Taylor & Najiy v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 19-CF-1209 & 20-CF-254

ROSE L. TAYLOR and ANWAR NAJIY, APPELLANTS,

v.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CF2-11263-19 & CF2-11262-19)

(Hon. Rainey E. Brandt, Trial Judge)

(Submitted September 22, 2021 Decided January 27, 2022)

Donald L. Dworsky was on the brief for appellant Najiy.

Michael L. Spekter was on the brief for appellant Taylor.

Michael R. Sherwin, Acting United States Attorney, with whom Elizabeth

Trosman, Elizabeth H. Danello, Joseph Drummey, Sarah Martin, and Patricia

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

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

∗

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

submission. Although her term expired on September 4, 2021, she will continue to

serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-

1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to

(continued…)

2

and FERREN, Senior Judge.

FERREN, Senior Judge: After a jury trial, Anwar Najiy appeals his

convictions for unlawful possession of a firearm 1 and carrying a pistol without a

license (CPWL). 2 He argues that: (1) the evidence was insufficient to show that

he had the requisite mental state for each charged offense; (2) the court erred by

failing to give a limiting instruction about admission of his prior uncharged

criminal conduct in evidence; and (3) the government’s rebuttal argument

constituted prosecutorial misconduct. After the same trial, Rose Taylor appeals her

convictions for attempted CPWL 3 and attempted tampering with evidence. 4 She

claims the evidence was: (1) insufficient to show that she actually attempted to

possess the pistol, and also (2) insufficient to prove that she had the requisite

knowledge for tampering. In addition, she (3) joins appellant Najiy’s prosecutorial

misconduct claim. We affirm.

(…continued)

perform judicial duties as a Senior Judge and will begin her service as a Senior

Judge on a date to be determined after her successor is appointed and qualifies.

1

D.C. Code § 22-4503(a)(1) (2021 Supp.).

2

D.C. Code § 22-4504(a) (2021 Supp.).

3

D.C. Code § 22-4504(a) (2021 Supp.); D.C. Code § 22-1803 (2021 Supp.).

4

D.C. Code § 22-723(a) (2021 Supp.); D.C. Code § 22-1803 (2021 Supp.).

3

I. Background

A. August 29, 2019 Incident

According to the government’s evidence at trial, on August 29, 2019,

Metropolitan Police Department (MPD) Officer Enea Ndrenika responded to a

radio call about an unconscious person in Northeast D.C. He activated his body-

worn camera (BWC) as he arrived on the scene to find an unconscious man lying

on the ground near an open passenger-side car door with a woman attempting to do

chest compressions on him. Later, at trial, Officer Ndrenika identified appellants

Najiy and Taylor from the BWC footage and, from the audio, he identified Taylor

saying at the scene that Najiy needed Narcan, a medication that reverses the effects

of opioids such as heroin. After verifying that Najiy had taken heroin, Officer

Ndrenika administered two doses of Narcan.

Najiy was still unconscious, but breathing, and Officer Ndrenika placed him

on his side in the “recovery position” so that Najiy would not choke if he vomited.

The BWC revealed that when Officer Ndrenika turned Najiy, appellant Taylor ‒

who was standing next to the officer by Najiy’s feet – got on top of Najiy. As

Taylor was getting up, her left hand initially was on Najiy’s back, and her other

4

hand was between her body and Najiy’s stomach. She next appeared to be

grabbing something with both hands. At this point, Officer Ndrenika – who had

been focusing on the “[s]afety and . . . well-being of Mr. Najiy” – became aware of

a “Tiffany blue” colored pistol when he saw it fall out of Taylor’s hands onto the

ground. Officer Ndrenika then placed Taylor under arrest. Najiy regained

consciousness about five to ten minutes after being administered Narcan and was

taken away in an ambulance.

When Officer Ndrenika reviewed the BWC footage, he saw that the butt of

the pistol was visibly sticking out of Najiy’s waistband as he first approached

appellants. At trial, Officer Ndrenika testified that he had never encountered a gun

of this color before. The gun belonged to Taylor and was registered in Virginia,

where she is from.

B. Appellant Taylor’s Testimony

At the heart of Najiy’s firearm offenses, in addition to Officer Ndrenika’s

evidence, was Taylor’s testimony about the gun that fell out of her hands (later

identified as the weapon Officer Ndrenika had seen in Najiy’s waistband). Taylor

testified on direct examination in the defense case that she was not testifying

5

because someone had forced her to do so or because she was afraid of anyone,

adding that Najiy was her son’s father. 5 Taylor then testified that she had met up

with Najiy that August day and “closed him in the car” because, although still

conscious, he was “wobbling.” He then had started to “zone out” in the car and

was not responding, she said. Taylor further testified that she had put the gun into

Najiy’s waistband because she was upset with him and wanted to take a picture of

him with it. He was not alert at the time, and when she was trying to take the

picture “his body slumped between the middle of . . . the seat and the [console].”

She went around to the side of the car and called 911.

Taylor also testified on direct that, on the phone with Najiy while he was

incarcerated pending trial, she had told him that she had given the gun to him and

that she was sorry. Taylor added that she was trying to explain and apologize to

5

On cross-examination, the government elicited additional information

about Taylor’s and Najiy’s relationship. Specifically, they had been in a

relationship for about five years, though it had not been continuous. They had

been married but were divorced at the time of the incident. Continuing on cross-

examination, Taylor acknowledged that Najiy had helped provide for their son, and

that it was important to her that Najiy was involved in his life. She was upset with

Najiy at the time of the incident here because she thought he was cheating.

However, she hoped their relationship would continue after the case was over, and

she testified that when they talked on the phone while Najiy was incarcerated

pending trial, they often said that they loved and missed each other. Taylor hoped

that after Najiy was released, they would get married and, although he had told her

they would, he had also said this in the past.

6

him because he was probably confused. On cross-examination, Taylor further

testified that, about a month and a half before the trial, she had told Najiy that she

was not a snitch. Taylor revealed that during this same call, she again told Najiy

that she had put the gun on him and Najiy then responded by telling Taylor that she

was going to have to testify in this case.

On further cross-examination, the government elicited that Taylor had given

several different accounts before trial of what happened with the gun on August

29. After she was arrested, Taylor told a police officer on the scene that she was

trying to grab a phone, that she did not know the gun had been on Najiy, and that

she would not have flagged down the police if she had known he had the gun.

When she offered this explanation, Taylor added that Najiy was still unconscious.

Later, however, Taylor told a detective a different story: that she had found the

gun in her glove compartment when she was trying to get a tissue and put it on the

seat, where Najiy sat on it. She further testified that she had told the detective that

when Najiy overdosed, she had to pull him out of the car, and that when she did so

the gun fell out of the car. Soon thereafter, however, she acknowledged that she

had told the same detective what essentially had been her first story at trial: that

she had planted the gun on Najiy because she was upset at him for cheating,

7

although she was not trying to get him arrested. She added that she was not in her

“right mind” when she spoke with this detective.

On redirect-examination, Taylor explained that when she had told the police

she did not know that Najiy had the gun on him, she meant that she “didn’t

remember to, like, put it back in the glove compartment.” Because “so much stuff

[was] happening,” Taylor explained, she did not realize that he had the gun again

until she saw it when “[h]e was . . . unconscious.”

C. Prior Crimes Evidence

Before trial, the government provided a “Notice of Intent to Introduce

Evidence of Other Crimes”: that Taylor had reported to probation officers and the

police that Najiy had stolen her pistol on three occasions in July 2019. The

government also sought to admit an Instagram photograph of Najiy with a Tiffany

blue pistol sticking out of his pocket. 6 The trial court ruled that the prior crimes

6

The parties stipulated that on the date of the incident, Najiy knew that he

had been convicted of a crime punishable by imprisonment for a term exceeding

one year. They also stipulated that the MPD had no record that either Najiy or

Taylor had a valid license to carry a pistol within the District of Columbia. Upon

admission of Najiy’s firearm conviction, the trial court immediately gave the jury a

cautionary instruction that Najiy’s prior felony conviction could only be used to

(continued…)

8

evidence was admissible under Drew v. United States 7 to show “knowledge” of

Najiy’s possession of the pistol. The court added that it would consider

admissibility of this evidence under (William) Johnson v. United States 8 but asked

both parties, in the meantime, to propose limiting instructions under Drew. Before

the next appearance, the government advised that it would introduce evidence of

Najiy’s prior theft of the firearm only in its rebuttal case if Taylor testified.

During the defense case, counsel for Najiy preemptively asked Taylor about

prior incidents the government had raised in its “Drew [and Johnson] notice.” She

testified on direct that she had called Najiy’s parole officer on a number of

occasions to report that he had stolen her gun, and that the officer had told her to

call the police. She qualified that testimony, however, by adding that Najiy had

not actually stolen her gun, but that she had reported him because she was upset.

(…continued)

satisfy the element of the charge for unlawful possession of a firearm and for no

other purpose.

7

331 F.2d 85, 89-90 (D.C. Cir. 1964) (evidence admissible under Drew

when offered for a “substantial, legitimate purpose,” including, but not limited to,

one of the following issues: (1) motive; (2) intent; (3) absence of mistake or

accident; (4) common scheme or plan; or (5) identity”).

8

683 A.2d 1087, 1098 (D.C. 1996) (evidence admissible under Johnson

when it “(1) is direct and substantial proof of the charged crime, (2) is closely

intertwined with the evidence of the charged crime, or (3) is necessary to place the

charged crime in an understandable context”).

9

Taylor also called the police at one point to report that Najiy had held a knife to her

neck during an altercation.

On cross-examination, Taylor acknowledged that, in the past, Najiy had

yelled at her, threatened her, and struck her, and that she had obtained a restraining

order against him “to get his attention.” She added, however, that Najiy had never

put a gun to her face or neck and that she was not afraid of him. Taylor’s further

cross-examination revealed that either Taylor or a neighbor had called the police

when she and Najiy were arguing on July 6, 2019. Taylor told the police that

during the argument, Najiy had choked her, and that he had taken her gun, which

she described as a 9-millimeter Tiffany blue gun. Earlier, she had contacted a

parole officer on March 7 and 14, 2019, and again on July 8, to report that Najiy

had taken her gun. Also, on July 25, 2019, she reported to a parole officer that

Najiy had given her gun back but then had stolen it again. She told police officers

on July 29, 2019, that Najiy had stolen her gun from Virginia, where she kept it,

and she showed them photos from Instagram depicting Najiy with a teal blue

object protruding from his pocket that she said was her gun. On redirect-

examination, however, Taylor testified that her statement to police that Najiy had

stolen the gun from her in Virginia was not true, and that he had not been in

Virginia.

10

In closing argument, the prosecutor brought up the prior incidents when

Najiy reportedly had Taylor’s gun as evidence that he knowingly and voluntarily

had the gun when he overdosed:

He had been suffering from a drug overdose, so the issue

you have to decide is . . . how that gun came to be on

him. And you’ve heard testimony from Miss Taylor that

she reported the gun stolen a month earlier by Mr. Najiy,

that he had stolen it from her, and she also presented a

picture of Mr. Najiy with a Tiffany blue butt of a gun

sticking out of a pocket. And so it’s up for you to decide

if you think that Mr. Najiy possessed that firearm

voluntarily before he overdosed and that that’s how it got

on his body that day.

Later in rebuttal, the prosecutor argued that Taylor’s bias and other motives

were behind her inconsistent statements:

She’s invested herself in a five-year relationship with Mr.

Najiy. And he’s promised her that they’re going to get

married after this case is over. But it’s not just that she’s

trapped, she’s also terrified. This man has whispered in

her ear that he’s going to kill her when she got police

involved in an argument. This man has put a knife to her

throat. And ladies and gentlemen, this man took the gun,

put it to her head and said he was going to kill her. So,

ladies and gentlemen, when she took the stand and while

she’s sitting there right now, he is feet away from her.

And she admitted to you on the stand that he’s watching

her, listening and hanging on every word that comes out

of her mouth. So perhaps she doesn’t have the luxury of

telling you what really happened.

11

The jury found Najiy guilty of unlawful possession of a firearm and of

CPWL. It found Taylor not guilty of the charged crimes of CPWL and tampering

with physical evidence, but found her guilty of attempting to commit both

offenses.

II. Issues

On appeal, Najiy contends the evidence was insufficient for the jury to have

found that he had knowingly: (1) possessed a firearm, and (2) carried it on his

person. Najiy also argues that the trial court abused its discretion by failing to

provide the jury with a limiting instruction regarding his uncharged, allegedly

criminal conduct related to the gun on previous occasions.

In her appeal, Taylor contends the evidence was insufficient to show that she

actually attempted to carry the gun. She also maintains that the officer’s response

to the scene did not constitute an “official proceeding,” and thus that the evidence

was insufficient to establish her “knowledge” necessary to establish “tampering.”

Finally, both appellants argue that the prosecutor’s rebuttal argument

amounted to prosecutorial misconduct that prejudiced their substantial rights.

12

III. Sufficiency of the Evidence

When reviewing the sufficiency of the evidence, “we view the evidence in

the light most favorable to the government, giving full play to the right of the fact-

finder to determine credibility, weigh the evidence, and draw justifiable inferences

of fact, and making no distinction between direct and circumstantial evidence.” 9

Moreover, the evidence “is sufficient if any rational fact-finder could have found

the elements of the crime beyond a reasonable doubt.” 10

A. Knowing Possession of a Firearm (Najiy)

Appellant Najiy contends that, because he was unconscious when the officer

arrived, the evidence was insufficient to prove that he had the requisite mens rea

for his convictions, specifically that he not only had “possessed” 11 but also

9

Brooks v. United States, 130 A.3d 952, 955 (D.C. 2016) (internal

quotations and brackets omitted).

10

Hernandez v. United States, 129 A.3d 914, 918 (D.C. 2016).

11

Although the trial court instructed the jury on both actual and constructive

possession, Najiy does not specifically dispute, nor could he, that the evidence was

sufficient to show that he had physical possession of the gun “by holding it in

(continued…)

13

“carried” the firearm, both voluntarily and on purpose – as the court had instructed

the jury it must find for conviction of each charge. 12 We have recognized that

“possession requires that the possessor knowingly be in control of the weapon.” 13

(…continued)

his . . . hand or by carrying it in or on his . . . body or person” as the court

instructed was required for actual possession. Officer Ndrenika’s body camera

footage showed the gun sticking out of Najiy’s waistband before Taylor jumped on

top of him. Thus, we need not consider whether the evidence was sufficient to

establish Najiy had intent to exercise dominion and control over the firearm, which

is only required for constructive possession. See Robinson v. United States, 100

A.3d 95, 105 n.16 (D.C. 2014) (“Our cases have defined “actual possession” as the

ability of a person to knowingly exercise direct physical custody or control over the

property in question . . . . Constructive possession likewise entails knowledge of

the location of the item, as well as the ability and intention to exercise dominion

and control over it.” (alteration in original) (internal quotation marks and citations

omitted)); see also White v. United States, 714 A.2d 115, 118 & n.5 (D.C. 1998)

(where case went to the jury on both actual and constructive theories of “carrying,”

“conviction [from general verdict] may be affirmed if the evidence was sufficient

to support either theory”).

12

See Criminal Jury Instructions for the District of Columbia, No. 6.500

(rev. ed. 2021) (“The elements of the offense of carrying a pistol without a

license . . . [include that the defendant carried a pistol] voluntarily and on purpose,

and not by mistake or accident.”); and id., No. 6.511 (“The elements of the offense

of unlawful possession of a firearm by a person previously convicted of a crime

punishable by imprisonment for a term exceeding one year . . . [include that the

defendant possessed a firearm] voluntarily and on purpose and not by mistake or

accident”). In an attempt to “simplify the elements relating to states of mind and

make them more consistent,” the standard jury instructions use this language to

describe the required state of mind for general intent crimes. Id., No. 3.100.

13

Robinson, 100 A.3d at 105 (emphasis in original).

14

Viewing the evidence in the light most favorable to the government, we

must consider whether the surrounding circumstances were sufficient to support an

inference that Najiy possessed and carried the firearm voluntarily and knowingly

before he lost consciousness. 14 Although Taylor testified that she had planted the

gun on Najiy as he was losing consciousness, she was impeached with two distinct

prior inconsistent statements she made to police officers investigating the incident:

first, that she did not know Najiy had the gun on him, and second, that she put the

gun on Najiy’s seat and it fell out when she pulled him out of the car. Based on

these inconsistencies, and other impeachment evidence tending to show her bias in

his favor, a reasonable jury could have discredited her testimony that she planted

the gun on Najiy. Furthermore, Taylor testified that one month before the August

2019 incident, on July 29, 2019, she reported to police that Najiy had stolen her

gun, and the government introduced a photograph she showed police at that time

depicting Najiy with what appeared to be the same gun based on its distinctive

color. Although Taylor testified on redirect that she had lied to the police about

Najiy’s stealing the gun from her, the jury earlier heard testimony from Taylor to

the contrary and was able to make credibility determinations based on reasonable

inferences about the firearm, including that Najiy still had the gun on August 29

14

See Bailey v. United States, 831 A.2d 973, 986 (D.C. 2003) (“Intent is

often inferred from surrounding circumstances.”).

15

and put it in his waistband before he overdosed. Considering all of these

circumstances, we conclude that the evidence was sufficient to support a finding

that Najiy had placed the gun in his waistband himself before losing consciousness

and therefore had the gun in his waistband voluntarily and knowingly for both

offenses, “possession” and “carrying.”

B. Attempt to Carry the Pistol (Taylor)

Appellant Taylor argues that the evidence was insufficient to show she had

carried or attempted to carry a pistol without a license because “the evidence

shows that the gun was never in [her] control even for an instant, even if she may

have, according to the BWC, inadvertently touched it.” A CPWL offense requires

proof of “(1) carrying a pistol, either openly or concealed on one’s person, outside

one’s own dwelling or place of business, or other land possessed by the defendant

and (2) without a license to do so.” 15 And “carrying” can be established through

“actual possession of the pistol . . . on [her] person” or “constructive possession . . .

about [her] person.” 16

15

McCullough v. United States, 827 A.2d 48, 58 (D.C. 2003).

16

White, 714 A.2d at 118-19 (internal quotation marks omitted). Only

under this constructive possession theory must the government separately “show

(continued…)

16

“In order to prove an attempt to commit any offense, ‘the government must

prove that the accused: (1) intended to commit that particular crime; (2) did some

act towards its commission; and (3) . . . failed to consummate its commission.’” 17

“The act must go beyond mere preparation and must carry the criminal venture

forward to within dangerous proximity of the criminal end sought to be attained.” 18

Viewing the evidence in the light most favorable to the government, a

reasonable jury could have found Taylor “did some act” toward the commission of

CPWL. In still photos in evidence from the BWC footage taken before Najiy was

moved onto his side, the gun can be seen barely protruding from his waistband. It

was secure enough not to fall to the ground when Officer Ndrenika first turned him

on his side. In the BWC footage, as the officer is telling Taylor to get off of Najiy,

her hands appear to be reaching down toward his waist and then dropping the gun

from above his body. The footage accordingly supports a reasonable finding that

(…continued)

that the pistol was in such proximity to the person as to be convenient of access

and within reach” for purposes of a CPWL conviction. Id. at 119 (internal

quotations and citation omitted).

17

Corbin v. United States, 120 A.3d 588, 602 n.20 (D.C. 2015) (quoting

Frye v. United States, 926 A.2d 1085, 1095 (D.C. 2005)).

18

Id. (quoting Jones v. United States, 386 A.2d 308, 312 (D.C. 1978)).

17

Taylor made an overt act toward gaining actual possession of the firearm, even if

she did not succeed in obtaining possession. 19

C. Knowledge of Official Proceeding (Taylor)

Taylor also challenges the sufficiency of the evidence that she had the

requisite mens rea under the tampering statute, which provides:

A person commits the offense of tampering with physical

evidence if, knowing or having reason to believe an

official proceeding has begun or knowing that an official

proceeding is likely to be instituted, that person alters,

destroys, mutilates, conceals, or removes . . . [an] object,

with intent to impair its integrity or its availability for use

in the official proceeding. 20

Specifically, Taylor – without directly addressing mental state – contends that the

“non-adversarial, non-investigatory” police stop did not constitute an “official

proceeding.”

19

To the extent that Taylor’s argument about “inadvertently” touching the

gun can be construed as challenging the intent element of attempted CPWL, the

evidence was also sufficient to find that she was intentionally reaching for the gun.

20

D.C. Code § 22-723(a) (2021 Supp.) (emphasis added).

18

To the contrary, an “official proceeding” is defined under the tampering

statute as “any trial, hearing, investigation, or other proceeding in a court of the

District of Columbia or conducted by the Council of the District of Columbia or an

agency or department of the District of Columbia government, or a grand jury

proceeding.” 21 Accordingly, in Mason v. United States, 22 we held (as in this case)

that “an MPD investigation is an official proceeding within the meaning of the

tampering statute.” 23 We did not limit this interpretation to particular facts or

circumstances; it was unqualified. 24

Nonetheless, to define “official proceeding” under the tampering statute,

Taylor draws upon our earlier ruling in Wynn v. United States: 25 that an “official

proceeding” under the obstruction of justice statute does not encompass (as in this

21

D.C. Code § 22-721(4) (2012 Repl.) (emphases added).

22

170 A.3d 182 (D.C. 2017).

23

Id. at 191.

24

See id. (“The language of the tampering statute . . . permit[s] conviction if

the defendant ‘kn[ew] or ha[d] reason to believe an official proceeding ha[d] begun

or kn[ew] that an official proceeding [was] likely to be instituted.’ D.C. Code

§ 22-723(a). The statute does not require that the official proceeding already was,

or eventually would be, directed in particular at the defendant or his

accomplices.”).

25

48 A.3d 181 (D.C. 2012).

19

case) an “endeavor[] to hide evidence from, or elude capture by, police officers

responding to the scene of a crime . . . .” 26 In Mason, however, addressing Wynn,

we expressly distinguished an “official proceeding” under the obstruction statute

from an “official proceeding” under the tampering statute. 27 We observed that the

applicable phrase in the obstruction statute construed in Wynn – “obstruct[ing] or

imped[ing] the due administration of justice in any official proceeding” – made

clear that an obstruction proceeding was confined to covering “the proper

functioning and integrity of a court or hearing.” 28 Recognizing that limitation, we

explained in Mason (quoting Wynn) that “the tampering statute provided ‘a

separate basis for criminalizing efforts to hide evidence from the police,’” and held

that “an MPD investigation is an official proceeding within the meaning of the

tampering statute.” 29

In this case, the evidence is sufficient to support a finding that, at the time

Taylor sought to tamper with (conceal) the gun, she knew Najiy would likely be

26

Mason, 170 A.3d at 191(quoting Wynn, 48 A.3d at 190).

27

Id.

28

Id. (emphasis and alterations in original) (quoting Wynn, 48 A.3d at 191).

29

Id. (quoting Wynn, 48 A.3d at 190 & n.13).

20

arrested or otherwise investigated. 30 The gun-concealing act in question occurred

during an interaction with a police officer who was physically present, and the gun

was in his view. 31 A reasonable jury could have found that Taylor attempted to

move the gun precisely because she knew that Officer Ndrenika was likely to see it

and initiate an investigation. Given evidence sufficient for a finding that Taylor

actually did attempt to gain possession of the gun, we perceive no reasonable basis

for Taylor’s attempt to do so other than to prevent Officer Ndrenika from detecting

the firearm. Furthermore, Taylor’s own testimony revealed her awareness of a

likely police investigation, constituting an official proceeding. Aware that Taylor

had told a detective she would not have “flagged down” a police officer if she had

known that Najiy had a gun, a reasonable jury could have interpreted this to mean

she knew that an officer’s seeing the gun in Najiy’s waistband would likely trigger

an “official” investigative proceeding.

30

Taylor acknowledges that the “official proceeding” need not be targeted

against the person charged with tampering. See id. at 984.

31

The fact that Officer Ndrenika was responding to a reported overdose and

had performed life-saving measures does not meaningfully distinguish this

situation. Because the tampering statute covers conduct where a person knows that

an investigation is likely to be instituted, not just where an investigation has

already begun, see D.C. Code §§ 22-723(a) & 22-721(4), it was not necessary that

the officer was already investigating a crime when he arrived at the scene.

Moreover, the fact that Officer Ndrenika performed emergency assistance does not

render the stop wholly non-investigatory, where he might also have reason to

investigate the drug activity or other cause of Najiy’s unconsciousness.

21

In the alternative, Taylor points to language in Timberlake v. United States 32

in which we said the knowledge element of the tampering statute presupposes that

the accused, in concealing evidence, subjectively “knew a proceeding was likely to

be instituted” (if not yet begun); that the purpose of concealing the evidence was to

make it “unavailable to the proceeding”; and that – of significance to Taylor – in

cases involving “malum in se” crimes, it “may be reasonable to infer the likelihood

of an investigation from the nature of the crime” itself. 33 Taylor, however, does

not argue, nor could she, that the required “likelihood” inference is limited to

alleged “malum in se” crimes, such as homicide or robbery. She says only that,

according to Timberlake, “a non malum in se crime such as possession [of a

firearm], does not automatically predict or foretell a police investigation,” an

accurate observation that is inconclusive here. Furthermore, Timberlake itself

suggested that a suspect’s “confrontation with police while in possession of

32

758 A.2d 978, 980 (D.C. 2000) (affirming conviction based on unlawful

tampering for concealment of drugs in his mouth, as well as “additional and

sufficient evidence from which the jury could find that [he] knew he was the

subject of a police investigation while he held the drugs in his mouth”).

33

Id. at 983 n.6. In this footnote we added: “[b]ecause we affirm on an

alternative theory, we need not reach the difficult questions of what constitutes an

‘official proceeding’ and what is sufficient subjective knowledge that an official

proceeding is ‘likely to be instituted’ absent circumstances that objectively

manifest the proceeding, such as confrontation with police while in possession of

contraband.” Id. Accordingly, we acknowledged that “[w]e have never addressed

the degree of formality or specificity required for there to be an ‘official

proceeding.’” Id.

22

contraband” on occasion can objectively indicate a potential proceeding sufficient

to reflect a suspect’s subjective knowledge that an official proceeding is “likely to

be instituted.” 34

IV. Failure to Give Limiting Instruction

About Prior Uncharged Criminal Conduct

Appellant Najiy contends that the trial court abused its discretion by failing

to cure the prejudice from the evidence of uncharged criminal conduct attributable

to his prior possession of the firearm. Where, as here, Najiy did not request a

limiting instruction at trial, we review for plain error. 35 To establish plain error,

“an appellant must show: (1) error, (2) that is plain, and (3) that has affected his

substantial rights,” meaning there is “a reasonable probability that, but for the error

34

See id.

35

See Busey v. United States, 747 A.2d 1153, 1166-67 (D.C. 2000). Najiy

points to the trial court’s comments, at the preliminary hearing when it ruled that

the evidence could come in under Drew, that “a limiting instruction is going to be

necessary . . . .” Najiy argues that the trial court had thus “recognize[ed] its duty to

apply its discretion to avoid undue prejudice” but then failed to act on that

recognition at trial, amounting to an abuse of discretion. This ruling, however,

occurred before the government advised that it had decided not to introduce the

evidence in its case in chief, and Najiy nevertheless chose to preemptively

introduce evidence in the defense case, without requesting any limiting

instructions.

23

claimed, the result of the proceeding would have been different.” 36 “Even if all

three of these conditions are met, this court will not reverse unless (4) the error

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

proceedings.” 37

In general, “evidence of a crime for which the accused is not on trial is

‘inadmissible to prove disposition to commit crime, from which the jury may infer

that the defendant committed the crime charged.’” 38 Najiy concedes, however, that

“[a]n accused person’s prior possession of the physical means of committing the

crime is some evidence of the probability of his guilt, and is therefore

admissible.” 39 Even more strongly, we opined in (William) Johnson that such

evidence can be “direct and substantial proof of the charged crime,” and thus is not

Fortune v. United States, 59 A.3d 949, 954 (D.C. 2013) (internal

36

quotations and brackets omitted).

37

Id. (internal quotations omitted).

38

Busey, 747 A.2d at 1164 (emphasis in original) (quoting Drew, 331 F.2d

at 89).

Coleman v. United States, 379 A.2d 710, 712 (D.C. 1977) (holding trial

39

court did not abuse its discretion in admitting photographic evidence of defendant

with a .45 caliber pistol, the type of gun used in the alleged murders, taken five

months before the murders).

24

limited to the criteria for admission specified in Drew. 40 When evidence is

admissible under (William) Johnson, “we have held that the trial court is not

required to give a limiting instruction sua sponte.” 41

As discussed previously, Najiy’s state of unconsciousness when Officer

Ndrenika arrived at the scene, combined with the fact that the firearm belonged to

Taylor and her testimony that she had planted it on him, poses a complicated

factual issue of how the firearm got in his waistband. Accordingly, the evidence of

Najiy’s prior possession of the very gun at issue on multiple occasions leading up

to the August 2019 incident, including most recently on July 29, 2019, made it

more likely that Najiy possessed the firearm on August 29, 2019, before he lost

consciousness. Indeed, the distinctive color of the gun further enhanced its

probative value in supporting Najiy’s subsequent possession. As previously

discussed, the jury was free to discredit Taylor’s testimony that she had lied about

40

(William) Johnson, 683 A.2d at 1097-98; see supra note 7.

41

Busey v. United States, 747 A.2d at 1167 (collecting cases and holding

that trial court did not commit plain error, or any error, where evidence of prior

assault had been admitted as proof that defendant possessed means to commit the

murder and “[o]ur review of the prosecutor’s examinations . . . and . . . closing

arguments satisfie[d] us that the jury was not asked improperly to infer criminal

propensity from the evidence”).

25

Najiy stealing the gun, and there was no testimony or other evidence of Najiy

returning the gun to Taylor after she told police that he had taken it on July 29.

Najiy contends, nonetheless, that the alleged error was particularly harmful

because “the uncharged conduct evidence went directly to the central and sole

issue in the case”: whether he knowingly possessed the firearm. Indeed, the

probative value of the evidence that Najiy had previously possessed the blue-tinted

gun is different from the probative value of the evidence in Busey, 42 Coleman, 43

and related cases, where evidence of prior possession of a weapon was admitted

under (William) Johnson to show the defendants had possessed the weapons used

in the charged crimes. Here, the evidence was relevant to show Najiy’s mental

state: that he possessed the gun “knowingly,” which turns on when and how the

gun came to be in his waistband on August 29. Accordingly, the relevance that

Najiy points out is precisely what the trial court had approved to show

“knowledge,” as permitted by Drew, 44 before the government advised that it would

only introduce the evidence in rebuttal. Therefore, any limiting instruction would

42

See id. at 1164.

43

See supra note 39.

44

See supra note 7; see also Jackson v. United States, 856 A.2d 1111, 1116

(D.C. 2004) (“Knowledge is widely accepted as a non-propensity purpose for

which other crimes evidence may be admitted.”).

26

have told the jury to consider the evidence in the same way the government

suggested in its closing argument: to “decide if . . . Mr. Najiy possessed the

firearm voluntarily [and thus knowingly] before he overdosed.” Any error,

therefore, did not affect Najiy’s substantial rights.45

V. Government’s Rebuttal Argument

Finally, Najiy contends that the government’s rebuttal argument constituted

prosecutorial misconduct by suggesting that Taylor testified in support of Najiy

because she was afraid of him and yet hoped he would marry her, as promised,

after the case was over. Taylor joins this argument, asserting that the

government’s remarks were also prejudicial to her in that they impugned her

honesty and motives in testifying. Because neither appellant objected to the

government’s arguments at trial, we again review for plain error and “will reverse

[their] conviction[s] only if the misconduct so clearly prejudiced [their] substantial

rights as to jeopardize the fairness and integrity of [the] trial.” 46

45

See text accompanying supra note 36.

Portillo v. United States, 62 A.3d 1243, 1257 (D.C. 2013); see also text

46

accompanying supra notes 36 and 37.

27

In a rebuttal argument, “the prosecutor ‘may not go beyond reasonable

inference and engage in impermissible speculation.’” 47 We have recognized that

“evidence concerning a witness’ fear tends to be prejudicial because it suggests the

witness fears reprisal at the hands of the defendant . . . if [she] testifies.” 48

Therefore, “argument by prosecutors about witness fear ‒ especially fear of the

defendants on trial ‒ must be the limited exception rather than the rule” and thus is

not permissible, “absent a factual basis for such a comment.” 49 That said,

however, such evidence “may be admissible where the witness has given

conflicting statements.” 50

In (Antonio) Johnson, 51 the witness testified at trial that her earlier video-

taped statement and grand jury testimony – that the defendant had confessed his

involvement in the charged murder to her ‒ had been completely fabricated. To

47

Id. (quoting Clayborne v. United States, 751 A.2d 956, 969 (D.C. 2000)).

48

Simpson v. United States, 877 A.2d 1045, 1048 (D.C. 2005) (quoting

Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1999)).

49

(Antonio) Johnson v. United States, 17 A.3d 621, 627 (D.C. 2011)

(brackets removed) (first quoting Murray v. United States, 855 A.2d 1126, 1133

(D.C. 2004); and then quoting Simpson, 877 A.2d. at 1048).

50

Id. (quoting Mercer, 724 A.2d at 1184).

51

Id. at 624.

28

the contrary, the government presented the witness’s statements to the police

indicating that the defendant had beaten her and threatened to kill her, which

“provide[d] a sufficient evidentiary basis from which the prosecutor could suggest

that [the witness’s] grand jury testimony was the more credible testimony, and that

the inconsistency in her testimony resulted from [the defendant’s] presence in the

courtroom.” 52

Here, as in (Antonio) Johnson, Taylor gave inconsistent statements about

what happened on August 29 and how the gun came to be on Najiy’s person. Also

as in (Antonio) Johnson, where evidence suggested the defendant had beaten and

threatened the witness, here the evidence at trial showed that in the past Najiy had

held a knife to Taylor’s neck during a fight, choked her, and threatened her. Thus,

the government permissibly presented evidence of Najiy’s alleged threats and

assaults against Taylor to reconcile her inconsistent statements and argue the

reasonable inference that Taylor’s statements tended to be more exculpatory when

Najiy was present in the courtroom. The government had a firm factual foundation

to make such an argument based on Taylor’s prior statements to police and parole

officers, and in obtaining a restraining order against Najiy.

52

Id. at 624, 627.

29

Nor does the rebuttal argument about Taylor’s relationship with Najiy as a

source of bias constitute prosecutorial misconduct. In Mercer, we recognized that

the witness and defendant’s “intimate relationship that produced a child was

relevant, as it tended to show bias.” 53 Similarly here, the prosecutor’s comments

about Taylor’s bias favoring Najiy as the father and supporter of her child, as well

as her romantic interest and hope of getting back together, was founded on

evidence, not speculation, and thus was a permissible source for demonstrating her

bias.

VI. Conclusion

For the foregoing reasons, we affirm Taylor’s and Najiy’s convictions.

So ordered.

53

724 A.2d at 1189.