. 2016); Richardson v. United States, 116 A.3d 434, 443
(D.C. 2015).
6
The foreseeability element, first articulated by the Supreme Court in
Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), has not been adopted by
all jurisdictions. See, e.g., Matthew A. Pauley, The Pinkerton Doctrine and
Murder, 4 Pierce L. Rev. 1, 4 & nn. 9 & 11 (2005). However, “[t]his court has
adopted and applied the Pinkerton doctrine,” Ashby v. United States, 199 A.3d 634,
665 (D.C. 2019), which “provides that a co-conspirator who does not directly
commit a substantive offense may nevertheless be held liable for that offense if it
was committed by another co-conspirator in furtherance of the conspiracy and was
a reasonably foreseeable consequence of the conspiratorial agreement.” Id.
(quoting Wilson-Bey, 903 A.2d at 840) (cleaned up)).

Wilson-Bey acknowledged and explained, but did not apply, Pinkerton
(…continued)
 17

The evidence in this case was sufficient to satisfy the foreseeability element.

Henderson testified that, as a result of appellant and Fanbone’s activities, there had

been drug use, drug sales, and guns in the apartment prior to the home invasion;

(…continued)
liability because the facts of that case did not give rise to co-conspiracy liability.
See 903 A.2d at 842. However, this court has explicitly or implicitly recognized
the validity and applicability of Pinkerton liability on several occasions. See, e.g.,
Clark, 147 A.3d at 327 (citing Wilson-Bey for the Pinkerton principle and applying
it to affirm a conviction, without explicitly mentioning Pinkerton); Richardson,
116 A.3d at 442 (affirming a conviction because the “evidence was sufficient
under a straightforward application of Pinkerton”); Hagans v. United States, 96
A.3d 1, 23-25 (D.C. 2014) (implicitly endorsing the trial court’s use of a Pinkerton
jury instruction in a conspiracy case and discussing complications that may arise in
the context of vicarious liability for hearsay statements); Baker v. United States,
867 A.2d 988, 1005 (D.C. 2005) (holding that a Pinkerton instruction may be
given even without an indicted conspiracy charge); Williams v. United States, 858
A.2d 978, 983 (D.C. 2004) (recognizing the validity of a Pinkerton instruction and
reversing on other grounds); Gordon v. United States, 783 A.2d 575, 581-82 (D.C.
2001) (stating that a Pinkerton instruction explains to the jury that the substantive
offense committed by a co-conspirator must be reasonably foreseeable and
committed in furtherance of the conspiracy); Thomas v. United States, 748 A.2d
931, 934-35 (D.C. 2000) (noting that, “[i]n several instances, this court has
previously recognized Pinkerton liability generally,” and concluding that Pinkerton
“does not offend the grand jury clause, even absent a conspiracy charge in the
indictment”); Erskines v. United States, 696 A.2d 1077, 1080 (D.C. 1997)
(discussing the validity and applicability of Pinkerton); Akins v. United States, 679
A.2d 1017, 1031 (D.C. 1996) (overruled in part on other grounds) (acknowledging
the validity of Pinkerton instructions, but holding that a co-conspirator’s statement
may not be introduced under any hearsay exception that is not reliability-based
unless the statement is admissible as a co-conspirator’s statement made in
furtherance of the conspiracy); see also Criminal Jury Instructions, No. 7.103 cmt.
(“Co-Conspirator Liability”) (stating that the Red Book instruction is based on
Pinkerton and citing cases in which this court has upheld Pinkerton liability).
 18

indeed, that is what served as the basis for the police raid, which occurred only

hours before the home invasion and for which appellant was present. Henderson

also testified that appellant knew Wilson and had invited him to a get-together at

the apartment. Appellant sent Henderson a text message just before the incident

saying that she may send her “protector” to retrieve her things, and Gordon

testified that appellant was sitting with two other people in her car outside of the

apartment building when Kimbrugh went to talk to them: Frazier and another

person whom she did not recognize. Henderson also testified that appellant and

Wilson participated in the home invasion together, during which appellant gave

Wilson and Frazier instructions with respect to Henderson (to the effect of “Don’t

do nothing to him yet. Don’t do nothing to him.”). Thus, the evidence established

that the nature of the incident was forcible entry into a home, and that appellant

was aware that there had recently been guns and drugs sales in that home. The

evidence further established that appellant knew Wilson well enough for him to

assist her in forcibly retrieving her things from the apartment. The evidence could

also support a reasonable inference that Wilson was the “protector” whom

appellant referenced – a moniker that implies the use of force, including a

weapon.7

7
Appellant is correct that this case is distinguishable in certain respects
from Richardson, in which we concluded that it was reasonably foreseeable that
(…continued)
 19

Accordingly, viewing the evidence in the light most favorable to sustaining

the judgment and giving the jury full play to draw reasonable inferences from that

evidence, we conclude that a rational trier of fact could have found beyond a

reasonable doubt that Wilson’s possession of a gun during the crime was

reasonably foreseeable. We emphasize, however, that, one person’s possession or

use of a weapon in the commission of a crime is not automatically imputable,

under co-conspiracy liability, to others involved in the crime. To the contrary, this

court must examine the facts and circumstances in each case to determine whether

the evidence supported a jury instruction on co-conspirator liability for a weapon-

related offense and whether a rational jury examining that evidence could find

beyond a reasonable doubt that the possession or use of a weapon by one of the co-

conspirators was reasonably foreseeable. In this case, we have engaged in such an

(…continued)
Richardson’s co-conspirator would possess a knife in furtherance of the
conspiracy, and from two cases cited by the Richardson court: United States v.
Willis, 899 F.2d 873, 875 (9th Cir. 1990), and United States v. Smith, 697 F.3d
625, 635 (7th Cir. 2012). Richardson, 116 A.3d at 441. Unlike in Richardson and
Willis, there was no evidence in this case that appellant and Wilson lived together
or were close associates, and unlike in Smith, this case did not involve a bank
robbery. But we have never required the presence of those or any other specific
factors to conclude that possession or use of a weapon was reasonably foreseeable.
Rather, as explained below, we look to the evidence presented to the jury in each
case to determine whether it was sufficient to support a finding of reasonable
foreseeability.
 20

examination, and we conclude that the evidence was sufficient to sustain the

convictions on the firearm-related offenses under co-conspirator liability.8

B. Robbery

Appellant argues that, given Henderson’s contradictory testimony regarding

his ownership of the items that were taken from the apartment, as well as the jury

instruction on the claim of right defense, the evidence was insufficient to convict

her of robbery. We are not persuaded.

We have previously explained that robbery is a specific intent crime,

requiring the government to prove that a defendant acted with the specific intent to

steal. See, e.g., Bell v. United States, 950 A.2d 56, 69 (D.C. 2008); Simmons v.

United States, 554 A.2d 1167, 1169 (D.C. 1989); Criminal Jury Instructions, No.

4.300 cmt. (“Robbery”).9 A claim of right defense asserts that a defendant had a

8
Because we hold that the firearm-related convictions can be sustained
under co-conspiracy liability, we do not reach appellant’s argument that these
convictions could not have been sustained only under aiding and abetting liability.

9
More recently, however, we have expressed concern regarding the use of
specific intent and general intent as categories of mens rea. See Carrell v. United
States, 165 A.3d 314, 323-34 & nn. 26 & 27 (D.C. 2017) (en banc).
 21

good faith belief in his or her right to take an item, which negates the intent

element of robbery. Criminal Jury Instructions, No. 9.521 (“Claim of Right”).

Thus, this defense, if credited by the jury, will render the evidence insufficient to

convict a defendant of robbery because the government will have failed to prove

the mens rea element of the crime. See, e.g., Smith v. United States, 330 A.2d 519,

521 (D.C. 1974).10

Because appellant did not testify, the direct evidence of her good faith belief

is limited, though her text messages indicated her intent to retrieve her own

belongings from the apartment (including papers and clothing). Nevertheless,

Henderson’s testimony served as circumstantial evidence of appellant’s belief

10
The claim of right issue in this case is complicated by the fact that there
was no evidence that appellant herself took any property from Henderson’s
apartment; rather, Henderson’s testimony was that Frazier, Wilson, and Kimbrugh
took the property. (Because actual taking is an element of robbery, appellant was
necessarily convicted of robbery under either co-conspiracy liability or aiding and
abetting liability, both of which were presented to the jury – and neither of which
appellant challenges as to the underlying robbery count, as her vicarious liability
challenge to the robbery conviction pertains only to its “while armed” component,
as discussed above.) The question is therefore whether appellant had a good faith
belief that she had a right to take the property that was actually taken (in this case,
by others). See Criminal Jury Instructions, No. 9.521 cmt. (“A defense of claim of
right must relate to the items taken.”); cf. Robertson v. United States, 429 A.2d
192, 195 n.5 (D.C. 1981) (permitting a claim of right defense when the amount
taken was less than the amount of the alleged debt owed by the robbery victim, but
not when the amount taken was greater than the amount of the alleged debt).
 22

regarding the items that were taken. While Henderson disclaimed ownership of

certain items (such as a TV that belonged to appellant and Fanbone, a TV that

belonged to another acquaintance, and a bank card and a chain that belonged to

Fanbone), he also stated that the ring and some of the groceries in the refrigerator

belonged to him – and the prosecutor specifically emphasized the ring in his

closing argument. Moreover, while Henderson asserted that he considered

everything in the apartment to be his, whether or not he actually owned it, we have

often reiterated that it is the province of the jury to weigh evidence and that a jury

may credit portions of a witness’s testimony and discredit others. See, e.g.,

Hughes v. United States, 150 A.3d 289, 305 (D.C. 2016). Finally, the volume and

variety of items that were taken – Henderson testified that Wilson, Frazier, and

Kimbrugh started putting things in laundry bags and taking them out of the

apartment – could support a reasonable inference on the part of the jury that items

were taken indiscriminately, including items actually owned by Henderson.

As noted, the evidence need not negate every possible inference of

innocence or compel a finding of guilt. In light of Henderson’s testimony and the

reasonable inferences that could be drawn from that testimony, the evidence was

sufficient for the jury to conclude that appellant lacked a good faith belief in her

right to take at least some of the items taken from Henderson’s apartment. Thus,
 23

there was sufficient evidence for a reasonable jury to reject the claim of right

defense and find beyond a reasonable doubt that the requisite mens rea for robbery

was present. Appellant’s robbery conviction must stand.

C. Obstruction of Justice

Finally, appellant argues that the trial court erred in its response to the jury’s

question about the obstruction of justice count. She asserts that the trial court’s

response to the jury note was legally incorrect and that this incorrect response

clearly influenced the jury’s verdict. Because the trial court’s re-instruction in

response to the jury note constituted a substantive articulation of the applicable

law, we review its legal accuracy de novo. See supra Section II. Reviewing under

this standard, we agree with appellant.11

11
The government argues that appellant forfeited this argument by agreeing
to the trial judge’s response to the jury note, see supra note 4, and that this court
should therefore review the claim only for plain error. We disagree. Counsel’s
“thank you” appears to have been a simple showing of deference to the trial judge
after the judge had “note[d] [her] objection” and ruled against her. Under the
circumstances, this exchange was sufficient to preserve the objection. Cf. In re
Ty.B., 878 A.2d 1255, 1263 (D.C. 2005) (“To require counsel . . . to object again
would be to require a pointless formality.” (cleaned up)). We therefore review this
claim squarely, rather than for plain error.
 24

Appellant was charged under subsection (a)(4) of the obstruction statute,

which states that a person commits obstruction if she “[i]njures or threatens to

injure any person or his or her property on account of the person or any other

person giving to a criminal investigator in the course of any criminal investigation

information related to a violation of any criminal statute.” D.C. Code § 22-

722(a)(4). The Red Book instruction, which the trial court read to the jury and

included in the written jury instructions, is a relatively straightforward rendering of

the text of § 22-722(a)(4) into discrete elements, though it substitutes the word

“because” for the phrase “on account of:”

The elements of the offense of obstructing justice, each
of which the government must prove beyond a
reasonable doubt, are that:

1. [Defendant] [injured] [complainant];

2. [Defendant] acted voluntarily, on purpose, and not by
mistake or accident; and

3. [Defendant] [injured] [complainant] because [s/he]
had given information to a criminal investigator.

Criminal Jury Instructions, No. 6.101(D) (bracketed material cleaned up).12 The

first and second elements address actus reus and mens rea, respectively. The

12
The Red Book is, of course, not law, but it aims to accurately reflect the
law. See, e.g., Thurston v. United States, 779 A.2d 260, 262 (D.C. 2001).
 25

dispute here centers around the third element, which goes to motive.13

Our case law has substantively addressed (a)(4) twice, each time only

briefly. In Mayhand v. United States, we repeated the “on account of” language

from the statute: while we reversed the conviction in that case based on the

admission of inadmissible hearsay, we noted that the evidence would have been

sufficient to convict under (a)(4) because the evidence – including the inadmissible

hearsay – “provided a sufficient basis for a reasonable fact-finder to infer that [the

appellant] had threatened to injure [the complainant] and had done so ‘on account

of’ the information [the complainant] gave to law enforcement.” 127 A.3d 1198,

1204, 1212 (D.C. 2015). In McCullough v. United States, however, we clarified

that retaliation satisfies the motive element. 827 A.2d 48, 58 (D.C. 2003). The

evidence in that case showed that the co-conspirators killed an acquaintance after

13
At trial and in her briefing before this court, appellant used the term
“specific intent” to refer to this element, though that term may confuse more than it
clarifies, as the intent (mens rea) element of obstruction of justice is not at issue
here. We note that our case law has not addressed the mens rea element of (a)(4),
but has recognized that two other subsections of D.C. Code § 22-722 require
specific intent: (a)(2), which pertains to interfering with witnesses in official
proceedings, Crutchfield v. United States, 779 A.2d 307, 325 (D.C. 2001), and
(a)(6), which pertains to impeding “the due administration of justice in any official
proceeding,” Hawkins v. United States, 119 A.3d 687, 695 (D.C. 2015). We also
note, as mentioned above, see supra note 9, the concern we have expressed in
recent years regarding the use of specific intent and general intent as categories of
mens rea. See Carrell, 165 A.3d at 323-34 & nn. 26 & 27.
 26

one of the conspirators confirmed to others that the acquaintance had become a

government informant and was planning to serve as a witness; we therefore

concluded that (a)(4) “was satisfied because [the informant] was killed in

retaliation for giving information to the police about criminal activity. Id.14

It is clear that the trial court’s response to the jury note went beyond the

statute, the Red Book instruction, and our case law. The trial court stated that the

third element of (a)(4) would be satisfied if the government proved that “Zakiya

Ahmed’s actions and Mr. Henderson’s injuries came about as a result of Mr.

Henderson providing information to the criminal investigator,” and that appellant

must be acquitted if “Mr. Henderson providing information to the criminal

investigator was not a reason for the injuries to Mr. Henderson” or “the criminal

investigation [was] wholly independent from the cause of the injuries” (emphasis

added). These formulations do not clearly refer to appellant’s motive or identify

motive as the link between appellant’s actions and Henderson’s injury.

Accordingly, the re-instruction cannot be squared with the statute, which requires

that a defendant “[i]njure[]. . . [a] person . . . on account of the person or any other

14
In another case, Wynn v. United States, we noted briefly, in our analysis
of (a)(6), that (a)(4)’s reference to criminal investigations includes police
investigations. 48 A.3d 181, 190 (D.C. 2012).
 27

person giving [information] to a criminal investigator,” D.C. Code § 22-722(a)(4)

(emphasis added); with the Red Book instruction, which requires that a defendant

“injure[] complainant because he had given information to a criminal investigator,”

Criminal Jury Instructions, No. 6.101(D) (emphasis added and brackets omitted);

or with McCullough, which found obstruction where a defendant killed the victim

“in retaliation for” the victim giving information to police, 827 A.2d at 58

(emphasis added). While the trial court’s response contemplates a causal

relationship between Henderson’s police cooperation and Henderson’s injuries, as

well as a causal relationship between appellant’s action and Henderson’s injuries,

it omits motive, which is a necessary element of the crime. Appellant’s actions

that injured Henderson must have been motivated by Henderson giving

information to the police.

Under the trial court’s formulation, even if appellant’s sole motive in going

to Henderson’s apartment was to retrieve her belongings – meaning appellant (and

her co-conspirators) did not injure Henderson “on account of,” “because of,” or “in

retaliation for” Henderson giving information to the police – appellant would still

be guilty of obstruction because Henderson’s injuries indirectly resulted from a

chain of events that involved Henderson talking to the police, the police raiding the

apartment, appellant being put out of the apartment without her belongings,
 28

appellant later returning with others to forcibly retrieve her things from the

apartment, and Henderson being injured during the retrieval incident. But (a)(4)

does not criminalize all injuries that result in some way from a complainant

providing information to a criminal investigator; it only criminalizes injuries that

were motivated by that provision of information.15 While the trial court was

understandably attempting to clear up the jury’s confusion, as required by our case

law, it made a substantive statement of law that was not consistent with applicable

authorities. Thus, reviewing de novo for legal accuracy, we conclude that the trial

court’s response to the jury note was error.

Nor was the error harmless. The trial court’s re-instruction permitted the

jury to conclude that, if there was any connection between Henderson giving

information to the police and Henderson’s injury – no matter how attenuated or

mediated – the third element of (a)(4) was satisfied. In other words, the jury

15
According to the trial court’s formulation of the jury instruction, other
scenarios in which the requisite motive was absent could potentially amount to
obstruction. For instance, if one of the officers who participated in the police raid
on Henderson’s apartment had used excessive force in detaining Henderson and
had injured him, that officer could be guilty of obstruction – even if the officer was
completely unaware that Henderson had given information to the police – because
Henderson giving information to the police was “a reason” for Henderson’s
injuries, Henderson’s injuries were “a result” of his giving that information, and
the information and his injuries were not “wholly independent.” We do not think
this is the type of conduct at which (a)(4) is aimed.
 29

instruction permitted the jury to convict appellant even if it found that appellant did

not take any action to injure Henderson that was motivated by – i.e., taken on

account of, because of, or in retaliation for – Henderson’s contact with the police.

Under these circumstances, we cannot say, with fair assurance, that the verdict was

not substantially swayed by the error. Shelton v. United States, 983 A.2d 979, 983

(D.C. 2009) (“To find an instructional error harmless, we must be satisfied ‘with

fair assurance, after pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially swayed by the

error.’” (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946) (cleaned

up)). Accordingly, we reverse on this count.

IV. Conclusion

For the reasons discussed, we conclude that the evidence was sufficient to

support appellant’s convictions on the firearm-related charges under co-conspiracy

liability and sufficient to support appellant’s robbery conviction despite the claim

of right defense, and we therefore affirm those convictions. However, we conclude

that the jury re-instruction on obstruction of justice constituted legal error and the

error was not harmless; we therefore reverse the obstruction of justice conviction.
30

So ordered.