Before Wagner, Chief Judge, Ruiz, Associate Judge, and Mack, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. A. Franklin Burgess, Trial Judge)
In this appeal of their convictions for robbery, D.C. Code § 22-2901 (1996), *fn1 both Walter Harris and Earl Johnson contend that the trial court erred in entering a judgment of guilty because (1) the evidence was insufficient to support their convictions for robbery; and (2) the trial court committed reversible error when it declined to instruct the jury on the lesser-included offense of attempted robbery. We affirm, concluding 1) the evidence was sufficient to support appellants' convictions for robbery and 2) on the facts of this case in which the disputed fact, if resolved by the jury against appellants, would suffice to convict on the greater offense of robbery, and, if rejected by the jury, would not justify conviction of the lesser offense of attempted robbery, appellants were not entitled to a lesser-included offense instruction for attempted robbery.
I. The government's evidence.
On December 8, 1996, at about half-past eight in the evening, Scott Kirkwood left his home to go to the store to purchase some milk. After realizing that the store to which he was headed would be closed by the time he arrived, and noticing that it had started to rain, Kirkwood jogged back towards home to go to another store located on the other side of his house. Upon reaching his home, he was confronted by both appellants. Appellant Johnson, with his hand inside his pocket, said to Kirkwood, "Hand over your money, don't fuck with me, I'll shoot you." While Kirkwood searched through his pockets, appellant Harris also rifled through them, causing their hands to occasionally bump into each other. Johnson repeated his warning after Kirkwood indicated that he could not locate his wallet. When Kirkwood replied, "I don't know what you want me to do, I can't find my wallet," Johnson revealed that he had been unarmed by removing his bare hand from his jacket pocket. Johnson then patted Kirkwood on the shoulder, said, "That's okay, I was just fucking with you," and started walking away. Kirkwood turned to his left to leave, but saw Harris holding his wallet and going through its contents. Kirkwood then tried to wrestle the wallet away from Harris and the two of them fell to the ground, struggling.
At that moment, Kirkwood's neighbor, Mark Leeper, a federal agent with the Immigration and Naturalization Service, came out of his house and heard Johnson threatening to "bust" Kirkwood. When Johnson saw a police car go by, he began running, with Leeper in close pursuit for several blocks. Johnson was eventually apprehended by Officer Patrick Cumba of the Metropolitan Police Department. Harris also attempted to flee, but was stopped by David Glendenning, another of Kirkwood's neighbors and a special agent with the Department of Justice. Glendenning carried his gun, badge and a pair of handcuffs, which he used to detain Harris after Kirkwood stated to him that Harris had "just tried to rob [him]." When Officer Cumba arrived at the robbery scene with Johnson in tow, several neighbors identified Johnson as one of the robbers.
Although appellant Johnson chose not to testify, appellant Harris recounted that he had met Johnson at Harris' girlfriend's house on the day of the charged incident, and the two of them had drinks before taking the bus to Johnson's cousin's home. After discovering that the cousin was not home, appellants walked away without any particular destination in mind. They noticed Kirkwood for the first time when he bumped into Harris. Harris reacted by punching Kirkwood, who, in response, grabbed him. The two of them fell to the ground, at which point Kirkwood's wallet fell out of his pocket. Harris testified that after he saw the wallet fall, he picked it up and tried to hand it back to Kirkwood, who promptly snatched the wallet away from him, and then called for help. Harris denied looking through Kirkwood's pockets and claimed that Johnson never threatened to shoot Kirkwood.
A. Sufficiency of the evidence for robbery.
We turn first to appellants' initial claim that the evidence was insufficient to convict them for robbery because the government failed to establish that appellant Harris removed Kirkwood's wallet from his pocket.
We review a trial court's denial of a motion for judgment of acquittal de novo, and like the trial court, determine whether the evidence, viewed in the light most favorable to the government, was such that a reasonable juror could find guilt beyond a reasonable doubt. See Curry v. United States, 520 A.2d 255, 263 (D.C. 1987) (citing Crawford v. United States, 126 U.S. App. D.C. 156, 158, 375 F.2d 332, 334 (1967)). In recognizing the jury's role in weighing the evidence, we will defer to its credibility determinations, as well as its ability to draw justifiable inferences of fact. See Patton v. United States, 633 A.2d 800, 820 (D.C. 1993) (per curiam). No distinction is drawn between direct and circumstantial evidence. See Driver v. United States, 521 A.2d 254, 259 (D.C. 1987).
Reviewing the trial record, we conclude that there was sufficient evidence presented upon which a reasonable juror could conclude beyond a reasonable doubt that appellants were guilty of unarmed robbery. *fn2 To obtain a conviction for robbery, the government must prove that Johnson and Harris (1) took property of some value, (2) from the actual possession of the complainant, (3) using force or violence, and (4) carried the property away, (5) with the specific intent to steal it. See Zanders v. United States, 678 A.2d 556, 563 (D.C. 1996) (citing Criminal Jury Instructions for the District of Columbia, No. 4.46 (4th ed. 1993)). Appellants challenge primarily the sufficiency of the evidence presented on the "taking" elements of robbery, asserting that there was no evidence in the record indicating that the complainant's wallet was taken from him by either appellant. Harris notes that the complainant, Scott Kirkwood, acknowledged on cross-examination that he did not see Harris take his wallet from him and did not know how Harris had obtained his wallet. Therefore, he argues that the government failed to establish that Kirkwood was dispossessed of his wallet by Harris. Unlike the cases cited by the appellants, see United States v. McGill, 159 U.S. App. D.C. 337, 487 F.2d 1208 (1973); Zanders, 677 A.2d 556, however, there was sufficient evidence presented from which the jury could conclude beyond a reasonable doubt that appellant Harris had taken the victim's wallet. First, Kirkwood testified that he was in possession of his wallet on his way to the store before he was approached by the appellants. Appellant Johnson, standing two or three feet away and pretending to hold a gun, threatened to shoot Kirkwood if he did not give him his wallet. While Kirkwood was going through his pockets to find his wallet, he felt appellant Harris likewise going through his pockets at the same time. Immediately after Kirkwood had indicated that he could not locate his wallet, and appellant Johnson had taken his finger out of his coat to show that he was just "kidding", Kirkwood turned to find ...