Parker v. United States

• Docket Number: 19-CF-1168
• Decision Date: 03 August 2023
• Citation: 298 A.3d 785
• Parties: Victor PARKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

298 A.3d 785

Victor PARKER, Appellant,

v.UNITED STATES, Appellee.

No. 19-CF-1168

District of Columbia Court of Appeals.

Argued May 31, 2023

Decided August 3, 2023

Daniel J. Hay, with whom Jeffrey T. Green, Madeleine Joseph, Washington, DC, and Christin M. Sullivan Miller were on the brief, for appellant.

Katherine M. Kelly, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Elizabeth H. Danello, and Chimnomnso N. Kalu, Assistant United States Attorneys, were on the brief, for appellee.

Before Deahl and Shanker, Associate Judges, and Fisher, Senior Judge.

Deahl, Associate Judge:

Victor Parker challenges his convictions for robbery while armed and possession of a firearm during a crime of violence (PFCV). Those convictions stem from an incident in which two individuals, one of whom was armed, approached and robbed a pair of roommates at night. Police found Parker with proceeds from that robbery about half an hour later, after he and another person bailed out of a car after a police chase. On appeal, Parker challenges the sufficiency of the evidence to prove he participated in the robbery. Even if the evidence was sufficient to prove that, he further argues that the evidence was insufficient to show he was the gunman, or that he aided and abetted the gunman, so that his PFCV convictions and the "while armed" enhancements to his robbery convictions should be vacated.

We conclude there was sufficient evidence to prove that Parker participated in the robbery, but insufficient evidence to sustain his PFCV convictions and the "while armed" enhancements. We therefore reverse Parker's PFCV and robbery while armed convictions, and remand for the trial court to enter judgments of conviction on two counts of the lesser-included offense of robbery.

I.

Brandon Stepp and Stacey Kelly were walking home one night after "a couple of beers" that left Stepp a bit tipsy. According to Stepp's testimony—Kelly did not testify—the pair were on a dimly lit street at around 1:15 a.m. when two men approached them from behind. One of the men "bear-hugged" Kelly, while the other ordered Stepp to "get on the ground." Stepp and Kelly were separated as each of the robbers focused on one of them. The robber who focused on Stepp told him to lie face down on the ground and lightly slapped him on the back of the head a few times to encourage him to do so. As he was being robbed, Stepp thought he saw the man who grabbed Kelly pointing a gun at her chest. The men took Kelly's iPhone and Stepp's phone and wallet, which contained a metro card, a credit card, and a debit card.

After the robbers fled, Stepp and Kelly walked for about five minutes to a nearby Giant Food, where they told an off-duty police officer that they had been robbed at gunpoint. There they described the assailants as "two black males" of average height and build, "with dark clothing wearing masks," one of whom wore a parka. The officer called for backup and, a short while later, two other officers arrived, including Sergeant Charles Patrick. One of the responding officers tracked Kelly's iPhone using the "Find My iPhone" app on the officer's phone.

Sergeant Patrick broadcast a lookout for the suspects over police radio at 1:39 a.m., relaying Stepp and Kelly's description of their assailants and the location data from Kelly's iPhone, placing it at 12th and U Streets NW. Sergeant Patrick updated the phone's location when it had moved a block or two north to 12th between V and W Streets NW. He then broadcast that it was moving southbound at 11th and R Streets NW by 1:42 a.m., and based on the speed it was moving, he surmised the suspects "could be in [a] vehicle." Around the same time, an officer responded that he had just seen four men in a 7-Eleven at 12th and U Streets NW—the iPhone's first broadcast location—one of whom was wearing a parka.¹ About a minute later, another officer in a marked car noticed two individuals in an older model Honda at the intersection of 11th and Q Streets NW—a block south of the phone's most recently broadcast location—and when she approached the car it sped off. She gave chase in her vehicle, and the car eventually collided with some parked vehicles near 4th and N Streets NW, and its occupants bailed out. A man who lived on the block had heard the crash and told the officer that he had seen two men wearing dark hoodies and dark jeans exit the car and run in the direction of New Jersey Avenue.

Police tracked Kelly's iPhone to the rear alley of the 1400 block of New Jersey Avenue, one block north from where New Jersey Avenue intersects with N Street. A few minutes later, officers found Parker in a stairwell in that alley. Officers "pinged" Kelly's iPhone, and the corresponding sound came from under a parked vehicle in front of where the officers found Parker. The iPhone was found in the pocket of a black Nike track jacket under the vehicle. Parker was arrested, and a subsequent DNA test found Parker's DNA on the black jacket. At the time of his arrest, Parker was wearing blue jeans and "bluish or purple" shoes. Officers found Stepp's metro card in Parker's pants pocket.

Officers searched the Honda, which had been stolen about a month prior. They found a BB gun and Stepp's credit card on the driver's side floorboard, and Stepp's debit card on the passenger's side floorboard. Various other items belonging to Stepp and Kelly were found throughout the front of the car. Parker's DNA was on the deployed front passenger-side airbag, his fingerprint was on a cellphone found in the front passenger-side door compartment, and his palm print was on the exterior of the front driver-side window. A black hat, found on the ground below the driver's side door, also contained Parker's DNA.

Parker was charged with two counts of robbery while armed, D.C. Code §§ 22-2801, - 4502 ; two counts of PFCV, D.C. Code § 22-4504(b) ; three counts of receiving stolen property, D.C. Code § 22-3232(a), (c)(1)-(2) ; and two counts of credit card fraud, D.C. Code § 22-3223(b)(1), (d)(2). A jury convicted Parker of both counts of robbery while armed and PFCV and two counts of receiving stolen property (relating to Kelly's and Stepp's property). The jury acquitted him of receiving the stolen Honda (the third count of receiving stolen property) and both counts of credit card fraud. Parker now appeals.

II.

Parker makes two arguments. First, he challenges the sufficiency of the evidence supporting his convictions for robbery while armed and PFCV. Second, he argues that his grand jury rights were violated by the last-minute addition of an aiding-and-abetting instruction relating to the armed robbery and PFCV offenses. He does not challenge his convictions for receipt of stolen property. We address each argument in turn.

A. Sufficiency of the Evidence Challenges

Parker raises three distinct sufficiency challenges. He challenges the sufficiency of the evidence supporting (1) his robbery convictions generally, and more narrowly, (2) his PFCV convictions, and (3) the "while armed" enhancements to his robbery convictions. When reviewing the sufficiency of the evidence, we ask whether the evidence "viewed in the light most favorable to the government" was "strong enough that a jury behaving rationally really could find it persuasive beyond a reasonable doubt." Rivas v. United States , 783 A.2d 125, 134 (D.C. 2001) (en banc) (citation omitted). We give "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. (citation omitted).

1. Robbery

We first consider the evidence supporting Parker's robbery convictions. Parker argues that the government "offered no evidence that [he] came into possession of [stolen] items by being involved in the robbery as opposed to" merely receiving the stolen property from the robbers. He stresses that Stepp's description of the robbers was too skeletal to meaningfully connect Parker to the robbery. He further highlights the fact that police saw four men in the 7-Eleven at 12th and U Streets shortly before the car chase, and the fact that there were four sets of fingerprints in the car, as supporting his theory that he may have simply received the stolen property from the true robbers. In his view, it was thus pure speculation to conclude that he was one of the robbers as opposed to a mere recipient of the robbery's proceeds.² We disagree and conclude a reasonable jury viewing the evidence in the light most favorable to the government could have concluded that Parker was one of the robbers.

"[T]he unexplained or unsatisfactorily explained possession of property recently stolen permits an inference that the possessor is the person who stole it." Brown v. United States , 146 A.3d 110, 113 (D.C. 2016) (quoting White v. United States , 300 A.2d 716, 718 (D.C. 1973) ). Some of the robbery proceeds in this case were found in Parker's pocket (the Metro card); Kelly's iPhone was found in the jacket that had Parker's DNA on it and was recovered right next to where Parker was found; and Parker had just emerged from a vehicle that contained further proceeds. There was no real dispute that Parker was in the car and in possession of those proceeds of the robbery, and Parker never offered any explanation of how he came into possession of those items, permitting a reasonable inference that he was one of the robbers. Plus there was only about half an hour in the wee hours of the morning between the robbery and the beginning of the police chase. While that is conceivably enough time to hand the proceeds off to a third-party, it is probably not enough time (or a conducive time of day) to arrange a third-party sale or to coordinate with a go-between, or fence, which are some of the more typical means of offloading stolen property.

We will nonetheless assume that Parker's mere possession of proceeds so close in...