Crews v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-346

HARRY A. CREWS, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(CF2-5279-18)

(Hon. Ronna Lee Beck, Trial Judge)

(Argued January 26, 2021 Decided November 10, 2021)

Mindy A. Daniels for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Timothy J.

Shea, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Ariel

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

Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, * Associate Judge,

and FERREN, Senior Judge.

*

Judge Thompson was an Associate Judge of the court at the time of January

26, 2021. Judge Thompson’s term expired Saturday, September 4, 2021; however,

she will continue to serve as an Associate Judge until her successor is confirmed.

See D.C. Code § 11-1502 (2012 Repl.) (“Subject to mandatory retirement at age 74

and to the provisions of subchapters II and III of this chapter, a judge of a District of

Columbia court appointed on or after the date of enactment of the District of

Columbia Court Reorganization Act of 1970 shall serve for a term of fifteen years,

2

BLACKBURNE-RIGSBY, Chief Judge: Appellant Harry Crews appeals the

denial of his motion to suppress a handgun recovered from his person and seeks

correction of his sentence. Following a jury trial, appellant was convicted of

carrying a pistol without a license (“CPWL”) outside his home or place of business;

possession of an unregistered firearm; and unlawful possession of ammunition. 1

Appellant argues that the trial court incorrectly determined the point of seizure and

that he was unlawfully seized by Metropolitan Police Department (“MPD”) officers

while on the landing to his apartment as he tried to unlock his apartment door.

Appellant also requests that this court review his Judgment and Commitment Order,

which reflects a felony CPWL conviction even though, the jury was only instructed

with the elements of misdemeanor CPWL.

We vacate the trial court’s denial of the motion to suppress and remand the

case for further findings as to whether (1) there was a show of authority by officers

and upon completion of such term, such judge shall continue to serve until the

judge’s successor is appointed and qualifies.”). She was qualified and appointed on

October 4, 2021, to perform judicial duties as a Senior Judge and will begin her

service as a Senior Judge on a date to be determined after her successor is appointed

and qualifies.

1

Carrying a pistol without a license outside home or place of business (D.C.

Code § 22-4504(a)(1) (2012 Repl. & 2021 Supp.)); possession of an unregistered

firearm (D.C. Code § 7-2502.01(a) (2018 Repl.)); and unlawful possession of

ammunition (D.C. Code § 7-2506.01(a)(3) (2018 Repl.)).

3

and, relatedly, (2) appellant submitted to a show of authority. In addition, we ask

the trial court to clarify whether (and, if so, when) the officers had reasonable

articulable suspicion to conduct an investigatory stop prior to the frisk. We do not

reach the issue relating to the Judgment and Commitment Order.

I.

A. Hearing on Motion to Suppress

On February 4, 2019, the trial court held a pretrial evidentiary hearing to

address appellant’s motion to suppress a pistol recovered by MPD. After hearing

testimony from the sole witness, MPD Officer Jendy Olivo, the trial court denied

appellant’s motion to suppress, crediting the officer’s testimony with respect to what

happened and what he personally observed. Officer Olivo testified that he is a patrol

officer for the Seventh District with specialized training in recognizing

characteristics associated with armed gunmen. Officer Olivo described the

neighborhood around the 1500 block of Eaton Road S.E. as a place leading to the

2600 block of Burnie Place, an area known to officers for continuous drug and gun

related arrests.

4

Officer Olivo testified that around midnight on April 5, 2018, he along with

two other officers, Officers Labun and Gramieri, all dressed in full uniform, were

patrolling the 1500 block of Eaton Road in their marked squad car. Officer Olivo

was in the backseat of the vehicle, Officer Gramieri was driving, and Officer Labun

was in the front passenger seat. As Officer Olivo was unable to see from the back

seat, the other officers informed him that as appellant was exiting his car and saw

the police vehicle approaching, he turned the front of his body into and pressed it

against his vehicle. The officers found this turning away unusual. Officer Olivo

explained that “for individuals to press their body against a vehicle” is “common

upon seeing police officer[s,] to avoid officers being able to see any unusual bulges

or objects weighing down their center area or like jackets.”

Officer Olivo further testified that after passing the appellant, Officer

Gramieri turned the police vehicle around and drove back to the location where

appellant was last seen. Officer Olivo exited the police vehicle and began

canvassing the area around appellant’s vehicle, eventually entering a fenced area

with a red building. Upon entering the fenced area, Officer Olivo testified that he

saw exterior stairs leading to a covered upper-level landing which was surrounded

by railing and led to the door of appellant’s apartment. The landing was at a second-

floor level and had no other access points.

5

Officer Olivo was at the bottom of the stairs when he saw appellant standing

on the upper landing. Due to very poor lighting, Officer Olivo shined his flashlight

at appellant and said, “Hey what’s up, can I talk to you real quick?” As Officer

Olivo moved closer towards appellant, he testified that he could see appellant

become nervous and try several times to hurriedly put his key into the keyhole of the

apartment door to open it.

Officer Olivo stated he made his way up the stairs towards appellant. Noticing

appellant’s hurried and nervous state, Officer Olivo testified that he then said to

appellant “no, I need to talk to you” in a more persistent tone. 2 In addition, Officer

Olivo’s body worn camera captured appellant responding to the officer, the clearest

statement being, “For what?” Also, appellant momentarily paused his attempt to

unlock his apartment door. When Officer Olivo was about three to four stairs away

from appellant, he began asking if appellant had any weapons, but was interrupted

when appellant turned to face him. Officer Olivo testified that he then saw an L-

shaped weighted object in the front pocket of appellant’s pull over hoodie. He then

sprinted up the short distance up the stairs and bear hugged appellant to prevent

2

In the body worn camera footage Officer Olivo states, “Nah, let me talk to

you real quick.”

6

access to the L-shaped weighted object, which he suspected was a firearm. While

being bear hugged, appellant stated that he lived there (which was verified after

appellant was taken to the police station).

According to Officer Olivo, Officers Labun and Gramieri followed closely

behind him through the gate, also with their flashlights on. Officer Olivo testified

that within five seconds of his bear-hugging appellant, Officer Gramieri helped

secure appellant and Officer Labun conducted the pat down, and the object was

removed from the pocket and discovered to be a firearm. After the firearm was

recovered and the officers were waiting for back-up to arrive, Officer Olivio testified

that appellant stated, “yes, I am breaking the law. But you broke the law to find out

I was breaking the law. And [that] he only carries a firearm for protection because

police are killing people and people are killing people.”

In denying appellant’s motion to suppress the recovered firearm on Fourth

Amendment grounds, the trial court concluded that (1) the observation of appellant

leaning into his car as the police vehicle passed did not give police reasonable

articulable suspicion, but was something that caused officers to further investigate;

however, the trial court further concluded that (2) once Officer Olivo was on the

landing in front of appellant’s apartment and saw the L-shaped weighted object in

7

the front pocket of appellant’s hoodie, which Officer Olivo believed to be a gun,

there was reasonable articulable suspicion justifying a Terry frisk. Therefore, the

trial court concluded that Officer Labun’s subsequent frisk of appellant was lawfully

conducted, and the recovered firearm admissible.

However, the trial court was concerned with whether an officer has a “right to

go on to somebody’s else’s property that [is] fenced” without reasonable articulable

suspicion or if it is permissible to go beyond the fence to initiate a citizen contact.

The trial court found that: (1) the fence around the building was see-through; (2) the

gates were open; (3) there were two entrances to two different apartments; (4) each

entrance had its own steps leading to it; (5) and the steps leading to the landing had

an overhead cover. The trial court presumed the steps were curtilage and that Officer

Olivo entered the curtilage. However, recognizing Florida v. Jardines, the trial court

held that in the absence of signage prohibiting entrants beyond the open gate, Officer

Olivo did not act beyond what a private citizen may do. 569 U.S. 1, 8 (2013)

(determining an unarmed officer without a warrant may approach a home and knock

on the door because it is no more than a private citizen may do).

The trial court concluded that Officer Olivo was legally on the property,

including the stairs, because there was no “unlicensed intrusion,” or use of any

8

“unlicensed physical intrusion.” See Jardines, 569 U.S. at 7-8 (discussing whether

an officer’s investigation that took place on a constitutionally protected area was

accomplished through an unlicensed physical intrusion, where there is an “implicit

license” for a visitor to approach a home, knock on the door, and wait to be received).

The trial court reaffirmed its conclusion that Officer Olivo did not have reasonable

articulable suspicion when he initially entered up the stairs. However, the court

found that Officer Olivo’s physical intrusion — the bear hug upon appellant — was

licensed, legal, and permitted the moment he observed the L-shaped weighted object

in appellant’s front pocket, which established reasonable articulable suspicion to

then conduct a Terry frisk. Officer Olivo’s bear hug, conducted for his own safety

to prevent appellant from reaching for the suspected weapon, was therefore a lawful

action preceding the frisk, said the court. Therefore, the trial court issued its final

denial of appellant’s motion to suppress.

B. Trial and Sentencing

The relevant Fourth Amendment evidence presented at trial mirrored the

evidence presented at the motion to suppress hearing. The only additional evidence

admitted at trial, relevant to our review, pertains to the Judgment and Commitment

Order, which reflects a felony CPWL conviction and requires proof beyond a

9

reasonable doubt that appellant carried the weapon “in a place other than the person’s

dwelling place” or “on other land possessed by the person.” D.C. Code § 22-

4504(a)(1). Throughout the presentation of the case the jury was presented with the

elements for misdemeanor CPWL, which does not require the aforementioned

element of proof that was put forward. See D.C. Code § 22-4504(a) (“No person

shall carry within the District of Columbia either openly or concealed on or about

their person, a pistol, without a license issued pursuant to District of Columbia law,

or any deadly or dangerous weapon.”).

At the start of trial while delivering voir dire instructions, the trial court

informed the jury that appellant was charged with “[carrying] a pistol without a

license, possession of an unregistered firearm, and unlawful possession of

ammunition;” the elements of misdemeanor CPWL. Neither party objected to the

court’s recitation of the charges. Then, in the government’s closing argument, with

respect to the CPWL charge, it informed the jury of the elements of misdemeanor

CPWL — “[e]ssentially you have to decide whether on April 5, 2018, the defendant

was carrying a pistol and whether he had a license to carry that pistol, and whether

that pistol was registered.”

10

Before instructing the jury, the trial court took time to determine if, in the

evidence presented, appellant made a prima facie case he was entitled to an

exception instruction with respect to the CPWL charge. See Fortune v. United

States, 570 A.2d 809 (D.C. 1990) (discussing the statutory exceptions pertaining to

CPWL charges, such as dwelling place and other land possessed by a person).

Specifically, the question was whether the appellant demonstrated that he did not

carry the firearm outside his home or business, or outside land or premises possessed

or controlled by him. Appellant’s mother, Edith Crews, testified that he lived at the

address where he was arrested for approximately two years with his girlfriend and

child.

The trial court reasoned that the landing outside of appellant’s apartment did

not fall within the definition of dwelling because a dwelling is exclusively inside a

home and does not include curtilage. The court decided not to instruct the jury with

a dwelling exception in appellant’s favor for the CPWL charge. The trial court,

relying on Fortune, 570 A.2d 809, and White v. United States, 283 A.2d 21 (D.C.

1971), explained that appellant had the burden of making a prima facie case that he

fit within an exception found in D.C. Code § 22-4504(a)(1) — that he was not a

person carrying weapons “in a place other than the person’s dwelling place” or the

he was “on other land possessed by” him.

11

The trial court concluded that curtilage is not part of a dwelling such that the

dwelling exception is applicable to appellant. Also, relying on Hines v. United

States, 326 A.2d 247 (D.C. 1974), and again on Fortune, and White, the trial court

concluded that a premises (or land possession) exception did not apply because

appellant did not introduce evidence that he was on land possessed by him. The

evidence presented was that appellant’s address was the same as the building where

he was seized and that appellant, his girlfriend and child had an apartment at that

address. The trial court concluded that it was not enough that appellant was trying

to open the upper exterior door to establish that appellant was on property that

constituted “premises or land possessed” by him because the building was large and

had two exterior staircases and two exterior doors. The trial court informed the

parties that with respect to the CPWL instruction it would instruct the jury on the

elements of “carr[ying] a pistol on or about his person voluntarily and on purpose,

not by mistake or accident, and that he was not licensed to carry a pistol.”

The trial court gave the following CWPL instruction to the jury:

Carrying a pistol without a license. The elements of the

offense of carrying a pistol without a license, each of

which the government must prove beyond a reasonable

doubt, are:

12

One, the defendant carried a pistol on or about his

person.

Two, he did so voluntarily and on purpose and not

by mistake or accident.

And three, the defendant was not licensed to carry

the pistol by the chief of police of the District of Columbia.

The term pistol means a firearm that has a barrel less than

12 inches in length, where it was originally designed to be

fired with a single hand. The term firearm means a

weapon, regardless of operability, which will or is

intended to expel a bullet by the action of an explosive.

The jury returned guilty verdicts on all charges against appellant.

On April 18, 2019, appellant was sentenced on the counts of felony CPWL;

possession of an unregistered firearm; and unlawful possession of ammunition, 3 to

concurrent sentences of six months’ incarceration, the execution of all sentences

suspended, and to one year of supervised release. This appeal followed.

II.

A. Fourth Amendment Seizure

3

Carrying a pistol without a license outside home or place of business (D.C.

Code § 22-4504(a)(1)); possession of an unregistered firearm (D.C. Code § 7-

2502.01(a)); and unlawful possession of ammunition (D.C. Code § 7-2506.01(a)(3)).

13

Appellant contends that the point of seizure occurred before Officer Olivo saw

the L-shaped weighted object in his pocket, which was prior to any opportunity

officers may have had to establish reasonable articulable suspicion to conduct a

Terry frisk; therefore, suppression of the firearm and statements to the police was

required. The Fourth Amendment protects “the right of the people to be secure in

their persons, houses, papers and effects, against unreasonable searches and

seizures.” U.S. CONST. amend. IV. A constitutionally permissible encounter

between law enforcement and an individual can either be a “consensual encounter,

which does not require any level of suspicion prior to initiation”; an “investigative

detention, which if nonconsensual, must be supported by a reasonable, articulable

suspicion of criminal activity prior to initiation”; or an “arrest, which must be

supported by probable cause prior to initiation.” Gordon v. United States, 120 A.3d

73, 78 (D.C. 2015) (cleaned up). “Both investigative detentions and arrests are

seizures under the Fourth Amendment; mere consensual encounters are not.” Id.

(footnotes omitted). However, an encounter may begin consensually and, through

either “the officer’s show of authority or some other indication that the individual is

not free to leave, become a nonconsensual seizure” that requires reasonable,

articulable suspicion. Towles v. United States, 115 A.3d 1222, 1228 (D.C. 2015).

14

When reviewing a trial court’s ruling on a motion to suppress, we defer to the

trial court’s factual findings unless they are clearly erroneous, but “[w]hether a

seizure has occurred for Fourth Amendment purposes is a question of law which this

court reviews de novo.” Jackson v. United States, 805 A.2d 979, 985 (D.C. 2002).

Likewise, the trial court’s determination that an encounter was consensual is a legal

conclusion that a seizure did not occur, which is also subject to de novo review. Id.

at 985-86; Sharp v. United States, 132 A.3d 161, 166 (D.C. 2016). In assessing

whether there was a seizure, we consider the totality of the circumstances to

determine whether “police conduct would have communicated to a reasonable

person” that they were “not free to decline the officers’ requests or otherwise

terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991); see Hooks

v. United States, 208 A.3d 741, 746 n.11 (D.C. 2019) (“Another formulation of the

test asks whether a reasonable person would have felt ‘free to leave,’ . . . but the

protections of the Fourth Amendment extend to situations where a citizen has no

desire to go elsewhere and instead simply wishes to decline an encounter with the

police.”). In addition to a show of authority, for there to be a seizure the apprehended

person must submit to the show of authority. 4 See Pridgen v. United States, 134

A.3d 297 (D.C. 2016); Plummer v. United States, 983 A.2d 323, 331 (D.C. 2009)

4

But see Torres v. Madrid, 141 S. Ct. 989 (2021) (holding that the application

of physical force to the body of a person with intent to restrain is a seizure even if

the force does not succeed in subduing the suspect).

15

(quoting Brendlin v. California, 551 U.S. 249, 254 (2007)); see also California v.

Hodari D., 499 U.S. 621, 626, 628-29 (1991). In our analysis, “[t]he hypothetical

reasonable person is an innocent person.” Dozier v. United States, 220 A.3d 933,

941 (D.C. 2019). “Generally, when physical or testimonial evidence is uncovered

by an illegal search or seizure, it must be suppressed as the ‘fruit of the poisonous

tree.’” Wilson v. United States, 102 A.3d 751, 753 (D.C. 2014) (citation omitted).

Appellant argues that the trial court erred in determining that the encounter

began as consensual because he did not desire to interact with the police, and the

officer’s assertion that he needed to talk to appellant was a demand or else a

demonstration of authority. Appellant contends his case is analogous to Hooks v.

United States, 208 A.3d 741 (D.C. 2019) (reversing and remanding the trial court’s

denial of Hooks’s motion to suppress because there was an unlawful Fourth

Amendment seizure when four officers patrolling in a marked police vehicle passed

Hooks sitting on a lawn chair at a barbeque, turned around, exited their vehicle,

approached Hooks and commanded he stand up, which he did; the officers did not

have reasonable articulable suspicion). In response, the government argues that the

initial encounter was consensual, and that appellant was not seized because there

was no show of authority from the officers that would otherwise indicate that he was

16

not free to leave. In addition, the government argues that if there was a show of

authority there was no seizure because appellant did not submit to the authority.

We determine that is it unclear from the trial court’s ruling whether the

encounter was consensual because no findings were announced concerning if there

was a show of authority and, if so, whether appellant submitted to authority. Thus,

the trial court must resolve whether there was a seizure before Officer Olivo saw the

L-shaped object in appellant’s hoodie pocket. Additionally, although the trial court

issued findings on whether the police had reasonable articulable suspicion to justify

a frisk, it did not address the initial question of whether (and, if so, when) the officers

had reasonable articulable suspicion to conduct an investigatory stop. We ask the

trial court to also make initial findings and clarifications on this point as well.

First, the trial court must determine if there was a show of authority by

assessing the totality of the circumstances; the test is whether police conduct

communicates to a reasonable person that they are “not free to decline the officers’

requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 439. We have

explained that a show of authority need not be expressly communicated through

verbal commands for there to be a seizure. Cf. Dozier, 220 A.3d at 941 (discussing

that the implicit or explicit accusatory nature of questioning by officers can tend to

17

indicate a nonconsensual encounter with law enforcement). “[O]ur precedents direct

[us to] take an ‘earthy’ and realistic approach to such street encounters” which

requires recognition that police initiating an encounter have an “air of authority.”

(Albert) Jones, 154 A.3d 591, 595 (D.C. 2017) (quoting Jackson v. United States,

805 A.2d 979, 988 (D.C. 2002)). In Dozier, we determined that a seizure occurred

“by the time appellant submitted to the officers’ request to a pat-down.” 220 A.3d

at 941 (italics added). Although a verbal command may be a strong indicator in a

seizure determination, our precedents do not require it.

We highlight some circumstances which generally can contribute to a

conclusion that there was a nonconsensual encounter with law enforcement, i.e., a

seizure: the sudden appearance of an officer in full tactical gear emerging from a

vehicle; the officers’ outnumbering other persons; accusatory nature of an officer’s

questioning, either implicitly or explicitly; officers’ tone of voice; repeated or

persistent questioning that conveys that the officers were not satisfied with the

answers the person gave; officers’ request that the person expose his waistband for

visual inspection; and inability of a person to leave the area. 5

5

See Dozier, 220 A.3d at 941 (police officer in full uniform and tactical vest

emerging without warning to interrupt a person going about his business); (Albert)

Jones v. United States, 154 A.3d 591, 597 (D.C. 2017) (stating an encounter is

“more intimidating if the person is by himself, if more than one officer is present, or

18

If it is determined there was a show of authority, the trial court will then make

findings as to whether appellant submitted to it. At a minimum, submission requires

“that a suspect manifest compliance with the police orders or requests.” Golden v.

United States, 248 A.3d 925, 935 (D.C. 2021) (citation omitted). There are instances

when no submission to orders or requests is evident. See Pridgen, 134 A.3d at 304

(Pridgen failed to get on the ground following officer commands); Plummer, 983

A.2d at 326 (Plummer failed to immediately put his hands up after police

commands). However, this case presents more nuanced circumstances and should

be assessed as to whether “‘in the absence of any sign that a reasonable person . . .

if the encounter occurs in a location that is secluded or out of public sight”); Dozier,

220 A.3d at 941-42 (“[A] reasonable person who can tell from the inquiries that the

officer suspects him of something, and who cannot know whether the officer thinks

there is sufficient reason to detain him, may well doubt that the officer would allow

him to avoid or terminate the encounter and just walk away”) (quoting (Albert)

Jones, 154 A.3d at 596); United States v. Barnes, 496 A.2d 1040, 1045 (D.C. 1985)

(“[T]here was no . . . indication that [the officer] used a severe tone of voice.”);

Gordon v. United States, 120 A.3d 73, 80-81 (D.C. 2015) (“[T]he officer seized

Gordon by repeatedly questioning him before the police learned of his outstanding

warrant.”); Golden, 248 A.3d at 937 (“An ordinary reasonable and innocent person

. . . would not feel free to frustrate the police inquiry . . . by refusing to expose their

body for visual inspection to prove their innocence.”); Dozier, 220 A.3d at 942

(Dozier was at the mouth of a narrow alley with a police car blocking part of the

exit, and an officer exited the vehicle also partially obstructing exit); (Albert) Jones,

154 A.3d at 597 (Jones was in a narrow alley when the police vehicle pulled in;

although he was able to get by the car, an officer exited the vehicle to stop and engage

him); Hooks, 208 A.3d at 747-48 (Hooks, with a lawn chair behind him, and metal

fencing to either side, was surrounded by four officers occupying the path in front

of him and who commanded that he “get up”).

19

would believe the officer was giving a genuine choice to decline the request[s],’ the

clear message conveyed to a person . . . was that his submission was required.”

Golden, 248 A.3d at 935 (quoting Sharp v. United States, 132 A.3d 161, 169 (D.C.

2016)).

We do not purport to decide the issues of authority and submission in this

case, and instead note some of the circumstances we find relevant in assessing the

nature of appellant’s encounter. We find relevant: the time of day the encounter

occurred; appellant being followed to his apartment door; the statements of Officer

Olivo to appellant; the number of officers present; appellant being on an enclosed

landing; appellant’s response to Officer Olivo; and appellant’s attempts to unlock

his apartment door. With these in mind, the trial court shall make further detailed

findings on the seizure issue.

B. Appellant’s Sentence

Next, appellant asks this court to review his Judgment and Commitment Order

for a felony CPWL, despite the fact that the jury was instructed only on the elements

of a misdemeanor CPWL (which does not include that appellant was carrying the

firearm outside his home or business). Appellant highlights several different places

20

within the record in support of his assertion that there is an error in his sentence for

felony CPWL. First, he points to the indictment as being ambiguous because it cites

to D.C. Code § 22-4504(a) 6 which only contains language for misdemeanor CPWL

and does not include the element of being outside the home or place of business,

which is found in subparagraph (1) of section 22-4504(a) of the D.C. Code. Second,

he highlights that the trial court’s jury instructions and verdict form failed to include

the required element of carrying outside the home or business. Third, appellant notes

that the government failed to object to the CPWL instruction or the verdict form.

The government admits it was error not to instruct the jury on the government’s

burden to also prove beyond a reasonable doubt that appellant was carrying the pistol

6

Section 22-4504 of the D.C. Code, in relevant part states:

(a) No person shall carry within the District of Columbia

either openly or concealed on or about their person, a

pistol, without a license issued pursuant to District of

Columbia law, or any deadly or dangerous weapon.

Whoever violates this section shall be punished as

provided in § 22-4515, except that:

(1) A person who violates this section by

carrying a pistol, without a license issued pursuant to

District of Columbia law, or any deadly or dangerous

weapon, in a place other than the person’s dwelling place,

place of business, or on other land possessed by the

person, shall be fined not more than the amount set forth

in § 22-3571.01 or imprisoned for not more than 5 years,

or both. . . .

21

outside his home or business; however, it claims it was harmless error because the

evidence demonstrated that appellant was not in his home, business, or on land

possessed by him when carrying the firearm.

A challenge as to the correctness of a jury instruction is a question of law

which this court reviews de novo. Buskey v. United States, 148 A.3d 1193, 1205

(D.C. 2016). An improper jury instruction on an element of an offense is subject to

harmless-error review not warranting automatic reversal. Neder v. United States,

527 U.S. 1, 19 (1999). We are tasked with determining “whether the record contains

evidence that could rationally lead to a contrary finding with respect to the omitted

element.” Id. In other words, “even if the instructions had informed jurors of the

omitted element, no reasonable juror could have found that appellant” was carrying

the pistol in a place other than his dwelling, business, or on other land possessed by

him, “and thus that the omission did not affect appellant’s substantial rights.”

Conley v. United States, 79 A.3d 270, 291 n.3 (D.C. 2013) (Thompson, J.,

concurring in judgment), see Neder, 527 U.S. at 19 (explaining that omission of an

element of offense from jury instructions may be harmless error if the evidence could

not rationally have led to a contrary finding with respect to the omitted element).

22

The government focuses on the assertion that appellant was not within his

home, business, or on land possessed by him with the firearm. We agree that

appellant was not in his dwelling place or place of business. However, whether the

stairs and elevated landing was land possessed by appellant is less clear. In the

District of Columbia, the possession of land requires exclusive control and

possession by the individual. White v. United States, 283 A.2d 21, 24 (D.C. 1971)

(“[T]he individual must have exclusive control and possession of the premises.”).

Whether the appellant does or does not have exclusive control is a matter of fact to

be determined by the jury. Walker & Dunlop, Inc. v. Gladden, 47 A.2d 510, 513

(D.C. 1946); Greet v. Otis Elevator Co., 187 A.2d 896, 898 (D.C. 1963).

While the trial court suggests the stairs and landing are part of a shared yard

and not exclusively controlled, we are of the belief the jury could have found a

distinction between the stairs and the landing in this case. “When dealing with real

property, [a possessory] interest entails more than the right to be physically present

on the property; it encompasses also a right to exclude, both in its general sense and

as it has been construed within the meaning of [the CPWL statute].” Fortune v.

United States, 570 A.2d 809, 811 (D.C. 1990). The stairs and elevated landing in

this case lead exclusively to appellant’s apartment. Unlike in our other cases, the

level of common or public use of the stairs and landing is less apparent. See id.

23

(appellant did not have exclusive control or possession of the shared backyard of the

home in which he rented a room with his aunt); Hines v. United States, 326 A.2d

247, 249 (D.C. 1974) (appellant did not have exclusive control and possession of

common area of apartment building); White, 283 A.2d at 24 (appellant did not have

exclusive control and possession of a hallway on the floor above his apartment in an

apartment building). However, in light of our decision to remand the case we need

not resolve whether appellant had exclusive possession and control over the stairs

and landing. 7

III.

We hold that the trial court’s ruling on the motion to suppress is insufficient

and further findings are to be made concerning whether there was a show of

authority, and if so, whether appellant submitted to the authority. In addition, we

sua sponte, seek clarification as to whether there was reasonable articulable

suspicion to conduct an investigatory stop prior to the frisk. Therefore, the trial

7

The government also argues that there is evidence that appellant walked from

his car to the stairway, from which the jury could have found that appellant possessed

the pistol during that time. However, in light of the remand on the motion to

suppress, the resolution of which is uncertain, we decline to further address this

issue, which may or may not arise.

24

court’s denial of appellant’s motion to suppress is vacated and the case is remanded

for further findings.

So ordered.