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Lewis v. United States

February 01, 2001

TIMOTHY L. LEWIS, APPELLANT,
V.
UNITED STATES, APPELLEE.



Before Schwelb, Associate Judge, and Belson and King, Senior Judges.

The opinion of the court was delivered by: King, Senior Judge

Appeal from the Superior Court of the District of Columbia (Hon. John R. Hess, Trial Judge)

Submitted July 27, 2000

Timothy L. Lewis appeals from a conviction for attempted carrying of a dangerous weapon, *fn1 contending that the trial court erred in denying his motions to suppress physical evidence and statements, and that the evidence was insufficient to sustain the conviction. We affirm.

I.

At approximately 9:40 in the morning on Wednesday, June 3, 1998, Lewis entered the lobby of the Alcohol, Tobacco, and Firearms ("ATF") Headquarters at 650 Massachusetts Avenue, Northwest, Washington, D.C. United States Federal Protective Service Officer L. M. Goltry, asked Lewis whether he could be of assistance. Lewis, who was thirty-seven years old at the time, replied that he was the director of the ATF in the 1970s and that he wanted to retrieve his credentials and identification from the current director. Officer Goltry's suspicions were aroused by that response, so he asked Lewis to produce identification and to step outside the Headquarters. Once outside, Officer Goltry asked Lewis: "Do you have any weapons on you, or anything that is going to harm me." Lewis replied that he had a knife. Officer Goltry then conducted a frisk and felt a hard object he believed to be the knife in Lewis's back pants pocket. A closed knife was removed from Lewis's pants and he was taken into custody. After a bench trial, Lewis was convicted of attempted carrying of a dangerous weapon. This appeal followed.

II.

A.

Lewis first contends that the trial court erred in denying his motion to suppress his statements and the knife, claiming that Officer Goltry lacked probable cause to search or question him and that he was coerced into making the inculpatory statement. "In reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc). The trial court's conclusions of law, on the other hand, are independently reviewed by this court under a de novo standard. See Holt v. United States, 675 A.2d 474, 478 (D.C. 1996). Whether Officer Goltry had probable cause to search is ultimately a question of law. See United States v. Watson, 697 A.2d 36, 38 (D.C. 1997).

Officer Goltry asked Lewis to produce identification and inquired of Lewis : "Do you have any weapons on you, or anything that is going to harm me." Such questioning, without more, constitutes only a consensual encounter. *fn2 See United States v. Barnes, 496 A.2d 1040, 1044 (D.C. 1985); see also Ware v. United States, 672 A.2d 557, 561 (D.C. 1996). Voluntary responses offered by someone during a consensual encounter with the police are admissible in a criminal prosecution. See Kelly v. United States, 580 A.2d 1282, 1285-86 (D.C. 1990) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). Therefore the trial court properly denied the motion to suppress the statements made to Officer Goltry. Once Lewis admitted that he was armed, the requisite probable cause to search, and ultimately arrest, existed. See Bsharah v. United States, 646 A.2d 993, 996 (D.C. 1994). Because the search was valid, the fruits of that search were admissible. See id. at 997.

B.

Lewis also contends that the evidence was insufficient for conviction of attempted carrying of a dangerous or deadly weapon. Specifically, he argues that there was no evidence of any intent to do harm. We reject that claim because an "intent to do harm" is not the determinative consideration. Rather, the question is, as discussed below, whether the object was carried for use as a dangerous weapon.

The standard of review for a challenge to the sufficiency of the evidence in a criminal case is firmly established. The evidence must be viewed in the light most favorable to the prosecution to determine whether a reasonable factfinder could find guilt beyond a reasonable doubt. See Kelly v. United States, 639 A.2d 86, 89-90 (D.C. 1994). Deference must be given to the factfinder's duty to determine credibility, weigh the evidence, and draw justifiable inferences of fact. See Abdulshakur v. District of Columbia, 589 A.2d 1258, 1263 (D.C. 1991). Further, in a bench trial, the trial court's factual findings will not be overturned unless they are "plainly wrong" or "without evidence to support [them]." Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992) (citation omitted). "The evidence must support an inference, rather than mere speculation, as to each element of an offense." See Head v. United States, 451 A.2d 615, 622 (D.C. 1982). The conviction will be overturned only where there has been no evidence produced from which guilt may reasonably be inferred. See Jones v. United States, 716 A.2d 160, 162 (D.C. 1998).

The statutory provision applicable here states in relevant part: "No person shall carry within the District of Columbia either openly or concealed on or about their person . . . any deadly or dangerous weapon . . . ." D.C. Code § 22-3204 (a) (1996). In order to convict under this provision, where the instrument in question is a knife, the government must prove beyond a reasonable doubt that (1) the defendant carried the knife either openly or concealed; (2) the defendant had the intent to do the acts constituting the carrying of the weapon; and (3) the purpose of carrying the instrument was its use as a dangerous weapon. See In re S.P., 465 A.2d 823, 826 (D.C. 1983); see also Strong v. United States, 581 A.2d 383, 385-86 (D.C. 1990). The government is not required to establish a specific ...


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