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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16

- CF

- 285 T YRONE W ADE , A PPELLANT ,

V
. U NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CF2

- 14002

- 15 ) (Hon. Lynn Leibovitz, Trial Judge ) ( Submitted September 13 , 2017 Decided November 16, 2017 ) April E. Fearnley was on the brief for appellant. Channing D. Phillips , United States Attorney at the time the brief was filed , and Elizabeth Trosman , Elizabeth H. Danello , Monica Trigoso , and Akhi Johnson , Assistant United States Attorneys , were on the brief for appellee. Before F ISHER , T HOMPSON , and M C L EESE , Associate Judges.
M C L EESE , Associate Judge : A ppellant Tyrone Wade challenges his convictions for unlawful possession of a firearm, possession of an unregistered fir earm, and unlawful possession of ammunition

. Mr. Wade argues that the trial court erroneously denied his motions to suppress evidence, that the evidence was2

insufficient to support his convictions, and that the trial court erroneously imposed a three

- year mandatory minimum sentence

. We affirm.

I.

Before trial, Mr. Wade moved to suppress certain tangible evidence as obtained in violation of the Fourth Amendment and certain identification evidence as the result of an unduly suggestive pretrial identifi cation procedure. The trial court held an evidentiary hearing on the motions. Viewed in the light most favorable to the trial court’s rulings, t he evidence at the hearing was as follows. A t approximately 3:3 0 p.m. on October 8, 2015, a n anonymous 911 ca ller reported a man with a gun in his waist walking in the 1200 block of 7 th Street NW

. The caller described the man as a black male wearing a navy blue shirt, a tan hat, and blue jeans, walking with another black mal e wearing a light green shirt. When
p olice officers responded , they saw Mr. Wade , who matched the 911 caller’s descrip tion of the man with the gun, walking with another man who matched the description of the gunman’s companion

. The two men were walking about a block away from the location pr ovided by the 911 caller. The officers pulled their police cruiser alongside the two men , who both began running. One of the officers, Officer Christopher Brown, chased Mr. Wade. W hile running, Mr. Wade3

discarded items from his hands , including what app eared to be a cellphone

. Mr. Wade continued running, with his right arm bent and his hand near his waist area. During the chase , Officer B rown briefly lost sight of Mr. Wade when Mr. Wade ran around a shed

. Officer Brown regained sight of Mr. Wade soon thereafter and eventually apprehended Mr. Wade on the other side of the shed near a fence. Officer Brown handcuffed Mr. Wade an d patted Mr. Wade down, but did not feel a
gun.

Meanwhile, a civilian eyewitness, Manu e l Torres, reported to the police that he had seen a black male with an athletic build run by and toss a gun near a dumpster adjacent to the same shed

. Mr. Torres saw the suspect from about five feet away. An officer subsequently recovered a gun lying on the ground in plain view near the dum

pster. Because Mr. Torres primarily spoke Spanish, the officers requested an interpreter. The officer who responded to interpret, O fficer Kelvin Garcia, eventually escorted Mr. Torres to a show

- up identification procedure.

At the show

- up, which occur red at 4:29 in the afternoon, Mr. Wade was standing handcuffed between two police cars , with police officers nearby

. From about fifteen to twenty feet away , Mr. Torres iden tified Mr. Wade as the man he had seen running past the shed. After the identifica tion, Mr. Wade was placed4

under arrest a nd searched. Officers found six .357

- caliber bullets in Mr. Wade’s pocket

.

The trial court denied both suppression motions , and the case proceeded to trial

. The evidence at trial was largely consistent with the evidence at the suppression hearing , with the following differences and additions. Mr. Torres testified that he saw two people run by the shed area . Mr. Wade was the second person who ran by, and one of Mr. Wade ’s hands was high on his waist. Mr. Torre s did not see Mr. Wade actually throw the gun . Rather, he saw Mr. W ade run behind the dumpster and “ at the same time ” saw a gun in the air coming from behind the dumpster. After the gun landed, Mr. Torres did not see anyone else near the shed. Officer G arcia, who escorted Mr. Torres to the show

- up procedure, had lived in the area of the incident and recognized Mr. Torres as a maintenance man in the area . T he gun recovered by the dumpster was a .357

- caliber revolver loaded with six rounds of ammunition. T he parties stipulated that Mr. Wade h ad previously been convicted of a crime punishable by imprisonment for a term exceeding one year and did not possess a gun - registration certificate to lawfully possess a firearm.5 II.

We first address Mr. Wade’s challenges to the trial court’s denial of the motion to suppress evidence o n Fourth Amendment grounds. In reviewing a ruling

on a motion to suppress, we take the facts and all reasonable inferences in favor of the trial court’s ruling. Peay v. United Sta tes , 597 A.2d 1318, 1320 (D.C. 1991) (en banc). W e review de novo w hether officers had reasonable articulable suspicion or probable cause. Prince v. United States , 825 A.2d 928, 931 (D.C. 2003)

.

A.

Mr. Wade argues that the officers lacked reasonable articulable suspicion to support the initial stop

. We conclude to the contrary.

Officers may conduct an investigatory stop if the y “ have a reasonable suspicion based on specific and articulable facts that criminal activity may be occurring.” Pinkney v. United States , 851 A.2d 479, 4 93 (D.C. 2004) (internal quotation marks omitted). “ [R] easonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance6

of the evidence

. . . .” Illinois v. Wardlow , 528 U.S. 119, 123 (2000) (internal quotation marks omitted) ; see also, e.g. , Immigration & Naturalization Serv. v. Delgado , 466 U.S. 210, 217 (1984) (investigative detention requires “some minimal level of objective justification”); Robinson v. Un ited States , 76 A.3d 329, 336 (D.C. 2013) (“The reasonable, articulable suspicion standard requires substantially less than probable cause and considerably less than proof of wrongdoing by a preponderance of the evidence. It is not onerous, but it is not toothless either

. . . . Unparticularized suspicion and inarticulate hunches are not sufficient

. . . .”) (citations and internal quotation marks omitted). C ourt s consider a number of factors in determining whether officers had reasonable articulabl e

sus picion to stop a suspect , including a report of criminal activity, furtive hand movements, and flight. See , e.g. , Anderson v. United States , 658 A.2d 1036, 1038 (D.C. 1995).

In the present case, the anonymous 911 caller indicated that he had seen a

m an with a gun in his waist and provided specific descriptions of that man and the man’s companion. Officers who responded found Mr. Wade and a companion about a block away, and both men matched the description s provided by the 911 caller. When the office rs approached the men, both fled, a nd Mr. Wade discarded

a cellphone an d placed his hand near his waist, just w here the 911 caller said a gun7

would be. Taken together, these circumstances provided the officers with reasonable articulable suspicion to seiz e Mr. Wade

. Cf., e.g. , Jackson v. United States , 109 A.3d 1105, 1106

- 09 (D.C. 2015) (holding that stop of appellant was supported by reasonable articulable suspicion, where anonymous 911 caller said that she had seen suspect pull gun out of his pocket , 91 1 caller described suspect and suspect’s location , responding officer located appellant near stated location, appellant matched description, and no one else in vicinity matched description); Brown v. United States , 97 A.3d 92, 96 (D.C. 2014) ( holding that stop of suspect was supported by reasonable articulable suspicion, where anonymous 911 call er describ ed man with a gun, officers saw suspect walking with man who matched description provided by 911 caller, suspect made nervous and evasive motions , incident occurred in high

- crime area, and suspect attempt ed to flee ).

B.

Mr. Wade also argues that even if the initial seizure was lawful, the officers exceeded the scope of a lawful investigative detention by detaining him for an unreasonably long time

-- some where from forty

- nine to fifty

- three minutes

-- before conducting the show

- up identification . Mr. Wade also argues that the police may have unlawfully searched him before the show

- up identification , the8

first point at which Mr. Wade believes the officers had probable cause

. We see no basis for reversal.

T he United States argues that even if the detention of Mr. Wade before the show

- up identification was unreasonably long, the detention was lawful because officers had probable cause to arrest Mr. Wade on ce the officers recovered the gun. Mr. Wade responds solely by contending that the recovery of the gun did not provide the police with probable cause. We agree with the United States that there

was probable cause by the time the police recovered the gun.

“The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Perkins v. United States , 936 A.2d 303, 305

- 06 (D.C. 2007) (internal quotation marks omitted). Although an officer must have more than “mere suspicion ” that criminal activity has taken place, “only the probability, and not a prima facie showing, of criminal activity” is required to establish probable cause. Id. at 306.

Before turning to the merits of the probable

- cause issue, we address a procedura l wrinkle. Ordinarily, we review a trial court ruling based on the evidence that was before the trial court at the time the trial court ruled

. See, e.g. ,9

Thompson v. Shoe World, Inc. , 569 A.2d 187, 190 (D.C. 1990) (rejecting argument that court should re view trial court’s ruling based on “evidence that was not before the trial court at the time it ruled”). It is permissible, however, for this court to rely

on undisputed trial evidence to affirm the trial court’s ruling on a suppression motion. E

.g. , Wes t v. United States , 604 A.2d 422, 427 (D.C. 1992)

. We have recently flagged the question whether it is also permissible for this court to rely on such evidence to reverse the trial court’s ruling, where the losing party failed to renew the motion to suppr ess based on the new evidence at trial. Long v. United States , 15 6 A.3d 698, 706 n.1 (D.C. 2017) (citing United States v. Hicks , 298 U.S. App. D.C. 225, 227, 978 F.2d 722, 724 (1993) (“The problem for Hicks is that he did not again move to suppress when t his evidence came to light at trial. An appellate court should not rely on evidence first produced at trial to reverse a pre

trial denial of a suppression motion not renewed at trial.”) )

. Mr. Wade ’s argument in t his court with respect to the suppression motion relies in part on trial evidence

. As in Long , we need not decide whether such trial evidence may properly be considered , because consideration of the trial evidence does not alter our conclusion that probable cause existed.

We have already descri bed the circumstances that es tablish ed reasonable articulable suspicion: an anonymous 911 call er describing a man with a gun in his10

waist; corroboration of that call in a number of respects, including the location and description s of the suspect and his c ompanion; Mr. Wade’s discarding of items, including what appeared to be a cellphone; Mr. Wade’s flight as well as the flight of Mr. Wade’s companion ; and Mr. Wade’s suspicious conduct in running with his hand near his waist. The evidence at the suppressio n hearing also indicated that Mr. Torres told the police that he saw the fleeing man toss the gun , and the police promptly located that gun . For purposes of determining whether the officers had probable cau s e, the pertinent issue is what Mr. Torres said t o the officers at the time, not what Mr. Torres later testified to at trial. See generally, e.g. , Bradshaw v. District of Columbia , 43 A.3d 318, 325 (D.C. 2012) ( existence of probable cause
to arrest is determined based on “information at the moment of ar rest”) . In any event, e ven if Mr. Torres did not actually see the gun in the fleeing man’s hands, Mr. Torres did see the man run behind a dumpster and a gun being tossed from behind the dumpster at the same time

. Given the ir close temporal and physical
p roximity, these circumstances provided probable cause to believe that Mr. Wade had unlawfully possessed the gun , and that wa s true even before Mr. Torres confirmed that Mr. Wade was the person who had (inferentially) thrown the gun. Cf. , e.g. , United Stat es v. Franklin , 545 Fed. Appx. 243, 246

- 47 ( 4th Cir. 2013) (holding that police had probable cause to arrest defendant before defendant was identified by victims, where victims informed police that two cars had been taken11

at gunpoint and o ne of perpetrator s was heavy

- set and wearing striped shirt , officers located defendant in vicinity of cars , defendant matched description and was disheveled and sweaty, and gun was found nearby)

.

III.

M r. Wade argues that evidence of the show

- up identification should ha ve been suppressed because the show

- up was unduly suggestive. We a gree with the trial court that the show

- up was not “ so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” Maddox v. United States , 745 A.2d 28 4 , 292 (D.C. 2000) (internal quotation marks omitted).

S how

- up identification procedures following the commission of a crime typically involve some suggestivity , and “something more egregious than mere custodial status is required to establish ” impermi ssible suggestivity. Singletary v. United States , 383 A.2d 1064, 1068 (D.C. 1978). At the time of the show

- up in this case , Mr. Wade was in hand cuffs between two police cars. S uch circumstances do not rise to the level of impermissible suggestivity. Se e , e.g. , Howard v. United States , 954 A.2d 415, 423 (D.C. 2008) ( holding that show

- up identification procedure was not unduly suggestive , whe re defendant wa s12

handcuffed and placed under police spotlight); Diggs v. United States , 906 A.2d 290, 300 (D.C. 200 6) ( same where defendant was handcuffed and surrounded by “at least ten police officers and numerous police vehicles”) (internal quotation marks omitted).

Relying on trial testimony, Mr. Wade argues that the show

- up in this case was particularly suggesti ve because O fficer Garcia knew the eyewitness, who worked as a maintenance man in the area where Officer Garcia used to live. We hold, however, that Officer Garcia’s passing familiarity with the eyewitness d id not render the identification procedure undul y suggestive

. Cf. , e.g. , Singletary , 383 A.2d at 1068

- 69 ( holding that show

- up identification procedure was not unduly suggestive , whe re officer said to eyewitness, “[w]e got two guys in the car similar to the ones you told us about”) (internal quotation marks omitted)

.

IV.

Mr. Wade challenges the sufficiency of the evidence to establish that he possessed the gun at issue

. We hold that the evidence was sufficient.13

An appellant challenging the sufficiency of the evidence must “bear [] the heavy burd en of showing that the prosecution offered no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.” Dorsey v. United States , 154 A.3d 106, 112 (D.C. 2017) (internal quotation marks omitted)

. W e view the evidence in the light most favorable to the verdict

. Evans v. United States , 122 A.3d 876, 887 (D.C. 2015 ). Although a verdict cannot rest on mere speculation, w e make no distinction between direct and circumstantial evidence. Id. Ultimately, the evidence is sufficient if “ after viewing it in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted). To support a conviction for unlawful poss ession of a firearm, the evidence must show among other things that Mr. Wade had a firearm in his possession or under his control. Dorsey , 1 54 A.3d at 112.

The United States presented sufficient evidence to show that Mr. Wade possessed the recovered gun . First, officers received a n anonymous 911 call report ing that a man matching Mr. Wade’s description had a gun in his waist. That call was admitted into evidence at trial as a present sense impression. Second, Mr. Wade fled from the police , which could reasonably be viewed as reflecting a consciousness of guilt. Third, Mr. Wade had his hand in his waistband area , which14

corroborated the 911 caller’s report

. Fourth , although no one saw Mr. Wade throw the gun, Mr. Torres saw a gun being tossed from behin d a dumpster at the same time that Mr. Wade was running behind the dumpster

. F i nally, Mr. Wade possessed bullets that matched the caliber of the recovered gun. We are satisfied
t hat the evidence as a whole permitted the jury to find beyond a reasonable d oubt that Mr. Wade had possessed the recovered gun. Cf. , e.g. , In re A.L. , 839 A.2d 678, 67 8

- 80 (D.C. 2003) ( holding that evidence was sufficient to support conviction for possession of marijuana , where officer saw appellant holding shiny bag , appellant m ade eye contact with officer , appellant detoured into stairwell for few seconds and then returned to street, and officer recovered plastic bag containing marijuana from drainpipe in stairwell )

.

In arguing that the evidence is insufficient, Mr. Wade point s out that Mr. Torre s saw two individuals run by. Mr. Torres’s testimony, however, indicated that it was Mr. Wade who ran behind the dumpster and that the gun came into Mr. Torres’s view from be h ind the dumpster at the same time Mr. Wade was running by. Given that testimony, and all of the other evidence in the case, a reasonable factfinder could find beyond a reasonable doubt that Mr. Wade possessed the gun at issue.15 V.

Finally , Mr. Wade argues that the trial court erred in imposing a three

- year mand atory minimum sentence on the count of unlawful possession of a firearm (UPF )

. We disagree.

Among other things, t he UPF statute prohibits firearm possession by persons with a prior conviction punishable by imprisonment for more than one year. D.C. Code § 22

- 4503 (a)(1) (2012 Repl.)

. The UPF statute also provides for a three

year mandatory minimum sentence for any person who violate s the statute and also has previously been convicted of a crime of violence other than conspiracy

. D.C. Code § 22

- 4503 (b) (1)

. Mr. Wade had a prior convict ion for a ttempted robbery, which is punishable by more than a year’s imprisonment and which is defined as a crime of violence. D.C. Code § § 22

- 2802 , - 4503 (d)(1) (2012 Repl.) ; D.C. Code § 23

- 1331 (4) (2012 Repl.)

. That c onviction, however, was later set aside under the Y outh Rehabilitation Act (YRA)

. D.C. Code § 24

- 906 (2012 Repl.). Mr. Wade does not dispute that his attempted

- robbery conviction may be used in determining whether his possession of the gun was prohibited by § 22

- 4503 (a)(1). Rather, he argues that his attempted

- robbery conviction cannot properly be used to trigger the three

- year mandatory minimum sentence under § 22

- 4503 (b)(1)

. Mr.16

Wade also argues that the jury was required to make the determination w hether his attempted

- robbery conviction qualifies as a crime of violence. Mr. Wade’s jury

trial claim is foreclosed by our precedent. Dorsey , 154 A.3d at 122

- 2 6

. His other sentencing claim, however, raises a statutory

- interpretation issue of first impre ssion.

“ [ S ] tatutory interpretation is a holistic endeavor, and, at a minimum, must account for a statute’s full tex t, .

. . punctuation, structure, and subject matter.” Eaglin v. District of Columbia , 123 A.3d 953, 956 (D.C. 2015) ( brackets and intern al quotation marks omitted). When interpreting statutes, we assume that the legislature “acted logically and rationally” and we “avoid interpretations of statutes which lead to implausible results.” Id. at 957 (internal quotation marks omitted). This co urt may also look to legislative history to assist in interpreting a statute

. District of Columbia v. Place , 892 A.2d 1108, 1111 (D.C. 2006).

T he YRA explicitly authorizes the use of set

- aside convictions in connection with the UPF statute

. D.C. Code § 24

- 906 (f)(8) (convictions set aside under YRA may be used “ [ i ] n d etermining whether a person has been in possession of a firearm in violation of

” UPF statute ). Mr. Wade argues, however, that although this provision permits the use of s et

- aside convicti ons to determin e whether a17

defendant violated the UPF statute, the provision does not authorize the use of set

aside convictions in determining what sentence to impose for violation s of the
statute. The provision, however, does not explicitly draw such a distinction

. Moreover, t wo other provisions of the YRA convince us that set

- aside convictions may be used to determine the appropriate sentence under the UPF statute.

First, the YRA authorizes judges to use set

- aside convictions for the purpose of enh ancing penalties at the sentencing stage. D.C. Code § 24

- 906 (f)( 3) ( set

aside conviction can be used “ [ i ] n determining an appropriate sentence if the person is subsequently convicted of anoth er crime ” ). Second, the YRA allows set

aside conviction s to be used “[i]n determin ing whether a person has committed a second or subsequent offense for purposes of imposing an enhanced sentence under any provision of law.” D.C. Code § 24

- 906 (f) (1). These provisions demonstrate that the YRA is properly understood t o authorize the use of set

- aside convictions in determining the appropriate sentence to be imposed in the event a d efendant is subsequently found guilty of an additional crime.

Our conclusion finds further support from the legislative history of the YRA. Some of the provisions addressing the permissible uses of set

- aside convictions were added in 2001. Sentencing Reform Amendment Act , 2000 D.C. Sess. Law18

Serv. 13

- 302 (West) (codified as amended at D.C. Code § 24

- 906 (f)(1)

- (6) (2012 Repl.) )

. The pertin ent c ommitt ee report explained that set

- aside convictions can be used “to apply recidivist enhancements and otherwise in determining an appropriate sentence in any given case. ” D.C. Council, Report on Bill 13

- 696 at 26 (May 25, 2000)

. The particular prov ision addressing UPF was added in 2011

. Criminal Code Amendment Act, 2010 D.C. Sess. Law Serv. 18

- 377 (West) (codified at D.C. Code § 24

- 906 (f)(7)

- (8) (2012 Repl. ) ) . T he pertinent committe e report reasoned that set

- aside conviction s already could be use d to impose an enhanced sentence, and it follow ed that set

- aside conviction s also should be permitted to s erve as a predicate for a charge of possession of a firearm by a convicted felon. D.C. Council, Report on Bill 18

- 963 at 8 (Dec. 1, 2010)

. T he legis lative history thus indicates that the set

- aside provision of the YRA is meant to provide a one - time opportunity for youth ful offenders to avoid the stigma of conviction , not to provide a basis for reducing the otherwise applicable sentence if a youthful o ffender is later convicted of additional offenses.

In sum, the trial court correctly determined that Mr. Wade was subject to a three

- year mandatory minimum for his UPF conviction.19

For the foregoing reasons, the judgment of the trial court is Affirmed

.