In re T.B.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-FS-0138

IN RE T.B., APPELLANT.

Appeal from the Superior Court

of the District of Columbia

(2021-DEL-000434)

(Hon. Andrea Hertzfeld, Trial Judge)

(Argued November 6, 2024 Decided February 20, 2025)

Jennifer Williams, Public Defender Service, with whom Samia Fam and

Shilpa S. Satoskar, Public Defender Service, were on the brief, for appellant.

Brian L. Schwalb, Attorney General for the District of Columbia, with

whom Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy

Solicitor General, Graham E. Phillips, Deputy Solicitor General, and Stacy L.

Anderson, Senior Assistant Attorney General, were on the brief, for appellee.

Before HOWARD and SHANKER, Associate Judges, and THOMPSON, Senior

Judge.

THOMPSON, Senior Judge: The Superior Court adjudged T.B., a juvenile,

delinquent for having carried a pistol without a license and possessed unregistered

ammunition. In this appeal from the order of delinquency, T.B. contends that the

evidence presented at trial was insufficient to support the court’s findings that he

was involved in those offenses. Alternatively, T.B. argues that the trial court

committed reversible error by admitting portions of the testimony of two police

2

officers who participated in the investigation that led to his arrest. Because we find

that the evidence at trial was sufficient and that T.B. has not shown prejudice from

or plain error in admission of the officers’ challenged testimony, we affirm.

I. Background

During a suppression hearing on November 8, 2021, Officer Carter Moore of

the Metropolitan Police Department (“MPD”) described the events that led up to

T.B.’s arrest. On July 26, 2021, Officer Moore was monitoring publicly available

social media posts looking for illegal firearms when he came across an Instagram

live video featuring an individual—later identified as T.B.—showing to the camera

a black Glock-style handgun. In this video (the “first video”), which Officer

Moore recorded in screen shots on his cell phone, T.B. at times held the firearm in

his hands and at other times placed it in, had it tucked in, or removed it from his

waistband. Another juvenile appears toward the end of the video. Because the

video took place entirely inside a building whose exact location the officers did not

know, they took no further action at that time.

About six hours later, around 8:40 p.m., Officer Moore observed a second

Instagram live video (the “second video”) in which T.B. and “D.C.,” another

juvenile appeared. The video, which Officer Moore “screen recorded,” opens with

D.C.’s face and then shows, in D.C.’s waistband, what Officer Moore described as

3

“the grip” of a distinctive “illegal firearm” that Officer Moore believed to be the

grip of the same black handgun from the first video. As the second video

continues, a second individual—T.B., the parties agree—is briefly visible in the

background, leaning against the railing of a stoop. In the trial court’s words, as

T.B. “flashes his waistband briefly, a light-colored object can be seen in his front

waistband in front of his black underwear.”

From the second video, police were able to identify the location as the

Mayfair Mansion Apartments in the 3700 block of Hayes Street, N.E. A group of

MPD officers, including Officer Moore and Officer Max Laielli, headed to that

location, arriving about twenty minutes after having viewed the second video.

Officer Laielli was the first to spot the individuals from the Instagram live videos

and approached them immediately. As Officer Laielli began his approach, his

body-worn camera (“BWC”) captured footage depicting T.B. standing on the

sidewalk, about to ascend the stairs to the stoop along with two other unnamed

individuals. D.C. can be seen standing at the top of the stoop on the right. As

Officer Laielli continued his approach, the two unnamed individuals and T.B.

proceeded to the top of the stoop. Officer Laielli’s BWC footage depicts T.B.

standing on the right side of the stoop facing D.C. with his back to the officer.

T.B. then turns to face the left-side railing and takes a step in that direction while

looking down and raising his hands to his waistband. Officer Laielli testified that

4

in the BWC footage it “looks like [T.B.’s] elbows [were] kind of tucked up, almost

as if he’s doing something in front of him.” T.B. then takes one more step towards

the left-side railing, becoming partially obscured by the two unnamed individuals

who by now are standing on the left side of the stoop facing Officer Laielli. T.B.

then takes a step back with his left foot and pivots his body to face Officer Laielli,

who by this point has reached the stoop. T.B.’s shirt can then be seen resting

slightly above his waistband, with a small portion of his black underwear showing.

Officer Laielli immediately handcuffed D.C. and located, in D.C.’s

waistband, the black Glock-style handgun from the videos. Officer Moore arrived

shortly thereafter and ordered the three remaining individuals, including T.B., to

step down off the stoop. Officer Moore then handcuffed T.B., whom he

recognized as “the other individual” from the second video and patted him down,

finding nothing in his waistband. Officer Moore then proceeded to search the area,

finding two more firearms—a loaded “tan-gold-in-color semiautomatic pistol” and

a black revolver—on the ground to the left of the stoop. 1 The tan-gold pistol was

found “directly over the railing” by the wall of the building, close to where T.B.

had been standing by the left-side railing.

1

The “tan-gold-in-color” pistol is also referred to in the record as “the light

black-and-tan firearm,” the “tan-and-black firearm,” and “a tan-colored

semiautomatic firearm.”

5

The Superior Court incorporated into the trial the entirety of Officer Moore’s

testimony from the suppression hearing. In the court’s suppression-hearing

findings that were incorporated into the court’s trial findings, the court referred to

T.B.’s possession of a firearm in the first video as a circumstance that supported

suspicion that “he was involved in an ongoing criminal offense” at the time the

police arrived at the Hayes Street address.

During the trial, the court also heard testimony from Officer Laielli and

admitted into evidence the entirety of both Instagram live videos, still shots taken

from those videos, footage from Officer Moore’s BWC, the “tan-gold-in-color”

pistol and corresponding ammunition, and the black handgun recovered from D.C.

and the corresponding ammunition and magazine. The government also

introduced footage from Officer Laielli’s BWC and showed it frame by frame,

pausing occasionally to let the officer describe his observations as the video

progressed.

The court credited the entire testimony of Officers Moore and Laielli and,

after incorporating the factual findings made at the earlier suppression hearing,

found that “the totality of the circumstantial evidence demonstrated beyond a

reasonable doubt that [T.B.] did have a loaded pistol [i.e., the “tan-gold-in-color”

pistol] in his waistband immediately prior to his arrest by the police.” The court

6

committed T.B. to the custody of the Department of Youth Rehabilitation Services

(“DYRS”) for a period not to exceed one year.

During the disposition proceeding, the court told T.B. that although it

entered a judgment of acquittal on the CPWL charge that was based on T.B.’s

possession of a pistol in the first video, “I knew you had a gun on you then, too.”

Regarding the CPWL charge as to which T.B. was not acquitted, the court

commented that the offense was “not a one-off occasion where something like this

happened” and said to T.B., “that’s really concerning to me – not just that you had

a gun on you once, but twice. And that not only did you have it, but you thought

there was some reason that you should be broadcasting that to the world that you

had it.”

On appeal, T.B. argues that the evidence at trial was insufficient to prove,

beyond a reasonable doubt, that he possessed the tan-gold-in-color firearm

recovered from the scene. T.B. emphasizes that this case involves only

circumstantial evidence and argues that the government’s case rested “solely” on a

stack of assertedly “weak” inferences. He contends that these inferences, “while

plausible,” cannot “bear the weight of proof beyond a reasonable doubt.”

Alternatively, T.B. argues that even if the evidence was sufficient, the

Superior Court erred when, over defense objection, it allowed Officers Moore and

Laielli to “interpret and narrate the Instagram video as lay witnesses” and to testify

7

to their opinions that T.B. “displayed characteristics of an armed gunman in the

video.” T.B. asserts that because the court “expressly relied on the improperly

admitted testimony,” the error was not harmless and reversal is required. 2 The

government defends the trial court’s findings based on the totality of the evidence

and also argues that T.B. either waived or forfeited his right to challenge on appeal

admission of the officers’ challenged testimony.

II. Applicable Law

The Superior Court found T.B. “involved” in a violation of D.C. Code

§ 22-4504(a) (providing that “[n]o person shall carry within the District of

Columbia either openly or concealed on or about their person, a pistol, without a

license issued pursuant to District of Columbia law”) and D.C. Code

§ 7-2506.01(a)(3) (possession of unregistered ammunition). “[C]arrying can be

established through actual possession of the pistol on [the] person or constructive

possession about [the] person.” Taylor v. United States, 267 A.3d 1051, 1059

(D.C. 2022) (internal quotation marks omitted). Actual possession may be

2

T.B. also urges that, if we find that the evidence was sufficient, we should

“exercise [our] discretion” to dismiss the petition rather than remand for a new

trial, because doing so would be “just in the circumstances” given that T.B has

“already completed his commitment” with DYRS and moved out of this

jurisdiction.

8

“established by either direct or circumstantial evidence.” Johnson v. United States,

40 A.3d 1, 14 (D.C. 2012).

“We review the sufficiency of the evidence de novo,” Fitzgerald v. United

States, 228 A.3d 429, 436 (D.C. 2020), and consider “all the evidence admitted at

trial, including the evidence appellant claims should have been excluded,

regardless of whether the court erred in admitting it.” Gore v. United States, 145

A.3d 540, 545 n.7 (D.C. 2016) (emphasis in original). We view the evidence “in

the light most favorable to sustaining the judgment,” Davis v. United States, 834

A.2d 861, 866 (D.C. 2003), and “mak[e] no distinction between direct and

circumstantial evidence,” Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C.

2017) (citation omitted). Our “review is deferential, giving full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.”3 Davis, 834 A.2d at 866 (citation and internal quotation marks omitted).

But if, in order to convict, “the [factfinder] [was] required to cross the bounds of

permissible inference and enter the forbidden territory of conjecture and

speculation,” then the evidence is insufficient. Curry v. United States, 520 A.2d

255, 263 (D.C. 1987).

3

“[A]n inference is a factual conclusion that can rationally be drawn from

other facts.” Smith v. State, 999 A.2d 986, 991 (Md. 2010).

9

In a case like this one, “built solely on circumstantial evidence and the

inferences drawn from that evidence, we are mindful of the high, demanding

standard of proof in a criminal case.” James v. United States, 39 A.3d 1262, 1270

(D.C. 2012). “The reasonable doubt standard of proof requires the factfinder ‘to

reach a subjective state of near certitude of the guilt of the accused.’” Rivas v.

United States, 783 A.2d 125, 134 (D.C. 2001) (quoting Jackson v. Virginia, 443

U.S. 307, 315 (1979)). “This requirement means more than that there must be

some relevant evidence in the record in support of each essential element of the

charged offense.” Id. “Slight evidence is not sufficient evidence; a ‘mere

modicum’ cannot ‘rationally support a conviction beyond a reasonable doubt.’” Id.

(quoting Jackson, 443 U.S. at 320). Even so, “[t]he evidence need not compel a

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

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

(emphasis added) (citation and internal quotation marks omitted). Rather, “proof

of guilt is sufficient if . . . any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Davis, 834 A.2d at 866

(citation and internal quotation marks omitted).

III. Sufficiency of the Evidence

Examining all the evidence admitted at trial as a whole, we are satisfied that

it was sufficient to prove T.B. had actual possession of the tan-gold-colored

10

firearm. While the trial court did have to make a number of inferences to reach

that conclusion, it is well-established that the finder-of-fact “is permitted to infer

from one fact the existence of another essential to guilt, if reason and experience

support the inference” and that “proof of the first fact [can] furnish[] a basis for

inference of the existence of the second.” Tot v. United States, 319 U.S. 463, 467

(1943). Moreover, while “[i]t is elementary that the burden is upon the

government to prove each and every element of the crime beyond a reasonable

doubt,” Geddie v. United States, 284 A.2d 668, 669-70 (D.C. 1971) (internal

quotation marks omitted), the government’s burden “does not operate upon each of

the many subsidiary facts on which the prosecution may collectively rely to

persuade the [finder of fact] that a particular element has been established beyond a

reasonable doubt.” United States v. Viafara-Rodriguez, 729 F.2d 912, 913 (2d Cir.

1984).

T.B. focuses first on the inference that the object that can be seen in T.B.’s

waistband in the second video was the recovered “tan-gold-in-color” gun, and not a

different object, such as a cell phone or drugs. We agree that this was a critical set

of inferences, but we are satisfied that they were supported by much more than a

modicum of evidence. As to the inference that the object in T.B.’s waistband in

the second video was a gun, there was, to begin, what the trial court referred to as

“the observations of [the] officers regarding [T.B.’s] behavioral characteristics” in

11

the second video. Specifically, there was Officer Moore’s testimony that in the

second video, in which another individual was flashing a firearm, T.B. was

displaying the “characteristics of an armed gunman” in that he could be seen

adjusting an object at his waistline that was not consistent with the male anatomy

and that appeared to be “heavy-weighted.” 4 Officer Laielli similarly described

T.B.’s actions shown in the second video as displaying the characteristics of an

armed gunman, in that T.B. was “flashing” his waistband to “try[] to show

something off.”

In addition, having viewed T.B. displaying a gun in the first video, the court

had an additional basis for inferring that the briefly flashed object in T.B.’s

waistband in the second video was also a gun. While T.B.’s counsel asserted

during oral argument that drawing an inference from T.B.’s displaying of a gun in

the first video would amount to relying on propensity evidence, that conclusion is

debatable at the very least.5 But even if arguendo the evidence from the first video

4

We discuss infra T.B.’s claim that it was error to admit this testimony.

Regardless, we may properly rely on it in our analysis of sufficiency of the

evidence. See Gore, 145 A.3d at 545 n.7.

5

As noted above, in the trial court’s suppression-hearing findings that were

incorporated into its trial findings, the court referred to the circumstance of T.B.’s

being “involved in an ongoing criminal offense” at the time the police arrived at

the Hayes Street address. This court observed in Johnson v. United States, 683

A.2d 1087 (D.C. 1996) (en banc), that “Drew [v. United States, 331 F.2d 85 (D.C.

Cir. 1964)] made it abundantly clear that its prohibition [against so-called “other

12

was propensity evidence, it is evidence that can be taken into account for purposes

of determining whether the evidence was sufficient for conviction. See supra note

4.

crimes” or propensity evidence] was directed at crimes independent of the crime

charged.” Id. at 1096 (“[T]he Drew court concluded in relevant part that when ‘the

two crimes arose out of a continuing transaction or the same set of events’ the

danger of admitting evidence of both in one trial is minimal.”); see also Toliver v.

United States, 468 A.2d 958, 960-61 (D.C. 1983) (stating that “other crimes

evidence is admissible when relevant to explain the immediate circumstances

surrounding the offense charged,” and citing authority that “[e]vidence of an

uncharged offense arising out of the same transaction or series of transactions as

the charged offense is not an extrinsic offense within the meaning of [other crimes

evidence].” (internal quotation marks omitted)); Parker v. United States, 586 A.2d

720, 724 (D.C. 1991) (observing that Toliver and its progeny support “the

uncritical admission of bad acts and other crimes evidence that is so intertwined

with the charged conduct that the latter is unclear without the former, but only

where there is a close temporal relationship.”).

Moreover, “[e]vidence of other crimes is admissible when relevant to . . .

intent[.]” Drew, 331 F.2d at 90. Here, as described above, the trial court regarded

the first video as establishing that T.B.’s intent, in displaying his waistband for the

camera that was recording a video for Instagram, was to broadcast that he had a

gun on his person. At least arguably, under the Drew intent exception, the trial

court could permissibly infer that T.B.’s displaying of the light-colored object in

his waistband in the second video evinced the same intent: to broadcast that he had

a gun on his person. Cf. Legette v. United States, 69 A.3d 373, 385 (D.C. 2013)

(“If a person acts similarly in similar situations, he probably harbors the same

intent in each instance, and . . . such prior conduct may be relevant circumstantial

evidence of the actor’s most recent intent. The inference to be drawn is not that the

actor is disposed to commit such acts; instead, the inference to be drawn is that, in

light of the first event, the actor, at the time of the second event, must have had the

intent attributed to him by the prosecution.”) (brackets and internal quotation

marks omitted).

13

We turn next to the further inference that the gun in T.B.’s waistband in the

second video was the recovered gun. The court had before it Officer Laielli’s

testimony and the court’s own perception that the object that can be seen in T.B.’s

waistband in the second video was “light-colored” or “in a lighter color” by

comparison to T.B.’s black underwear. T.B. suggested at oral argument that the

court’s findings merely tracked the officer’s testimony, but we have no reason to

doubt that the court understood that “it was for the [court as the finder-of-fact] to

decide what the video footage showed.”6 Callaham v. United States, 268 A.3d

833, 848-49 (D.C. 2022); see also Bernal v. United States, 162 A.3d 128, 134 n.11

(D.C. 2017) (“Judges are presumed to know the law.”). The court also heard

evidence that the officers found nothing in T.B.’s waistband when they stopped

him, but found the tan-gold-in-color pistol on the ground below the railing where

T.B. had been standing just before he was patted down. From the foregoing

evidence, the court could reasonably infer that the light color seen in the second

video was the tan-gold-in-color recovered gun, which T.B. had in his waistband

twenty minutes before the police arrived, but discarded when the officers

approached the stoop. The trial court “was not required to attribute to coincidence

6

For example, the court found “based on its viewing of the videos,” that

T.B. “is clearly the person depicted” in both the first and the second video.

14

the discovery” of the tan-gold-in-color pistol on the ground below where T.B. had

been standing in front of the stoop railing.7 In re A.L., 839 A.2d 678, 679-80 (D.C.

2003). The inference was made all the more reasonable by the fact that the second

video showed on the ground no other objects (such as, T.B.’s brief suggests, a cell

phone, a wallet, a bag of drugs, or a knife) that T.B. might have discarded. The

inference was also supported by the testimony that the recovered pistol was dry

even though it had been raining before the police arrived 8—supporting an

inference that it had been placed on the ground shortly before police discovered it.

To summarize the foregoing, T.B. was seen displaying a gun in his

waistband in the first video; then, hours later the same day, he was seen in the

second video flashing, in the manner of an armed gunman, a light-colored object in

his waistband (while his companion displayed the gun seen in that first video); and

then, about twenty minutes later, a light-colored, discarded, loaded gun—dry even

though it had been raining—was found on the ground just below where T.B. had

7

After watching his BWC footage, Officer Moore testified that he recovered

the tan-gold-in-color pistol from the ground on “the side of the bannister directly

next to where [T.B.] was standing.” After watching his BWC footage, Officer

Laielli testified that when he arrived on the scene, T.B. was standing “on the left

side by the railing” closest to where the “tan-colored semiautomatic firearm” was

thereafter recovered “on the ground on the left side of the stoop.”

8

Officer Moore testified that there was no indication that the tan-gold-in-

color pistol had been exposed to the weather, despite it having rained all day.

15

been standing moments earlier. Taken together, this evidence allowed the trial

court to infer that there had been ongoing criminal activity that day and to infer

beyond a reasonable doubt that T.B. had carried the recovered gun just before

police found it on the ground.

T.B. argues, however, that, to arrive at its adjudication that he was

“involved” in CPWL and UA, the trial court also had to infer that he still had the

gun on his person twenty minutes after the officers’ live viewing of the second

video. That inference, he argues, was based on mere speculation, and did not take

into account that the BWC video shows him walking toward the stoop as the

officers arrived. It is just as likely, he asserts, that he returned home or went

elsewhere to meet a friend or otherwise left the immediate area during the twenty-

minute interval, and had an opportunity to leave behind whatever was seen in his

waistband in the second video. 9 But it is T.B.’s brief that engages in speculation in

positing such activity during the twenty-minute interval, 10 and, in any event, it was

9

Of course, the trial court as finder-of-fact was not compelled to accept the

posited innocent explanation of what occurred during the twenty-minute interval.

See Wagman v. District of Columbia, 148 A.2d 308, 310 (D.C. 1959).

10

During the suppression hearing and trial, T.B.’s counsel emphasized in her

questioning that T.B. seemed to be wearing sweatpants in the first video, but some

other type of pants at the time of his arrest, questions that seemed directed at

establishing that, in the course of the day, he went somewhere where he could

change clothes (though the change does not seem to have occurred between the

time of the second video and the officers’ arrival at Hayes Street).

16

not necessary for the trial court to infer that T.B. still had the gun seen in the

second video on his person as the police officers approached. The BWC video

shows that T.B. stood facing and engaging with D.C., with his back to the

approaching officers, his hands raised to his waist in front of his body and his

elbows tucked up when viewed from behind, before the officers reached the stoop.

For all we know, T.B. might have transferred the tan-gold-colored gun to his

waistband in that moment. The trial court did not need to make a finding about

whether T.B. “still had” the light-colored gun when police arrived at the scene (or

whether he had possession of the gun during the entire twenty minute interval, or

whether instead he re-acquired it just after the police arrived) to be able to make a

further inference that T.B. deposited the pistol on the ground when he stood facing

the left-side railing with his arms raised toward his waistband just before he was

apprehended.11

11

Even though there was no testimony that any of the officers saw T.B. in

possession of the firearm at the scene, we have never required such direct evidence

to support a finding of actual possession. See, e.g., Hooks v. United States, 191

A.3d 1141, 1144-45 (D.C. 2018) (jury properly inferred that defendant possessed

revolver where police heard a “loud, metallic noise just before [defendant] moved

his hand away from the opening in” a dumpster where the revolver was

subsequently found, despite no officer actually seeing defendant in possession of

the revolver); White v. United States, 714 A.2d 115, 118 (D.C. 1998) (court could

“reasonably infer” that defendant had a gun in his hand despite the officer never

seeing defendant actually possessing it). And, in any event, the officers did see on

17

The third required inference, T.B. argues, was that he “tossed” something

over the left side railing. The trial court did find that T.B. “tossed” something over

the railing, but T.B.’s precise movement was not critical. The court could just as

readily have found that T.B. discarded the object in his waistband by dropping it

“directly over the railing” with an outstretched arm. 12

The fourth required inference, T.B. argues, was that the recovered gun was

deposited onto the ground by T.B. and not put there by one of the other individuals

on the stoop or by some other resident of the housing complex. T.B. asserts that

the trial court “did not address the other young man, also partially visible in Officer

Laielli’s [BWC] footage, who was seen standing closer to the abandoned gun than

T.B. was,” and who “also turned away from police as they arrived at the scene.”

We see in the record no basis for T.B.’s assertion that the other young man was

standing closer to the recovered gun than T.B. was. As the government notes, the

still photo from the BWC footage shows that the gun was found next to the

building wall, while the young man in question was standing at the middle of the

railing, between T.B. and another young man in a blue T-shirt, farther away from

video a light-colored, heavy-looking object in T.B.’s possession prior to recovering

the tan-gold-in-color pistol from the ground.

12

Officer Laielli testified that Officer Moore “didn’t have to search” for the

gun because “[h]e could see it from the railing.” T.B.’s counsel acknowledged that

the bush under which the gun was found was “right next to” the railing.

18

the wall and the gun than T.B. was. And, in any event, the presence of the young

man in question, who T.B. asserts “displayed behavior similar to that of T.B.,”

does not weaken or render speculative the inference that T.B., and not this other

young man, caused the tan-gold-colored pistol to be on the ground. That is

because there was a second gun (a revolver) on the ground that the other young

man might have discarded, and because only T.B. was seen with a light-colored

object in his waistband that was consistent with the tan-gold-in-color pistol.

We do not believe that the facts of this case differ in any material way from

the facts of A.L., where we were satisfied that the evidence was sufficient to prove

that A.L. had possessed a bag of marijuana that was found stuffed in a drain pipe in

a stairwell that A.L. spent a few seconds in after police saw him from a distance

with a “shiny object “in his hand. 13 For that and all the foregoing reasons, we

13

We reasoned:

Officer Shumac had no reason to proceed to the stairwell

unless he first saw A.L. go there with suspected

contraband in his possession. Immediately after A.L. left

the stairwell, Shumac followed him there and found the

contraband in the stairwell. The officer testified that the

bag he found was consistent with, i.e., looked like, the

shiny object he had previously seen in A.L.’s possession.

The judge was free to credit this testimony, and he was

not required to attribute to coincidence the discovery, in

the stairwell to which A.L. had hastened upon seeing the

police, of a plastic bag resembling the one he had seen in

A.L.’s hand.

19

conclude that the evidence in totality was sufficient to support the trial court’s

findings that T.B. was involved in CPWL and UA.

IV. Erroneous Admission of Evidence

T.B. argues that even if the evidence admitted at trial was sufficient to prove

beyond a reasonable doubt that he was involved in the charged offenses, reversal is

required because the Superior Court’s conclusions were “substantially swayed” 14

by erroneously admitted testimony on which the court expressly relied.

More specifically, T.B. contends that the officers should not have been

permitted to narrate the second video because they “did not personally witness the

events depicted in the Instagram video that they narrated” and thus were not

testifying based on personal knowledge. T.B. further contends that the officers’

testimony about T.B. exhibiting the characteristics of an armed gunman constituted

improper lay-opinion testimony because it was not based on their personal

experiences and observations but on specialized training they received from the

MPD and/or the U.S. Army. The government asserts that T.B. either forfeited or

waived his challenges to the officers’ narration testimony because he did not lodge

a timely objection to either officer’s testimony and, as to Officer Moore’s

A.L., 839 A.2d at 679-80.

14

Kotteakos v. United States, 328 U.S. 750, 765 (1946).

20

testimony, declined to lodge an objection when the court asked whether he

objected to incorporating Officer Moore’s testimony into the trial record.

Our review of the record confirms that during Officer Moore’s testimony,

T.B.’s trial counsel did object to the officers’ lack of personal knowledge of the

context of the Instagram videos so as to be able to authenticate them. Counsel did

not, however, object that Officer Moore lacked personal knowledge that would

enable him to interpret what the video showed (e.g., that T.B. was “adjusting

something in his waistline”). Thus, we agree with the government that T.B

forfeited his objection to Officer Moore’s narration. Moreover, although the trial

court gave counsel an opportunity to object to incorporation of Officer Moore’s

testimony as trial evidence, trial counsel stated that she had no objection, thereby

waiving the lack-of-personal-knowledge argument T.B. now advances.

Trial counsel did raise a “[l]ack of personal knowledge” objection to Officer

Laielli’s testimony that T.B. “appeared to be flashing his waistband” and “trying to

show something off” in the background of the second video. And while counsel

did not state an objection to Officer Laielli’s further testimony that “there appeared

to be something in a lighter color in the front of [T.B.’s] waistband” in the second

video, the court had overruled counsel’s “[l]ack of personal knowledge” objection

raised a page earlier in the trial transcript, so we do not take that non-objection as a

forfeiture. See Mercer v. United States, 724 A.2d 1176, 1182 (D.C. 1999) (“An

21

objection may be considered timely, even if not made at the moment a question is

asked, so long as the objection gives the trial court an opportunity” to “take

appropriate and effective corrective action.” (internal quotation marks omitted)).

Our case law establishes that “lay witness testimony generally must be based

on personal knowledge” and that personal knowledge cannot be gained merely by

watching video footage. See Callaham, 268 A.3d at 848 (rejecting the

government’s argument that detectives “‘witnessed’ the events in question—and

thereby obtained personal knowledge of them—solely by watching recorded

surveillance footage”). We therefore agree that it was error to admit Officer

Laielli’s narration of the second video. However, from our review of the

transcript, we are satisfied that the court’s findings about what T.B. was doing in

the second video were based on the court’s own “close[]” viewing of the video

evidence and interpretation of what it showed, and not on mere acceptance of

Officer Laielli’s (or Officer Moore’s) narration. We focus in particular on the

court’s “can be seen” and “is seen” formulations: i.e., its statement that in the

second video, “when the defendant flashes his waistband briefly, a light-colored

object can be seen in his front waistband in front of his black underwear”; and its

statement, one transcript page later, that T.B. “can be seen flashing his waistband

and . . . a light-colored object is seen in front of his black underwear[.]” Further,

from our own viewing of the video and still images, we judge that they permitted

22

the trial court to draw those conclusions about what the footage showed.

Accordingly, we conclude that the improperly admitted narration was harmless and

does not entitle T.B. to reversal.15

As noted, the second part of T.B.’s argument focuses on Officer Moore’s

and Officer Laielli’s testimony that T.B. was displaying the characteristics of an

armed gunman. Specifically, Officer Moore testified that in the second video, in

which another individual was “flashing a firearm” in his waistband, T.B., too, was

“giving characteristics of an armed gunman” in that he “was adjusting something

that was not consistent with the male anatomy,” and that “looked to be a heavy-

weighted object,” in the front of his pants. Officer Moore told the court that he

knew the characteristics of an armed gunman based on having “been trained with

the Metropolitan Police Department, as well as the United States Army Criminal

Investigation Command, on how to detect an individual who has possession of a

firearm.” T.B.’s trial counsel did not object when Officer Moore first said that

15

To the extent that Officer Moore’s suppression-hearing testimony about

the officers’ belief that T.B. had a gun on him in the second video had the potential

to shape the court’s perception of what it saw in that second video, that possibility

seems unavoidable. The testimony was necessary to explain to the court why the

officers had reasonable articulable suspicion to stop and frisk T.B. as soon as they

arrived at the stoop. In any event, because we have already held that T.B. forfeited

or waived any objection to Officer Moore’s suppression-hearing narration about

what he believed he saw in the second video, any indirect influence that testimony

might have had on the court’s own perception of the video is not a basis for

reversal.

23

T.B. exhibited the characteristics of an armed gunman and cited his training as the

basis for his opinion, but counsel did object the second time Officer Moore made

the statement. Thus, the court was apprised of the objection in time to consider

whether to rely on the opinion in making its findings. See Mercer, 724 A.2d at

1182. And, although T.B. did not object to incorporating Officer Moore’s

testimony, the trial court did say that it intended not to incorporate hearsay

testimony into the trial record, and the government asked the court to incorporate

into the trial “all relevant non-hearsay testimony.” To the extent Officer Moore’s

testimony was based on his training—i.e., was based on what he was taught—rather

than on his experience, it at least arguably was hearsay. That is, it was hearsay to

the extent it can be understood as a statement that Officer Moore was taught during

his training that a man exhibits the characteristics of an armed gunman if, in a

video in which another individual is seen flashing a firearm, he is seen adjusting, in

the front of his pants, a heavy-weighted object not consistent with the male

anatomy. 16 Cf. State v. Hill, 387 P.3d 112, 115-17 (Idaho 2016) (holding that a

It may be that Officer Moore was simply describing what he saw that

16

made him suspicious; he gave the testimony under discussion in response to the

question, “what, specifically, about that video gave you reason to believe that that

individual was armed?” But that question and response followed immediately after

he was asked to explain how he knew that T.B. was “giving characteristics of an

armed gunman,” a question he answered by citing his training with the MPD and

Army “on how to detect an individual who has possession of a firearm.”

24

police deputy’s testimony, about what he was taught in the police academy

regarding what a certain result on a field sobriety test indicates, was hearsay).

Assuming without deciding that Officer Moore’s characteristics-of-an-

armed-gunman testimony was hearsay, we shall further assume without

definitively deciding that T.B. neither forfeited nor waived an objection to the

testimony and that the testimony was erroneously admitted as trial evidence.17 We

also note that the trial court expressly cited Officer Moore’s testimony in finding

that T.B. “appeared to have the characteristics of someone carrying a gun,

including having something that [Officer Moore] believed consistent with a

firearm in his pants.” However, Officer Moore’s opinion added little or nothing to

Officer Laielli’s similar opinion, discussed below, and we therefore cannot find

that allowing Officer Moore’s testimony constituted reversible error.18

17

We acknowledge the point, made in the government’s brief, that the rules

of evidence, including the rules regarding expert and lay-witness opinion

testimony, may not apply at suppression hearings. See Matoumba v. State, 890

A.2d 288, 292-93 (Md. 2006) (holding that, under Maryland’s rules of evidence, a

police officer need not be qualified as an expert at the suppression hearing because

the rules of evidence do not apply). However, we need not resolve that issue here

since Officer Moore’s suppression-hearing testimony other than hearsay was

incorporated into the trial evidence.

18

See Settles v. United States, 615 A.2d 1105, 1109 (D.C. 1992) (“Relevant

to a determination of whether error (assumed or actual) in admitting certain

evidence is harmless is the degree to which the evidence is cumulative of other,

properly admitted evidence.”).

25

Officer Laielli testified that “[t]hrough [his] experience and training with the

[MPD] Crime Suppression Team,” he had “come to recognize what characteristics

of armed gunmen are” and that T.B. was displaying such characteristics through

“[t]he flashing of the waistband.” As T.B.’s trial counsel did not object to Officer

Laielli’s testimony and raises for the first time on appeal his argument that Officer

Laielli was erroneously allowed to give improper lay-opinion testimony, our

review is for plain error. 19

T.B. contends that it is plain under this court’s opinion in King v. United

States, 74 A.3d 678 (D.C. 2013), that police officers may not give lay-opinion

testimony that is based at least in part on their training. (T.B. also contends that

Officer Laielli’s testimony was based not on the officer’s personal experience, but

instead on his special training and specialized knowledge, but does not explain

why the trial court could not properly credit the officer’s statement that his

recognition of the characteristics of an armed gunman was based in part on his

experience.)20

19

See Bell v. District of Columbia, 132 A.3d 854, 858 (D.C. 2015); In re

T.M., 155 A.3d 400, 405 (D.C. 2017) (“Under the test for plain error, appellant

must show error, that is ‘plain,’ that affected [his] substantial rights, and that

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.”)

T.B. asserts that the government has conceded that the officers’ testimony

20

was improper, but we disagree. The government’s brief refers to the officers’

26

We do not agree that King precludes a police officer from giving lay-opinion

testimony that is based on their experience if it has also been a subject of their

specialized training. As we said in King, lay-opinion testimony “results from a

process of reasoning familiar in everyday life, whereas an expert’s testimony

results from a process of reasoning which can be mastered only by specialists in

the field.” Id. at 682 (quoting Fed. R. Evid. 701 advisory committee’s note to 2000

amendment (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992)). Thus, in

considering whether an officer’s opinion is admissible as a lay opinion, “a court

must focus on the reasoning process by which a witness reached his proffered

opinion.” Id. (quoting United States v. Garcia, 413 F.3d 201, 215 (2nd Cir. 2004)

(internal quotation marks omitted)). 21 We held in King that where officers offer

opinions based on their personal experiences and observations interacting with

individuals in the D.C. streets while investigating crimes, a proper foundation can

be laid for the officers’ opinion testimony “grounded in perceptions gained through

“purportedly expert opinion,” states that Officer Moore’s testimony was “properly

admitted,” and also explains (correctly) that Officer Laielli relied on both his

experience and training to form his opinion. In addition, during oral argument,

government counsel characterized the officers’ testimony as expert testimony that

was properly admitted since there was no lack-of-foundation objection.

21

See also King, 74 A.3d at 682 (finding force in the “reasoning process”

focus of Garcia, but not adopting the statement in Garcia (on which T.B. relies)

that a law enforcement agent may not testify as a lay witness to an opinion based

“in whole or in part[] on his specialized training”).

27

their personal experiences.” Id. at 682-83 (noting that “the reasoning process the

officers employed to interpret the street language was the everyday process of

language acquisition”).

In this case, it seems quite possible that the reasoning process Officer Laielli

employed was a non-complex process that is “familiar in everyday life”: the

process of noting the correlation between certain observed behaviors—here, the

flashing of a waistband (by individuals the officer had encountered during his three

years with the MPD, including his work as part of the Sixth District Crime

Suppression Team investigating firearms) and the carrying of a firearm (confirmed

upon pat-down or frisk).22 In other words, it seems possible that “the officer’s

knowledge was formed through his simple, personal observations of human

conduct in his every day work” investigating firearms. King, 74 A.3d at 683; see

also id. at 681 (noting that this court has allowed police officers to offer lay

22

“Although the officer’s professional experience . . . gave him the unique

opportunity to regularly observe” the results of pat-downs, “what ultimately made

the testimony lay testimony was the fact that the officer’s knowledge was formed

through his simple, personal observations of human conduct in his every day

work.” King, 74 A.3d at 683.

Officer Moore testified that in his (less than three) years as an MPD officer,

including nine months as a member of the Crime Suppression Team investigating

firearms and narcotic sales, he had been involved in “well over a hundred” firearm

investigations and had recovered about the same number of firearms. Officer

Laielli did not say how many firearms he had recovered, but, given the two

officers’ similar tenure with MPD (“coming up on three years”), we surmise it was

about the same number as Officer Moore had recovered.

28

testimony “about the event in question based on their observation of similar events

during their professional experience” (citing, inter alia, Harris v. District of

Columbia, 601 A.2d 21, 23 (D.C. 1991) (holding that the trial court did not err in

admitting police officers’ lay-witness testimony that “based on their experiences

dealing with persons under the influence of drugs, they believed that [the

defendant] was under the influence of some substance”))).

T.B. could properly have raised a lack-of-foundation objection to Officer

Laielli’s testimony since the officer did not describe in any detail his reasoning

process or his experience, but T.B.’s counsel raised no such objection. In the

absence of such an objection, we conclude that the Superior Court did not plainly

err in admitting Officer Laielli’s opinion testimony about what he recognized as a

characteristic of an armed gunman, which he said was based on his “experience” as

a crime suppression officer. See Reavis v. United States, 395 A.2d 75, 79 (D.C.

1978) (“Even if the proffered evidence is infirm the trial judge does not err by

admitting it in the absence of a timely objection to its admissibility unless to admit

it is plain error.”).

VI. Conclusion

For the foregoing reasons, the judgment of delinquency, based on T.B.’s

involvement in CPWL and UA, is

Affirmed.