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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 22-CF-0266 & 22-CF-0326

DAVID JEREMIAH MCKINNEY & KEITH BAHAM, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(2019-CF3-009555 & 2019-CF3-009976)

(Hon. Michael Ryan, Trial Judge)

(Submitted March 10, 2023 Decided August 24, 2023) 

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
2

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, 
3

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, 
4

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 
5

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-
6

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. 
7

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. 
8

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.” While that phrase 

most clearly includes situations where the complainant is in or within reach of their 

vehicle, it is well-established that the statute does not require that degree of 

proximity. See Winstead v. United States, 809 A.2d 607, 610 (D.C. 2002). As we 

explained in Winstead, the Council borrowed this language from the District’s 

robbery statute, where it “refers to the area within which the victim can reasonably 

be expected to exercise some physical control over the property.” Id. (quoting Head 

v. United States, 451 A.2d 615, 624 (D.C. 1982)). We reasoned that the same 

concept therefore applies to carjacking, where a victim remains in “immediate actual 

possession” of their vehicle so long as “the car is within such range that the victim 
9

could, if not deterred by violence or fear, retain actual physical control over it.”1

 Id. 

(quoting United States v. Gilliam, 167 F.3d 628, 639-40 (D.C. Cir. 1999)). 

Like robbery, carjacking is “basically a crime against the person,” rather than 

a mere crime against property covered by theft statutes. See Snowden v. United 

States, 52 A.3d 858, 873 (D.C. 2012) (regarding robbery) (quoting United States v. 

Dixon, 469 F.2d 940, 943 (D.C. Cir. 1972)); People v. Hill, 3 P.3d 898, 903 (Cal. 

2000) (“[C]arjacking [is] more nearly a crime against the person than a crime against 

property.”). 

In this case, testimony established that at the time Babin’s car was taken, it

was parked about 80 to 100 feet away from him, around the corner of a building that

blocked it from his view. McKinney’s argument on appeal is essentially that a

 1 This formulation raises a question in the carjacking context that does not 

arise in the typical robbery of objects that can simply be carried away: Are we to 

ask whether a victim could thwart a thief with keys and immediate access to the 

vehicle? One might need to be quite close to a vehicle to do that. Or are we instead 

to take the car as it is, and the thief with whatever tools they bring to the task, and 

ask whether the complainant was within range to confront the would-be car thief 

within the time it actually took them to remove the car from the scene? That could 

clearly take several minutes or more if the thief has no keys, and a person could be 

many blocks away from their car and still within range to prevent that theft. We 

have never explored that question, and we need not do so here as McKinney had 

Babin’s keys and ready access to the vehicle, as carjackers tend to have. 
10

person who is so far removed from their vehicle at the time it is taken and unaware 

that it is even being stolen would more naturally be seen as the victim of a property 

crime (vehicle theft), rather than a crime against the person (carjacking). For three 

overarching reasons, we agree and conclude that the evidence was insufficient to 

establish that the car was under Babin’s immediate actual possession, and was 

therefore insufficient to support the carjacking convictions here. 

First, the most natural understanding of what it means to have something in 

one’s immediate and actual possession does not extend to objects this far away and 

that one has no line of sight to. The statute’s use of the words “immediate” and 

“actual” to modify “possession” indicates that a person must have a more direct 

proximity to the object than was present here, and Babin’s mere possession of the 

car keys at the time he was robbed is no substitute for such proximity to the car itself, 

contrary to the government’s arguments. See Sutton, 988 A.2d at 488 (“[A] victim’s 

physical control over the key does not in itself suggest that the victim was close 

enough to the car, wherever located, to trigger the carjacking statute.”). While we 

have previously read this statutory phrase somewhat expansively, holding that a

victim may be more than an arm’s length away from their car and still in immediate 

actual possession of it, we have in the same breath cautioned against extending that 

view of a person’s immediate actual possession beyond its breaking point. Id.
11

(warning that “[t]oo loosely constru[ing]” the immediate actual possession 

requirement would render it “meaningless”). To uphold these convictions would do 

exactly that.

Second, our conclusion aligns with our robbery precedents, which Winstead 

borrowed from when interpreting the meaning of “immediate actual possession.” 

809 A.2d at 610. This “immediate actual possession” language has been codified in 

our robbery statute for more than a century, since 1901. See District of Columbia 

Code, 31 Stat. 1189, 1322 (1901). Yet our precedents have never endorsed the view 

that a complainant 80 to 100 feet (or more) away from an object might be robbed of 

it, as opposed to being the victim of a theft.

2

 See, e.g., Leak v. United States, 757 

A.2d 739, 743 (D.C. 2000) (bicycle “two feet away” from owner was, “undoubtably, 

within the victim’s immediate actual possession as our cases have applied that term, 

at least where . . . the owner is aware of the attempted taking”); Spencer v. United 

 2 We once held that the evidence of robbery was sufficient where “the stolen 

property was located” in the victim’s house and the victim “was violently prevented 

from exercising possession over her property” (she was in fact killed). Giles v. 

United States, 472 A.2d 881, 884 (D.C. 1984). Giles sheds no light on how big the 

house was, and our analysis on this point was limited to a single sentence, so we do 

not view it as contrary authority. We also caveat the situation where the victim was 

initially near the object and then forcibly removed from it by threat or violence prior 

to the object being taken. That is a classic robbery rather than a theft. But Babin

was not forcibly removed from his car—he walked away and out of sight from it 

without threat or violence. The threat and violence came after the fact. 
12

States, 116 F.2d 801, 801-02 (D.C. Cir. 1940) (sustaining robbery conviction for 

taking money from trousers sitting on chair at the foot of the bed that the victim was 

lying on, “within a very few feet of the victim”); see also M.A.P. v. Ryan, 285 A.2d 

310, 312 (D.C. 1971). 

Third, and most importantly, none of our prior carjacking precedents involved 

this degree of separation between the victim and their vehicle. In the handful of 

cases where we sustained carjacking convictions over sufficiency challenges where 

the victim was not physically in or within the car’s reach at the incident’s inception, 

the evidence showed: the victim was sitting in a guard booth “a few feet away” from 

her parked car, Winstead, 809 A.2d at 609; the victim was making a call from a 

payphone “about three feet up from” where his car was idling with its keys in the 

ignition, Beaner v. United States, 845 A.2d 525, 529 (D.C. 2004); and the victim 

was preparing to enter his house “a mere ten feet away” from his car parked on the 

street out front, Clark v. United States, 147 A.3d 318, 326 (D.C. 2016). We have 

also cited favorably to a D.C. Circuit opinion affirming a conviction under the 

District’s carjacking statute where the victim had left his car idling and momentarily 

“stepped out of the vehicle to unlock a parking lot gate.” Winstead, 809 A.3d at 610 

(citing Gilliam, 167 F.3d at 639-40). While that opinion does not specify how far 

the victim was from his car, it stands to reason that a person would park quite close 
13

to a parking lot gate that they left their car idling to open, and the briefing confirms 

that the victim was about six feet from his car.

3

The high water mark for what constitutes immediate actual possession, and 

the only carjacking precedent of ours where the victim was more than ten feet away 

from their car, came in Sutton v. United States, a case in which the complainant was 

“three car lengths (or roughly forty-five to fifty feet) away from” his car. 988 A.2d 

at 489. The government’s evidence showed that after robbing the victim and taking 

his car keys, the perpetrators ordered him to lie on the ground and “not to move or 

he would be shot.” Id. at 481. When the victim ignored this order, two of the men 

“said they were going to start shooting at him,” and at the same time the victim 

“heard his own car start up and pull off.” Id. We concluded that, on this evidence, 

it was reasonable for the jury to find that “but for the violence against [the victim],” 

the victim “remained close enough to the vehicle to have ‘prevented its taking.’” Id. 

at 489 (quoting United States v. Kimble, 178 F.3d 1163, 1168 (11th Cir. 1999)). 

 3 The government’s brief in Gilliam specifies that the victim “walk[ed] 

approximately six feet away” from his car “to unlock the gate,” a point that was

undisputed in the briefs. Consolidated Brief for Appellee, United States v. Gilliam, 

Nos. 97-3084 & 97-3085, 1998 WL 35239961, at *9 (D.C. Cir. Aug. 3, 1998). 
14

The government argues that Sutton compels affirmance here, but we disagree. 

Two stark differences between this case and Sutton counsel in favor of a different 

outcome. First, Babin was considerably further away from his vehicle than was the 

complainant in Sutton—about twice the distance.

4 Second, Babin could not see or 

hear his vehicle being taken and was not even aware that it was taken until some 

minutes later, combatting any suggestion that he might have thwarted the theft had 

he not been threatened with violence. We pause to elaborate on each point.

On the first point regarding distance, we reiterate that the carjacking statute 

draws no bright lines. As we explained in Sutton, “‘immediate actual possession’

has an elastic quality, reaching somewhere beyond ‘actual possession’ at common 

 4 The government’s lone witness who was asked about the distance between 

the parking spot and where Babin was robbed estimated that distance to be between 

80 and 100 feet (compared to 45-50 feet in Sutton). Baham argues that the upper 

end of this range is closer to reality and asks us to take judicial notice of 

measurements obtained via Google’s mapping software that show the distance to be 

approximately 96 feet, citing to federal cases taking judicial notice of similar 

distance calculations derived from mapping software. See, e.g., Livingston Christian 

Schs. v. Genoa Charter Twp., 858 F.3d 996, 1008 (6th Cir. 2017); United States v. 

Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012); Citizens for Peace in Space v. 

City of Colorado Springs, 477 F.3d 1212, 1218 n.2 (10th Cir. 2007). Without casting 

any serious doubt on that estimate’s accuracy, the government counters that it would 

be improper for us to take judicial notice of it. Without commenting on whether it 

would be proper to do so, we decline to take judicial notice of this estimate as it 

would not affect our disposition. See Wilson Sporting Goods Co. v. Hickox, 59 A.3d 

1267, 1270 n.1 (D.C. 2013).
15

law into the realm of ‘constructive possession.’” 988 A.2d at 485 (citations omitted). 

But as that opinion further noted, the statute’s language is not infinitely elastic, and 

at some point reaches “its snapping point.” Id. The term “immediate” carries a 

meaning of “being near at hand” and “not far apart or distant.” See Immediate, 

Webster’s Third New International Dictionary 1129 (2002). The 45 to 50 feet at 

issue in Sutton likely approached the outer bounds of when one might be capable of 

thwarting a thief who otherwise has access to a car from taking it, see supra note 1. 

Between opening the car door, starting the engine, and putting the car in gear, 

perhaps a jury could reasonably conclude that a person on foot could close a 45 to 

50 foot gap in the time it takes to do those things (as Sutton seems to hold). But at 

some point the distance becomes too great to reasonably draw that conclusion

beyond a reasonable doubt. And the 80 to 100 feet we are confronted with in this 

case takes Sutton’s reasoning past its breaking point, where it is no longer reasonable 

to conclude that the victim has immediate actual possession of their vehicle in the 

relevant sense. 

Seeking to minimize the significance of Babin’s distance from his car, the 

government relies on several federal cases that have affirmed carjacking convictions 

under what it asserts are “factual circumstances similar to the case at hand.” Some

of the cases it cites are inapposite. For example, United States v. Soler involved the 
16

theft of a vehicle parked just “10 to 15 feet” from the victim—considerably closer 

than Babin’s vehicle in this case. 759 F.3d 226, 228 (2d Cir. 2014). The two cases 

that at least seem to involve a victim who was similarly far removed from their car 

are: (1) Kimble, where the Eleventh Circuit’s opinion does not specify a distance but 

notes that the victim was working inside of a restaurant with his car “right outside 

the restaurant” and “alongside the building,” 178 F.3d at 1165-66, so perhaps that 

exceeds the 45-50 feet in Sutton, and approaches the 80-100 feet we confront here; 

and (2) United States v. Lake, 150 F.3d 269 (3d Cir. 1998) (Alito, J.), which is the 

only case that clearly exceeds Sutton’s high water mark. Because Kimble simply 

adopted Lake’s reasoning, Kimble, 178 F.3d at 1167, we will focus on Lake to 

explain why we do not find these cases interpreting the federal carjacking statute to 

be persuasive when it comes to interpreting the District’s materially different 

carjacking statute.

Lake involved a car parked “up [a] steep path to the parking area where [the 

victim] had parked her car out of sight” before being robbed of her keys, with the 

robbers then taking her car as she watched and pursued them. Id. at 271. While the 

majority opinion does not specify how far the victim was from her car either when 

she was robbed of her keys or when her car was taken, the dissenting judge (who 

would have found the evidence insufficient to support a carjacking) described the 
17

victim as “in city terms, a block away” from her car when the robbery began. Id. at 

275 (Becker, C.J., dissenting). A city block would seem to be greater than both the 

45 to 50 feet in Sutton and the 80 to 100 feet at issue here. Nonetheless, Lake is not 

persuasive for purposes of interpreting the “immediate actual possession” 

requirement in the District’s statute, because the federal statute has no such 

requirement. The federal carjacking statute criminalizes taking a vehicle “from the 

person or presence of another.” 18 U.S.C. § 2119. This language is broader than 

the “immediate actual possession” requirement found in the District’s statute, as it 

does not suggest the same “immediate” control over the vehicle that our statute 

requires—merely being in the vehicle’s presence is enough. This is why, despite 

our generic acknowledgement that interpretations of the federal statute “enhance[]

our understanding of what” our carjacking statute means, Sutton, 988 A.2d at 488,

we have expressly disclaimed endorsing the results in cases like Lake, id. at 488

n.24, and that case is not reconcilable with our statute or our precedents.5

 5 For the same reason, the government’s citation to People v. Raper—a case 

in which Michigan’s intermediate appellate court affirmed a carjacking conviction 

where the victim’s car was “at least two hundred yards away,” 563 N.W.2d 709, 

712-13 (Mich. Ct. App. 1997)—does not affect our view. The statute at issue in that 

case merely required the victim to be “in lawful possession of the motor vehicle,” 

Mich. Comp. Laws § 750.529a(1). That language seems to be even more capacious 

than the federal statute’s reference to the vehicle being within the victim’s “person 

or presence.” 
18

The government counters that once the assailants took Babin’s keys and began 

to walk away, he could have chased after them and reached his car in time for a 

confrontation had he not been threatened with a gun. Under this theory, as the 

government puts it, “the distance to Babin’s car would not have been a deterrent, as 

Baham and McKinney would have had to travel the same distance as Babin in order 

to reach it.” That reasoning sweeps far too broadly. Under this view, a person 

robbed of their car keys in California could be carjacked of their vehicle located in 

Kolkata (even if it took the robber days to get there), because both the victim and 

the robber would similarly have to travel halfway around the world to reach the car. 

That is not a sensible understanding of what it means to have something under one’s 

immediate actual possession; the plain words are not susceptible to meaning 

possession on par with a person who is similarly distant from an object.6

 6 To be sure, it also seems like a strained interpretation of what it means to be 

in the car’s “presence,” as the federal carjacking statute requires. But see Lake, 150 

F.3d at 273 (concluding victim was in presence of vehicle because “had [she] not 

hesitated” due to fear of violence “she could have reached the parking area in time 

to prevent Lake from taking her car”); Kimble, 178 F.3d at 1168 (“Had Wilcher not 

been in fear for his safety, he could have reached the car and prevented its taking.”). 

It is hard to see how a victim in California could be fairly described as in the presence 

of their car in Kolkata simply because their robber is similarly distant from it. But 

that is not the question before us, so we ultimately do not express a view about the 

proper interpretation of the federal statute. 
19

We also disavowed such a loose construction of the carjacking statute in 

Sutton, warning that it would render the “immediate actual possession” requirement 

“meaningless, for literally anyone with a car key in the pocket could be said to be 

‘close enough’ to ‘exercise physical control’ over a vehicle parked blocks away, 

even at one’s home.” Sutton, 988 A.2d at 488. To avoid that reduction to absurdity, 

we explained that the proper inquiry is whether the victim was “close enough to 

exercise control at the time of the alleged taking of the car,” and that “no other 

meaning would make sense.”7

 Id. When Babin’s car was taken, he and his assailants 

were not equidistant from it. By focusing on Babin’s ability to pursue McKinney 

and Baham when they stole his keys, rather than his ability to exercise control over 

the car at the time it was taken, the government contravenes this guidance. 

The second key difference between this case and Sutton is that Babin was not 

even in a position to perceive that his car was being stolen. Recall that after parking 

his car, Babin and company walked “around to the side of the building” to the 

apartment building’s entrance, where the robbery took place. As Sergeant Hyland 

later testified (and the maps introduced into evidence by the government make 

 7 When the victim is forcibly removed from the car or its immediate vicinity, 

of course, that marks the beginning of the car’s taking. But this case concerns a 

victim who was far away from his car before any threat or violence occurred.
20

clear), that location lacked any line of sight to where the car was parked, as it was 

blocked by the apartment building. Babin testified that he did not actually see or 

otherwise notice that his car was being taken at the time and, on cross-examination, 

he agreed that for all he knew in the minutes thereafter, his car might have been 

towed away. 

Sutton presented the opposite scenario, where the victim heard his vehicle 

being taken and remained within eyeshot of it up until the moment it was driven 

away.8

 The jury in that case heard evidence that the assailants saw the victim try to 

run and continued to verbally threaten him even as they drove off in his car—some 

evidence that the assailants themselves thought the victim was in a position to stop 

them if not dissuaded. Sutton, 988 A.2d at 481. That is quite different from this 

case, where McKinney and company had put the gun away and “walked off” 

 8 While it is clear that the victim was within eyeshot of his car when he was 

robbed of his keys and told not to move in Sutton, our opinion is not crystal clear 

whether that remained the case at the time his car was actually taken. Sutton 

mentions the victim “jump[ing] over the fence behind [his] friend’s house” between 

when he was robbed of his car keys and when he heard his car being driven off. 988 

A.2d at 483. But there is no description of the fence—such as how high it was or 

whether it was a chain-link or wrought iron fence that one might readily see through. 

We did note, however, that the robbers were “in a position” to make good on their 

threats to “start shooting at” the victim even after he had jumped the fence, indicating 

that the robbers retained a direct line of sight to the victim, and vice versa. Id. The 

transcripts from that case confirm the point, as the victim described the fence as “not 

too high, might be 3-feet tall,” so that one could readily see over it. 
21

immediately after robbing Babin, and Babin remained unaware of the car theft for 

some minutes thereafter. The crux of our holding in Sutton was that the victim 

remained in “immediate actual possession” of his vehicle throughout this assault 

because, but for this threatened violence, he was “close enough to stop the thief.” 

Id. at 488. By contrast, it is difficult to imagine how Babin could have stopped the 

theft of a vehicle that he did not (and, from his position, could not) observe being 

taken. While he testified that he “ducked off behind some bushes” out of fear that 

his assailants might come back, he was not within eyeshot of his car even at the 

outset of the robbery, before any threat or violence, but was instead on the other side 

of an apartment building intent on walking into it.

McKinney and Baham remain convicted of armed robbery (convictions they 

do not challenge) and the theft of an automobile. But as we explained in Sutton, a 

carjacking is more than the sum of those two offenses. The statute’s legislative 

history makes clear that the Council viewed carjacking as an “especially traumatic 

experience [for] the victim, whose zone of privacy is invaded in a way that perhaps 

is similar only to burglary.” Id. at 483 (citation omitted). Reflecting this concern, 

an armed carjacking conviction carries a statutory minimum of 15 years,

significantly longer than the 5-year mandatory minimums for first-degree burglary 

and a first-time armed robbery offense. Id. (citing D.C. Code §§22-801(a), -2801, 
22

-4502(a)(1)).9

 “With such a severe difference at stake . . . ‘immediate actual 

possession,’ as applied in a carjacking prosecution, must be addressed with 

considerable care.” Id. Mindful of this, we conclude that the evidence was

insufficient to establish that Babin’s car was in his immediate actual possession at 

the time it was taken from him. We therefore reverse McKinney’s and Baham’s

convictions for armed carjacking. 

B. Additional Claims

That brings us to McKinney’s and Baham’s remaining claims, none of which 

requires extensive discussion. First, they argue that the government offered 

insufficient evidence to support their convictions for first-degree theft, which 

includes an element that “the value of the property obtained or used is $1,000 or 

more.” D.C. Code § 22-3212(a). The government concedes the point, for good 

reason. The only evidence about the value of Babin’s car came when Babin testified 

 9 While Baham was sentenced to that 15-year statutory minimum on the armed 

carjacking charge, McKinney was sentenced to only 7.5 years on that count, owing 

to the fact that the court sentenced him under the Youth Rehabilitation Act, which 

permits sentencing below the mandatory minimum. See D.C. Code § 24-903(b)(2) 

(“Notwithstanding any other law, the court may, in its discretion, issue a sentence 

[to an eligible youth offender] less than any mandatory-minimum term otherwise 

required by law.”). McKinney and Baham were 18 and 19 years old at the time of 

these offenses, respectively. 
23

that he paid “near like $1,000” for it, which is clearly not enough to establish the 

vehicle’s value as being $1,000 or more. We accordingly reverse the first-degree 

theft convictions and remand for the trial court to enter judgments of conviction on 

the lesser-included charge of second-degree theft. The government likewise agrees 

that under our precedents, Baham’s two PFCV convictions should merge, so we 

remand for merger of those convictions as well. See Nixon, 730 A.2d at 153.

Finally, McKinney and Baham argue that their convictions for theft and UUV 

should merge. We disagree. As we recently explained, our case law once directed

this result, but we have since abandoned the fact-based approach to merger 

underlying those decisions, which in any event were abrogated by subsequent 

legislative enactments. See Austin, 292 A.3d at 771-72. As the relevant statute now 

makes clear, “[a] person may be convicted of any combination of theft, identity theft, 

fraud, credit card fraud, unauthorized use of a vehicle, commercial piracy, and

receiving stolen property for the same act or course of conduct,” provided that the 

resulting sentences for these offenses run concurrently. D.C. Code § 22-3203(a). 

Because McKinney and Baham were so sentenced, their convictions for theft and 

UUV do not merge. 
24

III. Conclusion

For the foregoing reasons, we reverse McKinney’s and Baham’s convictions 

for armed carjacking and first-degree theft, remand for the trial court to enter 

judgments of conviction for second-degree theft and to merge Baham’s two 

convictions for PFCV, and affirm the remainder of their convictions.

So ordered.