Johnson v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CF-1183

CARLOS JOHNSON, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2018-CF2-006369)

(Hon. Robert Salerno, Trial Judge)

(Argued June 3, 2021 Decided March 9, 2023)

Deborah A. Persico for appellant. Anne Keith Walton also entered an

appearance.

Ethan L. Carroll, Assistant United States Attorney, with whom Timothy J.

Shea, United States Attorney at the time, and Elizabeth Trosman, John P.

Mannarino, Bryan Han, and Julia Cosans, Assistant United States Attorneys, were

on the brief, for appellee.

Before EASTERLY and MCLEESE, Associate Judges, and GLICKMAN, * Senior

Judge.

*

Judge Glickman was an Associate Judge at the time of argument.

2

GLICKMAN, Senior Judge: Appellant Carlos Johnson was charged in a six-

count indictment with unlawful possession of a firearm by a person previously

convicted of a felony (FIP), 1 possession of an unregistered firearm (UF), 2 two counts

of possession of a large capacity ammunition feeding device (PLCAFD), 3 and two

counts of unlawful possession of ammunition (UA). 4 The indictment alleged that

appellant possessed each of these items “on or about April 25, 2018,” which was the

date the police discovered them in a search of appellant’s residence. After a three-

day trial, the jury convicted appellant of FIP, UF, one count of PLCAFD (relating to

the 30-round capacity magazine), and one count of UA (relating to the .40-caliber

ammunition), and acquitted him of the other two counts.

Seeking reversal, appellant claims that the trial court erred in admitting

evidence from the records of his Instagram account, presented as part of the

government’s proof that he committed the charged offenses, and that there was

1

D.C. Code § 22-4503(a)(1), (b)(1).

2

Id. § 7-2502.01(a).

3

Id. § 7-2506.01(b). Although the indictment did not specify this, one count

was for possession of an extended magazine with a 30-round capacity, and the other

count was for possession of a magazine with a 15-round capacity.

4

Id. § 7-2506.01(a)(3). One count was for possession of .40-caliber

ammunition, and the second count was for possession of 9-mm ammunition.

3

insufficient evidence of constructive possession to support his convictions. He

further claims that the court erred in responding to questions from the deliberating

jury and in giving a coercive anti-deadlock instruction. We are not persuaded by

appellant’s arguments, and we affirm his convictions.

I. Trial

At approximately 6:30 in the morning on April 25, 2018, Metropolitan Police

Department (MPD) officers executed a search warrant at appellant’s two-bedroom

apartment. In one of the bedrooms, the officers found appellant and his former

girlfriend, Shaquice Campbell. Ms. Campbell, whom the government called as a

witness at trial, was asleep in the bed. Appellant was lying on the floor next to the

bed. In a corner of the room by the closet, less than a foot away from appellant, lay

a black, .40-caliber M&P Smith & Wesson handgun with a red laser sight attached

to it. The gun had one .40-caliber round in the chamber and nineteen .40-caliber

rounds in an attached large capacity extended magazine.

Underneath the bed, which the officers had to lift up in order to search the

area, they found eight rounds of 9-mm ammunition inside a sock, and two handgun

magazines, one with a 12-round capacity that was loaded with nine .40-caliber

rounds of ammunition, and the other with a 15-round capacity loaded with fifteen

4

.40-caliber rounds. The officers found seven more rounds of .40-caliber ammunition

in a small box in the top drawer of the bedroom dresser.

Ms. Campbell testified at trial that she had gone to the apartment a few hours

earlier that morning to visit appellant. She said she did not know where the gun

came from and that she had not seen it before she fell asleep on appellant’s bed.

Appellant was not wearing pants when the police entered his bedroom. A pair

of jeans was lying on the floor beside the firearm. In the jeans the police found a

wallet containing appellant’s D.C. identification card. Elsewhere in the bedroom,

the officers found a folder containing appellant’s birth certificate and resume. The

information on the resume included appellant’s name, his home address, his phone

numbers, and his email address. The police also found other paperwork in

appellant’s name in the bedroom, and photographs of appellant and his mother.

In the second bedroom, the officers found appellant’s sister, Lashawn

Johnson, asleep in bed. Ms. Johnson was the only other person in the apartment.

The police did not find firearms, ammunition, or ammunition magazines in her

bedroom or anywhere else in the apartment but appellant’s bedroom.

5

The police found and seized five cellphones during their search of the

apartment, three of them from appellant’s bedroom and two from the living room.

Detective Thomas Roy noticed one of the bedroom phones was receiving messages

for an Instagram account. Detective Roy turned off the phone and later obtained and

sent to Instagram a search warrant for its records of that account.

Prior to trial, the government moved in limine to admit some of the account

records produced by Instagram in response to that warrant, including video clips,

photographs, and textual messages. The government proffered this material as direct

and substantial proof that appellant possessed the Smith & Wesson handgun

recovered from his bedroom. 5 Appellant opposed the motion, contending among

other things that the government could not attribute the Instagram account or its

contents to him, and that even if it could, the messages and videos the government

wished to introduce were not probative of the crimes with which he was charged.

After reviewing the evidence and hearing the parties’ arguments, the trial

judge ruled that, subject to being properly authenticated at trial, the proffered

5

No fingerprints were recovered from the firearm or magazine seized by the

police. DNA analysts were unable to derive DNA profiles from swabs of the firearm

and its magazine.

6

evidence (with immaterial exceptions) would be admissible as direct proof of the

charged crimes. The judge found that the video clips showed someone resembling

appellant holding a “firearm resembling the one at issue . . . close enough in time to

the date of the seizure” of the handgun in appellant’s apartment to be relevant direct

evidence that appellant possessed that handgun. The judge further found sufficient

circumstantial evidence to allow the jury to find that appellant admitted in a textual

message that he possessed the handgun’s large capacity magazine.

At trial, the government called Facebook’s custodian of records, Amy Servas.

Facebook had acquired Instagram, and Ms. Servas testified that she could

authenticate both Facebook and Instagram records. Ms. Servas explained that

Instagram is a social media network where account holders can share photos, videos,

and textual messages with other Instagram account holders. These include what Ms.

Servas referred to as “direct shares,” which are private communications between

account holders that are not publicly available. Ms. Servas explained that Instagram

maintains exact electronic copies of all this material in its business records for each

account, along with other data including the email address, cell phone number,

user/screen name, and profile picture provided by the account holder who opened

the account.

7

Ms. Servas identified business records produced in response to the search

warrant for the Instagram account. This account bore the user (or screen) name

“being_loyal_bring_u_pain” (hereinafter, “Being Loyal”). 6 These records showed

that the Being Loyal account was registered by the account holder to the same email

address and the same cell phone number that were shown as appellant’s in the

resume that the police found in his bedroom. As Ms. Servas testified, the account

records stated that Facebook had confirmed the cell phone number by sending to it

a text message with a verification code, which the recipient (presumably appellant)

then sent back to Facebook to confirm his opening of the Instagram account. Ms.

Servas identified the photograph that the account holder had submitted to Instagram

as their “profile” picture; it was a photograph of appellant. Instagram’s production

also included a number of other photographs of appellant that had been posted to

Being Loyal’s Instagram account. 7

The records produced by Instagram and identified by Ms. Servas included

four short video clips sent to Being Loyal on February 18, 2018, from another

6

The business records do not identify the account holder by name, but instead

by a pseudonym, “ripmalongLiveBLove.”

7

Appellant’s former girlfriend, Ms. Campbell, identified appellant in these

photographs at trial.

8

Instagram account with the user/screen name “got_no_respect” (hereinafter, “No

Respect”). In each clip, appellant is seen dancing to music along with other persons

and waving an object in his hand that looks like a black handgun with a red laser-

sight attachment and what was described as a “drum” ammunition magazine. In the

videos, the laser sight is activated and emits a bright red beam. The government

contended that the gun depicted in these videos was the same gun with the same red

laser sight that the police found and seized in appellant’s bedroom on April 25, 2018,

though with a different magazine inserted. 8 On cross-examination, Ms. Servas

agreed that the account records did not disclose who recorded the videos or when or

where they were recorded.

Ms. Servas also identified an exchange of private direct share messages on

April 17, 2018 (one week before the police executed the search warrant at appellant’s

apartment) between the Being Loyal and No Respect accounts. The exchange of

messages was set forth verbatim in Instagram’s account records. During that

exchange, No Respect sent Being Loyal a photo of an extended ammunition

magazine with the label “ProMag S&W M&P 40” and asked whether that was what

Being Loyal had. (The photo also was included in the account records.) In response,

8

The police did not find a drum magazine in appellant’s apartment. Appellant

was not charged with possession of such a magazine.

9

Being Loyal confirmed to No Respect that he possessed the magazine shown in that

photo, which the government claimed was like the one in the .40-caliber M&P Smith

& Wesson handgun found on the bedroom floor beside appellant. 9 On cross-

examination, Ms. Servas acknowledged that someone who obtained an Instagram

account holder’s account name and password would be able to log into the account

without using the holder’s cell phone, and post as if they were the account holder.

An employee in the MPD’s gun registration unit testified that appellant did

not have a registration certificate entitling him to possess a firearm in the District of

9

The direct share exchange between Being Loyal and No Respect on April

17, 2018, went as follows:

Time Author Text

4:03:47 No Respect “What ur shit look like”

4:04:03 Being Loyal “Look it up”

4:04:37 No Respect “U playing but what its it again”

4:07:17 [No Respect sends photograph of an extended magazine labelled

“ProMag S&W M&P40”]

4:07:28 No Respect “Thats urs”

4:07:31 Being Loyal “Yea”

10

Columbia, and the parties stipulated that he had previously been convicted of a crime

punishable by imprisonment for a term exceeding one year.

Called as a defense witness, appellant’s sister, Lashawn Johnson, testified that

the .40-caliber handgun found beside appellant in his bedroom was actually hers. 10

She said she bought it in December of 2017 and had kept it under her pillow in her

bedroom. However, she said, because she planned to leave the apartment early on

the morning of April 25, 2018, for an appointment, she took the gun to appellant’s

bedroom and left it there with him while he was still asleep. She said she did this

“[s]o he could feel safe” when he awoke and saw the weapon there with him. Ms.

Johnson explained that appellant had recently been the victim of a shooting, and that

the “only way” he felt “okay” in her absence was if he had guns around; “[t]he guns

around make him feel safe,” she said. Ms. Johnson further testified that she had 9-

mm and .40-cal. ammunition and ammunition magazines in the apartment on April

25. She said she kept her ammunition in a box in appellant’s bedroom dresser and

in a sock under his bed, and the magazines on the floor in his bedroom. However,

10

Ms. Johnson said this was one of two handguns she possessed at the time,

the other being a 9-mm Ruger. The police did not discover the Ruger during their

search of the apartment.

11

Ms. Johnson testified that she had never seen appellant holding a gun and that, to

her knowledge, he was unaware of the ammunition in his room.

On cross-examination, government counsel questioned Ms. Johnson about the

Being Loyal Instagram account. Ms. Johnson denied knowing that appellant had an

Instagram account, and she initially denied having an Instagram account of her own.

Thereafter, however, she testified that she had used the Being Loyal account herself,

as (she said) did “[a] lot of people” including appellant’s friends. Ms. Johnson

identified appellant as the individual waving the object with the red laser sight in the

four videos posted in the Being Loyal account. 11

II. Authentication and Admission of the Instagram Records

Appellant argues that the trial court erred in ruling that the videos showing

him waving a handgun and the direct share exchange concerning his possession of a

large capacity magazine were properly authenticated, and in admitting that evidence

as direct proof of the charged crimes. Although these contentions overlap, we

address them separately.

11

No photographs or videos were introduced in evidence showing Ms.

Johnson in possession of the black, .40-caliber M&P Smith & Wesson handgun, nor

did she claim to have engaged in the April 17 direct share exchange with No Respect.

12

A. Authentication

Regarding the authenticity of the evidence from the Being Loyal Instagram

account, appellant claims that “at best, the government proffered that appellant may

have at times had access to the Instagram account which contained posts of the

videos, messages and photo[s] admitted into evidence.” But, appellant continues,

the government provided “no evidence” that he was the only person who had access

to the Being Loyal account, and he cites the testimony of his sister and Instagram’s

records custodian that others used or (if possessed of his password and account

name) could have used the account. In addition, appellant argues that the

government failed to present evidence establishing that the videos were not

“doctored” to falsely show him in possession of a firearm he did not actually have,

that the objects in the videos were “actual firearms as opposed to a replica or a toy,”

or that the videos were created around the time they were uploaded. Appellant

further asserts that the government provided no evidence that he actually possessed

the extended magazine depicted in the April 17 direct share exchange between Being

Loyal and No Respect, that he was the author of any of the messages in that

exchange, or that the messages had not been altered. Consequently, appellant

contends, “the government failed to proffer sufficient evidence of the authenticity,

13

accuracy and trustworthiness of any of the social media posts,” and the trial court

therefore should not have admitted the evidence.

Authenticity — whether an item of evidence is genuinely what its proponent

claims it is — is a component of relevance. Evidence must be relevant to be

admissible. “Evidence is relevant if it has ‘any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.’” 12 Thus, ‘“[t]he test for

relevance is not a particularly stringent one,’ requiring only a ‘reasonable possibility’

of a link between the contested evidence and the crime.” 13 Accordingly, this court

has held that authenticity need not be established with certainty as a “condition

precedent” to the admission of evidence as relevant; rather, in general, “all that must

be shown” is a “reasonable possibility” that the evidence is “what it purports to be.” 14

12

Plummer v. United States, 813 A.2d 182, 188 (D.C. 2002) (quoting Street

v. United States, 602 A.2d 141, 143 (D.C. 1992)).

13

Stewart v. United States, 881 A.2d 1100, 1110 (D.C. 2005) (first quoting

Street, 602 A.2d at 143; and then quoting Winfield v. United States, 676 A.2d 1, 4

(D.C. 1996) (en banc)).

14

Id. at 1111. “Where there is reason for suspicion that a document is not

what it purports to be,” the Stewart court added, “the trial judge, in the exercise of

his or her discretion, may exclude it from evidence.” Id. (quoting Murphy v.

McCloud, 650 A.2d 202, 214 (D.C. 1994)).

14

In other words, as is true under the Federal Rules of Evidence as well, authentication

as a condition of admissibility merely requires the proponent of the evidence to show

that a jury reasonably could find the evidence to be genuine by a preponderance of

the evidence. 15 Once that showing has been made, the opposing party “remains free

to challenge the reliability of the evidence, to minimize its importance, or to argue

alternative interpretations of its meaning, but these and similar other challenges go

to the weight of the evidence — not to its admissibility.” 16

15

See United States v. Vayner, 769 F.3d 125, 129-30 (2d Cir. 2014)

(explaining that the authentication “‘requirement is satisfied if sufficient proof has

been introduced so that a reasonable juror could find in favor of authenticity or

identification.’ The ultimate determination as to whether the evidence is, in fact,

what its proponent claims is thereafter a matter for the jury” (citation omitted)); see

also United States v. Browne, 834 F.3d 403, 409-10, 413 (3d Cir. 2016) (citing

Federal Rule of Evidence 104(b), and holding that government presented sufficient

extrinsic evidence to authenticate chats on a social media site); United States v.

Maritime Life Caribbean Ltd., 913 F.3d 1027, 1032-33 (11th Cir. 2019) (holding

that trial court erred by excluding document because proponent failed to prove its

authenticity by “the greater weight of the evidence.” “A two-step process governs

the determination of whether a document is authentic. The district court must first

make a preliminary assessment of authenticity under Rule 901, which requires a

proponent to present sufficient evidence to make out a prima facie case that the

proffered evidence is what it purports to be. If the proponent satisfies this prima

facie burden, the inquiry proceeds to a second step, in which the evidence may be

admitted, and the ultimate question of authenticity is then decided by the factfinder.”

(citations, internal quotation marks, and alteration omitted)).

16

Vayner, 769 F.3d at 131 (quoting United States v. Tin Yat Chin, 371 F.3d

31, 38 (2d Cir. 2004)); accord Stewart, 881 A.2d at 1111 (stating that under the

“reasonable possibility” standard, “the absence of a definitive link to the crime or

the defendant merely affects the weight of the evidence, not its admissibility”).

15

We deem these principles to apply in full to the authentication of social media

records as well as traditional documentary (and other) evidence, albeit they must be

applied with the need for alertness to the ways in which electronically stored data

“can be manipulated or corrupted” and the “ease with which a social media account

may be falsified or a legitimate account may be accessed by an imposter.” 17 The

requisite likelihood of authenticity may be shown by direct evidence or

circumstantial evidence. “Although a witness with personal knowledge may

authenticate a document by testifying that the document is what the evidence

17

Browne, 834 F.3d at 412. We note that this court has recognized one

exception to the “reasonable possibility” standard of authentication: We have held

that a party seeking to introduce tape recordings of voice conversations must

establish they are “authentic, accurate, and trustworthy” by clear and convincing

evidence. Butler v. United States, 649 A.2d 563, 567 (D.C. 1994) (quoting Springer

v. United States, 388 A.2d 846, 852 (D.C. 1978)). But cf. id. (“To establish the

authenticity, accuracy and trustworthiness of the tape, we have also required that

‘the possibilities of misidentification and adulteration be eliminated, not absolutely,

but as a matter of reasonable probability.’” (quoting Springer, 388 A.2d at 852)).

This heightened standard (whether it is really “clear and convincing evidence” or

merely “reasonable probability”) reflects concerns that voice identifications may be

unreliable and particularly difficult to make, that recording, reproduction, and

preservation processes may result in distortion, loss of content, or other inaccuracies,

and that “more so than photographs or other demonstrative evidence, sound

recordings are susceptible to alterations that may be impossible to detect.” Id.

(quoting United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977) (alteration

omitted)). Appellant has not argued that a “clear and convincing” standard must be

applied to evidence of the kind before us in this case, and we are not persuaded it is

necessary here to depart from the generally applicable “reasonable possibility”

standard. Rigorous application of the latter standard suffices to take into account

whether appellant’s Instagram records had been altered or falsified.

16

proponent claims it to be, this is merely one possible means of authentication and

not . . . an exclusive requirement.” 18 For example, and as pertinent in this case, we

have recognized that authenticity “may be established by the nature and contents of

the writing combined with the location of its discovery.” 19 Evidence that “identity

verification is necessary to create” a social media record also may help to confirm

its authenticity. 20 Other courts have concluded that the government sufficiently

linked social media pages to the defendants by tracing the pages and the accounts to

the defendants’ mailing and email addresses. 21

18

Browne, 834 F.3d at 415.

19

In re Slaughter, 929 A.2d 433, 444 (D.C. 2007) (quoting Settles v. United

States, 570 A.2d 307, 309 (D.C. 1990)); see also Vayner, 769 F.3d at 132

(recognizing that “the contents or ‘distinctive characteristics’ of a document can

sometimes alone provide circumstantial evidence sufficient for authentication,” as

where the contents were not a matter of common knowledge).

20

Vayner, 769 F.3d at 133.

21

Browne, 834 F.3d at 413 (citing United States v. Hassan, 742 F.3d 104, 133

(4th Cir. 2014)); United States v. Lamm, 5 F.4th 942, 948 (8th Cir. 2021) (holding

that cell phone number, email address, photographs of defendant, and related

information found in defendant’s apartment linked to defendant and the Facebook

account sufficient for authentication); United States v. Quintana, 763 F. App’x 422,

427 (6th Cir. 2019) (holding that “account in defendant’s name, an email address

with his name and moniker, a location linked to defendant, dates that correspond to

witness testimony, and a picture of defendant” sufficient for authentication but

noting that “the government could have done more to connect the Facebook profile

to [defendant], like . . . provide evidence linking the email addresses and telephone

number on the account with” defendant); United States v. Lewisbey, 843 F.3d 653,

658 (7th Cir. 2016) (acknowledging that Facebook account name with defendant’s

17

Decisions to admit or exclude evidence are committed to the trial court’s

discretion. A trial judge’s ruling on the relevance of evidence, including a ruling on

authenticity, “is a highly discretionary decision that will be upset on appeal only

upon a showing of grave abuse.” 22

We conclude that the judge did not abuse his discretion in ruling the Instagram

evidence authenticated and admissible against appellant in this case. The

government provided sufficient proof for the jury to find that the video clips and

direct share exchange constituted genuine evidence of what the government claimed

they showed — appellant’s recent actual possession of a firearm like the one the

police found in his bedroom, and appellant’s recent admission to possession of a

large capacity ammunition feeder for that firearm.

To begin with, the government presented substantial evidence that appellant

was in fact the holder and a current user of the Being Loyal account from which the

video clips and direct share communications were exchanged. The email address

and phone number provided when the account was opened matched those found on

nickname, and place of residence, email address, and photographs of defendant were

relevant for authentication of Facebook page).

22

Furr v. United States, 157 A.3d 1245, 1250 (D.C. 2017) (quoting Riddick

v. United States, 995 A.2d 212, 216 (D.C. 2010)).

18

appellant’s resume, which the police found with appellant in his bedroom, in a folder

along with his birth certificate. Instagram had verified the phone number by texting

a code to it and obtaining confirmation, which presumably was provided by

appellant since the phone number was his. Consistent with these indicia of

appellant’s ownership of the account, the records of the account contained numerous

photos of appellant, corroborating his usage. Of particular note, his photograph was

the profile picture submitted to Instagram by the account holder when the account

was opened; such a picture is not self-authenticating, but as the trial judge observed,

a profile photo “tends to have greater probative value of who owns the account and

who uses the account . . . than simply other pictures sent to or received from the

account.” And appellant’s continuing ownership and use of the Being Loyal account

up to the time of his arrest was significantly corroborated by the fact that a cell phone

in his bedroom was receiving push notifications from that account when the police

were there on April 25, 2018. While appellant’s sister claimed that she and others

had access to and had used the account, that testimony was not substantiated by the

account records or any other evidence, and even if true, it did not refute the

government’s proof that the account belonged to and was utilized by appellant. 23

23

See United States v. Brinson, 772 F.3d 1314, 1321 (10th Cir. 2014) (holding

that, despite evidence that other individuals had access to the Facebook account and

had posted messages to it, the trial court could reasonably find that the defendant

authored the messages in question); United States v. Recio, 884 F.3d 230, 237 (4th

19

Moreover, the video clips posted to the Being Loyal account from the No

Respect account and the private direct share exchange between the two accounts

were reasonably linked to appellant personally. There is no genuine dispute that the

video clips, sent in mid-February, showed appellant holding and waving an object

that appeared to be a black handgun with an extended ammunition magazine and a

red laser sight. Like the trial judge, we are persuaded that a jury reasonably could

find that the object looked like the same black, .40-caliber M&P Smith & Wesson

handgun with a red laser sight that police found next to appellant in his bedroom

only two months later. As we discuss in more detail in the next section of this

opinion, the jury therefore reasonably could view the clips as direct and substantial

evidence that appellant possessed that handgun on April 25.

Similarly, the jury reasonably could find that it was appellant who admitted

possessing the large capacity magazine shown in the photo that No Respect sent to

Being Loyal on April 17 (which the government contended was the magazine found

Cir. 2018) (“[T]here was no evidence that another person accessed the [defendant’s]

Facebook account. Moreover, what matters is not whether a jury could find that [the

defendant] did not author the post in question, but rather whether the jury could

reasonably find that he did. Given the strong evidence that the Facebook account

was [the defendant’s], and without any evidence of unauthorized access, the jury

could find that [the defendant] was the true author of the post. The Government

therefore properly authenticated the Facebook post.”).

20

in the gun by appellant’s side only a week later). Even if it is conceivable some

other person accessed the Being Loyal account and engaged in the private exchange

with No Respect, the requirement of authentication did not require the government

to prove with “absolute certainty” that it was appellant who did so, only the

reasonable possibility that he did so. On the evidence here of appellant’s relationship

to the Being Loyal account, appellant certainly was the most likely candidate, and a

jury could so find. 24

Appellant argues that the government presented no proof that the Instagram

videos had not been doctored in some way and uploaded to falsely incriminate him.

But appellant is demanding that the government had to disprove a phantom of his

own imagination. There was no evidence that the videos had been doctored or faked

in any way. Appellant offered no reason to think it at all likely that someone had

fabricated and sent him video evidence showing him dancing with a handgun. The

same is true of appellant’s argument that the government failed to prove the

messages in the direct share exchange had not been materially altered. Appellant

advanced no evidence of such alteration. Given that those messages were recorded

Indeed, the “coincidence” that a large capacity magazine for the .40-caliber

24

Smith & Wesson handgun was found next to appellant just a week after Being Loyal

claimed to have such a magazine itself strengthens the inference that it was appellant

who made that claim.

21

in real time and maintained by Instagram, we do not even understand how they could

have been altered; appellant does not explain how any alteration could have been

accomplished or provide any reason to think it had been.

Appellant similarly objects that the government did not definitively prove that

the object depicted in the videos was the firearm the police seized on April 25 (which

was the weapon the prosecution needed to prove he possessed), and not a different

but similar firearm, a replica, or a toy. (This contention overlaps with appellant’s

claim that the Instagram evidence was not “direct and substantial” proof of the

charged weapons offenses, and we discuss it further infra.) Appellant posits (again,

without evidentiary support) that it is possible the videos were created long before

they were sent to him in February, in which case it might be less likely that they

depicted the same firearm the police recovered at appellant’s home in April. 25

The short answer to all these objections is that they go to the weight, but not

the admissibility, of the evidence. These objections do not undermine the trial

25

But cf. Jones v. United States, 127 A.3d 1173, 1186 (D.C. 2015) (“Given

the likelihood that the gun previously seen in appellant’s possession was of the same

distinctive type used in the charged offenses, it was less concerning that the prior

sightings may have occurred several months, or even a year, before the charged

offenses.”).

22

judge’s determination that the videos were sufficiently authenticated to allow the

jury to consider whether they supported the possession charges against appellant.

B. “Direct and Substantial Proof”

That brings us to appellant’s contention that the trial court abused its

discretion by admitting the Instagram evidence as direct proof of the charged crimes.

Appellant argues that the Instagram evidence was not direct proof but rather “other

crimes” evidence — what is commonly referred to as “Drew evidence.” Appellant

asserts that the government offered this evidence (improperly and prejudicially) for

the sole purpose of proving his propensity to commit the charged offenses, and that

it was properly admissible only on conditions not satisfied in this case. 26 We reject

appellant’s contention (as did the trial court) because we conclude that the Instagram

evidence was indeed admissible as direct and substantial proof of the crimes

26

See Drew v. United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964). “Under

Drew, evidence of other crimes committed by a defendant is admissible only if it is

offered to prove a legitimate and materially disputed issue, such as motive, intent,

common plan, identity, or absence of mistake or accident, and only if the trial judge

finds by clear and convincing evidence that the defendant committed the other

crimes, and determines that the probative value of the evidence is not substantially

outweighed by the risk of unfair prejudice posed by its admission.” Jones, 127 A.3d

at 1184 (citations omitted).

23

charged, and appellant has not shown that the prosecution utilized the evidence

improperly to prove his criminal disposition or that the jury might have done so.

The “strictures of Drew” do not apply to evidence of a defendant’s uncharged

criminal conduct that is “direct and substantial proof of the charged crime.” 27 This

court repeatedly has held “that evidence of a defendant’s prior possession of the

weapon or type of weapon used to commit a charged offense can be admitted as

direct and substantial proof of the crime charged” 28 so long as the weapon “is linked

to both the defendant and the crime and the connection is not too remote or

conjectural.” 29 Accordingly, admissibility typically “turns on a consideration of the

temporal proximity of the incidents of prior possession to the charged offense and a

comparison of the appearance of the weapon previously possessed by the defendant

with that of the weapon actually used in the charged offense.” 30 These principles

apply not only to weapon possession; they apply to evidence of the defendant’s prior

27

Jones, 127 A.3d at 1184 (quoting Johnson v. United States, 683 A.2d 1087,

1098 (D.C. 1996) (en banc)).

28

Id.

Ruffin v. United States, 219 A.3d 997, 1009 (D.C. 2019) (internal quotation

29

marks omitted) (quoting King v. United States, 618 A.2d 727, 728-29 (D.C. 1993)).

30

Jones, 127 A.3d at 1185.

24

possession of other instrumentalities as well. In general, “[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.” 31

“A trial judge has broad discretion to determine the admissibility of evidence

of uncharged misconduct as direct and substantial proof of the crime charged under

Johnson, and on appeal our review of a judge’s ruling admitting such evidence is

limited to a consideration of whether there has been an abuse of discretion.” 32 We

find no abuse of discretion in the judge’s decision to admit the Instagram evidence

as direct and substantial proof of the charges in this case.

Appellant was charged with possessing the .40-caliber M&P Smith & Wesson

handgun bearing a distinctive red laser sight and a large capacity ammunition feeder

that police found in his bedroom on April 25, 2018. Appellant denied possessing

either item on that date; probative evidence showing his recent prior possession of

those items would constitute direct and substantial proof of the charges and rebut

appellant’s denial. The judge reasonably found that the records of appellant’s

31

Ruffin, 219 A.3d at 1009 (quoting Coleman v. United States, 379 A.2d 710,

712 (D.C. 1977)).

32

Jones, 127 A.3d at 1185 (citing Busey v. United States, 747 A.2d 1153, 1165

(D.C. 2000)).

25

Instagram account supplied such evidence. The video clips, posted only two months

earlier, showed appellant in physical possession of what appeared to be a matching

handgun with the same distinctive red laser sight. While the records did not disclose

when the video clips were recorded, both the judge and the jury (who could compare

appellant’s appearance in the clips to his appearance at trial) reasonably could find

it most likely that the clips were recorded more or less contemporaneously with their

posting, and not long in the past. 33 The April 17 direct share exchange included a

message, evidently from appellant for the reasons already explained, claiming

possession of a large capacity ammunition feeder for that same make and model of

handgun — an admission, we note, that implied appellant’s likely possession at that

time of the handgun as well as the feeder. It is true that the evidence established

“only a reasonable probability, and not a certainty,” 34 that appellant had recently

possessed the gun and magazine that he was charged with possessing on April 25,

but that was sufficient; the linkage was not conjectural or remote, “so the lack of

certainty goes to the weight of the evidence, not its admissibility.” 35

33

Cf. United States v. Bowens, 938 F.3d 790, 794 (6th Cir. 2019); United

States v. Vázquez-Soto, 939 F.3d 365, 375 (1st Cir. 2019).

34

Busey, 747 A.2d at 1165.

35

Id.

26

Appellant argues that even if the Instagram evidence was relevant and

otherwise admissible, “[t]he prejudice of admitting such sensational videos and

messages greatly outweighed any conceivable probative value” because “jurors were

exposed to videos in which appellant was purportedly pointing and waving a gun

around and two others in the video were doing the same.” This argument lacks merit.

As we concluded in Stewart, “[a]ppellant overreaches when he argues that juries are

so inflamed by the sight of a gun that they will simply disregard the court’s

instructions to decide the case without prejudice and to base their verdict solely on

the evidence.” 36 The Instagram videos were particularly probative of the disputed

question of appellant’s possession of the handgun and magazine on April 25, and

there is no indication in the record that they were inflammatory or otherwise unfairly

prejudicial.

Finally, the government did not urge the jury to draw an adverse propensity

inference from the Instagram evidence. At appellant’s request, as we discuss infra,

the trial judge instructed the jury not to use the Instagram evidence “to conclude that

[appellant] has a bad character or is likely to commit crimes.” We conclude that the

record does not support appellant’s objections to the admission of the Instagram

36

Stewart v. United States, 881 A.2d 1100, 1112 (D.C. 2005).

27

evidence under Drew or any concern that the jury treated the Instagram evidence as

proof of appellant’s criminal disposition.

III. Sufficiency of the Evidence

Appellant argues that the evidence presented by the prosecution at trial was

not sufficient to prove beyond a reasonable doubt that he possessed the .40-caliber

M&P Smith & Wesson handgun and the associated 30-capacity extended magazine

and .40-caliber ammunition. 37 In evaluating this claim, we must view the evidence

“in the light most favorable to the government, giving full play to the right of the

jury to determine credibility, weigh the evidence, and draw justifiable inferences of

fact.” 38 We must deem the proof of guilt sufficient if “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” 39

37

The jury did not convict appellant of possessing the 15-capacity magazine

or the 9-mm ammunition.

38

Moore v. United States, 927 A.2d 1040, 1049 (D.C. 2007) (quoting Curry

v. United States, 520 A.2d 255, 263 (D.C. 1987)).

39

Id. (quoting Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en

banc)).

28

Since the Smith & Wesson handgun and its accoutrements were found on the

floor next to appellant rather than in his hands or on his physical person, the issue is

whether the government proved his constructive possession of the items. “To prove

constructive possession of . . . weapons, or other contraband, the evidence must show

that the accused knew of its presence and had both the ability and [the] intent to

exercise dominion and control over it.” 40 When illicit items have been discovered

in the accused’s own home, a jury usually may infer that the accused had the

requisite knowledge, dominion and control of them. 41 Even when the accused shared

the premises with others, “additional probative evidence may suffice” to establish

constructive possession by the accused, 42 as where the contraband was found in plain

view, in the defendant’s own bedroom or other personal space, or “in proximity to

the defendant’s personal items such as mail or personal papers, photographs, and

identification cards.” 43

40

Id. at 1050 (citing Rivas, 783 A.2d at 129).

41

Id.

42

Id.

43

Evans v. United States, 122 A.3d 876, 890-91 (D.C. 2015) (quoting Schools

v. United States, 84 A.3d 503, 510 (D.C. 2013)).

29

Such additional probative evidence was adduced in the present case. The

police found the handgun, its extended magazine, and its ammunition in appellant’s

bedroom, where they also found appellant’s personal papers and effects, and

appellant himself asleep on the floor next to the gun. 44 The handgun was in plain

view, within close reach of appellant, and additional ammunition for it was in the

top drawer of appellant’s bedroom dresser and under his bed. His former girlfriend,

the only other person in the room, testified that the gun was not hers. 45 Moreover,

the evidence from appellant’s Instagram account included the video footage showing

appellant waving a weapon that looked like the one in appellant’s bedroom, and an

admission reasonably attributable to appellant that he possessed the large capacity

magazine attached to that weapon.

We conclude that the evidence adduced at trial was sufficient to permit the

jury to find appellant guilty beyond a reasonable doubt of possessing the .40-caliber

Smith & Wesson handgun and ammunition, along with the large capacity

44

That this room was appellant’s bedroom was confirmed at trial by his former

girlfriend and his sister.

45

Although appellant’s sister claimed that the handgun belonged to her and

that she had placed it on the floor next to appellant while he was asleep, the jury was

free to disbelieve that testimony.

30

ammunition feeder attached to the gun, recovered from his bedroom on April 25,

2018.

IV. Jury Instructions

Appellant argues that the trial court erred in responding to the deliberating

jury’s request for legal guidance and in later giving the jury an anti-deadlock

instruction. We conclude that neither contention entitles appellant to relief.

A. The Supplemental Instructions in Response to Notes from the Jury

The jury began its deliberations on the morning of August 28, 2018. On the

following morning, one of the jurors became unavailable. The court empaneled one

of the alternate jurors and instructed the jury to begin its deliberations afresh. At

12:50 p.m., after the jury had deliberated for approximately an hour and a half, it

sent a note saying: “What do we do if we cannot agree? We are at an impass[e].”

Appellant moved for a mistrial, which the court denied. The court instead instructed

the jury to continue deliberating.

At 4:10 that afternoon, the jury sent another note, which asked, in relevant

part: “Is . . . the possession we are to determine exclusively limited to the time of the

31

search warrant? Can possession be established at any time? Can past possession of

an item be used to infer subsequent possession?” The court conferred with the

parties as to how to respond to this note. As to the first two questions, they agreed

that the question for the jury was limited to whether appellant possessed the

handgun, magazines, and ammunition at the time the police executed the search

warrant at appellant’s apartment. Regarding whether past possession could be used

to infer subsequent possession, the judge indicated his inclination to tell the jury:

“[Y]ou can but need not infer possession on or about the date of the charged offense,

April 25th, 2018, based on possession at an earlier time.” “That was the whole

reason,” the judge said, “why the Instagram evidence was relevant in the first

instance. It’s not for propensity. It’s to show . . . possession.” Appellant’s counsel

requested that the court include an admonition to the jury not to use his past firearm

possession as propensity evidence, and the judge agreed to incorporate that in the

supplemental instructions he would prepare and share with counsel that evening.

The next morning, the judge reviewed his proposed response to the jury’s note

with the parties. The proposed response stated that each charge required the

government to prove possession by appellant “on or about April 25, 2018,” and that

the jury “cannot find Mr. Johnson guilty of a charged offense based on possession

at some other time.” Referring to the Instagram video clips, the proposed response

32

stated that “[t]he government has presented evidence that the government contends

shows Mr. Johnson with the firearm at issue in Count [One] at some point prior to

April 25, 2018.” If the jury were to so find, the proposed response said, it could use

that evidence “only for the limited purpose of deciding whether the government . . .

proved beyond a reasonable doubt that Mr. Johnson possessed the firearm,

ammunition, and large-capacity feeding devices” at issue on or about April 25, 2018.

Granting appellant’s request for a limiting instruction against drawing adverse

propensity inferences, the judge next included the following passage:

Mr. Johnson is only on trial for the crimes charged. He is

not charged in this case with any offense relating to

possession of firearms or ammunition at any other time,

and you may not use this evidence [of previous

possession] to conclude that he has a bad character or is

likely to commit crimes. The law does not allow you to

convict Mr. Johnson simply because you believe he may

have done other things not specifically charged as crimes

in this case at other times.

The government asked the court to delete this passage, but the judge declined to do

so, saying it was “important limiting language to make sure that the jury does not

misuse the video evidence.” The judge noted that the language tracked “very

closely” the standard pattern jury instruction on “other bad acts.”

33

The government also asked the court to include “the standard instruction on

the definition of ‘on or about.’” 46 Appellant objected to including this definition.

He argued that there was no reason to give the instruction because there was no

dispute or uncertainty as to the exact date of the charged offenses — it was April 25,

2018, the date on which the police executed the warrant to search appellant’s

apartment and found him there with the handgun, ammunition, and large capacity

ammunition feeding devices. And giving the requested “on or about” instruction

would “confuse the issue,” appellant pointed out, because it might be understood to

allow the jury to convict him based on his possession of the gun shown in the

Instagram video clips sent in February 2018. Citing case law and the comment to

Criminal Jury Instruction 3.103, appellant argued that where the prosecution has

been permitted to introduce evidence of prior bad acts in its proof of the charged

46

Specifically, the government requested that the court include language from

Instruction 3.103 of the Criminal Jury Instructions for the District of Columbia (5th

ed.) so as to read as follows:

The indictment charges that the offenses in this case were

committed “on or about” April 25, 2018. The proof need

not establish with certainty the exact date of the alleged

offense. It is sufficient if the evidence in the case

establishes beyond a reasonable doubt that the offense was

committed on a date reasonably near the date alleged.

34

offense, it is error to give an “on or about” instruction if it might lead the jury to

convict on the basis of those prior acts alone. 47

The court overruled the objection and granted the government’s request. It

explained that defining “on or about” answered the jury’s question as to the relevant

time period, which the indictment stated was “on or about” April 25, 2018. As to

appellant’s concern that “on or about” might mislead the jury into convicting

appellant on the basis of his possession shown in the video clips, the court reasoned

that its limiting instructions ensured against that possibility.

With that issue resolved, the jury was called back into the courtroom to hear

the court’s supplemental instructions in response to their note. 48

47

See United States v. Thomas, 459 F.2d 1172, 1177 (D.C. Cir. 1972).

48

The court instructed the jury as follows:

The government has the burden of proving beyond

a reasonable doubt every element of the offenses with

which Mr. Johnson is charged. Each of the charged

offenses is alleged to have occurred on or about April 25th,

2018, and possession is an element of each charged

offense. Accordingly, to find Mr. Johnson guilty of a

charged offense, the government must prove beyond a

reasonable doubt that he possessed the item that is the

subject of that offense on or about April 25th, 2018. You

cannot find Mr. Johnson guilty of a charged offense based

on his possession at some other time. The proof need not

35

The jury then resumed its deliberations at 10:34 a.m. At 11:45 a.m., it sent a

note stating: “Having discussed at length, we do not believe we will ever be able to

come to a unanimous decision. We do not see the point in continuing deliberation.

Please advise.” The government requested the court to give the Winters 49 anti-

establish with certainty the exact date of the alleged

offense. It is sufficient if the evidence in the case

establishes beyond a reasonable doubt that the offense was

committed on a date reasonably near the date alleged.

The government has presented evidence that the

government contends shows Mr. Johnson with the firearm

at issue in Count 1 at some point prior to April 25th, 2018.

It is up to you to decide whether to accept that evidence.

If you find that Mr. Johnson possessed the firearm at issue

in Count 1 at an earlier time, you may use this evidence

only for the limited purpose of deciding whether the

government has proved beyond a reasonable doubt that

Mr. Johnson possessed the firearm, ammunition, and

large-capacity feeding devices that are the subjects of

Counts 1 through 6 on or about April 25th of 2018. You

may not use this evidence for any other purpose. Mr.

Johnson is only on trial for the crimes charged. He is not

charged in this case with any offense relating to possession

of firearms or ammunition at any other time, and you may

not use this evidence to conclude that he has a bad

character or is likely to commit crimes. The law does not

allow you to convict Mr. Johnson simply because you

believe he may have done other things not specifically

charged as crimes in this case at other times.

49

Winters v. United States, 317 A.2d 530, 533 (D.C. 1974) (en banc)

(approving instruction designed to “stimulat[e] a decision in the face of deadlock”

while “preserving juror independence”).

36

deadlock instruction, while appellant moved for a mistrial. The judge observed that

the jury had been deliberating for only about an hour after receiving the supplemental

instructions in response to their questions, and that “this was not a simple answer to

a simple question.” Stating that he “believe[d] the jury ha[d] not completed its work

and that they could perhaps benefit from additional deliberation,” the judge decided

to give the Winters instruction.

Following that instruction, at 12:21 p.m., the jury returned to its deliberations.

At 12:55 p.m., it reported that it had reached verdicts on all counts. The jury returned

to the courtroom, rendered its verdicts, was polled without incident, and was found

to be unanimous.

B. The “On or About” Instruction

Appellant argues that the trial court erred by instructing the jury in accordance

with Criminal Jury Instruction 3.103 that the government did not have to prove the

“exact date” of the alleged offenses, but only that the offenses were committed on a

date reasonably near the date alleged in the indictment. We are persuaded that it was

37

a mistake to include this instruction, but we are satisfied that the error did not mislead

the jury or prejudice appellant. 50 It therefore does not entitle appellant to relief.

The “decision on what further instructions, if any, to give in response to a jury

question lies within the sound discretion of the trial court.” 51 “Nevertheless,

‘[w]here a jury has demonstrated confusion, . . . the trial judge may not allow that

confusion to continue, but must make an appropriate and effective response.’” 52

Because the indictment alleged that the charged offenses were committed “on

or about” April 25, 2018, it is understandable that the judge felt obliged in this case

to grant the government’s request for Instruction 3.103. But at trial there was no

question regarding the exact and only date on which the government sought to prove

appellant committed those offenses. It was the date the police searched his

50

See Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979) (“[T]he

appellate court makes two distinct classes of inquiries when reviewing a trial court’s

exercise of discretion. It must determine, first, whether the exercise of discretion

was in error and, if so, whether the impact of that error requires reversal. It is when

both these inquiries are answered in the affirmative that we hold that the trial court

‘abused’ its discretion.”).

51

Colbert v. United States, 125 A.3d 326, 334 (D.C. 2015) (quoting Yelverton

v. United States, 904 A.2d 383, 387 (D.C. 2006)).

52

Id. (alteration in original) (quoting Whitaker v. United States, 617 A.2d 499,

501 (D.C. 1992)).

38

apartment, and that was indisputably “on” April 25 and not any date “about” it.

While the government introduced Instagram records evidencing appellant’s earlier

possession of the handgun and an extended magazine, it did so only for the limited

purpose of proving his possession at the time of the search; the government expressly

disavowed prosecuting appellant for his possession at any time prior to April 25.

Under these circumstances, the “on or about” instruction was inappropriate; it

was unhelpful to the jury and served no useful purpose, and it had the potential to

lead the jury to convict appellant improperly for previous possession indicated by

the Instagram evidence. As the comment to Instruction 3.103 explains,

This instruction should be given where an issue of fact as

to the date of the offense is presented by the evidence, or

where there is a variance between the date alleged in the

information or indictment and the date proved by the

evidence. Generally, there is little purpose in giving this

instruction when the government’s proof has focused on a

specific date, or specific dates for multiple offenses. . . .

[N]ormally the giving of the instruction under such

circumstances would be harmless error since there is little

likelihood that the jury will speculate that the offense or

offenses occurred on a different date or dates. But see

U[nited] S[tates] v. Thomas, 459 F.2d 1172, 1177 (D.C.

Cir. 1972) (where government permitted to introduce

evidence of prior acts of cruelty to support case on charged

offense, it was error to give “on or about” instruction

39

which might have permitted jury to convict on basis of

prior acts).[53]

Although it was a mistake to give the “on or about” instruction, we do not

evaluate it in a vacuum, ignoring what else the court told the jury at the same time.

The rest of the supplemental instruction dispelled the risk that the jury would convict

appellant for possession prior to April 25 (which was the reason the judge himself

gave for overruling appellant’s objection to Instruction 3.103). The judge

emphatically told the jury that it could use the evidence that appellant possessed the

firearm “at some point prior to April 25th, 2018,” “only for the limited purpose of

deciding whether . . . [appellant] possessed the firearm, ammunition, and large-

capacity feeding devices that are the subjects of Counts 1 through 6 on or about April

25th of 2018,” and not “for any other purpose.” The judge reiterated that appellant

was “not charged in this case with any offense relating to possession of firearms or

ammunition at any other time,” and that the law did not allow the jury to convict him

for possession “at other times.” The jurors could only have understood these

admonitions as meaning they could not find appellant guilty for any prior possession

53

Criminal Jury Instructions for the District of Columbia, No. 3.103, cmt. (5th

ed. 2022) (citations omitted).

40

shown or implied by the Instagram evidence (which was the only evidence of prior

possession presented by the prosecution). 54

We think the verdict itself provides some additional assurance that the jurors

complied with this limitation and convicted appellant based on what they found he

possessed on April 25. One of the counts on which the jurors convicted appellant

charged him with possession of .40-caliber ammunition. The only evidence at trial

that he possessed such ammunition was what the police found in his bedroom on

April 25; the Instagram records contained no evidence that he possessed ammunition

54

Appellant objects that the supplemental instruction did not specifically

caution the jury against convicting him for possessing a large capacity ammunition

feeding device a week before the police searched his bedroom, based on the April

17 Instagram message in which he admitted possessing the device shown in a

photograph. Appellant did not object at trial to this omission from the supplemental

instruction, and appellant has failed to demonstrate that it amounted to plain error.

See Rogers v. United States, 222 A.3d 1046, 1050 (D.C. 2019). The supplemental

instruction may not have been letter-perfect, but we are confident it correctly

conveyed what was necessary.

Appellant also objects to the statement in the supplemental instruction that

proof of appellant’s earlier possession of the firearm seized by the police on April

25 could be probative of his possession of the ammunition and large capacity feeding

devices also seized at that time. This, too, was not an objection he raised at trial.

We do not deem the statement erroneous, let alone plainly so. Evidence that a

defendant possessed a firearm at a given time and place makes it at least slightly

more probable that he also possessed the ammunition and feeding devices that were

compatible with the firearm and that were found with it at same time and place.

41

at any other time. So we think it a fair inference that the jury found that appellant

possessed the .40-caliber ammunition found in his bedroom on April 25. 55 If the

jury so found, it is difficult to fathom why they would not also have found he

possessed the .40-caliber firearm and its extended magazine that the police also

found in his bedroom during the same search (particularly since much of the .40-

caliber ammunition was recovered from that firearm and magazine).

We conclude that the supplemental instruction as a whole mitigated the “on

or about” mistake and effectively advised the jury that the government had to prove

appellant possessed the contraband that the police found in his bedroom on April 25,

2018. We therefore are satisfied that the trial court did not abuse its discretion, and

that the instructional “error was sufficiently insignificant to give us fair assurance

that the judgment was not substantially swayed by it.” 56

55

We do not think this inference is inconsistent with the jury’s acquittal of

appellant on the charges that he possessed the 9-mm ammunition and the 15-round

capacity magazine also found in his bedroom on April 25. Unlike the other

contraband, the 9-mm ammunition and 15-round capacity magazine were not out in

the open and plainly visible to appellant; they were secreted under appellant’s bed

and could not be seen until the police lifted the bed up. Appellant’s sister had

claimed those items as hers, and the government presented no evidence specifically

linking them to appellant.

56

Brooks v. United States, 599 A.2d 1094, 1101-02 (D.C. 1991) (explaining

that “instructional error is subject to harmless error analysis”). We apply the test of

harmlessness applicable to non-constitutional error, considering that the “on or

42

C. The Winters Anti-Deadlock Instruction

Appellant contends the court committed reversible error by giving the Winters

anti-deadlock instruction, over his objection, after the jury had deliberated

approximately five and a half hours and twice declared itself at an impasse. He

contends the instruction’s coerciveness was shown by “the speedy shift” to a guilty

verdict it produced just 34 minutes after the court delivered it.

Whether to give an anti-deadlock instruction when a jury reports itself at an

impasse, and which approved instruction to give, are questions committed to the

discretion of the trial judge. 57 “It is, of course, an abuse of that discretion to give an

anti-deadlock instruction under circumstances creating a substantial risk of juror

coercion.” 58 We evaluate that risk by assessing “the inherent coercive potential of

the situation before the court” and examining whether the actions of the trial judge

about” instruction did not unconstitutionally authorize the jury to convict appellant

of an offense with which he was not charged in the indictment, or based on evidence

obtained in violation of the Constitution.

57

Jones v. United States, 999 A.2d 917, 924-25 (D.C. 2010); see also

Epperson v. United States, 495 A.2d 1170, 1173 (D.C. 1985).

58

Hankins v. United States, 3 A.3d 356, 361 (D.C. 2010).

43

“exacerbated, alleviated or were neutral with respect to coercive potential.” 59 We

have distilled from our cases the following pertinent principles guiding the

determination of whether an anti-deadlock instruction resulted in a substantial risk

of coercion:

We examine the question of coercion from the jurors’

perspective. Coercion of a verdict does not mean simple

pressure to agree. Rather, pressure to agree is

impermissibly coercive when it is likely to force a juror to

abandon his or her honest conviction as a pure

accommodation to the majority of jurors or the court. The

question is one of probabilities, not certainties; from our

review of the record, we must be able to say with assurance

that the jury arrived at its verdict freely and fairly.

As a rule, it is not coercive to give a standard anti-

deadlock instruction when a jury has declared itself unable

to agree after having deliberated for a considerable length

of time. Typically, where the jury’s numerical division

and leaning have not been disclosed and no juror has been

singled out, no members of the jury have any reason to

suppose the anti-deadlock instruction is aimed at them (or

at their position). As a result, no juror would have a reason

to feel forced to abandon his or her conviction.[60]

We do not perceive a significant degree of coercive potential in the record

before us in this case. The jury’s initial impasse note was received by the trial court

59

Harris v. United States, 622 A.2d 697, 701 (D.C. 1993).

60

Hankins, 3 A.3d at 361-62 (internal quotation marks, alterations, and

citations omitted).

44

about an hour and half after the renewed commencement of deliberations. In

response, the judge merely asked the jury to continue deliberating, and the jury did

so. There is no claim that this directive was coercive or inappropriate, and we do

not think it was. After a few hours, the jury submitted substantive questions to the

court. The court’s response to those questions helped to focus the inquiry for the

jurors and gave them things to chew over and digest. The jury deliberated only about

an hour after receiving the court’s response before it again reported being

deadlocked. Thus, as of that time, the deliberations had not been unduly lengthy,

the jury had not disclosed a numerical split or a prior verdict, no dissenting juror had

been singled out, there was no indication of destructive acrimony among the jurors,

and no juror claimed to be under external pressure to conclude or be released from

the deliberations.

In those circumstances, the judge reasonably could believe that, with proper

encouragement and guidance from the court in the form of a non-coercive anti-

deadlock instruction, the jury might work productively through its impasse. 61 And

61

That the jury had twice declared itself unable to reach a verdict did not

require the judge to declare a mistrial in lieu of giving an anti-deadlock instruction.

It would have been premature for the judge to have given an anti-deadlock

instruction after only the first note expressing the jury’s inability to reach a verdict.

The judge was obliged to determine that the jury was truly at an impasse — here, by

waiting until after the second note — before giving an anti-deadlock instruction.

45

the Winters instruction the judge chose to give neutrally asked all the jurors — both

those for acquittal and those for conviction —– to “listen to each other’s arguments

with a willingness to be convinced,” and to decide the case if they could

“conscientiously do so.” In giving that instruction, the judge did not act

precipitously or impatiently, and he did not tell the jurors they had to reach a verdict

or suggest what verdict they ought to reach. It is true that our cases have

acknowledged “the coercive potential of the [Winters] instruction’s rather emphatic

language; we have deemed it to represent the ‘highwater mark’ of an anti-deadlock

instruction because of the ‘sting’ it carries in favor of a verdict.” 62 But this in itself

is not enough to render the Winters instruction substantially coercive, and our cases

have approved its use repeatedly, including in circumstances comparable to those

present here. We do not see that the judge’s actions in giving the Winters instruction

can be said to have contributed to a coercive atmosphere or to have caused any juror

to “abandon his honest conviction as a pure accommodation to the majority of jurors

or the court.” 63

See, e.g., Epperson, 495 A.2d at 1172; Reed v. United States, 383 A.2d 316, 322

(D.C. 1978).

Hankins, 3 A.3d at 360 n.3 (quoting Jones v. United States, 946 A.2d 970,

62

975 (D.C. 2008) (quoting Winters, 317 A.2d at 533, 534)).

63

Winters, 317 A.2d at 532. It is worth noting that the jury’s eventual verdict

reflected an individualized and discriminating assessment of the evidence, in that the

46

Appellant’s argument for the existence of coercion comes down to the simple

fact that the jury agreed on its verdict only 34 minutes after receiving the Winters

instruction. If half an hour seems relatively quick, that “may be some indication of

the anti-deadlock instruction’s effectiveness, but we do not think it implies

coerciveness,” 64 particularly in light of the short total duration of the deliberations

and the uncomplicated facts of the case. “Countering such an implication is the fact

that no juror hesitated to assent to the verdict when the jury was polled.” 65

We conclude that the trial judge did not abuse his discretion in giving the

jurors a Winters instruction.

jury found appellant guilty on four counts and not guilty on two of them. There was

nothing irrational or inconsistent in that outcome.

64

Hankins, 3 A.3d at 363 (holding that coercion was not shown where the jury

reached a verdict an hour after the judge’s anti-deadlock instruction); see also Nixon

v. United States, 730 A.2d 145, 154-55 (D.C. 1999) (no coercion where jury reached

its verdict about one hour after receiving the Winters instruction).

65

Hankins, 3 A.3d at 364. “The purpose of the jury poll . . . ‘is to ascertain

for a certainty that each of the jurors approves of the verdict as returned; that no one

has been coerced or induced to sign a verdict to which he does not fully assent.’”

Green v. United States, 740 A.2d 21, 25 (D.C. 1999) (quoting Humphries v. District

of Columbia, 174 U.S. 190, 194 (1899)).

47

V. Conclusion

For the foregoing reasons, we affirm appellant’s convictions.