Akinbi v. U.S.

321 A.3d 634

Femi AKINBI, Appellant,

v.UNITED STATES, Appellee.

No. 23-CM-0171

District of Columbia Court of Appeals.

Submitted April 10, 2024

Decided August 29, 2024

Appeal from the Superior Court of the District of Columbia (2022-CMD-006607), (Hon. Laura Crane, Trial Judge)

Justin A. Okezie, Bethesda, MD, was on the brief for appellant.

Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Elizabeth H. Danello, Anthony Cocuzza, and Anne Y. Park, Assistant United States Attorneys, were on the brief for appellee.

Before Howard and Shanker, Associate Judges, and Washington, Senior Judge.

Washington, Senior Judge:

Appellant Femi Akinbi seeks reversal of his misdemeanor conviction for attempted threats, a crime for which he was sentenced to thirty days of incarceration, execution of sentence suspended as to all, and six months of unsupervised probation. He asserts that the government presented insufficient evidence to obtain the conviction because it failed to disprove that he acted in defense of his property. The government counters that Akinbi’s appeal should be subject to plain error, and further, that he was not entitled to the defense as the evidence did not fairly raise the issue. We conclude that there was no error, let alone plain error, and affirm.

I. Background

In the early evening on November 6, 2022, Dari Karimian, along with his real estate partners, Afolake Shokunbi and Jahan Amini, went to a joint property of theirs, where Akinbi resided, to discuss an ongoing rental dispute. Shokunbi was brought along to mediate the dispute, which to that point had primarily been between Akinbi and Karimian. Shokunbi, like Akinbi, was Nigerian and they spoke the same native language, as well as English. Upon arriving at the house, of which Akinbi was the sole occupant, the three individuals entered the home without permission, and proceeded to Akinbi’s bedroom where they knocked on the door. At the time of their entry, Akinbi was asleep, and was awoken by the knocking. He had not been given prior notice that Karimian would be coming, and as a result expressed anger at the intrusion.

In response to his anger, the three individuals left the home and waited outside for Akinbi to get dressed. Upon stepping outside, Akinbi called Shokunbi over to speak with him away from the other two. He attempted to explain to Shokunbi that while he understood that she was just trying to help Karimian, Akinbi felt that Karimian was "a terrible guy" who was trying to unjustifiably force Akinbi from the residence. However, after the parties were unable to reach a resolution, Akinbi loudly said "if you come in here, I’ll blow your f*cking head off." Shokunbi and Amini both testified that, in addition to threatening them, Akinbi lifted up his shirt to reveal the butt of a black firearm before reentering the home.

Shokunbi regrouped with the other two on the sidewalk and about ten minutes later, Akinbi left the residence on a bicycle. Akinbi returned shortly thereafter, and there was another verbal exchange between Akinbi and the three individuals, which was partially caught on video. Shokunbi expressed shock at the previous threat, to which Akinbi responded by telling her to call the police. The video ended with Karimian telling Akinbi, "you’re not going to win this, motherf*[c]ker. You don’t know who you’re f*cking with."

After Akinbi re-entered the home, the three individuals flagged down a passing police vehicle. Officers responding to the scene were given permission by Akinbi to search the home, and they recovered a black airsoft BB gun in the bedroom, although Akinbi claimed that it was just one of his godson’s toys, and that there were others like it in the bedroom.

Akinbi was arrested and charged with one count of attempted threats against Shokunbi. Following a bench trial, the trial court rejected Akinbi’s argument that the threat was only directed at Karimian, and found that a reasonable person in Shokunbi’s position would believe that the threat was also directed at her. The trial court delivered its sentence that same day.

II. Discussion

Akinbi asserts that the government failed to prove that he was not justified in threatening Shokunbi because he was defending his property from her unlawful trespass. The government counters that Akinbi never raised this defense at trial, and even if he had, there was insufficient evidence to warrant its consideration.

A.

[1, 2] Prior to addressing the merits of Akinbi’s claim, we must first address our standard of review. Where a party neglects to raise a claim before the trial court, we review for plain error. Miller v. United States, 209 A.3d 75, 78 (D.C. 2019). "Under the test for plain error, an appellant must show (1) error, (2) that is plain, and (3) that affected [the appellant’s] substantial rights." Id. (brackets in original) (quoting Fortune v. United States, 59 A.3d 949, 954 (D.C. 2013)). "Even if all three of these conditions are met, this court will not reverse unless (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

While Akinbi concedes that he did not directly raise the defense-of-property defense below, he asserts that he nonetheless escapes this more stringent analysis because he filed a motion for judgment of acquittal ("MJOA") at the close of the government’s case, which preserved any arguments regarding what the government had to prove at trial, including that he did not act in defense of his property. We have previously acknowledged that a general, as opposed to a specific, MJOA "is deemed ‘sufficient to preserve the full range of challenges’ to the sufficiency of the evidence." Newby v. United States, 797 A.2d 1233, 1238 (D.C. 2002) (quoting United, States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir. 1995)). However, this longstanding rule is in part attributed to the fact that the parties are on full notice of what the government must prove to make its prima facie case. See id.

It remains an open question in this jurisdiction whether a defendant who raises a specific ground supporting his MJOA is able to claim preservation for any and all sufficiency challenges on appeal. E.g., Covington v. United States, 278 A.3d 90, 95 (D.C. 2022) ("It is less clear, however, what arguments are preserved by a more targeted MJOA …. "). There is a split among the federal circuits on this issue. The majority have adopted the rule that a general MJOA can preserve unraised sufficiency challenges, while a specific MJOA cannot preserve unraised arguments on appeal. See United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012) ("[W]hen a defendant chooses only to give specific grounds for a[n MJOA], all grounds not specified are considered waived …."); United States v. Williams, 974 F.3d 320, 361 (3d Cir. 2020) (same); United States v. Maez, 960 F.3d 949, 959 (7th Cir. 2020) (same); United States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998) (same); see also United States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (restricting preservation of sufficiency challenges to factual or evidentiary, but not legal, arguments cabined within a sufficiency challenge). But see United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (restricting appellant defendants to "the particular basis on which acquittal is sought" on appeal, even for general MJOAs). Only the Second Circuit has permitted defendants to preserve all sufficiency challenges, regardless of the specificity with which the MJOA was raised. See United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983) (holding that, even where the defendant filed a specific MJOA, a "defendant need not specify the ground of the motion in order to preserve a sufficiency claim for appeal."); see also United States v. Barrett, 102 F.4th 60, 71 (2d Cir. 2024).

[3] We have expressed interest in the approach followed by the Second Circuit but we have never explicitly adopted it. See Campbell v. United States, 163 A.3d 790, 793 (D.C. 2017) ("[I]t is not clear why, if a general MJOA is sufficient to preserve all arguments challenging the sufficiency of the evidence, the addition of specific arguments in support of the motion should operate to un-preserve other arguments"). However, Akinbi’s case, like Campbell’s, does not squarely present us with an opportunity to determine which approach to follow. While Akinbi’s MJOA was specific and unrelated to his present claim,¹ on appeal he contends it preserved his sufficiency argument even with respect to an unraised affirmative defense; namely, the defense-of-property defense.² Were we to permit a specific, and unrelated, MJOA to preserve for appeal a sufficiency challenge related to an affirmative defense, it would mark a dramatic expansion of what to this point has been a relatively narrow doctrine. Further, to adopt this approach would be entirely out of step with most, if not all, of our state and federal counterparts, and ultimately ungrounded from the traditions of the general rule.

As noted above, most federal circuits do not permit a specific MJOA to preserve unraised sufficiency challenges.³ However, even the Second Circuit, which has adopted the broadest interpretation of the preservation rule, has limited its application to negation defenses that allege "that the government had failed to establish an essential element of the crime charged." United States v. Gjurashaj, 706 F.2d 395, 399 n.5 (2d Cir. 1983). In fact, many federal circuits consider unraised affirmative defenses simply waived on appeal. See, e.g., United States v. Ciavarella, 716 F.3d 705, 733 (3d Cir. 2013); United States v. Boccone, 556 Fed. Appx. 215, 238 n.6 (4th Cir. 2014) (unpublished); United States v. Greenberg, 596 Fed. Appx. 550, 552 (9th Cir. 2015) (unpublished).⁴

[4–6] We expect trial courts to ensure that there is evidence sufficient to meet the prima facie elements of a crime, which gives rhyme and reason to the preservation rule. Cf. Newby, 797 A.2d at 1238...