November 4, 2015
from the Superior Court of the District of Columbia
(DEL1903-13) (Hon. Florence Y. Pan, Trial Judge)
H. Pavlovic, Public Defender Service, with whom James Klein
and Tejal Kothari, Public Defender Service, were on the
brief, for appellant.
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,
BEFORE: WASHINGTON, Chief Judge; BECKWITH, Associate Judge;
and REID, Senior Judge.
case came to be heard on the transcript of record and the
briefs filed, and was argued by counsel. On consideration
whereof, and for the reasons set forth in the opinion filed
this date, it is now hereby
and ADJUDGED that appellant's convictions are affirmed,
and the case is remanded solely for the trial court to
address those convictions that merge.
T. Washington Chief Judge.
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
(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.
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.
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; (2) five counts
of attempted second-degree murder while armed; (3) two counts of
assault with intent to kill while armed
("AWIKWA"); (4) two counts of assault with intent to
commit a murder while armed
("AWIMWA"); (5) one count of aggravated assault while
armed (AAWA); (6) four counts of attempted
AAWA; (7) one count assault with significant
bodily injury ("ASBI"); (8) one count of conspiracy
to commit murder or assault with a dangerous
weapon; (9) one count of felony carrying a pistol
("CP"); (10) one count of possession of an
unregistered firearm ("UF");  (11) one
count of unlawful possession of ammunition; and (12) one
count of discharge of a weapon. 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
Sufficiency of the Evidence
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
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).
conspiracy statute, D.C. Code § 22-1805a (a)(1),
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).
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.
the advice given to T.M. by the unidentified male at the
scene, the trial court went on to state:
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.
from these inferences and the evidence presented at trial,
the trial court found that appellant's conduct satisfied
the elements of conspiracy.
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
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 ...