Stubblefield v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 23-CF-0982

MARK STUBBLEFIELD, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2022-CF3-006837)

(Hon. Jason Park, Trial Judge)

(Submitted December 19, 2024 Decided June 26, 2025)

Nancy E. Allen was on the brief for appellant.

Amanda Claire Hoover, Assistant United States Attorney, with whom

Matthew M. Graves, United States Attorney at the time of submission, and

Chrisellen R. Kolb, Carlos Valdivia, and Alec Levy, Assistant United States

Attorneys, were on the brief, for appellee.

Before BECKWITH, MCLEESE, and DEAHL, Associate Judges.

Opinion for the court by Associate Judge DEAHL.

Opinion concurring in the judgment in part and dissenting in part by Associate

Judge MCLEESE at page 27.

DEAHL, Associate Judge: Mark Stubblefield was charged with multiple

offenses stemming from two separate robberies—the first at a Truist Bank in

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October 2022, and the second at a People’s Bank in November 2022. Stubblefield

went to trial on the counts stemming from the October robbery: armed robbery and

threats to injure or kidnap. After a jury found him guilty of both offenses,

Stubblefield pled guilty to one count of robbery in connection with the November

incident.

Stubblefield now appeals his armed robbery conviction in connection with the

October robbery. He argues that there was insufficient evidence to conclude that he

was armed with a “dangerous or deadly weapon” during the October robbery; though

he told the tellers he had a bomb, no witness saw a bomb, no bomb was ever

recovered, and the evidence did not prove that the tellers actually believed he had a

bomb. D.C. Code § 22-4502(a). The government counters that Stubblefield waived

his right to appeal any of his convictions when he entered a post-trial guilty plea to

the November offense. On the merits, the government argues that it did not need to

prove that Stubblefield was in fact armed with a bomb, though it suggests that its

evidence sufficed to prove that anyhow. More forcefully, the government argues

that Stubblefield intentionally created a reasonable belief in his victims that he was

armed with a bomb during the robbery, which the government argues is sufficient to

sustain the robbery while armed conviction. We conclude that Stubblefield did not

waive his right to this appeal and that the evidence was insufficient to establish that

he was armed with a dangerous weapon because the government did not prove that

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Stubblefield was actually armed with a bomb, nor did it prove that his victims

subjectively believed that he had a bomb. We therefore reverse Stubblefield’s armed

robbery conviction and remand for entry of its lesser included robbery conviction as

to that offense.

I. Factual Background

The evidence is largely undisputed, and we recount it with a focus on

Stubblefield’s challenge to whether the evidence was sufficient to conclude that he

was armed with a bomb during the October robbery.

At Stubblefield’s trial for the October offenses, the government presented

testimony from two bank tellers—Ronece Turner and Mason Sash—to establish that

Stubblefield robbed a Truist Bank branch while claiming to have a bomb.

Surveillance footage showed Stubblefield entering a Truist Bank branch and

approaching the teller station, where Turner and Sash were counting a large sum of

cash. According to Sash, Stubblefield then instructed Turner to “slide [the cash]

under” the glass partition, but neither teller reacted until the robber said “he ha[d] a

bomb, and [was] going to blow this place up.” Both Turner and Sash then hit a silent

alarm that notifies Truist’s security when a robbery is underway, and Turner handed

over $10,000 in cash. Turner explained that she was “terrified” and in “fear[] for

[her] life,” and she complied with Stubblefield’s demands so that “he could leave as

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soon as possible.” Sash testified to feeling “insane adrenaline” and “definitely a

little bit scared.” Stubblefield evaded capture for a time—he was not arrested until

about a month later, after a second bank robbery in November—and no bomb was

ever found.

Although neither teller saw anything resembling a bomb, Turner testified that

the robber “pointed into [his] bag” when he said he had a bomb, as if to indicate

“[t]hat the bomb was in the bag.” Turner thought “there was a possibility [the

robber] had a bomb” “based on what [he] said and his gestures.” But she was never

asked by the government or defense counsel whether she believed the robber in fact

had a bomb. Sash testified similarly. He opined that there was “definitely a

possibility” that the robber had a bomb, so he thought it best to “just comply” with

the robber’s demands. As with Turner, the government never asked Sash pointedly

whether he actually believed “the robber had a bomb.” But defense counsel asked

that pointed question in cross-examination, and Sash responded in the negative: “I

guess I didn’t [think that the robber had a bomb],” though he “might” have.

The trial court instructed the jury on the elements of robbery while armed.

Relevant here, it told jurors that Stubblefield was armed with a dangerous weapon

so long as he used an object “in a manner that is intended to lead the complainant

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reasonably to believe that it is an object that would cause death or serious bodily

injury.”

The jury found Stubblefield guilty of armed robbery and threats stemming

from that October incident. Stubblefield then pled guilty to one count of robbery in

connection with a November robbery of a People’s Bank. In relevant part, the plea

agreement provided that Stubblefield would “waive, insofar as such waiver is

permitted by law, the right to direct appeal the convictions in this case,” though it

did not specify if “this case” included the October charges that he had already stood

trial on. At the in-court plea colloquy, the court confirmed that Stubblefield had

reviewed the plea agreement with his attorney and understood that he was giving up

several rights, including his right to appeal, but as with the plea agreement, the

colloquy did not specify which convictions that waiver would apply to.

The trial court sentenced Stubblefield to concurrent terms of imprisonment of

(1) fifteen years for the October armed robbery offense, (2) fifteen years for the

November robbery offense, and (3) twenty-two months for the October threats

offense. At the sentencing hearing, the trial court advised Stubblefield, without

objection from the government, that he had a right to “appeal . . . those convictions

that resulted in a jury trial conviction.” Stubblefield now appeals, challenging only

the “while armed” aspect of his October robbery conviction.

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II. Analysis

Stubblefield argues on appeal that the evidence was insufficient to conclude

that he committed an armed robbery. More specifically, he argues that there was not

evidence from which one could conclude beyond a reasonable doubt that he was in

fact armed with a bomb, or that the tellers reasonably and subjectively believed that

he was armed with a bomb, when he robbed the Truist bank. The government

responds that (1) Stubblefield waived his appellate rights in his post-trial plea

agreement so that we should dismiss this appeal, and (2) in the alternative, the

evidence was sufficient to find that Stubblefield was actually armed or that his

actions instilled a reasonable belief in the tellers that he was. We address those

points in turn.

A. Stubblefield Did Not Clearly Waive His Right to Appeal the Earlier Convictions

Stubblefield and the government disagree about whether he waived his right

to appeal his convictions stemming from the October robbery when, after standing

trial for the charges stemming from that incident, he entered a guilty plea resolving

the charges stemming from the November incident. Their dispute reduces to what

the plea agreement means when it says that Stubblefield waives his “right to direct

appeal the convictions in this case.” (emphasis added). The government contends

that “this case” captures all of the offenses, stemming from both the October and the

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November incidents, given that the offenses were all charged as part of one unified

indictment, even though the offenses were later severed before trial. Stubblefield

counters that he only waived his right to appeal the conviction that he pled guilty to,

i.e., the conviction from the November robbery.

“[A] plea agreement is a contract,” so we “look to principles of contract law

to determine” the meaning of its terms and whether there has been a breach. In re

Robertson, 19 A.3d 751, 761 (D.C. 2011) (quoting United States v. Jones, 58 F.3d

688, 691 (D.C. Cir. 1995)). Ordinarily, we will enforce a plea agreement, including

an appellate waiver, so long as the defendant agreed to it “voluntarily, knowingly,

and intelligently, with sufficient awareness of the relevant circumstances and likely

consequences.” Hilliard v. United States, 879 A.2d 669, 671 (D.C. 2005) (quoting

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)). Critically in this case, we construe

“any ambiguity” in a plea agreement “against the government.” Stedman v. District

of Columbia, 12 A.3d 1156, 1158 (D.C. 2011) (quoting White v. United States, 425

A.2d 616, 618 (D.C. 1980)); Louis v. United States, 862 A.2d 925, 928 (D.C. 2004)

(“This court construes any ambiguity [in a plea agreement] against the

government.”); see also United States v. Jackson, 26 F.4th 994, 999-1000 (D.C. Cir.

2022) (Because “[a]n ambiguous appeal waiver cannot be knowingly, intelligently,

and voluntarily agreed to,” courts “will not bar the door to a criminal defendant’s

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appeal if his waiver only arguably or ambiguously forecloses his claims.” (quoting

United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016))).

This plea agreement’s appellate waiver provision is simply not clear about

whether it applies to the October offenses that Stubblefield had already stood trial

on, so we must resolve that ambiguity against the government and allow this appeal

to proceed. The government has three counterpoints, but none has enough force to

render this an unambiguous waiver of Stubblefield’s right to appeal the October

convictions.

First, the government posits that as a matter of plain language, the phrase “this

case” encompasses all counts that were jointly indicted, even though the counts were

later severed for trial. While that is certainly one conceivable meaning of the phrase,

it is definitely not the only one. It is equally natural, and perhaps more so, to refer

to separate groups of offenses that have been severed for separate trials as

comprising distinct cases. The transcripts of the plea colloquy potently illustrate the

point. As part of the plea agreement, the government agreed to waive sentencing

enhancements for the November robbery offense. The trial court clarified that

“you’re not waiving enhancements for the other case . . . right?,” and while the

government replied that “it’s all one case,” the trial court rebutted “Oh—for the

other—what I caused to become another case.” This trend continued later, at the

sentencing hearing, when the trial court advised Stubblefield—without correction

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from the government—that he had a right to “appeal . . . those convictions that

resulted in a jury trial conviction,” evincing the trial court’s own understanding that

Stubblefield’s waiver of his appellate rights from “this case” applied only to the

November incident.

We find the trial court’s persistent references to the severed cases, rather than

severed charges comprising one unified case, perfectly natural. Like the trial court,

this court has also referred to distinct groups of severed charges as separate cases,

even when they were jointly indicted. See, e.g., Pinkney v. United States, 851 A.2d

479, 483 n.1 (D.C. 2004) (“Curry and appellant were jointly indicted, but Curry’s

case was severed before trial.” (emphasis added)); Banks v. United States, 237 A.3d

90, 93, 105 (D.C. 2020) (holding trial court erred in denying motion to sever jointly

indicted counts related to five separate robberies and remanding for new trials in two

of those “cases”); see also Cox v. United States, 498 A.2d 231, 234, 237 (D.C. 1985)

(referring to “joinder of the two rape cases” that had been jointly indicted). So this

point is of little help to the government.

Second, the government stresses that the plea waiver uses the plural form

when it states that Stubblefield waives his “right to direct appeal the convictions in

this case.” (emphasis added). Because there was only one conviction stemming

from the November incident, the argument goes that the waiver must apply to the

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October incident as well, otherwise the word “convictions” was inapt. This point

would have far more force if the plea agreement consistently spoke of multiple

convictions, but it instead oscillates between the singular and plural form of that

word. For example, within the same paragraph detailing the appellate waiver, the

agreement reads: “Notwithstanding the above agreement to waive the right to appeal

the conviction and sentence, [Stubblefield] retains the right to appeal on the basis of

ineffective assistance of counsel.” (emphasis added). Elsewhere, the appellate

waiver paragraph notes that Stubblefield is waiving his right to challenge the

convictions he “is pleading guilty” to, and he pled guilty to only one count, with the

others being resolved via jury trial. Both of those sentences suggest the appellate

waiver applies only to the single conviction stemming from the November offense.

To whatever extent use of the plural “convictions” at points counsels in favor of the

government’s view, there are aspects of the waiver provision that cut just as squarely

against it, thus leaving the agreement ambiguous on its face.

Third, the government points out in a footnoted aside that when it transmitted

the plea agreement to defense counsel, the text of the prosecutor’s email said: “I ask

that you please emphasize to your client that he would waive the right to directly

appeal the convictions in this case, including convictions arising from the verdict

returned by the jury in connection with” the October robbery. That language is clear

enough, to be sure, but it does not appear in the plea agreement itself, it was never

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made part of the agreement during the in-court colloquy, and there is no evidence

that this understanding was ever communicated to Stubblefield. Unsurprisingly

then, the government does not develop any argument about the extent to which we

should consider that emailed statement to defense counsel, which raises a host of

questions about whether we can look to extrinsic evidence when interpreting an

ambiguous plea agreement, whether this gloss on the agreement was ever

communicated to Stubblefield, and whether the trial court understood it to be part of

the plea agreement that it approved. We therefore disregard the email in the absence

of any developed argument from the government about how it might be properly

considered as part of our inquiry into the plea agreement’s meaning. See

Gabramadhin v. United States, 137 A.3d 178, 187 (D.C. 2016) (declining to consider

argument floated by government in a footnote lacking “specific legal . . .

argument”).

Because the plea agreement is ambiguous on the point, we conclude that

Stubblefield did not waive his right to appeal the October convictions, so we proceed

to consider his sufficiency challenge on its merits.

B. The Evidence Was Insufficient to Prove that Stubblefield Was Armed

Stubblefield challenges only the sufficiency of the evidence to sustain the

“while armed” aspect of his robbery conviction, which is an enhancement that

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applies when a defendant commits certain underlying offenses while “armed with or

having readily available any pistol or other firearm (or imitation thereof) or other

dangerous or deadly weapon.” D.C. Code § 22-4502(a); Hartley v. United States,

117 A.3d 1035, 1037 (D.C. 2015). It is undisputed, and undoubtable, that a bomb

qualifies as a dangerous or deadly weapon under the statute.

We review sufficiency of the evidence claims de novo, “considering ‘all the

evidence in the light most favorable to the verdict and according deference to the

factfinder to weigh the evidence, determine credibility, and draw justifiable

inferences of fact.’” Alleyne v. United States, 327 A.3d 472, 479 (D.C. 2024)

(quoting Wicks v. United States, 226 A.3d 743, 746-47 (D.C. 2020)). Under this

deferential standard of review, we will uphold a conviction if the evidence is

sufficient to permit “any rational trier of fact” to find “the essential elements of the

charged offense beyond a reasonable doubt,” though the evidence “need not compel

a finding of guilt or negate every possible inference of innocence.” Bassil v. United

States, 147 A.3d 303, 307-08 (D.C. 2016) (first quoting Rivas v. United States, 783

A.2d 125, 134 (D.C. 2001) (en banc); and then quoting Rollerson v. United States,

127 A.3d 1220, 1232 (D.C. 2015)). This review is not “toothless.” Rivas, 783 A.2d

at 134. Evidence will be deemed insufficient to support a conviction “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.’” In re T.B., 331

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A.3d 242, 248 (D.C. 2025) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C.

1987)).

As a threshold matter, the parties disagree about whether the government had

to prove that Stubblefield in fact had a bomb, as Stubblefield suggests, or if, as the

government maintains, it sufficed to show that Stubblefield intentionally acted in a

way that successfully instilled a reasonable belief in his victims that he had a bomb.

The government is correct that it needed to prove only that one of the tellers

reasonably believed that Stubblefield was armed with a bomb when he committed

the robbery. As we have repeatedly held, “any object which the victim perceives to

have the apparent ability to produce great bodily harm can be considered a dangerous

weapon.” Paris v. United States, 515 A.2d 199, 204 (D.C. 1986); see also Harris v.

United States, 333 A.2d 397, 400 (D.C. 1975) (“[P]resent ability of the weapon to

inflict great bodily injury is not required to prove an assault with a dangerous

weapon. Only apparent ability through the eyes of the victim is required.”);

Meredith v. United States, 343 A.2d 317, 320 (D.C. 1975) (per curiam) (same as to

the “while armed” enhancement provision at issue here). 1 While some of this court’s

1

At least one of our precedents suggests that this “apparent weapon” rationale

does not suffice to sustain convictions of possessory, as opposed to assaultive,

offenses like the robbery at issue here. See Strong v. United States, 581 A.2d 383,

387 (D.C. 1990) (holding that an inoperable air pistol was not a dangerous weapon

for purposes of the “carrying a dangerous weapon” statute, because it “require[s]

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judges have contended otherwise and suggested we should reconsider this issue en

banc, we as a division of this court are not free to disregard the many binding

precedents holding that a person is armed with a dangerous weapon so long as they

instill a reasonable and actual belief in a victim that they are. But see Smith v. United

States, 777 A.2d 801, 813-14 (D.C. 2001) (Farrell, J., concurring) (opining that for

the “while armed” enhancement to apply, “the defendant must actually have been

armed with or had readily available a firearm (or imitation thereof) or other

dangerous weapon; it is not enough that he appeared to be armed if in fact he was

not”); Washington v. United States, 135 A.3d 325, 333 (D.C. 2016) (Washington,

C.J., concurring) (describing the same rough issue as one “that should be addressed

en banc”).

So, to prove Stubblefield was armed with a dangerous weapon, the

government was required to establish beyond a reasonable doubt either that (1) he

was in fact armed with a bomb, or (2) that one of the tellers reasonably believed he

was so armed. We consider those two theories of guilt in turn.

that the weapon actually be likely to injure someone,” not merely that it would

reasonably appear to the victim that it was capable of doing so). This court recently

granted en banc review in a pair of cases in part to consider that issue. See Bagalacsa

v. United States, No. 23-CM-0458, and Davidson v. United States, No. 23-CM-0939

(sua sponte en banc review granted on May 20, 2025).

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1. The Evidence Was Insufficient to Prove that Stubblefield Was Actually Armed

The government first suggests that the evidence was sufficient to prove that

Stubblefield was in fact armed with a bomb. We disagree. We note at the outset

that the government did not forcefully press the theory at trial that Stubblefield was

actually armed with a bomb, and instead relied largely on the theory that he

intentionally created a reasonable belief in the tellers that he was armed (even if he

was not). That is perhaps why some of the powerful evidence that Stubblefield did

not in fact have a bomb never came before the jury—that did not seem to be much

of a bone of contention between the parties. 2 To illustrate the point, defense

counsel’s closing argument stressed that there was “nothing indicating that this

particular offense was committed with a bomb,” aside from Stubblefield’s on-scene

claim; for instance, the tellers did not see or hear anything indicative of a bomb in

Stubblefield’s bag. The government countered in its rebuttal closing, with no

2

The Gerstein affidavit in support of Stubblefield’s arrest indicates that Sash

thought Stubblefield’s bag looked “light” and that it “appeared . . . to be empty”

when Stubblefield opened it to take the money. Those statements were never

introduced before the jury, so we ignore them in our sufficiency analysis, except to

say that the video surveillance footage of Stubblefield robbing the Truist Bank and

making his getaway lends some support to those descriptions (though we agree with

our dissenting colleague that this visual support is fairly limited). As we elaborate

on momentarily, Stubblefield is swinging his bag in a way that suggests it was light

and in a more haphazard way than one would naturally expect if—but certainly does

not preclude the possibility that—he in fact was carrying a bomb within it.

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suggestion that the evidence established that Stubblefield was in fact armed, only by

highlighting that defense counsel’s argument that “there is not really a bomb” was

immaterial because he acted in a “manner that [was] intended to lead the complainant

reasonably to believe that” he had a bomb. Still we cannot say that the government

entirely abandoned this theory of guilt at trial—and the jury was instructed on this

theory in any event—so we consider the sufficiency of the evidence as to it further.

Relying on Smith, the government argues that a defendant’s contemporaneous

threats may be enough to prove he was armed during a crime, at least when he also

acted in a manner consistent with being armed. 777 A.2d at 811-12; see also United

States v. Ray, 21 F.3d 1134, 1141 (D.C. Cir. 1994) (jury could reasonably find

defendant had a firearm because he “threat[ened] to blow the teller’s head off”). In

Smith, we found evidence that the defendant told his victims that he had a firearm,

that they believed him, and that he acted in a manner “consistent with someone

possessing a firearm” during a robbery—i.e., keeping his hand in his jacket pocket

while pointing it at the complainants—was sufficient circumstantial evidence to

establish that he was at the time armed with a firearm (or imitation thereof). 777

A.2d at 804, 811-13. It is undoubtedly true that, in some circumstances, there will

be proof beyond a reasonable doubt that the defendant was in fact armed even where

the particular arm is never seen nor recovered. But to apply that reasoning here

would stretch Smith beyond reason.

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Smith arose in the context of firearms, which are fairly ubiquitous and

relatively easy to obtain. While we view Smith as a close case, under the

circumstances there, jurors might have reasonably concluded that the assailant who

claimed to have a firearm in fact had one. But see id. at 813-14 (Farrell, J.,

concurring) (noting that “it is naturally troublesome when, as in this case, the proof

of actual possession consists entirely of evidence that appellant behaved as though

he was armed with and prepared to use a gun, but no gun was found on him”).

A bomb is a different animal. It is far less facially plausible that Stubblefield

procured (or manufactured) a bomb than it would be if he had claimed to have more

commonplace weapons like a gun or a knife, as the defendant in Smith did. We note

five reasons in support of that view.

First, and most critically, bombs are far less common than firearms, as jurors

undoubtedly know. Second, bombs are an especially high-risk weapon of choice for

would-be robbers, who stand a decent chance of harming themselves in the process

of creating and carrying a bomb. Third, bombs lack the basic utility of firearms in

that they can be deployed only once, whereas a gun can be used to shoot at or toward

a non-compliant victim in the hopes of prompting them or another person in the area

to comply given the continued threat of another shooting. Fourth, falsely claiming

to have a bomb is the better bluff, because while claims of having a hidden firearm

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are fairly frequently met with a “let’s see it,” the threat of a bomb engenders a more

panicked reaction with victims unlikely to seek such hard proof. Fifth, while most

people can recognize a firearm on sight, on the off chance somebody does ask to see

the claimed bomb the assailant might flash just about anything—some road flares, a

half-empty Gatorade bottle, or any box might do—and plausibly represent it as a

bomb given the innumerable forms bombs take. 3

We think some combination of these factors, and surely some others that

escape us, helps to explain why bomb threats are so routinely hoaxes and are often

interpreted as such by their targets. While we could not expect jurors to know

precise figures, we would expect them to have a rough sense that bomb threats are

frequently bogus. See, e.g., FBI Statement on Bomb Threats to Polling Locations

(Nov. 5, 2024) (noting that the “FBI is aware of bomb threats to polling locations in

3

See, e.g., People v. Bracamonte, 2019 WL 6124740, at *2 (Cal. Ct. App.

Nov. 19, 2019) (defendants “constructed a fake bomb out of a couple of road flares,

some wires, and black tape”); United States v. Rodriguez, 301 F.3d 666, 667 (6th

Cir. 2002) (Styrofoam sandwich box); United States v. Miller, 206 F.3d 1051, 1052

(11th Cir. 2000) (“two red sticks with a fuse”); United States v. Hart, 226 F.3d 602,

603–04 (7th Cir. 2000) (bags and shoeboxes); United States v. Zamora, 222 F.3d

756, 760 (10th Cir. 2000) (gift-wrapped box); United States v. Beckett, 208 F.3d

140, 143-44 (3d Cir. 2000) (box with “an antenna and a lighted button on it”); Paese

v. United States, 927 F. Supp. 667, 668 (S.D.N.Y. 1996) (attaché case with “three

purple sticks and a transistor with wiring”); State ex rel. Richey v. Butler, 572 So. 2d

1043, 1043 (La. 1991) (“a piece of wood, crudely fashioned into a fake bomb by a

wrap of electrician’s tape and the embellishment of a woman’s wristwatch”).

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several states,” and that “[n]one of the threats have been determined to be credible”);

Graeme R. Newman, Center for Problem-Oriented Policing, U.S. Dep’t of Just.,

Bomb Threats in Schools, at 10 & n.† (2011) (noting “widely quoted statistic” that

90% of bomb threats in schools are hoaxes).

For those reasons, some additional evidence that Stubblefield had a bomb,

beyond his mere claim, was necessary before jurors could rationally draw the

conclusion that he in fact had a bomb, and that evidence was lacking here. No bomb

or bombmaking paraphernalia was ever recovered, even though officers searched

the residence where Stubblefield, who was apparently homeless, sometimes stayed.

Neither teller ever saw a bomb or anything suggestive of one. And surveillance

footage which captured Stubblefield’s flight from the bank following the robbery

showed Stubblefield handling his bag in a careless manner, not with the care one

would expect of somebody handling a bomb. For instance, surveillance footage

showed Stubblefield sprinting to catch a bus after the robbery with the bag banging

against his leg and Stubblefield indisputably used the same bag to carry the cash

from the robbery and a change of clothes for his getaway. This, of course, does not

entirely foreclose the possibility that Stubblefield had a bomb in his bag, and it

certainly does not undercut the wisdom of the tellers taking his threat seriously. But

there was no material evidence corroborating Stubblefield’s claim that he had a

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bomb, which was necessary on these facts to conclude beyond a reasonable doubt

that he in fact had one.

2. The Evidence Did Not Prove Either Teller Believed Stubblefield Was Armed

The government next and more forcefully argues that the evidence was

sufficient to conclude that Stubblefield was apparently (rather than actually) armed

with a bomb, i.e., that the tellers reasonably believed he had a bomb. We, again,

disagree. We will grant the government, for the sake of argument, that a person in

the tellers’ shoes might have reasonably believed that Stubblefield had a bomb.

Where the government’s evidence falters is that it failed to prove that either teller in

fact subjectively believed Stubblefield was armed with a bomb during the robbery.

At the outset, we clarify that what it means for a complainant to reasonably

believe their assailant is armed is that they reasonably think that it is more likely

than not the case. That is the most common understanding of what it means to

believe something, i.e., that it is probably true. See Webster’s Third New

International Dictionary 200 (3d ed. 2020) (defining “belief” as “conviction of the

truth of some statement”). And it is the meaning of the word that best comports with

our precedents. See, e.g., Washington, 135 A.3d at 330 (“The fact that the victim

perceived the item in appellant’s hand to be a firearm and the jury credited the

victim’s testimony that she perceived the item to be a firearm, was enough for that

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object to be considered a dangerous weapon.”); Paris, 515 A.2d at 204 (focusing on

what the “victim perceive[d]” and “plainly believed”); Harris, 333 A.2d at 400

(“[A]pparent ability through the eyes of the victim is required.”).

Hartley best illustrates the point that to believe that somebody is armed means

to think that they more probably than not are. In that case, Hartley attempted to rob

a man on a train platform by putting his hand in his pocket and claiming to have a

gun, though no gun was ever displayed or recovered. 117 A.3d at 1036. The

complainant testified that he did not believe Hartley had a gun during the encounter,

but he did not suggest there was no possibility that his assailant had a gun. Id. In

reversing Hartley’s conviction for assault with intent to rob while armed, we stressed

that the complainant testified “that he did not believe that [Hartley] actually had a

gun.” Id. at 1036; see also id. at 1038 & n.7. We noted that point as critical to

distinguishing Smith, because “unlike the witnesses in the Smith case, the victim here

testified that he did not believe that appellant was armed with a firearm.” Id. at 1038.

We thus concluded that there was insufficient evidence that Hartley was armed or

apparently armed during the assault because he did not instill the subjective belief

in his victim that he in fact had a gun. Id. at 1038-39.

While the government does not now seem to dispute that to believe somebody

has a dangerous weapon equates to thinking that they probably do, the briefing

22

generally elides the topic, and the trial prosecutor suggested otherwise. For example,

in closing the prosecutor argued that this was “quintessentially armed robbery”

because the tellers “certainly thought that there was a bomb in [the] bag enough to

give [Stubblefield] $10,000,” they were “very concerned [Stubblefield] had a

bomb,” and “[t]hey did not think that there was no chance this guy had a bomb.”

(emphases added). That proposed “mere possibility” standard is (1) tough to

reconcile with cases like Hartley, where the victim did not suggest there was no

possibility his assailant was armed, and (2) would seriously risk converting virtually

all robberies into armed robberies, since the victim of any robbery might reasonably

think their assailant was possibly armed even absent any representation of an arm.

But see State v. Williams, 95 A.3d 721, 731 (N.J. 2014) (where “the victim believes

that the robber may be armed with a deadly weapon,” that satisfies “the actual-belief

requirement” of New Jersey’s “while armed” statute).

The District’s while armed enhancement is a serious criminal enhancement

that can drastically increase a defendant’s sentencing exposure, sometimes by

decades. See D.C. Code § 22-4502. It would cheapen the severity of this offense to

permit it to be tacked onto every robbery whenever the victim reasonably fears the

mere possibility that their assailant is armed, as they virtually always might

reasonably fear, just as virtually any robber might intend to instill that fear even

when they make no mention of a weapon. So we stick to the ordinary meaning of

23

what it means for a victim to believe their assailant is armed, which is that they

believe, more probably than not, that their assailant is armed. 4

As in Hartley, there was insufficient evidence here to convict Stubblefield of

the robbery “while armed” offense because there was insufficient evidence to prove

that any victim subjectively believed he had a weapon. Recall that Turner testified

only that she thought “there was a possibility [the robber] had a bomb,” but she was

never asked if she believed that he did. And Sash testified that there was “definitely

a possibility” that the robber had a bomb, but when pressed about whether he actually

thought the robber had a bomb, he answered, “I guess I didn’t.” The jurors could

4

We acknowledge that putting somebody even in the slightest fear of a

dangerous weapon is of course worse than creating no such fear at all, so that it can

be tempting to treat Stubblefield’s conduct as something more culpable than the

already serious offense of a robbery, and categorizing it as an armed robbery. But

that is a pernicious instinct. Just because Stubblefield’s conduct is worse than it

would have been had he merely robbed the bank absent any threat, no matter how

implausible, it would have been worse still if he had made the tellers think he

probably had a dangerous weapon, and even worse yet if he in fact had a dangerous

weapon. So to treat Stubblefield’s conduct as on par with somebody who actually

had a bomb—regardless of whether he did or anybody even believed he did—

trivializes the very real danger that actual bombs pose over hypothetical ones, and

the added psychological pain that one who is put in actual harm’s way suffers beyond

one who merely thought there was some possibility that they might be in harm’s way

for a moment in time. The plain text of § 22-4502(a) applies only to those who are

“armed with or hav[e] readily available” a dangerous or deadly weapon. While this

court has put a judicial gloss on that statute to capture the less culpable conduct of

creating the reasonable belief in the victim that one is armed, we will not enlarge the

statute even further by reducing the actual-belief requirement down to a belief in a

mere possibility of an arm, as the trial prosecutor encouraged the jury to do.

24

not rationally conclude beyond a reasonable doubt, from that evidence, that either

teller subjectively believed that Stubblefield had a bomb.

The government persists that there was sufficient circumstantial evidence to

conclude beyond a reasonable doubt that Sash and Turner believed Stubblefield had

a bomb, despite Sash denying as much and Turner never being asked about that. It

points to their testimony that Stubblefield threatened that he “had a bomb” and

“would blow the place up,” after which they felt afraid, hit the silent alarm, and

handed over $10,000 in cash. But Sash’s disavowal of any such belief precludes a

finding beyond a reasonable doubt that he secretly harbored one and was just being

coy. 5 And Turner’s reaction to Stubblefield’s threats is a paltry indication that she

actually believed that Stubblefield had a bomb—as clearly evidenced by the fact that

Sash acted in the same fashion despite disbelieving Stubblefield’s claim. Even the

slightest chance that Stubblefield was armed with a bomb, however implausible,

might have prompted Turner to hand over the money rather than putting hers and

others’ lives at the slightest risk. Even if Turner were certain that Stubblefield did

not have a bomb, there is no telling what violence a person who’s willing to falsely

5

The government suggests that a jury could conclude that Sash was putting

on a front and actually did believe Stubblefield had a bomb. That is conceivable,

perhaps, but no rational juror could draw so fanciful a conclusion beyond a

reasonable doubt.

25

represent that they have a bomb might resort to, so that Turner’s actions and fear are

entirely consistent with (like Sash) disbelieving Stubblefield’s claim. Because the

government never probed Turner’s actual beliefs—it never asked the question

critical to its case, perhaps fearing the answer—the factfinder was left to speculate

about them.

“[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.’” Rivas, 783 A.2d at 134

(quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990)); see also In

re D.P., 996 A.2d 1286, 1288 (D.C. 2010) (“[S]ome relevant evidence in the record

in support of each essential element of the charged offense” is not enough to satisfy

the requirement of proof beyond a reasonable doubt. (quoting Rivas, 783 A.2d at

134)). Where the evidence at trial tends to support with equal force both the

existence and nonexistence of an essential element, it fails to “eliminate the

possibility that the factfinder’s verdict was based on surmise or conjecture” and is

insufficient as a matter of law. Ross v. United States, 331 A.3d 220, 224 (D.C. 2025)

(quoting Long, 156 A.3d at 713).

No rational factfinder could conclude beyond a reasonable doubt that Sash or

Turner believed Stubblefield had a bomb, a conclusion the jury’s instructions

26

(erroneously) did not even require them to arrive at. 6 Sash expressly stated he did

not believe that. And Turner’s reactions to the threat—not materially different from

Sash’s—are just as easily explained by her unwillingness to undertake even a remote

risk that Stubblefield had a bomb, or the risk that he would otherwise act out

violently if defied, even if she did not believe that he had a bomb.

6

The jurors were not instructed that, in order to convict, they had to find that

either teller subjectively believed that Stubblefield had a bomb. Recall that the court

instructed the jury that it should convict Stubblefield of armed robbery if he acted

“in a manner that is intended to lead the complainant reasonably to believe that [he

had] an object that would cause death or serious bodily injury,” (emphasis added),

with no clear requirement that either complainant actually held that belief. While

that instruction is approved of in the model jury instructions, see Criminal Jury

Instructions for the District of Columbia, Comment to No. 8.101 (5th ed. 2024), it

omits our precedents’ actual belief requirement. That omission should be corrected

in future editions of the model instructions and by trial judges in the meantime. See

Alleyne, 327 A.3d at 487 n.14 (“Although the District’s ‘widely used’ form

instructions provide a helpful guide, they are ‘not the law.’”) (quoting Lucas v.

United States, 240 A.3d 328, 343 n.12 (D.C. 2020)). Stubblefield did not object to

the court’s instruction, and he does not raise an instructional error claim on appeal,

so this is not an independent ground for reversal despite the apparently erroneous

and seemingly pivotal instruction. We note the court’s instructions simply to

highlight that the jury’s verdict is not an indication that they concluded beyond a

reasonable doubt that Stubblefield in fact had a bomb, or that the tellers subjectively

believed that he did. Any such conclusion would be irrational on this evidence, in

any event, but it seems most likely that the jury convicted on the legally infirm basis

that Stubblefield intended to instill fear of a bomb, and that it would have been

reasonable for somebody in the tellers’ shoes to believe him.

27

III. Conclusion

For the foregoing reasons, we reverse Stubblefield’s conviction for robbery

while armed, remand for entry of a conviction on the lesser included robbery offense,

and affirm the rest of his convictions.

So ordered.

MCLEESE, Associate Judge, concurring in the judgment in part and dissenting

in part: I concur in the part of the judgment affirming Mr. Stubblefield’s convictions

on offenses other than armed robbery. Ante at 27. I respectfully dissent from the

part of the judgment reversing Mr. Stubblefield’s conviction for armed robbery on

the ground that the evidence was insufficient to permit the jury to find beyond a

reasonable doubt that Mr. Stubblefield had a bomb during the robbery. Id. at 15-19.

The opinion for the court accurately states our deferential standard of review.

Ante at 12-13. We must view the evidence in the light most favorable to the verdict

and accord deference to the factfinder’s authority to weigh the evidence, determine

credibility, and draw reasonable inferences. Id.at 12. We must affirm if the evidence

is sufficient to permit any rational factfinder to find the elements of the charged

offense beyond a reasonable doubt. Id. I would add that jurors “surely could use

[their] common sense and everyday experience to infer reasonably from the

28

evidence.” Hebron v. United States, 837 A.2d 910, 914 (D.C. 2003) (internal

quotation marks omitted). Applying those principles, I would uphold the jury’s

finding that Mr. Stubblefield was guilty of armed robbery.

The opinion for the court also accurately describes the pertinent facts. Ante

at 3-4. In brief, Mr. Stubblefield went into a bank and demanded money; stated that

he had a bomb and would blow the place up; pointed to a bag he was carrying when

making those statements; obtained money; and left the scene without being

apprehended. Id. The question is whether the jury could reasonably have credited,

beyond a reasonable doubt, Mr. Stubblefield’s statement that he had a bomb. I

would answer that question in the affirmative.

We decided a similar question in Smith v. United States, 777 A.2d 801 (D.C.

2001). In Smith, the defendant took money from a restaurant cash register. Id. at

803. As the defendant did that, his hand was in his jacket pocket and was pointed at

restaurant employees. Id. at 803-04. When an employee approached, the defendant

threatened to shoot. Id. at 804. The defendant then fled the scene. Id. Although

employees believed that the defendant had a gun in his pocket, they never saw a gun,

and no gun was ever recovered. Id.

We held in Smith that the evidence was sufficient to permit the jury to find

beyond a reasonable doubt that the defendant was armed. 777 A.2d at 809-13. We

29

noted that it was “the jury’s province to weigh the evidence, determine the credibility

of witnesses, and make justifiable inferences from the evidence.” Id. at 810 (internal

quotation marks omitted). We also noted that “the essential elements of a crime may

be proven by circumstantial evidence.” Id. at 813 (internal quotation marks

omitted). We discussed a number of cases involving “similar factual situations” in

which this court had “relied almost exclusively on circumstantial evidence” to

uphold the sufficiency of the evidence to support a jury finding that a defendant was

armed. Id. at 810-12.

In Smith, we also discussed with approval two similar cases in which the D.C.

Circuit concluded that the evidence was sufficient to support the jury’s finding that

a bank robber was armed even though no weapon was observed or found. 777 A.2d

at 811-12. We quoted from the first in part as follows:

The most telling item consisted of [the defendant’s] threat

to blow the teller’s head off. Loaded guns are capable of

just that. From [the defendant’s] threat, therefore, one

could reasonably infer—the teller certainly did—that [the

defendant] meant what he said and that he had a gun to

back it up. [The defendant’s] reaching into his pocket

while uttering his threat increases the probability that the

teller was right. The testimony of the get-away driver

points in the other direction, but when we view what the

prosecution presented in a light most favorable to it, we

believe a jury reasonably could find that [the defendant]

had a firearm.

30

777 A.2d at 812 (quoting United States v. Ray, 21 F.3d 1134, 1141 (D.C. Cir. 1994)

(footnote omitted)).

We explained that in the second of the two D.C. Circuit cases, United States

v. Levi, 45 F.3d 453 (D.C. Cir. 1995), the court “suggested that a robber’s statement

indicating possession of a dangerous weapon can be sufficient, by itself, to support

a conviction under the federal aggravated bank robbery statute.” Smith, 777 A.2d at

812 n.19.

Turning to the facts before us in Smith, we said that the defendant “verbally

brandished” a weapon, by threatening to shoot the employees and by holding his

hand in his jacket and pointing through the jacket at employees. 777 A.2d at 813

(brackets and internal quotation marks omitted). We also explained that the

employees believed that the defendant had a gun. Id. Finally, we stated that

“[b]ecause additional evidence exists in this case, we need not decide whether [the

defendant’s] statement that he would ‘shoot’ would alone be sufficient to support

his conviction.” Id. at 812 n.19

I view Smith as quite comparable to the present case. I acknowledge,

however, that Smith is not directly controlling. I see two principal differences

between this case and Smith. First, the employees in Smith testified that they

believed that the defendant had a gun, 777 A.2d at 813, whereas the employees in

31

the present case were more equivocal as to whether they thought Mr. Stubblefield

had a bomb, ante at 24-25. I acknowledge the relevance of that difference. See

Hartley v. United States, 117 A.3d 1035, 1038 (D.C. 2015) (distinguishing Smith in

part on basis that victim in Hartley did not believe defendant had weapon). I do not,

however, see that difference as warranting reversal in the present case. Rather, the

reasonableness of a jury’s inference that a defendant was armed turns far more on

the objective circumstances than on the subjective beliefs of the victims. In other

words, I do not believe that Smith should have come out differently if the employees

there had happened to be less confident as to whether the defendant had a gun. Nor

do I believe that the outcome in this case should turn on the degree of subjective

belief of the bank employees.

I note that although we held in Hartley that the evidence was insufficient to

support a conclusion that the defendant was armed, there is a critical difference

between the facts of Hartley on one hand and the facts of this case and Smith on the

other hand. In Hartley, the defendant attempted to rob the victim, claiming to have

a gun and holding his hand in his pocket as though he had a gun. 117 A.3d at 1036.

Someone called the police, who arrested the defendant on the scene of the assault.

Id. The police found no firearm on the defendant’s person or in the area in which

the assault took place. Id. at 1036, 1038. Evidence that the defendant was arrested

on the scene and no weapon was found on him or in the surrounding area seriously

32

undermined the reasonableness of any inference that the defendant in fact was

armed, as we emphasized in Hartley. Id.; see also, e.g., Levi, 45 F.3d at 457

(describing fact that defendant was arrested on scene and no weapon was found as

“overwhelming evidence” contradicting inference that defendant was armed). In

contrast, like the defendant in Smith, Mr. Stubblefield fled the scene without being

apprehended, and thus there was no evidence directly undermining an inference that

Mr. Stubblefield was telling the truth when he stated that he had a bomb.

The second difference between this case and Smith is the type of weapon at

issue: a gun in Smith and a bomb in this case. I acknowledge the relevance of this

difference, but I also do not view the difference as warranting a difference in

outcome. It seems to me that a rational juror, using common sense and everyday

experience, could have thought: (1) Mr. Stubblefield said that he had a bomb; (2) he

gestured toward a bag that could reasonably have contained an explosive device;

(3) improvised explosive devices are not that hard to make; (4) people do sometimes

use explosive devices to rob banks; (5) people who rob banks have a motive to bring

real weapons rather than merely bluffing, so that they have something to display to

increase the level of fear and coercion if necessary; and (6) there is no direct

evidence that Mr. Stubblefield’s statement was false. I therefore would hold that the

evidence was sufficient to support a finding beyond a reasonable doubt that

Mr. Stubblefield truthfully stated that he had a bomb.

33

I respectfully disagree with the opinion for the court on several points. First,

the opinion for the court refers in a footnote to information that is in the record but

was not before the jury. Ante at 15 n.2. As the opinion for the court correctly

acknowledges, however, that information may not be considered in deciding the

sufficiency issue we are resolving. Id. I see no valid reason to mention that

information.

Second, the opinion for the court notes that the prosecutor’s closing argument

rested more heavily on the theory that Mr. Stubblefield was guilty of armed robbery

because Mr. Stubblefield intentionally caused the tellers to believe that he had a

bomb. Ante at 15-16. The opinion for the court does not explicitly state that the

amount of emphasis a party gives to a theory in closing argument is relevant to this

court’s assessment of the sufficiency of the evidence to support that theory. Id.

Rather, the opinion for the court explains that the prosecutor did not abandon the

theory that Mr. Stubblefield actually had a bomb, the jury was instructed on that

theory, and the court therefore considers the theory in assessing the sufficiency of

the evidence. Id. at 16. I see no reason to sua sponte address and reject an

issue-preservation argument that no one has raised. In any event, and to address any

possible implication of the opinion for the court, in my view the degree of emphasis

a party gives to a theory in closing argument is irrelevant to the question whether the

evidence before the jury was sufficient to support a finding on that theory. See, e.g.,

34

State v. Bahr, 414 P.3d 707, 712 (Idaho Ct. App. 2018) (closing arguments are not

evidence, and defendant’s “assertion that the State’s closing argument is relevant to

his sufficiency of evidence claim fails”).

Third, the opinion for the court concludes that Mr. Stubblefield’s statement

that he had a bomb was so implausible that the jury could not reasonably have

credited the statement in the absence of corroboration that was lacking in this case.

Ante at 17-19. In support of that conclusion, the proposed opinion makes what I

count as seven specific points. Id. I respectfully disagree with the reasoning of the

opinion for the court:

(1) The opinion for the court states that jurors undoubtedly know that

bombs are far less common than firearms. Ante at 17. I assume that is true,

but I do not view that point as supporting reversal. The issue is not whether

Mr. Stubblefield’s statement would have been more plausible if

Mr. Stubblefield had said that he had gun. Rather, the issue is whether

Mr. Stubblefield’s statement that he had a bomb was so implausible that

corroboration of that statement was required. An observation that guns

generally are far more common than bombs does not support the latter

conclusion. For example, I assume that knives are far more common than

guns, but that does not make the claim to have a gun implausible. In other

35

words, that guns are more common than bombs in my view says virtually

nothing about whether the use of bombs to rob banks is so rare that a jury

cannot reasonably credit a defendant’s admission to doing that unless the

admission is corroborated.

(2) The opinion for the court states that bombs are high-risk weapons.

Ante at 17. That seems to me to be a common-sense point as far as it goes,

but I do not view the point as providing significant support to the court’s

holding. Common sense suggests that people who rob banks are not risk

averse, and robbing a bank with a gun seems in and of itself a quite risky

activity. I do not think that jurors exercising their common-sense would be

required to view it as implausible that someone who was willing to take the

risk of robbing a bank would also be willing to take the additional risk of

bringing an explosive device rather than a firearm.

(3) The opinion for the court states that bombs are not as useful as

firearms for purposes of robbery because bombs can only be deployed once.

Ante at 17. That also seems a common-sense point as far it goes. If the issue

for us were whether a firearm or a bomb is the better weapon to use in a

robbery, that would be a point in favor of firearms. On the other hand, as the

opinion for the court acknowledges, id. at 17-19, bombs can be more effective

36

than guns at deterring a response. More generally, it seems to me that a

reasonable juror exercising common sense could doubt that the typical bank

robber conducts the kind of detailed weighing of pros and cons reflected in

the opinion of the court before picking a weapon (or deciding what kind of

weapon to falsely claim to have, for bank robbers who choose to go that route).

(4) The opinion for the court states that falsely claiming to have a bomb

is a better bluff than falsely claiming to have a gun, because victims are more

likely to demand confirmation of the latter than the former. Ante at 17-18.

The opinion for the court identifies no support for that statement, and I

personally have no idea whether it is true. I see no basis for concluding that

a juror who failed to give weight to this unsupported hypothesis would be

lacking in common sense.

(5) The opinion for the court states that it is easier to display a plausible

fake bomb than to display a plausible fake firearm. Ante at 18. There was no

evidence on this point at trial, and the point does not seem to me to be

something that a juror using common sense would be obliged to take into

account. To the contrary, my guess would be that plausible imitation firearms

are far more common than plausible fake explosive devices. In support of its

statement, the opinion for the court cites a few cases involving fake explosive

37

devices. Ante at 18 n.3. Imitation firearms, however, are sufficiently common

that they are specifically addressed in the District of Columbia’s weapons

statutes. E.g., D.C. Code § 22-4504(b); see also Washington v. United States,

135 A.3d 325, 329 (D.C. 2016) (“An imitation pistol is any object that

resembles an actual pistol closely enough that a person observing it in the

circumstances would reasonably believe it to be a pistol.”) (internal quotation

marks omitted). I am confident that one could cite dozens of cases involving

plausible imitation firearms. See, e.g., United States v. Arafat, 789 F.3d 839,

847 (8th Cir. 2015) (defendant used modified toy gun to rob banks, and

victims believed gun was real).

(6) The opinion for the court states that it expects jurors to “have a

rough sense that bomb threats are frequently bogus.” Ante at 18. No evidence

was introduced at trial about the frequency with which bomb threats are

determined to have been fake, and Mr. Stubblefield did not raise the point

either at trial or in this court. In support of the point, the opinion for the court

cites some government statistics relating to bomb threats to polling places and

schools. Id. at 18-19. The jury would not have been able to consider such

extra-record statistics in rendering its verdict, and I am doubtful that it is

appropriate for this court to do so on appeal. In any event, the cited statistics

do not seem very relevant because they involve places—schools and polling

38

places—where it would be easy and relatively risk free to call in and falsely

claim to have left a bomb. Neither those statistics nor such common sense as

I may possess leads me to have any idea how common it is for a bank robber

to falsely rather than truthfully claim to have an explosive device. I certainly

do not believe that a juror who decided that Mr. Stubblefield’s statement about

having a bomb was true would have been lacking in common sense.

(7) The opinion for the court indicates that surveillance footage of

Mr. Stubblefield after the robbery tends to undermine an inference that

Mr. Stubblefield had a real bomb because the bag appeared light and

Mr. Stubblefield carried the bag carelessly. Ante at 15 n.2, 19.

Mr. Stubblefield did not make such an argument in the trial court and does not

make the argument in this court, so the argument rests entirely on the

impressions of the judges joining the opinion for the court. I have reviewed

the surveillance footage, and I personally see no basis for a conclusion that

the bag appears too light to contain an explosive device. I certainly see no

basis on which to think that any reasonable juror would have had to reach that

conclusion upon viewing the surveillance footage. I can agree that

Mr. Stubblefield carries the bag in a manner that is more cavalier than I would

be inclined to be with a bag containing an explosive device. On the other

hand, Mr. Stubblefield had a strong motive to hurry during the time at issue,

39

to escape from the scene of the robbery. Moreover, in my view a reasonable

juror could take the view that Mr. Stubblefield—who decided to rob a bank

while stating that he had a bomb—is not very risk averse.

As noted, the approach reflected in the opinion for the court is that

Mr. Stubblefield’s statement that he had a bomb was so implausible that further

corroboration was required. Ante at 15-19. For the reasons just discussed, I do not

view this case that way. In Levi, the D.C. Circuit expressed the view that a

defendant’s statement during a robbery that he had a gun “by itself is sufficient

evidence to convict unless contradicted by overwhelming evidence.” 45 F.3d at 457.

I would not go that far, but I do believe that ordinarily the jury is free to believe such

a statement beyond a reasonable doubt, barring contrary evidence making such belief

unreasonable.

A robber’s statement during a robbery claiming to be armed is plainly a

statement against the robber’s penal interest, and such statements are viewed as

generally reliable because “reasonable people usually do not make statements

against their penal interest unless the statements are true.” Bost v. United States, 178

A.3d 1156, 1196 (D.C. 2018) (internal quotation marks omitted). Moreover, barring

unusual circumstances, it is generally the jury’s prerogative to determine whom to

believe. Cf. generally, e.g., Slater-El v. United States, 142 A.3d 530, 538-39 (D.C.

40

2016) (general rule is that credibility is for factfinder; exception for inherent

incredibility can be invoked only where testimony can be disproven as matter of

logic, is highly questionable in light of common experience and knowledge, or is

strongly at variance with normal expectations about human behavior). Finally, when

reviewing the sufficiency of the evidence to support a verdict, we are required to

respect the jury’s broad authority to draw reasonable inferences and to use its

common sense. See, e.g., Hebron, 837 A.2d at 914 (The “jury surely could use its

common sense and everyday experience to infer reasonably from the evidence.”)

(ellipsis and internal quotation marks omitted).

I do not wish to overstate my conclusion. Had I been a juror, I think that I

likely would have had a reasonable doubt as to whether Mr. Stubblefield’s statement

about having a bomb was true. Our function on appeal, however, is quite different

from the function of the jury. In my view, the opinion for the court does not reflect

adequate deference to the jury’s authority to draw reasonable inferences and instead

relies on a series of attenuated and debatable distinctions between guns and bombs

to depart from the approach reflected in decisions such as Smith. I also note that the

opinion for the court cites no factually comparable case in support of its holding. I

therefore respectfully dissent from the holding of the opinion for the court that the

evidence was insufficient to permit reasonable jurors to conclude beyond a

41

reasonable doubt that Mr. Stubblefield was telling the truth when he said that he had

a bomb.

Given the foregoing conclusion, I have no need to reach the other issues

decided by the opinion for the court.