Johnson v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CM-100

TYRELL JOHNSON, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CMD-14462-18)

(Hon. Patricia A. Broderick, Trial Judge)

(Submitted January 14, 2020 Decided July 16, 2020)

Montrell L. Scaife for appellant.

Jessie K. Liu, United States Attorney, with whom Robert K. Platt, Assistant

United States Attorney, Elizabeth Trosman, Suzanne Grealy Curt, and Carolyn

Sweeney, Assistant United States Attorneys, were on the brief, for appellee.

Before BECKWITH and MCLEESE, Associate Judges, and FERREN, Senior

Judge.

FERREN, Senior Judge: Appellant Tyrell Johnson challenges his conviction

after a bench trial for violation of the Bail Reform Act (BRA) for willfully failing

2

to appear at his initial status hearing on a simple assault charge. 1 He asserts that

the trial court: (1) abused its discretion by allowing the courtroom clerk to testify

without qualifying her as an expert witness; (2) further abused its discretion by

admitting in evidence, without a proper foundation, the government’s exhibits

allegedly documenting his guilt; and thus (3) relied on insufficient evidence to

convict him. We affirm.

I. Facts and Proceedings

According to the government’s evidence, Officer Tiffany Williams of the

Metropolitan Police Department (MPD) was investigating an unspecified crime for

which she arrested appellant on the early morning of May 29, 2014. After the

arrest, Officer Williams prepared a police report, and appellant was assigned an

MPD Identification Number (PDID number). 2 That same day at his arraignment,

the government charged appellant with simple assault, and the trial court released

him after he signed a Release of Conditions Form, which required him to appear in

1

D.C. Code § 23-1327(a) (2012 Repl. & 2020 Supp.).

2

According to MPD Officer Jairo Zelaya, who arrested appellant in the

present case, a “PDID number is issued to an individual once they have been

arrested by our agency, the Metropolitan Police Department.”

3

court on July 1, 2014, for an initial status hearing. Appellant, however, did not

appear that day, and the trial court issued a bench warrant for his arrest.

Four years later, on September 30, 2018, Officer Zelaya arrested appellant

while investigating another incident. Officer Zelaya performed a background

check on appellant and noticed the outstanding bench warrant, whereupon

appellant was charged with violating the BRA.

During a bench trial on January 30, 2019, the government sought to

introduce three exhibits in evidence: (1) a printout of the CourtView version of the

docket entry showing appellant’s failure to appear at his first post-arraignment

status hearing scheduled for July 1, 2014; (2) the Release of Conditions Form that

appellant had signed at his arraignment on May 29, 2014; and (3) the bench

warrant for appellant’s arrest issued on July 1, 2014. To lay a foundation for the

three exhibits, the government called Dominique Crowley, a courtroom clerk in the

trial court, to testify “as an expert in court procedure.” When the prosecutor asked

Crowley to read the docket entry from CourtView, however, defense counsel

4

objected: “Just in qualifying [Crowley] as an expert, I would object.” 3 The trial

court nonetheless deferred ruling on the objection, admitted the copy of the docket

entry from CourtView (Exhibit 1) in evidence without further objection, and

allowed the government to proceed as follows with Crowley’s direct examination.

First, Crowley answered general questions about courtroom procedures.

She then identified appellant’s docket entry from CourtView and confirmed that it

was a certified copy. She further confirmed that the docket entry showed that

appellant had initially appeared before the trial court on May 29, 2014, and that a

bench warrant had been issued for his arrest for failure to appear in his next

hearing on July 1, 2014.

Second, the prosecutor showed appellant’s Release of Conditions Form to

Crowley. She identified a certified copy of the form (Exhibit 2) and read portions

of it designated by the prosecutor. She further testified that she could not tell from

the court’s copy whether appellant had received a copy of the form, but she added

that, because a Release of Conditions Form has several carbon copies, appellant

3

Defense counsel explained: “I don’t believe the government noted an

expert. And if they did, they certainly didn’t note Ms. Crowley as an expert. . . .

So far I haven’t heard expert testimony, Your Honor.”

5

“would have gotten the blue copy.” Defense counsel asked to defer noting his

objection to admission of the form until cross-examination. The trial court,

however, asked counsel to “object now” and “do a voir dire, if you want to”;

otherwise the form “comes in” as “a certified copy . . . under the rules” —

whereupon defense counsel replied, “Understood, Your Honor.”

Third, Crowley identified a certified copy of appellant’s bench warrant

(Exhibit 3), which the trial court admitted in evidence without objection and thus is

not at issue here. On cross-examination Crowley acknowledged that she had not

“personally witnessed” and thus had no “personal knowledge” that appellant had

“failed to appear” in court on July 1, 2014.

Toward the end of the bench trial, defense counsel objected that Crowley’s

testimony that appellant had not attended court for the July 1, 2014, status hearing

was “based upon her reading prior docket entries [and] court documents”; thus, it

was “expert testimony,” that is, her “interpretation” of the record. The trial court

replied that she “didn’t qualify [Crowley] as an expert . . . . The document can be

read and all [Crowley] did was read it. I can read it . . . . She didn’t interpret it.”

Overruling defense counsel’s objection, the trial court then found appellant guilty

6

of the BRA charge and sentenced him to ninety days of incarceration followed by

one year of supervised probation. This timely appeal followed.

II. Standard of Review

We review a trial court’s decision on admission of evidence for abuse of

discretion. 4 If, however, a defendant has failed to object at trial to evidence

contested on appeal, we review for plain error. 5 Appellant preserved his first claim

of error by objecting to the trial court’s failure to qualify the courtroom clerk as an

expert witness. He failed, however, to object to the trial court’s allowance of that

testimony as proper foundation for admission of the government’s exhibits. Thus,

4

Jenkins v. United States, 80 A.3d 978, 989 (D.C. 2013).

5

Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006) (quoting United States

v. Olano, 507 U.S. 725, 732 (1993)) (“Under the test for plain error, appellant must

show (1) that the admission of the chemist's report was “error,” (2) that the error is

“plain,” and (3) that it affected appellant’s “substantial rights. . . . If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.”).

7

we review that ruling for plain error. 6 Once these issues are resolved we can

address sufficiency of the evidence.

III. The Merits

A. “Expert” or “Lay” Testimony?

Appellant argues that Crowley’s testimony, by its very nature, required

specialized knowledge that necessitated her qualification as an “expert” (as the

government had requested). 7 The trial court ruled this unnecessary. The court

6

As elaborated earlier, Defense counsel had objected to admission of

Exhibit 1, the CourtView printout of the docket entry showing appellant’s failure

to appear at the July 1, 2014, hearing. Defense counsel also had attempted to

preserve the right to object later to admission of Exhibit 2, appellant’s signed

Release of Conditions Form reflecting appellant’s awareness of that July 1, 2014,

obligation. The discussion between the trial court and defense counsel quoted at

the end of part I. focused on Exhibit 2. Without question, however, the trial court’s

reasoning was broad enough to cover its admission of both exhibits. (As we also

noted above, there had been no objection to admission of Exhibit 3 evidencing the

bench warrant for appellant’s arrest.)

7

In arguing that the courtroom clerk’s qualification as an “expert” was

required here, appellant relies on our decision in Motorola v. Murray, 147 A.3d

751 (D.C. 2016) (en banc). In Motorola, following the Supreme Court’s ruling in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), we abrogated

the Dyas/Frye test and adopted Fed. R. Evid. 702 for Testimony by Expert

(continued . . .)

8

understood Crowley to have done no more than read public records into the trial

record, which the court said it could do itself, without any expert, interpretive help

from Crowley.

We do not assume the trial court was saying that, as factfinder, it could

simply take judicial notice of the government’s exhibits, without more, to assess

appellant’s guilt. 8 The government itself recognizes that, for admission of court

records in evidence under the public record exception to the hearsay rule, the

government must establish a foundation — a predicate — for admission of such

exhibits. This requires testimony that: (1) authenticates each document as “an

official record” of the trial court, (2) proves that the “facts stated in the document

are within the personal knowledge and observation of the recording official,” and

(3) establishes that “the document is prepared pursuant to a duty imposed by law or

___________________________

(. . . continued)

Witnesses. As we explain below, however, Fed. R. Evid. 702 is inapplicable here.

147 A.3d at 759-59.

8

This is not a case in which a trial court, for example, judicially notices a

court record to confirm an unassailable fact, such as a defendant’s release status,

for purposes of imposing sentence. See, e.g., Daniels v. United States, 33 A.3d

324, 330 (D.C. 2011).

9

implied by the nature of the office” 9 — criteria we have compressed to require the

“offering witness be able to identify the record as authentic and as made in the

ordinary course of business.” 10 Thus, in rejecting the need for expert testimony to

satisfy these foundational criteria, the trial court’s “I-can-read-it” ruling implicitly

leaves us with two threshold questions: Contrary to the trial court’s ruling, was

“expert testimony” required to provide the foundation necessary to justify

admission of government exhibits 1 and 2? If not, was the courtroom clerk’s

testimony sufficient for that purpose?

Not long ago, in affirming a BRA conviction, this court recognized that an

unchallenged, unidentified witness (likely the trial court courtroom clerk) testified

9

Goldsberry v. United States, 598 A.2d 376, 378 (D.C. 1991) (quoting In re

D.M.C., 503 A.2d 1280, 1283-84 (D.C. 1986)).

10

Id. at 379 (quoting United States v. Newman, 468 F.2d 791, 795-56 (5th

Cir. 1972), cert. denied, 411 U.S. 905 (1973)). We justified this shorthand

interpretation by concluding that the “official who prepares a document” about

which the courtroom clerk testifies “need not testify to satisfy the personal

knowledge requirement of the public record exception . . . because the recorder’s

official duty to make an accurate statement in itself supplies a sufficient indication

of trustworthiness.” Id. Implicitly, therefore, this same rationale applies to satisfy

the “pursuant-to-a-duty” requirement because the official who prepares an

authentic court document necessarily carries out a duty “imposed by law or

implied by the nature of the office,” id. at 378, and thus does so routinely, in the

“ordinary course” of the court’s business id. at 379.

10

as an “expert” when explaining “standard courtroom practice.” 11 Years earlier, we

affirmed another BRA conviction after recognizing unchallenged “expert”

testimony by a trial court employee laying the foundation for admission of

government exhibits challenged on appeal for violating the Confrontation Clause

of the Sixth Amendment. 12 Still earlier, in affirming another BRA conviction for

“willfully failing to appear,” we likewise noted the trial court’s qualification of a

courtroom clerk as an “expert” whose testimony supplied the foundation necessary

to support authentication of court documents under the public record exception to

the hearsay rule. 13

11

Wilkins v. United States, 137 A.3d 975, 978 (D.C. 2016) (“expert”

witness testified that courtroom clerks “will orally notify” defendant of “date and

time” of next court appearance and of “consequences for failing to appear,” and

will require defendant to sign “Notice to Return to Court containing the same

information” and then give defendant “a copy of the signed notice”).

12

Jackson v. United States, 924 A.2d 1016, 1018, 1019 (D.C. 2007) (trial

court employee was “qualified without objection as an expert in Superior Court

courtroom procedure . . . [and was] called to the stand to lay a foundation for the

admission of the government exhibits” in BRA prosecution).

13

Goldsberry, 598 A.2d at 377-78 (in BRA case, court employee with eight

years of experience as a courtroom clerk was “qualified as an expert in courtroom

procedures” and testified that the “seal” on the “challenged docket entries and

Notice to Return” indicated a “true copy of the court proceedings” in which a

defendant is informed of “the next scheduled appearance date” and of “the

penalties for failing to appear”; is then required to sign a copy of the notice to

(continued . . .)

11

In none of these cases, however, did we review the need for expert

testimony; nor have other cases suggested, let alone held, that a courtroom clerk

must be qualified as an “expert” before testifying about trial court procedures in

failure-to-appear or other cases. 14

To be sure, testimony about trial court procedures — what they are and how

they work — may include a measure of interpretation (and thus “opinion”). 15 Even

___________________________

(. . . continued)

appear; and, finally, is informed that a bench warrant would issue for his arrest if

he did not appear as required).

14

See Gilliam v. United States, 46 A.3d 360, 371 (D.C. 2012) (trial court

courtroom clerk testified without objection in BRA prosecution “about general

courtroom procedures,” including among other things notice to defendant of “the

penalties for failure to appear”); Brown v. United States, 718 A.2d 95, 98 (D.C.

1998) (trial court courtroom clerk testified without objection about Drug Court

procedure in BRA prosecution for failure to appear for drug treatment program,

including that “defendants are notified orally and in writing of future court dates

and of the consequences of failure to appear”); see also Hill v. United States, 541

A.2d 1285, 1288 (D.C. 1988) (police officer held “competent to testify about the

general practice of the police department of which he himself was a member. So

long as his testimony was based on his personal knowledge, it would not even be

‘expert’ testimony.”).

15

In this case, for example, clerk Crowley testified that she could not tell

from the court’s copy of the Release of Conditions Form whether appellant had

(continued . . .)

12

so, a courtroom clerk’s testimony about court procedures is premised on the clerk’s

own personal knowledge and experience. Thus, that testimony, even when

reflecting opinion, does not presuppose — indeed, would not ordinarily be

informed by — the kind of “scientific, technical, or other specialized knowledge,”

derived from sources beyond one’s experience, that characterize an expert under

Federal Rule of Evidence 702 16 adopted in Motorola. 17 We conclude, accordingly,

that testimony about trial court procedures by a courtroom clerk is characterized

more properly as “lay opinion,” governed by Federal Rule of Evidence 701, 18

___________________________

(. . . continued)

also received a copy, but she opined that, because a release form has three carbon

copies, appellant “would have gotten” one of them.

16

Rule 702, Testimony by Expert Witnesses, provides: “A witness who is

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue; (b) the testimony is based on sufficient

facts or data; (c) the testimony is the product of reliable principles and methods;

and (d) the expert has reliably applied the principles and methods to the facts of the

case.”

17

See supra note 7.

18

Rule 701, Opinion Testimony by Lay Witnesses, provides: “If a witness is

not testifying as an expert, testimony in the form of an opinion is limited to one

that is: (a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c) not

based on scientific, technical or other specialized knowledge within the scope of

Rule 702.”

13

adopted in our King decision 19 — a characterization appellant does not dispute if

qualification of an expert is not required.

Quoting federal case law, we have acknowledged that the “line between lay

opinion testimony under Rule 701 and expert testimony under Rule 702 is a fine

one,” not always “easy to draw.”20 However, we agree with the government that,

in this case, clerk Crowley’s testimony was not that of an expert based on “special

training or scientific or other specialized professional knowledge” normally not

“accessible to an average person.” 21 Rather, as explained in King, her testimony

was premised on knowledge gained from her “personal experiences and

observations” as a courtroom clerk, including “observations of human conduct in

19

King v. United States, 74 A.3d 678, 681-83 (D.C. 2013) (opinions of

police officers about the meaning of particular “street lingo,” derived from

interactions “with youth in the D.C. streets,” were admissible as lay testimony in

carjacking trial pursuant to “process of reasoning approach” adopted from Second

Circuit’s decision interpreting Fed. R. Evid. 701 in United States v. Garcia, 413

F.3d 201, 215 (2d Cir. 2005)).

20

Id. at 681 n.14 (internal quotation marks omitted).

21

Id. at 683.

14

[her] every day work,” communicated to the jury with “reasoning processes

familiar to the average person in everyday life.” 22

The question then becomes: How is this Rule 701 lay opinion to be applied

here? More particularly, on the trial record, did clerk Crowley’s testimony provide

the required foundation for admission of the government exhibits 1 and 2 in

evidence? 23

B. Foundation for Lay Opinion Testimony: Federal Rule of Evidence 701

1. General Courtroom Procedures

As observed earlier, before determining whether clerk Crowley’s testimony

about trial court procedures was admissible under Rule 701, 24 Goldsberry requires

us to evaluate whether that testimony satisfied the public record exception to the

22

Id. at 682-83.

23

Although appellant agrees that, if expert testimony is not required, Rule

701 applies, he then argues, on the facts, that Rule 701 fails to justify admission of

Crowley’s lay opinion testimony.

24

See supra note 18 subsections (a) and (b).

15

hearsay rule, requiring demonstration that clerk Crowley was “able to identify the

record as authentic and as made in the ordinary course of business.” 25

As the foundation for admitting in evidence certified copies of the docket

entry, the Release of Conditions form, and the bench warrant (government exhibits

1, 2, and 3), Crowley first explained her overall duties as clerk: she “pretty much

manage[s] the courtroom”; prints and posts the “courtroom calendar” each day;

prepares the paperwork for each defendant’s case; and adds the “docketing

entries,” including “what occurred” when the case was called, the defendant’s

“release status” pending trial, and a notice — which the defendant signs —

specifying when the defendant must return to court and adding the “penalties” for

failing to so. Clerk Crowley adds an “oral warning” that “explain[s] the penalties,”

including a bench warrant for the defendant’s arrest. She also notes in the court

record when a defendant “does not appear after his or her name is called.”

Importantly, Crowley generalized her testimony; she confirmed that “all of the

courtroom clerks here in D.C. Superior Court follow a similar procedure each

morning.”

25

Goldsberry, 598 A.2d at 379; see supra notes 9 & 10 and accompanying

text.

16

2. Evidence at Trial

After explaining the trial court’s general procedures, Crowley identified the

government’s three exhibits, testifying that each was a sealed, certified copy. In

answering the prosecutor’s questions, Crowley confirmed docket entries indicating

that appellant was present in court on May 29, 2014, the date of arrest; had been

charged with a criminal offense in case number 014-CMD-9383 (Exhibit 1); had

signed a “release of conditions form” notifying him that he must return to court on

July 1, 2014 (Exhibit 2); and then failed to appear on that date, as required,

following which a bench warrant had been issued for his arrest (Exhibit 3).

On cross-examination, Crowley acknowledged that appellant’s failure to

appear on July 1, 2014, occurred before she was “working at the courthouse,” and

thus that her testimony had been based exclusively on what she had seen “in the

docket.”

Crowley concluded her testimony by responding on redirect that she had

worked at the trial court for almost three years (having mentioned earlier that she

17

had served “[m]ore than ten judges”). She looks at court calendars “[e]very day”

and feels “one hundred percent comfortable” when “reading and interpreting,

understanding what the court calendars mean.”

This court’s decisions cited earlier 26 — especially the remarkably similar

testimony in Goldsberry 27 — make clear that Crowley’s testimony (if otherwise

qualified) was foundation evidence sufficient for admission of government

Exhibits 1 and 2, namely, testimony supporting the charge that appellant had

willfully failed to appear in court after release pending trial. Of particular

importance, Crowley made clear that appellant was on notice of the next scheduled

hearing date that he missed, as he had signed a copy of the notice specifying that

26

See supra notes 11-14.

27

598 A.2d at 378 (“[The courtroom clerk] testified that normal procedures

require all parties to identify themselves at a hearing. He then testified that either

the courtroom clerk or the judge informs the defendant, at the conclusion of the

hearing, of the defendant’s next scheduled appearance date and of the penalties for

failing to appear. [The courtroom clerk] further testified that the defendant is

required to sign a written notice reflecting that the defendant has received notice of

the next appearance date. [The clerk] added that normally the defendant signs the

notice in the presence of the courtroom clerk. [The clerk] also testified that if a

defendant does not appear at a scheduled hearing, the court will issue a bench

warrant for the defendant’s arrest and a record entry will reflect that fact. [The

clerk] then testified that, to the best of his knowledge, the March 3 and May 15

docket entries had been made in accordance with established courtroom

procedures.”).

18

date and, based on the described courtroom practice, would have simultaneously

received a copy of it.

In support of admitting this testimony, we have agreed with the trial court

that Crowley need not have been qualified as an expert. Based on our decision in

King, Crowley’s testimony, if qualified for admission in evidence, would come in

as a lay opinion under Federal Rule of Evidence 701, exempted from the hearsay

rule by the public record exception, as explained in Goldsberry. 28 We therefore

turn to appellant’s next contention: that Crowley’s lay opinion was nonetheless

inadmissible under Rule 701 because her opinion failed to meet the predicate

requirement of Federal Rule of Evidence 406, as understood from our Smith

decision. 29

A. Federal Rule of Evidence 406

28

See supra notes 10 and 11 and accompanying text.

29

Smith v. United States, 583 A.2d 975 (D.C. 1990).

19

As noted earlier, we review for plain error because appellant failed to object

to the trial court’s allowance of clerk Crowley’s testimony as proper foundation for

admission of the government’s exhibits. Rule 406 provides, where relevant, that

“[e]vidence of a person’s habit or an organization’s routine practice may be

admitted to prove that on a particular occasion the person or organization acted in

accordance with the habit or routine practice.” Adopting Rule 406 in Smith, 30 we

rejected, for lack of foundation, a courtroom clerk’s testimony about the general

practice of courtroom clerks when judges change scheduled courtrooms during

cases of failure to appear. Although we concluded that Rule 406 was applicable to

the “routine” of a court (a qualifying “organization”), we reversed appellant’s

conviction for failing to appear in the reassigned courtroom because the testifying

clerk lacked “personal knowledge” 31 of “what other courtroom clerks normally did

when judges changed courtrooms”; 32 that is, the clerk did not resolve whether there

was a uniform routine that, under the circumstances, would have directed appellant

to the proper courtroom. By concluding that the testifying clerk lacked the

requisite “personal knowledge,” however, we “did not expressly challenge [the

30

Id. at 983.

31

Id. at 983.

32

Id. at 984-85.

20

clerk’s] competence to testify about the general practice of courtroom clerks”; 33 we

concluded, rather, that the witness did not demonstrate personal knowledge of a

general practice. 34 In the present case, however, clerk Crowley did testify about

the trial court’s general practice — its “routine” — in trying BRA cases, including

proof of each element of the crime, as evidenced by the court documents proffered

by the prosecutor as government Exhibits 1, 2, and 3.

Appellant would have us reject Crowley’s testimony because, having joined

the trial court staff in April 2016, she “did not have personal knowledge of the

general practices and customs of courtroom clerks in 2014,” when appellant failed

to return to court on July 1. Appellant, however, failed to object on this ground at

trial or press the point at closing argument.

33

Id. at 984.

34

Accord Bolan v. United States, 587 A.2d 458, 459-60 (D.C. 1991) (evidence

from courtroom clerk who testified that “all cases in a given calendar are posted in

various places in the courthouse” — but who “did not know where the calendar

was posted” on the date appellant was required to appear — provided insufficient

foundation for the government to demonstrate that appellant, who failed to appear,

had the required notice of a courtroom change) (relying on Smith, 583 A.2d at

984).

21

We cannot find plain error, let alone error affecting appellant’s substantial

rights. 35 Presumably the government had the burden of persuasion that the trial

court procedures reflected in the docket at time of trial (April 2016) were

congruous with the situation when appellant failed to appear in court in (July

2014). However, Ms. Crowley’s testimony — based exclusively on what she had

seen “in the docket” from 2014 — was remarkably similar to the testimony about

courtroom procedures by the courtroom clerk in Goldsberry many years earlier. 36

Furthermore, Crowley made clear that the court procedures she had described were

virtually universal, for she testified that “all of the courtroom clerks here in the trial

court follow a similar procedure each morning.” We believe that this evidence was

sufficient proof that Ms. Crowley was apprised of the docket evidence and

procedures from 2014; such time-honored procedures are not changed regularly or

without a trial judge’s awareness (of which no evidence here).

The burden of producing evidence to the contrary thus shifted to appellant.

However, he has proffered no basis for believing that trial court procedures, let

alone the court docket, had changed between mid-2014 and the spring of 2016

35

See supra note 5.

36

See supra note 25.

22

when Ms. Crowley first reported for work. Appellant’s contentions embracing

Rules 406 and 701 accordingly fail because, unlike the courtroom clerks who

testified in Smith and Bolan, 37 clerk Crowley testified with the level of “personal

knowledge” required under both rules. 38

III. Sufficiency of the Evidence

To find the evidence sufficient to support a criminal conviction, we decide

whether, “after viewing it in the light most favorable to the [government], any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” 39 Following a bench trial, this court will not reverse a

conviction unless appellant “has established that the trial court’s factual findings

are ‘plainly wrong,’ or ‘without evidence to support them.’” 40 “A finding is clearly

erroneous when although there is evidence to support it, the reviewing court on the

37

See supra note 32.

38

See text accompanying supra notes 29-31 (Rule 406) and notes 19-20

(Rule 701).

39

Smith v. United States, 55 A.3d 884, 887 (D.C. 2012).

40

Jones v. United States, 67 A.3d 547, 549 (D.C. 2013).

23

entire evidence is left with the definite and firm conviction that a mistake has been

committed.” 41 Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous. 42

To prove a violation of the Bail Reform Act, the government must prove that

appellant: (1) had been released pending further criminal proceedings, (2) was

required to appear in court on a specific date, (3) failed to appear, and (4) did so

willfully. 43 In this case, viewed (as we must) in the light most favorable to the

government, there was sufficient evidence for appellant’s conviction.

In her comprehensive testimony summarized earlier, clerk Crowley testified,

among other details, that docketing entries confirmed appellant’s presence in court

on the date of his arrest, May 29, 2014, charged with a criminal offense in case

number 2014-CMD 9383 (Exhibit 1); that after arraignment he had signed a

“release of conditions form” notifying him of his obligation to return to court for a

41

United States v. United States Gypsum Co., 333 U.S. 364, 394-395 (1948)

(internal quotation marks omitted).

42

Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985).

43

See Jackson, 924 A.2d at 1018.

24

status hearing on July 1, 2014 (Exhibit 2); that he had failed to appear on that date;

and that a bench warrant thereupon issued for his arrest (Exhibit 3). This

testimonial and documentary evidence was sufficient to satisfy the first three

elements of the crime.

Finally, the BRA statute provides that “[a]ny failure to appear after notice of

the appearance date shall be prima facie evidence that such failure to appear is

willful,” 44 essentially a presumption that appellant made no serious effort to rebut.

In closing, defense counsel merely argued: “As a fact finder, I’d submit that they

have given you no evidence as to willfulness and therefore the court should acquit

Mr. Johnson.” The trial court, however, perceived “no contrary evidence to

override” the presumption that appellant’s failure to return to court was “willful,”

ruled that the government had “met its burden,” and found appellant “guilty of the

BRA.” There was no clear error and thus the judgment of conviction must be

affirmed.

So ordered.

44

D.C. Code § 23-1327(b).