opining that for the “while armed” enhancement to apply, “the defendant must actually have been armed with or had readily available a firearm (or imitation thereof) or other dangerous weapon; it is not enough that he appeared to be armed if in fact he was not”
How later courts described this case
- opining that for the “while armed” enhancement to apply, “the defendant must actually have been armed with or had readily available a firearm (or imitation thereof) or other dangerous weapon; it is not enough that he appeared to be armed if in fact he was not”
- noting that “it is naturally troublesome when, as in this case, the proof of actual possession consists entirely of evidence that appellant behaved as though he was armed with and prepared to use a gun, but no gun was found on him”
- finding that conflicting explanations for flight are weighed by the jury
- noting that “[njothing in the record suggests that Smith’s flight could be linked to any other criminal conduct”
Written by the judges who cited it.
The opinion
FARRELL, Associate Judge,
concurring:
For the maximum sentence to be enhanced under D.C.Code § 22-3202(a), the defendant must actually have been armed with or had readily available a firearm (or *814 imitation thereof) or other dangerous weapon; it is not enough that he appeared to be armed if in fact he was not. So it is naturally troublesome when, as in this case, the proof of actual possession consists entirely of evidence that appellant behaved as though he was armed with and prepared to use a gun, but no gun was found on him (he was not arrested until much later), he neither fired it nor brandished it openly during the crime, and no one actually saw it. Yet, as Judge Gallagher demonstrates, our decisions are exceedingly difficult to reconcile with the notion appellant advances that there must have been an actual sighting or feeling of the weapon before the defendant may be found to have been armed. * If, as we have held, “circumstantial evidence will suffice” to prove “that a dangerous weapon was used,” Paris v. United States, 515 A.2d 199, 204 (D.C.1986), that must mean that other proof besides “direct” evidence of seeing or feeling the weapon can suffice. Also, it is doubtful that the authors of the enhancement statute meant to exempt from its reach a defendant who commits an armed crime while successfully masking the weapon, or to make enhancement depend on the fortuity of his arrest on the scene and recovery of the weapon. Appellant gave strong circumstantial evidence of his possession of a gun and intent to use it if his demands were unmet. Had he been apprehended at the scene and no gun been found on him, that proof nonetheless would have failed. See United States v. Levi, 310 U.S.App.D.C. 152, 156 , 45 F.3d 453, 457 (1995). But under our decisions, the evidence here was legally sufficient.
Citing some of our cases, appellant appears to concede that "a bulge in the pocket” or "the outline of a gun visible through the pocket material” would be sufficient proof that he was armed, but exactly how such a bulge or outline differs from the pointed object the victims perceived him to hold in his pocket he does not say.