Bailey v. United States ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 17-CF-1204 & 21-CO-89
STEVEN M. BAILEY, APPELLANT
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF3-3986-16)
(Hon. Marisa J. Demeo, Trial Judge)
(Submitted December 2, 2019 Decided August 19, 2021)
Mindy Daniels was on the brief for appellant.
Jessie K. Liu, United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Chrisellen R. Kolb, Rizwan Qureshi, and Bryan H. Han,
Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN, THOMPSON, and EASTERLY, Associate Judges.
Opinion for the court by Associate Judge EASTERLY.
Opinion by Associate Judge GLICKMAN, pursuant to Part II.D., at page 25.
Opinion by Associate Judge THOMPSON, pursuant to Part II.D. and dissenting
from Part II.B., at page 35.
2
Opinion by Associate Judge EASTERLY, dissenting from Part II.D., at page 41.
EASTERLY, Associate Judge: Appellant Steven Bailey was convicted of one
count of conspiracy to commit a crime of violence (robbery), one count of robbery
with a sentence enhancement for being armed or having a dangerous weapon readily
available, two counts of assault with a dangerous weapon (“ADW”), and three
counts of possession of a firearm during a crime of violence (“PFCV”). On appeal,
he challenges the sufficiency of the evidence to support all of his convictions and
also argues certain of his convictions should be merged. For the reasons set forth in
Part II.B., a majority of the division reverses Mr. Bailey’s conviction for conspiracy
to commit a crime of violence and remands with instructions to enter in its place a
judgment of guilt for conspiracy to commit a nonviolent criminal offense. For the
reasons set forth in Part II.C., the division unanimously reverses Mr. Bailey’s
convictions for ADW and PFCV and the “while armed” sentencing enhancement of
his robbery conviction. And as noted in Part II.D., for the reasons set forth in the
separate opinions of two members of the division, the division affirms Mr. Bailey’s
conviction for robbery. Given this resolution, we need not address Mr. Bailey’s
merger arguments.
3
I. Facts and Procedural History
The government’s first attempt to convict Mr. Bailey ended with a mistrial
when the jury was unable to reach a verdict. The factual narrative below is based on
the testimony and evidence presented at Mr. Bailey’s retrial.
Mr. Bailey initially made contact with complainant Rashida Reid through
OfferUp, a mobile device app that connects buyers and sellers. Ms. Reid was selling
a limited commodity item, a pair of Nike Air Jordan 11 basketball shoes, that Mr.
Bailey expressed an interest in purchasing for $325. They arranged to meet in the
early afternoon at a location in a residential area of southeast D.C. selected by Mr.
Bailey. Ms. Reid drove to the meeting place with her friend, Alexus Jones. While
she drove, Ms. Reid talked to Mr. Bailey on the phone, and when she reached the
location she could see him speaking to her. Mr. Bailey was standing with two other
men—Mr. Bailey’s brother, Zackary Jackson, and a third man who was never
identified. After Mr. Bailey’s phone call with Ms. Reid ended, Mr. Bailey turned to
talk to one of the other men, 1 pulled money out of his pocket, and gestured toward
Ms. Reid as if he did not have enough money to pay her. (Ms. Jones recalled that
1
Ms. Reid testified that this was the unidentified man, whereas Ms. Jones
testified that this was Mr. Jackson.
4
she heard Mr. Bailey say aloud, “I need the money.”) Mr. Bailey and the man he
was speaking to “exchanged” something that both Ms. Reid and Ms. Jones thought
“was money,” and Mr. Bailey “placed it in his back pocket.”
Mr. Bailey walked up to the driver side of Ms. Reid’s car, and he and Ms.
Reid spoke through the rolled down window. Ms. Reid testified that Mr. Bailey
“calm[ly]” asked to see the shoes to confirm they were authentic, while Ms. Jones
testified that Ms. Reid offered to show him the shoes. Ms. Reid placed the
matchbox-design shoebox in her lap and removed its outer sleeve. According to Ms.
Reid, Mr. Bailey observed the shoes “[f]or about a second or two” and told her they
looked real. Then, in an “almost simultaneous” exchange, he “snatche[d] the box”
from Ms. Reid and “thr[ew] the money on to [her] lap.” 2 He “walk[ed] off pretty
fast,” with the shoes in the box, but without the sleeve, and did not return. 3
2
Ms. Reid saw Mr. Bailey pull the money from his back pocket.
3
Ms. Jones corroborated that Ms. Reid had displayed the shoes to Mr. Bailey,
but her narrative differed in that she recalled that Mr. Bailey and Ms. Reid had then
briefly discussed the price. Ms. Jones also described a quick exchange in which Ms.
Reid “lifted the box,” Mr. Bailey “grabb[ed] it to take it” from Ms. Reid, and “he
then dropped the money in [Ms. Reid’s] lap.” Ms. Jones further recalled that Ms.
Reid had then called out to ask whether Mr. Bailey wanted the sleeve, and that Mr.
Bailey had returned to the car to retrieve it and walked away again.
5
The money Mr. Bailey gave Ms. Reid as payment was counterfeit. According
to the government’s expert, the quality was “good”; to “an individual who is not
trained to know what to look for,” the bills would have “appear[ed] as though[] they
[we]re genuine.” But as it happened, Ms. Reid and Ms. Jones had the requisite
training, both having worked as revenue auditors for a casino. According to Ms.
Reid, she immediately realized that the money was “fake.” 4
Ms. Reid called out to Mr. Bailey that the money was fake. Mr. Bailey, who
by this time was some distance from the car, responded that the money was not fake
and continued to walk away while Ms. Reid drove slowly after him. According to
Ms. Reid, Mr. Bailey and the two other men “started saying ‘roll out,’” which she
understood as a directive to her and Ms. Jones to “leave.” Although Ms. Jones only
recalled hearing the two other men yell “roll out,” she also interpreted this as the
men “telling [the women] that [they] needed to leave.” Both women observed Mr.
Bailey walking faster than the other two men such that they were behind him, Ms.
Jones estimated, by a distance that expanded from six feet to ten-to-twelve feet. Ms.
Reid then saw the unidentified man, who had stopped walking and was “just
4
Ms. Jones testified, however, that Ms. Reid first asked her if she thought the
money was fake. Ms. Jones initially rejected that possibility, but after feeling the
thickness of the money and holding “a few of the 20s up to the light to see if the
money line was there,” she determined that it was in fact counterfeit.
6
stand[ing]” and looking at her. The man was moving his hand in his pocket, which
Ms. Reid interpreted as a threatening message to her that he had a gun. Ms. Reid
decided that continuing to follow the men was “not worth it.” As Ms. Reid turned
the corner to drive away, Ms. Jones looked through the back windshield and saw the
unidentified man step behind their car, pull a silver gun from his waistline, and point
it at them. Ms. Jones explained that at this point Mr. Bailey was ahead of the car on
the left side while the two other men were behind the car. Ms. Jones yelled “gun,”
and, although Ms. Reid did not see the gun herself, she “floored it” to get away.
Ms. Reid and Ms. Jones immediately reported the incident to police officers
they encountered down the street. A few days later, the Gun Recovery Unit of the
Metropolitan Police Department encountered a group of young men including Mr.
Jackson. When he tried to run away, the police chased and caught him. The police
recovered a silver revolver in the vicinity of his flight path, prompting his arrest. 5
Pursuant to his arrest, the police seized Mr. Jackson’s cell phone, from which they
extracted a group text chat between Mr. Bailey, Mr. Jackson, and several other
5
Although the jury heard testimony that Mr. Jackson was arrested for gun
possession, the government told the jury in closing that the government “would not
ask [it] to reach a conclusion that [the revolver that was found on Mr. Jackson was]
the exact same gun” that the unidentified man pointed at Ms. Reid and Ms. Jones,
because the government “ha[d not] presented . . . any evidence of that” and “c[ould
not] prove that.”
7
individuals. In the days leading up to his encounter with Ms. Reid, Mr. Bailey and
his friends expressed their desire to buy Jordan 11 shoes, either by getting lottery
tickets allowing them to purchase the shoes from a retail store or by buying the shoes
from “a plug,” i.e., “a person who can get you what you want.” On the morning of
the incident, after Mr. Bailey had arranged his meeting with Ms. Reid through
OfferUp, he told the text group, “I am about to meet the bitch for mines. I am going
to jug her sweet ass.” 6 Another member of the chat responded that the seller would
“tell [the police]” what Mr. Bailey looked like. Mr. Bailey concluded the exchange
with a profanity. Later that day, Mr. Bailey sent to the text group a picture of the
Jordan 11 shoes with the caption, “Gang shit . . . .”
After hearing this evidence, the jury at Mr. Bailey’s second trial found him
guilty of one count of conspiracy to commit robbery, one count of robbery while
armed, two counts of assault with a dangerous weapon, and three counts of
possession of a firearm during a crime of violence. This appeal followed.
6
The detective who described the texts in court testified that “jug” meant “to
get somebody, to rob somebody . . . from [his] experience” as a law enforcement
officer and from “growing up in DC.”
8
Mr. Bailey subsequently moved in the trial court for compassionate release.
See D.C. Code § 24-403.04 (2012 Repl. & 2021 Supp.). The trial court issued an
indicative order pursuant to Superior Court Rule of Criminal Procedure 37, stating
its intent to grant the motion upon remand from this court. We remanded the case
on Mr. Bailey’s unopposed motion, whereupon the trial court altered Mr. Bailey’s
sentence, and Mr. Bailey filed a new notice of appeal and moved to reinstate this
appeal. We granted the motion and consolidated the appeals.
II. Analysis
The government argued at trial that Mr. Bailey did “more than commit[] a
robbery”; “[h]e conspired to commit a robbery while armed.” And because he was
a member of such a conspiracy, he was criminally liable for the reasonably
foreseeable weapon-related offenses of his co-conspirators. Analyzing Mr. Bailey’s
challenge to the sufficiency of the evidence to support these convictions, we
conclude that the government only proved beyond a reasonable doubt Mr. Bailey’s
guilt of (1) conspiracy to commit theft by deception and (2) robbery.
9
A. Standard of Review
“We review the sufficiency of the evidence de novo, viewing the evidence in
the light most favorable to sustaining the judgment, and making no distinction
between direct and circumstantial evidence.” Fitzgerald v. United States, 228 A.3d
429, 436 (D.C. 2020) (citations, brackets, and internal quotation marks omitted).
When the evidence, viewed in this manner, “is such that a reasonable juror must have
a reasonable doubt as to the existence of any of the essential elements of the crime,
then the evidence is insufficient and we must say so.” Williams v. United States,
113 A.3d 554, 560 (D.C. 2015) (internal quotation marks omitted).
Although “the government’s evidence need not negate every possible
inference of innocence to support a guilty verdict,” Campos-Alvarez v. United States,
16 A.3d 954, 964 (D.C. 2011), “[t]he evidence must support an inference, rather than
mere speculation, as to each element of an offense.” Lewis v. United States, 767
A.2d 219, 222 (D.C. 2001) (internal quotation marks omitted); see also Rivas v.
United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (“[W]hile a jury is entitled
to draw a vast range of reasonable inferences from evidence, it may not base a verdict
on mere speculation.” (brackets and internal quotation marks omitted)); Williams,
113 A.3d at 560 (evidence is insufficient “if, in order to convict, the jury is required
10
to cross the bounds of permissible inference and enter the forbidden territory of
conjecture and speculation” (internal quotation marks omitted)). Relatedly, “slight
evidence is not sufficient evidence,” and “a mere modicum cannot rationally support
a conviction beyond a reasonable doubt.” Russell v. United States, 65 A.3d 1172,
1176 (D.C. 2013) (brackets and internal quotation marks omitted).
B. The Conviction for Conspiracy to Commit a Crime of Violence (Robbery)
Mr. Bailey does not contest that he sought to illegally obtain a pair of Jordan
11s from Ms. Reid by purchasing them with counterfeit money. He argues, however,
that the evidence establishing this conduct is not legally sufficient to support his
conviction for conspiracy to commit a crime of violence, D.C. Code § 22-
1805a(a)(2) (2012 Repl. & 2021 Supp.); § 23-1331(4) (2012 Repl. & 2021 Supp.),
specifically robbery, D.C. Code § 22-2801 (2012 Repl. & 2021 Supp.), or robbery
while armed, D.C. Code § 22-2801; § 22-4502(a) (2012 Repl. & 2021 Supp.). We
agree.
11
1. Insufficiency
“To establish the existence of a conspiracy, the government must prove (1) an
agreement between two or more persons to commit a criminal offense; (2) knowing
participation in that agreement with intent to commit the criminal objective; and (3)
during the life of the conspiracy, and in furtherance of its objective, the commission
by at least one conspirator of at least one of the overt acts specified in the
indictment.” Harrison v. United States, 76 A.3d 826, 842 (D.C. 2013) (internal
quotation marks omitted). “The formation of a conspiracy to rob does not
necessarily require agreement either as to the means of committing the robbery, or
as to the particular person to be robbed.” Collins v. United States, 73 A.3d 974, 983
(D.C. 2013) (internal quotation marks omitted). But the formation of a conspiracy
to rob certainly does require an agreement to actually rob another person. See id.(allowing for some “room for improvisation or refinement of details so long as [the
conspirators] have agreed upon their fundamental goal”); see also 2 Wayne R.
LaFave, Substantive Criminal Law § 12.2(c)(2) n.112 (3d ed. 2017) (noting that the
intent for conspiracy “need not be so particular that the conspirator has in mind a
particular time, place, victim, etc., but at least must relate to a particular type of
criminal activity”). Without conceding that the record contains evidence of any sort
of conspiracy, Mr. Bailey argues that there is insufficient evidence of an agreement
12
to commit a robbery, which, beyond requiring proof that property was wrongfully
obtained (also an element of the crime of theft 7), requires that the defendant execute
such a taking by specific and more culpable means: “by force or violence, whether
against resistance or by sudden or stealthy seizure or snatching, or by putting [the
victim] in fear.” 8
To determine if there was a plan to rob Ms. Reid of the Jordan 11s, we look
first to the government’s evidence of Mr. Bailey’s text exchanges prior to his
meeting with Ms. Reid. Mr. Bailey sent his texts to a group of people that included
at least one of the two men who was with Mr. Bailey on the date of the incident—
his brother Mr. Jackson. (Because the second man, the one who displayed a weapon,
was never identified, it is unknown if he was part of the group text.) In his texts,
Mr. Bailey expressed interest in obtaining a pair of Jordan 11s, informed the group
that he had set up a meeting with an individual who was selling them, and announced
7
See D.C. Code § 22-3211(a) (2012 Repl. & 2021 Supp.) (defining the
“wrongfully obtains or uses” element of the crime of theft to include “(1) taking or
exercising control over property[] . . . or (3) obtaining property by trick, false
pretense, false token, tampering, or deception”).
8
D.C. Code § 22-2801; see also Gray v. United States, 155 A.3d 377, 382
(D.C. 2017) (explaining that “[p]roof of robbery requires proof of the elements of
theft plus several aggravating circumstances,” including that the taking be
“accomplished using force or violence” as defined by the statute (internal quotation
marks omitted)).
13
his intention to “jug” her. The government further presented evidence from a
detective that, in his personal experience, he understood the word “jug” to mean
“rob.” But this one individual’s testimony of his personal understanding of a slang
term alone does not constitute sufficient proof that Mr. Bailey intended to engage in
the crime of robbery as defined by the D.C. Code and this court. 9 The word “rob”
itself has a number of meanings and in common parlance may be used
interchangeably with “steal.” 10 Nothing about the context in which Mr. Bailey used
the word “jug” shed light on the meaning he intended. It was clear he intended to
obtain the shoes by breaking the law—prompting one of the members of the text
group to tease that the seller would note a distinctive feature of his appearance and
report him to the police—but he was nonspecific as to how he would do so.
Additionally, the text communications from Mr. Bailey neither invited or resulted in
offers of assistance nor provided any particular details of the time or location of Mr.
9
See United States v. McGill, 487 F.2d 1208, 1209–10 (D.C. Cir. 1973)
(holding that evidence was insufficient to convict defendant of robbery based only
on complainant’s report to the police that he had been “robbed,” where the
government proved that the complainant had a sum of money and other packages in
his possession and that the defendant held him up at gunpoint and searched his
pockets, but presented no evidence that the defendant actually took any of the
complainant’s possessions).
10
See Rob, Webster’s Third New International Dictionary (3d ed. 2002)
(defining “rob” to mean not only “to take something away from (a person) by force,”
but also to “steal from” or “deprive of something due”).
14
Bailey’s meeting with the prospective buyer to facilitate such assistance. 11 In short,
the texts admitted at trial support only a conclusion that Mr. Bailey intended to
engage in some form of criminal activity, alone, to obtain the shoes.
The lack of an express or inferable agreement to commit a robbery in Mr.
Bailey’s text exchange with other individuals prior to his encounter with Ms. Reid
is not dispositive. “[A] jury may infer the existence of an agreement from the
participants’ actions, including the conduct of defendants in mutually carrying out a
common illegal purpose[] [and] the nature of the act done . . . .” Collins, 73 A.3d at
982 (brackets, citations, and internal quotation marks omitted). Thus we examine
what actually transpired when Mr. Bailey met Ms. Reid to make the arranged
purchase.
11
The government highlights that Mr. Bailey sent a photograph of the shoes
to the group text after the fact, with the caption, “gang shit . . .” and notes the
detective’s testimony that a “gang” is “[a] group of people . . . that get together to
commit crimes.” Be that as it may, there is no indication that Mr. Bailey was using
the word “gang” to refer to the people in the text group, much less that he was
implicating them in a criminal association to commit robberies. The government did
not otherwise present evidence of membership in such a “gang.” In light of this, we
agree with Mr. Bailey that it would be speculative to conclude that Mr. Bailey’s use
of the words “gang shit” in a text is evidence that he conspired to commit a robbery
with gang members; instead, it appears “gang shit” was simply a descriptor of the
shoes which Mr. Bailey was showing off to the group text.
15
Just prior to the purchase, Mr. Bailey was in the company of Mr. Jackson and
the unidentified man. At Mr. Bailey’s request, one of the men gave Mr. Bailey
something that appeared to be money, Mr. Bailey put that money in his back pocket,
and he retrieved the counterfeit money from that same location when he paid Ms.
Reid. This counterfeit money was “good” fake money, apparently meant to deceive
the seller and induce a voluntary sale. 12 And he made the exchange of money for
shoes quickly, giving himself more time to get away before Ms. Reid could examine
the money closely. The jury could reasonably infer from this evidence that one of
Mr. Bailey’s companions provided him with some or all of the counterfeit money,
and that Mr. Bailey, having already indicated a willingness in the group text to break
the law, knew the money was counterfeit. But because the only agreement that can
be discerned from this evidence beyond a reasonable doubt was one for Mr. Bailey
to use counterfeit money to engage in a fraudulent purchase of the Jordan 11s, the
only conspiracy it sufficiently supports is a conspiracy to commit the crime of theft
by deception. See Gray, 155 A.3d at 381 (explaining “it is well-established that
second-degree theft is a lesser included offense of robbery”).
12
Even though both women had the training to identify counterfeit bills, Ms.
Jones did not initially perceive the money to be fake, and had to touch it and hold it
up to the light to discern that it was counterfeit.
16
The government argues, however, that the record is sufficient to establish that
Mr. Bailey conspired to rob Ms. Reid, because of the precise manner in which he
took possession of the shoes and because of the actions taken by Mr. Bailey and his
companions as they left the scene. We are unpersuaded that the evidence of this
conduct proves beyond a reasonable doubt an agreement between Mr. Bailey and his
companions to rob Ms. Reid.
Directing our attention to Ms. Reid’s testimony that Mr. Bailey “snatched”
the shoebox from her lap, the government cites to our case law stating that “[t]o
satisfy the force requirement in a charge of robbery by stealthy seizure, the
government need only demonstrate the actual physical taking of the property from
the person of another . . . .” Leak v. United States, 757 A.2d 739, 742 (D.C. 2000)
(internal quotation marks omitted). The testimony regarding Mr. Bailey’s act of
“snatching” may constitute evidence that Mr. Bailey robbed Ms. Reid. See Post at
25–35; but see Post at 41–48. But “the crime of conspiracy to commit robbery”
requires proof that “two or more persons formed an agreement to commit a robbery.”
Pearsall v. United States, 812 A.2d 953, 960 (D.C. 2002) (emphasis added). There
is insufficient basis on this record for a reasonable fact-finder to conclude beyond a
reasonable doubt that Mr. Bailey’s “snatching” was not a unilateral, spontaneous
action, but rather part of an agreed upon plan with others to use force (“to commit a
17
crime of violence,” D.C. Code § 22-1805a(a)(2)), particularly when this act of
“snatching” was immediately preceded by the exchange of counterfeit money
between Mr. Bailey and one of his companions and immediately followed by Mr.
Bailey’s act of throwing this counterfeit money onto Ms. Reid’s lap. Cf. Collins, 73
A.3d at 983 (“[C]onspirators may leave room for improvisation or refinement of
details so long as they have agreed upon their fundamental goal” (emphasis added)).
The government also highlights the fact that, after Ms. Reid realized the
money was counterfeit and called out to Mr. Bailey, Mr. Bailey and his companions
together yelled “roll out” and the unidentified man later displayed a weapon. The
question is whether this evidence supports a conclusion that Mr. Bailey had an
agreement with his companions to take the shoes from Ms. Reid against her will “by
putting [her] in fear.” See supra note 8. For different reasons, we conclude that
neither of the highlighted facts supports this conclusion: the former conduct was
insufficiently threatening and the latter act cannot be attributed to Mr. Bailey.
“To prove the ‘putting in fear’ element [of robbery], the government must
establish” that the defendant engaged in some objectively “menacing conduct . . .
[with the] purposeful design to engender fear in the victim”; the test is “whether the
assailant acted in such a manner as would under the circumstances portend an
18
immediate threat of danger to a person of reasonable sensibility.” Williams, 113
A.3d at 561 (ellipses, brackets, and internal quotation marks omitted). Even viewing
the evidence in the light most favorable to the verdict and attributing the words “roll
out” to all three men, these words did not objectively “portend an immediate threat
of danger.” Id. The two women testified similarly that these words simply
communicated a directive that they should “leave.” These words were not
objectively threatening on their face, and they were uttered as the men themselves
were leaving the scene, undermining an inference that they implied “an immediate
threat of danger.” Id. at 561; cf. id. at 561–64 (concluding the evidence was
insufficient to support robbery where three individuals surrounded the complainant
late at night saying “what, what, what” and the complainant handed over his wallet
out of fear that he was outnumbered and that the three individuals could be armed).
Even if we look to Ms. Jones’s and Ms. Reid’s subjective impressions of the “roll
out” directive as some evidence of an objective threat, Ms. Jones’s description of the
yelling as “a little scary” and Ms. Reid’s unparticularized testimony that she “felt
threatened” “[b]y everyone” do not suffice, especially where Ms. Reid disregarded
the directive to leave, continued to follow Mr. Bailey in her car, and only decided to
depart after she saw the unidentified man, who was some distance behind Mr. Bailey,
make a gesture that she interpreted to mean that he was armed, and then heard Ms.
Jones yell that he had a gun.
19
There is no question that the display of a gun by the unidentified man after the
two women began to follow Mr. Bailey in their car was an objectively threatening
gesture. But the use of a gun to place Ms. Reid and Ms. Jones in fear is not imputable
to Mr. Bailey either (1) as part of the conspiratorial agreement, or, (2) under a
Pinkerton 13 theory of liability, as an act “committed by another co-conspirator in
furtherance of the conspiracy” and “a reasonably foreseeable consequence of the
conspiratorial agreement.” Collins, 73 A.3d at 980 (internal quotation marks
omitted); see also Fitzgerald, 228 A.3d at 439 (acknowledging that “one person’s
possession or use of a weapon in the commission of a crime is not automatically
imputable, under co-conspira[tor] liability, to others involved in the crime”).
As discussed above, there is no evidence from the group chat to indicate that
Mr. Bailey’s agreement with anyone to take the shoes necessarily involved or
contemplated the presence, threat, or use of firearms. Nor is there any evidence prior
to or during his interaction with Ms. Reid that supports a determination that Mr.
Bailey had an agreement with his companions that one of them would use a weapon.
Cf., e.g., Fitzgerald, 228 A.3d at 438–39 (relying on defendant’s instructions to
armed co-conspirator not to do anything to the complainant “yet”); Richardson v.
13
See generally Pinkerton v. United States, 328 U.S. 640, 646–47 (1946);
Wilson-Bey v. United States, 903 A.2d 818, 839–42 (D.C. 2006) (en banc).
20
United States, 116 A.3d 434, 442 (D.C. 2015) (relying on threats by co-conspirator
to “cut” victim spoken in presence of defendant). Instead, the fact that he paid Ms.
Reid with counterfeit money obtained from one of the men and then walked away
without seeking to engage, much less threaten, Ms. Reid or Ms. Jones indicates that
Mr. Bailey was executing an agreed-upon plan to avoid violence or confrontation. 14
Further, there is no evidence in this record that would have rendered the unidentified
man’s possession and use of a weapon reasonably foreseeable to Mr. Bailey so as to
support co-conspirator liability, unless we make the wholly speculative
determination that anyone involved in an exchange of counterfeit money can be
expected to possess a gun. Accordingly, because any nexus between Mr. Bailey and
14
Although the government concedes that “there was no direct evidence of
[Mr. Bailey’s] knowledge” that one of his companions had a firearm, it argues such
knowledge was inferable from circumstantial evidence. We disagree. The
government asserts that Mr. Bailey was unsurprised that the unidentified man
displayed a weapon. But the government did not present any evidence that Mr.
Bailey (who was ahead of Ms. Reid’s car and walking away from her) was ever in a
position to see the unidentified man (who was standing behind Ms. Reid’s car)
gesture with or point the gun at the car, nor for that matter any evidence as to Mr.
Bailey’s demeanor at any point after he took possession of the shoes. The
government also notes that Mr. Jackson was arrested days later for possession of a
“similar firearm,” and asserts the jury could have inferred it was the same gun. But
the government conceded at trial that there is no evidence in the record to support
such an inference. See supra note 5. In any event, the government fails to explain
how Mr. Bailey’s brother’s possession of the unidentified man’s gun on a later date
when Mr. Bailey was not present would support an inference that on the earlier date
of the arranged meeting with Ms. Reid, Mr. Bailey knew that the unidentified man
was armed.
21
the unidentified man’s possession and display of a gun winds through “the forbidden
territory of conjecture and speculation,” Rivas, 783 A.2d at 134, we conclude that
the evidence is insufficient to impute the use of this gun to Mr. Bailey as a co-
conspirator.
Having reviewed evidence of Mr. Bailey’s texts before the shoe purchase, the
transaction itself, and its aftermath, we conclude that the totality of the government’s
evidence is insufficient to support a conclusion that Mr. Bailey formed an agreement
with anyone to take the Jordan 11s from Ms. Reid against her will “by force or
violence,” whether “by sudden or stealthy seizure or snatching” or “by putting [her]
in fear.” Accordingly, we conclude that his conviction for conspiracy to commit a
crime of violence (robbery) cannot stand.
2. Remand
The fact that Mr. Bailey has prevailed on his insufficiency challenge to his
conviction for conspiracy to commit a crime of violence does not necessarily permit
him to evade all conspiratorial liability for his actions. In appropriate cases, this
court possesses authority under D.C. Code § 17-306 (2012 Repl.) to direct the trial
court to enter judgment for lesser included offenses. Robinson v. United States, 100
22
A.3d 95, 110 (D.C. 2014). Exercise of this authority must be “just in the
circumstances,” D.C. Code § 17-306; “[i]t must be clear (1) that the evidence
adduced at trial fails to support one or more elements of the crime of which appellant
was convicted, (2) that such evidence sufficiently sustains all the elements of another
offense, (3) that the latter is a lesser included offense of the former, and (4) that no
undue prejudice will result to the accused.” Allison v. United States, 409 F.2d 445,
451 (D.C. Cir. 1969). Examining these conditions in the present case, we conclude
that it is just and appropriate to remand to the trial court with directions to enter a
judgment of guilty for a lesser included offense of conspiracy, D.C. Code § 22-
1805a(a)(1).
The evidence presented at trial was legally sufficient to convict Mr. Bailey of
conspiracy to commit a nonviolent criminal offense, namely, theft. Although the
jury was not instructed on conspiracy to commit a criminal offense as a lesser
included offense of conspiracy to commit a crime of violence, 15 in finding Mr.
15
Although we have never said as much, we have no trouble discerning that
the crime of conspiracy to commit a criminal offense is a lesser included offense of
conspiracy to commit a crime of violence. Compare D.C. Code § 22-1805a(a)(1)
(“If 2 or more persons conspire . . . to commit a criminal offense . . . .”), with D.C.
Code § 22-1805a(a)(2) (“If 2 or more persons conspire to commit a crime of violence
as defined in § 23-1331(4) . . . .”); see also D.C. Code § 23-1331(4) (enumerating
acts that constitute “crime[s] of violence,” all of which are criminal offenses).
23
Bailey guilty of the latter, the jury necessarily, actually, and permissibly found all of
the elements of the former. See Robinson, 100 A.3d at 111–12. Mr. Bailey has
never conceded the existence of conspiracy of any sort. But he conceded guilt of
theft both in the trial court and on appeal. Further, there is no question he had “full
notice of his potential liability” for the crime of conspiracy to commit theft, nor is
there any “indication that defense presentation would have been altered” had this
lesser offense been charged. Allison, 409 F.2d at 451. Accordingly, we order the
trial court to enter a judgment of guilty for the crime of conspiracy to commit theft.
C. The Weapon-Related Convictions
As the government acknowledged at trial and in its brief, the unidentified
man’s brandishing of the gun supplied the sole predicate for Mr. Bailey’s weapon-
related convictions on a theory of co-conspirator liability. For the reasons discussed
above, see supra Part II.B.1., we conclude that there is insufficient evidence that the
conspiracy with the unidentified man contemplated use of a weapon or that use of a
weapon was reasonably foreseeable to Mr. Bailey. Accordingly, the evidence is
insufficient to support Mr. Bailey’s convictions of ADW, D.C. Code § 22-402 (2012
Repl. & 2021 Supp.), and PFCV, D.C. Code § 22-4504(b) (2012 Repl. & 2021
24
Supp.), and also does not support the sentence enhancement for robbery for being
armed or having a dangerous weapon readily available. D.C. Code § 22-4502(a).
D. Robbery
For the reasons set forth in the separate opinions of Judges Glickman and
Thompson, a majority of the division concludes that the government carried its
burden to prove beyond a reasonable doubt Mr. Bailey’s guilt of the crime of
robbery.
III. Conclusion
For the foregoing reasons, this court reverses Mr. Bailey’s conviction for
conspiracy to commit a crime of violence and remands with instructions to enter in
its place a judgment of guilt for the crime of conspiracy, reverses Mr. Bailey’s
convictions for ADW and PFCV, and affirms Mr. Bailey’s conviction for robbery
but vacates the “while armed” sentencing enhancement.
So ordered.
25
GLICKMAN, Associate Judge, pursuant to Part II.D.: I am of the view that the
evidence was sufficient to support Mr. Bailey’s conviction for robbery based on his
sudden snatching of the shoe box from Ms. Reid’s lap against her will.
To obtain a conviction of Mr. Bailey for robbery, the government needed to
prove he (1) took property of some value, (2) from Ms. Reid’s person or immediate
actual possession, (3) against her will, (4) by force or violence, (5) and carried the
property away, (6) without right and with the intent to steal it. 1 Only two of these
elements are in dispute — whether the taking was accomplished by “force or
violence” and whether the taking was against Ms. Reid’s will. I address each in turn.
“A defendant takes property by force or violence when he or she does so
‘against resistance or by sudden or stealthy seizure or snatching, or by putting in
fear.”’ 2 Thus, by the statute’s express terms, robbery can be committed by a “sudden
. . . seizure or snatching” of property. The statute’s repeated use of the conjunction
“or” makes clear that a sudden seizure or snatching is enough by itself for the taking
to satisfy the “force or violence” element of robbery. There need be no proof that
1
See Gray v. United States, 155 A.3d 377, 382 (D.C. 2017); Johnson v.
United States, 756 A.2d 458, 462 (D.C. 2000); Zanders v. United States, 678 A.2d
556, 563 (D.C. 1996); D.C. Code § 22-2801 (2012 Repl.).
2
Gray, 155 A.3d at 382 (emphases added) (quoting D.C. Code § 22-2801).
26
the taking was also stealthy or against resistance, or that it put the complainant in
fear. There need be proof of no more “force or violence” than proof of a sudden
seizure of property. 3
A reasonable jury in this case certainly could find, beyond a reasonable doubt,
that Mr. Bailey took the shoe box from Ms. Reid by a “sudden . . . seizure or
snatching.” 4 As Ms. Reid described the taking in her testimony, one moment Mr.
Bailey was standing outside Ms. Reid’s car, observing the shoes on her lap through
the window of the closed door on the driver’s side. The next moment, without any
forewarning or permission from Ms. Reid, Mr. Bailey abruptly reached in the
window and, she testified, “snatche[d] the box” off her lap, “thr[ew] the money on
to [her] lap,” and “walk[ed] off pretty fast.” In ordinary usage, to “snatch” means
“to take or grasp abruptly or hastily.” 5 Ms. Reid’s choice of that very word to
describe the taking, along with the surprise she reported feeling when it occurred (“I
was kind of stuck,” she testified, “like what just went on?”), readily enabled the jury
3
See, e.g., Turner v. United States, 16 F.2d 535, 536 (D.C. Cir. 1926)
(explaining that “the requirement for force is satisfied within the sense of the statute
by an actual physical taking of the property from the person of another”).
4
See, e.g., Morales v. United States, 248 A.3d 161, 185 (D.C. 2021)
(“Reversal” for insufficient evidence “is required only ‘where there is no evidence
upon which a reasonable mind could fairly conclude guilt beyond a reasonable
doubt.’” (quoting Harris v. United States, 668 A.2d 839, 841 (D.C. 1995)).
5
Snatch, Webster’s Third New International Dictionary (1993).
27
to find this was a “sudden seizure” and “snatching” of her property. Moreover, Ms.
Reid’s account was corroborated by Ms. Jones, who “also described a quick
exchange in which Ms. Reid ‘lifted the box,’ Mr. Bailey ‘grabb[ed] it to take it’ from
Ms. Reid, and ‘he then dropped the money in [Ms. Reid’s] lap.’” Ante at 4 n.3.
It would be a mistake to contend that the words “sudden or stealthy seizure or
snatching” should be read more narrowly, as encompassing only pickpocketing or
other takings that used stealth or some prior force to avert resistance to the taking.
That contention is untenable. It conflicts with the plain words of the robbery statute,
with the settled judicial understanding of that statute in this jurisdiction, and with the
reason Congress included the “sudden or stealthy seizure or snatching” language in
the statute in the first place.
We are obliged to read § 22-2801 as it is written. 6 That means we must
construe its words “according to their ordinary sense and with the meaning
commonly attributed to them,” 7 and give effect to the statute’s “plain meaning when
6
See Sharps v. United States, 246 A.3d 1141, 1149 (D.C. 2021) (when
interpreting statutes, we “aim . . . to ascertain and give effect to the legislature’s
intent,” which “is to be found in the language [it] has used” (quoting Kornegay v.
United States, 236 A.3d 414, 418 (D.C. 2020), and Peoples Drug Stores, Inc. v.
District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc))).
7
Id. (quoting Peoples Drug Stores, Inc., 470 A.2d at 753).
28
the language is unambiguous and does not produce an absurd result.” 8 Section 22-
2801 is not ambiguous. By its repeated use of the word “or,” the statute treats sudden
seizures and snatchings as forceful or violent takings in their own right, even if they
are neither stealthy nor against resistance. There is nothing absurd about that result,
and we have no warrant for, in effect, reading the word “or” as if it were the word
“and.”
That a sudden seizure or snatching by itself satisfies the force or violence
requirement in § 22-2801 is, in fact, well-settled. In United States v. Long, 9 for
example, the court held that appellant properly was convicted of robbery “by sudden
snatching” — the evidence showed that “as complainant turned to cross the street
appellant snatched his wallet from his back pocket and fled with the wallet’s
contents, some $13.00” — even though he was indicted for robbery “by force or
violence” and he did not use stealth, violence, or intimidation. 10 This court likewise
has repeatedly recognized that a sudden (and non-stealthy) snatching by surprise is
enough to support a robbery charge. 11 And for many years, judges in the District of
8
Id. (quoting Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019)).
9
422 F.2d 712 (D.C. Cir. 1970).
10
Id. at 713, 715.
11
In Pelzer v. United States, 166 A.3d 956 (D.C. 2017), we held the evidence
sufficient to sustain a robbery conviction where appellant “asked [the complainant]
to use his phone, and then grabbed it from his hands and jogged away with it.” Id.29
Columbia routinely have instructed juries in accordance with the standard model
jury instruction that “[t]aking the property by sudden or stealthy seizure, or by
snatching can satisfy the requirement of force or violence [in § 22-2801] if the
defendant used enough force to accomplish the actual physical taking from the
person of” the complainant. 12
This was exactly what Congress intended. When Congress enacted what is
now § 22-2801 in 1901, it “deliberately expanded the common law definition of
at 960. In Bates v. United States, 51 A.3d 501 (D.C. 2012), this court affirmed
robbery convictions based on sudden snatchings in which the perpetrator simply
surprised the complainant, grabbed a purse or tote bag off her shoulder before she
could resist, and fled. Id. at 504–05. Similarly, in Creek v. United States, 324 A.2d
688 (D.C. 1974), the complainant, standing outside her home, was robbed when the
perpetrator “suddenly materialized on the doorstep, pulled her pocketbook from
under her arm,” and immediately fled with it. Id. at 689. There is also Mahoney v.
United States, 243 A.2d 684 (D.C. 1968). In that case, the complainant was
“standing on the corner of 13th and U Streets, N.W., when someone approached
from the rear and snatched the bag of coins from his hand.” Id. at 685. He was “not
touched in any other way other than the snatching of the bag from his hand.” Id.(emphasis in original). The defendant was charged with assault and petit larceny,
but in affirming his convictions, this court expressed “little doubt that Congress
intended that persons who engage in conduct such as appellant was accused of here
should be charged with the crime of robbery.” Id.12
Criminal Jury Instructions for the District of Columbia, No. 4.300
(“Robbery”) (5th ed. 2019); see, e.g., Buskey v. United States, 148 A.3d 1193, 1201
n.7 (D.C. 2016) (“The trial court stated: . . . ‘With respect to the charge of robbery,
. . . the Government must prove beyond a reasonable doubt that the Defendant
personally acted with the intent to take property of another through force and putting
a Complainant in fear or by sudden snatching with the intent to steal the property.’”
(emphasis added)).
30
robbery ‘so as to include an unlawful taking of property from the person of another,
by sudden or stealthy seizure or snatching, without violence or putting in fear, and
with the exercise of only sufficient force to accomplish the actual taking of the
property.’” 13 “[U]nder the common law, the mere taking or snatching of property
from the person of another does not constitute robbery,” whether the snatching is
accomplished by stealth or by surprise. 14 That is because, in either case, “the force
used is not sufficient to overcome or prevent any resistance, or to put the owner in
fear; nor can it be inferred in such case that there was an intention of taking violently
in the face of a resisting force.” 15 Thus, at common law, takings from the person of
another by stealth or surprise, such as typical purse snatchings, were treated as a
13
Noaks v. United States, 486 A.2d 1177, 1179 (D.C. 1985) (quoting Turner,
16 F.2d at 536); accord Neufield v. United States, 118 F.2d 375, 390 (D.C. Cir.
1941).
14
Turner, 16 F.2d at 536. See, e.g., 4 C. Torcia, Wharton’s Criminal Law §
464 (15th ed. Supp. 2020) [hereinafter Wharton] (“The taking of property from the
person of another by stealth, i.e., without force or threatened force, does not
constitute robbery. Thus, the picking of a person’s pocket, using only such force as
is necessary to lift and remove the property from the pocket, is not robbery.”
(footnotes omitted)); id. § 465 (“The taking of property from the person of another
by surprise, as by a sudden snatching, does not constitute robbery. Thus, the sudden
snatching of a purse or other property from a person’s hand is not robbery.”
(footnotes omitted)).
15
Turner, 16 F.2d at 536.
31
species of larceny, not robbery. 16 In the District, however, such “larceny from the
person is classified as robbery.” 17
Judge Easterly agrees that, under the “plain language” of § 22-2801, a taking
from the person of another by a sudden seizure or snatching is a robbery “assuming
all other elements of the crime are present.” Post at 43. She argues, however, that
the evidence in this case was “insufficient to support a robbery based on” a sudden
snatching because the evidence did not support a finding that “Mr. Bailey’s purpose
was to acquire the shoes . . . via a snatching.” Id. (emphasis added). “Instead,”
Judge Easterly contends, “apart from the act itself, all of the evidence indicates that
his purpose was to commit a theft by deception, by paying Ms. Reid with counterfeit
16
See Wharton §§ 464–65; see also 3 Wayne R. LaFave, Substantive
Criminal Law § 20.3(d) (3d ed. 2018). It appears this remains the rule in the majority
of jurisdictions to the present day.
17
Gray, 155 A.3d at 396 (McLeese, J., concurring in part and dissenting in
part); see Carey v. United States, 296 F.2d 422, 427 (D.C. Cir. 1961) (“[S]tatutes
have been passed in many jurisdictions denouncing larceny from the person as an
aggravated form of larceny, and prescribing more severe penalties therefor, although
retaining the name of ‘larceny’ for the aggravated offense. The District Code
contains no such provision, but accomplishes the same purpose by dealing with
larceny from the person under the same classification as common-law robbery.”
(quoting Turner, 16 F.2d at 536)); see also Leak v. United States, 757 A.2d 739,
742–43 (D.C. 2000) (“We have consistently and for many years given a broad
meaning to the term ‘immediate actual possession,’ and have recognized that any
taking from the area encompassed by that term is a robbery — not simply larceny.”
(emphasis added)).
32
money.” Id. This, our colleague concludes, “precludes a determination beyond a
reasonable doubt that Mr. Bailey had the requisite mens rea” to commit the offense
of robbery. 18 Id. at 40.
This novel argument misapprehends the mens rea element of robbery; in
addition, it appears to dismiss the significance of Mr. Bailey’s actual conduct. The
required mental state for robbery is simply the intent (or, as we may prefer to say,
the purpose) to steal. It is conceded that Mr. Bailey had that intent (or purpose) when
he committed a forceful taking within the meaning of the robbery statute by
snatching the shoes from Ms. Reid’s lap. The snatching was not accidental.
Therefore, Mr. Bailey’s supposed purpose to steal only in a certain way — by
deception, or without committing the offense of robbery — is beside the point. It
did not “preclude” his being found guilty of robbery, because whatever Mr. Bailey
may have planned or wanted to do, we have to look at what he actually did. He
indisputably snatched the shoes with the intent/purpose to steal them in that manner.
That was enough to establish the mens rea element of robbery. There is no
justification for considering the evidence as Judge Easterly proposes, “apart from
the act itself.” Id.
18
Judge Easterly also contends there was insufficient evidence that Mr.
Bailey’s “act of snatching the shoes . . . was against Ms. Reid’s will.” I address that
contention separately below.
33
Turning to the second issue in dispute, I also am of the view that a reasonable
jury easily could find beyond a reasonable doubt that Mr. Bailey snatched the shoe
box from Ms. Reid’s lap against her will. According to Ms. Reid, when Mr. Bailey
asked “if he can see the Jordans to make sure that they were authentic,” she did not
hand the shoe box over to him or invite him to take it. Instead, with understandable
caution (as the jury could find), she kept the box on her lap and opened it to “show[]
him the shoes.” At that moment, a reasonable jury could find, Ms. Reid was allowing
Mr. Bailey to do only what he asked to do — to “see” the shoes in order to judge
whether they were genuine, not to handle or take custody of them before he paid for
them. But Mr. Bailey then reached into her car, grabbed the shoe box without asking
for or getting her permission, threw down his counterfeit money to quell any
objections, and hastily departed (without, so far as appears, taking any time actually
to inspect the shoes for authenticity). His haste to leave is telling in itself — a
reasonable jury could infer that it implied Mr. Bailey knew he had taken the shoes
without Ms. Reid’s consent.
Judge Easterly argues there was insufficient evidence of a non-consensual
taking because, in her view, “all of the evidence indicates that Ms. Reid understood
that Mr. Bailey was carrying out the purpose of their pre-planned meeting to
purchase the shoes,” she merely considered Mr. Bailey’s behavior to be “weird,” and
34
she did not object until she discovered the money was counterfeit. Post at 46–47.
But that is not assessing the evidence, as this court must assess it, “in the light most
favorable to sustaining” the jury’s verdict. 19 The fact that Ms. Reid planned and
expected to sell the shoes to Mr. Bailey did not require the jury to find she impliedly
consented to his taking the shoes from her possession when he did, which was before
she could inspect his payment and verify it was what she had agreed to accept. From
all the circumstances (including Ms. Reid’s testimony that she “was kind of stuck
like what just went on?”), a rational jury could have found that Mr. Bailey grabbed
the shoe box before she was willing to relinquish possession; that Ms. Reid simply
was too surprised or shocked by Mr. Bailey’s behavior to resist it or object to it
immediately; and that his ruse lulled her into acquiescing in what he had done.
Timing and sequence are important. Mr. Bailey would not have committed a
robbery if he had taken the shoes after Ms. Reid consented, even if he obtained her
consent by trickery or deception. That would be theft by deception, not robbery 20
19
Davis v. United States, 834 A.2d 861, 866 (D.C. 2003).
20
See Criminal Jury Instructions for the District of Columbia, No. 5.300
(“Theft”) (5th ed. 2019) (suggesting that a taking by “deception” is distinct from a
taking “against the will,” given that they are treated as distinct ways of “wrongfully
obtain[ing] the property of another”); cf. Cash v. United States, 700 A.2d 1208, 1211
(D.C. 1997) (upholding conviction for theft by deception where a reasonable jury
could find that the complainant “would not have given” her property to the appellant
“had it not been for his deception”).
35
(unless he thereafter used force or intimidation to prevent Ms. Reid from recovering
the shoes after she discovered the ruse 21). But that is not what the evidence shows
happened here. Mr. Bailey took the shoes first, when it was still against Ms. Reid’s
will for him to do so. So the jury reasonably could find.
THOMPSON, Associate Judge, pursuant to Part II.D. and dissenting from Part
II.B.: Viewing the evidence in the light most favorable to sustaining the robbery and
conspiracy-to-rob convictions, as we are obligated to do, I believe the evidence was
sufficient to support both of these convictions. I focus on the testimony about what
occurred during the asportation phase of what occurred, i.e. during Mr. Bailey’s
effort to carry away the shoes he had snatched from Ms. Reid.
Robbery may be proven by evidence that a defendant, “by force or violence
. . . or by putting in fear, . . . [took] from the person or immediate actual possession
of another anything of value.” D.C. Code § 22-2801. Our case law establishes that
the requisite elements of robbery include “(1) a felonious taking, (2) accompanied
by an asportation [or carrying away].” Williams v. United States, 113 A.3d 554, 560
21
See, e.g., Pleasant-Bey v. United States, 988 A.2d 496, 504 (D.C. 2010);
Jacobs v. United States, 861 A.2d 15, 17–18, 19–20 (D.C. 2004) (per curiam),
recalled, vacated, and reissued, 886 A.2d 510 (D.C. 2005).
36
(D.C. 2015). “[S]o long as the essential ingredient of asportation continues, the
crime of robbery is still in progress.” Castillo-Campos v. United States, 987 A.2d
476, 491 (D.C. 2010) (quoting Carter v. United States, 223 F.2d 332, 334 (D.C. Cir.
1955); see also People v. Cooper, 811 P.2d 742, 748 n. 8 (Cal. 1991) (“[M]ere theft
becomes robbery if the perpetrator resorts to force or fear while carrying away the
loot.”). “To prove the ‘putting in fear’ element [of robbery], the government must
establish” that the defendant engaged in some objectively “menacing conduct . . .
[with the] purposeful design to engender fear in the victim”; the test is “whether the
assailant acted in such a manner as would under the circumstances portend an
immediate threat of danger to a person of reasonable sensibility.” Williams, 113
A.3d at 561 (ellipses, brackets, and internal quotation marks omitted).
In this case, according to the testimony of Ms. Reid and her companion Ms.
Jones, after snatching the box of shoes Ms. Reid was selling, throwing money into
Ms. Reid’s lap, and then hearing her protest that the money was fake, Mr. Bailey
shouted to her to “roll out.” The two men who were with Mr. Bailey likewise
“simultaneously” began shouting “roll out.” Ms. Reid testified that she left the area
because she “felt threatened by everyone [i.e., all the men].” Ms. Jones testified that
the men’s yelling was “a little scary”; Jones was “a little afraid” because of what the
men yelled. No wonder, because (especially when viewed in the light most favorable
37
to sustaining the robbery conviction) the words “roll out” were an implied threat. 1 I
have no trouble concluding that this was evidence that permitted the jury to find that
Mr. Bailey and the men acting with him placed the two women in fear in order for
Mr. Bailey to retain and accomplish asportation of the shoes. 2 The evidence thus
sufficed for the jury to find Mr. Bailey guilty of robbery.
My colleagues note that Ms. Reid continued to follow Mr. Bailey for a while
after he yelled, “roll out.” They reason from this that Ms. Reid did not perceive Mr.
Bailey’s words as a threat and that his conduct was insufficiently threatening to
support a robbery finding. But, as they recognize, the test of whether words or
conduct are enough to place another person in fear is an objective one. That Ms.
1
Reported cases describe commands to “roll out” followed by violence when
the victim did not move quickly enough. See, e.g., Solis v. Fresno Cty. Sheriff’s
Dep’t, No. 1:20-cv-00048-EPG (PC), 2020 U.S. Dist. LEXIS 173977, at *3, 4, 9
(E.D. Cal. Sept. 22, 2020) (recounting allegation that plaintiff pre-trial detainee was
“threatened by inmates, who told him to ‘roll out’”; noting that plaintiff was jumped
and beaten by numerous inmates when he did not comply with that command);
Commw. v. Arnold, No. 3660 EDA 2016, 2018 Pa. Super. Unpub. LEXIS 488, at *1-
2 (Pa. Super. Ct. Feb. 15, 2018) (recounting that defendant shouted to victim to
“[r]oll out” before shooting victim); cf. Gray v. United States, 155 A.3d 377, 387
(D.C. 2017) (recognizing that a defendant’s command to a waitress “not to look at
him” as he reached over a counter to a cash register was an implied threat).
2
Cf. Jacobs v. United States, 861 A.2d 15, 22 (D.C. 2004) (agreeing that if
“the use of force enables the accused to retain possession of the property in the face
of immediate resistance from the victim, then the taking is properly considered
a robbery”), vacated and reissued, 886 A.2d 510 (D.C. 2005).
38
Reid continued to follow Mr. Bailey for a while perhaps shows that Ms. Reid is
particularly brave or streetwise. (Indeed, I draw that inference from the evidence of
Ms. Reid’s willingness to meet a stranger at a location he designated to sell him a
pair of what the case law suggests are oft-stolen athletic shoes.) But that fact does
nothing to undermine an inference that Mr. Bailey’s and the other men’s words –
demands that Ms. Reid “roll out” after she protested that Mr. Bailey gave her
counterfeit money for the shoes he had grabbed from her – were objectively
threatening and would cause a person of reasonable sensibility to feel threatened and
in danger of immediate bodily injury if she persisted in protesting or tried to recover
the shoes. 3 Nor does the fact that Ms. Reid and Ms. Jones were inside a vehicle
when the “roll out” commands uttered mean that the words were insufficiently
threating to render the taking a robbery. To be sure, “[t]he apparent present ability
of a defendant to accomplish a threatened harm is a key component of an inquiry
into whether the defendant’s actions would “portend an immediate threat of danger
to a person of reasonable sensibility,” Parks v. United States, 627 A.2d 1, 5–6 (D.C.
3
See Seaton v. Commw., 595 S.E.2d 9, 14 (Va. Ct. App. 2004) (“[A] brave
victim maintains her fortitude [and may stand her ground] despite intimidation – but
it is intimidation nonetheless.”).
39
1993), but, unfortunately, the case law provides many examples of people outside of
cars coming to inflict bodily harm on people inside vehicles. 4
On the evidence presented, the jury could reasonably find that Mr. Bailey and
the other men acted so as to “cause apprehension in a reasonable person that
[appellant and his group were] about to apply force [if Ms. Reid did not abandon her
efforts to recover the shoes or to prevent appellant from taking them away without
paying].” Spencer v. State, 30 A.3d 891, 893 (Md. 2011). The jury could reasonably
find that there was “a menace indicated by tone and manner” and “of a sort to incite
reasonable apprehension of danger,” “such as to put a [person] of ordinary courage
in fear of bodily harm.” Davis v. Commonwealth, 54 S.W. 959, 959 (Ky. Ct. App.
1900).
The evidence also supports an inference that Mr. Bailey and the other men
had an agreement to assist him in accomplishing asportation of the shoes. “To
establish the existence of a conspiracy, the government must prove (1) an agreement
between two or more persons to commit a criminal offense; (2) knowing
4
See, e.g., Henderson v. State, No. 13-14-00619-CR, 2016 Tex. App. LEXIS
7705 (Tex. Ct. App. July 21, 2016) (defendant assaulted victim after entering her
vehicle that was stopped at an intersection).
40
participation in that agreement with intent to commit the criminal objective; and (3)
during the life of the conspiracy, and in furtherance of its objective, the commission
by at least one conspirator of at least one of the overt acts specified in the
indictment.” Harrison v. United States, 76 A.3d 826, 842 (D.C. 2013) (internal
quotation marks omitted). The formation of a conspiracy to commit robbery requires
an agreement to actually rob another person, but “[a] jury may infer the existence of
an agreement from the participants’ actions.” Lucas v. United States, 20 A.3d 737,
744 (D.C. 2011). Further, “the formation of a conspiratorial agreement may be ‘near
instant’. . . and the same principle applies to the refinement of details.” Collins v.
United States, 73 A.3d 974, 983 (D.C. 2013) (holding that “the jury was free to infer
that a conspiracy to rob developed, even if the details of the plan did not appear to
be carefully choreographed from the outset or were refined within moments of the
attack”) (citation omitted). There is “room for improvisation or refinement of details
so long as [the participants] have agreed upon their fundamental goal.” Id.Just as the evidence about one of Mr. Bailey’s companions providing him with
some or all of the counterfeit money supports an inference of an agreement for Mr.
Bailey to use counterfeit money to engage in a fraudulent purchase, so the evidence
that Mr. Bailey and his companions all yelled “roll out” supports an inference that
the men agreed to facilitate Mr. Bailey’s carrying away of the shoes without
41
interference or resistance from Ms. Reid. In other words, the evidence permitted the
jury to infer that Mr. Bailey and the other men conspired to complete the taking by
placing the women in fear through a command that was an implied threat (that if
they did not leave, harm would follow). Unlike the evidence of Mr. Bailey’s
snatching the shoes, the men’s yelling of “roll out” was not unilateral action. Rather,
it was action that the jury could reasonably find was in furtherance of a conspiracy
that may have developed in a “near instant” as Mr. Bailey sought to depart with the
shoes, rather than having been choreographed from the outset. My colleagues in the
majority do not actually contend otherwise (but reverse the conspiracy-to-rob
conviction because they think the “roll out” command was insufficiently threatening
to support a robbery finding – a characterization with which I disagree for the
reasons set out above).
For the foregoing reasons, I dissent from the court’s reversal of Mr. Bailey’s
conspiracy-to-rob conviction. I concur in the affirmance of his robbery conviction
and in the court’s disposition of his other convictions.
EASTERLY, Associate Judge, dissenting from II.D.: I disagree that Mr. Bailey
can stand convicted of robbery based on the record presented. As explained above,
in order to prove a robbery, the government must prove that a taking was achieved
42
by more culpable means: “by force or violence, whether against resistance or by
sudden or stealthy seizure or snatching, or by putting in fear.” Ante at 12 n.8. 1 The
government must also prove that the defendant used force or violence purposefully
to take the item in question, and that the taking was against the will of the person
from whom the item of value was taken. See Williams v. United States, 113 A.3d
554, 560–61 (D.C. 2015) (explaining that the elements of robbery include a taking
against another person’s will with the “purposeful design” to use violence or fear
and quoting Parks v. United States, 627 A.2d 1, 5 (D.C. 1993) (applying this
“purposeful design” requirement to intent-to-frighten and attempted-battery
assaults)); see also Gray, 155 A.3d at 383–84 (concluding that robbery “require[s]
proof of some sort of purposeful employment or at least knowing exploitation of the
1
Citing to the partial dissent in Gray v. United States, 155 A.3d 377, 392
(D.C. 2017) (McLeese, J., concurring in part and dissenting in part), Judge Glickman
resuscitates language from older cases indicating that any “larceny from the person
is classified as robbery.” Ante at 31 & n.17. To the extent this language could be
read expansively to permit the court to forego an inquiry into how a taking was
accomplished, a position Judge Glickman does not appear to advocate, this
interpretation was rejected in Gray because it “would completely nullify the ‘by
force or violence’ element of robbery.” 155 A.3d at 386; see also id. n.18 (“We
recognize that there are passages . . . that, divorced from context, could be read as
supporting the broad proposition advanced by the dissent that any theft from a person
or his or her immediate possession constitutes a robbery. But we are unaware of any
opinion binding on us that actually holds that this is the case—which, again, would
in effect strike the ‘by force or violence’ element from the robbery statute—or that
addresses a fact pattern remotely like the one presently before us.” (citation
omitted)).
43
force or violence”). 2 We explained above why Mr. Bailey’s and his companion’s
directive to “roll out” does not amount to sufficient evidence that Mr. Bailey
accomplished a taking by force or violence by “putting [Ms. Reid and Ms. Jones] in
fear.” See ante Part II.B.1. But in my view, the evidence in this case is also
insufficient to support a robbery based on a taking via “sudden or stealthy seizure or
snatching” for two reasons: it does not support a determination beyond a reasonable
doubt that (1) Mr. Bailey purposefully accomplished a taking by that means or (2)
his act of snatching the shoes—as opposed to his payment with counterfeit money—
was against Ms. Reid’s will.
I accept that the plain language of D.C. Code § 22-2801 reflects the
determination by Congress in 1901 that a taking by “sudden” seizure or snatching is
no less a robbery than a taking by “stealthy” seizure or snatching, assuming all other
elements of the crime are present. But I disagree that the particular evidence in this
case supported a determination beyond a reasonable doubt that Mr. Bailey’s purpose
was to acquire the shoes via force or violence, namely, via a snatching. Instead,
apart from the act itself, all of the evidence indicates that his purpose was to commit
2
The court in Gray did not resolve the mens rea question and concluded that
a lesser-included offense instruction on theft was warranted regardless. 155 A.3d at
383–84. Given the evidence presented by the government, see infra, I think the
evidence is insufficient in this case even if knowing use of force or violence to
execute a taking is all that is required.
44
a theft by deception, by paying Ms. Reid with counterfeit money. Mr. Bailey
planned to meet with Ms. Reid in advance to purchase the Nike Air Jordan 11s, he
told his friends he was going to “jug” her, see ante at 12–13 & n.9, and, just before
he approached her, he asked for and received the counterfeit money from one of his
companions. (That the counterfeit money was “good” is further evidence of Mr.
Bailey’s purpose to deceive Ms. Reid; he had no reason to know that she was skilled
in identifying counterfeit money from her work in a casino). According to Ms. Reid,
after Mr. Bailey approached her car, he “calm[ly]” asked to see the shoes to confirm
they were real. He observed them for “a second or two” and told her they looked
real. And then, according to Ms. Reid, in an “almost simultaneous[]” exchange he
“snatched” the box containing the shoes and threw the counterfeit money (folded up,
inferably to make it more difficult to inspect) in her lap, and walked away.
In other words, Mr. Bailey had a plan to purchase the shoes with counterfeit
money, and he executed that plan. According to the government’s witnesses, the
snatching—which occurred in the midst of the execution of that plan—was merely
incidental to the arranged transfer of possession. When asked to explain what she
meant by her testimony that Mr. Bailey had “snatched” the shoes, Ms. Reid—who
thrice testified that she could not remember and did not know whether she handed
the shoebox to Mr. Bailey before he “snatched” it—explained only that Mr. Bailey
45
“did not stick around to get the top of the box necessarily.” Likewise, Ms. Jones
testified that Mr. Bailey “grabbed” the shoes in the course of the sale. According to
Ms. Jones, after Ms. Reid displayed the shoes and Mr. Bailey confirmed the price,
Ms. Reid lifted the box and “[Mr. Bailey] grabbed it. So it was an exchange . . . I
don’t know how you just hand a person something without them grabbing it to take
it.” (emphasis added).
We have said countless times that a defendant’s state of mind may be inferred
from their actions, but such an inference must be based on the whole of the evidence
of their actions. See Harrison v. United States, 60 A.3d 1155, 1165 (D.C. 2012)
(evidence of mens rea insufficient based on the examination of “the evidence as a
whole” (internal quotation marks omitted)); see also Coleman v. United States, 515
A.2d 439, 444 n.6 (D.C. 1986) (“[I]in evaluating appellant’s claim of insufficiency,
this court must consider the totality of the evidence presented at trial . . . .”). If the
evidence the government presented had shown nothing more than that Mr. Bailey
walked up to Ms. Reid and snatched the shoebox, the totality of Mr. Bailey’s conduct
and the circumstances of the snatching would support an inference of Mr. Bailey’s
purpose to commit a taking using force. But here the evidence presented by the
government reveals a more comprehensive picture of Mr. Bailey’s actions, both
before and after the snatching. That evidence, which the government has never
46
backed away from, undermines a theory of robbery via snatching and precludes a
determination beyond a reasonable doubt that Mr. Bailey had the requisite mens rea.
Put another way, although we are obligated to view the evidence in the light most
favorable to the government, that obligation does not require us to disregard almost
all of the government witnesses’ narrative and artificially freeze the evidentiary
frame at the instant the shoes changed hands.
Even if the evidence of Mr. Bailey’s mens rea was sufficient, the evidence at
trial still does not support Mr. Bailey’s robbery conviction because the record does
not reflect that Mr. Bailey’s taking of the shoes from Ms. Reid was against her will.
However coarse or offensive Mr. Bailey’s manner was when he snatched the shoes
from Ms. Reid and threw the money into her lap, all of the evidence indicates that
Ms. Reid understood that Mr. Bailey was carrying out the purpose of their pre-
planned meeting to purchase the shoes (but for the fact that he paid her in counterfeit
bills). Ms. Reid notably did not testify that she protested when Mr. Bailey
“snatched” the shoes from her. And there is no other evidence that, when Mr. Bailey
took the shoes, she objected in any way, much less demanded their return. Instead,
her focus was on the money. After examining it and determining that it was
counterfeit (while Mr. Bailey walked away with the shoes in hand), she called out to
him that the money was “fake.”
47
Ms. Reid’s testimony at trial about her reaction to the nature of the exchange
“at the time” does not alter the evidentiary calculus. When the government asked
her for her reaction to the “snatching,” she connected it to Mr. Bailey’s payment:
“Well, he threw the money. . . . [I]t was weird. I was kind of stuck like what just
went on[.]” She then confirmed that in the many sales she had conducted, she had
never had “an experience where somebody has snatched sneakers and then thrown
money at [her].” Even if we read this testimony in the light most favorable to the
government, this testimony about the “weirdness” of the exchange does not amount
to evidence that the snatching was against her will.
Judge Glickman acknowledges that “timing and sequence” matters and
concedes that if Mr. Bailey “had taken the shoes after Ms. Reid consented, even if
he obtained her consent by trickery or deception,” the evidence of robbery would be
insufficient. Ante at 34 (emphasis omitted). But he asserts that this is not what the
evidence shows. Rather, “Mr. Bailey took the shoes first, when it was still against
Ms. Reid’s will for him to do so.” Ante at 35. I disagree that the evidence supports
this assessment beyond a reasonable doubt in light of all of the other evidence in the
record, presented by the government, indicating that Ms. Reid (1) engaged in a
consensual transfer of the shoes and (2) rescinded her consent only after she realized
the money that Mr. Bailey gave her was counterfeit. It does not matter in my view
48
that her realization came swiftly after the exchange, instead of (as Mr. Bailey
inferably hoped from his effort to depart quickly 3) after Mr. Bailey had left the scene.
The taking via purchase with counterfeit money was against Ms. Reid’s will. The
taking via snatching was not.
In short, based on the record presented at trial, a reasonable juror could not
have found beyond a reasonable doubt that either party to the transaction was a
participant in a robbery via snatching, either as perpetrator or victim. Accordingly,
I would conclude that the government failed to prove Mr. Bailey’s guilt of robbery
beyond a reasonable doubt, reverse his conviction, and remand with instructions to
enter a judgment of guilt on the lesser included offense of second-degree theft.
3
Ms. Reid’s actions and her testimony about her response to the taking are
the best evidence of whether the taking via snatching was against her will. Judge
Glickman looks to Mr. Bailey’s swift departure as evidence that he “knew he had
taken the shoes without Ms. Reid’s consent.” Ante at 33 (emphasis omitted). But,
again, we cannot simply ignore the fact that Mr. Bailey was departing quickly after
giving Ms. Reid counterfeit money, which was not part of the agreed upon
transaction. Even drawing the inference Judge Glickman advocates, a reasonable
juror could not determine solely on this basis, beyond a reasonable doubt, that Mr.
Bailey took the shoes via snatching without Ms. Reid’s consent.