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-0752
CHARLES W. BROOKS, APPELLANT, V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2024-CF3-001336)
(Jason Park, Judge)
(Submitted May 28, 2026 Decided August 27, 2026)
Robin M. Earnest was on the brief for appellant.
Bryan H. Han, Assistant United States Attorney, with whom Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb, Eric Hansford, Emmanuel Hampton, and Kraig Ahalt, Assistant United States Attorneys, were on the brief, for appellee.
Before MCLEESE, DEAHL, and HOWARD, Associate Judges.
DEAHL, Associate Judge: Luis Garcia was walking home late one night when two men jumped him from behind. Both men punched and kicked him, one of them shocked him with a taser, and one of them took cash and a pack of cigarettes from his pockets. The men walked a short distance away for a moment, then came back
2
and beat and tased Garcia again before fleeing the scene. Surveillance footage captured the men driving away in a blue Ford Fusion with duct tape on the driver’s side mirror, and police officers later pulled over Charles Brooks driving that same car. Brooks was arrested and charged with robbery while armed, assault with a dangerous weapon, and possession of a prohibited weapon, or PPW. The jury acquitted Brooks of the robbery charge but convicted him of the lesser-included offense of simple assault and the other two charges.
Brooks now challenges his conviction for PPW, arguing that the evidence was insufficient to conclude beyond a reasonable doubt that he possessed the taser used in Garcia’s assault. We agree. It is undisputed that only one of the two assailants used a taser, and there was no evidence from which a rational jury could conclude beyond a reasonable doubt that Brooks was the armed rather than the unarmed assailant. There was also no evidence from which a rational jury could conclude that the unarmed accomplice took any affirmative step to help his co-assailant use or maintain possession of the taser, as required to support a conviction for a possessory offense under an aiding and abetting theory. See Chandler v. United States, 349 A.3d
3
1210, 1219 (D.C. 2026); Parker v. United States, 298 A.3d 785, 791-92 (D.C. 2023). We therefore reverse Brooks’s PPW conviction. 1
I. Background
Late one night in Adams Morgan, Luis Garcia bought cigarettes at a 7-Eleven and started walking home. As Garcia was walking down the block, two men wearing dark clothing approached him from behind. Garcia felt a punch or a kick to his back, then a taser to his neck, and he fell to the ground. While Garcia was on the ground, the men continued to kick and punch him and said: “What you got? What you got?” Garcia testified that he was hit “more than five times” on his head. He added that one of the men searched his pockets and took around $80 in cash and the pack of cigarettes he had bought. Garcia briefly lost consciousness, then regained it and “screamed for help” after the assailants fled to a nearby car. Garcia did not see either assailant’s face and described only their dark clothing when the police arrived.
1 Brooks does not challenge his assault with a dangerous weapon conviction, so we affirm that. We also remand with instructions to vacate Brooks’s conviction for simple assault because that conviction merges with his assault with a dangerous weapon conviction. See Waller v. United States, 389 A.2d 801, 808 (D.C. 1978). We disagree with Brooks’s further assertion that the trial court erred in failing to merge the convictions itself—our precedents are clear that trial courts should generally not undertake a merger analysis, as we have held that analysis is better left to this court on appeal. See Joiner v. United States, 585 A.2d 176, 178 (D.C. 1991) (explaining the policy underlying our approach to leaving merger questions for appeal).
4
Salvador Leyva had just left his apartment building for a walk when he heard the altercation from across the street. Leyva heard what “sounded like a fight or an argument,” then “realized there were two guys beating a third one just across [the] street.” Leyva testified that both men were kicking, punching, and “screaming at” Garcia, but he did not see whether they took anything from him. Leyva also heard the sound of a taser, which he was familiar with from his work as a human rights lawyer, and saw “the person that was using it was leaning down” to hold it against the man on the ground. Leyva saw the men walking away, but as he crossed the street to check on Garcia they returned and “started beating him and tasing him again.” Leyva went back to his building, where he called the police. Seconds later, the assailants left in the same direction as before. Like Garcia, Leyva did not see either of the assailants’ faces and could only say they were wearing “dark hoodies” and “didn’t look big.” Leyva also said Garcia was on the ground “just covering himself” as his assailants attacked him, and Garcia said “all [he] could do” during the assault was “cover [his] face.”
Several police officers responded to Leyva’s call and recovered surveillance footage from nearby cameras. Although no footage captured the assault itself, one camera showed a blue Ford Fusion with duct tape on the driver’s side mirror traveling toward the scene several minutes before the incident was reported. Another camera showed the same Ford Fusion parking down the block from the scene. The
5
car’s driver and front-side passenger, both of whom were wearing hoodies, then got out of the car and started following someone from behind. A third person remained in the car and drove it around the block. A few minutes later, the two men ran back to the car and entered it as it drove away.
About an hour and a half after the incident, police officers pulled over a blue Ford Fusion with duct tape on the driver’s side mirror in an unrelated traffic stop. The officers identified Brooks as the driver of the car, which had three other passengers. The stop lasted a few minutes and did not lead to any arrests. A week later, after the police had recovered the surveillance footage and connected the blue Ford Fusion to the incident, Brooks was pulled over in the car again. One of the officers noticed that Brooks was wearing a GPS ankle monitor, and the police later obtained locational data for that monitor that placed Brooks at the scene of the assault and in the locations where the blue Ford Fusion traveled at the relevant times. The police did not recover a taser during either of these traffic stops.
Brooks was arrested and interviewed by MPD Detective Brandon Ripes. In that interview, Brooks told Ripes that he was in the blue Ford Fusion on the night in question because he was picking up DoorDash orders at a nearby McDonald’s. Brooks also mentioned an encounter earlier that night at McDonald’s where a man chased him around with a knife and threatened to shoot him, and a second encounter
6
where the same man tried to punch him and he hit the man in response. Brooks denied his involvement in the assault against Garcia.
Brooks was charged with three offenses: (1) robbery while armed; (2) assault with a dangerous weapon; and (3) possession of a prohibited weapon. His case proceeded to a jury trial, where Garcia, Leyva, Ripes, and several other government witnesses testified to the above facts. Brooks’s girlfriend testified in his defense that Brooks had delivered food through her DoorDash account at some point that night.
During deliberations, the jury sent a note asking whether “aiding and abetting [could] be applied to each individual count.” The trial court responded that the “brief answer” was “yes” and reiterated its instruction that aiding and abetting liability “is not established by evidence that the defendant merely participated in the overall criminal venture” and instead requires proof that Brooks “took some affirmative act in planning or carrying out that specific offense.” The jury reached a verdict twenty minutes later, acquitting Brooks of robbery while armed but convicting him of the lesser-included offense of simple assault and the two weapons offenses. Brooks now appeals.
7
II. Analysis
Brooks challenges the sufficiency of the evidence to sustain his PPW conviction. We review sufficiency challenges de novo and view the evidence “in the light most favorable to the verdict, giving full play to the right of the fact-finder to determine credibility, weigh the evidence, and draw justifiable inferences of fact.” Wiley v. United States, 264 A.3d 1204, 1209 (D.C. 2021) (quoting Roberts v. United States, 216 A.3d 870, 882 (D.C. 2019)). We will affirm if any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Nelson-White v. United States, 323 A.3d 459, 464 (D.C. 2024). Our review is not “toothless,” however; the evidence must be “strong enough that a [trier of fact] behaving rationally really could find it persuasive beyond a reasonable doubt.” Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc).
As the jury was instructed, a PPW conviction requires proof beyond a reasonable doubt that Brooks: (1) possessed a dangerous weapon (2) with the intent to use it unlawfully against another. See (Steven) McCoy v. United States, 781 A.2d 765, 768-69 (D.C. 2001). If Brooks did not himself possess a dangerous weapon with that intent, he might nonetheless be convicted as an aider and abettor if he “knowingly associated himself with the” PPW, “he participated in the [PPW] as something he wished to bring about,” and “he intended by his actions to make [the
8
PPW] succeed.” Appleton v. United States, 983 A.2d 970, 978 (D.C. 2009) (approving the same aiding and abetting instruction given in this case). Mere participation in an offense where an accomplice possesses a dangerous weapon, however, is insufficient to sustain a PPW conviction under an aiding and abetting theory. The government must “prove some act on the defendant’s part that assisted the principal in his possession” of the weapon, undertaken with “guilty knowledge.” Parker, 298 A.3d at 791; see id. at 792 (requiring proof that an unarmed accomplice “helped the [principal] maintain possession of his weapon” for conviction under an aiding and abetting theory).
We agree with Brooks that the evidence was insufficient to conclude beyond a reasonable doubt that he was either in direct possession of the taser or that he had aided and abetted his accomplice’s possession of it. As we explain, neither of the government’s theories of liability can be sustained: (1) the only evidence that Brooks actually possessed the taser was that one of the two assailants used a taser, which means it was equally likely that Brooks was the unarmed assailant; and (2) no
9
evidence demonstrated that the unarmed assailant took any affirmative steps to aid the armed assailant’s possession of the taser. 2 We elaborate on each point in turn.
First, no rational factfinder could conclude beyond a reasonable doubt that Brooks actually possessed the taser as the principal. We will assume for the sake of argument that Brooks was one of the two assailants, rather than the getaway driver who remained in the car. Even still, all we know from the evidence is that one of two assailants used a taser, and there was no evidence that pointed to Brooks as the armed assailant as opposed to the unarmed accomplice. Garcia could not identify or describe which of the assailants tased him; Garcia did not suggest that both assailants used the taser; and Leyva described just one man using the taser, in contrast to his testimony that “both men” were kicking and punching Garcia. That leaves us with two equally likely possibilities on this record: either Brooks was the armed assailant who used the taser, or he was the unarmed accomplice who only kicked and punched
2 Brooks also mentions as an aside that the trial court “erred” when it told the jury that aiding and abetting liability can be applied to all three of his counts. But Brooks does not explain in what respect he believes the trial court erred, nor does he develop any argument on this point, so we do not consider it as an independent claim. See Yazam, Inc. v. D.C. Dep’t of For-Hire Vehicles, 343 A.3d 906, 911 (D.C. 2025) (noting that we do not address issues “adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation” (quoting Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008))).
10
Garcia but did not himself possess a prohibited weapon. 3 “Where evidence of guilt is in equipoise with evidence of innocence, it is perforce insufficient for conviction by the constitutional standard, beyond a reasonable doubt.” Williams v. United States, 314 A.3d 1158, 1189 (D.C. 2024) (per curiam) (quoting Harris v. United States, 125 A.3d 704, 709 (D.C. 2015)).
Second, the evidence was also insufficient to sustain Brooks’s conviction on an aiding and abetting theory of liability. As we have explained, aiding and abetting for a possessory offense requires the defendant to do more than simply participate in a crime where someone uses a weapon. The defendant must do something that aids their co-assailant in their possession of the weapon at issue—for instance, the
3 The government suggests that Brooks’s account of being accosted by a knife-
wielding man at a McDonald’s earlier that evening is some evidence that he was the one armed with a taser, and not the unarmed accomplice. The reasoning goes that Brooks probably thought Garcia was the knife-wielding man and attacked him in retaliation, and “it would have been foolhardy for Brooks to confront a knife- wielding assailant without a weapon of his own.” We do not attach any relevance to that purported earlier incident. First, the government provided compelling evidence that Brooks had contrived it, as video footage from inside and outside of the McDonald’s in question showed nothing that resembled what Brooks described. Second, even if that incident had occurred, the government offers nothing but pure conjecture that Brooks subsequently assaulted Garcia because he believed he was the same man who had accosted him at the McDonald’s. Third, even if we could get past those first two hurdles, there is still no particular reason to think Brooks would have armed himself while bringing an unarmed friend, versus precisely the opposite—enlisting a friend with a weapon to help him. One does not strike us as any more foolhardy than the other, especially if his friend was more practiced and adept at using a taser.
11
defendant might affirmatively thwart a victim or a third party from attempting to disarm the principal. See Chandler, 349 A.3d at 1219; Parker, 298 A.3d at 791-92. Here, there was no evidence that the unarmed accomplice did anything to aid the principal’s possession of the taser because nothing suggested that either Garcia or Leyva “posed a threat of otherwise disarming” the principal of the taser. Chandler, 349 A.3d at 1219 (quoting Parker, 298 A.3d at 793); see also Lancaster v. United States, 975 A.2d 168, 174-75 (D.C. 2009) (rejecting that a possession conviction can be sustained on an aiding and abetting theory if the defendant merely “work[s] in concert” with the principal or participates in a shared criminal venture).
This case is not materially distinguishable from Chandler, where we reversed a conviction for “possession of a firearm during a crime of violence,” or PFCV, on similar facts. 349 A.3d at 1214. There, Chandler recruited her son to help her assault Shawn Watts, and her son brought and used a firearm during the assault. Id. at 1215-16. Chandler was herself convicted of PFCV, but we reversed that conviction, concluding there was insufficient evidence that she aided in her son’s possession of the firearm. As we recounted, the evidence at trial established that Chandler and her son beat Watts “brutally in the head and face,” and there was no evidence that Watts “was anything other than submissive during the assault.” Id. at 1219. While the government argued that Chandler helped her son maintain possession of his firearm by participating in Watts’s beating, we disagreed that a jury could draw that
12
conclusion beyond a reasonable doubt. We explained that there was no evidence that Watts had any inkling or would have made any effort to risk an attempt at disarming Chandler’s son, but instead the evidence showed that Watts was “immediately subdued” and made no such effort. Id. at 1221. On that evidence, while Chandler certainly had an assaultive intent, we held the evidence was insufficient to show that she had the further intent to help her son maintain possession of the firearm given that there was no apparent risk of him being disarmed. Id.
Just as in Chandler, the evidence here established that Garcia was subdued in a “simultaneous, two-on-one attack that rendered him helpless” almost immediately. Id. at 1219. After Garcia was punched or kicked in the back and tased in the neck, he “fell on the ground.” And while on the ground, he was hit in the head “more than five times” and briefly lost consciousness. Garcia testified that he “couldn’t move at all” after he was tased and that “all [he] could do” was “cover [his] face” as the men rained blows down on him. Leyva similarly described a “vicious beating” in which Garcia was “on the ground all the time” and “just covering himself” from the assailants’ blows. Because no reasonable juror could conclude beyond a reasonable doubt, based on this uncontested evidence, that Garcia “posed a threat of otherwise disarming” the armed assailant, Chandler, 349 A.3d at 1219 (quoting Parker, 298 A.3d at 793), there was insufficient evidence to prove that the unarmed assailant acted with an intent of helping his accomplice maintain possession of his taser.
13
The government emphasizes that Brooks was “one of the two assailants who worked in concert to beat and tase Garcia.” That may be true—but merely “‘work[ing] in concert’ with the principal in the commission of the predicate” offense is insufficient for aiding and abetting liability for a possessory offense. Lancaster, 975 A.2d at 174; see also (Louis) McCoy v. United States, 760 A.2d 164, 186-87 (D.C. 2000) (“[M]ore is required than general participation in the criminal venture for conviction of aiding and abetting the carrying of a pistol without a license.”). The government also claims that “the jury could reasonably infer that the unarmed assailant knew about the taser and intended for the other assailant to possess it and use it unlawfully during the assault.” But mere knowledge that another person is using a weapon unlawfully in a joint criminal enterprise does not amount to aiding and abetting their possession of that weapon. See Chandler, 349 A.3d at 1221-22 (reversing PFCV conviction even while affirming Chandler’s “while armed” enhancement for aggravated assault on an aiding and abetting theory because she “knew in advance that her associate was armed with a gun” (quoting Parker, 298 A.3d at 793)). Rather, the requisite guilty knowledge for a possession offense is the defendant’s knowledge that their actions are helping their co-assailant use or maintain possession of their weapon. See id. at 1221. That is missing here.
The two cases the government most strongly emphasizes in support of upholding this conviction only further highlight the critical evidence missing here.
14
In Dang v. United States, we upheld a PFCV conviction under an aiding and abetting theory of liability where Dang was “blocking the door,” “guarding” one victim, and “pointing a knife at” another victim as the victims “moved to assist” one another. 741 A.2d 1039, 1042-43 (D.C. 1999). It was precisely because the victims in that case “moved to assist each other and had to be subdued” that we upheld Dang’s conviction under an aiding and abetting theory. See Fox v. United States, 11 A.3d 1282, 1288 (D.C. 2011) (citing Dang, 741 A.2d at 1042). Similarly, in Tann v. United States, we upheld a PFCV conviction where Tann “prevent[ed] [one victim] from coming to the aid of his friend” who was being held at gunpoint by Tann’s accomplice. 127 A.3d 400, 431-32 (D.C. 2015) (per curiam). We later noted that the victim who Tann was subduing was otherwise “in a position” to help his friend, and “there was strong reason to think he would have done so had he not been subdued” because the two victims were members of a “crew” engaged in ongoing hostilities with Tann and his friend’s rival crew. Parker, 298 A.3d at 792. Unlike in Dang and Tann, but just as in Chandler and Parker (discussed more in the next paragraph), there was no evidence here that Garcia or anybody else had any design or took any steps toward disarming the armed assailant. There was thus no evidence from which a rational jury could conclude beyond a reasonable doubt that the unarmed assailant affirmatively aided his accomplice’s continued possession of the taser.
15
The government next points to the second phase of the assault, arguing that the jury could infer Brooks’s guilty knowledge because “Leyva started to move to aid Garcia,” then “stopped when the assailants returned.” This, in the government’s view, means the unarmed assailant assisted the armed assailant’s possession of the taser “by preventing” Leyva “from coming to the aid” of Garcia. See Tann, 127 A.3d at 431-32. But even if the assailants knew that Leyva was approaching Garcia to render aid, which is far from clear, Leyva showed no interest in attempting to disarm Garcia’s armed assailant regardless of anything the unarmed assailant did. There was no evidence that either of the assailants “subdued” Leyva or took any step with the intention of thwarting Leyva from attempting to disarm the armed assailant. See id. at 432. The unarmed assailant in this case did even less than the unarmed robber in Parker, who ordered a victim on the ground and gave him “a few light slaps on the back of the head to encourage him to comply,” and we held that evidence was insufficient to uphold his conviction on a theory that he aided and abetted his nearby accomplice’s possession of a firearm. See 298 A.3d at 792-93. Just as in Parker, Brooks “had no reason to think [Leyva] would try to disarm his accomplice, nor did [Leyva] show any signs of doing so.” Id. at 793.
In sum, the evidence was in equipoise about whether Brooks was the armed assailant who tased Garcia. In the equally likely event that Brooks was the unarmed assailant, there was no basis to conclude that he aided and abetted the armed assailant
16
in possessing the taser. 4 The unarmed assailant did not take any affirmative step to aid the principal’s possession of the taser because no one on the scene posed any apparent threat of disarming the principal possessor but for the unarmed assailant’s actions. See Chandler, 349 A.3d at 1221; Parker, 298 A.3d at 793. That leaves the government’s evidence in equipoise as to whether Brooks possessed a prohibited weapon, and such equivocal evidence is perforce insufficient to sustain a criminal conviction.
III. Conclusion
For the foregoing reasons, we reverse Brooks’s PPW conviction and remand with instructions to vacate Brooks’s simple assault conviction, as it merges with his assault with a dangerous weapon conviction.
4 We acknowledge that the government’s evidence did not need to be clear as to which theory of liability applied here. If it provided evidence from which a rational factfinder could conclude beyond a reasonable doubt that Brooks was either the principal armed assailant, or an accomplice who aided and abetted the principal, we would sustain his conviction. See Payne v. United States, 697 A.2d 1229, 1235 n.12 (D.C. 1997) (if “[t]here was sufficient evidence to convict Payne either as a principal or as an aider and abettor,” then “the jury could properly return a general verdict against Payne without specifying whether he was a principal or an aider and abettor”). But here, the fundamental problem is that there was no reason to think the unarmed accomplice aided and abetted the principal’s possession of the taser, and there was no evidence from which the jury could conclude beyond a reasonable doubt that Brooks was the principal armed assailant, as opposed to the unarmed accomplice.
17
So ordered.