Davis v. United States

majority opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-CF-0554

KENNETH M. DAVIS, APPELLANT,

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2021-CF3-005701)

(Rainey R. Brandt, Judge)

(Argued May 7, 2026 Decided August 13, 2026)

Matthew B. Kaplan for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb and Gregory Evans, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and SHANKER,

Associate Judges.

SHANKER, Associate Judge: On a sunny afternoon in May 2021, Shadonna

Nance was driving with her two children on Eastern Avenue in Northeast

Washington, D.C. When attempting to merge into the right lane, she passed very

close to the car next to her. Although the cars did not touch, the driver of the second

car got out of his car, approached Ms. Nance’s car, and fired a gun at Ms. Nance’s

car; he then turned and fired more shots in the direction of the cars behind him. The

driver then returned to his vehicle, made a U-turn, and drove off in the opposite

direction.

Appellant Kenneth M. Davis was identified as the shooter and was

subsequently charged with multiple crimes related to the incident. After a jury trial,

Mr. Davis was found guilty on eight counts, including assaulting Ms. Nance with

intent to kill while armed (AWIKWA) and three counts of assault with a dangerous

weapon (ADW). The trial court sentenced him to a total term of 390 months (32.5

years) of imprisonment.

On appeal, Mr. Davis contends that the trial court made several evidentiary

errors, that there was insufficient evidence to convict him of one of the ADW counts,

and that the court erred when sentencing him. We are unpersuaded that the trial

court’s evidentiary decisions challenged by Mr. Davis constitute reversible error or

that the evidence was insufficient to support the challenged ADW count. We agree

with Mr. Davis, however, that the trial court erred in sentencing him. We therefore

affirm his convictions but vacate his sentence and remand to the trial court for

resentencing.

I. Background

A. The Shooting

Ms. Nance and her two children were driving on Eastern Avenue in Northeast

D.C. on May 19, 2021. As she approached the intersection of Eastern and

Kenilworth Avenues, Ms. Nance tried to merge into the right lane. She got very close

to a car in the right lane, a gray Maserati, which she thought was letting her merge.

Although the cars did not touch, the driver of the second vehicle exited his vehicle,

walked toward Ms. Nance’s car until he was adjacent to its rear driver’s side door,

and fired a gun at Ms. Nance’s car. As Ms. Nance attempted to drive away, she hit

another car and then crashed into a light pole. After firing around seven shots at Ms.

Nance’s car, the shooter turned and fired more shots in the direction of the cars

behind him. He then got back in his car, made a U-turn, and left the scene. All of

this was captured on a nearby surveillance camera.

One of the bullets fired by the shooter injured Ms. Nance’s left arm, and she

had bullet fragments removed from her body at the hospital. Her five-year old child,

A.S., who was sitting in the back of her car, sustained injuries to his hand from

broken glass. Ms. Nance’s other child, P.N., was sitting in the front passenger seat

and was not injured. When officers from the Metropolitan Police Department (MPD)

arrived, Ms. Nance told them that the gunman was driving a gray two-door Maserati

and was an older Black male who was approximately six feet tall and weighed

roughly 200 pounds, with a muscular build and a gray beard.

B. The Investigation

The next day, as part of its initial investigation, MPD contacted a local

Maserati dealership. A detective spoke on the phone and then met in person with

Anthony Johnson, a service director at the dealership. Mr. Johnson testified that he

knew Mr. Davis from various service appointments Mr. Davis had made for his

Maserati GranTurismo. Starting around 2018, Mr. Davis dropped his Maserati off

for service one to two times a year. Mr. Johnson identified records from the

dealership that indicated that Mr. Davis’s Maserati was serviced and was ready to

be picked up on May 18, the day before the shooting. Although he could not confirm

that Mr. Davis picked up his Maserati that day, Mr. Johnson testified that Mr. Davis

usually picked up his own car and that the car was gone from the dealership on May

19, the day of the shooting.

After viewing a video of the shooting with the detective, Mr. Johnson

identified the gunman’s Maserati as belonging to Mr. Davis. He noted multiple

features of the Maserati in the video, including wheel rims that were “color matched”

with the body of the car and the customized fixture of the license plate on the front

of the car by a “tow hook” on the passenger side, which enabled him to identify it as

Mr. Davis’s car. Mr. Johnson did not identify Mr. Davis as the gunman in the video,

but he did note that the shooter had the same physical build as Mr. Davis.

Although he did not tell the detective this, Mr. Johnson also testified that he

had interacted with Mr. Davis earlier in the day following the shooting when Mr.

Davis came to the Maserati dealership. Mr. Davis came alone, but not in his

GranTurismo. Mr. Davis asked Mr. Johnson how quickly he could have the color of

the wheels, or rims, on his GranTurismo changed. Although he did not specify a

color, Mr. Davis was adamant that he needed the color of the wheels changed as

quickly as possible. Mr. Johnson was unable to accommodate the request that day

because it required making an appointment with a third-party vendor.

Eight days after the shooting, Ms. Nance selected Mr. Davis’s picture from a

police photo array and identified him as the gunman. After seeing Mr. Davis’s photo,

Ms. Nance noted that “it was him,” that she was “positive,” and that her “heart [was]

pounding.” Ms. Nance later confirmed that she got a “good look at the suspect’s

face” and that she remembered the gunman’s nose and was “one hundred percent

sure” Mr. Davis was the gunman.

In addition to this evidence, historical cell site location information (CSLI)

indicated that Mr. Davis’s cell phone connected with two cell towers near the crime

scene around the time of the shooting.

The MPD issued a press release on June 2, 2021, identifying Mr. Davis as the

suspected gunman. Officers began to search for Mr. Davis but, despite checking

addresses associated with him and his family members, were unable to locate him.

At the address of a woman who identified herself as Mr. Davis’s mother, police

found a Maserati in the garage covered with a tarp. Mr. Davis was eventually located

in Costa Rica, and he returned to the United States on August 8, 2021.

C. The Verdict and Sentencing

At the conclusion of trial, the jury found Mr. Davis guilty of eight offenses:

(1) AWIKWA with respect to Ms. Nance (D.C. Code §§ 22-401 & -4502), (2) two

counts of ADW with respect to Ms. Nance’s children, P.N. and A.S. (D.C. Code

§ 22-402), (3) one count of ADW against another victim who was located in one of

the cars behind Mr. Davis’s, and (4) four counts of possession of a firearm during a

crime of violence (PFCOV) (D.C. Code § 22-4504(b)) in connection with the other

four convictions.

The trial court sentenced Mr. Davis to 138 months for the AWIKWA

conviction and 84 months for each ADW conviction, with all four convictions to run

consecutively to each other, for a total term of imprisonment of 390 months. The

court also merged Mr. Davis’s four PFCOV convictions and sentenced him to an

additional 84 months of imprisonment, to run concurrently with the other sentences.

This appeal followed.

II. Analysis

Mr. Davis raises five issues on appeal. First, he argues that the trial court

abused its discretion in admitting Mr. Johnson’s testimony. Second, he contends that

the court erred in admitting Ms. Nance’s photo array identification. Third, he asserts

that the court abused its discretion by admitting evidence of his flight. Fourth, he

claims that there was insufficient evidence to convict him of ADW with respect to

P.N. And fifth, Mr. Davis argues that the trial court erred when sentencing him. We

discuss each claim seriatim.

A. The Trial Court Did Not Abuse Its Discretion in

Admitting Mr. Johnson’s Testimony

Mr. Davis asserts that the trial court improperly admitted Mr. Johnson’s

testimony regarding Maserati vehicles because the testimony exceeded the bounds

of lay opinion testimony sanctioned by Federal Rule of Evidence 701 and strayed

into the realm of expert testimony. Mr. Davis’s argument has no traction.

1. Additional Background

Before trial, the government notified Mr. Davis that it intended to call Mr.

Johnson as an expert witness “in the field of Maserati vehicles.” Mr. Davis moved

to exclude Mr. Johnson as an expert. The trial court granted his motion after

concluding that Mr. Johnson’s experience did not rise to a sufficient level of

expertise and that jurors would be able to understand his lay testimony without

difficulty. The court added that, in providing his lay testimony, Mr. Johnson could

testify only about his knowledge of Mr. Davis’s car and similar matters rooted in his

experience and could not stray “beyond the scope of his knowledge.” The court

specifically noted that Mr. Johnson could testify about why Mr. Davis’s Maserati

was unique compared to other cars Mr. Johnson had seen at the dealership but not

compared to Maseratis generally.

At trial, Mr. Davis objected to aspects of Mr. Johnson’s testimony that in his

view violated the court’s pretrial ruling. After a lengthy argument, the trial court

sustained the objection and reiterated its pretrial ruling that Mr. Johnson could testify

only about Maseratis that he had interacted with or had experience with. The court

later sustained similar objections by Mr. Davis when the government asked Mr.

Johnson to opine about Maseratis generally.

The court allowed Mr. Johnson to testify that he was familiar with Maserati

GranTurismos—the model Mr. Davis owned—based on his time working at the

dealership and his personal ownership of the same model. Mr. Johnson further

testified, without objection, that Mr. Davis’s GranTurismo had three exterior

features that helped him identify it: (1) wheel rims that were “color matched” with

the body of the car; (2) red brake calipers; and (3) the fixture of the front license

plate by a “tow hook” on the passenger side. From his review of the video of the

shooting, Mr. Johnson asserted that he knew the car in the video was Mr. Davis’s

Maserati because he recognized the tow hook-mounted license plate and the colormatched wheels. Mr. Johnson also noted another “distinguishing characteristic” of

Mr. Davis’s car—the “Cuoio Sabbia” interior color. When asked if, out of the

roughly 5,000 Maseratis he had come across, he had seen another with the

combination of features installed on Mr. Davis’s car, Mr. Johnson said no and that

Mr. Davis’s car was the only one with all of them.

2. Standard of Review

“Whether [lay] opinion [testimony] is helpful to the jury and hence admissible

is a question entrusted to the sound discretion of the trial court, and its admission of

such testimony will not be overturned unless it constitutes a clear abuse of

discretion.” Gee v. United States, 54 A.3d 1249, 1261 (D.C. 2012) (citation

modified). In reviewing for abuse of discretion, we must determine “whether the

decision maker failed to consider a relevant factor, whether [the decision maker]

relied on an improper factor, and whether the reasons given reasonably support the

conclusion.” Austin v. United States, 343 A.3d 928, 941 (D.C. 2025) (citation

modified). “The trial court must make an informed choice drawn from a firm factual

foundation.” Willis v. United States, 353 A.3d 874, 882 (D.C. 2025) (citation

modified). Our “role in reviewing the exercise of discretion is supervisory in nature

and deferential in attitude.” In re Z.W., 214 A.3d 1023, 1037 (D.C. 2019) (quoting

In re D.B., 947 A.2d 443, 446 (D.C. 2008)). “We defer to trial courts’ evidentiary

rulings because we recognize that trial courts exercise on-the-spot judgment in the

heat of trial, with access to information such as witness demeanor that escapes

review on the cold appellate record.” Austin, 343 A.3d at 941 (citation modified).

Nevertheless, “because the exercise of [a court’s] discretion must be founded upon

correct legal principles, it is an abuse of discretion if the trial judge rests [their]

conclusions on incorrect legal standards.” (Damion) Jones v. United States, 17 A.3d

628, 631 (D.C. 2011) (citation modified).

3. Discussion

We are satisfied that Mr. Johnson’s testimony was consistent with the

requirements of Federal Rule of Evidence 701. 1 “Opinion testimony by lay witnesses

“Although the Federal Rules of Evidence are inapplicable in the D.C. Superior Court and the D.C. Court of Appeals, Federal Rule of Evidence 701, regarding opinion testimony by lay witnesses, states the law as it has developed in this jurisdiction.” King v. United States (King I), 74 A.3d 678, 681 n.12 (D.C. 2013) (citation modified); see (Tyrell) Johnson v. United States, 232 A.3d 156, 163 (D.C. 2020) (recognizing that we have adopted Rule 701 in this jurisdiction).

is admissible if it is limited to those opinions or inferences which are (a) rationally

based on the perception of the witness and (b) helpful to a clear understanding of the

witness[’s] testimony or the determination of a fact in issue.” Gee, 54 A.3d at 1261

(citation modified); see Fed. R. Evid. 701; see also Bedney v. United States, 684

A.2d 759, 767 (D.C. 1996) (“A non-expert witness may express opinions when

testifying, so long as they are based on the witness’[s] personal observation of events

and are helpful to the jury in fulfilling its role as fact-finder.”). “Lay opinion

testimony is particularly valuable where the lay witness[ ] [is] able to make the

challenged identifications based on their familiarity with characteristics not

immediately observable by the jury at trial.” Gee, 54 A.3d at 1261 (citation

modified). The testimony, however, must not be based on “scientific, technical, or

other specialized knowledge.” Id. (quoting Fed. R. Evid. 702); Fed. R. Evid. 701.

Mr. Davis’s argument boils down to the contention that Mr. Johnson’s

testimony was based on “specialized knowledge” and constituted “prototypical

expert testimony,” and that the trial court therefore should not have admitted it given

that the court had declined to qualify Mr. Johnson as an expert. The government

argues that Mr. Johnson’s testimony fits the definition of permissible lay opinion

testimony because it was based on his own personal experiences with Mr. Davis’s

Maserati and thousands of others as part of his position as a service manager at the

dealership. Although Mr. Johnson testified about customization options for

Maseratis, the government asserts that this was within the scope of his professional

experience and does not reflect the “specialized knowledge” of an expert. The

government also observes that the trial court properly enforced its pretrial order by

sustaining Mr. Davis’s objections when Mr. Johnson testified about Maseratis

generally.

The government’s arguments are more persuasive. Nothing in the record

indicates that Mr. Johnson’s testimony went beyond his “personal observations,” see

Bedney, 684 A.2d at 767, or was based on anything but his “perception” of events,

see Gee, 54 A.3d at 1261; Fed. R. Evid. 701. It was established at trial that, starting

in 2018, Mr. Johnson interacted with Mr. Davis once or twice a year when Mr. Davis

brought his Maserati in for service. Mr. Johnson also was familiar with Mr. Davis’s

GranTurismo, including the features that made it recognizable to him. It was these

features, in particular the unique combination of them compared to the thousands of

other Maseratis that he had come across, that allowed Mr. Johnson to identify Mr.

Davis’s Maserati in the video of the shooting. In other words, Mr. Johnson’s

“opinion testimony [was] particularly valuable” because he was able to make a

“challenged identification[ ] based on [his] familiarity with characteristics not

immediately observable to the jury at trial.” Gee, 54 A.3d at 1261 (citation

modified).

Mr. Davis asserts that Mr. Johnson stated that the features of Mr. Davis’s car

were unique among all Maseratis. To the contrary, Mr. Johnson’s testimony was

based on Maseratis he had personally encountered. Thus, his opinion testimony

complied with the trial court’s pretrial order and was rooted in his own “personal

observation[s] of events.” Bedney, 684 A.2d at 767.

Mr. Davis’s contention that Mr. Johnson’s testimony was inadmissible

because it was based on his “specialized knowledge” from Maserati training

programs is unconvincing. Mr. Johnson worked at a Maserati dealership for four

years as a service director, where he oversaw the maintenance shop and interacted

with Maserati clients, including Mr. Davis, and their vehicles. He also owned the

same model Maserati, albeit a newer version, as Mr. Davis. As we recently held, a

lay witness is not precluded from “giving lay-opinion testimony that is based on their

experience if it has also been a subject of their specialized training.” In re T.B., 331

A.3d 242, 256 (D.C. 2025). While Mr. Johnson did undergo certification training to

learn about new Maserati models and repair procedures, his “perceptions” of the

unique nature of Mr. Davis’s Maserati were gained through “personal experiences”

not necessarily tied to that training. See id. The “reasoning process” for his

“proffered opinion” was his knowledge of Mr. Davis’s vehicle compared with the

thousands of other Maseratis he has encountered, including his own. See id. Such

“personal observations” made “in his every day work” fit squarely within our

prescribed limits for permissible lay-opinion testimony. Id.; see Fed. R. Evid. 701;

see also (Tyrell) Johnson v. United States, 232 A.3d 156, 163-64 (D.C. 2020)

(concluding that a courtroom clerk’s testimony about court procedures was

admissible as lay opinion testimony because it was “premised on the clerk’s own

personal knowledge and experience”); King v. United States (King I), 74 A.3d 678,

681 (D.C. 2013) (collecting cases and noting that this court has allowed police

officers to offer lay testimony “about the event in question based on their observation

of similar events during their professional experience”).

Accordingly, because Mr. Johnson’s testimony was rationally based on his

perception and experience; helpful to the determination of a fact in issue; not based

on scientific, technical, or other specialized knowledge; and within the scope of the

trial court’s pretrial ruling, the court acted within its discretion in admitting the

testimony.

B. The Trial Court Did Not Err in Admitting Ms. Nance’s

Photo Array Identification of Mr. Davis

Mr. Davis contends that the trial court erred when it concluded that Ms.

Nance’s identification of him was reliable after the court determined that the photo

array used for the identification was impermissibly suggestive. We conclude that the

trial court did not err in deeming Ms. Nance’s identification reliable and in therefore

admitting the evidence.

1. Additional Background

In a pretrial motion, Mr. Davis moved to exclude Ms. Nance’s photo array

identification of him on the ground that the procedure was impermissibly suggestive

and the identification was unreliable. The trial court agreed with Mr. Davis that the

photo array was impermissibly suggestive because the photo of Mr. Davis contained

two unique characteristics compared to the other photos—gray hair and a lack of a

mustache—causing Mr. Davis to “stick[ ] out like a sore thumb.” The court

nonetheless denied Mr. Davis’s motion because it concluded, under the test set forth

in Neil v. Biggers, 409 U.S. 188 (1972), that under the totality of the circumstances

Ms. Nance’s identification was reliable. These circumstances included the fact that,

as an investigating police officer testified at the hearing on Mr. Davis’s motion, Ms.

Nance told him on the day of the shooting that she could see Mr. Davis’s face

“clearly” when she moved alongside and then past his car. In addition, Ms. Nance’s

photo array identification occurred only eight days after the shooting. The court also

determined that Ms. Nance was paying attention during her interaction with Mr.

Davis, as demonstrated by her accurate identification and certainty in identifying

him.

Ms. Nance was reluctant to testify in court. To secure her appearance, the

government obtained a material witness warrant, pursuant to which she was arrested.

During her trial testimony, Ms. Nance conveyed that she did not want to be in court

because she did not feel “comfortable” or safe and expressed anger at having spent

three days in jail before testifying. The court described Ms. Nance as

“uncooperative” and permitted the government to treat her as a hostile witness and

to lead her.

Ms. Nance’s discomfort and annoyance was reflected in her testimony, in

which she expressed little confidence in the accuracy of her identification of Mr.

Davis and claimed that her selection of him in the photo array was based more on

the video of the shooting, which she had watched several times, than on what she

saw on the day of the shooting. She also stated that her initial description to police

of the shooter’s appearance was based not on her own observations but on what other

witnesses told her. Ms. Nance acknowledged, however, that she identified Mr. Davis

as the gunman from the photo array and that she previously told the grand jury that

her identification was accurate.

2. Legal Framework and Standard of Review

“Out-of-court identifications are addressed in a two-step inquiry: whether the

identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of misidentification, and if so[,] whether the identification is

nonetheless sufficiently reliable.” Walker v. United States, 201 A.3d 586, 596 (D.C.

2019) (citation modified). As relevant here, if a defendant successfully establishes

that identification procedures were impermissibly suggestive, “then the government

may avoid suppression only by establishing that the identification was nonetheless

reliable viewed in the totality of the circumstances.” (Floyd) Long v. United States,

156 A.3d 698, 707 (D.C. 2017); see Morales v. United States, 248 A.3d 161, 176

(D.C. 2021) (“Reliability is the linchpin in determining the admissibility of

identification testimony.” (citation modified)). “This requires weighing the

independent (and non-suggestive) basis for the identification against ‘the corrupting

effect of the suggestivity’ itself.” Morales, 248 A.3d at 176 (citation modified)

(quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). In determining whether

an identification was sufficiently reliable, courts consider the five factors outlined in

Biggers: “(1) the opportunity of the witness to view the criminal at the time of the

crime, (2) the witness’[s] degree of attention, (3) the accuracy of [their] prior

description of the criminal, (4) the level of certainty demonstrated by the witness at

the confrontation, and (5) the length of time between the crime and the

confrontation.” Id. (quoting Biggers, 409 U.S. at 199-200); see also Caesar v. United

States, 357 A.3d 1146, 1158 (D.C. 2026) (noting that we have “previously adopted

the five-factor totality test set forth” in Biggers “to determine the reliability of an

identification”).

“Suggestivity and reliability are mixed questions of law and fact. We review

mixed questions of law and fact under our usual deferential standard of review for

factual findings and apply de novo review to the ultimate legal conclusions based on

those facts.” Young v. United States, 305 A.3d 402, 435 (D.C. 2023) (citation

modified). With regard to the admissibility of pretrial identifications, “[t]his court is

bound by the trial court’s findings on suggestivity and reliability as long as they are

supported by the evidence and are in accordance with the law.” Bolanos v. United

States, 938 A.2d 672, 685 (D.C. 2007).

3. Discussion

As neither party challenges the trial court’s determination that the photo array

used to identify Mr. Davis was impermissibly suggestive, we assume, without

deciding, that it was, and we turn to reliability. See Young, 305 A.3d at 436

(assuming, without deciding, the pretrial identification was impermissibly

suggestive before turning to reliability analysis); see also Caesar, 357 A.3d at

1159-60 (determining that when both parties agree that an out-of-court identification

is “inherently suggestive,” “the issue of suggestiveness is dispelled, and we need

only consider whether the identification was reliable”).

Mr. Davis argues that the court erred in its reliability finding because Ms.

Nance’s prior description of him “did not provide meaningful support for the

accuracy” of the photo array and was, in the trial court’s words, “bland.” We

disagree. Starting with the first Biggers factor, the evidence shows that Ms. Nance

observed Mr. Davis in broad daylight moments before the shooting when their cars

were parallel to each other at a traffic light. At the hearing on Mr. Davis’s motion to

exclude the identification, an investigating police officer testified that Ms. Nance

told him on the day of the shooting that she could see Mr. Davis’s face “clearly”

during this interaction. While Ms. Nance’s opportunity to view Mr. Davis was not

as extensive as in some of our other cases, see, e.g., McCoy v. United States, 781

A.2d 765, 770 (D.C. 2001) (noting the victim had a “good opportunity” to view the

defendant during their three-to-five-minute struggle in a sunlit stairwell), the

evidence supports the trial court’s finding that “nothing obstruct[ed]” Ms. Nance’s

“ability to see the shooter’s face,” which bolsters the conclusion that her

identification of Mr. Davis was reliable, see Bolanos, 938 A.2d at 685.

As the third Biggers factor generally reinforces the second because the

accuracy of a witness’s prior description of the defendant is indicative of the

witness’s attentiveness, we assess those factors together. See (John) Jones v. United

States, 879 A.2d 970, 978 (D.C. 2005) (holding that a witness’s accurate description

on the day of the crime allows a trial court to conclude that their degree of attention

supports a reliability finding); see also United States v. Rivera-Rivera, 555 F.3d 277,

284 (1st Cir. 2009) (concluding that a witness’s identification was reliable where,

among other things, the witness’s “recollection of detail reflect[ed] attentiveness to

his surroundings”). Here, the record shows that Ms. Nance described the shooter to

responding police officers as an older Black male who was approximately six feet

tall, weighed roughly 200 pounds, and had a muscular build and a gray beard. Thus,

she reported a “distinct” characteristic—Mr. Davis’s gray beard, cf. Patrick v.

United States, 343 A.3d 573, 588 (D.C. 2025) (concluding that witness’s prior

description did “not meaningfully contribute to a finding of reliability” when she

“omitted” the most “distinctive characteristics” of the defendant, including his “full

beard”)—and provided detailed features that proved to be, as the trial court found,

“pretty spot on” as to what Mr. Davis looks like. Cf., e.g., Young, 305 A.3d at 437

(noting that a witness’s accurate description of the defendant’s build and height

before the photo array identification contributed to a finding of reliability); Cureton

v. United States, 386 A.2d 278, 285-86 (D.C. 1978) (noting that eyewitness’s

description revealed “close attention to detail” where it included assailants’ “race,

sex, age, height and weight” and described “hair style, facial hair, skin color,

clothing, and the type of weapon employed by each”).

Ms. Nance’s description strongly suggests that she was paying attention when

she observed Mr. Davis. There is no indication that, for example, she was under

duress or focused on the surrounding circumstances when she initially observed Mr.

Davis. Cf. Patrick, 343 A.3d at 588 (noting that the witness had little opportunity to

observe the defendant thoroughly because she was “under serious distress” with a

gun pointed at her); Morales, 248 A.3d at 178 (concluding that a police officer’s

attention to a shooting suspect’s identification was diminished by the officer’s

“principal aim” of safely apprehending the suspect who was fleeing and “fidgeting”

with his waistline “as if to draw a weapon”). Even if Ms. Nance’s description was,

in the words of the trial court, “bland,” its accuracy supports a determination that

she was attentive because, as the court also found, it “matche[d]” Mr. Davis’s

appearance.

Accordingly, the record supports the trial court’s finding that Ms. Nance’s

degree of attention was “pretty strong,” which, combined with her prior accurate

description before viewing the suggestive photo array, favors a finding of reliability.

See (John) Jones, 879 A.2d at 978; see also McCoy, 781 A.2d at 770-71 (holding

that a victim’s “detailed and accurate description” of the defendant “prior to viewing

the photo array” supported the conclusion that their identification was reliable);

(Damian) Long v. United States, 687 A.2d 1331, 1338 (D.C. 1996) (reaching a

similar conclusion).

Turning to the fourth Biggers factor, Ms. Nance was adamant upon viewing

the photo array that Mr. Davis was the gunman. She told officers, after selecting Mr.

Davis’s photo from the array, that she “remember[ed] that nose” and was “one

hundred percent sure that’s him.” She also noted that she was “positive” about her

identification and that her “heart [was] pounding.” Although Ms. Nance’s

confidence assuages any concern that her identification was completely off base,

which is relevant in the totality of the circumstances, we decline to ascribe it

affirmative weight in our analysis. See United States v. Arthur, 764 F.3d 92, 102 (1st

Cir. 2014) (“A witness’[s] lack of confidence is certainly a reliable warning sign,

while the presence of confidence is probably closer to a neutral factor.” (citation

modified)). Indeed, we have previously noted that this factor “is of minimal

importance when the [witness’s] certainty is expressed only after [a] suggestive

identification procedure, and would thus seem to be a byproduct of that

suggestivity.” Patrick, 343 A.3d at 589 (citation modified); see also (Christie

Carolyn) Jones v. United States, 262 A.3d 1114, 1125 (D.C. 2021) (noting the wide

acceptance by courts “across the country” that there is a “weak correlation between

confidence and” “the accuracy of [an] eyewitness identification”). While there is

some evidence, like her focus on Mr. Davis’s nose, that Ms. Nance’s confidence in

her identification was not necessarily a “byproduct” of the suggestive photo array,

see Patrick, 343 A.3d at 589, it is undisputed that the photo array was impermissibly

suggestive. Consequently, this factor, even when considering Ms. Nance’s certainty,

is of “minimal importance” and carries no “weight in our reliability calculus.” See

id.; Benn v. United States, 978 A.2d 1257, 1268 & n.39 (D.C. 2009) (noting that “the

correlation between a witness’s expression of certainty in an identification and its

accuracy is, at a minimum, greatly overstated, and perhaps unwarranted”).

Lastly, only eight days passed between the shooting and Ms. Nance’s

identification of Mr. Davis from the photo array. This relatively short passage of

time suggests, as the trial court noted, that Ms. Nance’s identification was far from

“stale,” and supports a finding that her identification was reliable. 2 See (John) Jones,

879 A.2d at 978 (holding that a photo identification five days after the offense

supported reliability); McCoy, 781 A.2d at 771 (concluding that a witness’s

identification six weeks after the offense was reliable); see also Biggers, 409 U.S. at

201 (determining that an identification seven months after the crime supported a

finding of reliability, even though such a length of time is typically “a seriously

We are unconvinced by Mr. Davis’s assertion that our conclusion in Patrick—that a gap of three hours between “the crime and confrontation” undermines a witness’s reliability—impacts our decision here because Patrick dealt with a show-up identification, which has far stricter standards for timing than a photo array, see 343 A.3d at 589, and is generally considered less “reliable,” id. at 581, 585-86.

negative factor,” where the witness “made no previous identification at any of the

showups, lineups, or photographic showings”).

In sum, the reliability of Ms. Nance’s photo array identification of Mr. Davis

has ample support in the record. And most of the Biggers reliability factors—

including the first and fifth, which are of “great importance”—weigh in favor of its

admission. See Young, 305 A.3d at 437 n.22.

“Separate” from the Biggers factors, Mr. Davis also argues that the

government failed to establish the reliability of Ms. Nance’s photo array

identification because, in his characterization, Ms. Nance “herself testified that it

was not accurate,” and a “fundamentally flawed photo identification cannot be

nevertheless deemed reliable when the person who made the identification says it

was not reliable.” We take issue with both Mr. Davis’s premise and his conclusion.

The premise—that Ms. Nance stated that her identification was not accurate—

is not supported by the record. Ms. Nance—who appeared pursuant to a material

witness warrant, said she felt uncomfortable, and was described by the trial court as

“uncooperative”—testified that she “didn’t know” who the shooter was and that she

did not see the shooter’s face when he got out of the Maserati. But she did not

disavow her photo-array identification of Mr. Davis or her statement that she saw

him at the traffic light preceding the one where the shooting took place and did not

say that Mr. Davis was not the shooter. Moreover, she frequently expressed a lack

of recollection about the shooting and its aftermath and sometimes deferred to her

prior grand jury testimony when impeached by the government.

As for his conclusion—that Ms. Nance’s trial testimony bore on the reliability

of her pretrial identification—Mr. Davis provides no authority for it. Biggers sets

forth the factors relevant to the reliability of an identification, and they all focus on

the circumstances surrounding the identification itself. If the factors demonstrate

reliability and the identification is admitted, it is subject to consideration by the jury.

At that point, any inconsistencies, wavering, or recantation at trial “present questions

of credibility, and issues of credibility are committed to the sole and sound discretion

of the jury, as the determiners of fact.” Payne v. United States, 516 A.2d 484, 493

(D.C. 1986) (per curiam); accord (Christopher) Smith v. United States, 809 A.2d

1216, 1225 (D.C. 2002) (“It was for the factfinder . . . to assess the witness’[s]

credibility based upon his testimony at trial and any impeaching evidence.”). Even

if it was clear that Ms. Nance had recanted her previous testimony, it remains for

“the trier of fact” to “decide whether to accept as true the witness’s original

testimony or revised testimony.” In re M.C., 8 A.3d 1215, 1227 (D.C. 2010) (quoting

Payne, 516 A.2d at 493); cf. Payne, 516 A.2d at 493 (“Conflicts created by a

witness’[s] recantation, like other internal inconsistencies within a witness’[s]

testimony, are factual questions for the jury to resolve.” (citation modified)). 3

C. The Trial Court Was Within Its Discretion in

Admitting the Flight Evidence

Mr. Davis next argues that the trial court erred in two ways when admitting

evidence of his flight after the shooting. The court’s first misstep, according to Mr.

Davis, was admitting the evidence despite the government’s failure to satisfy our

strict criteria for the admission of flight evidence. The court’s second blunder, in Mr.

Davis’s view, was its failure to recognize that part of the flight evidence was

inadmissible hearsay. His contentions are not compelling.

Another procedural wrinkle in Mr. Davis’s argument vis-à-vis Ms. Nance’s testimony is his failure to renew his motion to exclude her identification of him at trial. We have previously noted that one court has “held that a defendant’s failure to renew a pretrial motion to suppress based on evidence presented during trial precludes the defendant’s reliance on the new evidence on appeal.” (Floyd) Long, 156 A.3d at 706 n.1 (citing United States v. Hicks, 978 F.2d 722, 724 (D.C. Cir. 1993)). And we have adopted a similar position. See Hampleton v. United States, 10 A.3d 137, 139 n.4 (D.C. 2010) (“Because Mr. Hampleton did not move for reconsideration of the suppression motion at trial, he may not rely on later trial testimony to challenge the trial court’s ruling.”); see also Otts v. United States, 952 A.2d 156, 167 (D.C. 2008) (concluding that a failure to “revisit” a motion decided before trial when “new grounds” “surface at trial” “may preclude appellate relief, even if [the] claim[ ] ha[s] merit”). We need not decide, however, whether Mr. Davis can rely on Ms. Nance’s trial testimony on appeal because consideration of her testimony, particularly her uncooperative demeanor, does not alter our conclusion that her pretrial identification was reliable. See (Floyd) Long, 156 A.3d at 706 n.1; Wade v. United States, 173 A.3d 87, 92 (D.C. 2017).

1. Additional Background

Before trial, the government filed a motion in limine providing notice of its

intention to introduce evidence of consciousness of guilt based on Mr. Davis’s flight

after the shooting. It based its motion on Mr. Davis’s departure for Costa Rica

“within days” of the shooting; his hiding of his Maserati in the garage of a relative’s

house when he left; his inquiry about how quickly the color of the wheels on his

Maserati could be changed; his deportation from Costa Rica after overstaying his

visa; and his expressed belief that he could not be extradited to the United States

from Costa Rica. In opposition, Mr. Davis asserted that his trip to Costa Rica was

not flight because it was planned before the shooting and consistent with his history

of business travel. He also argued that there was no evidence that he knew the police

were looking for him and that it was not unusual to leave a car, especially a luxury

vehicle like a Maserati, in a garage while traveling. In addition, Mr. Davis argued

that the probative value of the evidence, when considered in light of his alternative

explanation, was substantially outweighed by its prejudicial impact.

After hearing evidence and arguments on the motion, the trial court found that

the evidence met the test for admissibility. The court also allowed Mr. Davis to

introduce airline and bank records from January through August 2021 to counter the

government’s flight argument.

At trial, Mr. Davis objected on hearsay grounds to the introduction of evidence

recounting the investigation into his whereabouts in the weeks after the shooting,

arguing that the testifying officer, MPD Detective Matthew Dailey, learned about

the addresses allegedly associated with him from an outside source. The court

overruled the objection, concluding that the information was not being offered for

the truth of the matter asserted. Mr. Davis also objected on hearsay grounds to

Detective Dailey testifying that Mr. Davis was located in Costa Rica because the

detective was not present when he was arrested and therefore lacked personal

knowledge of the matter. The court overruled the objection, ruling that the officer

was recounting the steps of the investigation, which was not hearsay.

2. Admission of the Flight Evidence Generally

We review the admission of evidence of flight for “an abuse of discretion and

Kotteakos harmless error.” King v. United States (King II), 75 A.3d 113, 118 (D.C.

2013); see Kotteakos v. United States, 328 U.S. 750, 765 (1946) (holding that, for

nonconstitutional error, affirmance is appropriate if the court “can[ ] say, with fair

assurance, after pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by the error”);

Chandler v. United States, 349 A.3d 1210, 1224-25 (D.C. 2026) (same).

“It is well settled in this jurisdiction that evidence of flight or disappearance

can be admitted at trial as evidence of consciousness of guilt.” (Curtis) Smith v.

United States, 777 A.2d 801, 807 (D.C. 2001). “[B]efore evidence of flight may be

admitted, the government must establish the following: (1) that the defendant’s

behavior was flight, (2) that the flight demonstrated consciousness of guilt, (3) that

the consciousness of guilt was consciousness of guilt of the crime charged[,] and

(4) that consciousness of guilt of the crime charged demonstrates actual guilt.” King

II, 75 A.3d at 118-19. Because of the potentially “strong impact” flight evidence

might have on a jury, “once the trial court is satisfied these factors are met, [it] must,

as in every decision to admit evidence, weigh its probative value against the potential

for undue prejudice.” Id. (citation omitted).

We “have acknowledged that the existence of alternative explanations for a

defendant’s flight—other than consciousness of guilt of the charged crime—will not

necessarily preclude the presentation of flight evidence to a jury.” Id. at 119 n.9

(citing (Curtis) Smith, 777 A.2d at 808). This court has, however, “never substituted

the jury’s evaluation of the defendant’s competing explanation for the trial court’s

obligation to determine in the first instance whether the circumstances reasonably

support an inference that the defendant fled because of consciousness of guilt of the

charges relating to the charged crime.” Id. (citation modified). “[W]hen giving a

flight instruction, the trial court must fully apprise the jury that flight may be

prompted by a variety of motives and thus of the caution which a jury should use

before making the inference of guilt from the fact of flight.” Headspeth v. United

States, 86 A.3d 559, 564 (D.C. 2014) (citation modified).

Mr. Davis claims that, because he provided an alternative explanation for his

presence outside of the United States, the probative value of the flight evidence was

in “substantial doubt.” But that is not the standard for admitting flight evidence. See

King II, 75 A.3d at 118-19. Merely offering an alternative explanation “does not

render the flight evidence inadmissible,” (Curtis) Smith, 777 A.2d at 808, because

the trial court may still find that “the circumstances reasonably support an inference

that [the defendant] fled because of consciousness of guilt of the charges relating to

[the charged crime],” King II, 75 A.3d at 119 n.9 (alterations in original). As long as

the trial court considers the alternative reason proffered by the defendant for

avoiding the police, it may still admit the flight evidence if it determines that it is

relevant to consciousness of guilt of the charged crime. See id. at 119. Here, the trial

court found that such a reasonable inference existed, and Mr. Davis does not explain

why that determination was error.

Mr. Davis also makes a cursory argument that the court erred because the

prejudicial impact of the evidence outweighed its probative value. Even putting aside

the perfunctory nature of his assertion, see Comford v. United States, 947 A.2d 1181,

1188 (D.C. 2008) (“It is not enough merely to mention a possible argument in the

most skeletal way, leaving the court to do counsel’s work, create the ossature for the

argument, and put flesh on its bones.” (citation modified)), it falls short because the

record shows that the trial court carefully weighed “whether the probative value of

such testimony is outweighed by the potential for prejudicial impact[,]” King II, 75

A.3d at 118 (citation modified). The court repeatedly expressed concern that the

government’s position about Mr. Davis’s travel to Costa Rica was not strong enough

and repeatedly delayed ruling on the government’s motion. The court was wary of

any attempt by the government to “bootstrap” consciousness of guilt evidence “into

an argument that supports indicia of flight.” It also made clear that it would not allow

“speculation” about Mr. Davis’s travel “before a jury, because that’s damning.” This

apprehension led to the conditional granting of the government’s motion so long as

the parties agreed to let Mr. Davis introduce evidence of his alternate travel

explanation.

As the trial court recognized the “strong impact” flight evidence might have

on a jury and weighed that evidence’s “probative value against the potential for

undue prejudice,” id. at 118-19 (citation modified), the court did not abuse its

discretion in admitting it.

3. Mr. Davis’s Hearsay Arguments

Mr. Davis’s hearsay arguments are similarly unpersuasive. “Hearsay

evidence, the in-court testimony of an out-of-court statement offered to prove the

truth of the matter asserted, is generally not admissible at trial.” Laumer v. United

States, 409 A.2d 190, 194 (D.C. 1979) (en banc). An out-of-court statement “is not

admissible unless it is not offered at trial to prove the truth of the matter asserted and

therefore not hearsay, or it falls under another exception to the rule against hearsay.”

Ashby v. United States, 199 A.3d 634, 653 (D.C. 2019) (citation modified). “We

review the admissibility of evidence for abuse of discretion, but the underlying

question of whether or not a particular hearsay exception applies to certain

statements is a question of law which we review de novo.” (Charles) Johnson v.

United States, 341 A.3d 1082, 1090 (D.C. 2025) (citation modified).

On appeal, Mr. Davis reiterates the arguments he made at trial about Detective

Dailey’s testimony, including that the detective lacked personal knowledge with

respect to testimony that two addresses were associated with Mr. Davis and that the

government eventually located Mr. Davis in Costa Rica. The government contends

that the trial court was correct in ruling that Detective Dailey’s testimony about the

addresses was not offered for the truth of the matter asserted and, therefore, not

hearsay. The government does not argue that the court correctly admitted Detective

Dailey’s testimony about locating Mr. Davis in Costa Rica; instead, it asserts that,

even assuming the testimony was hearsay, any error was harmless because

unchallenged evidence also established that Mr. Davis was found in Costa Rica in

August 2021.

Starting with the addresses, the government has the stronger argument.

Detective Dailey testified that he visited two Maryland residences, one listed as Mr.

Davis’s home and the other belonging to Mr. Davis’s mother. The trial court

overruled Mr. Davis’s hearsay objection for two reasons: first, Detective Dailey was

“merely explaining what investigative tactics he took to locate the person wanted in

this case; nothing more, nothing less,” which was not hearsay; and second, his

testimony was not being offered for the truth of the matter asserted (i.e., that Mr.

Davis lived there). The court’s decision is squarely supported by our case law;

accordingly, we see no error.

Out-of-court statements introduced at trial are not hearsay if they are not

offered to prove the truth of the matter asserted. Ashby, 199 A.3d at 653. Relatedly,

“[e]vidence outlining the background of an investigation is admissible as

non-hearsay.” Perritt v. United States, 640 A.2d 702, 705 (D.C. 1994); see Gamble

v. United States, 901 A.2d 159, 170 (D.C. 2006).

In Perritt, we held that testimony related to the investigatory process was

offered not for the truth but to show that the investigation resulted in the

identification of the defendant by two witnesses. 640 A.2d at 704-05. As a result, we

concluded that “the trial court did not err in determining that the detective’s

testimony concerning the investigation of the shooting was admissible for the

nonhearsay purpose for which it was offered.” Id. at 705. Similarly, the investigatory

process Detective Dailey testified about culminated in the discovery of important

evidence: Mr. Davis’s Maserati locked up in a relative’s garage. In other words, the

government offered his testimony to show that the investigation he undertook into

Mr. Davis led to the finding of inculpatory evidence, not for the truth of the matter

asserted—that Mr. Davis was affiliated with the addresses. Consequently, Detective

Dailey’s testimony about the addresses was not hearsay. See id.; accord United

States v. Duran, 941 F.3d 435, 447 (10th Cir. 2019); United States v. Meserve, 271

F.3d 314, 319 (1st Cir. 2001).

Turning to Detective Dailey’s testimony that the government located Mr.

Davis in Costa Rica, Mr. Davis claims that the trial court erred in admitting the

testimony and that the error was not harmless because the government relied on Mr.

Davis’s presence in Costa Rica in its closing argument to contend that he fled the

country after the shooting. The government asserts that any error was harmless. We

agree with the government.

Assuming without deciding that the trial court erred in admitting Detective

Dailey’s testimony on this point, we “ask whether the government has carried its

burden of demonstrating with fair assurance that the judgment was not substantially

swayed by the error.” Grimes v. United States, 252 A.3d 901, 919 (D.C. 2021)

(citation modified). Based on the record, we are confident that the government has

met its burden. In addition to Detective Dailey’s testimony, the government also

introduced a certified Customs and Border Protection (CBP) record showing that

Mr. Davis returned to the United States from Costa Rica in August 2021. 4 That

document alone provided the government with a basis to assert in its closing

argument that Mr. Davis was located “in Costa Rica, of all places.” The government

may have used Detective Dailey’s testimony to bolster this fact, but that testimony

ultimately was cumulative of other evidence documenting Mr. Davis’s travel. Thus,

the admission of the testimony was harmless. 5 See id. at 920 (concluding that when

Although Mr. Davis’s objected to the admission of the CBP document (but not its certification) at trial, he does not challenge its admission on appeal. Accordingly, Mr. Davis abandoned any challenge to the CBP document on appeal, and it can be considered as evidence showing his travel to Costa Rica.

Reinforcing our conclusion are our previous decisions holding that the opportunity to counter flight evidence with defense evidence may contribute to a determination that error in admitting flight evidence was harmless. See Gaines v. United States, 994 A.2d 391, 402 (D.C. 2010) (concluding that the defendant’s “forceful[ ]” presentation of “his theory of innocent flight” contributed to a determination of harmlessness); (Curtis) Smith, 777 A.2d at 809 n.13 (deciding that any error related to the introduction of flight evidence was harmless, in part, because

“inadmissible hearsay was largely cumulative of other evidence,” its admission was

harmless); In re T.B., 331 A.3d at 255 (holding that the admission of hearsay

evidence was harmless when the officer’s testimony “added little or nothing” to

another officer’s similar opinion); Doe v. Medlantic Health Care Grp., Inc., 814

A.2d 939, 950 (D.C. 2003) (“[T]he admission of Goldring’s out-of-court statement

through Fuell’s testimony was cumulative of other evidence to the same effect, and,

therefore, harmless.”); Settles v. United States, 615 A.2d 1105, 1109 (D.C. 1992)

(“Relevant to a determination of whether error (assumed or actual) in admitting

“[d]efense counsel was given full opportunity to explain any arguments on this issue to the jury”); see also Williams v. United States, 52 A.3d 25, 41-42 (D.C. 2012) (holding that the admission of evidence showing that the appellant did not attend the funeral of the decedent, his estranged wife, was harmless because appellant mitigated the evidence through cross-examination at trial). In this case, the court admitted Mr. Davis’s airline and bank records and testimony about his job in the music industry. As Mr. Davis relied on this evidence during his closing argument to explain why he traveled to Costa Rica and how the trip fit into his normal business practice and to insinuate that the trip was planned before the shooting, we are further convinced that any error related to this portion of Detective Dailey’s testimony was harmless.

We may also consider a jury instruction on flight in our harmlessness analysis. See Pelzer v. United States, 166 A.3d 956, 966 (D.C. 2017); accord (Curtis) Smith, 777 A.2d at 808-09 & n.13 (concluding that a jury instruction on flight evidence may undermine the harmful effect of improperly admitted flight evidence). Here the court “directed the jury not to impute any consciousness of guilt to [Mr. Davis] from his flight unless it . . . first concluded that the evidence showed that [Mr. Davis] had in fact fled,” Pelzer, 166 A.3d at 966 (citing Criminal Jury Instructions for the District of Columbia, No. 2.301 (5th ed. 2015)), and that, if he did flee, to consider that his flight could have been motivated by innocent reasons, see (Curtis) Smith, 777 A.2d at 809 n.13.

certain evidence is harmless is the degree to which the evidence is cumulative of

other, properly admitted evidence.”).

D. The Evidence Was Sufficient to Convict Mr. Davis

of ADW with Respect to P.N.

Mr. Davis argues that the evidence was insufficient to convict him of ADW

with respect to P.N. We disagree.

1. Legal Framework and Standard of Review

We review a challenge to the sufficiency of the evidence de novo. Bailey v.

United States, 257 A.3d 486, 492 (D.C. 2021). “The evidence is sufficient if any

rational fact-finder could have found the elements of the crime beyond a reasonable

doubt.” Sanders v. United States, 330 A.3d 1013, 1032 (D.C. 2025) (quoting White

v. United States, 207 A.3d 580, 587 (D.C. 2019)). In addressing a sufficiency

challenge, we view the evidence in the light most favorable to the verdict, giving

“full play” to jury determinations about credibility, the weight of the evidence, and

which reasonable inferences to draw from the facts presented. Id. (quoting White,

207 A.3d at 587). “[N]o distinction is made between direct and circumstantial

evidence” when reviewing a sufficiency claim. Mitchell v. United States, 64 A.3d

154, 157 (D.C. 2013). “Although the government bears the burden of presenting

sufficient evidence, the government is not required to negate every possible

inference of innocence.” Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C.

2017) (citation modified). Even so, we “must consider all of the evidence including

that favorable to the defendant.” Schools v. United States, 84 A.3d 503, 508 (D.C.

2013) (citation modified).

To establish that Mr. Davis committed ADW with regard to P.N., the

government had to prove beyond a reasonable doubt “each of the elements of assault

in addition to proving that the assault was committed with a dangerous weapon.”

Mobley v. United States, 101 A.3d 406, 419 n.10 (D.C. 2014) (quoting Ruffin v.

United States, 642 A.2d 1288, 1295 (D.C. 1994)). “The three elements of assault

are: (1) an act on the part of the accused (which need not result in injury); (2) the

apparent present ability to injure the victim at the time the act is committed; and

(3) the intent to perform the act which constitutes the assault at the time the act is

committed.” Perez Hernandez v. United States, 286 A.3d 990, 997 (D.C. 2022) (en

banc) (quoting Mobley, 101 A.3d at 419 n.10).

2. Discussion

Mr. Davis argues there was insufficient evidence to convict him of ADW with

respect to P.N. for two reasons: (1) P.N. was not injured in the shooting and (2) the

government did not prove that he had the necessary intent because there is no

evidence showing that he knew P.N. was in the car when he fired the shots.

Mr. Davis’s first argument, which he does not elaborate on or provide any

legal support for, is unavailing because it is well settled in this jurisdiction that “an

assault conviction will be upheld . . . even though it causes or threatens no physical

harm to the victim.” Dunn v. United States, 976 A.2d 217, 220 (D.C. 2009) (quoting

Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990)); accord Perez Hernandez,

286 A.3d at 997-98 (concluding that “no physical injury need have resulted” to

constitute an assault).

Mr. Davis’s second argument appears at first blush to be more compelling. He

intertwines his supposed lack of intent with a claim that the trial court erroneously

instructed the jury on the “transferred intent” doctrine. Ultimately, however, when

the rubber meets the road, Mr. Davis’s argument fails. For starters, the trial court

instructed the jury on the theory of concurrent intent—not transferred intent—which

permits a jury to reasonably infer that, “where the means employed to commit the

crime against a primary victim . . . create[d] a zone of harm around that victim,” “the

defendant intended that harm to all who are in the anticipated zone.” Ruffin, 642

A.2d at 1298 (citation modified); see Gordon v. United States, 285 A.3d 199, 212

n.10 (D.C. 2022) (“This jurisdiction has adopted the theory of concurrent

intent . . . .”). More importantly, ADW is an extension of simple assault, see Spencer

v. United States, 991 A.2d 1185, 1192 (D.C. 2010), which, in the case of an

“attempted-battery assault” like the one at issue here, requires the government to

show only that the defendant had “the intent to perform the act which constitutes the

assault at the time the act is committed.” Perez Hernandez 286 A.3d at 997-98

(citation modified); see id. at 1000 (noting that “[t]here need not be a ‘specific intent’

to cause injury” for “an attempted battery (or completed battery)” (citation

modified)).

Considering the evidence through this lens, we hold that a rational jury could

have found beyond a reasonable doubt that Mr. Davis committed the elements of

ADW with respect to P.N. See Sanders, 330 A.3d at 1032. The evidence at trial

established that Ms. Nance’s car was parallel to and to the left of Mr. Davis’s vehicle

while stopped at the traffic light preceding the one where the shooting occurred. This

placed P.N., who was seated in the front passenger seat, on the side of Ms. Nance’s

car closest to Mr. Davis. Although the front passenger window may have had a slight

tint, the tint was not dark enough to prevent people outside from seeing into the car.

The evidence showed that before Mr. Davis exited his car his driver’s side window

was down and he was sticking his head out of it, seemingly looking at Ms. Nance’s

vehicle. As Mr. Davis exited his car, he was again staring at Ms. Nance’s car from

an angle that suggests that he was able to see into the front passenger seat. He then

moved from the rear passenger side to the driver’s side and got within “inches” of

Ms. Nance’s car, to the point that he was able to tap on it. At that point Mr. Davis

was standing next to the rear driver-side door, the window of which was tinted more

than the front windows but not enough to prevent him from seeing inside from such

a close distance. Ms. Nance’s driver’s window was also partially down. Mr. Davis

then fired around seven shots into both windows on the driver’s side of Ms. Nance’s

car.

Taking this evidence together, we hold that it was sufficient for the jury to

reasonably infer that Mr. Davis was cognizant that P.N. was in Ms. Nance’s car or,

at the very least, that she “was not alone.” Mobley, 101 A.3d at 420. We also

conclude that the evidence was sufficient for a rational factfinder to find that Mr.

Davis—when firing seven bullets at Ms. Nance’s car—had the requisite intent to be

convicted for ADW with respect to P.N. See id. (upholding ADW convictions

because it was reasonable for a jury to infer that appellants “had reason to believe”

that the target of their bullets “was not alone and that gunshots would endanger” the

other victims “whose cars were in the line of fire”); Ruffin, 642 A.2d at 1296

(sustaining conviction for ADW with respect to a vehicle’s passengers when the

appellant knew the driver of the car, at which he unleashed “a hail of gunfire,” was

not alone). “This is so even if [Mr. Davis] did not specifically aim at [P.N.] or

intentionally seek to harm [her].” Ruffin, 642 A.2d at 1296; see id. (“[T]he

intentional firing of multiple shots into the confined space of a small passenger

vehicle could sustain an assault charge on each occupant of the car, even if the

assailant did not have actual knowledge that such passengers were present.”).

E. Mr. Davis Must Be Resentenced

Mr. Davis argues that the trial court erred when sentencing him because it

incorrectly thought it was bound to follow the District of Columbia’s Voluntary

Sentencing Guidelines. We agree that the trial court erred and we therefore vacate

Mr. Davis’s sentences and remand to the Superior Court for resentencing before a

different judge.

1. Additional Background

After the guilty verdict, the government filed a sentencing memorandum

seeking a total sentence of 360 months. At an initial hearing, Mr. Davis moved to

continue the sentencing because of errors in his Presentence Investigation Report

(PSR). The trial court granted his request but told the parties that the minimum

sentence it could impose was thirty-two and a half years and that, while the parties

“are going to argue for whatever [they’re] going to argue,” the “number may go up,

but it most certainly cannot go down.” Then, before ultimately granting the

continuance, it added, “So in the face of all that, I . . . wonder why you want to put

[sentencing] off.”

At the next sentencing hearing, Mr. Davis repeatedly asked the trial court to

depart from the guidelines on the ground that the recommended sentence was too

severe in light of several mitigating factors. He specifically argued that the

guidelines recommendation that he receive consecutive instead of concurrent

sentences was “excessive” and that a sentence of eleven and half years was “just and

appropriate.” The trial court disagreed, noting that Mr. Davis’s criminal history score

was “driving [the sentencing] train.” This placed him “in the absolute last column”

of the guidelines, “where all those high numbers are.” The court acknowledged Mr.

Davis’s request for a departure but stated that, even if it “were willing to depart,” it

“can’t up and depart without a legal basis.” Any departure, in the court’s view, would

“have to [be] base[d] . . . on mitigation factors that our sentencing Commission has

devised.”

The court then turned “quickly” to the guideline’s mitigating factors and

found that none “appl[ied] in this case.” It noted that Mr. Davis’s request for a

departure was based on the ninth mitigating factor in the guidelines, which allows

for a departure from consecutive sentences if consecutive sentences would be

“excessive” and “result in manifest injustice,” D.C. Voluntary Sentencing

Guidelines Manual § 5.2.3(9) (D.C. Sentencing Commission 2023), but it declined

to depart on this ground because Mr. Davis “could have easily” killed four victims

and, “equally as important,” Mr. Davis’s criminal history was extensive.

Having determined that none of the mitigating factors applied, the court

described Mr. Davis’s sentence as a “math problem” that was “dictate[d]” by the

guidelines, and said that both parties had gotten the math wrong. The court then

“illuminat[ed]” the parties on the correct solution to the math problem. First, for Mr.

Davis’s conviction for AWIKWA, the court noted that a mandatory minimum

sentence of ten years applied because this was not Mr. Davis’s first offense. Next,

the court found that the mandatory minimum for each PFCOV conviction was five

years, but the “bottom guideline number” was seven years because of Mr. Davis’s

criminal history. The court then determined that the lowest guideline number for Mr.

Davis’s three ADW convictions was three and a half years, but it found that, to be a

“guideline compliant sentence,” the ADW sentences needed to “be at least equal to

the PFCOV” sentences of seven years.

After completing this breakdown, the court told the parties that “[t]he

guidelines require this court to run the [AWIKWA] and the ADW [sentences]

consecutive to each other.” The court then revealed that it had called the Sentencing

Commission to “walk [it] through these numbers,” and it had determined, based on

this phone call, that there was “no legal possibility that the [c]ourt can go under” the

thirty-two and a half years that it had identified as Mr. Davis’s minimum sentence

at the previous hearing.

The court then sentenced Mr. Davis to 138 months for his AWIKWA

conviction, 84 months for each ADW conviction—to run consecutively to each other

and the AWIKWA conviction—and concurrent sentences of 84 months for each

PFCOV conviction, for a total of 642 months or fifty-three and half years, thirty-two

and a half years of which Mr. Davis would have to serve consecutively. Mr. Davis

did not object after the sentence was imposed. He now argues on appeal that the

court’s comments at the sentencing hearings “make it clear that [the court] believed

it was obligated to impose a within-guidelines sentence.”

2. Standard of Review

The parties disagree on the applicable standard of review. Mr. Davis contends

that, because he repeatedly asked the court to depart from the guidelines, he

preserved his claim and we should review for an abuse of discretion. The

government argues that we should review only for plain error because Mr. Davis did

not object to his sentence after it was imposed.

Mr. Davis’s argument is more persuasive. “[A] party preserves an issue for

appeal so long as the trial court, at the time it rules and on a realistic assessment of

the record, is fairly apprised of their position.” Evans v. United States, 304 A.3d 211,

222 (D.C. 2023). Although the government is correct that Mr. Davis did not object

after the trial court imposed the sentence, the record establishes that he “fairly

apprised” the court of his position that the guidelines were not mandatory and that

the court should grant a departure. See id. Mr. Davis specifically argued that the

guidelines recommendation that he receive consecutive instead of concurrent

sentences was “excessive” and that a sentence of eleven and half years was “just and

appropriate.” Cf. Briscoe v. United States, 181 A.3d 651, 657 (D.C. 2018) (applying

plain-error standard when defense counsel “never argued” that the court had

discretion not to impose a mandatory-minimum sentence). As noted above, the trial

court disagreed and found that “the guidelines require this court to run the

[AWIKWA] and the ADW [sentences] consecutive to each other.” As this apparent

misunderstanding about the binding nature of the guidelines is the crux of Mr.

Davis’s argument on appeal, we conclude that the issue was adequately preserved.

See id.

Consequently, we review the court’s alleged error for an abuse of discretion.

See (Vincent) Johnson v. United States, 628 A.2d 1009, 1015 (D.C. 1993) (noting

that “the sentencing process is subject to appellate scrutiny for abuse”). “We have

long recognized that the trial court has broad discretion in matters of sentencing.”

Rider v. United States, 687 A.2d 1348, 1353 n.10 (D.C. 1996). But a “[f]ailure to

exercise choice in a situation calling for choice is an abuse of discretion whether the

cause is ignorance of the right to exercise choice or mere intransigence because it

assumes the existence of a rule that admits of but one answer to the question

presented.” (James) Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979); see

also Speaks v. United States, 959 A.2d 712, 719 (D.C. 2008) (acknowledging that a

court may err if it fails or declines to exercise its discretion during sentencing);

Matter of L.J., 546 A.2d 429, 435 (D.C. 1988) (“The Supreme Court has . . . made

plain that we are authorized to reexamine the sentencing process where it is alleged

that the judge totally failed to exercise his discretion in imposing sentence.” (citation

modified)).

3. Discussion

Section 3-101 of the D.C. Code establishes the District of Columbia

Sentencing Commission as an independent agency within the District’s government.

The statute directs the Commission, inter alia, to:

Promulgate, implement, and revise a system of voluntary

sentencing guidelines for use in the Superior Court of the

District of Columbia designed to achieve the goals of

certainty, consistency, and adequacy of punishment, with

due regard for the: (A) Seriousness of the offense;

(B) Dangerousness of the offender; (C) Need to protect the

safety of the community; (D) Offender’s potential for

rehabilitation; and (E) Use of alternatives to prison, where

appropriate[.]

D.C. Code § 3-101(b)(1). The “guidelines promulgated by the Commission shall not

be binding on judges.” Id. § 3-105(a). “Notwithstanding the guidelines, the judge in

an individual case may impose any sentence that does not exceed the maximum term

prescribed by law and is not otherwise prohibited by the Constitution or laws of the

United States or the District of Columbia.” Id. § 3-105(b). And “[t]he sentencing

guidelines shall not create any legally enforceable rights in any party nor shall they

diminish any rights that currently exist.” Id. § 3-105(c).

Mr. Davis does not assert that his sentence was illegal but instead argues that

the trial court misunderstood the guidelines to be mandatory when imposing

consecutive sentences for his three ADW convictions. This misunderstanding was

an abuse of discretion, in his view, because the trial court did not exercise choice

when the situation called for it. The government contends that the court

comprehended the scope of its discretion and “made clear that it understood it could

depart from the Guidelines.” It cites the court’s review of the guidelines’ mitigating

factors as evidence that it knew it could depart but chose not to. The government

also argues that any comments by the court suggesting that it thought the guidelines

were mandatory must be read in context.

Whether the trial court abused its discretion is a close question. On the one

hand, as the government points out, the court, at times, appeared to understand that

the guidelines were discretionary. For example, when reviewing the mitigating

factors, the court declined to depart in part for discretionary reasons, including the

danger that Mr. Davis placed the victims of his assault in and his lengthy criminal

history. It also noted that, in preparation for sentencing, it had reviewed Mr. Davis’s

PSR, the parties’ sentencing memoranda, and letters of support from friends and

family, suggesting that the guidelines would not solely dictate the sentence.

On the other hand, starting with the initial sentencing hearing, the court stated

that Mr. Davis had to be sentenced to thirty-two and a half years and that that number

“most certainly cannot go down” for the sentence to be “compliant with the law and

the guidelines.” Based on this determination, it questioned why Mr. Davis was

asking to continue sentencing when, in its view, the outcome would be the same no

matter what the PSR said. At the next hearing, the court asserted that, if it were to

depart, it “would have to base” the departure “on mitigation factors that our

Sentencing Commission has devised.” Critically, the foundation for the length of

Mr. Davis’s sentence was the court’s determination that “the guidelines require this

[c]ourt to run the [AWIKWA] and the ADW [sentences] consecutive to each other.”

The court then reiterated that there was “no legal possibility that the court can go

under” the thirty-two-and-a-half-year sentence. On balance, these statements,

particularly the last one, cannot be easily explained away as “inartful,” as the

government attempts to do, and they support Mr. Davis’s view of the sentencing

proceeding. 6

Two additional aspects of the sentencing are concerning. First, the trial court

disclosed that it had called the Sentencing Commission “to walk [it] through these

numbers so that [it] would know what [Mr. Davis’s] bottom number is so that when

[it] heard allocutions from [Mr. Davis] . . . to keep [it] off of that number” it could

inform the parties that “there’s no legal possibility that the [c]ourt can go under that

time.” 7 This revelation reinforces the perception that the court’s sentence adhered to

We recently observed in Caesar that “consecutively-running sentences are the default” under D.C. Code § 23-112. 357 A.3d at 1164. The defendant in that case similarly argued that the trial court incorrectly thought it did not have discretion to sentence him concurrently. Id. We held, however, that nothing in the record supported the conclusion that the trial court erroneously felt itself bound by either the guidelines or the statutory scheme when sentencing the appellant to consecutive terms of imprisonment. Id. The same cannot be said for the trial court’s statements in this case, where the court expressed a belief that the guidelines’ mandate, and not its discretion, was the reason for imposing consecutive sentences, and it made no reference to Section 23-112 or any other statute.

Although the issue is not squarely before us, the trial court’s contact with the Sentencing Commission gives us significant pause. “[A] court is not permitted to use extra-judicial information . . . for sentencing purposes.” Carpenter v. United States, 144 A.3d 1141, 1153 n.24 (D.C. 2016). Indeed, such conduct potentially implicates Rule 2.9(A) of the D.C. Code of Judicial Conduct, which states that, subject to limited exceptions not applicable here, “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending[ ] or impending matter[ ].”

the guidelines because the court incorrectly thought they were mandatory, and it thus

reinforces our conclusion that the court abused its discretion by “[f]ail[ing] to

exercise choice” when the situation called for it.8 (Darrell) Jones v. United States,

336 A.3d 657, 663 (D.C. 2025) (quoting (James) Johnson, 398 A.2d at 363). Second,

the trial court indicated at both the initial sentencing hearing and the continued

hearing that it would not seriously entertain arguments that Mr. Davis’s sentence

One purpose of that ban is to avoid “actual or apparent partiality” that could “undermine[ ] the confidence in the judiciary essential to the successful functioning of our democratic form of government.” Belton v. United States, 581 A.2d 1205, 1214 (D.C. 1990) (citation modified). While judges “may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges,” D.C. Code of Jud. Conduct R. 2.9(A)(3), we have not interpreted this “to refer to non-judicial branch personnel.” Foster v. United States, 615 A.2d 213, 217 (D.C. 1992).

We need not analyze at length the trial court’s conduct in this regard because neither party raises the issue, and we have determined that the court erred on other grounds. We note, however, that the court’s communications with the Commission quite possibly violated Rule 2.9(A)’s prohibitions both on initiating and on considering ex parte communications “concerning a pending[ ] matter.” See Foster, 615 A.2d at 216 (noting that a previous version of Rule 2.9(A) “prohibit[ed] both (1) initiating ex parte communications and (2) considering ex parte communications in rendering a decision”). The trial court disclosed that it called the Commission and that it considered the Commission’s responses when sentencing Mr. Davis. The Commission is not comprised of “court staff or court officials,” D.C. Code of Jud. Conduct R. 2.9(A); it is “an independent agency within the District of Columbia government,” D.C. Code § 3-101.

The court’s communication with the Commission, when considering the proscription against ex parte communications, supra note 8, is also an “improper factor” that the court relied on in determining Mr. Davis’s sentence. See Austin, 343 A.3d at 941.

could be less than thirty-two and a half years. The government counters that, because

the court went through the guidelines’ mitigating factors, it sufficiently entertained

Mr. Davis’s arguments. But the court’s language suggests otherwise and stands in

contrast to our decision in Speaks, where we partially relied on the fact that the trial

court heard from the parties on how the guidelines should inform the sentence in

concluding that the court did not abuse its discretion. 959 A.2d at 719. While it is

true that the court allowed Mr. Davis’s counsel to argue for a departure and a

sentence of eleven and a half years, it made clear that it would not actually entertain

this argument because there was “no legal possibility” that it could impose a lower

sentence. Indeed, the court made this point at the initial sentencing hearing before

Mr. Davis made any argument for a lower sentence, stating, “You guys are going to

argue for whatever you’re going to argue. So that number may go up, but it most

certainly cannot go down.” These statements by the court further reveal its failure to

exercise choice in sentencing Mr. Davis and an apparent belief that the guidelines

limited the court to a minimum length of imprisonment. See Matter of L.J., 546 A.2d

at 435 n.16 (holding that a “total failure” to exercise discretion results when a trial

court incorrectly believes it is bound by the recommendation of nonstatutory legal

material); (Darrell) Jones, 336 A.3d at 663, 666 (concluding that the trial court erred

when it improperly confined itself to a nonexistent “hard-and-fast rule” regarding

the admission of evidence when it should have exercised its discretion when

weighing admissibility).

On the whole, the trial court’s statements and actions create at least a

perception that the court thought it was bound to impose a sentence driven not by its

own discretion but by the guidelines. See (James) Johnson, 398 A.2d at 363 (“Failure

to exercise choice in a situation calling for choice is an abuse of discretion whether

the cause is ignorance of the right to exercise choice or mere intransigence because

it assumes the existence of a rule that admits of but one answer to the question

presented.”).

Having found an abuse of discretion, we must determine whether that error

was harmless. See Smallwood v. United States, 312 A.3d 219, 227 (D.C. 2024)

(“This court will affirm the trial court despite a non-constitutional error if the error

was harmless . . . .”). “An error is harmless if we can say, with fair assurance, that

the judgment was not substantially swayed by the error.” Faltz v. United States, 318

A.3d 338, 348 (D.C. 2024) (citation modified).

Mr. Davis argues that the court’s error was not harmless because he presented

several justifications supporting a departure and it is likely that his sentence would

have been lower if the court had understood that it was not bound by the guidelines.

The government disagrees and contends, albeit through the lens of the plain-error

standard, that any error was harmless because the court made clear that it thought

none of the mitigating factors applied and Mr. Davis’s sentence was appropriate

regardless of the guidelines. This demonstrates, according to the government, that

there was no reasonable probability that the error materially impacted Mr. Davis’s

sentence.

Harmlessness also is a close question here, but the record does not

“eliminate[ ]” our “doubt” that the trial court’s error influenced its sentencing

decision. See Smallwood, 312 A.3d at 227 (citation modified). To be sure, the trial

court noted Mr. Davis’s long and often violent criminal history and the four deaths

that Mr. Davis could have caused. But when all was said and done, the court

expressed its belief that it was required to sentence Mr. Davis to consecutive

sentences for his AWIKWA and ADW convictions. While the court was correct that

the guidelines urge courts to impose consecutive sentences when there are

“[m]ultiple crimes of violence involving multiple victims in a single event[,]” D.C.

Voluntary Sentencing Guidelines Manual § 6.1.a, the determination of whether

offenses run consecutively or concurrently is “ultimately made by the Court[,]” D.C.

Voluntary Sentencing Guidelines Manual Ch. 6. The court’s belief that it was

“require[d]” by the guidelines to run the sentences consecutively caused it to tack on

an additional twenty-one years to Mr. Davis’s sentence for his three ADW

convictions. The court had a choice, and we cannot say “with fair assurance” that its

failure to exercise that choice did not “substantially sway” Mr. Davis’s sentence.

Faltz, 318 A.3d at 348; see also Wright v. United States, 508 A.2d 915, 919 (D.C.

1986) (“We cannot sustain a ruling that should have been discretionary, but was not,

even though discretion, properly exercised, might have led to the same result.”).

4. Remand

Finally, “[p]ursuant to our general supervisory authority, we also direct that

the resentencing be conducted by a different judge.” Bradley v. District of Columbia,

107 A.3d 586, 602 (D.C. 2015). “In deciding whether further proceedings should be

conducted before a different judge, our primary concern must be to preserve the

appearance of justice as well as its reality.” Lindsay v. United States, 84 A.3d 50, 53

(D.C. 2014) (citation modified). To make this assessment, we have indicated that

three factors should be considered: (1) whether the original judge would reasonably

be expected upon remand to have substantial difficulty in discarding their previously

expressed views or findings determined to be erroneous, (2) whether reassignment

is advisable to preserve the appearance of justice, and (3) whether reassignment

would be disproportionally wasteful and redundant compared to the benefit in

preserving the appearance of fairness. See In re D.E., 991 A.2d 1205, 1214 (D.C.

2010).

The trial court’s reliance both on what it seemed to think were binding

guidelines and on the Sentencing Commission’s recommendation leaves “lingering

concerns that might affect [Mr. Davis’s] and the public’s perception of the

proceedings on remand.” Id. These concerns create a “substantial difficulty” for the

trial court on remand. Id. In particular, although we in no way suggest that the trial

court would engage in such behavior, there could be an appearance that the court has

an incentive to resentence Mr. Davis to the same term of imprisonment to

demonstrate that the sentence it imposed the first time was the product of a

discretionary decision and not a misunderstanding about the guidelines. See Lindsay,

84 A.3d at 53. Remand to a different judge does “not imply any personal criticism”

of the trial court. In re D.E., 991 A.2d at 1214 (quoting United States v. Robin, 553

F.2d 8, 10 (2d Cir. 1977) (en banc)). “Instead, it [ ] simply recognize[s] that there

may be cases where both for the judge’s sake and the appearance of justice, an

assignment to a different judge is salutary and in the public interest, especially as it

minimizes even a suspicion of partiality.” Id. at 1214-15 (citation modified).

Accordingly, “without casting any aspersion on the conscientiousness and

integrity of the trial judge,” Graves v. United States, 245 A.3d 963, 977 (D.C. 2021),

we vacate Mr. Davis’s sentences and remand to the trial court for resentencing before

a different judge.

III. Conclusion

For the foregoing reasons, we affirm Mr. Davis’s convictions but vacate his

sentences and remand the case to the Superior Court for resentencing.

So ordered.

Davis v. United States

Authorities cited

Opinion · public domain