Appeals from the Superior Court of the District of Columbia (F-4642-03 and F-4643-03) (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
Before WASHINGTON, Chief Judge,and KRAMER and OBERLY, Associate Judges.
On November 18, 2003, following a two-day jury trial, appellants Antonio Lancaster and Chanita L. Gayles were convicted of armed robbery in violation of D.C. Code §§ 22-2801 (2001) and 22-4502 (2001), assault with a dangerous weapon (ADW) in violation of D.C. Code § 22-402 (2001), and possession of a firearm during a crime of violence (PFCV) in violation of D.C. Code § 22-4504 (b) (2001).*fn1
Lancaster was tried and convicted as a principal and Gayles was tried and convicted on the theory that she aided and abetted the armed robbery and PFCV offenses committed by Lancaster.
On appeal, Lancaster's sole argument is that there was insufficient evidence to establish beyond a reasonable doubt that he was guilty of armed robbery. Gayles presents two issues on appeal. First, she argues that the trial court's jury instructions on the charge that she aided and abetted armed robbery constituted plain error in light of this court's decision in Wilson-Bey v. United States, 903 A.2d 818 (D.C. 2006) (en banc). Second, she argues that there was insufficient evidence of her aiding and abetting both armed robbery and PFCV. We affirm Lancaster's convictions as well as Gayles's conviction on the armed robbery count, but we reverse Gayles's conviction on the charge of aiding and abetting PFCV.
On August 2, 2003, Marvin Greene was driving his van along Benning Road in Southeast, Washington, D.C., when he saw appellant Chanita Gayles standing in front of her apartment building. Greene stopped his vehicle and spoke with Gayles, and the two agreed that Greene would pay Gayles for sex. Greene requested that they go to a motel, but Gayles instead suggested that they go to her apartment, where she lived alone and where, she assured Greene, "it was safe." Greene agreed, and Gayles told him he should park behind the apartment building. Greene parked his van as Gayles suggested and walked around to the front of the building. Gayles met Greene at the end of the building and the two walked together into the building and up the stairs to Gayles's apartment. Once inside the apartment, Gayles told Greene she needed to go outside to see a neighbor. Greene encouraged her not to leave the apartment and showed her some of his money, saying, "I will take care of you if you take care of me." Despite Greene's protests, Gayles left the apartment. Greene locked the door behind Gayles and waited in the living room until her return about five minutes later.
When Gayles returned, she knocked on her door. Greene looked through the peephole, saw only Gayles and opened the door. Gayles ran into the apartment toward the bathroom and, for reasons not described in the record, vomited. Three men directly followed Gayles into the apartment. One of the men asked Gayles if she was alright, then another man, whom Greene later identified as Lancaster, turned to Greene, pulled out a gun and told him to "[g]ive it up." At this point, Greene saw that each man had a gun. While Lancaster was talking to Greene, Gayles was standing in the bathroom, watching the confrontation. Greene attempted to get to the door to escape, but two of the men pushed him into a closet space and threatened him with their guns. The men repeated that they wanted Greene to "give it up" so Greene took money, his car keys and a small knife from his pocket and threw the items on the floor. One of the men said, "I know you got more. Give it up, give it up." Two of the men put their guns to the back of Greene's head, saying "We going to kill this guy" so Greene withdrew $200 he had placed in his boots and threw that money to the floor. The men then told Greene to take his clothes off. The men also told Gayles to get out of the apartment, and she left. After Gayles exited, the three men gathered up the items from the floor, looked at each other, started laughing and then left the apartment.
Greene put his clothes back on, looked through the peephole to make sure the armed men were not lying in wait, and left the apartment. He subsequently called the police from a pay phone at a nearby gas station. He stayed there until two police officers arrived to interview him, approximately 30 minutes after the robbery. During this interview, Greene gave a description of the three men who robbed him and the woman who was present during the robbery. The police officers took Greene to the police station, where detectives interviewed him about the crime.
The detectives then took Greene back to Benning Road in their unmarked police car to try to find the suspects. As they drove past the apartment building in which Greene was robbed, Greene identified Gayles and Lancaster, who were standing outside of the building. The detectives drove the unmarked car to the back of the building and, while waiting there for other units to respond, Greene and the detectives saw Lancaster start to jump out of a window. Lancaster saw the waiting police officers and retreated back into the building. Police officers brought both suspects in front of Greene, and he identified them as two of the four people who were involved in the robbery.
During the apprehension of the suspects, Greene noticed that his van was not where he had left it parked behind the apartment building. The police found the van abandoned near RFK Stadium and contacted Greene three days after the robbery to tell him where and how to recover it.
II. ANALYSIS OF ISSUES ON APPEAL A. Lancaster
As noted, Lancaster's only argument is that there was insufficient evidence to establish beyond a reasonable doubt that he was guilty of armed robbery. He focuses his challenge on the sufficiency of the identification evidence ...