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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CF-0055
RODNEY HILL ALLEYNE, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2020-CF3-005272)
(Hon. Jason Park, Trial Judge)
(Argued October 3, 2024 Decided December 5, 2024)
Jason K. Clark for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicolas P. Coleman, Charles R. Jones, and Caroline Huether, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH, EASTERLY, and SHANKER, Associate Judges.
SHANKER, Associate Judge: Rodney Hill Alleyne appeals a single conviction—
robbery—out of a series of convictions stemming from a road rage incident. After
a car crash precipitated by Mr. Alleyne’s aggressive driving, Mr. Alleyne pulled the
other driver—Henry Steven Romero-Guardado—out of his car and took his wallet 2
from his pants pocket. He then left the scene without returning it. The jury found
Mr. Alleyne guilty of robbery, in violation of D.C. Code § 22-2801. Now on appeal,
Mr. Alleyne contends that the trial court erred by failing to instruct the jury that
(1) he must have intended to permanently deprive Mr. Romero-Guardado of his
wallet and (2) such intent must have existed at the moment he took the wallet. He
further argues the government put forward insufficient evidence that he intended to
steal Mr. Romero-Guardado’s wallet.
We conclude that reversal is not warranted on any of Mr. Alleyne’s asserted
grounds. First, because robbery’s intent element is satisfied if the defendant takes
the property intending to return it only upon the satisfaction of a condition (e.g.,
payment of a ransom)—and the evidence was sufficient for the jury to find that
Mr. Alleyne possessed that intent—Mr. Alleyne’s sufficiency argument fails.
Second, under plain-error review, assuming Mr. Alleyne is correct that he must have
intended to steal the victim’s wallet at the time he took it, the trial court’s instructions
sufficiently informed the jury of this “concurrence” requirement such that
Mr. Alleyne did not suffer harm to his substantial rights. Finally, again under
plain-error review, Mr. Alleyne has not shown that any durational error in the trial
court’s instructions affected his substantial rights. Accordingly, we affirm. 3
I. Facts and Procedural History
Because Mr. Alleyne raises both instructional and sufficiency arguments, we
describe below both the evidence admitted by the government and select
instructional discussions between the trial court and the parties.
A. The Crash
On a sunny spring day in the District, Mr. Alleyne stopped his car at a red
light behind complainant Mr. Romero-Guardado. Once the light turned green,
Mr. Alleyne began to honk his car’s horn. He then swerved into the right lane, nearly
hitting a different vehicle in the process, and pulled even with
Mr. Romero-Guardado. Once in view, he “began making [angry] hand gestures”
and threw a can at Mr. Romero-Guardado’s vehicle, striking either a window or the
windshield. Then, after speeding up to pass Mr. Romero-Guardado, Mr. Alleyne
swung back into the left lane and, although no cars were in front of him, “slammed”
his brakes. At the time Mr. Alleyne applied his brakes, the two cars were
approximately three feet apart. Unable to stop, Mr. Romero-Guardado hit
Mr. Alleyne’s car. 4
B. The Confrontation
Mr. Alleyne exited his vehicle already upset, indeed, “screaming.” After
approaching Mr. Romero-Guardado’s vehicle with, in the words of an onlooking bus
driver, “a very aggressive type body language,” he “lean[ed] into”
Mr. Romero-Guardado’s vehicle, still screaming, and jerked
Mr. Romero-Guardado’s arm to “g[e]t [Mr. Romero-Guardado] out of [his] car.” He
then got “in [Mr. Romero-Guardado’s] face” and yelled that Mr. Romero-Guardado
“need[ed] to pay for this.” Next, Mr. Alleyne “search[ed]” Mr. Romero-Guardado’s
pants pockets, removed Mr. Romero-Guardado’s wallet, and “tussled” with
Mr. Romero-Guardado while securing it. As part of this struggle, Mr. Alleyne tried
to take Mr. Romero-Guardado’s cell phone, but Mr. Romero-Guardado put it in his
underwear. With the wallet in hand, Mr. Alleyne returned to his car and placed it
inside. Prior to taking Mr. Romero-Guardado’s wallet, Mr. Alleyne never asked for
Mr. Romero-Guardado’s contact information.
Mr. Alleyne then approached Mr. Romero-Guardado’s car anew and began
searching through it, opening the front and back doors. Finding a jacket and a
mechanic’s wrench, he took both from the car. He placed the jacket in his own
vehicle alongside Mr. Romero-Guardado’s wallet but kept the wrench in his hand. 5
All the while, he continued yelling that Mr. Romero-Guardado was “going to have
to pay for this.”
During this confrontation, Mr. Romero-Guardado looked afraid and
attempted to back away. He felt “very nervous,” like he “was going to cry.”
Concerned that Mr. Alleyne would take all of his remaining items and his car,
Mr. Romero-Guardado gave his cell phone to a man who had pulled over to assist
and handed his insurance information and car registration to the onlooking bus
driver. 1 Mr. Romero-Guardado also asked both men to call the police, and at least
one did.
In the background of this 9-1-1 call, one can hear Mr. Alleyne asking
Mr. Romero-Guardado, “What’s your name? Where’s your phone at?” In addition
to these questions, Mr. Alleyne asked Mr. Romero-Guardado to call his insurance
company. And Mr. Alleyne would eventually use a phone belonging to
Mr. Romero-Guardado’s coworker to call the insurance company. The call, for
reasons left unclear at trial, was unsuccessful.
At some point, the bus driver called Mr. Alleyne over to the bus in an attempt
to calm him down. Mr. Alleyne explained to the driver that “a Latino [person had
Mr. Alleyne, shouting expletives, later approached the bus and grabbed the 1
documents Mr. Romero-Guardado had placed therein. 6
previously hit his vehicle] and he didn’t get the vehicle fixed or get any
compensation.” He went on to say that he “was definitely going to get something
today.” But Mr. Alleyne cut the conversation short when, according to the bus
driver, Mr. Alleyne looked up and noticed the bus’s camera.
Throughout this confrontation, Mr. Romero-Guardado repeatedly asked for
his possessions back, but Mr. Alleyne declined each time. Instead, Mr. Alleyne
indicated that he would give Mr. Romero-Guardado his wallet back if
Mr. Romero-Guardado followed him somewhere else. Mr. Alleyne then drove to a
nearby gas station, and Mr. Romero-Guardado met him there.
Mr. Romero-Guardado repeated his request for his wallet, but Mr. Alleyne again
said, “No, follow me. Not here.” Mr. Romero-Guardado, fearing for his safety,
declined to follow Mr. Alleyne and instead returned to the scene of the crash, where
he provided Mr. Alleyne’s license plate number to police officers.
C. The Interview
Several weeks later, police officers interviewed Mr. Alleyne. In the interview,
Mr. Alleyne claimed that he told Mr. Romero-Guardado he needed
Mr. Romero-Guardado’s wallet to be able to contact Mr. Romero-Guardado’s
insurance company, but Mr. Romero-Guardado did not seem to understand.
Mr. Alleyne next asserted that he asked Mr. Romero-Guardado if 7
Mr. Romero-Guardado could pay for the damage, but Mr. Romero-Guardado said
he had no money. Then, Mr. Alleyne explained that he saw
Mr. Romero-Guardado’s jacket, but he did not explain why he took it. Mr. Alleyne
told the interviewing officer that he left the scene to avoid holding up traffic.
Mr. Alleyne went on to admit that he had Mr. Romero-Guardado’s wallet and
work jacket with him when he left the accident scene. He reiterated his claim that
he took the wallet to get in touch with Mr. Romero-Guardado but did not explain
how the wallet (or the work jacket and wrench) would help him to do so (but he
asserted that he took Mr. Romero-Guardado’s wrench due to a fear that
Mr. Romero-Guardado or his passenger would hit him with it). Finally, he stated
that he threw the wallet away after learning that he could not contact
Mr. Romero-Guardado and that Mr. Romero-Guardado “had no money.”
D. The Trial
A grand jury indicted Mr. Alleyne for robbery, assault, unlawful entry of a
motor vehicle, second-degree theft, and leaving after colliding. The case proceeded
to a jury trial.
A central issue on appeal involves the trial court’s instructions regarding
intent. The trial court and the parties discussed a proposed set of jury instructions 8
prior to closing statements. During this discussion, Mr. Alleyne asked the court to
deliver to the jury a lesser-included theft instruction in addition to a robbery
instruction. The trial court initially agreed to give the lesser-included theft
instruction, but later asked, “How could a jury rationally find . . . that there could be
a theft and not a robbery here?” Mr. Alleyne responded that the key difference
involved the two offenses’ intent elements. Unlike robbery, according to
Mr. Alleyne, theft can occur where a defendant “use[s] or deal[s] with the property
in such a way as to make it unlikely that the owner will recover it.” So,
Mr. Alleyne’s counsel stated, “the theft could occur when the wallet was not
returned because Mr. Alleyne said he threw the wallet away.”
The trial court suggested that there is “no distinction in the case law between
the deprivation of property elements of the robbery and theft statutes.” So, said the
trial court, “I don’t understand how the jury could rationally conclude that there was
a theft and not a robbery.” Put differently, the trial court felt that if the jury were to
find that Mr. Alleyne took the property intending to return it, Mr. Alleyne might well
be not guilty of both offenses.
In response, Mr. Alleyne’s counsel stated that if the trial court was set on not
providing the lesser-included theft instruction, he would “ask that the specific intent
language be added to the robbery [instruction].” “Right now,” said defense counsel, 9
“it just says intending to take it.” In saying “it,” defense counsel appeared to be
referencing the last line in the standard jury instructions regarding the requisite intent
for robbery: “It is necessary that [name of defendant] intended to deprive [name of
complainant] of his/her property and to take it for his/her own use.” Criminal Jury
Instructions for the District of Columbia, No. 4.300 (5th ed. 2024). Defense counsel
asked to replace the “intended to deprive” language with “took the property without
right with specific intent to steal it.”
The trial court replied that the standard robbery instruction already contained
language similar to that requested by Mr. Alleyne. See Criminal Jury Instructions
for the District of Columbia, No. 4.300 (5th ed. 2024) (“The government must
establish that [name of defendant] had no right to take the property, and that s/he
intended to steal it. There can be no robbery if the defendant takes the property for
a lawful purpose.”). The trial court thus declined to make Mr. Alleyne’s requested
modification, and Mr. Alleyne did not press the issue anew when the trial court asked
if there was “[a]nything further[?]”
After a break, the trial court indicated that it had revisited this court’s
precedent on lesser-included theft instructions and now agreed with defense counsel
that robbery and theft have different mens rea requirements. The trial court
explained its understanding that robbery requires “an intent to permanently deprive 10
a person of property,” whereas theft requires “merely [the] intent to appropriate the
property inconsistent with the owner’s right.” The trial court believed the jury could
find that Mr. Alleyne possessed the latter intent but not the former; therefore, it
agreed to give the lesser-included theft instruction. Mr. Alleyne did not raise any
other issues regarding the robbery or theft instructions, and the trial court gave the
pattern instructions for both offenses to the jury.
As pertinent here, the jury convicted Mr. Alleyne of one count of robbery
under D.C. Code § 22-2801.
II. Analysis
We begin with Mr. Alleyne’s sufficiency argument, then address his
contention regarding a “concurrence” requirement, and finally turn to whether the
instructions created a risk that the jury would convict Mr. Alleyne even if they
believed he intended to deprive Mr. Romero-Guardado of the wallet only
temporarily and unconditionally. Where relevant, we will also discuss whether
Mr. Alleyne preserved his claims on appeal, and if not, whether those claims survive
plain-error review. 11
A. Sufficiency of the Evidence
We review a claim of insufficient evidence de novo, considering “all the
evidence in the light most favorable to the verdict [and] according deference to the
factfinder to weigh the evidence, determine credibility, and draw justifiable
inferences of fact.” Wicks v. United States, 226 A.3d 743, 746-47 (D.C. 2020)
(internal quotation marks omitted). We affirm if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Rivas
v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (internal quotation marks
and emphasis omitted).
To apply the above standard, we must first identify the elements of robbery.
This crime is codified in D.C. Code § 22-2801, which provides, in relevant part:
Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than 2 years nor more than 15 years.
We do not rely on the above statute alone for robbery’s elements. Instead,
because robbery in this jurisdiction “retains its common law elements,” we turn to
case law. Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996). At common
law, robbery is a composite crime—it incorporates the elements of both larceny and 12
assault. Id. Accordingly, to secure a conviction for robbery by force or fear, the
government must prove that there was “(1) a felonious taking, (2) accompanied by
an asportation [or carrying away], of (3) personal property of value, (4) from the
person of another or in his presence, (5) against his will, (6) by violence or by putting
him in fear, [and] (7) animo furandi [the intention to steal].” Id. (second alteration
added and internal quotation marks omitted).
Mr. Alleyne argues that the government’s evidence was insufficient to
establish the mens rea element for larceny and thus robbery, that is, the intent, or
purpose, to steal. To resolve his contention, we first clarify our law regarding
robbery’s mens rea requirement. We then assess the evidence with this clarified
requirement in mind. Ultimately, we conclude that a reasonable jury could have
found that Mr. Alleyne possessed the state of mind necessary to commit robbery at
the time he took Mr. Romero-Guardado’s wallet.
1. Purpose to permanently or conditionally deprive
To resolve whether the evidence of Mr. Alleyne’s state of mind at trial was
sufficient, we must first address what mens rea robbery requires. The parties derive
from this court’s precedent two—in their view, conflicting—definitions of “intent
to steal.” We have said in some cases that to commit larceny, a person must possess
“the intent to permanently deprive the rightful owner [of property].” Lattimore, 684 13
A.2d at 360 (internal quotation marks omitted); see also Corbin v. United States,
120 A.3d 588, 591 n.3 (D.C. 2015); Durphy v. United States, 235 A.2d 326, 327
(D.C. 1967). But other cases have criticized this definition. In Pennsylvania
Indemnity Fire Corp. v. Aldridge, for instance, the court recognized that the
common-law crime of larceny requires “specific intent permanently to deprive the
owner of his property,” but it went on to note that “the old common-law definition
of larceny has been largely modified . . . by the courts which purport still to apply
the common law.” 117 F.2d 774, 775-78 & n.8 (D.C. Cir. 1941) (citing, among
other cases, an out-of-jurisdiction precedent holding that “theft of goods with intent
to sell them back to the owner” qualifies as larceny). 2 And in Mitchell v. United
States, the court cited the above language in Aldridge to “reject appellants’
contention that larceny requires an intent to appropriate property permanently.” 394
F.2d 767, 771 (D.C. Cir. 1968). 3
2 Cases decided by the United States Court of Appeals for the District of Columbia Circuit, and its predecessors, before February 1, 1971, are part of this court’s case law. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). 3 Mr. Alleyne seeks to distinguish Mitchell and similar cases by arguing that, although those cases recognized that “intent to permanently deprive” need not be interpreted literally, they did so only when interpreting a since-repealed larceny statute. This argument, however, withers in the face of Aldridge. See 117 F.2d at 775 (recognizing non-literal interpretations of intent to permanently deprive in the context of the “common-law crime of larceny”). 14
Given the language in the above cases, we do not fault the parties for
presenting us with what they view as a binary choice between two distinct intent
standards. We, however, do not read our precedent in this manner. In our view,
Aldridge and Mitchell did not approve a departure from the common law but instead
recognized a conclusion reached by other courts through the iterative process of
common-law reasoning: that “permanently deprive” should not be taken literally.
Cf. Manoukian v. Tomasian, 237 F.2d 211, 215 (D.C. Cir. 1956) (“It has been said
so often as to have become axiomatic that the common law is not immutable but
flexible, and by its own principles adapts itself to varying conditions.” (quoting Funk
v. United States, 290 U.S. 371, 383 (1933))); Fleming v. United States, 224 A.3d
213, 228 (D.C. 2020) (en banc) (“This court . . . has repeatedly rejected the view that
the common law of the District of Columbia was ‘frozen’ in 1901.”). Indeed, the
Supreme Court of California—the highest court in another jurisdiction that
elaborates on the elements of its robbery statute through common-law reasoning—
has reached a similar conclusion to that articulated in Mitchell and Aldridge. See
People v. Davis, 965 P.2d 1165, 1169, 1173 (Cal. 1998) (“[T]he general rule is not
inflexible: [t]he word ‘permanently’ . . . is not to be taken literally.” (internal
quotation marks omitted)).
We need not identify all possible situations in which a person who takes
property will satisfy robbery’s mens rea requirement. Instead, we hold only that, in 15
addition to situations where a person’s purpose to permanently deprive (in its literal
sense) is clear, a person possesses the mens rea necessary to commit common-law
larceny—and through it, robbery—when they take property with the purpose to
return it only upon the satisfaction of a “condition [they] ha[ve] no right to impose.”
E.g., Carter v. Commonwealth, 694 S.E.2d 590, 595 (Va. 2010) (citing 3 Wayne R.
LaFave, Substantive Criminal Law § 19.5(b) (2d ed. 2003)).
This understanding of common-law larceny’s mens rea requirement has been
embraced by sister jurisdictions and scholars alike. The highest courts in California,
Virginia, New Jersey, Georgia, Ohio, and Massachusetts have adopted it. 4 Noted
commentators Wayne R. LaFave and Jens David Ohlin have endorsed it in their
respective treatises. 3 Wayne R. LaFave, Substantive Criminal Law § 19.5(b) (3d
ed. Oct. 2024 update) (“[I]t is no defense to larceny that the taker intended to return
[taken property] only if he should receive a reward for its return, or only upon some
4 See, e.g., Davis, 965 P.2d at 1166-67, 1176 (defendant took property from store intending to return it for refund; larceny conviction affirmed); Carter, 694 S.E.2d at 592, 594-95 (same); State v. Hauptmann, 180 A. 809, 819-20 (N.J. 1935) (defendant took child’s pajamas intending to return them as part of ransom demand, larceny conviction affirmed); Slaughter v. State, 38 S.E. 854, 855-56 (Ga. 1901) (defendant took jewelry intending to return it for reward; larceny conviction affirmed); Berry v. State, 31 Ohio St. 219, 219, 226-27 (1877) (same but with horses); Commonwealth v. Mason, 105 Mass. 163, 166-67 (1870) (same as Berry). Michigan’s intermediate appellate courts have followed these other courts’ example. See People v. Harverson, 804 N.W.2d 757, 762 (Mich. Ct. App. 2010); People v. Jones, 296 N.W.2d 268, 271 (Mich. Ct. App. 1980). 16
other condition which he has no right to impose.” (footnote omitted)); 2 Jens David
Ohlin, Wharton’s Criminal Law § 31:2 (16th ed. Aug. 2024 update) (“An intent to
return that is conditional, such as a ransom, is not a defense.”). And we ourselves
have adopted this understanding when interpreting our jurisdiction’s theft offense.
See Price v. United States, 985 A.2d 434, 437 (D.C. 2009) (citing, among other
cases, Davis, 965 P.2d at 1175) (concluding that taking an item from a display shelf
with the intent to return it for a refund satisfies theft’s intent requirement). We now
adopt this interpretation in the robbery context: where a person takes property with
the intent to return it only upon the satisfaction of a condition they have no right to
impose, that person possesses the requisite mens rea for robbery. 5
5 Courts have offered numerous rationales to support interpreting robbery’s intent element in this manner. See Davis, 965 P.2d at 1169-77 (cataloguing cases). The Supreme Court of California’s explanation, for instance, involves four related rationales: (1) if the condition set by the taker were not met, the deprivation “would in fact have been permanent”; (2) by conditioning the item’s return, the taker asserts a right of ownership in the property that constitutes evidence of the taker’s intent to permanently deprive; (3) taking property intending to return it only upon the satisfaction of a condition “creates a substantial risk of permanent loss”; and (4) conditioning the item’s return necessarily and permanently “deprive[s] the owner of a portion of the value of the property.” Id. (internal quotation marks and emphasis omitted). 17
2. Application
We now turn to whether the evidence of intent put forth by the government
was sufficient. For purposes of this analysis, we assume without deciding that, as
Mr. Alleyne contends, the government was required to show that he intended to steal
Mr. Romero-Guardado’s wallet at the moment he took it. 6 Because Mr. Alleyne’s
behavior throughout his interactions with Mr. Romero-Guardado supports the
conclusion that he took Mr. Romero-Guardado’s wallet with the intent to hold it
effectively for ransom, Mr. Alleyne’s sufficiency argument fails.
We begin with Mr. Alleyne’s contemporaneous, incriminating statements.
From the beginning of the incident, Mr. Alleyne yelled that Mr. Romero-Guardado
“needed to pay.” Mr. Alleyne then told an onlooking bus driver that he “was
definitely going to get something today.” A reasonable factfinder could interpret
6 In an effort to demonstrate that a robbery conviction can be sustained even in the absence of such concurrence, the government suggests that “robbery continues as long as the asportation,” relying primarily on felony-murder cases. Though we are skeptical of the government’s position, see Brown v. United States, 35 App. D.C. 548, 552-58 (D.C. Cir. 1910) (rejecting a continuing-trespass theory of larceny), we adhere to our oft-reemphasized policy of judicial restraint: courts “should not decide more than the occasion demands.” District of Columbia v. Wical Ltd. P’ship, 630 A.2d 174, 182 (D.C. 1993) (internal quotation marks omitted). As we can affirm Mr. Alleyne’s convictions without resolving whether and to what extent robbery requires concurrence, we leave that question for another day. 18
these statements to suggest that Mr. Alleyne wanted payment immediately and took
the wallet to ensure he would get it.
Next, Mr. Alleyne engaged in conduct inconsistent with his stated explanation
for his actions—that he wanted to make sure he had Mr. Romero-Guardado’s contact
information. He wrested Mr. Romero-Guardado’s wallet from his pocket without
first asking for Mr. Romero-Guardado’s information. He then took two of
Mr. Romero-Guardado’s possessions—a jacket and a wrench—that had no
relevance to contact information. Even after seeing Mr. Romero-Guardado’s
insurance information and calling the number listed, he declined to return
Mr. Romero-Guardado’s possessions. Instead, Mr. Alleyne said that he “threw [the
wallet] away” after realizing that Mr. Romero-Guardado “ha[d] no money” and that
he “couldn’t get in contact with [Mr. Romero-Guardado].”
Finally, viewing the evidence in the light most favorable to the verdict, a jury
could interpret Mr. Alleyne’s efforts to leave the scene as suggesting that he wanted
to get Mr. Romero-Guardado away from onlookers to extract a payment of some
kind. The bus driver implied that Mr. Alleyne drove away from the scene after
realizing a camera on the bus was recording him. Once Mr. Romero-Guardado
caught up with Mr. Alleyne at a gas station near the accident, Mr. Alleyne yet again
refused to return the wallet unless Mr. Romero-Guardado followed him to yet 19
another, unknown location. If Mr. Alleyne left the scene to, as he claimed, get out
of the way of traffic, why then was he unwilling to exchange contact information
once he and Mr. Romero-Guardado were safely at the gas station? The jury could
reasonably have answered that question as follows: Mr. Alleyne left the scene so that
he could extract a ransom from Mr. Romero-Guardado away from the public’s gaze.
Based on the above evidence, a jury could find beyond a reasonable doubt that
Mr. Alleyne took the wallet intending to return it only if Mr. Romero-Guardado
compensated him for the damage to his car. And if Mr. Alleyne so intended, he
possessed the requisite mental state for robbery. The government’s evidence of
Mr. Alleyne’s intent was accordingly sufficient to sustain his conviction.
B. Concurrence of Intent and Taking
Mr. Alleyne’s concurrence argument targets the trial court’s jury
instructions—he contends that the court should have told the jury that Mr. Alleyne
must have intended to steal the wallet at the moment he took it from
Mr. Romero-Guardado. We hold that, under plain-error review, the failure of the
court to give the jury an instruction further emphasizing the concurrence requirement
did not create a reasonable probability of a different outcome. We therefore find no
reversible error. 20
1. Standard of review
We normally “review de novo whether challenged jury instructions
adequately state the law.” Fleming, 224 A.3d at 219. 7 An instruction is accurate if
it “clearly explain[s]” the applicable law. See Dawkins v. United States, 189 A.3d
223, 237 (D.C. 2018).
We apply plain-error review to unpreserved claims of instructional error. See
Allen v. United States, 495 A.2d 1145, 1151 n.11 (D.C. 1985) (en banc). The
government urges us to apply plain-error review to Mr. Alleyne’s concurrence
argument on the ground that Mr. Alleyne did not raise the concurrence issue at trial.
After reviewing the record, we agree that Mr. Alleyne failed to preserve this issue in
the trial court.
To preserve an argument of instructional error for appeal, a party must bring
that argument to the trial court’s attention. Super. Ct. Crim. R. 30; Green v. United
States, 718 A.2d 1043, 1056 (D.C. 1998). A general objection does not suffice; the
7 Mr. Alleyne suggests—perhaps against his own interest but understandably, as “our terminology has not always been entirely clear on this point,” Fleming, 224 A.3d at 219—that this court reviews jury instructions under an abuse-of-discretion standard. While “we review the trial court’s decision to give [an] instruction for abuse of discretion,” Koonce v. District of Columbia, 111 A.3d 1009, 1022 (D.C. 2015) (internal quotation marks omitted), “the accuracy of [an] instruction itself is a legal question that we review de novo,” Lucas v. United States, 240 A.3d 328, 343 (D.C. 2020), if the legal question was preserved. 21
objection “must be specific enough to direct the judge’s attention to the correct rule
of law” and “be made with sufficient precision to indicate distinctly the party’s
thesis.” Russell v. United States, 698 A.2d 1007, 1012 (D.C. 1997); see also Ebron
v. United States, 838 A.2d 1140, 1147 (D.C. 2003) (noting that “the purpose behind
the contemporaneous objection rule” is for a party to “put the court on notice of the
objection, the reason for it, and the relief sought”). This clarity requirement,
moreover, extends to a proposed replacement instruction. See Zeledon v. United
States, 770 A.2d 972, 976 (D.C. 2001) (noting that there are “certainly limits to the
judge’s duty to ‘get it right’ despite a mistaken proffer by the defense of what an
instruction should be”). Ultimately, an objection must “fairly apprise[ ]” the trial
court of the party’s position and the correct legal principle. Evans v. United States,
304 A.3d 211, 219, 222 (D.C. 2023).
Mr. Alleyne never asked the trial court to specify to the jury at what time
Mr. Alleyne’s intention to steal needed to arise. 8 Nor did Mr. Alleyne’s trial counsel
8 Although the transcript contains some references to a concurrence requirement, the thrust of the argument made by Mr. Alleyne was that the instructions for theft—unlike those for robbery—did not require concurrence. Mr. Alleyne therefore never flagged to the trial court a concern that the trial court’s robbery instructions failed to communicate a concurrence requirement. In fact, his arguments regarding theft suggested the opposite. 22
make other objections that should have brought the issue to the trial judge’s
attention. So, Mr. Alleyne forfeited this argument.
The plain-error test imposes a “formidable” burden on appellants who
advance unpreserved claims. Hunter v. United States, 606 A.2d 139, 144 (D.C.
1992). Our review has four prongs. An appellant must show that (1) the trial court
erred; (2) the error was “obvious or readily apparent, and clear under current law”;
(3) the error affected their substantial rights; and (4) “either a miscarriage of justice,
that is, actual innocence; or that the trial court’s error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.” Griffin v. United
States, 144 A.3d 34, 37 (D.C. 2016) (internal quotation marks omitted and alteration
in original). Because we reverse a conviction “[o]nly if all four prongs are met,” we
need only hold that Mr. Alleyne failed to satisfy one to dispense with his argument.
Id.
2. Discussion
We assume without suggesting that there was error and it was clear, and affirm
the trial court pursuant to prong three: effect on substantial rights. Under this prong,
we affirm unless the defendant shows a “reasonable probability of a different
outcome but for the established error.” Keerikkattil v. United States, 313 A.3d 591,
605 (D.C. 2024) (internal quotation marks omitted). We conclude that the failure of 23
the court to give a jury instruction further emphasizing the concurrence requirement
did not create a reasonable probability of a different outcome. This is true for two
reasons: (1) the instructions as provided already communicated—at least, to a
degree—the requirement of concurrence and (2) the record reveals strong evidence
that Mr. Alleyne possessed the required mental state at the time he took Mr. Romero-
Guardado’s wallet.
Again assuming that concurrence is required, the trial court’s charge to the
jury referenced just such a requirement. The trial court told the jury that “the
[g]overnment must prove beyond a reasonable doubt . . . that . . . [Mr. Alleyne] took
the property without right to it and intending to steal it.” The natural reading of this
instruction requires concurrence: the adverbial participle “intending” expresses the
condition of the taker (Mr. Alleyne) in the moment of the taking.
To see this point clearly, one need only remove the intervening phrase
“without right to it.” The instruction would then read: “the government must prove
beyond a reasonable doubt that Mr. Alleyne took the property intending to steal it.”
We are hard-pressed to assign to this instruction any meaning but the following:
“when Mr. Alleyne took the property, he must have intended to steal it.” And that
is the concurrence requirement for which Mr. Alleyne advocates. The trial court, 24
therefore, did not omit mention of the concurrence requirement from its charge to
the jury.
Mr. Alleyne, when confronted with this language at oral argument, suggested
that the trial court should have given still greater emphasis to the concurrence
requirement. But after reviewing the evidence presented at trial, we are unpersuaded
that greater emphasis would have made any difference. As discussed in our
sufficiency analysis, the evidence that Mr. Alleyne in fact intended to conditionally
deprive Mr. Romero-Guardado of the wallet at the time he took it was strong. See
supra Section II.A.2. And where evidence related to the challenged element of an
offense was “strong,” we have declined to find plain error. See, e.g., Hall v. United
States, 383 A.2d 1086, 1090 (D.C. 1978). We do so again here.
C. Duration of Deprivation
One claim of instructional error remains. According to Mr. Alleyne, the trial
court erred by failing “to modify the [pattern] instruction to explain th[at] intent to
steal meant the intent to permanently deprive.” Mr. Alleyne suggests that the
instructions’ ambiguity in this regard was heightened by their use of the phrase “to
steal,” which, in his view, would allow a jury to convict so long as it found that he
took the wallet without permission, even if he only intended to keep the wallet
temporarily. We again conclude that Mr. Alleyne did not preserve this argument in 25
the trial court. And, under plain-error review, Mr. Alleyne again cannot show that
any error in this regard affected his substantial rights. So, reversal is not warranted.
Mr. Alleyne did not fairly apprise the trial court of the argument he now
advances. To be sure, he asked for “the specific intent language [to] be added to the
robbery [instructions]. . . . Right now it just says intending to take it.” 9 But the
meaning of the phrase “specific intent” is widely regarded as ambiguous. See
Criminal Jury Instructions for the District of Columbia, No. 3.100 (5th ed. 2024)
(describing how its drafters “generally chose[ ] to avoid” references to “specific
intent,” deeming the phrase “more confusing than helpful to juries”); see also
Carrell v. United States, 165 A.3d 314, 323-24 (D.C. 2017) (en banc) (noting that
we have “previously expressed concern about the use of ‘general’ and ‘specific’
intent,” as we prefer “more precise gradations of mens rea”). And nowhere did
Mr. Alleyne explain that he understood “specific intent to steal” to incorporate “a
specific intent to deprive permanently.” 10 Instead, when the trial court informed Mr.
9 When the trial court asked Mr. Alleyne to clarify “what [he was] asking for,” Mr. Alleyne in substance repeated his initial objection: “I would ask that he took the property without right with specific intent to steal it.” This conclusion is reinforced by the trial court’s statements during the above 10
back-and-forth. The court made clear that, in its view, robbery required an intent to permanently deprive; indeed, it said, “in both [theft and robbery,] the [g]overnment 26
Alleyne that the instructions already stated that Mr. Alleyne must have “intended to
steal” property, Mr. Alleyne raised no further objection. Accordingly, Mr. Alleyne
forfeited his final argument, and we review for plain error. 11
We assume without suggesting that there was error and it was clear, and affirm
the trial court based on the absence of a likelihood that that error affected the jury’s
verdict. Mr. Alleyne has not shown an effect on his substantial rights for two
reasons. First, the trial court’s instructions, when read as a whole, arguably
communicated the very instruction Mr. Alleyne now contends was omitted: intent to
temporarily deprive is not sufficient. Second, because of the strength of the evidence
suggesting that Mr. Alleyne in fact intended to hold Mr. Romero-Guardado’s wallet
would be required to prove an intent to permanently deprive the person of the property.” That statement suggests that had Mr. Alleyne raised the argument that he now raises on appeal, the trial court would have been receptive to supplementing the instructions. The fact that the trial court made no change in response to the objection, by contrast, indicates that the court did not understand the objection as raising the issue of permanent deprivation. 11 The government urges us to go beyond forfeiture and find waiver—i.e., “an intentional relinquishment or abandonment of a known right or privilege.” Allen, 495 A.2d at 1151 n.11 (internal quotation marks omitted). Because—as we conclude below—no plain error occurred, we need not address whether Mr. Alleyne waived his argument. 27
for ransom, we are unpersuaded that a more specific instruction would have created
a reasonable probability of a different outcome.
Our first conclusion rests on a comparison of the mens rea requirements—as
stated in the District of Columbia’s pattern criminal jury instructions—of two
charged offenses: theft and robbery. We feel comfortable relying in part on this
comparison again for two reasons: one legal and one grounded in the specific
instructions delivered in this case.
First, the legal justification. Our precedent makes clear that we do not analyze
jury instructions in isolation but instead consider “the instructions in their entirety.”
Buskey v. United States, 148 A.3d 1193, 1205-06 (D.C. 2016) (internal quotation
marks omitted); see also Carter v. United States, 475 A.2d 1118, 1125 (D.C. 1984).
Indeed, courts assess an allegedly erroneous instruction not only in the context of
the instructions, but also with respect to the trial record as a whole. See Waddington
v. Sarausad, 555 U.S. 179, 191 (2009). And when engaging in this analysis, we
have concluded that a jury confronted with an allegedly erroneous instruction would
have reached the correct interpretation based on a further instruction that, although
located in a separate portion of the trial court’s charge, was nevertheless clearly
connected to the challenged instruction. See Buskey, 148 A.3d at 1208 (noting that,
although the “trial court’s supplemental instruction was limited to the question posed 28
about armed robbery,” it “implicitly informed the jury that the same legal principle
applicable to robbery while armed also applied to burglary while armed and
kidnapping while armed”).
To be sure, the determination as to whether a jury would forge a logical
connection between separate but related instructions is highly fact-specific. That
brings us to our second justification: the nature of the instructions given in this case.
From the beginning of the offense-specific instructions, the trial court informed the
jury that robbery and theft were related; it said that it was “going to instruct [them]
on [robbery] and also on the lesser included offense of second degree theft.” 12 It
emphasized the connection between theft and robbery by instructing the jury to
consider theft of the wallet only if they found Mr. Alleyne not guilty of robbery of
the wallet. 13 This connection was underscored still further by the high degree of
similarity between the elements of theft and robbery as communicated by the trial
court. Finally, second-degree theft—unlike the other crimes the jury was asked to
consider—was not identified by the trial court as a separate count but instead
subsumed within count one (robbery). Viewed together, the above considerations
12 The trial court again highlighted this relationship as it turned to theft from robbery: “Alright. The lesser included offense of second degree theft.” 13 Robbery and theft were the only offenses for which the trial court provided such an order of operations. 29
persuade us that the jury—even if it did not understand the precise definition of
“lesser-included offense”—would have read the robbery instructions in light of those
delivered with respect to second-degree theft.
We now turn to a comparison of the trial court’s theft and robbery instructions.
The trial court delivered pattern robbery and theft instructions to the jury back to
back. 14 The intent-related robbery instructions read to the jury informed them that,
to convict Mr. Alleyne of robbery, “[i]t [was] necessary that Mr. Alleyne intended
to deprive Mr. Romero-Guardado of his property and to take it for his own use.” It
is true that the robbery instructions did not define “intent to deprive.” But the trial
court instructed the jury immediately thereafter regarding “[t]he lesser included
offense of second degree theft,” which could also be proven by showing an
“inten[t] . . . to deprive.” 15 And this time, the trial court offered a more specific
definition:
14 Although the District’s “widely used” form instructions provide a helpful guide, they are “not the law.” Lucas, 240 A.3d at 343 n.12 (internal quotation marks omitted). Use of pattern jury instructions, therefore, does not provide a sure safeguard against error. 15 The District’s pattern instructions for theft could be read to contemplate liability even where an intent to deprive is lacking. Criminal Jury Instructions for the District of Columbia, No. 5.300 (5th ed. 2024) (stating that the defendant must “either [intend] to deprive . . . or [intend] to take or make use of the property . . . without authority or right” (emphasis added)). As the issue is not before 30
To intend to deprive another of property means to intend to withhold the property or cause it to be withheld from a person permanently or for such an extended period or under such circumstances that the Defendant acquires a substantial portion of the property value. It may also mean to dispose of the property or to use or deal with the property in such a way as to make it unlikely that the owner will recover it.
Looking at the instructions as a whole, we conclude the jury was adequately
informed of the definition of “intent to deprive” for purposes of evaluating whether
Mr. Alleyne was guilty of robbery. This conclusion follows from the above-
discussed close relationship between the theft and robbery offenses, their physical
and temporal juxtaposition in the written and oral instructions, and the fact that the
instructions for both offenses expressly referenced an intent to deprive. We see little
likelihood that the jury would have concluded that robbery, despite being a more
serious charge than theft, incorporated a less-demanding definition of “intent to
deprive.”
Why is this conclusion important? The trial court’s specific definition of
“intent to deprive” communicated exactly that which Mr. Alleyne contends was
omitted—one who intends only to temporarily deprive someone of property cannot
be found guilty of robbery. Under the relevant instruction, to intend to deprive
us, we express no opinion on whether that portion of the pattern instruction accurately reflects the law. 31
someone of property, a defendant must intend to withhold it either “permanently,”
“for such an extended period . . . that the Defendant acquires a substantial portion of
the property value,” or in such a way that the owner is unlikely to ever recover it.
Implicit within these three alternatives is the concept of long-term—one might say
“permanent”—deprivation. If, as our above analysis indicates, the jury heard the
message Mr. Alleyne wanted them to hear and still convicted him, we are hard-
pressed to find harm to Mr. Alleyne’s substantial rights.
We note also that the evidence presented in this case strongly suggests that
Mr. Alleyne possessed the intent to hold Mr. Romero-Guardado’s wallet for ransom,
i.e., to deprive Mr. Romero-Guardado conditionally. See supra Section II.A.2.
Moreover, the government encouraged the jury to convict not on a theory of
temporary deprivation, but instead on a theory of permanent or conditional
deprivation; during closing arguments, the government stated that Mr. Alleyne
either “took [the wallet] to use whatever money was inside the wallet or he took it
to try and get [Mr. Romero-Guardado] to follow him to extract some kind of
payment out of him off scene.” See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)
(noting that claims of instructional error must be assessed in the context of, among
other things, the “argument[s] of counsel”). Here, our above analysis of the
instructions, the strength of the evidence of the requisite intent, and the context in
which the government presented that evidence together convince us that no plain 32
error occurred. Accordingly, we decline to reverse Mr. Alleyne’s conviction based
on his final claim of instructional error.
III. Conclusion
We find sufficient evidence to convict Mr. Alleyne of robbery, no plain
instructional error with respect to concurrence, and no plain error in the instructions
that defined the duration for which Mr. Alleyne must have intended to deprive
Mr. Romero-Guardado of his wallet. We therefore affirm Mr. Alleyne’s conviction.
So ordered.