Taylor & Najiy v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 19-CF-1209 & 20-CF-254
ROSE L. TAYLOR and ANWAR NAJIY, APPELLANTS,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF2-11263-19 & CF2-11262-19)
(Hon. Rainey E. Brandt, Trial Judge)
(Submitted September 22, 2021 Decided January 27, 2022)
Donald L. Dworsky was on the brief for appellant Najiy.
Michael L. Spekter was on the brief for appellant Taylor.
Michael R. Sherwin, Acting United States Attorney, with whom Elizabeth
Trosman, Elizabeth H. Danello, Joseph Drummey, Sarah Martin, and Patricia A.
Hefferman, Assistant United States Attorneys were on the brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, ∗ Associate Judge,
∗
Judge Thompson was an Associate Judge of the court at the time of
submission. 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
(continued…)
2
and FERREN, Senior Judge.
FERREN, Senior Judge: After a jury trial, Anwar Najiy appeals his
convictions for unlawful possession of a firearm 1 and carrying a pistol without a
license (CPWL). 2 He argues that: (1) the evidence was insufficient to show that
he had the requisite mental state for each charged offense; (2) the court erred by
failing to give a limiting instruction about admission of his prior uncharged
criminal conduct in evidence; and (3) the government’s rebuttal argument
constituted prosecutorial misconduct. After the same trial, Rose Taylor appeals her
convictions for attempted CPWL 3 and attempted tampering with evidence. 4 She
claims the evidence was: (1) insufficient to show that she actually attempted to
possess the pistol, and also (2) insufficient to prove that she had the requisite
knowledge for tampering. In addition, she (3) joins appellant Najiy’s prosecutorial
misconduct claim. We affirm.
(…continued)
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.
1
D.C. Code § 22-4503(a)(1) (2021 Supp.).
2
D.C. Code § 22-4504(a) (2021 Supp.).
3
D.C. Code § 22-4504(a) (2021 Supp.); D.C. Code § 22-1803 (2021 Supp.).
4
D.C. Code § 22-723(a) (2021 Supp.); D.C. Code § 22-1803 (2021 Supp.).
3
I. Background
A. August 29, 2019 Incident
According to the government’s evidence at trial, on August 29, 2019,
Metropolitan Police Department (MPD) Officer Enea Ndrenika responded to a
radio call about an unconscious person in Northeast D.C. He activated his body-
worn camera (BWC) as he arrived on the scene to find an unconscious man lying
on the ground near an open passenger-side car door with a woman attempting to do
chest compressions on him. Later, at trial, Officer Ndrenika identified appellants
Najiy and Taylor from the BWC footage and, from the audio, he identified Taylor
saying at the scene that Najiy needed Narcan, a medication that reverses the effects
of opioids such as heroin. After verifying that Najiy had taken heroin, Officer
Ndrenika administered two doses of Narcan.
Najiy was still unconscious, but breathing, and Officer Ndrenika placed him
on his side in the “recovery position” so that Najiy would not choke if he vomited.
The BWC revealed that when Officer Ndrenika turned Najiy, appellant Taylor ‒
who was standing next to the officer by Najiy’s feet – got on top of Najiy. As
Taylor was getting up, her left hand initially was on Najiy’s back, and her other
4
hand was between her body and Najiy’s stomach. She next appeared to be
grabbing something with both hands. At this point, Officer Ndrenika – who had
been focusing on the “[s]afety and . . . well-being of Mr. Najiy” – became aware of
a “Tiffany blue” colored pistol when he saw it fall out of Taylor’s hands onto the
ground. Officer Ndrenika then placed Taylor under arrest. Najiy regained
consciousness about five to ten minutes after being administered Narcan and was
taken away in an ambulance.
When Officer Ndrenika reviewed the BWC footage, he saw that the butt of
the pistol was visibly sticking out of Najiy’s waistband as he first approached
appellants. At trial, Officer Ndrenika testified that he had never encountered a gun
of this color before. The gun belonged to Taylor and was registered in Virginia,
where she is from.
B. Appellant Taylor’s Testimony
At the heart of Najiy’s firearm offenses, in addition to Officer Ndrenika’s
evidence, was Taylor’s testimony about the gun that fell out of her hands (later
identified as the weapon Officer Ndrenika had seen in Najiy’s waistband). Taylor
testified on direct examination in the defense case that she was not testifying
5
because someone had forced her to do so or because she was afraid of anyone,
adding that Najiy was her son’s father. 5 Taylor then testified that she had met up
with Najiy that August day and “closed him in the car” because, although still
conscious, he was “wobbling.” He then had started to “zone out” in the car and
was not responding, she said. Taylor further testified that she had put the gun into
Najiy’s waistband because she was upset with him and wanted to take a picture of
him with it. He was not alert at the time, and when she was trying to take the
picture “his body slumped between the middle of . . . the seat and the [console].”
She went around to the side of the car and called 911.
Taylor also testified on direct that, on the phone with Najiy while he was
incarcerated pending trial, she had told him that she had given the gun to him and
that she was sorry. Taylor added that she was trying to explain and apologize to
5
On cross-examination, the government elicited additional information
about Taylor’s and Najiy’s relationship. Specifically, they had been in a
relationship for about five years, though it had not been continuous. They had
been married but were divorced at the time of the incident. Continuing on cross-
examination, Taylor acknowledged that Najiy had helped provide for their son, and
that it was important to her that Najiy was involved in his life. She was upset with
Najiy at the time of the incident here because she thought he was cheating.
However, she hoped their relationship would continue after the case was over, and
she testified that when they talked on the phone while Najiy was incarcerated
pending trial, they often said that they loved and missed each other. Taylor hoped
that after Najiy was released, they would get married and, although he had told her
they would, he had also said this in the past.
6
him because he was probably confused. On cross-examination, Taylor further
testified that, about a month and a half before the trial, she had told Najiy that she
was not a snitch. Taylor revealed that during this same call, she again told Najiy
that she had put the gun on him and Najiy then responded by telling Taylor that she
was going to have to testify in this case.
On further cross-examination, the government elicited that Taylor had given
several different accounts before trial of what happened with the gun on August
29. After she was arrested, Taylor told a police officer on the scene that she was
trying to grab a phone, that she did not know the gun had been on Najiy, and that
she would not have flagged down the police if she had known he had the gun.
When she offered this explanation, Taylor added that Najiy was still unconscious.
Later, however, Taylor told a detective a different story: that she had found the
gun in her glove compartment when she was trying to get a tissue and put it on the
seat, where Najiy sat on it. She further testified that she had told the detective that
when Najiy overdosed, she had to pull him out of the car, and that when she did so
the gun fell out of the car. Soon thereafter, however, she acknowledged that she
had told the same detective what essentially had been her first story at trial: that
she had planted the gun on Najiy because she was upset at him for cheating,
7
although she was not trying to get him arrested. She added that she was not in her
“right mind” when she spoke with this detective.
On redirect-examination, Taylor explained that when she had told the police
she did not know that Najiy had the gun on him, she meant that she “didn’t
remember to, like, put it back in the glove compartment.” Because “so much stuff
[was] happening,” Taylor explained, she did not realize that he had the gun again
until she saw it when “[h]e was . . . unconscious.”
C. Prior Crimes Evidence
Before trial, the government provided a “Notice of Intent to Introduce
Evidence of Other Crimes”: that Taylor had reported to probation officers and the
police that Najiy had stolen her pistol on three occasions in July 2019. The
government also sought to admit an Instagram photograph of Najiy with a Tiffany
blue pistol sticking out of his pocket. 6 The trial court ruled that the prior crimes
6
The parties stipulated that on the date of the incident, Najiy knew that he
had been convicted of a crime punishable by imprisonment for a term exceeding
one year. They also stipulated that the MPD had no record that either Najiy or
Taylor had a valid license to carry a pistol within the District of Columbia. Upon
admission of Najiy’s firearm conviction, the trial court immediately gave the jury a
cautionary instruction that Najiy’s prior felony conviction could only be used to
(continued…)
8
evidence was admissible under Drew v. United States 7 to show “knowledge” of
Najiy’s possession of the pistol. The court added that it would consider
admissibility of this evidence under (William) Johnson v. United States 8 but asked
both parties, in the meantime, to propose limiting instructions under Drew. Before
the next appearance, the government advised that it would introduce evidence of
Najiy’s prior theft of the firearm only in its rebuttal case if Taylor testified.
During the defense case, counsel for Najiy preemptively asked Taylor about
prior incidents the government had raised in its “Drew [and Johnson] notice.” She
testified on direct that she had called Najiy’s parole officer on a number of
occasions to report that he had stolen her gun, and that the officer had told her to
call the police. She qualified that testimony, however, by adding that Najiy had
not actually stolen her gun, but that she had reported him because she was upset.
(…continued)
satisfy the element of the charge for unlawful possession of a firearm and for no
other purpose.
7
331 F.2d 85, 89-90 (D.C. Cir. 1964) (evidence admissible under Drew
when offered for a “substantial, legitimate purpose,” including, but not limited to,
one of the following issues: (1) motive; (2) intent; (3) absence of mistake or
accident; (4) common scheme or plan; or (5) identity”).
8
683 A.2d 1087, 1098 (D.C. 1996) (evidence admissible under Johnson
when it “(1) is direct and substantial proof of the charged crime, (2) is closely
intertwined with the evidence of the charged crime, or (3) is necessary to place the
charged crime in an understandable context”).
9
Taylor also called the police at one point to report that Najiy had held a knife to her
neck during an altercation.
On cross-examination, Taylor acknowledged that, in the past, Najiy had
yelled at her, threatened her, and struck her, and that she had obtained a restraining
order against him “to get his attention.” She added, however, that Najiy had never
put a gun to her face or neck and that she was not afraid of him. Taylor’s further
cross-examination revealed that either Taylor or a neighbor had called the police
when she and Najiy were arguing on July 6, 2019. Taylor told the police that
during the argument, Najiy had choked her, and that he had taken her gun, which
she described as a 9-millimeter Tiffany blue gun. Earlier, she had contacted a
parole officer on March 7 and 14, 2019, and again on July 8, to report that Najiy
had taken her gun. Also, on July 25, 2019, she reported to a parole officer that
Najiy had given her gun back but then had stolen it again. She told police officers
on July 29, 2019, that Najiy had stolen her gun from Virginia, where she kept it,
and she showed them photos from Instagram depicting Najiy with a teal blue
object protruding from his pocket that she said was her gun. On redirect-
examination, however, Taylor testified that her statement to police that Najiy had
stolen the gun from her in Virginia was not true, and that he had not been in
Virginia.
10
In closing argument, the prosecutor brought up the prior incidents when
Najiy reportedly had Taylor’s gun as evidence that he knowingly and voluntarily
had the gun when he overdosed:
He had been suffering from a drug overdose, so the issue
you have to decide is . . . how that gun came to be on
him. And you’ve heard testimony from Miss Taylor that
she reported the gun stolen a month earlier by Mr. Najiy,
that he had stolen it from her, and she also presented a
picture of Mr. Najiy with a Tiffany blue butt of a gun
sticking out of a pocket. And so it’s up for you to decide
if you think that Mr. Najiy possessed that firearm
voluntarily before he overdosed and that that’s how it got
on his body that day.
Later in rebuttal, the prosecutor argued that Taylor’s bias and other motives
were behind her inconsistent statements:
She’s invested herself in a five-year relationship with Mr.
Najiy. And he’s promised her that they’re going to get
married after this case is over. But it’s not just that she’s
trapped, she’s also terrified. This man has whispered in
her ear that he’s going to kill her when she got police
involved in an argument. This man has put a knife to her
throat. And ladies and gentlemen, this man took the gun,
put it to her head and said he was going to kill her. So,
ladies and gentlemen, when she took the stand and while
she’s sitting there right now, he is feet away from her.
And she admitted to you on the stand that he’s watching
her, listening and hanging on every word that comes out
of her mouth. So perhaps she doesn’t have the luxury of
telling you what really happened.
11
The jury found Najiy guilty of unlawful possession of a firearm and of
CPWL. It found Taylor not guilty of the charged crimes of CPWL and tampering
with physical evidence, but found her guilty of attempting to commit both
offenses.
II. Issues
On appeal, Najiy contends the evidence was insufficient for the jury to have
found that he had knowingly: (1) possessed a firearm, and (2) carried it on his
person. Najiy also argues that the trial court abused its discretion by failing to
provide the jury with a limiting instruction regarding his uncharged, allegedly
criminal conduct related to the gun on previous occasions.
In her appeal, Taylor contends the evidence was insufficient to show that she
actually attempted to carry the gun. She also maintains that the officer’s response
to the scene did not constitute an “official proceeding,” and thus that the evidence
was insufficient to establish her “knowledge” necessary to establish “tampering.”
Finally, both appellants argue that the prosecutor’s rebuttal argument
amounted to prosecutorial misconduct that prejudiced their substantial rights.
12
III. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence, “we view the evidence in
the light most favorable to the government, giving full play to the right of the fact-
finder to determine credibility, weigh the evidence, and draw justifiable inferences
of fact, and making no distinction between direct and circumstantial evidence.” 9
Moreover, the evidence “is sufficient if any rational fact-finder could have found
the elements of the crime beyond a reasonable doubt.” 10
A. Knowing Possession of a Firearm (Najiy)
Appellant Najiy contends that, because he was unconscious when the officer
arrived, the evidence was insufficient to prove that he had the requisite mens rea
for his convictions, specifically that he not only had “possessed” 11 but also
9
Brooks v. United States, 130 A.3d 952, 955 (D.C. 2016) (internal
quotations and brackets omitted).
10
Hernandez v. United States, 129 A.3d 914, 918 (D.C. 2016).
11
Although the trial court instructed the jury on both actual and constructive
possession, Najiy does not specifically dispute, nor could he, that the evidence was
sufficient to show that he had physical possession of the gun “by holding it in
(continued…)
13
“carried” the firearm, both voluntarily and on purpose – as the court had instructed
the jury it must find for conviction of each charge. 12 We have recognized that
“possession requires that the possessor knowingly be in control of the weapon.” 13
(…continued)
his . . . hand or by carrying it in or on his . . . body or person” as the court
instructed was required for actual possession. Officer Ndrenika’s body camera
footage showed the gun sticking out of Najiy’s waistband before Taylor jumped on
top of him. Thus, we need not consider whether the evidence was sufficient to
establish Najiy had intent to exercise dominion and control over the firearm, which
is only required for constructive possession. See Robinson v. United States, 100
A.3d 95, 105 n.16 (D.C. 2014) (“Our cases have defined “actual possession” as the
ability of a person to knowingly exercise direct physical custody or control over the
property in question . . . . Constructive possession likewise entails knowledge of
the location of the item, as well as the ability and intention to exercise dominion
and control over it.” (alteration in original) (internal quotation marks and citations
omitted)); see also White v. United States, 714 A.2d 115, 118 & n.5 (D.C. 1998)
(where case went to the jury on both actual and constructive theories of “carrying,”
“conviction [from general verdict] may be affirmed if the evidence was sufficient
to support either theory”).
12
See Criminal Jury Instructions for the District of Columbia, No. 6.500
(rev. ed. 2021) (“The elements of the offense of carrying a pistol without a
license . . . [include that the defendant carried a pistol] voluntarily and on purpose,
and not by mistake or accident.”); and id., No. 6.511 (“The elements of the offense
of unlawful possession of a firearm by a person previously convicted of a crime
punishable by imprisonment for a term exceeding one year . . . [include that the
defendant possessed a firearm] voluntarily and on purpose and not by mistake or
accident”). In an attempt to “simplify the elements relating to states of mind and
make them more consistent,” the standard jury instructions use this language to
describe the required state of mind for general intent crimes. Id., No. 3.100.
13
Robinson, 100 A.3d at 105 (emphasis in original).
14
Viewing the evidence in the light most favorable to the government, we
must consider whether the surrounding circumstances were sufficient to support an
inference that Najiy possessed and carried the firearm voluntarily and knowingly
before he lost consciousness. 14 Although Taylor testified that she had planted the
gun on Najiy as he was losing consciousness, she was impeached with two distinct
prior inconsistent statements she made to police officers investigating the incident:
first, that she did not know Najiy had the gun on him, and second, that she put the
gun on Najiy’s seat and it fell out when she pulled him out of the car. Based on
these inconsistencies, and other impeachment evidence tending to show her bias in
his favor, a reasonable jury could have discredited her testimony that she planted
the gun on Najiy. Furthermore, Taylor testified that one month before the August
2019 incident, on July 29, 2019, she reported to police that Najiy had stolen her
gun, and the government introduced a photograph she showed police at that time
depicting Najiy with what appeared to be the same gun based on its distinctive
color. Although Taylor testified on redirect that she had lied to the police about
Najiy’s stealing the gun from her, the jury earlier heard testimony from Taylor to
the contrary and was able to make credibility determinations based on reasonable
inferences about the firearm, including that Najiy still had the gun on August 29
14
See Bailey v. United States, 831 A.2d 973, 986 (D.C. 2003) (“Intent is
often inferred from surrounding circumstances.”).
15
and put it in his waistband before he overdosed. Considering all of these
circumstances, we conclude that the evidence was sufficient to support a finding
that Najiy had placed the gun in his waistband himself before losing consciousness
and therefore had the gun in his waistband voluntarily and knowingly for both
offenses, “possession” and “carrying.”
B. Attempt to Carry the Pistol (Taylor)
Appellant Taylor argues that the evidence was insufficient to show she had
carried or attempted to carry a pistol without a license because “the evidence
shows that the gun was never in [her] control even for an instant, even if she may
have, according to the BWC, inadvertently touched it.” A CPWL offense requires
proof of “(1) carrying a pistol, either openly or concealed on one’s person, outside
one’s own dwelling or place of business, or other land possessed by the defendant
and (2) without a license to do so.” 15 And “carrying” can be established through
“actual possession of the pistol . . . on [her] person” or “constructive possession . . .
about [her] person.” 16
15
McCullough v. United States, 827 A.2d 48, 58 (D.C. 2003).
16
White, 714 A.2d at 118-19 (internal quotation marks omitted). Only
under this constructive possession theory must the government separately “show
(continued…)
16
“In order to prove an attempt to commit any offense, ‘the government must
prove that the accused: (1) intended to commit that particular crime; (2) did some
act towards its commission; and (3) . . . failed to consummate its commission.’” 17
“The act must go beyond mere preparation and must carry the criminal venture
forward to within dangerous proximity of the criminal end sought to be attained.” 18
Viewing the evidence in the light most favorable to the government, a
reasonable jury could have found Taylor “did some act” toward the commission of
CPWL. In still photos in evidence from the BWC footage taken before Najiy was
moved onto his side, the gun can be seen barely protruding from his waistband. It
was secure enough not to fall to the ground when Officer Ndrenika first turned him
on his side. In the BWC footage, as the officer is telling Taylor to get off of Najiy,
her hands appear to be reaching down toward his waist and then dropping the gun
from above his body. The footage accordingly supports a reasonable finding that
(…continued)
that the pistol was in such proximity to the person as to be convenient of access
and within reach” for purposes of a CPWL conviction. Id. at 119 (internal
quotations and citation omitted).
17
Corbin v. United States, 120 A.3d 588, 602 n.20 (D.C. 2015) (quoting
Frye v. United States, 926 A.2d 1085, 1095 (D.C. 2005)).
18
Id. (quoting Jones v. United States, 386 A.2d 308, 312 (D.C. 1978)).
17
Taylor made an overt act toward gaining actual possession of the firearm, even if
she did not succeed in obtaining possession. 19
C. Knowledge of Official Proceeding (Taylor)
Taylor also challenges the sufficiency of the evidence that she had the
requisite mens rea under the tampering statute, which provides:
A person commits the offense of tampering with physical
evidence if, knowing or having reason to believe an
official proceeding has begun or knowing that an official
proceeding is likely to be instituted, that person alters,
destroys, mutilates, conceals, or removes . . . [an] object,
with intent to impair its integrity or its availability for use
in the official proceeding. 20
Specifically, Taylor – without directly addressing mental state – contends that the
“non-adversarial, non-investigatory” police stop did not constitute an “official
proceeding.”
19
To the extent that Taylor’s argument about “inadvertently” touching the
gun can be construed as challenging the intent element of attempted CPWL, the
evidence was also sufficient to find that she was intentionally reaching for the gun.
20
D.C. Code § 22-723(a) (2021 Supp.) (emphasis added).
18
To the contrary, an “official proceeding” is defined under the tampering
statute as “any trial, hearing, investigation, or other proceeding in a court of the
District of Columbia or conducted by the Council of the District of Columbia or an
agency or department of the District of Columbia government, or a grand jury
proceeding.” 21 Accordingly, in Mason v. United States, 22 we held (as in this case)
that “an MPD investigation is an official proceeding within the meaning of the
tampering statute.” 23 We did not limit this interpretation to particular facts or
circumstances; it was unqualified. 24
Nonetheless, to define “official proceeding” under the tampering statute,
Taylor draws upon our earlier ruling in Wynn v. United States: 25 that an “official
proceeding” under the obstruction of justice statute does not encompass (as in this
21
D.C. Code § 22-721(4) (2012 Repl.) (emphases added).
22
170 A.3d 182 (D.C. 2017).
23
Id. at 191.
24
See id. (“The language of the tampering statute . . . permit[s] conviction if
the defendant ‘kn[ew] or ha[d] reason to believe an official proceeding ha[d] begun
or kn[ew] that an official proceeding [was] likely to be instituted.’ D.C. Code
§ 22-723(a). The statute does not require that the official proceeding already was,
or eventually would be, directed in particular at the defendant or his
accomplices.”).
25
48 A.3d 181 (D.C. 2012).
19
case) an “endeavor[] to hide evidence from, or elude capture by, police officers
responding to the scene of a crime . . . .” 26 In Mason, however, addressing Wynn,
we expressly distinguished an “official proceeding” under the obstruction statute
from an “official proceeding” under the tampering statute. 27 We observed that the
applicable phrase in the obstruction statute construed in Wynn – “obstruct[ing] or
imped[ing] the due administration of justice in any official proceeding” – made
clear that an obstruction proceeding was confined to covering “the proper
functioning and integrity of a court or hearing.” 28 Recognizing that limitation, we
explained in Mason (quoting Wynn) that “the tampering statute provided ‘a
separate basis for criminalizing efforts to hide evidence from the police,’” and held
that “an MPD investigation is an official proceeding within the meaning of the
tampering statute.” 29
In this case, the evidence is sufficient to support a finding that, at the time
Taylor sought to tamper with (conceal) the gun, she knew Najiy would likely be
26
Mason, 170 A.3d at 191(quoting Wynn, 48 A.3d at 190).
27
Id.28
Id. (emphasis and alterations in original) (quoting Wynn, 48 A.3d at 191).
29
Id. (quoting Wynn, 48 A.3d at 190 & n.13).
20
arrested or otherwise investigated. 30 The gun-concealing act in question occurred
during an interaction with a police officer who was physically present, and the gun
was in his view. 31 A reasonable jury could have found that Taylor attempted to
move the gun precisely because she knew that Officer Ndrenika was likely to see it
and initiate an investigation. Given evidence sufficient for a finding that Taylor
actually did attempt to gain possession of the gun, we perceive no reasonable basis
for Taylor’s attempt to do so other than to prevent Officer Ndrenika from detecting
the firearm. Furthermore, Taylor’s own testimony revealed her awareness of a
likely police investigation, constituting an official proceeding. Aware that Taylor
had told a detective she would not have “flagged down” a police officer if she had
known that Najiy had a gun, a reasonable jury could have interpreted this to mean
she knew that an officer’s seeing the gun in Najiy’s waistband would likely trigger
an “official” investigative proceeding.
30
Taylor acknowledges that the “official proceeding” need not be targeted
against the person charged with tampering. See id. at 984.
31
The fact that Officer Ndrenika was responding to a reported overdose and
had performed life-saving measures does not meaningfully distinguish this
situation. Because the tampering statute covers conduct where a person knows that
an investigation is likely to be instituted, not just where an investigation has
already begun, see D.C. Code §§ 22-723(a) & 22-721(4), it was not necessary that
the officer was already investigating a crime when he arrived at the scene.
Moreover, the fact that Officer Ndrenika performed emergency assistance does not
render the stop wholly non-investigatory, where he might also have reason to
investigate the drug activity or other cause of Najiy’s unconsciousness.
21
In the alternative, Taylor points to language in Timberlake v. United States 32
in which we said the knowledge element of the tampering statute presupposes that
the accused, in concealing evidence, subjectively “knew a proceeding was likely to
be instituted” (if not yet begun); that the purpose of concealing the evidence was to
make it “unavailable to the proceeding”; and that – of significance to Taylor – in
cases involving “malum in se” crimes, it “may be reasonable to infer the likelihood
of an investigation from the nature of the crime” itself. 33 Taylor, however, does
not argue, nor could she, that the required “likelihood” inference is limited to
alleged “malum in se” crimes, such as homicide or robbery. She says only that,
according to Timberlake, “a non malum in se crime such as possession [of a
firearm], does not automatically predict or foretell a police investigation,” an
accurate observation that is inconclusive here. Furthermore, Timberlake itself
suggested that a suspect’s “confrontation with police while in possession of
32
758 A.2d 978, 980 (D.C. 2000) (affirming conviction based on unlawful
tampering for concealment of drugs in his mouth, as well as “additional and
sufficient evidence from which the jury could find that [he] knew he was the
subject of a police investigation while he held the drugs in his mouth”).
33
Id. at 983 n.6. In this footnote we added: “[b]ecause we affirm on an
alternative theory, we need not reach the difficult questions of what constitutes an
‘official proceeding’ and what is sufficient subjective knowledge that an official
proceeding is ‘likely to be instituted’ absent circumstances that objectively
manifest the proceeding, such as confrontation with police while in possession of
contraband.” Id. Accordingly, we acknowledged that “[w]e have never addressed
the degree of formality or specificity required for there to be an ‘official
proceeding.’” Id.22
contraband” on occasion can objectively indicate a potential proceeding sufficient
to reflect a suspect’s subjective knowledge that an official proceeding is “likely to
be instituted.” 34
IV. Failure to Give Limiting Instruction
About Prior Uncharged Criminal Conduct
Appellant Najiy contends that the trial court abused its discretion by failing
to cure the prejudice from the evidence of uncharged criminal conduct attributable
to his prior possession of the firearm. Where, as here, Najiy did not request a
limiting instruction at trial, we review for plain error. 35 To establish plain error,
“an appellant must show: (1) error, (2) that is plain, and (3) that has affected his
substantial rights,” meaning there is “a reasonable probability that, but for the error
34
See id.35
See Busey v. United States, 747 A.2d 1153, 1166-67 (D.C. 2000). Najiy
points to the trial court’s comments, at the preliminary hearing when it ruled that
the evidence could come in under Drew, that “a limiting instruction is going to be
necessary . . . .” Najiy argues that the trial court had thus “recognize[ed] its duty to
apply its discretion to avoid undue prejudice” but then failed to act on that
recognition at trial, amounting to an abuse of discretion. This ruling, however,
occurred before the government advised that it had decided not to introduce the
evidence in its case in chief, and Najiy nevertheless chose to preemptively
introduce evidence in the defense case, without requesting any limiting
instructions.
23
claimed, the result of the proceeding would have been different.” 36 “Even if all
three of these conditions are met, this court will not reverse unless (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” 37
In general, “evidence of a crime for which the accused is not on trial is
‘inadmissible to prove disposition to commit crime, from which the jury may infer
that the defendant committed the crime charged.’” 38 Najiy concedes, however, that
“[a]n accused person’s prior possession of the physical means of committing the
crime is some evidence of the probability of his guilt, and is therefore
admissible.” 39 Even more strongly, we opined in (William) Johnson that such
evidence can be “direct and substantial proof of the charged crime,” and thus is not
Fortune v. United States, 59 A.3d 949, 954 (D.C. 2013) (internal
36
quotations and brackets omitted).
37
Id. (internal quotations omitted).
38
Busey, 747 A.2d at 1164 (emphasis in original) (quoting Drew, 331 F.2d
at 89).
Coleman v. United States, 379 A.2d 710, 712 (D.C. 1977) (holding trial
39
court did not abuse its discretion in admitting photographic evidence of defendant
with a .45 caliber pistol, the type of gun used in the alleged murders, taken five
months before the murders).
24
limited to the criteria for admission specified in Drew. 40 When evidence is
admissible under (William) Johnson, “we have held that the trial court is not
required to give a limiting instruction sua sponte.” 41
As discussed previously, Najiy’s state of unconsciousness when Officer
Ndrenika arrived at the scene, combined with the fact that the firearm belonged to
Taylor and her testimony that she had planted it on him, poses a complicated
factual issue of how the firearm got in his waistband. Accordingly, the evidence of
Najiy’s prior possession of the very gun at issue on multiple occasions leading up
to the August 2019 incident, including most recently on July 29, 2019, made it
more likely that Najiy possessed the firearm on August 29, 2019, before he lost
consciousness. Indeed, the distinctive color of the gun further enhanced its
probative value in supporting Najiy’s subsequent possession. As previously
discussed, the jury was free to discredit Taylor’s testimony that she had lied about
40
(William) Johnson, 683 A.2d at 1097-98; see supra note 7.
41
Busey v. United States, 747 A.2d at 1167 (collecting cases and holding
that trial court did not commit plain error, or any error, where evidence of prior
assault had been admitted as proof that defendant possessed means to commit the
murder and “[o]ur review of the prosecutor’s examinations . . . and . . . closing
arguments satisfie[d] us that the jury was not asked improperly to infer criminal
propensity from the evidence”).
25
Najiy stealing the gun, and there was no testimony or other evidence of Najiy
returning the gun to Taylor after she told police that he had taken it on July 29.
Najiy contends, nonetheless, that the alleged error was particularly harmful
because “the uncharged conduct evidence went directly to the central and sole
issue in the case”: whether he knowingly possessed the firearm. Indeed, the
probative value of the evidence that Najiy had previously possessed the blue-tinted
gun is different from the probative value of the evidence in Busey, 42 Coleman, 43
and related cases, where evidence of prior possession of a weapon was admitted
under (William) Johnson to show the defendants had possessed the weapons used
in the charged crimes. Here, the evidence was relevant to show Najiy’s mental
state: that he possessed the gun “knowingly,” which turns on when and how the
gun came to be in his waistband on August 29. Accordingly, the relevance that
Najiy points out is precisely what the trial court had approved to show
“knowledge,” as permitted by Drew, 44 before the government advised that it would
only introduce the evidence in rebuttal. Therefore, any limiting instruction would
42
See id. at 1164.
43
See supra note 39.
44
See supra note 7; see also Jackson v. United States, 856 A.2d 1111, 1116
(D.C. 2004) (“Knowledge is widely accepted as a non-propensity purpose for
which other crimes evidence may be admitted.”).
26
have told the jury to consider the evidence in the same way the government
suggested in its closing argument: to “decide if . . . Mr. Najiy possessed the
firearm voluntarily [and thus knowingly] before he overdosed.” Any error,
therefore, did not affect Najiy’s substantial rights.45
V. Government’s Rebuttal Argument
Finally, Najiy contends that the government’s rebuttal argument constituted
prosecutorial misconduct by suggesting that Taylor testified in support of Najiy
because she was afraid of him and yet hoped he would marry her, as promised,
after the case was over. Taylor joins this argument, asserting that the
government’s remarks were also prejudicial to her in that they impugned her
honesty and motives in testifying. Because neither appellant objected to the
government’s arguments at trial, we again review for plain error and “will reverse
[their] conviction[s] only if the misconduct so clearly prejudiced [their] substantial
rights as to jeopardize the fairness and integrity of [the] trial.” 46
45
See text accompanying supra note 36.
Portillo v. United States, 62 A.3d 1243, 1257 (D.C. 2013); see also text
46
accompanying supra notes 36 and 37.
27
In a rebuttal argument, “the prosecutor ‘may not go beyond reasonable
inference and engage in impermissible speculation.’” 47 We have recognized that
“evidence concerning a witness’ fear tends to be prejudicial because it suggests the
witness fears reprisal at the hands of the defendant . . . if [she] testifies.” 48
Therefore, “argument by prosecutors about witness fear ‒ especially fear of the
defendants on trial ‒ must be the limited exception rather than the rule” and thus is
not permissible, “absent a factual basis for such a comment.” 49 That said,
however, such evidence “may be admissible where the witness has given
conflicting statements.” 50
In (Antonio) Johnson, 51 the witness testified at trial that her earlier video-
taped statement and grand jury testimony – that the defendant had confessed his
involvement in the charged murder to her ‒ had been completely fabricated. To
47
Id. (quoting Clayborne v. United States, 751 A.2d 956, 969 (D.C. 2000)).
48
Simpson v. United States, 877 A.2d 1045, 1048 (D.C. 2005) (quoting
Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1999)).
49
(Antonio) Johnson v. United States, 17 A.3d 621, 627 (D.C. 2011)
(brackets removed) (first quoting Murray v. United States, 855 A.2d 1126, 1133
(D.C. 2004); and then quoting Simpson, 877 A.2d. at 1048).
50
Id. (quoting Mercer, 724 A.2d at 1184).
51
Id. at 624.
28
the contrary, the government presented the witness’s statements to the police
indicating that the defendant had beaten her and threatened to kill her, which
“provide[d] a sufficient evidentiary basis from which the prosecutor could suggest
that [the witness’s] grand jury testimony was the more credible testimony, and that
the inconsistency in her testimony resulted from [the defendant’s] presence in the
courtroom.” 52
Here, as in (Antonio) Johnson, Taylor gave inconsistent statements about
what happened on August 29 and how the gun came to be on Najiy’s person. Also
as in (Antonio) Johnson, where evidence suggested the defendant had beaten and
threatened the witness, here the evidence at trial showed that in the past Najiy had
held a knife to Taylor’s neck during a fight, choked her, and threatened her. Thus,
the government permissibly presented evidence of Najiy’s alleged threats and
assaults against Taylor to reconcile her inconsistent statements and argue the
reasonable inference that Taylor’s statements tended to be more exculpatory when
Najiy was present in the courtroom. The government had a firm factual foundation
to make such an argument based on Taylor’s prior statements to police and parole
officers, and in obtaining a restraining order against Najiy.
52
Id. at 624, 627.
29
Nor does the rebuttal argument about Taylor’s relationship with Najiy as a
source of bias constitute prosecutorial misconduct. In Mercer, we recognized that
the witness and defendant’s “intimate relationship that produced a child was
relevant, as it tended to show bias.” 53 Similarly here, the prosecutor’s comments
about Taylor’s bias favoring Najiy as the father and supporter of her child, as well
as her romantic interest and hope of getting back together, was founded on
evidence, not speculation, and thus was a permissible source for demonstrating her
bias.
VI. Conclusion
For the foregoing reasons, we affirm Taylor’s and Najiy’s convictions.
So ordered.
53
724 A.2d at 1189.