# Drake v. United States

> District of Columbia Court of Appeals · May 30, 2024

URL: https://www.frixlaw.com/law-library/cases/9975486

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** May 30, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Notice: This opinion is subject to formal revision before publication in the Atlantic
and Maryland Reporters. Users are requested to notify the Clerk of the Court of
any formal errors so that corrections may be made before the bound volumes go
to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CF-0887

NIKKO L. DRAKE, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(2020-CF3-001170)

(Hon. Maribeth Raffinan, Trial Judge)

(Argued January 4, 2024 Decided May 30, 2024)

Michael Madden for appellant.

Chimnomnso N. Kalu, Assistant United States Attorney, with whom Matthew
M. Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, and
Paul V. Courtney, Assistant United States Attorneys, were on the brief, for appellee.

Before BECKWITH and SHANKER, Associate Judges, and GLICKMAN, Senior
Judge.

SHANKER, Associate Judge: Following a jury trial, appellant Nikko L. Drake

was convicted of aggravated assault while armed and multiple firearms offenses in

connection with a shooting in 2020 outside of a nightclub in Washington, D.C.

Mr. Drake appeals, arguing that (1) the trial court erred in denying his motion to
2

suppress items, including a cell phone, officers seized when Mr. Drake was in the

emergency room after the incident and (2) the trial court abused its discretion in

admitting at trial text messages and a photograph showing that, four months before

the shooting, Mr. Drake had arranged to purchase a handgun similar to the one used

in the shooting. We disagree on both fronts and affirm Mr. Drake’s convictions.

Background

A. The Shooting

The evidence at trial was as follows. On the evening of January 23, 2020,

Fredirickia Lloyd went with a friend to Mirror Lounge in northwest D.C. Ms. Lloyd

spent some time in the “VIP” section of the lounge with an individual named Kelvin

Harris. At some point, Mr. Harris argued with a man who was described as Black,

about 5’3” tall, with waist-length dreadlocks. Mr. Harris thought that the man was

reaching for a weapon because he could not see the man’s hand for a moment, so

Mr. Harris punched the man. Security then separated the two.

Before leaving through the back door, Mr. Harris told the manager that the

man was carrying a gun. The man was escorted out of the front door, but, because

he had left his glasses inside, he tried to follow security back inside. As the man

attempted to reenter the lounge, James Coleman, the head of security, heard from
3

someone that the man might be armed. The man was offered free drinks in exchange

for consenting to a pat-down search, but he refused and left the club again. The

individual was wearing a camouflage jacket when he left.

A short time later, Ms. Lloyd also left Mirror Lounge through the front door.

She recognized the individual who had fought with Mr. Harris, approached him, and

told him that she did not want to be involved in his quarrel with Mr. Harris. The

man told Ms. Lloyd, “[O]h, you don’t want no smoke.” Ms. Lloyd took the

comment as a threat and the conversation escalated. The man then punched

Ms. Lloyd and she fell to the ground. A security guard known as “Fat Joe” attempted

to separate the man and Ms. Lloyd. During this altercation, Mr. Coleman saw a “dull

black” or “plastic dark gray” gun, warned Fat Joe about it, and told Fat Joe and other

bystanders to go into the club for safety. At 11:25 p.m., two gunshots were fired.

Surveillance footage showed people rushing into Mirror Lounge at that time.

Metropolitan Police Department (“MPD”) Officer Michael Webber was about

one block away responding to an unrelated incident when he heard two gunshots.

Officer Webber immediately searched for victims and found Ms. Lloyd on the

sidewalk suffering from gunshot wounds. A crime scene forensic scientist recovered

a projectile and two nine-millimeter shell casings from the same area.
4

Ms. Lloyd was taken to the hospital, where doctors determined that she had

suffered gunshot wounds to her lower abdomen and back and was in shock due to

blood loss. A trauma surgeon performed an exploratory laparotomy to repair

Ms. Lloyd’s injuries. The surgeon testified that Ms. Lloyd could have died without

the surgery.

Minutes after officers arrived at the scene outside Mirror Lounge, a lookout

describing the shooter as “a black male with long dreads” was broadcast over police

radio. MPD Officer Jermaine Perez spotted an individual who matched the lookout

limping out of an alley around the corner from Mirror Lounge; the man was wearing

a camouflage jacket. Officer Perez did not see anyone else in the area who matched

the lookout. The officer noticed the man because he was limping and, in the officer’s

experience “with calls like this, individuals shooting at each other or possibly

shooting themselves in a shoot-out, they are limping.” Officer Perez followed the

man to the Howard University Hospital emergency room, where the man went into

a bathroom. While the man was in the bathroom, the lookout was updated to include

a camouflage jacket.

B. The Seizure of Mr. Drake’s Items

Additional officers arrived at the hospital and, after the man came out of the

bathroom, handcuffed the man, who identified himself as Mr. Drake. Officer Brian
5

O’Shea noticed blood on Mr. Drake’s clothing. The officers decided to take

Mr. Drake to a transport vehicle to continue their investigation. The officers tried to

walk Mr. Drake outside, but he was unable to walk on his own, had to be carried,

and eventually became limp. The officers took Mr. Drake back into the emergency

room, where doctors discovered a gunshot wound in Mr. Drake’s foot.

While Mr. Drake was being treated for his injury, Officer O’Shea returned to

the area of the shooting and looked for surveillance footage. He reviewed footage

from an establishment across the street from Mirror Lounge called Right Spot. The

footage showed a man at the crime scene moments after Ms. Lloyd was shot. Officer

O’Shea was “110 percent” confident that the man in the surveillance footage was

Mr. Drake.

After Officer O’Shea relayed to the officers at the hospital his confidence that

he had seen Mr. Drake on the surveillance footage, officers at the hospital seized

Mr. Drake’s clothing, shoes, and an iPhone from his coat pocket and arrested

Mr. Drake. The government later accessed the contents of Mr. Drake’s iPhone

pursuant to a search warrant.

Police and K-9 units searched Mr. Drake’s flight path for a gun but did not

find one.
6

C. The Motion to Suppress

Mr. Drake was charged with multiple offenses related to the shooting. Before

trial, he moved to suppress the items that were seized in the hospital, arguing that

officers unlawfully arrested him without probable cause when they stopped him as

he exited the restroom because (1) they handcuffed him, (2) they commanded him

to stop moving, (3) they asked whether he had a gun, and (4) one officer said over

the radio that police had “one in custody.”

The evidence at the suppression hearing was as follows. Officer O’Shea

testified that around 11:25 p.m. on January 23, 2020, Officer Webber and another

officer were near the 1900 block of 9th Street, NW, when they heard gunshots. The

two officers found a woman on the sidewalk in front of Mirror Lounge who had been

shot. Officer O’Shea, who was patrolling in a police cruiser, arrived about one

minute later. About three minutes after the gunshots, at 11:28 p.m., one of the

officers on the scene broadcast a lookout for “an African American male with dread

locks.” Officer Jermaine Perez, who was patrolling in another police cruiser, saw a

man matching the lookout walking out of an alley one block south and one block

east of Mirror Lounge. The individual was wearing a camouflage “bubble” jacket.

Officer Perez followed the man in his car and, at around 11:36 p.m., the man walked

into the emergency room at Howard University Hospital. At about 11:38 p.m.,
7

police broadcast an updated lookout stating that the suspect was wearing a

camouflage bubble jacket. Officer Perez requested backup over the radio.

Officer O’Shea arrived at the hospital at about 11:39 p.m. The individual

Officer Perez had been following came out of a bathroom and police handcuffed him

around 11:41 p.m. The man, who had blood on his clothing, identified himself as

Mr. Drake.

Rather than continuing their investigation from the public emergency room,

police decided to take Mr. Drake to a transport vehicle. As police began escorting

Mr. Drake from the hospital, he became limp. Officer O’Shea also noticed more

blood and began to suspect that Mr. Drake might be injured. Police checked

Mr. Drake for a gunshot wound but did not find one; they then took Mr. Drake back

into the emergency room. Once inside, police learned that Mr. Drake had been shot

in the foot.

Some of the officers remained with Mr. Drake while Officer O’Shea left the

hospital and went back to the 1900 block of 9th Street. There, Officer O’Shea

learned that surveillance footage from Right Spot had captured a portion of the

incident and showed the suspected shooter leaving the scene. After watching the

footage, Officer O’Shea told the officers who were still at the hospital with

Mr. Drake that he was “110 percent” sure that the suspect in the footage was
8

Mr. Drake. The officers at the hospital then decided to collect Mr. Drake’s property.

Shortly thereafter, at 12:15 a.m. on January 24, police began seizing Mr. Drake’s

property. Mr. Drake was formally arrested at 12:30 a.m.

The trial court orally denied Mr. Drake’s motion to suppress. The court

concluded that the police had reasonable, articulable suspicion to stop Mr. Drake at

the hospital in light of the fact that, before they stopped Mr. Drake, they were given

a lookout for a Black male with dreadlocks in a camouflage bubble jacket and

Mr. Drake matched that lookout. The trial court also concluded that the officers

lawfully patted Mr. Drake down because they had reason to believe that the person

who had committed the shooting was armed.

The trial court further determined that police had probable cause to

subsequently arrest Mr. Drake because he matched the lookout, police had

surveillance footage implicating Mr. Drake in the shooting, and Mr. Drake had a

gunshot wound to his foot. The court noted that officers did not seize anything from

Mr. Drake until after they had learned about the surveillance footage. The trial court

stated that “it was only after the officers had developed probable cause that the

officers then searched and seized Mr. Drake’s property” and that, given the timing
9

of the search of Mr. Drake’s property, it “would also qualify as a search incident to

arrest.” 1

D. The Trial

In addition to the evidence recounted above relating to the events of January

23-24, at trial the government presented evidence gleaned from Mr. Drake’s items.

The government presented evidence that the iPhone seized from Mr. Drake’s coat

pocket was “somewhere in the general geographic area of 1920 9th Street,

Northwest” between 11:27 p.m. and 11:40 p.m. on the night at issue, and that the

phone had placed or received eight phone calls to or from the same phone number

within that same time frame.

Among the data extracted from the iPhone was a September 16, 2019, text

message exchange in which the iPhone user arranged to purchase a handgun, stating,

among other things, “Tell em I want it,” “I want da 9,” and “Send address.” A

photograph of a black pistol with the word “Taurus” visible on the slide was included

among the text messages. An expert forensic firearms examiner examined the nine-

millimeter casings that were recovered from the crime scene. He also examined the

September 16, 2019, photograph of a black gun. The expert concluded that (1) the

1
The trial court stated that it would issue a “more comprehensive ruling on
the record at a later time,” but it does not appear to have done so.
10

two casings had been fired from the same gun, (2) the gun depicted in the photograph

was consistent with a Taurus G2c semiautomatic pistol, and (3) the cartridges could

have been fired by that same type of pistol. He acknowledged that the casings could

also have been fired from several other types of guns.

A DNA expert recovered DNA samples from Mr. Drake’s sweatpants and

sneakers, which had also tested presumptively positive for the presence of blood.

The DNA profile obtained from Mr. Drake’s sweatpants was consistent with a

mixture of two individuals, and the profile was “at least 129 octillion times more

likely to be observed if it originated from Fredirickia Lloyd and Nikko Drake than

if from Nikko Drake and one unknown, unrelated individual.” The DNA profile

from Mr. Drake’s sneakers was consistent with a mixture from two individuals,

including one male contributor. The DNA profile from the sneakers was “at least

45.4 octillion times more likely to be observed if it originated from Fredirickia Lloyd

and one unknown, unrelated individual than if from two, unknown, unrelated

individuals.” 2

The jury found Mr. Drake guilty of (1) aggravated assault while armed, in

violation of D.C. Code §§ 22-401.01, -4502; (2) possession of a firearm during a

2
The defense sought the admission of two exhibits used during
cross-examination of the government’s witnesses, but presented no additional
evidence or testimony.
11

crime of violence, in violation D.C. Code § 22-4504(b); (3) unlawful possession of

a firearm (prior conviction), in violation of D.C. Code § 22-4503(a)(1), (b)(1);

(4) possession of an unregistered firearm, in violation of D.C. Code § 7-2502.01(a);

and (5) unlawful possession of ammunition, in violation of D.C. Code

§ 7-2506.01(a)(3). 3 The trial court sentenced Mr. Drake to an aggregate term of 156

months of imprisonment to be followed by five years of supervised release.

This timely appeal followed.

Analysis

Mr. Drake challenges both the denial of his motion to suppress evidence and

the admission at trial of the evidence of his arrangements to purchase a gun four

months before the shooting. We find neither challenge meritorious and affirm

Mr. Drake’s convictions.

A. Denial of Suppression

Mr. Drake asserts that the trial court erred in denying suppression of his

clothing and cell phone, which police officers seized in the hospital. We disagree.

3
The jury acquitted Mr. Drake of assault with intent to kill while armed, one
count of possession of a firearm during a crime of violence, and carrying a dangerous
weapon.
12

1. Standard of Review

“When reviewing a trial court’s ruling on a motion to suppress, the facts and

all reasonable inferences therefrom must be viewed in favor of sustaining the trial

court ruling.” Young v. United States, 305 A.3d 402, 432 (D.C. 2023) (internal

quotation marks omitted). “We will not disturb the trial judge’s findings of fact

unless they lack evidentiary support in the record.” In re Z.B., 131 A.3d 351, 353

(D.C. 2016) (brackets, internal quotation marks, and ellipsis omitted). We review

de novo the trial court’s legal determinations, including whether a stop was

supported by reasonable, articulable suspicion. Id.; In re J.F.S., 300 A.3d 748, 755

(D.C. 2023).

2. Discussion

The Fourth Amendment prohibits “unreasonable” searches and seizures. U.S.

Const. amend. IV. Consistent with this guarantee, a police officer may conduct a

brief investigatory stop of an individual if the officer is able to point to “specific and

articulable facts which, taken together with rational inferences from those facts,”

support the conclusion that “criminal activity may be afoot[.]” Terry v. Ohio, 392

U.S. 1, 21, 30 (1968); see Brown v. United States, __ A.3d __, No. 22-CF-0520,

2024 WL 1665328, at *3 (D.C. Apr. 18, 2024). “The requirement of articulable

suspicion is not an onerous one.” Jackson v. United States, 805 A.2d 979, 988-89
13

(D.C. 2002) (internal quotation marks omitted). Rather, the level of suspicion

necessary to support a Terry stop is “considerably less than proof of wrongdoing by

a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7 (1989).

“A Terry seizure . . . involves a more temporary detention, designed to last

only until a preliminary investigation either generates probable cause or results in

the release of the suspect.” In re M.E.B., 638 A.2d 1123, 1126 (D.C. 1993). “[A]n

arrest,” by contrast, “is effected when the police have made a determination to charge

the suspect with a criminal offense and custody is maintained to permit the arrestee

to be formally charged and brought before the court.” Id. “[W]hen officers subject

a detained suspect to a greater restraint on his liberty than is permissible in a

legitimate Terry seizure, articulable suspicion is not sufficient, and the Constitution

requires a showing of probable cause.” Womack v. United States, 673 A.2d 603, 608

(D.C. 1996).

“The test for judging the existence of probable cause is whether a reasonably

prudent police officer, considering the total circumstances confronting him and

drawing from his experience, would be warranted in the belief that an offense has

been or is being committed.” Ball v. United States, 803 A.2d 971, 974 (D.C. 2002)

(alterations and quotation marks omitted). Probable cause “is a flexible, common-

sense standard that does not demand any showing that the officer’s belief that he has
14

witnessed criminal behavior be correct or more likely true than false.” Id. (internal

brackets and quotation marks omitted).

Police officers may also conduct a warrantless search of a person incident to

that person’s arrest. Millet v. United States, 977 A.2d 932, 935-36 (D.C. 2009).

Such a search “may precede the actual arrest if probable cause exists, independent

of the search, to justify the arrest, and if the arrest follows quickly on the heels of

the search.” Id. at 935 (internal quotation marks omitted).

In arguing for suppression of his cell phone and clothing, Mr. Drake focused

below and focuses now on his detention when he exited the restroom at the hospital.

Mr. Drake asserts that that detention was not a brief investigatory stop that would

have required only reasonable, articulable suspicion, see Katz v. District of

Columbia, 285 A.3d 1289, 1302 (D.C. 2022), but “was effectively converted to an

arrest” requiring probable cause because he was handcuffed and transported toward

a police cruiser. The evidence that Mr. Drake sought to suppress was not seized

during this first detention, but the detention’s legality is relevant because, but for it,

Mr. Drake presumably would not have remained in the hospital, leading to his

subsequent arrest and the concomitant seizure of his items. See Brown, 2024 WL

1665328, at *5 (“We cannot simply bypass the legality of the pocket search because

it appears to be a step in the causal chain that led to Brown’s gun being discovered.”).
15

We believe, and Mr. Drake does not appear to contest, that the initial stop of

Mr. Drake when he exited the restroom was a proper investigatory detention

supported by reasonable, articulable suspicion. A stop based on an officer’s lookout

description “is ‘not an arrest, but rather a brief detention designed to give the

undercover officer an opportunity to advise the arrest team if they had apprehended

the perpetrators.’” Carpenter v. United States, 144 A.3d 1141, 1148 (D.C. 2016)

(quoting King v. United States, 550 A.2d 348, 357 (D.C. 1988)). By the time of that

stop, police officers had information that Mr. Drake matched the shooter’s

description (a Black male with long dreads wearing a camouflage jacket) and an

officer had seen Mr. Drake walking out of an alley around the corner from Mirror

Lounge within three minutes of the shooting.

We are not persuaded that this initial stop impermissibly morphed into an

arrest. 4 See Brown, 2024 WL 1665328, at *4 (“To pass Fourth Amendment muster,

4
In its oral ruling, the trial court did not explain why it viewed the initial
detention of Mr. Drake as an investigatory stop rather than an arrest, and, as noted,
the court has not entered a more comprehensive ruling. We nonetheless find it
appropriate to decide the issue because (1) the parties’ arguments were before the
trial court, the government specifically argued at the suppression hearing that
handcuffing and transporting Mr. Drake was appropriate, and the court expressly
noted that it had considered all of the pleadings, including Mr. Drake’s motion,
which raised the conversion-to-arrest argument; (2) after having considered the
parties’ positions, the court characterized the initial detention as a “stop”; (3) the
facts have been fully developed; (4) the question has been fully briefed on appeal;
and (5) whether the detention was an investigatory stop or an arrest is an issue of
16

a Terry stop and frisk must be justified at its inception and also must remain within

the scope of its justification.”). In light of the violent nature of the suspected offense

and the fact that officers had not yet secured the gun used in the shooting, the officers

did not exceed the scope of a permissible investigatory stop by handcuffing

Mr. Drake. See, e.g., id. (“Officers may handcuff a suspect during a Terry stop if

‘some specific fact or circumstance . . . support[s] a reasonable belief that the use of

handcuffs [i]s necessary.’” (quoting Katz, 285 A.3d at 1303) (alterations in Brown));

id. (handcuffing during a Terry stop permissible when an individual is “suspected of

a violent armed offense and there is reason to believe they are presently armed”);

Pridgen v. United States, 134 A.3d 297, 301 (D.C. 2016) (stop-and-frisk “may entail

the use of handcuffs to restrain the suspect”); White v. United States, 68 A.3d 271,

283 (D.C. 2013) (police may place suspect in handcuffs to ensure their safety during

a Terry stop); Hicks v. United States, 730 A.2d 657, 660-61 (D.C. 1999) (police did

not transform investigative detention of robbery suspect into arrest when they

approached with guns drawn, frisked suspect, and handcuffed him); Womack, 673

A.2d at 609-10 (“[T]he use of handcuffs was justified where, as here, the crime of

law that this court reviews de novo. Cf. Jackson, 805 A.2d at 985 (“Whether a
seizure has occurred for Fourth Amendment purposes is a question of law which this
court reviews de novo, deferring to the trial court’s factual findings, unless clearly
erroneous.”).
17

which the defendant was suspected was a violent one and the defendant was reported

to have been armed.”).

Nor did the brief attempt to escort Mr. Drake away from the emergency area

of the hospital convert the investigatory stop into an arrest. See In re M.E.B., 638

A.2d at 1127 (handcuffing and transporting the suspect for about five to ten minutes

for identification procedures was reasonable and “did not convert the custody status

of appellant from a ‘detention for investigation’ to a ‘formal arrest’”); see also In re

I.J., 906 A.2d 249, 260 (D.C. 2006) (“Should the circumstances so dictate, a person

may be seized—stopped, frisked, handcuffed, detained, transported in a police

vehicle to another location (including a police station) and briefly questioned—so as

to allow a Terry investigation on reasonable articulable suspicion without the

encounter being deemed an arrest, within the meaning of the Fourth Amendment,

requiring probable cause.”); Womack, 673 A.2d at 606, 610 (handcuffing and taking

suspect outside of his house to the porch did not convert an investigatory stop into

an arrest).

After this initial investigatory stop, officers took Mr. Drake back to the

emergency room for treatment of his injuries, and shortly thereafter officers seized

the evidence at issue. By that time, the officers had heard that Officer O’Shea was

“110 percent” sure that surveillance footage showed Mr. Drake at the scene of the
18

shooting and had learned that Mr. Drake had been shot in his foot. This information,

combined with the information that officers already knew—that Mr. Drake matched

the shooter’s description and an officer had seen Mr. Drake walking out of an alley

around the corner from Mirror Lounge within three minutes of the shooting—

established probable cause to believe that Mr. Drake had committed an offense.

Mr. Drake argues that this information was “at least equally indicative of a victim as

it [was] a perpetrator.” But probable cause does not require that officers’ belief is

“correct or more likely true than false.” Ball, 803 A.2d at 974.

Once officers had probable cause to believe Mr. Drake had committed an

offense, they were permitted to arrest him without a warrant. See Collins v. Virginia,

584 U.S. 586, 595 (2018) (“[I]t is a settled rule that warrantless arrests in public

places are valid.” (internal quotation marks omitted)). And once officers had

probable cause to arrest Mr. Drake, they were permitted to search items incident to

that arrest. See Ford v. United States, 245 A.3d 977, 986 (D.C. 2021) (probable

cause to arrest justifies a search incident to arrest); Ellison v. United States, 238 A.3d

944, 950 (D.C. 2020) (“[A]side from an arrest supported by probable cause, ‘a search

incident to the arrest requires no additional justification.’” (quoting United States v.

Robinson, 414 U.S. 218, 235 (1973)). That is so even if the search of the evidence
19

came slightly before the arrest itself. See United States v. Lewis, 147 A.3d 236,

240-43 (D.C. 2016) (en banc); Millet, 977 A.2d at 935. 5

Accordingly, we find no error in the trial court’s denial of Mr. Drake’s motion

to suppress the evidence seized in the emergency room.

5
“[P]olice may search incident to arrest only the space within an arrestee’s
‘“immediate control,”’ meaning ‘the area from within which he might gain
possession of a weapon or destructible evidence.’” Arizona v. Gant, 556 U.S. 332,
335 (2009) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)) (internal
quotation marks omitted). Mr. Drake does not argue that his belongings in the
hospital room were not within his immediate control or, more generally, that police
officers could not conduct a search incident to arrest if they had probable cause to
arrest him, and so we do not reach the issue. We note, however, that body-worn
camera footage introduced as an exhibit at the suppression hearing shows
Mr. Drake’s belongings piled on the hospital room floor near his gurney. We have
held that police officers permissibly searched a suspect’s jacket incident to arrest
where the jacket was nearby but the suspect was in police control, the suspect was
out of immediate range of the jacket, and the jacket was in the actual but not
exclusive control of the officers. Blackmon v. United States, 835 A.2d 1070,
1075-76 (D.C. 2003). Similarly, we have held that police permissibly seized
incident to arrest a hospital bag containing the suspect’s clothing that was underneath
the suspect’s hospital gurney because the suspect was neither handcuffed nor within
the secure grip of a police officer and could have “reach[ed] the bag with a lunge if
he had wanted to do so.” Holt v. United States, 675 A.2d 474, 481 (D.C. 1996). To
be sure, Blackmon and Holt pre-date Gant, but they post-date Chimel, which
established the rule that Gant applied in the context of vehicles.
20

B. Admission of Evidence

Mr. Drake contends that the trial court erred in admitting the text message

evidence indicating that had sought to purchase a gun about four months before the

shooting. We are not persuaded.

1. Standard of Review

“We review a trial court’s evidentiary decisions for abuse of discretion, and

in doing so, broadly defer to the trial court due to its familiarity with the details of

the case and its greater experience in evidentiary matters.” (Markus) Johnson v.

United States, 960 A.2d 281, 294 (D.C. 2008) (internal quotation marks omitted).

“This deference particularly applies where the trial court must consider the relevance

and potential prejudice of the evidence.” Young, 305 A.3d at 434; see (William)

Johnson v. United States, 683 A.2d 1087, 1095 (D.C. 1996) (en banc) (“[W]eighing

of evidence for relevance and potential prejudice is quintessentially a discretionary

function of the trial court, and we owe a great degree of deference to its decision.”).

2. Additional Background

Before trial, the government provided notice of its intent to introduce the

September 2019 text messages and a photograph from Mr. Drake’s cell phone in

which the user of the phone made arrangements to acquire a handgun. The
21

government argued that the messages and photograph were evidence of uncharged

criminal conduct but that they were admissible under (William) Johnson, 683 A.2d

1087, because “the firearm Mr. Drake arranged to purchase just four months before

the shooting is consistent with the cartridge casings that were recovered from the

scene of the shooting” and thus the evidence was “direct and substantial proof that

[Mr. Drake] shot Ms. Lloyd with a 9mm firearm on January 23, 2020.” Mr. Drake

opposed admission of the evidence on the ground that it was neither direct and

substantial proof of the charged crime, nor closely intertwined with the evidence of

the charged crime, nor necessary to place the charged crime in an understandable

context. See (William) Johnson, 683 A.2d at 1098. Specifically, Mr. Drake asserted

that the messages did not show that he actually purchased the gun, were not

temporally or causally connected to the shooting, did not add to the context of the

crime, and were more prejudicial than probative.

The trial court noted that the text messages and photograph appeared to be

“just evidence” rather than “other crimes” evidence because Mr. Drake was “simply

having a conversation about the purchase of a gun.” The court observed, however,

that it could proceed by assuming that the evidence was Johnson “other crimes”

evidence. The court ruled that the evidence was “direct and substantial proof of a

crime that on this prior date about four months prior to the shooting, . . . there were

text messages between Mr. Drake and an individual . . . discussing the purchase
22

of . . . a Taurus 9-millimeter semiautomatic firearm,” noting that “on the scene, there

were two 9-millimeter cartridge cases that were recovered.” The court observed that

Mr. Drake’s argument that the messages did not show a completed purchase of a

firearm went to the weight, not the admissibility, of the evidence. The court also

stated that the evidence was probative and not overly prejudicial.

3. Discussion

Under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964), evidence of “other

crimes” is not admissible to prove general criminal propensity, but other-crimes

evidence can be admitted for another “substantial, legitimate purpose.” Id. at 89-90;

see Bellamy v. United States, 296 A.3d 909, 916 (D.C. 2023), cert. denied, 144 S.

Ct. 368 (2023); Austin v. United States, 292 A.3d 763, 776 (D.C. 2023) (“Evidence

that a defendant has committed another crime is generally inadmissible ‘unless that

evidence can be admitted for some substantial, legitimate purpose.’” (quoting Drew,

331 F.2d at 90)). Such a purpose includes, but is not limited to, proof of (1) motive,

(2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan, and

(5) identity. Drew, 331 F.2d at 90 & n.10; see Bellamy, 296 A.3d at 916. “[I]n order

to be characterized as Drew-type evidence, the acts portrayed must be minimally in

the nature of a criminal offense.” Wheeler v. United States, 470 A.2d 761, 769 (D.C.

1983); see In re Richardson, 273 A.3d 342, 350-51 (D.C. 2022) (applying “Drew’s
23

strictures” to admission of voicemails the defendant had left “because they were

‘minimally in the nature of a criminal offense’ given that they were threatening”).

For Drew-type evidence, the prosecution must “establish, by clear and convincing

evidence, that the other crime occurred and that the defendant committed it.”

(William) Johnson, 683 A.2d at 1093.

In (William) Johnson, we explained that the Drew strictures “do[ ] not apply

where [other-acts] evidence: (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.” 683 A.2d at 1098; see id.

at 1090 (Drew “does not apply to evidence of acts, including criminal conduct, that

directly proves the crime charged”); accord Haye v. United States, 67 A.3d 1025,

1031-32 (D.C. 2013). Thus, evidence of uncharged acts is admissible “when

relevant to explain the immediate circumstances surrounding the offense charged.”

Toliver v. United States, 468 A.2d 958, 960 (D.C. 1983). The central inquiry is

whether the “evidence of incidental, uncharged criminal conduct is inextricably

intertwined with evidence of the charged offense.” Id. at 961. “Evidence of the

contemporaneous criminal conduct is not ‘other crimes’ evidence.” Id.

“Both Drew and Johnson evidence must ‘be excluded if its probative value is

substantially outweighed by . . . unfair prejudice.’” Bellamy, 296 A.3d at 917
24

(quoting (William) Johnson, 683 A.2d at 1099) (alteration in Bellamy). Thus, “if

relevant evidence could theoretically support additional charges but is not subject to

Drew analysis because the other crimes are not independent of the crime charged

and the evidence is direct proof of the crime charged, it must surmount only the final

hurdle that all evidence of whatever sort must clear, i.e., the evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice it poses.” (William) Johnson, 683 A.2d at 1101.

Accordingly, we consider, under abuse-of-discretion review, whether the

text-message evidence was independent of or direct and substantial proof of the

charged offenses, and, if the latter, whether any unfair prejudice to Mr. Drake from

the evidence substantially outweighed its probative value.

We conclude that the trial court was within its discretion in determining that

evidence of Mr. Drake’s efforts four months before the shooting to purchase a gun

of the same type used in the shooting was direct and substantial proof that Mr. Drake

possessed and used a gun on the night of the shooting. Stated in the inverse, evidence

about Mr. Drake’s arrangements to buy a gun was certainly not independent of the

charges that he had a gun of the same type on the night of the shooting. Accordingly,

the government need not have provided a legitimate non-propensity purpose for the

evidence nor have established by clear and convincing evidence that the act occurred
25

and that Mr. Drake committed it. Rather, the only “hurdle” for the evidence was

that its probative value could not be substantially outweighed by the risk of unfair

prejudice. Id. at 1101.

We likewise discern no abuse of discretion in the trial court’s balancing of

probative value against the risk of unfair prejudice. It is true that the messages do

not establish that Mr. Drake in fact purchased a gun. While this in part goes to the

weight of the evidence, not its admissibility, see Stewart v. United States, 881 A.2d

1100, 1111 (D.C. 2005) (“[T]he absence of a definitive link to the crime or the

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

speak to the evidence’s probative value. But the text messages showing Mr. Drake’s

specific efforts to obtain a gun were undoubtedly at least somewhat probative of his

later possession and use of a similar gun. Cf. (Carlos) Johnson v. United States, 290

A.3d 500, 515 (D.C. 2023) (social media videos showing the defendant in physical

possession of a similar gun as that involved in the offense “established ‘only a

reasonable probability, and not a certainty,’” that the defendant recently possessed

the gun, “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’” (quoting

Busey v. United States, 747 A.2d 1153, 1165 (D.C. 2000) (emphasis omitted)));

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
26

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.”).

Moreover, in the balancing test, to warrant exclusion, the probative value must

be substantially outweighed by the danger of unfair prejudice. See Ruffin v. United

States, 219 A.3d 997, 1010 (D.C. 2019). That is not the case here. The evidence

“was not inflammatory evidence calculated to appeal to the jury’s emotions and

prejudice the jury against” Mr. Drake. Id. at 1011; see Lewis v. United States, 263

A.3d 1049, 1065 (D.C. 2021) (“‘[U]nfair prejudice’ means an undue tendency to

suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” (internal quotation marks omitted)).

Accordingly, we conclude that the trial court was within its discretion in

admitting the text messages and photograph as direct and substantial proof of the

charged offenses and determining that they were not substantially more unfairly

prejudicial than probative.

Conclusion

For the foregoing reasons, we affirm the judgment of convictions.

So ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9975486. Public record. Not legal advice.