Kywone D. Pelzer, Appellant,
United States, Appellee.
Submitted June 24, 2016
from the Superior Court of the District of Columbia
(CF2-20908-13) (Hon. Zoe Bush, Trial Judge)
Blackburne-Rigsby, Chief Judge [*] Easterly, Associate Judge, and
Reid, Senior Judge.
Easterly, Associate Judge.
D. Pelzer appeals his conviction after a jury trial for
robbery. He argues that his conviction should be
reversed because the evidence was legally insufficient, and
because the trial court made a number of evidentiary and
instructional errors. We conclude that the evidence was
sufficient to permit a reasonable juror to find Mr. Pelzer
guilty of robbery, and we reject all but one of Mr.
Pelzer's other arguments-that the trial court abused its
discretion when it admitted the recording of the
complainant's 911 call into evidence under the hearsay
exception for excited utterances. But because the admission
of this recording was harmless in light of the other evidence
presented, including the complainant's in court
testimony, we affirm.
The Evidence at Trial
Mitchum testified at trial that Mr. Pelzer had robbed him and
gave the following account of the incident: as Mr. Mitchum
was riding the bus home on a late fall evening, listening to
music on his new iPhone, he noticed that a man he did not
know (later identified as Mr. Pelzer) was taking special
interest in him. Mr. Pelzer, who was sitting some distance
away from Mr. Mitchum toward the front of the bus, kept
looking over his shoulder to stare at Mr. Mitchum, who was
sitting toward the rear of the bus. Mr. Pelzer then moved
seats to sit in a forward facing seat immediately adjacent to
Mr. Mitchum's side-facing seat. When the bus reached the
first of two stops where Mr. Mitchum could have exited, Mr.
Mitchum stood up to exit, but when Mr. Pelzer also stood, Mr.
Mitchum, now "uncomfortable with what was happening,
" sat back down. At the second stop, Mr. Mitchum again
stood up (as did Mr. Pelzer), then sat back down again, and
then, just as the bus was about to pull away, asked the
driver to open the back door and exited the bus. Mr. Pelzer
walked off the bus behind Mr. Mitchum.
the street, Mr. Pelzer approached Mr. Mitchum, who was still
holding his phone in his hand, and asked, "what kind of
phone is that?" After Mr. Mitchum told him it was an
iPhone 5C, Mr. Pelzer "aggressive[ly]" asked,
"let me use your phone." Mr. Mitchum initially
responded that he did not think that was a good idea. He then
noticed Mr. Pelzer making "a hand motion near like the
chest area" "inside [his] jacket." Concerned
Mr. Pelzer might have a weapon, Mr. Mitchum thought to
himself, "it is not worth it, it is just a phone, I can
just use my insurance to get another one, it really is not
that big of a deal." He began to enter his pass code to
unlock the phone for Mr. Pelzer, but before he finished, Mr.
Pelzer grabbed the phone and ran across the street. Mr.
Mitchum yelled after him, "sir, you have my phone,
" but Mr. Pelzer kept running.
Mitchum, still thinking it was possible that Mr. Pelzer was
armed, did not follow him. Mr. Pelzer ran by a high school
student whom Mr. Mitchum knew and who had walked off the bus
ahead of Mr. Mitchum and Mr. Pelzer; the student looked at
Mr. Mitchum "to make sure I was okay, " and Mr.
Mitchum "kind of just waved him on and told him to just
go home." Mr. Mitchum waited until Mr. Pelzer was out of
sight and then headed home, walking in the same direction Mr.
Pelzer had run.
way home, Mr. Mitchum happened upon a police car, reported
the theft of this phone to the two officers in the car,
Officers Newberry and Robinson, and gave a detailed
description of the perpetrator. Mr. Mitchum "made the
formal report to 911 when [he] got [home] by using [his] . .
. roommate's cell phone, " after realizing that he
had not given the police his contact information. The
government successfully moved for its admission as an excited
utterance and played a recording of this call for the jury.
Newberry also testified at trial and stated that he and his
partner had canvassed the area using the description given by
Mr. Mitchum and stopped Mr. Pelzer later that evening. In a
show-up procedure, Mr. Mitchum positively identified Mr.
Pelzer as the man who had taken his phone. When the police
searched Mr. Pelzer, they recovered Mr. Mitchum's iPhone.
in his own defense, Mr. Pelzer acknowledged that he had had
Mr. Mitchum's iPhone but gave a different account of how
it came into his possession. Mr. Pelzer explained that, after
he exited the bus with Mr. Mitchum,  he needed to make a call
quickly,  but he could not use his own cell phone
because, although he had recently purchased one, he had not
yet activated it. Mr. Pelzer asked Mr. Mitchum if he could
borrow the iPhone, and Mr. Mitchum gave it to him. Mr. Pelzer
then walked ahead of Mr. Mitchum because he "didn't
want to be seen with [Mr. Mitchum]." They walked
together in this manner, across the intersection and down the
street. But at some point, Mr. Mitchum ran away. Mr. Pelzer
called after him, but Mr. Mitchum did not return. Mr. Pelzer
remained in the area in hopes of reconnecting with Mr.
Mitchum. Ultimately, he walked by a police officer on the
street and was stopped and arrested; thereafter he gave a
statement to the police, clips of which were played during
heard this evidence, a jury convicted Mr. Pelzer of robbery.
This appeal followed.
Sufficiency of the evidence
Pelzer argues that that there was insufficient evidence to
find that he took Mr. Mitchum's phone against his will,
an essential element to the crime of robbery. See Gray v.
United States, 155 A.3d 377, 382 (D.C. 2017). Reviewing
the evidence in the light most favorable to the government,
as we must, see, e.g., Williams v. United
States, 113 A.3d 554, 560 (D.C. 2015), we conclude that
a reasonable juror could have concluded that Mr. Mitchum did
not voluntarily cede possession of his new iPhone to Mr.
Pelzer based on Mr. Mitchum's testimony that Mr. Pelzer
staked him out on a Metrobus, followed him off the bus onto
the street, aggressively asked to use his phone, and then
grabbed it from his hands and jogged away with it, while Mr.
Mitchum called after him, "sir, you have my phone."
Excited Utterance Analysis
to the trial court's admission of Mr. Mitchum's call
to 911 as an excited utterance, we first review the law that
the trial court and our court must apply. As we recently
explained in Mayhand v. United States, the test a
trial court must apply before "admitting an out-of-court
statement offered for the truth of the matter asserted under
the =excited utterance' exception to the rule against
hearsay is well established in this jurisdiction and has
three parts." 127 A.3d 1198, 1205 (D.C. 2015). The trial
court must confirm that the proponent of the hearsay
statement has established:
(1) the presence of a serious occurrence which causes a state
of nervous excitement or physical shock in the declarant, (2)
a declaration made within a reasonably short period of time
after the occurrence so as to assure that the declarant has
not reflected upon his statement or premeditated or
constructed it, and (3) the presence of circumstances, which
in their totality suggest spontaneity and sincerity of the
In all cases the ultimate question is whether the statement
was the result of reflective thought or whether it was rather