Wilson v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-464

STEVEN WILSON, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-10530-17)

(Hon. José M. López, Trial Judge)

(Argued March 9, 2021 Decided January 6, 2022)

Cecily E. Baskir for appellant.

Patricia A. Heffernan, Assistant United States Attorney, with whom Michael
R. Sherwin, Acting United States Attorney at the time, Elizabeth Trosman, John P.
Mannarino, Nicole E. McClain, and Gregory P. Rosen, Assistant United States
Attorneys, were on the brief for appellee.

Before GLICKMAN, Associate Judge, THOMPSON, * Associate Judge, and
GREENE, Senior Judge, Superior Court of the District of Columbia. **
*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although her term expired on September 4, 2021, she will continue to
serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-
1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to
perform judicial duties as a Senior Judge and will begin her service as a Senior
Judge on a date to be determined after her successor is appointed and qualifies.
(continued…)
 2

GREENE, Senior Judge:

I. Introduction

Appellant, Steven Wilson, was convicted by a jury of conspiracy to commit

burglary, unarmed kidnapping, unarmed first-degree burglary with the intent to

assault and commit theft, assault with a dangerous weapon, threat to kidnap or

injure, and unlawful entry. On appeal he argues that (1) the evidence was

insufficient to sustain his convictions for conspiracy to commit burglary and

burglary, (2) the trial court erroneously refused to instruct the jury on a claim of

right defense, (3) the trial court abused its discretion by improperly admitting a

witness’s prior consistent statements and text messages, and (4) his unlawful entry

conviction should have been merged with his burglary conviction. For the reasons

that follow, we affirm in part and vacate in part.

II. Background

(…continued)
**
Sitting by designation pursuant to D.C. Code §11-707(a) (2012 Repl.).
 3

The evidence at trial disclosed that Hunion Henderson, the complainant was

a fifty-five-year-old man with a long addiction to crack cocaine who lived alone in

a one-bedroom apartment in the northeast quadrant of Washington, D.C. Lori

Fitzgerald (also known as Zakiya Ahmed) was Henderson’s crack dealer, and he

invited her to live in his home but did not think she was planning to sell drugs

there. While Henderson was in the hospital, Ahmed brought her boyfriend,

“Fanbone,” to live at Henderson’s apartment and moved her television, food, and

other items into the apartment, whereupon the two began selling drugs out of the

apartment.

After Henderson returned home from the hospital, he allowed Ahmed and

Fanbone to stay for a while, and they took over his bedroom while he slept on the

couch. Henderson said he never gave them permission to sell drugs out of the

apartment, but they sold him crack in exchange for his monitoring the door and not

“putting them out or calling the police.” Eventually, when Henderson asked

Fanbone and Ahmed to either leave or stay but to cease selling drugs out of the

apartment, they refused to do either.

When Henderson visited his family for Thanksgiving in 2016, his family

noticed he did not look well and decided he should not return to his apartment.
 4

They contacted their cousin, a retired police officer, who in turn contacted

Metropolitan Police Department (MPD) Sergeant Curt Sloan.

Henderson thereafter entered a rehab program and met Larry Kimbrugh.

Kimbrugh was kicked out of the rehab program for using drugs, and Henderson let

him stay at his apartment. Meanwhile, Sergeant Sloan called Henderson while

Henderson was still in rehab; Henderson told him that there were guns in his

apartment and people selling drugs there, and he wanted those people to leave.

When Henderson returned from rehab, Kimbrugh had become “close” with

Ahmed and Fanbone. Henderson relapsed after moving back into his apartment.

On January 1, 2017, Henderson met appellant Wilson there when appellant came

to the apartment to spend time with Ahmed and others for appellant’s birthday

party.

On January 4, 2017, Sergeant Sloan and fellow officers burst into the

apartment to execute a search warrant. The officers removed Ahmed, Fanbone,

Kimbrugh, and others from the apartment, while Henderson stayed inside. 1

Appellant was not one of the people present at the time the police executed
1

the search warrant.
 5

Sergeant Sloan asked Henderson if he was willing to cooperate with the United

States Attorney’s Office so they could help him get Ahmed and the others out of

his home, and Henderson agreed. At one point while Sergeant Sloan was still at

the apartment, Ahmed called Henderson and asked to pick up her clothes and other

items from the apartment. Henderson gave the phone to Sergeant Sloan who told

Ahmed she could not return to the apartment and would be arrested if she did.

Henderson and Ahmed began texting later that night. Ahmed repeatedly

texted Henderson asking to retrieve her things. He told her she could not come

back. Ahmed texted Henderson asking whether she should send “Rochelle or India

or my Protector!!! Or are we gonna get it right the first time?” Henderson

interpreted Ahmed’s reference to her “protector” to mean someone who would

retrieve her property by force or “any means necessary.” Henderson eventually

heard India Frazier, Ahmed’s friend, banging on the door saying that she knew he

was in there. He did not respond and instead called the police, but the police did

not respond.

Frazier testified that Ahmed asked her to help move Ahmed’s belongings out

of Henderson’s apartment because the police ejected her and Henderson would not

return her things. She further testified that when they arrived and Henderson did
 6

not answer the door, Ahmed called appellant Wilson and told him that she needed

him to do something for her. Ahmed directed appellant to meet them on Taylor

Street and “to bring his friend,” which Frazier testified that she understood to mean

a knife or a gun. Ahmed picked up appellant with Frazier, and Ahmed explained

that Henderson called the police on her and her boyfriend and now would not let

Frazier in to pick up Ahmed’s things. Frazier said they did not discuss violence in

the car, but she understood appellant’s role was to be the “strong arm” and that

Henderson “was the type of person you could holler at and [he would] do what he

was told.”

When they arrived back outside Henderson’s apartment, they met Kimbrugh

who agreed to help them get into the apartment. After using drugs, Kimbrugh,

Frazier, and appellant went to Henderson’s door. Frazier saw appellant holding a

black gun the size of a “Glock.” Kimbrugh knocked and said “open the door.”

When Henderson opened the door, appellant pushed Frazier, Frazier pushed

Kimbrugh, and they all “fell into the apartment.” Frazier immediately took two

phones from Henderson’s person and called him a snitch. Frazier testified that

appellant then pistol-whipped Henderson in the face, made him get on the ground,

and hit him as she and Kimbrugh removed items from the apartment.
 7

Henderson testified to the same sequence of events, and he further testified

that appellant stomped on his face, covered his face with a cloth, and told him,

“[Y]ou f****t motherf****r, I should shoot you.” Meanwhile, Henderson saw

Frazier and Kimbrugh taking items out of the apartment, only some of which

belonged to Ahmed. Appellant ordered Frazier to “take everything else out of

[Henderson’s] pocket,” whereupon Frazier and Kimbrugh then took Henderson’s

chain, ring, and money from his pocket and his boots from his room. They also

took two televisions, only one of which belonged to Ahmed.

While the others were removing property from the apartment, appellant

guarded Henderson, accusing him of “g[etting] his friend locked up,” and called

him a “snitch.” Ahmed then arrived and whispered to Henderson “in an evil tone”

saying, “[Y]ou thought you got away with it, you thought I wasn’t gonna get my

stuff,” and, “[Y]ou got my nephew locked up and you got my friend locked up.”

When appellant stated, “Let me shoot this n***, Sis,” Ahmed replied, “Beat him

up, but don’t shoot him.”

After the group left, Henderson called 911 twice. On the first call he stated,

“They just got done beating me up and pistol-whipped me,” and “I’m in a daze
 8

right now . . . , please hurry up.” On the second call he said, “I told you I got

pistol-whipped”; “I just got whupped”; and “my eye is messed up.”

Police and an ambulance arrived and took Henderson to the hospital. MPD

Officer Darren Reaves’s body camera captured multiple conversations between

himself and Henderson on the way to the hospital and at the hospital about the

events. These videos were all entered into evidence. Officer Christian Glynn was

also present at the hospital when the officers questioned Henderson.

Henderson described appellant to Officer Glynn as a sixty-year-old Black

man with a beard and short hair who weighed just under 200 pounds. Henderson

said he knew appellant because appellant came to Henderson’s apartment on

January 1, on appellant’s birthday a few days prior to the incident. Appellant told

the officers that appellant, Ahmed, Kimbrugh, and Frazier removed items from his

apartment and that appellant struck him in the face with a gun, causing injuries to

his forehead and his eye.

Frazier, Henderson, Officer Christian Glynn, Sergeant Sloan, and Officer

Tara Tindall testified on behalf of the government, describing the foregoing
 9

events. 2 Ronetta Johnson, the defense’s criminal investigator, and Officer Reaves

testified on behalf of the defense. The defense’s focus was on the impeachment of

the government’s two key witnesses, Henderson and Frazier.

On September 26, 2018, the jury found appellant not guilty of armed

kidnapping, armed first-degree burglary, armed robbery, obstruction of justice, and

three counts of possession of a firearm during a crime of violence. However, they

found him guilty of conspiracy to commit burglary, unarmed kidnapping, unarmed

first-degree burglary, assault with a dangerous weapon, threat to kidnap or injure,

and unlawful entry. Appellant was sentenced to 120 months’ imprisonment and

timely appealed.

III. Analysis

A. Sufficiency of the Evidence

Appellant argues that the evidence at trial was not sufficient to sustain his

convictions for conspiracy to commit burglary and burglary. The burden is on

2
Tara Tindall is an MPD officer who assisted in executing the search
warrant that was originally intended to find Ahmed but instead resulted in the
arrest of appellant with whom Ahmed was supposedly staying at the time. Her
testimony was used to identify Wilson at trial.
 10

appellant when he is attacking the sufficiency of the evidence. Olafisoye v. United

States, 857 A.2d 1078, 1086 (D.C. 2004). This court “must deem proof of guilt

sufficient if, ‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Bassil v. United States, 147 A.3d 303, 307

(D.C. 2016) (quoting Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en

banc), in turn quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in

original).

Conspiracy to commit a crime requires that “(1) two or more persons formed

an agreement to commit a [crime], (2) the defendant knowingly participated in the

conspiracy with the intent to commit the offense, and (3) at least one person

involved in the conspiracy committed one of the charged overt acts.” Perez v.

United States, 968 A.2d 39, 104 (D.C. 2009) (quoting Pearsall v. United States,

812 A.2d 953, 960 (D.C. 2002)). In this case, the underlying crime was burglary;

consequently, the government was required to show a conspiracy to commit

burglary. D.C. Code § 22-801(a) provides:

Whoever shall . . . enter . . . any dwelling, or room used
as a sleeping apartment in any building, with intent . . . to
commit any criminal offense, shall, if any person is in
any part of such dwelling or sleeping apartment at the
 11

time of such . . . entering, . . . be guilty of burglary in the
first degree.

The evidence in this case was sufficient to establish a conspiracy to commit

burglary based on an agreement to enter Henderson’s apartment with an intent to

steal or commit an assault. “A conspiratorial agreement may be inferred from

circumstances that include the conduct of defendants in mutually carrying out a

common illegal purpose, the nature of the act done, the relationship of the parties

and the interests of the alleged conspirators.” Tann v. United States, 127 A.3d 400,

424 (D.C. 2015) (quoting Castillo-Campos v. United States, 987 A.2d 476, 483

(D.C. 2010)).

Substantial evidence at trial showed that there was an agreement to assault

the complainant, Henderson, if not to also steal from him. Frazier testified that

Ahmed called appellant asking him to do something for her and requested he

“bring his friend.” Frazier perceived this to be asking him to bring a knife or a

gun. When in the car on the way to Henderson’s home, Ahmed explained to

appellant that Henderson called the police on her and her boyfriend and would not

allow her to get her things. Although violence was not explicitly discussed, Frazier

interpreted appellant’s role was to be the “strong arm.”
 12

Appellant followed through on Ahmed’s request to bring a gun, as he had a

Glock handgun in his hands prior to entry—of which at least Frazier was aware—

thereby supporting an inference that there was an agreement to assault Henderson.

Appellant’s comment to Ahmed, “Let me shoot this n***, Sis,” and Ahmed’s

response, “beat him up but don’t shoot him,” also bolstered the inference that there

was an agreement to assault complainant. Frazier’s actions also support a

conclusion that some sort of agreement existed; when Henderson opened the door,

she immediately took Henderson’s phones from him and called him a snitch. This

evidence, viewed in the light most favorable to the government, is sufficient to

support a conviction for conspiracy to commit burglary.

The evidence was likewise sufficient to support a burglary conviction. The

trial court instructed the jury that it had to find that appellant “intended to assault

or steal” at the time of entry in order to convict appellant of burglary. 3 Here, the

3
However, it does not appear that the trial court either was requested to
instruct the jury or in fact instructed the jury that it must be unanimous as to which
crime or crimes appellant specifically intended to commit at the time of the
burglary, i.e., assault, theft, or assault and theft. Thus, there is an apparent
unanimity problem with the trial court’s instructions that the jury must find that
appellant had an intent to assault or steal without an accompanying instruction that
the jury must be unanimous as to which crime appellant intended to commit.
However, appellant has not raised an issue as to the lack of jury unanimity, nor
does it appear that either at trial or on appeal he made any such objection.
Consequently, appellant never preserved any objection he might have had for
(continued…)
 13

evidence supported appellant’s intent to assault and to steal, and his co-

conspirators Kimbrugh’s and Frazier’s intent to steal, at the time of entry.

Immediately upon entering the apartment, appellant restrained Henderson with

force and struck him, while the others began to remove property from the

apartment, and appellant ordered Frazier to “take everything else out of

[Henderson’s] pocket.” This sequence of events, which occurred immediately

after entry, supports a finding that the intent to assault and to steal also existed

moments before, at the time of entry. See Lee v. United States, 699 A.2d 373, 384

(D.C. 1997) (finding sufficient evidence of intent to steal and to assault upon entry

because defendants “immediately exhibited aggressive behavior,” restrained the

complainants, and began to steal from them shortly after entering the home).

Based on these facts, a rational jury could have found the essential elements

of conspiracy to commit burglary and burglary.

B. Claim of Right Jury Instruction

(…continued)
appeal, and we merely note the apparent instructional problem. Cf. Marshall v.
United States, 623 A.2d 551, 565 n.6 (D.C. 1992) (Ferren, J., dissenting in part and
concurring in result only).
 14

Appellant also argues that the trial court erred in denying his request at trial

for a claim of right jury instruction. 4 The model claim of right jury instruction in

the District of Columbia reads:

An element of the offense of robbery is that the
defendant had the specific intent to steal. You have heard
evidence that [name of defendant] believed that s/he had
a right to take the property. If a person takes the property
of another in the good faith belief that s/he has a right to
take it, the specific intent element of robbery is lacking.
It does not matter whether the defendant actually had a
right to the property. It is only necessary that s/he
believed in good faith that s/he was entitled to or could
legally take the property.
The government must prove beyond a reasonable
doubt that [name of defendant] did not believe in good
faith that s/he had a right to take the property. If it does
not do so, you must find him/her not guilty.

Criminal Jury Instructions for the District of Columbia, No. 9.521 (17th ed. 2019).

Appellant requested that this instruction be revised to state:

[You] heard evidence that Zakiya Ahmed believed that
she had a right to take the property and that Mr. Wilson

4
Appellant does not specify for which offenses he believes a claim of right
instruction was warranted. At trial, he requested it for the kidnapping, burglary,
and robbery charges, but not for the conspiracy charge. Because he was acquitted
on the robbery count, we need not address whether the instruction should have
been given as to that charge. With respect to the kidnapping charge, that offense
does not require an accompanying intent to steal or assault, but only “to hold or
detain.” This leaves us to address whether the claim of right instruction should
have been given as to the burglary charge.
 15

was assisting her in defense of that right. . . . It does not
matter whether Ms. Ahmed actually had a right to the
property. It is only necessary that Mr. Wilson believed in
good faith she was entitled to or could legally take the
property. The Government must prove beyond a
reasonable doubt that Mr. Wilson did not believe Ms.
Ahmed had a right to the property.

The trial court denied appellant’s request.

The trial court did not clearly explain its decision in denying the claim of

right instruction; it seemed to conflate the defense’s request for a claim of right

jury instruction with the defense’s request for a defense of property jury

instruction, denying both because the defendant was not entitled to

“step into [Ahmed’s] shoes” to defend or retrieve her property by force.

“Generally, [w]hen a defendant requests an instruction on a theory of the

case that negates his guilt of the crime charged, and that instruction is supported by

any evidence, however weak, an instruction stating the substance of the

defendant’s theory must be given.” Higgenbottom v. United States, 923 A.2d 891,

899 (D.C. 2007) (quoting Gray v. United States, 549 A.2d 347, 349 (D.C. 1988)).

“Although the instruction need not be given exactly as suggested, the failure to

give such an instruction where some evidence supports it is reversible error.”

Frost v. United States, 618 A.2d 653, 662 n.19 (D.C. 1992). However, “[t]he trial
 16

judge may properly refuse to give an instruction where no factual or legal basis for

it exists.” Id.

In Richardson v. United States, 403 F.2d 574, 576, (D.C. Cir. 1968), the

court set out the claim of right defense for this jurisdiction. 5 A defendant cannot

be guilty of crimes for which a specific intent to steal is an element “unless he has

the specific intent to take the property of another.” Id. at 575. Therefore, a

defendant is entitled to a claim of right defense if s/he has a good faith belief that

s/he is legally entitled to the property s/he is charged with taking. Id. 6

In this case, appellant asserts that there was enough evidence to support a

claim of right defense because he only intended to help Ahmed recover her own

property and therefore lacked an intent to take property to which he and Ahmed

were not entitled. This court has not considered whether a defendant can assert a

claim of right defense on behalf of a third party who has authorized the defendant

5
This precedent is binding in this jurisdiction. See M.A.P. v. Ryan, 285
A.2d 310, 312 (D.C. 1971).
6
The comment to the Criminal Jury Instructions for the District of
Columbia, No. 9.521, indicates that the claim of right jury instruction can be used
for property crimes other than robbery that require specific intent.
 17

to reclaim property. However, assuming the legal viability of such a claim, it is

doubtful in this case whether this court need reach that question because a

defendant cannot assert the claim of right defense when he takes property that he

did not in good faith believe belonged to him. 7

In this case, the evidence showed that Frazier and Kimbrugh took more than

just Ahmed’s property from Henderson’s apartment. Frazier took two phones from

Henderson right after appellant, Kimbrugh, and Frazier burst into his apartment;

only one phone belonged to Ahmed. They also took Henderson’s chain, ring, and

money from his pocket, all of his food, and his boots from his room. Because they

took items that they did not in good faith believe belonged to them or Ahmed,

there was no evidence to support appellant’s claim that he only intended to help

Ahmed recover her own property.

However, assuming without deciding that the trial court erred in failing to

give a claim of right instruction for the burglary charge, any error was harmless.

7
See, e.g., Smith v. United States, 330 A.2d 519, 521 (D.C. 1974) (a
defendant could not assert the claim of right defense when the defendant attempted
to retrieve a drug debt of $30 and instead took $500); Robertson v. United States,
429 A.2d 192, 195-96 (D.C. 1981) (affirming the denial of a claim of right
instruction when the defendant embezzled $601.99 from his employer but was only
entitled to $200).
 18

“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.’”

Higgenbottom, 923 A.2d at 899 (quoting Brooks v. United States, , 1101-02 (D.C.

1991)). “An error will be harmless, and will not be reversible, when the

instructions the court actually gave ‘adequately presented the defense theory’

and ‘properly inform[ed] the jury of the applicable legal principles involved,’

despite the erroneous omission.” Id. (quoting Gray v. United States, 549 A.2d 347,

351 (D.C. 1988) and Stewart v. United States, 687 A.2d 576, 578 (D.C. 1996)).

Here, the burglary charge was predicated on an intent to assault or steal. See

supra note 3. The trial court instructed the jury that it had to find that appellant

“intended to assault or steal” at the time of entry in order to convict him of

burglary. Setting aside intent to steal, there was substantial evidence of appellant’s

intent to assault. Prior to the incident, Ahmed texted Henderson asking whether

she should send “Rochelle or India or my Protector!!! Or are we gonna get it right

the first time?” By “protector,” Henderson interpreted Ahmed as meaning someone

who would retrieve her property by force or “any means necessary.” Frazier said

on the way to Henderson’s apartment that appellant and Ahmed did not discuss

violence, but she understood appellant’s role was to be the strong arm. Prior to
 19

entering the apartment, Frazier saw that appellant was holding a black gun the size

of a “Glock.” Frazier and Henderson testified appellant pistol-whipped Henderson

in the face, made him get on the ground, and hit him. Henderson also testified that

appellant stomped on his face and covered his face with a cloth and said, “[Y]ou

f****t motherfucker, I should shoot you.” Frazier testified that appellant stated,

“Let me shoot this n***, Sis,” to which Ahmed replied, “Beat him up, but don’t

shoot him.” In both 911 calls, Henderson stated that he had just been pistol-

whipped. Thus, there is ample evidence that appellant had the intent to assault

upon entering the apartment, unrelated to any purported claim of right.

Moreover, the judge otherwise properly advised the jury of the applicable

legal principles and adequately presented the defense theory. Higgenbottom, 923

A.2d at 899. Although he did not give the claim of right jury instruction, he

summarized the defense’s theory, using the language requested by the defense,

stating:

It is the defense’s theory in this case that Mr.
Wilson was asked to assist in obtaining Ms. Ahmed’s
property and that he did so under a bona fide belief that
the property taken was hers. It is the defense theory that
he did not enter [the apartment] by force, nor did he enter
with the intent to rob, assault, or commit any other crime
against . . . Henderson; nor did he participate in the
planning of, or agreement [with] any such conduct.
 20

Because the trial judge adequately presented the defense’s theory that

appellant did not believe he was doing anything wrong in assisting Ahmed procure

her property from appellant, and because there was ample evidence of appellant’s

intent to assault to which a claim of right defense would not apply, we are satisfied

that the judgment was not substantially swayed by any error in the jury instructions

and that any such error was harmless. See id.

C. Evidentiary Claims

1. Prior Consistent Statements

Appellant argues that the trial court abused its discretion by admitting

Henderson’s statements he made to the police on January 5, 2017, because they

were made when Henderson had a motive to fabricate. 8 At trial, appellant’s

counsel cross examined Henderson about his cooperation with the government

8
Appellee, relying on Bardoff v. United States, 628 A.2d 86, 90 n.8 (D.C.
1993), argues that appellant abandoned this claim because appellant did not
identify any specific statements or their content in challenging the prior consistent
statements. Bardoff and D.C. App. R. 28(a)(10)(A) require that a party’s brief
contain “contentions of the appellant with respect to the issues presented, and the
reasons therefore, with citations to the authorities, statutes and parts of the record
relied upon.” We do not believe this claim is abandoned. Appellant adequately
detailed these statements in his statement of facts and identified the numbers of the
exhibits that were shown to the jury.
 21

both in the drug dealing case involving Ahmed and Fanbone and in a drug

conspiracy case from 1994. The defense’s theory in eliciting this testimony was

that Henderson “ha[d a] motive to make himself a victim here rather than to be

charged as a co-conspirator in this drug conspiracy,” as he had done in the past.

Appellant’s counsel also questioned Henderson extensively on cross-

examination about his conversations with the MPD officers. The defense asked

him questions such as: (1) “and you did not say anything to Officer Reaves about

any gay slur being said to you. Isn’t that correct?”; (2) “did you tell Detective

Glynn that when the four individuals led by Larry came into your apartment, Steve

[appellant] began striking you in the face with a handgun, causing two lacerations

on your forehead and right eyelid?”; and (3) “Did you tell him that . . . all four

were removing items from the apartment?” Henderson agreed that he said some of

these things, denied saying some of them, and did not recall whether he said others.

On Henderson’s redirect examination, the government played five video

clips from Officer Reaves’ body camera footage on January 5, 2017. The clips

included conversations between Officer Reaves and Henderson in the ambulance,

and among Henderson, Officer Reaves, and Officer Glynn at the hospital,

discussing the police raid and the incident involving appellant, Frazier, Ahmed,
 22

and Kimbrugh. The government introduced this evidence to “rehabilitate”

Henderson with respect to whether he was a cooperator and to rebut “the

implication about all the little things he did or did not say.” Appellant’s trial

counsel objected to the admission of these statements because they were made

after the motive to fabricate regarding the drug-dealing case arose, which was

when Henderson’s family contacted Sergeant Sloan and Henderson began to

cooperate with the police, around Thanksgiving of the previous year. The court

admitted the statements over appellant counsel’s objection.

This court reviews “the trial court’s evidentiary rulings for abuse of

discretion, recognizing that it is necessarily such an abuse for the trial court to

employ incorrect legal standards.” In re C.A, 186 A.3d 118, 121 (D.C. 2018).

Prior consistent statements are generally inadmissible because “‘mere repetition

does not imply veracity and . . . once an inconsistency in [a] statement is shown,

evidence of additional consistent statements does not remove the inconsistencies.’”

Mason v. United States, 53 A.3d 1084, 1090 (D.C. 2012) (quoting Brown v. United

States, 881 A.2d 586, 599 (D.C. 2005)). However, there are a number of

exceptions to this general rule that have been codified in this jurisdiction. Id. D.C.

Code § 14-102(b)(2) provides that
 23

A statement is not hearsay if the declarant testifies
at the trial or hearing and is subject to cross-examination
concerning the statement and the statement is . . . (2)
consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the
witness of recent fabrication or improper influence or
motive. 9

This court has recognized an additional exception: a prior consistent

statement can be admitted where “the witness’ testimony has been impeached by a

portion of a statement which also contains relevant information that could be used

to meet the force of the impeachment.” Musgrove v. United States, 441 A.2d 980,

985 (D.C. 1982) (quoting Rease v. United States, 403 A.2d 322, 328 n.7 (D.C.

1979)). The purpose of this exception is to “assist a determination as to just how

serious the inconsistencies might be.” Coltrane v. United States, 418 F.2d 1131,

1140 (D.C. Cir. 1969).

Appellant argues that the statements Henderson made to the officers in the

ambulance and the hospital were made after his motive to fabricate originated, in

violation of D.C. Code § 14-102(b)(2), and are therefore inadmissible prior

consistent statements. However, although Henderson had previously given

9
See Fed. R. Evid. 801(d)(1)(B); BRIAN T. FITZPATRICK, ET AL., THE LAW OF
EVIDENCE IN THE DISTRICT OF COLUMBIA § 801.01(5)(a), (b), pp. 8-62–8-80,
Editorial Commentary and Case Annotations (6th ed. 2020).
 24

information to Sergeant Sloan about the drug trade out of his apartment and agreed

to assist the government with regard to the drug dealing case, much of the

conversation in the clips was about events that transpired on the night of the

burglary in which Henderson was the victim. Any motive to lie that Henderson

had about the drug-dealing was not related to events associated with the burglary.

Henderson had no reason to be concerned about being implicated in the burglary-

related events where he was the victim. As the government argued at trial and the

trial court agreed, any motive to fabricate with regard to the burglary would have

occurred at the time Henderson was testifying at trial or after he agreed to testify.

Any motive to fabricate about the burglary would not have existed at the time of

his first report to police. Consequently, these statements fell under the exception in

D.C. Code § 14-102(b)(2).

These statements also were admissible under the second exception.

Appellant’s trial counsel questioned Henderson as to what he told Officers Reaves

and Glynn on the night of the incident, suggesting inconsistencies between his

testimony at trial and the earlier statements he made regarding whether he was

struck with a gun and whether he was called a homophobic slur, among other

things. By asking these questions, defense trial counsel opened the door to

clarification as to what Henderson told the officers in the ambulance and at the
 25

hospital. Therefore, the government could properly introduce Henderson’s

statements to help the jury determine whether—and to what extent—the statements

were inconsistent. See Coltrane, 418 F.2d at 1140.

Finally, if there was error in the admission of these statements, any error was

harmless. This court will affirm a non-constitutional error if “we can say, ‘with

fair assurance, after pondering all that happened without stripping the [allegedly]

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

by the error.’” Clark v. United States, 639 A.2d 76, 84 (D.C. 1994) (quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Here, the statements at

issue were not admitted for their truth, but rather because Henderson’s credibility

with respect to the statements had been called into question. Indeed, the trial judge

instructed the jury that if they found the statements were consistent with

Henderson’s statements at trial, the jury could consider the consistency in judging

the credibility of Henderson, not for the truth of the statements. 10 Consequently,

the trial judge did not abuse his discretion in admitting these statements, and we

10
Not only were the statements in issue not admitted for the truth but for the
jury to assess Henderson’s credibility, but his statements on the video were
statements that the jury had previously heard, first through his own testimony and
then through Frazier’s testimony recounting the night’s events. Henderson had also
stated in his two 911 calls, both of which were admitted into evidence, that he had
been pistol-whipped.
 26

are satisfied that their admission in evidence did not substantially sway the

judgment.

2. Ahmed’s Texts

Appellant also claims the trial court abused its discretion in admitting a

December 17, 2016, text from Ahmed to Henderson. At trial, the government

devoted a significant amount of time presenting evidence to develop the context

for the conspiracy between appellant and the other alleged co-conspirators, both

through witness testimony and documentary evidence. The government elicited

testimony from Henderson about the nature of his relationship with Ahmed leading

up to the January 5, 2017, incident. Henderson stated that in December 2016,

Ahmed had “started to get more aggressive and more demanding” in response to

Henderson’s request that she leave his apartment, and he said that “it just became a

real distorted relationship after that.”

It was at that point that the government introduced a text message from

Ahmed to Henderson on December 17, 2016. The text message read:

U got shit f****d up “gangsta” just cuz i dont jump when
u say jump don’t mean I dont respect u! What I dont
respect is bullshit and demands!! U cant demand
 27

anything from me! Nothing!! UND. OVERSTAND me??
Is Larry urhearts desire? He is cool! Respectful, chill,
conversationalist, etc..etc.. by the way… im the
“gangsta” in this family!!!!!

Before trial, appellant objected to the admission of these statements, arguing

that they could not come in as co-conspirator’s statements because they were made

weeks prior to the formation of the alleged conspiracy and the texts were not

relevant. The government responded that the texts were not being offered for their

truth but for context regarding Ahmed’s animosity towards Henderson. The trial

court denied appellant’s motion to exclude the texts, recognizing that evidence of a

conspiracy usually is found after the conspiracy has formed, but noting that “in this

case the contextual corroboration is in the events that occur prior to the formation

of the conspiracy.”

“A trial court has broad discretion to make evidentiary rulings because of its

familiarity with the details of the case and expertise in evidentiary matters, and we

review that ruling for abuse of discretion.” (Troy) Richardson v. United States, 98

A.3d 178, 186 (D.C. 2014). In (William) Johnson v. United States, 683 A.2d

1087, 1099-1100 (D.C. 1996) (en banc), this court adopted Federal Rule 403 which

provides: “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair
 28

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Rule 403 “essentially presumes the

admissibility of relevant evidence, 11 and “[t]he trial court enjoys particularly broad

discretion in determining the relevance of a piece of evidence because the inquiry

is fact-specific and proceeds under a flexible standard.” (Troy) Richardson, 98

A.3d at 186. Evidence is relevant if it “tend[s] to make the existence or

nonexistence of a fact more or less probable than would be the case without that

evidence.” In re L.C., 92 A.3d 290, 297 (D.C. 2014). “The test for relevance is

not a particularly stringent one.” Street v. United States, 602 A.2d 141, 143 (D.C.

1992).

The trial court did not abuse its discretion in admitting Ahmed’s December

17th text to Henderson. The prosecution requested that the statements come in for

context, not for the truth of the matter asserted. Ahmed’s text was relevant in that

it gave context to the relationship between Ahmed and Henderson, which was

relevant to the government’s theory that Ahmed’s and Henderson’s relationship

deteriorated to the point that, on January 5, 2017, Ahmed sought revenge and

violence against Henderson, not just to retrieve her belongings. The prosecution

11
See FITZPATRICK, ET AL., supra note 9, § 403.01(2), Editorial
Commentary, p. 4-144.
 29

discussed the formation and deterioration of their relationship in their opening

statements and throughout trial. The prosecution portrayed Ahmed as

manipulative of Henderson, while the defense portrayed Henderson as the

manipulator. The text supported the government’s theory that Ahmed was trying

to control Henderson and to continue selling drugs out of his apartment and that

she was aggressive when Henderson was not heeding her commands.

Furthermore, contrary to appellant’s argument on appeal, the text was not

unfairly prejudicial to him. Although the text used the word “gangsta,” the

purpose of introducing the text was to show Ahmed’s attempt to control Henderson

and her animosity towards him, not for the truth of the statements themselves or to

show that Ahmed was literally a “gangsta.” Additionally, although appellant was

Ahmed’s coconspirator, the text does not indicate that he was a “gangsta” or that

he was involved in the drug dealing that occurred out of Henderson’s apartment.

The trial judge did not abuse his discretion in admitting the text message.

Finally, if any error occurred in admitting these statements, it was harmless.

There was ample evidence in the record of Ahmed’s animosity towards Henderson.

Ahmed texted Henderson asking whether she should send “Rochelle or India or my

Protector!!! Or are we gonna get it right the first time?” Henderson interpreted
 30

“Protector” as meaning that Ahmed was referring to someone who would retrieve

her property by force or “any means necessary.” When Ahmed called appellant,

she told him that she needed him to do something for her and directed appellant to

meet her on Taylor Street and “to bring his friend,” meaning a knife or a gun.

When Ahmed arrived at Henderson’s apartment while the incident was ongoing,

she whispered to Henderson, “[Y]ou thought you got away with it, you thought I

wasn’t gonna get my stuff,” and, “[Y]ou got my nephew locked up and you got my

friend locked up.” Ahmed also told appellant to “[b]eat [Henderson] up, but don’t

shoot him.” Although the text was helpful in giving context to Ahmed and

Henderson’s relationship and Ahmed’s animosity towards Henderson, it was not a

crucial piece of evidence in establishing the conspiracy.

D. Merger

Lastly, appellant argues his unlawful entry conviction should have merged

with his burglary conviction. Appellant asks that if his burglary conviction is not

vacated, the unlawful entry conviction be vacated. The government does not

oppose this request.
 31

The jury found appellant guilty of both first degree burglary and unlawful

entry. The trial judge stated at sentencing that he believed the unlawful entry

conviction should merge with the burglary conviction. The trial court imposed a

sentence with the expectation that the unlawful entry conviction would merge with

the burglary conviction on appeal, if the burglary conviction was not reversed.

Because we are not reversing the burglary conviction, the unlawful entry

conviction will be vacated. Appellant’s remaining convictions are affirmed.

III. Conclusion

For the foregoing reasons, the trial court’s judgment is affirmed in part and

vacated in part.

So ordered.