Bailey v. United States
| Decision Date | 19 August 2021 |
| Docket Number | 17-CF-1204,21-CO-89 |
| Parties | Steven M. Bailey, Appellant v. United States, Appellee. |
| Court | D.C. Court of Appeals |
Submitted December 2, 2019
Appeals from the Superior Court of the District of Columbia (CF3-3986-16) (Hon. Marisa J. Demeo, Trial Judge)
Mindy Daniels was on the brief for appellant.
Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, Rizwan Qureshi, and Bryan H. Han, Assistant United States Attorneys were on the brief for appellee.
Before Glickman, Thompson, and Easterly, Associate Judges.
EASTERLY ASSOCIATE JUDGE.
Appellant Steven Bailey was convicted of one count of conspiracy to commit a crime of violence (robbery), one count of robbery with a sentence enhancement for being armed or having a dangerous weapon readily available, two counts of assault with a dangerous weapon ("ADW"), and three counts of possession of a firearm during a crime of violence ("PFCV"). On appeal, he challenges the sufficiency of the evidence to support all of his convictions and also argues certain of his convictions should be merged. For the reasons set forth in Part II.B., a majority of the division reverses Mr. Bailey's conviction for conspiracy to commit a crime of violence and remands with instructions to enter in its place a judgment of guilt for conspiracy to commit a nonviolent criminal offense. For the reasons set forth in Part II.C., the division unanimously reverses Mr. Bailey's convictions for ADW and PFCV and the "while armed" sentencing enhancement of his robbery conviction. And as noted in Part II.D., for the reasons set forth in the separate opinions of two members of the division, the division affirms Mr. Bailey's conviction for robbery. Given this resolution, we need not address Mr. Bailey's merger arguments.
The government's first attempt to convict Mr. Bailey ended with a mistrial when the jury was unable to reach a verdict. The factual narrative below is based on the testimony and evidence presented at Mr. Bailey's retrial.
Mr. Bailey initially made contact with complainant Rashida Reid through OfferUp, a mobile device app that connects buyers and sellers. Ms. Reid was selling a limited commodity item, a pair of Nike Air Jordan 11 basketball shoes, that Mr. Bailey expressed an interest in purchasing for $325. They arranged to meet in the early afternoon at a location in a residential area of southeast D.C. selected by Mr. Bailey. Ms. Reid drove to the meeting place with her friend, Alexus Jones. While she drove, Ms. Reid talked to Mr. Bailey on the phone, and when she reached the location she could see him speaking to her. Mr. Bailey was standing with two other men-Mr. Bailey's brother, Zackary Jackson, and a third man who was never identified. After Mr. Bailey's phone call with Ms. Reid ended, Mr. Bailey turned to talk to one of the other men, [1] pulled money out of his pocket, and gestured toward Ms. Reid as if he did not have enough money to pay her. (Ms. Jones recalled that she heard Mr. Bailey say aloud, "I need the money.") Mr. Bailey and the man he was speaking to "exchanged" something that both Ms. Reid and Ms. Jones thought "was money," and Mr. Bailey "placed it in his back pocket."
Mr. Bailey walked up to the driver side of Ms. Reid's car, and he and Ms. Reid spoke through the rolled down window. Ms. Reid testified that Mr. Bailey "calm[ly]" asked to see the shoes to confirm they were authentic, while Ms. Jones testified that Ms. Reid offered to show him the shoes. Ms. Reid placed the matchbox-design shoebox in her lap and removed its outer sleeve. According to Ms. Reid, Mr. Bailey observed the shoes "[f]or about a second or two" and told her they looked real. Then, in an "almost simultaneous" exchange, he "snatche[d] the box" from Ms. Reid and "thr[ew] the money on to [her] lap."[2] He "walk[ed] off pretty fast," with the shoes in the box, but without the sleeve, and did not return.[3]
The money Mr. Bailey gave Ms. Reid as payment was counterfeit. According to the government's expert, the quality was "good"; to "an individual who is not trained to know what to look for," the bills would have "appear[ed] as though[] they [we]re genuine." But as it happened, Ms. Reid and Ms. Jones had the requisite training, both having worked as revenue auditors for a casino. According to Ms. Reid, she immediately realized that the money was "fake."[4]
Ms. Reid called out to Mr. Bailey that the money was fake. Mr. Bailey, who by this time was some distance from the car, responded that the money was not fake and continued to walk away while Ms. Reid drove slowly after him. According to Ms. Reid, Mr. Bailey and the two other men "started saying 'roll out, '" which she understood as a directive to her and Ms. Jones to "leave." Although Ms. Jones only recalled hearing the two other men yell "roll out," she also interpreted this as the men "telling [the women] that [they] needed to leave." Both women observed Mr. Bailey walking faster than the other two men such that they were behind him, Ms. Jones estimated, by a distance that expanded from six feet to ten-to-twelve feet. Ms. Reid then saw the unidentified man, who had stopped walking and was "just stand[ing]" and looking at her. The man was moving his hand in his pocket, which Ms. Reid interpreted as a threatening message to her that he had a gun. Ms. Reid decided that continuing to follow the men was "not worth it." As Ms. Reid turned the corner to drive away, Ms. Jones looked through the back windshield and saw the unidentified man step behind their car, pull a silver gun from his waistline, and point it at them. Ms. Jones explained that at this point Mr. Bailey was ahead of the car on the left side while the two other men were behind the car. Ms. Jones yelled "gun," and, although Ms. Reid did not see the gun herself, she "floored it" to get away.
Ms. Reid and Ms. Jones immediately reported the incident to police officers they encountered down the street. A few days later, the Gun Recovery Unit of the Metropolitan Police Department encountered a group of young men including Mr. Jackson. When he tried to run away, the police chased and caught him. The police recovered a silver revolver in the vicinity of his flight path, prompting his arrest.[5]Pursuant to his arrest, the police seized Mr. Jackson's cell phone, from which they extracted a group text chat between Mr. Bailey, Mr. Jackson, and several other individuals. In the days leading up to his encounter with Ms. Reid, Mr. Bailey and his friends expressed their desire to buy Jordan 11 shoes, either by getting lottery tickets allowing them to purchase the shoes from a retail store or by buying the shoes from "a plug," i.e., "a person who can get you what you want." On the morning of the incident, after Mr. Bailey had arranged his meeting with Ms. Reid through OfferUp, he told the text group, [6] Another member of the chat responded that the seller would "tell [the police]" what Mr. Bailey looked like. Mr. Bailey concluded the exchange with a profanity. Later that day, Mr. Bailey sent to the text group a picture of the Jordan 11 shoes with the caption, "Gang shit . . . ."
After hearing this evidence, the jury at Mr. Bailey's second trial found him guilty of one count of conspiracy to commit robbery, one count of robbery while armed, two counts of assault with a dangerous weapon, and three counts of possession of a firearm during a crime of violence. This appeal followed.
Mr. Bailey subsequently moved in the trial court for compassionate release. See D.C. Code § 24-403.04 (2012 Repl. & 2021 Supp.). The trial court issued an indicative order pursuant to Superior Court Rule of Criminal Procedure 37, stating its intent to grant the motion upon remand from this court. We remanded the case on Mr. Bailey's unopposed motion, whereupon the trial court altered Mr. Bailey's sentence, and Mr. Bailey filed a new notice of appeal and moved to reinstate this appeal. We granted the motion and consolidated the appeals.
The government argued at trial that Mr. Bailey did "more than commit[] a robbery"; "[h]e conspired to commit a robbery while armed." And because he was a member of such a conspiracy, he was criminally liable for the reasonably foreseeable weapon-related offenses of his co-conspirators. Analyzing Mr. Bailey's challenge to the sufficiency of the evidence to support these convictions, we conclude that the government only proved beyond a reasonable doubt Mr. Bailey's guilt of (1) conspiracy to commit theft by deception and (2) robbery.
"We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to sustaining the judgment, and making no distinction between direct and circumstantial evidence." Fitzgerald v. United States, 228 A.3d 429, 436 (D.C. 2020) (citations, brackets, and internal quotation marks omitted). When the evidence, viewed in this manner, "is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime, then the evidence is insufficient and we must say so." Williams v. United States, 113 A.3d 554, 560 (D.C. 2015) (internal quotation marks omitted).
Although "the government's evidence need not negate every possible inference of innocence to support a guilty verdict," Campos-Alvarez v. United States, 16 A.3d 954, 964 (D.C. 2011), "[t]he evidence must support an inference, rather than mere speculation, as to each element of an offense." Lewis v. United States 767 A.2d 219, 222 (D.C. 2001) (internal quotation marks omitted); see also Rivas v. United...
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