In re T.M., No. 14–FS–199

• Docket Nº: No. 14–FS–199
• Citation: 155 A.3d 400
• Case Date: March 16, 2017
• Court: Court of Appeals of Columbia District

155 A.3d 400

IN RE T.M., Appellant.

No. 14–FS–199

District of Columbia Court of Appeals.

Argued November 4, 2015
Decided March 16, 2017

Claire H. Pavlovic, Public Defender Service, with whom James Klein and Tejal Kothari, Public Defender Service, were on the brief, for appellant.

John J. Woykovsky, Office of the Attorney General, with whom Rosalyn Calbert Groce, Deputy Solicitor General, and John W. Donovan, Office of the General Counsel, were on the brief, for appellee.

Before Washington, Chief Judge, Beckwith, Associate Judge, and Reid, Senior Judge.

155 A.3d 402

Washington, Chief Judge:

Following a bench trial before the Honorable Florence Y. Pan, appellant T.M. was found delinquent of several charges related to the shooting of seventeen-year-old J.W. On appeal, appellant challenges the sufficiency of the evidence to support her conspiracy conviction, and for the first time, raises a facial challenge to the constitutionality of D.C.'s carrying a pistol statute, D.C. Code § 22–4504(a) (2013), relying primarily on the Supreme Court's decision in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and the D.C. District Court's decision in Palmer v. District of Columbia , 59 F.Supp.3d 173 (D.D.C. 2014). We affirm.

I.

On August 30, 2013, T.M. and a group of more than ten teenagers approached J.W., A.L., B.W., L.L., and S.G. in an alley behind Calvin Coolidge High School following a football game. While in the alley, B.W., J.W., and A.L. identified T.M., who also attended Coolidge High School, as a member of the group of teenagers who approached them. The girls (with the exception of S.G.) testified that they knew T.M. from a prior physical altercation with J.W. the year prior. J.W., A.L., B.W., L.L., and S.G. proceeded to smoke marijuana in the alley and walk towards the Safeway on Georgia Avenue. The group of ten or more teenagers, including T.M., followed them down the alley. A.L. testified that she saw T.M. holding a gun, and "could just tell ... there was something funny." She also testified that when she turned in the alley, she saw T.M. with her arms extended and pointing the gun towards them, but slightly down to the ground. A.L. and B.W. testified that before the gun was fired, they heard an unidentified male state, "Don't do it in the light" or "T., if you're going to shoot it, get out of the light." As the girls crossed the intersection of Tuckerman and Seventh Street, they heard a single gunshot and saw J.W. fall to the ground. The bullet penetrated both of J.W.'s legs. A.L., B.W., and S.G. fled to call the police while L.L. remained with the wounded J.W. The group of teenagers with whom T.M. was seen fled the scene as well. An ambulance arrived and transported J.W. to Washington Hospital Center, where she received medical treatment for what doctors identified as a broken right leg.

As a result of this incident, T.M. was charged by a twenty-two-count amended indictment with: (1) two counts of attempted first-degree murder while armed;¹ (2) five counts of attempted second-degree murder while armed;² (3) two counts of assault with intent to kill while armed ("AWIKWA");³ (4) two counts of assault with intent to commit a murder while armed ("AWIMWA");⁴ (5) one count of aggravated assault while armed (AAWA);⁵ (6) four counts of attempted AAWA;⁶ (7) one count assault with significant bodily injury ("ASBI");⁷ (8) one count of conspiracy to commit murder or assault with a dangerous weapon;⁸ (9) one count of felony

155 A.3d 403

carrying a pistol ("CP");⁹ (10) one count of possession of an unregistered firearm ("UF");¹⁰ (11) one count of unlawful possession of ammunition;¹¹ and (12) one count of discharge of a weapon.¹² At the close of trial, appellant's counsel moved for judgment of acquittal, which was granted as to the attempted first-degree murder while armed, attempted second-degree murder while armed, AWIKWA, and AWIMWA charges, because the government failed to establish the element of intent. On October 31, 2013, the Honorable Florence Y. Pan found appellant delinquent on all remaining counts. On February 5, 2014, appellant was sentenced by the trial court to one year probation. Appellant timely appealed.

II.

A. Sufficiency of the Evidence

Appellant argues that the evidence presented at trial was insufficient to sustain her conviction for conspiracy to commit murder or assault with a dangerous weapon because the government failed to prove that an agreement was formed between T.M. and the other members of the group present at the scene of the incident.

This court reviews a challenge for sufficiency of the evidence "in the light most favorable to the government, giving full play to the right of the [fact finder] to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence." Gathy v. United States , 754 A.2d 912, 917 (D.C. 2000) (citation omitted). "The evidence is insufficient when the government produces no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Bolanos v. United States , 938 A.2d 672, 677 (D.C. 2007) (citation and internal quotation omitted).

The conspiracy statute, D.C. Code § 22–1805a(a)(1),¹³ requires the government to prove that appellant: (1) made "an agreement between [one] or more people to commit a criminal offense; (2) knowing[ly] and voluntar[il]y participat[ed] in the agreement ... with the intent to commit a criminal objective; and (3) commission[ed] in furtherance of the conspiracy at least one overt act ... during the conspiracy." Campos–Alvarez v. United States , 16 A.3d 954, 965 (D.C. 2011).

In this case, the trial court drew the following inferences from the government's evidence, stating:

It can be inferred from the words that were used that there was some prior discussion of what was going to happen and that the group that the respondent allegedly was with knew what she was doing based on the statements that were made and then advice was given as to how she should commit the act.

Referencing the advice given to T.M. by the unidentified male at the scene, the trial court went on to state:

155 A.3d 404

I think that this clearly wasn't her acting alone in that she arrived with a group of people, received encouragement and advice from that group of people. They clearly had been discussing it before she fired the gun, based on the statements that were made, and then they all fled afterward.

Drawing from these inferences and the evidence presented at trial, the trial court found that appellant's conduct satisfied the elements of conspiracy.

Appellant alleges that the trial court relied on nothing more than speculation to satisfy the requirements of D.C. Code § 22–1805a because the evidence presented at trial was insufficient to prove T.M. knowingly participated in an agreement to accomplish the assault against J.W., a necessary element of conspiracy. Notwithstanding this contention, we are satisfied that the inferences drawn by the trial court were reasonable deductions supported by the record. In reaching this conclusion, we look instructively to Mitchell v. United States , 985 A.2d 1125, 1135 (D.C. 2009), and McCoy v. United States , 890 A.2d 204, 214 (D.C. 2006).

In Mitchell , this court concluded that where appellants simultaneously emerged from behind a dumpster while openly wielding guns and followed the victims down the street on foot, there was no need for direct evidence of agreement and the trial court could permissibly infer from "a development and collocation of circumstances" that appellants formed an agreement to murder the victims. Mitchell , 985 A.2d at 1135 (citation and internal quotation omitted). Similarly, in McCoy , we held where appellants intentionally followed the victim's car, and one appellant shouted instructions at the other to drive the car in close range of the victim's car, the jury could have reasonably found an agreement existed between the appellants to carry out the shooting. McCoy , 890 A.2d at 211, 214.

In this case, the trial court was permitted to draw the same inferences from events preceding the shooting to support her finding of conspiracy. While "mere presence or awareness is insufficient to make out a conviction for ... conspiracy," id. at 211, the trial court in this case found that T.M. arrived in the alley with a large group of teenagers, waited for J.W. and her friends, and promptly followed them down the alley. The evidence also showed that T.M. was openly carrying a weapon when she was seen amongst the group of teenagers and at least one member of the group continued to follow her and advise her on how to carry out the shooting. The statement made by the unidentified male member of the group, advising T.M. not to "do it" in the light, could reasonably indicate that the individual had knowledge of T.M.'s plan to shoot at J.W. and her friends, and intended to help T.M. carry out the overt act without detection. Much like the instruction given to the appellant in McCoy , the advice given to T.M. moments before the shooting could reasonably...