McKinney v. United States

1

David Jeremiah McKinney & Keith Baham, Appellants, v. United States, Appellee.

Nos. 22-CF-0266, 22-CF-0326

Court of Appeals of The District of Columbia

August 24, 2023

Submitted March 10, 2023

Appeals from the Superior Court of the District of Columbia (2019-CF3-009555 &2019-CF3-009976) (Hon. Michael Ryan Trial Judge)

Nancy Allen was on the brief for appellant McKinney.

Sean R. Day was on the brief for appellant Baham.

Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Suzanne Grealy Curt, Rachel Forman, Kevin Birney, and Valerie Tsesarenko, Assistant United States Attorneys, were on the brief for appellee.

Before BECKWITH, EASTERLY, and DEAHL, Associate Judges.

DEAHL ASSOCIATE JUDGE

David McKinney and Keith Baham were convicted of armed carjacking and several related offenses after robbing Tymon Babin and then stealing his car. The evidence at trial established that Babin was robbed of keys and other effects when he was 80 to 100 feet away from the car, which was parked around the corner of a building so that he did not see or otherwise notice that it had been stolen until several minutes after the fact. On appeal, McKinney and Baham principally argue that this evidence was insufficient to support a conviction under the District's carjacking statute, which requires that the motor vehicle be in the "immediate actual possession" of the victim at the time of the offense. D.C. Code § 22-2803(a)(1).

We agree that the evidence was insufficient to establish that Babin was in immediate actual possession of his vehicle when it was taken. While our precedents instruct that "immediate actual possession" extends somewhat beyond "literal actual possession," Sutton v. United States, 988 A.2d 478, 485 (D.C. 2010), this statutory requirement is not infinitely elastic. The facts of this case push the concept of immediate actual possession past its breaking point. We therefore reverse McKinney's and Baham's convictions for armed carjacking.

McKinney and Baham also argue that the government introduced insufficient evidence to support their convictions for first-degree theft because no evidence established the vehicle's value as over $1,000, the threshold for first-degree theft. D.C. Code §§ 22-3211, -3212(a). We agree, and the government concedes the point, so we reverse the first-degree theft convictions and remand to the trial court for entry of judgments on the lesser-included offense of second-degree theft. The government likewise concedes that Baham's two convictions for possession of a firearm during a crime of violence (PFCV) merge; we agree and so remand for the trial court to merge those convictions. See Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999). Finally, McKinney and Baham argue that their convictions for theft and unauthorized use of a vehicle (UUV) merge. As we recently explained, those convictions do not merge, Austin v. United States, 292 A.3d 763, 771-72 (D.C. 2023), and we therefore uphold them.

I. Background

We recount the evidence in the light most favorable to the government, as that is the lens under which we view it when assessing sufficiency of the evidence arguments. See Wiley v. United States, 264 A.3d 1204, 1209 (D.C. 2021). One afternoon, Tymon Babin wrapped up his shift at a Virginia barbershop and drove into the District to pick up David McKinney. Babin and McKinney were friends since middle school and had kept in touch over the years. As Babin recounted in his trial testimony, McKinney had reached out earlier that day to invite him to come "hang out and chill." Babin understood the night's plans to involve him, McKinney, and McKinney's friend Demarco Fox, whom Babin had met on several prior occasions. When he arrived at the address provided by McKinney, they were also joined by a fourth man, Demari Moore, whom Babin did not know well. The men got into Babin's car, and McKinney directed Babin to pick up an additional passenger, Keith Baham, whom Babin also did not know. McKinney next directed Babin to an apartment building in Northeast D.C., where Babin believed the five men were "going to go hang out with some females" whom McKinney knew.

Upon their arrival, Babin parked his car in the apartment building's parking lot, and the five men headed down a sidewalk "around to the side of the building." When they got to the building's entrance, Baham walked up to Babin, pulled out a gun, and told him to "drop everything." Babin testified that McKinney then patted down his pockets and took his wallet, phone, and car keys. Fox unclipped the fanny pack that Babin was wearing across his chest. McKinney directed Babin to unlock the phone, after which he, Baham, Fox, and Moore all walked away. Babin, still afraid of being shot, "ducked off behind some bushes" and did not see in which direction his assailants walked off. When he came out from the bushes several minutes later, he saw that his car was gone. Because of his location in relation to the building's parking lot, Babin did not actually see anybody take his car, and on cross-examination he agreed that for all he knew in the moment, the car might have been towed.

Babin asked a passerby to call the police. Several officers came to the apartment building in response, two of whom-Sergeant Tristan Hyland and Detective Andrew Gamm-testified at trial. Hyland estimated that Babin had parked his vehicle "approximately 60 feet" from the apartment building, though he was not asked and did not specify the distance between the parking spot and the building's entrance (where Babin was robbed) in particular. Hyland explained that when standing "directly in front of the door" to the apartment building-where the robbery took place-the view to the parking lot was "obscured by a wall." Gamm testified similarly, though he was more specifically asked about the distance from the apartment building's entrance to the relevant parking spot, and he estimated it was "between 80 to about a hundred feet" away, but noted that nobody had actually measured that distance.

Babin went with officers to the police station, where he named McKinney as one of his assailants and offered descriptions of the other three men. McKinney, Baham, Fox, and Moore were all eventually arrested and charged with armed carjacking, D.C. Code § 22-2803(b)(1); armed robbery, id. §§ 22-2801, -4502; first- degree theft (motor vehicle), id. §§ 22-3211, -3212(a); and UUV, id. § 22-3215. Baham was also charged with two counts of PFCV, id. § 22-4504(b).

Before the jury began its deliberations, the trial court provided the standard instruction for armed carjacking, which includes the requirement that the defendants "took a motor vehicle from the immediate actual possession of Mr. Babin against Mr. Babin's will." The jury was further instructed that "immediate actual possession" meant "located close enough that one could reasonably expect Mr. Babin to exercise[] physical control over it and thereby prevent its taking if not deterred by violence or fear." During deliberations, the jury sent a note asking whether "there [is] additional legal guidance/definition beyond what was provided in the instructions for [] the meaning of 'immediate actual possession' regarding the charge of carjacking?" The trial court provided the following response, drawn from the commentary accompanying the model jury instructions:

With regard to immediate actual possession, the Complaining witness need not be in the car or in direct physical control of the car at the time of the assault. Under the carjacking statute, immediate actual possession is retained if the car is within such range that the Complaining witness could if not deterred by violence or fear retain actual physical control over it.

In addition, it is not critical to the question of immediate actual possession that the Complaining witness be within close range of the car at the precise time the assault begins.

The carjacking statute contains no such temporal limitation. A carjacker may take immediate actual possession of a motor vehicle from another by force or violence at any point during a continuous course of assaultive conduct. Not just the starting point.

The first paragraph of that response was not objected to and generally mirrors the court's original instructions, while defense objected to the second paragraph.

The jury convicted McKinney and Baham of all charges, while acquitting Fox and Moore of all counts. The trial court sentenced McKinney and Baham to terms of 7.5 and 15 years, respectively. McKinney and Baham now appeal.

II. Analysis

A. Sufficiency of the Evidence To Support Carjacking Convictions

McKinney and Baham most forcefully argue that the government presented insufficient evidence to support their convictions for armed carjacking. In order to secure a conviction for carjacking, the government must prove beyond a reasonable doubt that a defendant: "1) knowingly or recklessly; 2) by force or violence; 3) took from another person; 4) immediate actual possession; 5) of a person's vehicle; or 6) attempted to do so." Allen v. United States, 697 A.2d 1, 2 (D.C. 1997) (citing D.C. Code § 22-2903).

McKinney and Baham challenge the sufficiency of the evidence supporting the fourth, "immediate actual possession" element of the offense. They highlight the facts that Babin was 80 to 100 feet from his car both when the robbery began and when his car was taken, and that Babin had no line of sight to the car and apparently did not realize it was gone until several minutes after the fact. We agree that the evidence was insufficient to support their armed carjacking convictions.

This is not our first time interpreting the carjacking statute's requirement that a car be taken from another's "immediate actual possession."...