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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-346
HARRY A. CREWS, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF2-5279-18)
(Hon. Ronna Lee Beck, Trial Judge)
(Argued January 26, 2021 Decided November 10, 2021)
Mindy A. Daniels for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Timothy J. Shea, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Ariel Dean, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, * Associate Judge, and FERREN, Senior Judge.
* Judge Thompson was an Associate Judge of the court at the time of January 26, 2021. Judge Thompson’s term expired Saturday, September 4, 2021; however, she will continue to serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-1502 (2012 Repl.) (“Subject to mandatory retirement at age 74 and to the provisions of subchapters II and III of this chapter, a judge of a District of Columbia court appointed on or after the date of enactment of the District of Columbia Court Reorganization Act of 1970 shall serve for a term of fifteen years, 2
BLACKBURNE-RIGSBY, Chief Judge: Appellant Harry Crews appeals the
denial of his motion to suppress a handgun recovered from his person and seeks
correction of his sentence. Following a jury trial, appellant was convicted of
carrying a pistol without a license (“CPWL”) outside his home or place of business;
possession of an unregistered firearm; and unlawful possession of ammunition. 1
Appellant argues that the trial court incorrectly determined the point of seizure and
that he was unlawfully seized by Metropolitan Police Department (“MPD”) officers
while on the landing to his apartment as he tried to unlock his apartment door.
Appellant also requests that this court review his Judgment and Commitment Order,
which reflects a felony CPWL conviction even though, the jury was only instructed
with the elements of misdemeanor CPWL.
We vacate the trial court’s denial of the motion to suppress and remand the
case for further findings as to whether (1) there was a show of authority by officers
and upon completion of such term, such judge shall continue to serve until the judge’s successor is appointed and qualifies.”). She was qualified and appointed on October 4, 2021, to perform judicial duties as a Senior Judge and will begin her service as a Senior Judge on a date to be determined after her successor is appointed and qualifies. 1 Carrying a pistol without a license outside home or place of business (D.C. Code § 22-4504(a)(1) (2012 Repl. & 2021 Supp.)); possession of an unregistered firearm (D.C. Code § 7-2502.01(a) (2018 Repl.)); and unlawful possession of ammunition (D.C. Code § 7-2506.01(a)(3) (2018 Repl.)). 3
and, relatedly, (2) appellant submitted to a show of authority. In addition, we ask
the trial court to clarify whether (and, if so, when) the officers had reasonable
articulable suspicion to conduct an investigatory stop prior to the frisk. We do not
reach the issue relating to the Judgment and Commitment Order.
I.
A. Hearing on Motion to Suppress
On February 4, 2019, the trial court held a pretrial evidentiary hearing to
address appellant’s motion to suppress a pistol recovered by MPD. After hearing
testimony from the sole witness, MPD Officer Jendy Olivo, the trial court denied
appellant’s motion to suppress, crediting the officer’s testimony with respect to what
happened and what he personally observed. Officer Olivo testified that he is a patrol
officer for the Seventh District with specialized training in recognizing
characteristics associated with armed gunmen. Officer Olivo described the
neighborhood around the 1500 block of Eaton Road S.E. as a place leading to the
2600 block of Burnie Place, an area known to officers for continuous drug and gun
related arrests. 4
Officer Olivo testified that around midnight on April 5, 2018, he along with
two other officers, Officers Labun and Gramieri, all dressed in full uniform, were
patrolling the 1500 block of Eaton Road in their marked squad car. Officer Olivo
was in the backseat of the vehicle, Officer Gramieri was driving, and Officer Labun
was in the front passenger seat. As Officer Olivo was unable to see from the back
seat, the other officers informed him that as appellant was exiting his car and saw
the police vehicle approaching, he turned the front of his body into and pressed it
against his vehicle. The officers found this turning away unusual. Officer Olivo
explained that “for individuals to press their body against a vehicle” is “common
upon seeing police officer[s,] to avoid officers being able to see any unusual bulges
or objects weighing down their center area or like jackets.”
Officer Olivo further testified that after passing the appellant, Officer
Gramieri turned the police vehicle around and drove back to the location where
appellant was last seen. Officer Olivo exited the police vehicle and began
canvassing the area around appellant’s vehicle, eventually entering a fenced area
with a red building. Upon entering the fenced area, Officer Olivo testified that he
saw exterior stairs leading to a covered upper-level landing which was surrounded
by railing and led to the door of appellant’s apartment. The landing was at a second-
floor level and had no other access points. 5
Officer Olivo was at the bottom of the stairs when he saw appellant standing
on the upper landing. Due to very poor lighting, Officer Olivo shined his flashlight
at appellant and said, “Hey what’s up, can I talk to you real quick?” As Officer
Olivo moved closer towards appellant, he testified that he could see appellant
become nervous and try several times to hurriedly put his key into the keyhole of the
apartment door to open it.
Officer Olivo stated he made his way up the stairs towards appellant. Noticing
appellant’s hurried and nervous state, Officer Olivo testified that he then said to
appellant “no, I need to talk to you” in a more persistent tone. 2 In addition, Officer
Olivo’s body worn camera captured appellant responding to the officer, the clearest
statement being, “For what?” Also, appellant momentarily paused his attempt to
unlock his apartment door. When Officer Olivo was about three to four stairs away
from appellant, he began asking if appellant had any weapons, but was interrupted
when appellant turned to face him. Officer Olivo testified that he then saw an L-
shaped weighted object in the front pocket of appellant’s pull over hoodie. He then
sprinted up the short distance up the stairs and bear hugged appellant to prevent
2 In the body worn camera footage Officer Olivo states, “Nah, let me talk to you real quick.” 6
access to the L-shaped weighted object, which he suspected was a firearm. While
being bear hugged, appellant stated that he lived there (which was verified after
appellant was taken to the police station).
According to Officer Olivo, Officers Labun and Gramieri followed closely
behind him through the gate, also with their flashlights on. Officer Olivo testified
that within five seconds of his bear-hugging appellant, Officer Gramieri helped
secure appellant and Officer Labun conducted the pat down, and the object was
removed from the pocket and discovered to be a firearm. After the firearm was
recovered and the officers were waiting for back-up to arrive, Officer Olivio testified
that appellant stated, “yes, I am breaking the law. But you broke the law to find out
I was breaking the law. And [that] he only carries a firearm for protection because
police are killing people and people are killing people.”
In denying appellant’s motion to suppress the recovered firearm on Fourth
Amendment grounds, the trial court concluded that (1) the observation of appellant
leaning into his car as the police vehicle passed did not give police reasonable
articulable suspicion, but was something that caused officers to further investigate;
however, the trial court further concluded that (2) once Officer Olivo was on the
landing in front of appellant’s apartment and saw the L-shaped weighted object in 7
the front pocket of appellant’s hoodie, which Officer Olivo believed to be a gun,
there was reasonable articulable suspicion justifying a Terry frisk. Therefore, the
trial court concluded that Officer Labun’s subsequent frisk of appellant was lawfully
conducted, and the recovered firearm admissible.
However, the trial court was concerned with whether an officer has a “right to
go on to somebody’s else’s property that [is] fenced” without reasonable articulable
suspicion or if it is permissible to go beyond the fence to initiate a citizen contact.
The trial court found that: (1) the fence around the building was see-through; (2) the
gates were open; (3) there were two entrances to two different apartments; (4) each
entrance had its own steps leading to it; (5) and the steps leading to the landing had
an overhead cover. The trial court presumed the steps were curtilage and that Officer
Olivo entered the curtilage. However, recognizing Florida v. Jardines, the trial court
held that in the absence of signage prohibiting entrants beyond the open gate, Officer
Olivo did not act beyond what a private citizen may do. 569 U.S. 1, 8 (2013)
(determining an unarmed officer without a warrant may approach a home and knock
on the door because it is no more than a private citizen may do).
The trial court concluded that Officer Olivo was legally on the property,
including the stairs, because there was no “unlicensed intrusion,” or use of any 8
“unlicensed physical intrusion.” See Jardines, 569 U.S. at 7-8 (discussing whether
an officer’s investigation that took place on a constitutionally protected area was
accomplished through an unlicensed physical intrusion, where there is an “implicit
license” for a visitor to approach a home, knock on the door, and wait to be received).
The trial court reaffirmed its conclusion that Officer Olivo did not have reasonable
articulable suspicion when he initially entered up the stairs. However, the court
found that Officer Olivo’s physical intrusion — the bear hug upon appellant — was
licensed, legal, and permitted the moment he observed the L-shaped weighted object
in appellant’s front pocket, which established reasonable articulable suspicion to
then conduct a Terry frisk. Officer Olivo’s bear hug, conducted for his own safety
to prevent appellant from reaching for the suspected weapon, was therefore a lawful
action preceding the frisk, said the court. Therefore, the trial court issued its final
denial of appellant’s motion to suppress.
B. Trial and Sentencing
The relevant Fourth Amendment evidence presented at trial mirrored the
evidence presented at the motion to suppress hearing. The only additional evidence
admitted at trial, relevant to our review, pertains to the Judgment and Commitment
Order, which reflects a felony CPWL conviction and requires proof beyond a 9
reasonable doubt that appellant carried the weapon “in a place other than the person’s
dwelling place” or “on other land possessed by the person.” D.C. Code § 22-
4504(a)(1). Throughout the presentation of the case the jury was presented with the
elements for misdemeanor CPWL, which does not require the aforementioned
element of proof that was put forward. See D.C. Code § 22-4504(a) (“No person
shall carry within the District of Columbia either openly or concealed on or about
their person, a pistol, without a license issued pursuant to District of Columbia law,
or any deadly or dangerous weapon.”).
At the start of trial while delivering voir dire instructions, the trial court
informed the jury that appellant was charged with “[carrying] a pistol without a
license, possession of an unregistered firearm, and unlawful possession of
ammunition;” the elements of misdemeanor CPWL. Neither party objected to the
court’s recitation of the charges. Then, in the government’s closing argument, with
respect to the CPWL charge, it informed the jury of the elements of misdemeanor
CPWL — “[e]ssentially you have to decide whether on April 5, 2018, the defendant
was carrying a pistol and whether he had a license to carry that pistol, and whether
that pistol was registered.” 10
Before instructing the jury, the trial court took time to determine if, in the
evidence presented, appellant made a prima facie case he was entitled to an
exception instruction with respect to the CPWL charge. See Fortune v. United
States, 570 A.2d 809 (D.C. 1990) (discussing the statutory exceptions pertaining to
CPWL charges, such as dwelling place and other land possessed by a person).
Specifically, the question was whether the appellant demonstrated that he did not
carry the firearm outside his home or business, or outside land or premises possessed
or controlled by him. Appellant’s mother, Edith Crews, testified that he lived at the
address where he was arrested for approximately two years with his girlfriend and
child.
The trial court reasoned that the landing outside of appellant’s apartment did
not fall within the definition of dwelling because a dwelling is exclusively inside a
home and does not include curtilage. The court decided not to instruct the jury with
a dwelling exception in appellant’s favor for the CPWL charge. The trial court,
relying on Fortune, 570 A.2d 809, and White v. United States, 283 A.2d 21 (D.C.
1971), explained that appellant had the burden of making a prima facie case that he
fit within an exception found in D.C. Code § 22-4504(a)(1) — that he was not a
person carrying weapons “in a place other than the person’s dwelling place” or the
he was “on other land possessed by” him. 11
The trial court concluded that curtilage is not part of a dwelling such that the
dwelling exception is applicable to appellant. Also, relying on Hines v. United
States, 326 A.2d 247 (D.C. 1974), and again on Fortune, and White, the trial court
concluded that a premises (or land possession) exception did not apply because
appellant did not introduce evidence that he was on land possessed by him. The
evidence presented was that appellant’s address was the same as the building where
he was seized and that appellant, his girlfriend and child had an apartment at that
address. The trial court concluded that it was not enough that appellant was trying
to open the upper exterior door to establish that appellant was on property that
constituted “premises or land possessed” by him because the building was large and
had two exterior staircases and two exterior doors. The trial court informed the
parties that with respect to the CPWL instruction it would instruct the jury on the
elements of “carr[ying] a pistol on or about his person voluntarily and on purpose,
not by mistake or accident, and that he was not licensed to carry a pistol.”
The trial court gave the following CWPL instruction to the jury:
Carrying a pistol without a license. The elements of the offense of carrying a pistol without a license, each of which the government must prove beyond a reasonable doubt, are: 12
One, the defendant carried a pistol on or about his person.
Two, he did so voluntarily and on purpose and not by mistake or accident.
And three, the defendant was not licensed to carry the pistol by the chief of police of the District of Columbia.
The term pistol means a firearm that has a barrel less than 12 inches in length, where it was originally designed to be fired with a single hand. The term firearm means a weapon, regardless of operability, which will or is intended to expel a bullet by the action of an explosive.
The jury returned guilty verdicts on all charges against appellant.
On April 18, 2019, appellant was sentenced on the counts of felony CPWL;
possession of an unregistered firearm; and unlawful possession of ammunition, 3 to
concurrent sentences of six months’ incarceration, the execution of all sentences
suspended, and to one year of supervised release. This appeal followed.
II.
A. Fourth Amendment Seizure
3 Carrying a pistol without a license outside home or place of business (D.C. Code § 22-4504(a)(1)); possession of an unregistered firearm (D.C. Code § 7- 2502.01(a)); and unlawful possession of ammunition (D.C. Code § 7-2506.01(a)(3)). 13
Appellant contends that the point of seizure occurred before Officer Olivo saw
the L-shaped weighted object in his pocket, which was prior to any opportunity
officers may have had to establish reasonable articulable suspicion to conduct a
Terry frisk; therefore, suppression of the firearm and statements to the police was
required. The Fourth Amendment protects “the right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and
seizures.” U.S. CONST. amend. IV. A constitutionally permissible encounter
between law enforcement and an individual can either be a “consensual encounter,
which does not require any level of suspicion prior to initiation”; an “investigative
detention, which if nonconsensual, must be supported by a reasonable, articulable
suspicion of criminal activity prior to initiation”; or an “arrest, which must be
supported by probable cause prior to initiation.” Gordon v. United States, 120 A.3d
73, 78 (D.C. 2015) (cleaned up). “Both investigative detentions and arrests are
seizures under the Fourth Amendment; mere consensual encounters are not.” Id.
(footnotes omitted). However, an encounter may begin consensually and, through
either “the officer’s show of authority or some other indication that the individual is
not free to leave, become a nonconsensual seizure” that requires reasonable,
articulable suspicion. Towles v. United States, 115 A.3d 1222, 1228 (D.C. 2015). 14
When reviewing a trial court’s ruling on a motion to suppress, we defer to the
trial court’s factual findings unless they are clearly erroneous, but “[w]hether a
seizure has occurred for Fourth Amendment purposes is a question of law which this
court reviews de novo.” Jackson v. United States, 805 A.2d 979, 985 (D.C. 2002).
Likewise, the trial court’s determination that an encounter was consensual is a legal
conclusion that a seizure did not occur, which is also subject to de novo review. Id.
at 985-86; Sharp v. United States, 132 A.3d 161, 166 (D.C. 2016). In assessing
whether there was a seizure, we consider the totality of the circumstances to
determine whether “police conduct would have communicated to a reasonable
person” that they were “not free to decline the officers’ requests or otherwise
terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991); see Hooks
v. United States, 208 A.3d 741, 746 n.11 (D.C. 2019) (“Another formulation of the
test asks whether a reasonable person would have felt ‘free to leave,’ . . . but the
protections of the Fourth Amendment extend to situations where a citizen has no
desire to go elsewhere and instead simply wishes to decline an encounter with the
police.”). In addition to a show of authority, for there to be a seizure the apprehended
person must submit to the show of authority. 4 See Pridgen v. United States, 134
A.3d 297 (D.C. 2016); Plummer v. United States, 983 A.2d 323, 331 (D.C. 2009)
4 But see Torres v. Madrid, 141 S. Ct. 989 (2021) (holding that the application of physical force to the body of a person with intent to restrain is a seizure even if the force does not succeed in subduing the suspect). 15
(quoting Brendlin v. California, 551 U.S. 249, 254 (2007)); see also California v.
Hodari D., 499 U.S. 621, 626, 628-29 (1991). In our analysis, “[t]he hypothetical
reasonable person is an innocent person.” Dozier v. United States, 220 A.3d 933,
941 (D.C. 2019). “Generally, when physical or testimonial evidence is uncovered
by an illegal search or seizure, it must be suppressed as the ‘fruit of the poisonous
tree.’” Wilson v. United States, 102 A.3d 751, 753 (D.C. 2014) (citation omitted).
Appellant argues that the trial court erred in determining that the encounter
began as consensual because he did not desire to interact with the police, and the
officer’s assertion that he needed to talk to appellant was a demand or else a
demonstration of authority. Appellant contends his case is analogous to Hooks v.
United States, 208 A.3d 741 (D.C. 2019) (reversing and remanding the trial court’s
denial of Hooks’s motion to suppress because there was an unlawful Fourth
Amendment seizure when four officers patrolling in a marked police vehicle passed
Hooks sitting on a lawn chair at a barbeque, turned around, exited their vehicle,
approached Hooks and commanded he stand up, which he did; the officers did not
have reasonable articulable suspicion). In response, the government argues that the
initial encounter was consensual, and that appellant was not seized because there
was no show of authority from the officers that would otherwise indicate that he was 16
not free to leave. In addition, the government argues that if there was a show of
authority there was no seizure because appellant did not submit to the authority.
We determine that is it unclear from the trial court’s ruling whether the
encounter was consensual because no findings were announced concerning if there
was a show of authority and, if so, whether appellant submitted to authority. Thus,
the trial court must resolve whether there was a seizure before Officer Olivo saw the
L-shaped object in appellant’s hoodie pocket. Additionally, although the trial court
issued findings on whether the police had reasonable articulable suspicion to justify
a frisk, it did not address the initial question of whether (and, if so, when) the officers
had reasonable articulable suspicion to conduct an investigatory stop. We ask the
trial court to also make initial findings and clarifications on this point as well.
First, the trial court must determine if there was a show of authority by
assessing the totality of the circumstances; the test is whether police conduct
communicates to a reasonable person that they are “not free to decline the officers’
requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 439. We have
explained that a show of authority need not be expressly communicated through
verbal commands for there to be a seizure. Cf. Dozier, 220 A.3d at 941 (discussing
that the implicit or explicit accusatory nature of questioning by officers can tend to 17
indicate a nonconsensual encounter with law enforcement). “[O]ur precedents direct
[us to] take an ‘earthy’ and realistic approach to such street encounters” which
requires recognition that police initiating an encounter have an “air of authority.”
(Albert) Jones, 154 A.3d 591, 595 (D.C. 2017) (quoting Jackson v. United States,
805 A.2d 979, 988 (D.C. 2002)). In Dozier, we determined that a seizure occurred
“by the time appellant submitted to the officers’ request to a pat-down.” 220 A.3d
at 941 (italics added). Although a verbal command may be a strong indicator in a
seizure determination, our precedents do not require it.
We highlight some circumstances which generally can contribute to a
conclusion that there was a nonconsensual encounter with law enforcement, i.e., a
seizure: the sudden appearance of an officer in full tactical gear emerging from a
vehicle; the officers’ outnumbering other persons; accusatory nature of an officer’s
questioning, either implicitly or explicitly; officers’ tone of voice; repeated or
persistent questioning that conveys that the officers were not satisfied with the
answers the person gave; officers’ request that the person expose his waistband for
visual inspection; and inability of a person to leave the area. 5
5 See Dozier, 220 A.3d at 941 (police officer in full uniform and tactical vest emerging without warning to interrupt a person going about his business); (Albert) Jones v. United States, 154 A.3d 591, 597 (D.C. 2017) (stating an encounter is “more intimidating if the person is by himself, if more than one officer is present, or 18
If it is determined there was a show of authority, the trial court will then make
findings as to whether appellant submitted to it. At a minimum, submission requires
“that a suspect manifest compliance with the police orders or requests.” Golden v.
United States, 248 A.3d 925, 935 (D.C. 2021) (citation omitted). There are instances
when no submission to orders or requests is evident. See Pridgen, 134 A.3d at 304
(Pridgen failed to get on the ground following officer commands); Plummer, 983
A.2d at 326 (Plummer failed to immediately put his hands up after police
commands). However, this case presents more nuanced circumstances and should
be assessed as to whether “‘in the absence of any sign that a reasonable person . . .
if the encounter occurs in a location that is secluded or out of public sight”); Dozier, 220 A.3d at 941-42 (“[A] reasonable person who can tell from the inquiries that the officer suspects him of something, and who cannot know whether the officer thinks there is sufficient reason to detain him, may well doubt that the officer would allow him to avoid or terminate the encounter and just walk away”) (quoting (Albert) Jones, 154 A.3d at 596); United States v. Barnes, 496 A.2d 1040, 1045 (D.C. 1985) (“[T]here was no . . . indication that [the officer] used a severe tone of voice.”); Gordon v. United States, 120 A.3d 73, 80-81 (D.C. 2015) (“[T]he officer seized Gordon by repeatedly questioning him before the police learned of his outstanding warrant.”); Golden, 248 A.3d at 937 (“An ordinary reasonable and innocent person . . . would not feel free to frustrate the police inquiry . . . by refusing to expose their body for visual inspection to prove their innocence.”); Dozier, 220 A.3d at 942 (Dozier was at the mouth of a narrow alley with a police car blocking part of the exit, and an officer exited the vehicle also partially obstructing exit); (Albert) Jones, 154 A.3d at 597 (Jones was in a narrow alley when the police vehicle pulled in; although he was able to get by the car, an officer exited the vehicle to stop and engage him); Hooks, 208 A.3d at 747-48 (Hooks, with a lawn chair behind him, and metal fencing to either side, was surrounded by four officers occupying the path in front of him and who commanded that he “get up”). 19
would believe the officer was giving a genuine choice to decline the request[s],’ the
clear message conveyed to a person . . . was that his submission was required.”
Golden, 248 A.3d at 935 (quoting Sharp v. United States, 132 A.3d 161, 169 (D.C.
2016)).
We do not purport to decide the issues of authority and submission in this
case, and instead note some of the circumstances we find relevant in assessing the
nature of appellant’s encounter. We find relevant: the time of day the encounter
occurred; appellant being followed to his apartment door; the statements of Officer
Olivo to appellant; the number of officers present; appellant being on an enclosed
landing; appellant’s response to Officer Olivo; and appellant’s attempts to unlock
his apartment door. With these in mind, the trial court shall make further detailed
findings on the seizure issue.
B. Appellant’s Sentence
Next, appellant asks this court to review his Judgment and Commitment Order
for a felony CPWL, despite the fact that the jury was instructed only on the elements
of a misdemeanor CPWL (which does not include that appellant was carrying the
firearm outside his home or business). Appellant highlights several different places 20
within the record in support of his assertion that there is an error in his sentence for
felony CPWL. First, he points to the indictment as being ambiguous because it cites
to D.C. Code § 22-4504(a) 6 which only contains language for misdemeanor CPWL
and does not include the element of being outside the home or place of business,
which is found in subparagraph (1) of section 22-4504(a) of the D.C. Code. Second,
he highlights that the trial court’s jury instructions and verdict form failed to include
the required element of carrying outside the home or business. Third, appellant notes
that the government failed to object to the CPWL instruction or the verdict form.
The government admits it was error not to instruct the jury on the government’s
burden to also prove beyond a reasonable doubt that appellant was carrying the pistol
6 Section 22-4504 of the D.C. Code, in relevant part states:
(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon. Whoever violates this section shall be punished as provided in § 22-4515, except that:
(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person’s dwelling place, place of business, or on other land possessed by the person, shall be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 5 years, or both. . . . 21
outside his home or business; however, it claims it was harmless error because the
evidence demonstrated that appellant was not in his home, business, or on land
possessed by him when carrying the firearm.
A challenge as to the correctness of a jury instruction is a question of law
which this court reviews de novo. Buskey v. United States, 148 A.3d 1193, 1205
(D.C. 2016). An improper jury instruction on an element of an offense is subject to
harmless-error review not warranting automatic reversal. Neder v. United States,
527 U.S. 1, 19 (1999). We are tasked with determining “whether the record contains
evidence that could rationally lead to a contrary finding with respect to the omitted
element.” Id. In other words, “even if the instructions had informed jurors of the
omitted element, no reasonable juror could have found that appellant” was carrying
the pistol in a place other than his dwelling, business, or on other land possessed by
him, “and thus that the omission did not affect appellant’s substantial rights.”
Conley v. United States, 79 A.3d 270, 291 n.3 (D.C. 2013) (Thompson, J.,
concurring in judgment), see Neder, 527 U.S. at 19 (explaining that omission of an
element of offense from jury instructions may be harmless error if the evidence could
not rationally have led to a contrary finding with respect to the omitted element). 22
The government focuses on the assertion that appellant was not within his
home, business, or on land possessed by him with the firearm. We agree that
appellant was not in his dwelling place or place of business. However, whether the
stairs and elevated landing was land possessed by appellant is less clear. In the
District of Columbia, the possession of land requires exclusive control and
possession by the individual. White v. United States, 283 A.2d 21, 24 (D.C. 1971)
(“[T]he individual must have exclusive control and possession of the premises.”).
Whether the appellant does or does not have exclusive control is a matter of fact to
be determined by the jury. Walker & Dunlop, Inc. v. Gladden, 47 A.2d 510, 513
(D.C. 1946); Greet v. Otis Elevator Co., 187 A.2d 896, 898 (D.C. 1963).
While the trial court suggests the stairs and landing are part of a shared yard
and not exclusively controlled, we are of the belief the jury could have found a
distinction between the stairs and the landing in this case. “When dealing with real
property, [a possessory] interest entails more than the right to be physically present
on the property; it encompasses also a right to exclude, both in its general sense and
as it has been construed within the meaning of [the CPWL statute].” Fortune v.
United States, 570 A.2d 809, 811 (D.C. 1990). The stairs and elevated landing in
this case lead exclusively to appellant’s apartment. Unlike in our other cases, the
level of common or public use of the stairs and landing is less apparent. See id. 23
(appellant did not have exclusive control or possession of the shared backyard of the
home in which he rented a room with his aunt); Hines v. United States, 326 A.2d
247, 249 (D.C. 1974) (appellant did not have exclusive control and possession of
common area of apartment building); White, 283 A.2d at 24 (appellant did not have
exclusive control and possession of a hallway on the floor above his apartment in an
apartment building). However, in light of our decision to remand the case we need
not resolve whether appellant had exclusive possession and control over the stairs
and landing. 7
III.
We hold that the trial court’s ruling on the motion to suppress is insufficient
and further findings are to be made concerning whether there was a show of
authority, and if so, whether appellant submitted to the authority. In addition, we
sua sponte, seek clarification as to whether there was reasonable articulable
suspicion to conduct an investigatory stop prior to the frisk. Therefore, the trial
7 The government also argues that there is evidence that appellant walked from his car to the stairway, from which the jury could have found that appellant possessed the pistol during that time. However, in light of the remand on the motion to suppress, the resolution of which is uncertain, we decline to further address this issue, which may or may not arise. 24
court’s denial of appellant’s motion to suppress is vacated and the case is remanded
for further findings.
So ordered.