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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-653

MICHAEL A. HARTLEY, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(CF3-21883-12)

(Hon. J. Michael Ryan, Trial Judge)

(Submitted January 8, 2015 Decided May 14, 2015)

William R. Cowden was on the brief for appellant.

Ronald C. Machen, Jr, United States Attorney at the time the brief was filed, 

and Elizabeth Trosman and John Truong, Assistant United States Attorneys, and 

Susan M. Simpson, Special Assistant United States Attorney, were on the brief for 

appellee.

Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY and

EASTERLY, Associate Judges.

WASHINGTON, Chief Judge: A unanimous jury convicted appellant Michael 

A. Hartley of one count each of assault with intent to commit robbery while armed 
2

(“AWIRWA”),1assault with significant bodily injury (“felony assault”),2 malicious 

destruction of property valued at less than $1,000,3and wearing a hood or mask 

while committing a crime4in connection with the attempted robbery of James 

Galloway-Reed (“JGR”). Appellant challenges the trial court’s denial of his 

motion for judgment of acquittal on the AWIRWA and felony assault counts. 

Specifically, appellant argues that: (1) the trial court erred in denying his 

motion for judgment of acquittal because there was insufficient evidence that he

was armed for purposes of the AWIRWA conviction; and (2) the injuries sustained 

by JGR were not severe enough to constitute significant bodily injuries for 

purposes of the felony assault conviction. For the reasons stated below, we hold 

that the trial court erred in denying appellant’s motion for judgment of acquittal on 

both counts and order that his convictions for those two counts be vacated and that 

a judgment of conviction be entered for assault with intent to commit robbery 

(“AWIR”). 

 

1 D.C. Code §§ 22-401, -4502 (2012 Repl.).

2 D.C. Code § 22-404 (a)(2) (2012 Repl.).

3 D.C. Code § 22-303 (2012 Repl.).

4 D.C. Code § 22-3312.03 (2012 Repl.).
3

 I. 

On the afternoon of December 24, 2012, appellant saw JGR talking on his 

cell phone and then attempted to rob him of the phone while JGR was on the 

platform of the Rhode Island Metro station trying to make his way home. During 

the encounter, appellant repeatedly demanded that JGR surrender his phone, but 

JGR refused to do so. After failing to acquire JGR’s phone through verbal

bullying, appellant placed his hand in his jacket pocket, and threatened JGR, telling 

him, “this isn’t a joke, I have a gun.” JGR testified that he saw appellant with his

hand in his pocket but that he did not believe that appellant actually had a gun. 

JGR quickened his pace as he continued to walk towards the street and 

appellant followed him, all the while telling JGR that he had a gun. Finally,

appellant pursued JGR to an underpass across the street from the Metro station and 

began to physically assault him in an effort to steal his cell phone. Appellant 

stopped assaulting JGR when the police arrived on the scene in response to a call 

about the incident.

5

 At the scene, JGR identified appellant as the man who 

assaulted him and appellant was arrested. The police did not find a firearm in 

appellant’s possession or in the area where the assault took place. As a result of 

 

5 A bystander called police after witnessing appellant chase JGR. 
4

the attack, JGR suffered minor cuts to his face, a black eye, and swelling. 

 II. 

Appellant first contends that the evidence was insufficient for a jury to find 

beyond a reasonable doubt that he was armed for purposes of the AWIRWA 

conviction. We agree. 

When evaluating a claim of evidentiary insufficiency, this court views the 

evidence in a light most favorable to the government. Peterson v. United States, 

657 A.2d 756, 760 (D.C. 1995). Accordingly, we reverse “only if there is no 

evidence upon which a reasonable mind might fairly conclude guilt beyond a 

reasonable doubt.” Id. (quoting In re R.H.M., 630 A.2d 705, 707 (D.C. 1993)) 

(internal quotation marks omitted). In other words, the pertinent question on 

appeal is whether a rational factfinder, after viewing the evidence in a light most 

favorable to the government, could have found the essential elements of the 

charged crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 

319 (1979). Furthermore, this court does not distinguish between direct and 

circumstantial evidence when reviewing a trial court’s denial of a motion for 

judgment of acquittal. See Taylor v. United States, 662 A.2d 1368, 1371 n.7 (D.C. 
5

1995); Paris v. United States, 515 A.2d 199, 204 (D.C. 1986).

The District’s “while armed” enhancement provision allows the court to 

impose an additional term of imprisonment when the defendant has been convicted 

of a crime of violence6during which the defendant was “armed with” or “ha[d] 

readily available”: (1) a firearm, (2) an imitation firearm, or (3) any other 

dangerous or deadly weapon. See D.C. Code § 22-4502 (a). Accordingly, the 

government is required to prove beyond a reasonable doubt that the defendant

possessed or, at a minimum, had ready access to a firearm, imitation firearm, or 

other dangerous weapon, while committing a dangerous crime. See Smith v. 

United States, 777 A.2d 801, 809 (D.C. 2001). In the absence of direct evidence, 

this can be proven with circumstantial evidence as long as a factfinder could

reasonably infer from the evidence presented that the defendant possessed a 

firearm, imitation firearm, or other dangerous weapon, while committing the 

crime. See id. at 809-10; see also Boyd v. United States, 473 A.2d 828, 832 (D.C. 

1984) (affirming defendant’s armed rape conviction based primarily on victim’s 

testimony containing statements indicating the presence of a knife even though no 

direct evidence was introduced that defendant actually possessed a knife during the 

 

6 Assault with intent to rob is a crime of violence. See D.C. Code § 23-1331 

(4). 
6

rape).

The question here is whether placing one’s hand in one’s pocket and 

pointing it at someone while verbally threatening to shoot them if they do not 

comply with one’s demand is sufficient evidence to satisfy the District’s while 

armed enhancement statute. The government principally relies on our decision in

Smith to support its argument that the evidence in this case is sufficient to support 

the jury’s finding that appellant attempted to rob JGR while armed with a firearm 

or an imitation firearm. However, the Smith case is easily distinguishable from the 

present case. In Smith, the defendant entered a fast food restaurant with his right 

hand in his right jacket pocket and, after pointing his hand through the jacket 

pocket at employees, proceeded to pilfer the cash register, threatening to shoot 

anyone who intervened. 777 A.2d at 803-04. Even though no one testified to 

actually seeing a firearm on defendant’s person, and a firearm was never 

recovered, this court concluded that the jury could have permissibly inferred that 

the defendant had a firearm, or an imitation thereof, at the time that he committed 

the robbery, despite the defendant’s testimony that he was only using his hand. Id.

at 809-10. In reaching its decision, this court noted that:

[O]ur decision in this case does not necessarily implicate Smith’s 

characterization of the imitation firearm. The jury, after hearing all of 

the evidence, could have reasonably believed that Smith’s hand was 

accessing an imitation firearm in his pocket rather than actually 
7

making an imitation firearm. In any event, we simply hold there was 

sufficient evidence for a jury to have found that Smith committed the 

robbery while armed.

Id. at 810 n.15 (emphasis in original). 

However, unlike the witnesses in the Smith case, the victim here testified

that he did not believe that appellant was armed with a firearm or might be 

accessing a weapon while appellant’s hand was in his pocket. Further, unlike the 

defendant in Smith, who fled the scene of the crime before police could arrive, 

appellant in this case was standing within twenty yards of JGR when the police 

officers arrived and arrested him for the assault. Notably, no evidence was 

admitted at trial that a firearm or anything that could have been mistaken for a

firearm was found on appellant or at the scene. Thus, the jury here was not as free 

as the jury in the Smith case to infer that appellant had a firearm in his possession 

or was accessing a firearm, or imitation thereof, when he committed the assault on 

JGR.

7

 

7 Moreover, unlike almost all of the cases upon which the Smith court relied 

in reaching its decision that there was sufficient circumstantial evidence to support 

the defendant’s armed robbery conviction, here, there was no physical 

manifestation of any weapon, imitation or otherwise, that a witness perceived, 

either by seeing it or feeling it, that reasonably could be mistaken for a firearm at 

the time the crime was committed. Cf. Bates v. United States, 619 A.2d 984, 985-

86 (D.C. 1993) (victim testified that an object that felt like a firearm was pressed 

against his head and eyewitness testified that appellant pointed a silver object that 

(continued . . .)
8

In sum, on this record, we agree with appellant that there was insufficient 

evidence to support a finding that appellant attempted to rob JGR while armed with 

a firearm or an imitation firearm and therefore, his conviction for AWIRWA must 

be vacated and judgment for the lesser-included offense of AWIR be entered.

 III. 

Appellant also argues that the evidence was insufficient to support his felony 

assault conviction because JGR did not suffer any significant bodily injury as a 

result of the assault. The government concedes this point, and we agree. See In re 

 

(. . . continued)

looked like a firearm at the victim); Paris v. United States, 515 A.2d 199, 203 

(D.C. 1986) (victim testified that appellant thrust an “extremely hard” object into 

his ribs); Meredith v. United States, 343 A.2d 317, 319 (D.C. 1975) (testimony that 

robbery was committed with a .22 caliber starter pistol). Furthermore, there was 

no evidence that a firearm or other object that could have been mistaken for an 

imitation firearm was found on the scene. Thus, the testimony in the 

aforementioned cases that someone saw something that could have been part of a 

firearm or came in contact with something that felt like a firearm is significantly 

stronger evidence from which to draw a reasonable inference that the assailant was 

actually armed with a weapon or imitation weapon than the testimony in this case 

that the victim saw appellant’s hand in his pocket and never thought that it was

anything other than appellant’s hand. The latter testimony is much less compelling 

on the question of whether appellant in this case was in possession of a firearm or 

imitation firearm than the former examples and therefore, the inferences that can 

be drawn from that evidence to support a circumstantial case are significantly less 

probative than the inferences that can be drawn from the more compelling 

evidence presented in the other cases. 
9

R.S., 6 A.3d 854, 858-59 (D.C. 2010). Accordingly, appellant’s felony assault 

conviction must be vacated and a conviction for simple assault imposed. See id. at

855 n.1. Further, as the government also concedes, the simple assault conviction 

merges with the AWIRWA conviction—which we are ordering vacated only to the 

extent that the “while armed” element of the crime is removed—since the simple 

assault and AWIR offenses arose out of a single, uninterrupted act of violence. See

Villines v. United States, 320 A.2d 313, 314 (D.C. 1974).

 IV.

For the foregoing reasons, we remand this case to the trial court with 

instructions to vacate appellant’s AWIRWA conviction and enter a judgment of 

conviction on that count for AWIR and to vacate appellant’s felony assault 

conviction and enter judgment on the lesser-included offense of simple assault that 

will merge with the AWIR conviction.

So ordered.