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DISTRICT OF COLUMBIA COURT OF APPEALS
No s. 12

- CF

- 1434 & 1 2

- CF

- 1503
J ACQUES P ARKER & J ONATHAN J ENKINS , A PPELLANT S ,
V

. U

NITED S TATES , A PPELLEE

. Appeal s from the Superior Court of the District of Columbia (CF3

- 123 2

- 12 & CF3

- 3203

- 12) (Hon. Herbert B. Dix on, Jr., Trial Judge) (Argued June 13, 2018 Decided April 22, 2021) Fleming Terrell , Public Defender Service, with whom Chris Kemmitt , James Klein , Samia Fam , Shilpa S. Satoskar , and Emily Voshell , Public Defender S ervice , were on the brief, for appellant Jacques Parker. Benjamin Brooks for appellant Jonathan Jenkins.
Lauren R. Bates , Assistant United States Attorney, with whom Jessie K. L i u , United States Attorney at the time the briefs were filed , Elizabeth Tro sman , Chrisellen R. Kolb , Ronald C. Machen Jr. , John P. Mannarino , and Patricia Riley , Assistant United States Attorneys, were on the brief, for appellee. Before B LACKBURNE
- R IGSBY , Chief Judge , W ASHINGTON , Senior Judge , and O KUN , Associate Judge , Superio r Court of the District of Columbia

. *

* Sitting by designation pursuant to D.C. Code § 11

- 707 (a) (2012 Repl.)

.2

W ASHINGTON , Senior Judge : Appellants Jacques Parker and Jonathan Jenkins were convicted of committing robbery and felony assault on May 10,
2012

. On appeal, both appellants contend that the evidence was insufficient to support their convictions and they also raise various evidentiary concerns

. In addition, appellant Jenkins appeals the denial of his motion for relief under D

. C

. Code § 23

- 110 based on ineffective assistance of his trial counsel. For the following rea sons , we affirm the robbery convictions of both appellants, reverse and remand appellant Jenkins’ felony assault conviction with instructions to enter a judgment for simple assault , and affirm the trial court ’s judgment denying Jenkins’ § 23

- 110 motion for a new trial without a hearing.

I. BACKGROUND FACTS AND PROCEDURE

The complaining witness , Antonio Walls, testified that on January 13, 2012, appellant Jenkins was one of three people who knocked him to the ground and bruised his eye before his shoes, c ell phone, money, and paystubs were stolen

.

Mr. Walls further testified that three days later , on January 16, 2012, he was injured and subsequently robbed when he was attack ed by approximately fifteen3 people , including appellants Jenkins and Parker. Spe cifically, Mr. Walls testified that he encountered appellant Jenkins in the hallway of his apartment building and that, after Mr. Walls turned down appellant Jenkins’ request for a cigarette, he was immediately struck in the face by appellant Jenkins . Mr. Walls then ran outside his building and was immediately attacked by approximately fifteen people who knocked him to the ground and continuously kicked and struck him. Mr. Walls testified that s ome of his assailants wore masks but that appellants had thei r masks rolled up, and Mr. Walls could see their faces

. He also testified that w hile he was on the ground, he felt people going through his pockets. Finally, Mr. Walls testified that he was able to get up and run away from the group , but that , as he trie d to run to a convenience store to call the police, s ome of his assailants caught
him and took his jacket , keys , and cell phone

.

As a result of his attack , Mr. Walls suffered bruising, “sore and [] hurt” legs , a busted lip, and a loose tooth that he “had to push []

. . . back in place.” When Officer Pulaski arrived at the scene, she observed Mr. Walls with “some sort of paper towel or gauze held up to his mouth,” “blood around his mouth,” and a “gash” to his left leg that “wasn’t bleeding.” Mr. Walls was taken to the hospital by ambulance where he was given medicine for his pain , a brace, and crutches for a “messed up” leg , and may have had X

- rays taken before being released that day

.4

M edical records indicated that Mr. Walls complained of left knee and l eft forearm pain, but that he remembered the “entire incident,” and had no neck, chest, abdominal, pelvic , or lower back pain , and “[n]o broken teeth

. ”

On April 4, 2012, a ppellant Jenkins was charged with two count s of robbery and one count of felony as sault , while appellant Parker was charged with one count each of robbery and felony assault

. A pre

- trial hearing on appellants’ motion to

sever took place on April 23, 2012 . T he trial court subsequently denied the motion. At the same hearing, t he trial court also considered and denied appellants’ motion to admit expert witness testimony on the unreliability of eyewitness identifications

. Trial in this case began on May 1, 2012; appellants were convicted of all charges on May 10 and timely appealed. On appeal, both appellants challenge the sufficiency of the evidence of robbery and felony assault , the trial court’s response to a jury note, its exclusion of appellants’ expert testimony, the admission of certain evidence, and the trial court’s denial of th e severance motion. Subsequently, appellant Jenkins filed a m otion for a new trial under D.C. Code §
23

- 110 alleging that his trial counsel was ineffective for agreeing to stipulate to Jenkins’ prior incarceration during the trial.5

I I . SUFFICIENCY OF THE EVIDENCE

Faced with a challenge to the sufficiency of the evidence, we view the evidence “in the light most favorable to the government, giving full play to the right of the [fact finder] to determine credibility, weigh the evidence, and draw justi fiable inferences of fact, and making no distinction between direct and circumstantial evidence.” In re T.M. , 155 A.3d 400, 403 (D.C. 2017) ( internal quotation marks and citation omitted ). We deem the evidence sufficient if “after viewing the evidence 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.” Smith v. United States , 175 A. 3 d 623, 627 (D.C. 2017) (quoting Rivas v. United States , 783 A.2d 125, 13 4 (D.C. 2001) (en banc)) (emphasis in original) ; see also In re T.M. , 155 A.3d at 403 (“The evidence is insufficient when the government produces no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.”) ( internal quotations omitted ).

A. Felony Assault6 Appellant Jenkins contends that his conviction for felony assault stemming from the January 16, 2012 , assault and robbery must be reversed because the government presented insufficient evidence that Mr. Walls sustaine d significant bodily injury within the meaning of D.C. Code § 22

- 404(a)(2) (2020 Supp .)

. He asserts that though Mr. Walls went to the hospital and undoubtedly suffered “upsetting and painful” injuries, there was no evidence that he suffered significant bo dily injury or severe pain. We agree that the government produced insufficient evidence of Mr. Walls’ injuries to sustain a felony assault conviction.

Felony assault is committed when a person “unlawfully assaults, or threatens another in a menacing mann er, and intentionally, knowingly, or recklessly causes significant bodily injury to another . . . .” D.C. Code § 22

- 404(a)(2). The statute defines “significant bodily injury” as “an injury that requires hospitalization or immediate medical attention.” I d

. But whether “an injured party immediately goes to a hospital or seeks other medical attention is not, in itself, determinative

. . . . ” Quintanilla v. United States , 62 A.3d 1261, 126 4 (D.C. 2013) . Nor is the statutory standard satisfied by evid ence of “e veryday remedies such as ice packs, bandages, and self

- administered over

- the

- counter medications . . . whether administered by a medical professional or with self

- help.” Id. at 1265. The professional m edical attention required by the statute mu st be aimed at one of two7
ends: “preventing long

- term physical damage and other potentially permanent injuries ” or “ abating pain that is severe” rather than “lesser, short

- term hurts.” Id. (internal quotation marks omitted). Thus, the relevant inquiry is not whether “immediate medical attention or hospitaliz ation” occurred, but rather “whether medical treatment beyond what one can administer himself is immediately required to prevent long

- term physical damage, possible disability, disfigurement, or severe pain.” In re D.P. , 122 A.3d 903, 912 (D.C. 2015) ( internal quotation s omitted).

A pplying these standards, we conclude that a reasonable jury could not have found that Mr. Walls ’ injuries were “significant.” Though the attack on Mr. Walls was undou btedly violent and traumatic, the evidence fails to show that immediate medical attention was required to prevent long

- term physical damage or other potentially permanent injuries. While Mr. Walls received medicine for his pain , a brace, and crutches afte r going to the hospital , the government failed to elicit any testimony from Mr. Walls about his need for prompt medical attention , and did not call either the paramedics who arrived on the scene or his treating physician to fill that gap in his testimony

. Further, n owhere does the record “suggest that [his] injuries demanded treatment of a higher order, requiring true medical expertise , rather than every day remedies such as ice packs, bandages, and self

- administrated8

over - the

- counter medications.” Wilson v. United States , 140 A.3d 1212, 1218 (D.C. 2016) (internal quotation s omitted)

.

Although Mr. Walls testified that he thought X

- rays may have been taken at the hospital , no evidence was presented that X

- rays were actually taken , or wh at it was about his injuries that would have prompted a doctor to order X

- rays
. Cf. Cheeks v. United States , 168 A.3d 691, 697

- 98 (D.C. 2017) ( discussing doctor’s testimony describing how “extensive bodily injuries attributable to the beating .

. . led her to order CAT test s to determine whether [the victim] had sustained brain damage, broken bones, or other serious internal injuries”)

. Similarly, the record is silent on “ whether the medication [Mr. Walls received at the hospital] required a doctor’s prescription or was ava ilable over the counter [,] ” or whether Mr. Walls used that medication , the brace, or the crut ch es after leaving the hospital

. Teneyck v. United States , 112 A.3d 906, 911 (D.C. 2015). Nor does the record provide any basis to reach the conclusion that Mr. Walls suffered “lon g - term physical damage, [] disability, disfigurement, or severe pain” from the loose tooth that he himself pushed back into place

. In re D.P. , 122 A.3d at 912

. In sum, the government’s evidence did nothing more than invite jurors to sp eculate that because Mr. Walls sought and received medical diagnosis and treatment , his injuries required

“ hospitalization or immediate medical attention

. ” D.C. Code § 22

- 404(a)(2); see9
also Nero v. United States , 73 A.3d 153, 158

- 59 (D.C. 2013) ( differen tiating sufficient evidence of felony assault f or a potentially “life

- threatening” gunshot wound suffered by one victim from insufficient evidence of felony assault for

a nother gunshot victim requiring only “diagnostic tests, pain medication, and wound car e” ). Because the government failed to produce sufficient evidence that Mr. Walls’ injury required treatment “of a higher order,” Quintanilla , 62 A.3d at 1265, appellant Jenkins’ conviction for felony assault must be reversed.

While the evidence was insu fficient to support a ppellant Jenkin s ’ conviction for felony assault, the government did introduce su fficient evidence to support a conviction f or the lesser included offense of simple assault beyond a reasonable doubt . We therefore remand the case for an entry of conviction on that offense and for resentencing. 1 See D.C. Code § 22

- 404(a)(1); Wilson , 140 A.3d at 1220 ( internal citation omitted ).

1 Appellant Parker did not raise the sam e direct challenge to the sufficiency of the evidence for his felony assault conviction and appears to have served his sentence for felony assault concurrent to his robbery sentence while this appeal was pending. Nevertheless, because the evidence support ing appellant Parker’s felony assault conviction is the same, “the trial court may, after hearing from the parties, determine whether [his] conviction should [also] be reversed” and reentered as a simple assault conviction “in the interest of justice.” Pe rez v. United States , 968 A.2d 39, 105

- 06 (D.C. 2009).10

B . Robbery

Next, b oth appellants argue that even if the re is sufficient evidence of their participation in the group assault on Mr. Walls to sustain their convictions for simple assault , the re is no evidence that the y participated in the robbery or intended to rob Mr. Walls on January 16, 2012

. T hus , they contend that their robbery convictions based on an aid ing and abetting theory must be overturned

. We disagree

.

To sustain a conviction under an aiding and abetting theory, the government must prove that (1) the principal committed a crime; (2) the defendant “assisted or participated in its commission”; and (3) the defendant’s participation “was with guilty knowledge.” Evans v. United States , 160 A.3d 1155, 1160 (D.C. 2017) (internal quotation omitted ). Because robbery is a specific intent crime, the evidence must also show that the appellants had the spec ific intent to aid and abet the robbery. See Lancaster v. United States , 975 A.2d 168, 174 (D. C. 2009) (“ Because armed robbery is a specific

- intent crime , the government must prove that the aider and abettor shared the same mens rea required of the princi pals

— in this case, the specific intent to steal from Greene.” ); s ee also Williams v. United
States , 113 A.3d 554, 560

- 61 (D.C. 2015) (noting that to establish robbery under11
D.C. Code § 22

- 2801 , the government must prove : “(1) a felonious taking, (2)

acc ompanied by

. . . the carrying away , of (3) personal property of value, (4) from the person of another or in his presence, (5) agai nst his will, (6) by violence or by putting him in fear, (7) [ with ] the intention to st eal” ( original brackets omitted) )

. 2

The evidence in this case was sufficient for a jury to find that appellants aided and abetted the robbery beyond a reasonable doubt b ased on the evidence presented that appellants were leading and/ or participating in the violence that sets robbery apart fr om simple theft. See id

. A fter being confronted and struck in the face by appellant Jenkins inside his apartment building , Mr. Walls ran out of the building and was immediately attacked by approximately fifteen people , including appellant Parker

. A fter Mr. Walls got up and began to flee from the second attack , several of his attackers caught up to him and stripped him of his jacket , keys , and cell phone before he was able to escape
. Given these facts , a reasonable jury was entitled to view the entire att ack on January 16, as a coordinated venture by a group of assailants

. Therefore, v iewed i n the light most favorable to the government, this evidence su pports a “reasonable inference” that appellants’ individual assaults on Mr. Walls w ere undertaken in con junction with the group’s

2 Recently, however, we have expressed concern regarding the use of specific intent and general intent as categories of mens rea. See Carrell v. United States , 165 A.3d 314, 323

- 34 & nn. 26 & 27 (D.C. 2017) (en banc).12
efforts to take his property

. Evans , 160 A.3d at 1161

. Thus, w e affirm appellants’ robbery convictions because “ p roof of conduct which [so] designedly encourages or facilitates a crime [] support [s] an inference of guilty partic ipation in the crime as an aider and abettor.” Id. (internal quotation s omitted).

III. JURY NOTE AND REPLY

Consistent with their argument that the evidence was insufficient to convict them of aiding and abetting the robbery in this case, a ppellants argue that the trial

court erred by failing to respond “No” to a jury note that a sked whether appellants’ assaultive conduct could result in their being convicted of aiding and abetting in a subsequent robbery by opening the door for the robbery even if th ere was no evidence of appellants’ express intent to participate in th e robbery. Mor e specifically, the jury asked: “If in the commission of a crime, a defendant opens the door for other crimes committed by other people, without his express intent, is
th e defendant guilty of any subsequent crimes by way of aiding and abetting?” The trial judge discussed the note with counsel and appellants’ counsel urged the court to respond by merely saying “No

. ” The trial judge commented that he did not understand the “new phrase” about “open[ing] the door for other crimes to be committed” and did not “have any idea what[]” was in the jury’s “mind” because13 the aiding and abetting instruction previously given was already clear and adequately addressed intent

. Ultimatel y , the trial court decided not to respond

“ no ” and that the jury instructions that had been previously provided appropriately answered the jury’s question

. T hus, the trial court replied: “In response to your note concerning aidi ng and abetting, I direct you[r] attention to the instruction numbered ‘ 3200 4.02 ’ within your package of instructions. I am unable to give you any furth er clarifying instruction on that subject.” Instruction 3200 4.02 reads as follows :

To find that a defendant aided and abetted in committing a crime, you must find that the defendant knowingly associated himself with the commission of the crime, that he participated in the crime as something he wished to bring about, and that he intended by his actions to make it succeed. Some a ffirmative conduct by the defendant in planning or carrying out the crime is necessary

. . . . The government is not required to prove that anyone discussed or agreed upon a specific time or method of committing the crime

. . . that the crime was committe d in a particular way[,] planned[,] or agreed up on; nor .
. . that the principal offender and the person alleged to be the aider and abettor directly communicated with each other

. . . . With respect to these offenses, regardless of whether the defendant is an aider and abettor or a principal offender, the government must prove beyond a reasonable doubt that the defendant personally acted with the intent as defined in each of the respective instructions

. . . . It is sufficient if you find beyond a reason able doubt that the crime was committed by someone and that the defendant knowingly and intentionally aided and abetted in committing the crime.14
Earlier , the trial court had discussed the intent necessary to convict appellants of each of the underlying offenses. For robbery, the trial court made it clear that the government had to prove “ that the defendant intended to deprive the complainant of his property and take it for his own use.” A s f or assault, t he trial court stated that the defendant had to a ct “voluntarily and on purpose and not by mistake or accident.”

In general, “ the decision on what further instructions, if any, to give in response to a jury question lies within the sound discretion of the trial court, and absent abuse of that discreti on we will not reverse .” (Jeremiah) Gray v. United
States , 79 A.3d 326, 337 (D.C. 2013) ( internal brackets and quotations omitted). And we have recognized that “[t]elling jurors to refer back to their original charge may be appropriate in some circumstan ces” where the “initial instructions ‘accurately and thoroughly provided the elements and definitions of the crimes charged.’” Euceda v. United States , 66 A.3d 994, 1008 (D.C. 2013) (quoting United States v. Beckman , 222 F.3d 512, 521 (8th Cir. 2000)). B ut , telling jurors to refer back to the original instruction is only permissible when doing so will address the jury’s confusion with “concrete accuracy.” (Jeremiah) Gray , 79 A.3d at 337 (internal quotations omitted).15
The refore, the question on appeal i s whether the aiding and abetting instruction provided the jur ors with the necessary understanding to address their confusion

. See id. at 338. On appeal, a ppellants press the argument that the trial court erred by not responding to the jury’s question by simply saying “No

. ” However, t he answer to the jury’s question would be “No” only if the jury believed the defendant s lacked the intent to commit the subsequent robbery

. I f the jury believed the defendant s had the intent to commit the robbery but simply did not explicitly express it to their confederates , answer ing the jury’s question with a “No” would have been misleading

. R eferring the jury back to the aiding and abetting instruction directly addresse d th os e uncertainties while provid ing sufficient cl arification for the ambiguous hypothetical question posed by the jury.

First , the jury note asks how aiding and abetting applies when a defendant commits a crime that creates an opportunity for other people to commit separate crime s , without an expres s intent between defendants to commit multiple crimes

. The aiding and abetting instruction states in pertinent part that “ [t] o find that a defendant aided and abetted in committing a crime, you must find that the defendant knowingly associated himself wit h the commission of the crime

. . . that he intended by his actions to make it succeed, ” and actively participated “ in planning or carrying out the crime

. ” In other words, th e aiding and abetting16
instruction inform s the jury that , in order to find the def endant s guilty of aiding and abetting a crime (in this case, the robbery ) , the jury ha d to find that the defendant s knowingly associated themselves with those committing the robbery, intended by their actions to make the robbery succeed, and took “[s]ome a ffirmative conduct

... in planning or carrying out the crime

. ” The instruction also makes clear that a iding and abetting does not require an express agreement between defendants to carry out the affirmative mis conduct

. As the instruction note s , the “gover nment is not required to prove that anyone discussed or agreed upon a specific time or method of committing the crime” nor “that the principal offender and the person alleged to be the aider and abettor directly communicated with each other.” See Evans , 1 60 A.3d at 1161

.

Nonetheless , appellant Parker argues that the jury was confused about the level of intent necessary to convict appellants of aiding and abetting the robbery as opposed to the intent required to commit the assault

. He contends that , becau se the trial court failed to specify that the robbery was the subject of the aiding and abetting instruction , and thus , specifically make reference to the government’s burden of proving the intent element of robbery , the jury might have convicted appellant s of aiding and abetting th e robbery merely because they committed the underlying assault. While it is true that the trial court could have included a direct17
reference to robbery in the aiding and abetting instruction, we see no error in failing to do so here because t he aiding and abetting instruction specifically informs the jury that in order to find a defendant who is guilty of one crime also guilty of aiding and abetting another crime , the jury must find “ beyond a reasonable doubt that the defendant p ersonally acted with the intent ” necessary to commit the other crime and that he “ knowingly and intentionally aided and abetted in committing [that] crime

. ” Thus, w hile th e aiding and abetting instruction given in this case did not specifically address th e intent necessary to be convicted for either of the offenses , it does explicitly tell the jury where to find that information: the intent section of the instructions on the “offenses that are charged in this case, ”
sp ecifically assault and robbery. Becau se we must “consider the instructions as a whole,” Green v. United States , 718 A.2d 1042, 1058 (D.C. 1998), and “a single instruction may not be judged in artificial isolation,” Watts v. United States , 362 A.2d 706, 709 (D.C. 1976) (internal citations and quotations omitted), we are satisfied that the trial court’s re

- reading of the aiding and abetting instruction adequately addressed any confusion the jury may have initially had about applying the law in this case

. Even a ppellant Parker acknowledges that there is nothing “technically inaccurate” about the trial court’s instruction and, u nder those circumstances , we will not assume the jury misunderstood or overlooked their instructions

.18

We also reject appellants’ argument that the trial court’s reinstru ction failed to address the jury ’s confusion a bout the assault “opening the door” to another crime. Here, appellants admi t that “the incident took place in one continuous
sequence
. ” Thus, the record supports the trial court’s finding that the jury’s note about “opening the door” to another crime was not “confusing on this evidence.”
T his is not a case where the jury may have been confused because it was given instructions applicable to on ly one of the two factual scenarios with which it was presented

. Cf

. (Jeremiah) Gray , 79 A.3d at 337

- 38 (requiring clarification where note implied that the jury believed one appellant’s role began after the crime occurred). To the contrary , no one suggested that the assault and the robbery were separate crimes. In fact , a ppellants ’ closing arguments focused on the credibility of the complaining witness and never asked the jury to consider whether the January 16 assault and robbery were separate crimes

. Further, appellants fail to explain how specifically referring the jury to the portion of the instruction stating what is necessary to con nect the individual assaults to a group robbery “was confusing as applied to the evidence” of those interrelated crimes.

F our th , and finally, appellants contend that the trial court’ s response to the jury note , and specifically, its statement that it was “unable to give [] any further19 clarifying instruction on the subject , ” chilled the jury from asking for further help with understanding the relationship between the charged offenses i n the context of the aiding and abetting instruction. However, it does not appear from the record that t here was a long delay between the reinstruction and the jury reaching a verdict in this case that can be attributed to continued confusion over the aid ing and abetting instruction , and , because we agree with the trial court that the instructions given adequately address the jury’s confusion , there is no basis for concluding that the jury would have sought further clarification but for the trial
court’s s tatement. Further, a ppellants’ request s for the trial court to simply respond “No” to the jury’s note neither provided a viable alternative to the aiding and abetting instruction nor raised any concern that the court’s previous instruction

was a n in comple te statement on aiding and abetting. See Green , 718 A.2d at 1056

- 57 (requiring distinct and specific objections to jury instructions )

. For all of these reasons, we find the trial court did not abuse its discretion in its response to the jury note.

I V . Eyewitness Identification Expert Testimony

Appellants next argue that the trial court erroneously excluded their eyewitness identification expert

. Before the trial began, appellants sought to20 introduce testimony from Dr. Steven Penrod, a psyc hology profe ssor who specializes in eyewitness identification reliability issues

. T he trial court precluded defense counsel from calling their expert because “ [t] he report [was] untimely, and the basis of the report [attached to the expert notice] is tenuous at best

. ” We stayed the appeal and remanded the record to the trial court so that it could conduct a Dyas 3 hearing regarding the admissibility of appellants’ proffered expert testimony. Following the Dyas hearing, where the trial court heard testimony from both appellants’ and the government’s expert witnesses, the trial court denied appellants’ motion to admit their expert testimony

. Appellants challenge th e trial court’s ruling in this appeal

.

A. Admissibility of Expert Testimony

We review a trial court’s d ecision on the admissibility of expert testimony for abuse of discretion. See Gira r dot v. United States , 92 A.3d 110 7, 1 109 (D.C.
20 14 ) (internal quotations omitted). When we remanded in 2015 for a decision on whether appellants’ expert witness would be allowed to testify , Dyas still governed

3 Dyas v. United States , 376 A.2d 827 (D.C. 1977). Dyas adopted and expanded upon the Frye standard for admission of expert testimony. See Frye v. United States , 293 F. 1013 (Ct. App. D.C. 1923).21 the admissibility of expert testimony. Under Dyas , expert testimony was admissible if:
(1) the subject matter [is] so distinctively related to some science, profession, business or occupation as to be beyond the ke n of the average layman ; (2) the witness [has] sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth ; and (3) exper t testimony is inadmissi ble if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert. Dyas , 376 A.2d at 832 (internal quotations omitted)

. However, in 2016 we replaced the Dyas standard with the Federal Rule of E vidence 702/ Daubert standard

. See Motorola Inc. v. Murray , 147 A.3d 751, 752 (D.C. 2016) (en banc) (adopting the federal standards on admissibility of expert testimony laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993)) . R ather than the three

- factor test laid out in Dyas , we now review the admissibility of expert testimony under the follow ing standard:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert ’ s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the tes timony is the product of reliable principles and methods; and (d) the expert has22 reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702; see also Motorola , 147 A.3d at 757 (“ We conclude that Rule
702 , with its expanded foc us on whether reliable principles and methods have been reliably applied, states a rule that is preferable to the Dyas/Frye test

. ”).

Following our remand, the trial court held a hearing and issued its order in 2017, after our decision in Motorola . In i ts decision, the trial court declined to admit the expert testimony based on the Dyas factors, rather than the Rule
702 / Daubert standard we adopted in Motorola . T he question of whether Rule 702 applie d retroactively to cases that had already been tried bu t were not yet final on direct appeal was left open in Motorola , see , 147 A.3d at 759, but we have since held that “the standards adopted for the admission of expert testimony in Motorola apply to all cases . . . t hat are still ‘ pending on direct review or not yet final.’” Williams v. United States , 210 A.3d 734, 743 (D.C. 2019) (citing Davis v. Moore , 772 A.2d 204, 226 (D.C. 2001) (en banc)). Because the incorrect standard was applied by the trial court, we revie w the trial court’s decision under harmless error standard. See Carrell , 165 A.3d at 327 (“ ‘ On the hearing of any appeal in any case, the District of Columbia Court of Appeals shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties. ’ ” ) (quoting D.C. Code § 11

- 721 (e) ) . “ To23
find harmless error , this court must be satisfied ‘with fair assurance, after pondering all that happened without stripping the erroneous actio n from the whole, that the judgment was not substantially swayed by the error.’” Smith v. United
States , 666 A.2d 1216, 1225 (D.C. 1995) (quoting Kotteakos v. United States , 328 U.S. 750, 765 (1946)).

We conclude that the trial court’s error in applying the Dyas factors was harmless because the record makes it clear that the trial court’ s decision to exclude the expert testimony would have been the same if it applied the correct standard.
We are satisfied that , because Dr. Penrod’s testimony would not “h elp the trier of fact to understand the evidence or to determine a fact in issue,” Fed. R. Evid. 702(a ), the trial court’s decision to exclude his testimony was consistent with the Rule 702/ Motorola standard. The trial court excluded the expert testimony in part because Mr. Walls had seen appellant Parker “around the neighborhood more than ten times” and appellant Jenkins “[p]retty much every day,” which allowed the trial court to conclude the witness and appellants were “not strangers to each other.”
Bec ause Dr. Penrod’s testimony centered on cases “where the person being identified was not well known” to the witness, and the court determined that there was some level of familiarity between the witness and appellants, it concluded that “the proffered expe rt testimony would not aid the jury in any meaningful way.”24

We agree with Dr. Penrod that familiarity exists on a spectrum . Thus, this

case is not the situation he describe s where “[i]f mom is assaulting me, mom is so well learned I should be able to recognize her in less than a second,” which is the level of familiarity where the factors affecting the reliability of identifications would not come into play. But this is also not a case where, as Dr. Penrod implied,
Mr. Walls was identifying “somebody that [he’d] seen [for] a very brief period of time at some prior occasion.” Mr. Walls’ familiarity with appellant s Jenkins and Parker fell somewhere in between those two poles, which is why the trial court determined that Dr. Penrod’ s testimony, focused on stranger identifications, would ultimately be unhelpful to the jury. 4 Application of the Dyas standard rather than the Rule 702/ Motorola standard does not change the fact that t he trial court has discretion to make that determination. See, e.g. , Hager v. United States , 856 A.2d 1143, 1148

- 49 (D.C. 2004) , amended in part on other grounds , 861 A.2d 601 (D.C. 2004) , cert. denied , 547 U.S. 1035 (2006) (finding the trial court did not abuse its discretion in excluding expert testimony on eyewitness identifi cations because “the studies on which [the expert witness] would have relied concern the

4 This conclusion is aided by the gove rnment’s expert, who testified that the findings from stranger identification research should not be applied to situations where the witness has a prior acquaintance with the subject of the identification because those situations are “qualitatively differe nt.”25 reliability of a stranger identification, not an identification of a person known to the witness, as in this case . . . [thus], it is . . . doubtful that [the expert’s ] testimony would have been helpful to the jury”); see also United States v. Langan , 263 F.3d 613, 623 (6th Cir. 2001) (holding expert testimony on eyewitness identifications properly excluded under Rule 702 and Daubert because it did not “‘fit’ the eyewit ness identification in this case”); State v. Guilbert , 49 A.3d 705 , 736

- 37 ( Conn. 2012) (holding expert testimony properly excluded because the “testimony was not applicable to the specific facts of this case and would not have been helpful to the jury bec ause most of the eyewitnesses knew the defendant and were therefore much less likely to render a mistaken identification”) ; People v. Abney , 918 N.E.2d 486, 496 (N.Y. 2009) ( upholding trial court’s exclusion of defendant’s expert witness testimony on ident ifications in part because “defendant was not a stranger to either [witness]”) ; State v. Clopten , 223 P.3d 1103, 1113 (Utah 2009) (“ If the eyewitness is identifying someone with whom he or she has been acquainted ov er a substantial period of time . . . the n expert testimony is not likely to assist the jury in evaluating the accuracy of a witness ’ s testimony. ”)

. Dr. Penrod’s testimony does not meet the first factor in the Rule 702 test for admitting expert witness testimony because it would not “ help the tr ier of fact to understand the evidence or to determine a fact in issue , ” and therefore the trial court ’s error in applying the Dyas factors was harmless

. Fed. R. Evid. 702(a).26

B. Rule 403 Balancing Test

Even assuming Dr. Penrod’s testimony would have m et all of Rule 702’s requirements and been otherwise admissible, the trial court did not abuse its discretion by keeping out the testimony under Rule 403. See Johnson v. United
States , 683 A.2d 1087, 1098

- 99 (D.C. 1996) (en banc) (adopting probative value versus prejudicial effect balancing test of Fed. R. Evid. 403). Otherwise admissible expert testimony may still be excluded by a trial court if “its probative value is substantially outweighed by . . . unfair prejudice, confusing the issues, [or] mislead ing the jury . . . .” Motorola , 147 A.3d at 754 (quoting Fed. R. Evid. 403); see also Ibn

- Tamas v. United States , 407 A.2d 626, 632 (D.C. 1979) (holding the trial court must still apply the 403 balancing test after determining the expert testimony’s admis sibility). We have recognized that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. ” Motorola , 147 A.3d at 755 ( quoting Daubert , 509 U.S. at 595) . Therefore, because of this risk and a s part of the trial court’s gatekeeping function, “ the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses .” Id. We27 evaluate the trial court’s decision on the pro bative versus prejudicial nature of the expert testimony for abuse of discretion. Motorola , 147 A.3d at 755

.

Here, the trial court found that “the testimony proffered by the defendant would be more prejudicial than probative,” and given that the case “do es not involve strangers,” the testimony would also be “distracting or confusing [to] the jury.” Minor v. United States , 57 A.3d 406, 419 n.6 (D.C. 2012). While the trial court incorrectly addressed the 403 balancing test as part of the second prong of
D

yas rather than as a separate test of admissibility, we find no prejudice in the trial court’s conclusion that Dr. Penrod’s testimony should be excluded under Rule 403.

As noted above, the thrust of Dr. Penrod’s testimony focused on eyewitness identific ations involving strangers. His testimony therefore had limited probative value in this factual situation, where Mr. Walls was familiar with both appellants, and instead his testimony posed a substantial risk of confusing the issue and misleading the jury . Under such circumstances, the trial court properly exercised its gatekeeping function. See Heath v. United States , 26 A.3d 266, 282 (D.C. 2011) ( p robative value of excluded expert testimony was slight where witness knew defendant, and because expert’s opinion rested on research concerning stranger identifications, she “simply had too little to say [to the jury] about the28 identifications [her testimony] was meant to undercut” ); see also United States v. Bartlett , 567 F.3d 901, 906

- 07 (7th Cir. 2009) (no abuse of discretion under Rule 403 to exclude expert witness testimony where four out of six witnesses knew defendant well); State v. Williams , 119 A.3d 1194, 1204

- 08 (Conn. 201 5 ) (no abuse of discretion in excluding expert testimony where witness knew rob ber as a “regular” customer). Ultimately, the trial court did not abuse its discretion in excluding the testimony of appellants ’ expert under Rule 403

.

V. Other Evidentiary R ulings

Appellant Jenkins’ other claims of evidentiary error s are una vailing. We review a trial court’s evidentiary rulings for abuse of discretion and will reverse only if the court’s exercise of discretion is clearly erroneous. See Kozlovska v. United States , 30 A.3d 799, 801 (D.C. 2011)

. Whether a statement satisfies a particular hearsay exception, however, is a question of law that we review de novo

. Id.

A. E xcited U tterance s29 Appellant Jenkins takes issue with the trial court’s admission of Mr. Walls’ 911 call and his statements to Officer Pulaski and Detective Boldi ng shortly after that call where Mr. Walls described how he had been robbed

. I n appellant Jenkins’ view, the statements were “gratuitous” and “improperly bolster[ed] Walls’ credibility

. ” The government responds that these statements were admissible as

ex cited utterances. An excited utterance is admissible as an exception to the hearsay rule if that statement meets the following criteria:
(1) The presence of a serious occurrence or startling event which causes a state of nervous excitement or physical sh ock in the declarant; (2) a declaration made within a reasonably short period of time after the occurrence so as to assure the declarant has not reflected upon the event and possibly invented a statement; and (3) the presence of circumstances that in their totality suggest the spontaneity and sincerity of the remark. Graure v. United States , 18 A.3d 743, 755 (D.C. 2011) (internal citation omitted). We have made it clear that proof of emotional disturbance is insufficient to justify admission of hearsay u nder this exception; instead, the evidence must establish that “the individual’s powers of reflection have been suspended.” Mayhand v
. United
States , 127 A.3d 1198 , 1207 (D.C. 2015) ; see Graure , 18 A.3d at 755 ( “The critical factor is that ‘circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection

. ’” ) (quoting Odemns v. United States , 901 A.2d 770, 777 (D.C. 2006))

. The proper standard of proof for30 determining the admissibility of an excited utterance i s a preponderance of the evidence. See United States v. Woodfolk , 656 A.2d 1145, 1150 n.14 (D.C. 1995).

Applying this test to Mr. Walls’ three statements, each one meets the definition of an excited utterance. Mr. Walls had been punched, kicked, and hi t with bottles by a large group of individuals after he ran out of his building . That certainly qualifies as a “serious occurrence” and his shaken tone of voice and

nervous movements wh en describing the incident to Officer Pulaski support a finding of “ne rvous excitement” or “physical shock

. ” Similarly, when one combines the temporal proximity of Mr. Walls’ statements with the nature of his mannerisms , it is easy to see how his statements satisfy the second element of an excited utterance

.

Mr. Walls ca lled 911 at 4:44 p.m. from a grocery store , less than 15 minutes after he had been attacked at around 4:30 p.m

. See Reyes

- Contreras v. United
States , 719 A.2d 503, 506 (D.C. 1998) (rejecting challenge to thirty

- minute length of time between the startling event and the declarant’s statement because declarant was still “crying, yelling, very upset . . . .”); Harris v. United States , 373 A.2d 590, 593 (D.C. 1977) (statement made two hours after declarant was shot still held to be reliable because victim was s uffering effects of the shooting). E vidence was31 presented that Officer Pulaski and Detective Bolding arrived soon there after and took his statement

. Officer Pulaski testified that when he arrived, Mr. Walls was “visibly injured,” “shaken and agitated,” a nd that “[h]e seemed very upset,” and Detective Bolding testified that Mr. Walls was injured and “very worried and fearful” while speaking to him

. This evidence provides sufficient support for the finding that Mr. Walls’ statements occurred within a short period after the attack and that the effects of the attack were still lingering as to make his statements a product of reflex rather than reflection. See Lewis v. United States , 938 A.2d 771, 774, 776 (D.C. 2007) (affirming under excited utterance admiss ibility of answer to police question regarding need for medical attention where declarant was “very, very upset” and repeated herself) ; cf. Pelzer v. United States , 166 A.3d 956, 961 (D.C. 2017) ( e xplaining that the trial court was also “obligated to confi rm that the shocking impact of the incident was sufficiently lasting such that the declarant’s powers of reflection were still suspended at the time the proffered statement was made”).

Lastly, when considering whether the circumstances, in their totalit y, suggest sincerity in the declarant’s statements, w e have recognized that a declarant’s upset and agitated demeanor supports the sincerity of the declarant’s remarks in the excited utterance context, as does the presence of fresh injuries. See32 Reyes v. United States , 933 A.2d 785, 790

- 91 (D.C. 2007) (noting in light of declarant’s upset demeanor and injuries we were “satisfied that any statements made by [declarant] . . . were sufficiently reliable to justify their admission as excited utterances ” ). Thi s was not a circumstance where Mr. Walls, after escaping an attack, returned home to safety, collected himself, and then gave the police a call to document his encounter demonstrating self

- awareness. Cf. Mayhand , 127 A.3d at 1 211 . Instead, Mr. Walls fled from his attackers to a nearby convenience store to call the police for help, then, when they responded, was found “shaken” “very upset,” and “moving back and forth.” When resp onding to questions, Mr. Walls was emotion al

– “shaken” and “angry”

– and was also described as “fearful” and “unable to give an adequate account of what happened to him .” T hese circumstances reasonably support the trial court’s finding that Mr. Walls’ remarks were both spontaneous and sincere. See, e.g., Goodwine v. United States , 990 A.2d 965, 966

- 68 (D.C. 2010) (finding no error in admitting, as an excited utterance, a statement to a police officer who asked the assault victim what had happened when the statement occurred two to three minutes after the victim called 911 and was made in a “ fast ” and “ elevated ” voice).

The common thread between Mr. Walls’ three statements is that they all occurred in a “reasonably short period of time” after Mr. Walls’ attack and under33
circumstances from which the trial court could reasonably find that his powers of reflection were suspended and his statements were reliable

. See Graure , 18 A.3d
at 755

. Th us, the trial court did not abuse its discretion in admitting them. 5

B. Prior I dentification

Appellant Jenkins also challenges three out of cour t statements ; two by Detective Bolding , and one by Mr. Wall’s cousin, Jerel Henderson, in which Jenkins was identified as the individual who attacked Mr. Walls. He argues that the statements are inadmissible hearsay and gratuitously bolster Mr. Walls’

tes timony

. T he government counters that the statements are not hearsay as they fall under the prior

- identification exception to the hearsay rule. While p rior consistent statements of a witness are generally inadmissible and their “exclusion

... is intended to avoid the prejudice of unfairly bolstering the witness ’ credibility,” the “ prior identification exception to the [general] rule . . . allows the admission of

out

- of

- court statements through the testimony of . . . a third party who was present

5 Appellant Jenkins contends that these excited utterances “improperly bolster the government’s case” as prior consistent statements. While we agree that the general rule is that “prior consistent statements may not be used to bolster an unimpeache d witness,” Daye v. United States , 733 A.2d 321, 325 (D.C. 1999 ) (internal quotation omitted) , “spontaneous utterance[s]” are an exception to this rule. (Henry) Brown v. United States , 881 A.2d 586, 599 (D.C. 2005) (citing Warren v. United States , 436 A.2 d 821, 836 (D.C. 1981) )

.34
when the ide ntification was made.” Taylor v. United States , 866 A.2d 817, 822 (D.C. 2005) (internal citations omitted)

. A statement is therefore not hearsay under the prior

- identification exception “if the declarant testifies at the trial . . . and is subject to cro ss - examination concerning the statement and the statement is . . . an identification of a person made after perceiving the person.” D.C. Code § 14

- 102(b)(3) (2012 Repl.)

. T he description of the offense is admissible under the prior

- identification excepti on “ only to the extent necessary to make the identification understandable to the jury

. ” Brown v. United States , 840 A.2d 82 , 89 (D.C. 2004 ) (internal quotation s omitted)

. “ [D] etailed accounts of the actual crime ” are inadmissible. Id.

Here, t he statem ents in question were properly admitted as prior identifications . Two of the statements come from Detective Bolding’s testimony about the photo array identification procedure with Mr. Walls

. Detective Bolding testified that Mr. Walls “described [appellan t Jenkins] as the leader and stated that he was the one that robbed him,” and that Mr. Walls also said appellant Jenkins “asked me for a cigarette, then punched me in the mouth, knocked me to the ground, and robbed me. ” It is undisputed that Mr. Walls, th e declarant, was identifying appellant Jenkins after having perceived him to Detective Bolding when he testified at trial about both statements

. A prior identification also requires35
that the declarant “is subject to cross

- examination concerning the statem ent,” D.C. Code § 14

- 102(b)(3) , but we have held that a declarant’s availability to be cross

examined, along with meeting the other requirements , is enough for a statement to be admissible as a prior identification. See, e.g. , Brown , 840 A.2d at 89 (“Beca use [declarant] was available for cross

- examination, her statement to [the police officer] was admissible as substantive evidence”). While Mr. Walls was not cross

examined specifically about these statements, he w as cross - examined extensively about the id entification procedures Detective Bolding used during the photo array, and there is no evidence in the record that he was unavailable to be recalled af ter Detective Bolding testified about his statements. Thus, Mr. Walls ’ statements to Detective Bolding w ere properly admitted as prior identification evidence

. 6

The third statement in question comes from Mr. Walls’ conversation with his cousin, Jerel Henderson, which occurred approximately one week after the attack. Mr. Henderson testified that when he ask ed Mr. Walls “who jumped him,” Mr. Walls responded “[t]he one you said we was going to have a problem out of” ;

6 Mr. Walls’ statements also do not rise to the level of “detailed accounts of the actual crime.” Brown , 840 A.2d at 89. Both statements give context to Mr. Walls’ claim that appellant Jenkins was the person who punched and robb ed him, and we have held that “[s]ome limited reference in the identification to the criminal act is permissible” to make the identification understandable to the jury. Porter v. United States , 826 A.2d 398, 410 (D.C. 2003).36 Mr. Walls also repeated th at statement when Mr. Henderson asked Mr. Walls who had robbed him a few days earlier. Appellant Jenkins argues that t his statement is “prejudicial” and a “needless presentation of cumulative evidence,” given Mr. Walls’ prior identification of appellant Jenkins during the photo array procedure. As an initial point, there is no dispute that the statement meets all three e lements of the prior identification test. See D.C. Code § 14

- 102(b)(3). Also, r ather than

“ unfairly bolstering the witness ’ credibility,” Taylor , 866 A.2d at 822, the statement is a separate indication that Mr. Walls knew who appellant Jenkins wa s before the robbery occurred

. Thus, the trial court properly credited the statement “because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial ma y have intervened to create a fancied recognition in the witness ’ mind.” Graham v. United States , 12 A.3d 1159, 1165 (D.C. 2011). As with Mr. Walls’ statements to Detective Bolding, his statement to Mr. Henderson was a prior identification. Thus, t he tr ial court did not abuse its discretion in admitting all three of Mr. Walls’ statements

.

C. Character E vidence37 Appellant Jenkins next contends that the trial court erred in admitting certain evidence of his bad character. Specifically, Jenkins co ntends that he was unduly prejudiced by Mr. Walls ’ testimony regarding his response to his cousin Jerel Henderson ’s question about who had attacked him , to which Mr. Walls answered, “[t]he one you said we was going to have a problem out of,” testimony by Detective Bolding that he was familiar with appellant Jenkins because of his nickname “ Goody , ” and testimony by Detective Bolding that he kept group photograph s pulled from Facebook in a binder at the police station and that the photographs included a pict ure of Jenkins. Appellant Jenkins claims these statements should not have been admitted because “there was a substantial risk that the jury would misuse this information and infer that Mr. Jenkins was a known criminal who was therefore more likely to be g uilty of the offense charged.”

We review the admissibility of such evidence to determine if it is relevant, or if it “tends t o make the existence or nonexistence of a fact more or less probable than would be the case without that evidence.” Winfield v. United States , 676 A.2d 1, 2 (D.C. 1996) (en banc). This is “not a particularly stringent test.” Rodriguez v. United States , 915 A.2d 380, 385 (D.C. 2007). W e also ensure that relevant evidence is not unfairly prejudicial. See Gay v. United States , 12 A.3d 643, 646

- 47 (D.C. 2011) ( noting that “relevant evidence may be excluded if its probative value38 is substantially outweighed by the danger of unfair prejudice . . . or by considerations of . . . needless pres entation of cumulative evidence ”).

We conclude that t he trial court did not abuse its discretion in admitting these statements . First, all three statements are relevant

. As discussed above, Mr. Walls’ statement to his cousin was relevant because it was a prior identification of the person wh o assaulted Mr. Walls

. The other two statements are relevant for the

same reason. Detective Bolding identified appellant Jenkins’ nickname as “Goody,” which is the same name Mr. Henderson used for appellant Jenkins when Mr. Henderson was describing appel lant Jenkins as one of the people who were regularly “hanging out” in front of Mr. Walls’ building. Detective Bolding’s testimony therefore corroborated Mr. Henderson’s statement. Also, the group photographs from Facebook depicting appellant Jenkins were relevant because they “were the primary means by which [Mr.] Walls identified” appellant Jenkins to Detective Bolding

.

Second, the probative value of the statements is not substantially outweighed by the danger of unfair prejudice to appellant Jenkins

. Mr. Walls’ statement to Mr. Henderson about “[t]he one you said we was going to have a problem out of” has probative value as a prior identification, and in any event, the trial court minimized39 any potential prejudice arising from this statement by allow ing defense counsel to cast doubt on Mr. Henderson’s testimony by establish ing that Mr. Henderson and Mr. Walls did not actually “have any beef with [appellant Jenkins]” and that Mr. Henderson did not know Mr. Jenkins. Further, the statements by Detective Bolding regarding appellant Jenkins’ nickname and that he had a photograph of appellant Jenkins at the station were not substantially more prejudicial than probative. De tective Bolding testified that he “focus[ed his] work on the police patrol areas of P SA 703 and 704 . . . which includes Pomeroy Road.” A nd, a s a result of this work, Detective Bolding came to know of appellant Jenkins’ nickname and kept his public Facebook photograph in the station, which is not significantly prejudicial if such knowledg e was gained through the course of an officer’s official duties and is used to explain a suspect’s inclusion in a photo array. That was the case here. See Rodriguez , 915 A.2d at 384

- 87 ( evidence that police officers recognized appellant from victim ’ s des cription based on “prior contacts” and knowing him “from the area” admissible to explain why officers included appellant ’ s photograph in photo array for purposes of identification); see also Perritt v. United States , 640 A.2d 702, 704

- 06 (D.C. 1994) (polic e officer testimony regarding investigative procedures employed in the case was admissible because jury was entitled to know the circumstances culminating in courtroom identification) ; (Joseph) Brown v. United States , 387 A.2d 728 , 730 (D.C. 1978)40 (“[T]he importance that a jury know of the reality of a fair pretrial identification weighs with more substance in the scales of justice than speculative possibility that the jury may conjecture defendant was involved in some offense. ”)

. Finally, the risk that th ese statements caused the jury to “infer that M r. J enkins was a known criminal” is lessened by the fact that, due to the stipulation, the jury already knew appellant Jenkins had been incarcerated. T hus, any prejudice to appellant Jenkins from Detective Bo lding’s statements did not significantly outweigh their probative value as identification evidence

. Because the statements are relevant and not unfairly prejudicial, the trial court did not abuse its discretion by admitting them.

VI. Jenkins’ Seve rance Motion

Appellant Jenkins also co ntests the trial court’s denial of his pretrial motion to sever his January 13 robbery charge from his January 16 robbery and assault charges. 7 “A motion for severance on the ground of prejudicial joinder is committe d to the sound discretion of the trial court.” Parker v. U nited States , 751 A.2d 943, 947 (D.C. 2000) (internal quotation s omitted). To overcome this discretion, an appellant must show that the failure to sever charges and order

7 Appellant Jenkins does not contest that the two robbery charges were “properly . . . joined under Super. Ct. Crim. R. 8(a) . . . .”41 multiple trials under Rul e 14 would result in “the most compelling prejudice

. . . from which the court would be unable to afford protection if both offenses were tried together. ” Id

. (internal quotation s omitted) ; s ee also Bailey v. United States , 10 A.3d 637, 64 2 (D.C. 2010)

. There is a presumption that cases that share a similar character are properly joined, so “a motion to sever will be granted only where the evidence would not be mutually admissible at separate trials, or the evidence of the multiple charges is likely to be amalgamated in the jury ’ s mind into a single inculpatory mass.” Bailey , 10 A.3d at 643 (internal citation s omitted). We will reverse the denial of a motion to sever only on a clear showing of abuse of discretion

. Parker , 751 A.2d at 947 (internal quota tion omitted).

After reviewing the trial record, we do not believe t he trial court abuse d its discretion when it denied a ppellant Jenkins’ severance motion , both because the evidence of the two robberies was kept separate and distinct 8 and because eviden ce

8 The trial court did not rely on the crimes being separate and distinct in denying the motion to sever, but we “ may affirm a judgment on any valid ground, including reasons other than those given by the trial court, so long as the appellant has had a reasonable opportunity to be heard with respect to the reasoning on which the proposed affirmance is to be ba sed.” Campbell v. United States , 224 A.3d 205, 209

- 10 (D.C. 2020) (internal brackets, quotation marks, and citations omitted). Given that appellant Jenkins raised the risk that the two robberies would not be kept separate by the jury at both the motion to sever hearing, and in his brief, we conc lude that he “has had a reasonable opportunity to be heard” on this issue.42
of the two crimes w as mutually admissible

. First, the prejudicial impact of admitting evidence of both robberies did not lead to “the most compelling prejudice , ” Parker , 751 A.2d at 947 (internal quotation s omitted), because the evidence was un likely “ to be amalgamated in the jury ’ s mind into a single inculpatory mass .” Bailey , 10 A.3d at 643

. The robberies happened on different days and in different locations, and Mr. Walls testified separately about the two incidents. See Gooch v. United States , 60 9 A.2d 259, 265 (D.C. 1992) (affirming denial of severance motion because robberies were “distinct and uncomplicated” and “presented . . . in a distinct manner”). The trial court at several points also explained to the jury that the two charges were “sepa rate offenses” and that the jury should not let a finding of appellant Jenkins’ guilt of one robbery charge “influence your verdict with respect to [the other] charge . . . .” Juries are presumed to follow their instructions

. See Harris v. United States , 602 A.2d 154, 165 (D.C. 1992) (en banc)

. T hus , trying both robbery charges at once did not lead to “the most compelling prejudice” because the evidence of each offense was kept “separate and distinct

. ” Parker , 751 A2d at 947 (internal quotation s omitted ).

Second, evidence of the two crimes was mutually admissible. Evidence of other crimes is mutually admissible if : (1) there is clear and convincing evidence the defendant committed the other crime; (2) the evidence is directed to a genuine,43
material an d contested issue in the case; (3) the evidence is logically relevant to prove this issue for a reason other than criminal propensity ; and (4) the prejudicial impact of the evidence does not substantially outweigh its probative value. See Legette v. Unite d States , 69 A.3d 373, 379 (D.C. 2013) (internal quotation s omitted).

T here is clear and convincing evidence that appellant Jenkins committed the January 13 and January 16 robberies because Mr. Walls recognized appellant Jenkins on both occasions , the two robberies happened within three days of each other in an area appellant Jenkins “ hung out ” in , and Mr. Walls’ stolen prescription pill bottle was found in side an apartment building appellant Jenkins frequented.
E vidence of e ach robbery is also directed t oward the genuine and material issue of contested fact in the case, w hether appellant Jenkins was misidentified as the perpetrator of the robberies

. While evidence of the robber ies could not be admitted to show appellant Jenkins’ propensity to rob, the ev idence would have been admissible in separate trials as relevant to show, inter alia , identity of the perpetrator of the robberies

. See Legette , 69 A.3d at 379 (quoting Drew v. United
States , 331 F.2d 85, 90 (D.C. Cir. 1964))

.44 Here, appellant Jenkins d isputed he was the one who rob bed Mr. Walls in both incidents. However, because the robberies were committed within three days of each other, in the same general location , and involved the same victim, the evidence of each robbery was admissible to prove identity

. See, e.g. , Coleman v. United States , 619 A.2d 40, 44

- 45 (D.C. 1993) ( finding evidence of robberies occurring within a two

- day period at similar locations in close proximity to each other was mutually admissible to prove identity because “[t] here need only be enough points of similarity in the combination of circumstances to make it reasonably probable that the same person committed all of the offenses ”). Finally, the prejudicial impact of admitting evidence of both robberies did not substantiall y outweigh the probative value of the evidence. As described above, the trial court frequently reminded the jury that the two charges were “separate offenses” and should be kept separate during deliberations. Whatever prejudice may have occurred as a res ult of trying both robbery charges at once did not substantially outweigh the probative value of each. Thus, the trial court did not abuse its discretion by declining appellant Jenkins’ severance motion.

VII. Ineffective Assistance of Counsel45
While his direct appeal was pending, appellant Jenkins filed a motion for a new trial per D.C. Code § 23

- 110 (2012 Repl.) on October 12, 2017, claiming ineffective assistance of trial counsel. Specifically, appellant Jenkins took issue with the fact that during tr ial, the government introduced a stipulation that appellant Jenkins had been incarcerated between October 4, 2011, and December 30, 2011. 9 Appellant Jenkins argued that his trial counsel was ineffective both for agreeing to the stipulation that appellant Jenkins was previously incarcerated and for not asking for a limiting instruction informing the jury that it could not infer criminal propensity due to appellant Jenkins’ incarceration. On September 18, 2018, the trial court denied appellant Jenkins’ § 23

- 110 motion without a hearing, to which appellant Jenkins timely appealed. W hile we conclude that the trial court abused its discretion by failing to hold a § 23

- 110 hearing, we nonetheless affirm on lack of prejudice

.

We review the denial of a § 23

- 110 motion without a hearing for abuse of discretion

. See Metts v. United States , 877 A.2d 113, 119 (D.C. 2005) (internal quotation omitted ). Normally, “when a § 23

- 110 motion is filed, the trial court should conduct a hearing on the motion.” Lopez v. Unite d States , 801 A.2d 39 , 42

9 The stipulation was read to the jury twice because the first time the government incorrectly stated that appellant Jenkins had been incarcerated in 2012, rather than 2011.46 (D.C. 2002). However, a hearing is not required when “ the motion and files and records of the case conclusively show that the prisoner is entitled to no relief

. ” D.C. Code § 23

- 110(c); see also Bellinger v. United States , 127 A. 3d 505 , 515 (D.C. 2015) (“ [I]n reviewing a summary denial, we must be satisfied that under no circumstances could the petitioner establish facts warranting relief .”) (internal quotation omitted).

Here, the trial court abused its discretion by addres sing t he deficiency prong of a ppellant Jenkins’ ineffective assistance of counsel claims w ithout first holding a hearing

. The court found trial counsel’s decision to stipulate to appellant Jenkins’ period of incarceration “a strategic decision” and that counsel “was able to strategically use the stipulation to advance its ultimate defense

— that [Mr.] Walls mistakenly identified [appellant Jenkins] as his assailant

— by demonstrating to the jury that [Mr.] Walls was not a reliable witness. ” The court similarly concluded that trial counsel’s decision not to ask for a limiting instruction was a tactical decision that “may have unnecessarily focused the jury’s attention on [appellant Jenk ins’] prior incarceration . . . .” While these may be reasonable conclusions to draw from trial counsel’s actions, there is nothing in the record from trial counsel himself, either in the transcripts or in a post

- trial affidavit, confirming he was making his choices for tactical reasons. Absent such evidence from the47 record, “[t]h e trial court erred when it repeatedly explained away trial counsel’s inaction as ‘trial tactics’ without a sufficient foundation for doing so . . . .” (James) Wood ard v. United States , 719 A.2d 966, 969 (D.C. 1998); see also (Wayne) Gray v. United States , 617 A.2d 521, 524 (D.C. 1992) (“ At the very least

... the trial court should have taken testimony from [the appellant’s] trial counsel

. . . .” before concluding trial counsel’s failure to investigate a witness was a reasonable tactical decision); Alexan der v. United States , 409 A.2d 618, 620

- 21 (D.C. 1979) (“ The judge below could not have concluded on the limited record before him that counsel ’ s failure to raise the defense was a tactical decision

. . . [t] here may indeed have been a valid tactical reaso n for not pursuing the insanity defense

. . . . But on the record in the trial court, one is not able to conclude with reasonable certainty what motivated defense counsel to act as he did, and to determine whether his actions amounted to ineffective assis tance of counsel. ”) (internal citations omitted)

.

Despite the trial court’s abuse of discretion, reversal is not required here because we are satisfied that appellant Jenkins did not suffer prejudice that would have resulted in a different outcome and t hus, a remand for a hearing is not warranted. See Clark v. United States , 136 A.3d 334, 348 (D.C. 2016) (concluding that even though the trial court abused its discretion by not holding a hearing on48 certain deficiency claims, because the appellant could n ot show prejudice , “ any need for a hearing on the deficiency allegations is now moot”). T o prevail on an ineffective assistance claim, a defendant “must demonstrate both that his counsel ’ s performance was constitutionally deficient, and that the deficient performance prejudiced his defense .” Dorsey v. United States , 225 A.3d 724, 727 (D.C. 2020) ( int ernal quotations omitted). “T o demonstrate prejudice, an appellant must show ‘a reasonable probability that, but for counsel ’ s unprofessional errors, the res ult of the proceeding would have been different.’” Clark , 136 A.3d at 341 (quoting Strickland v. Washington , 466 U.S. 668, 694 (1984)). Even if appellant Jenkins’ trial counsel was deficient for stipulating to appellant Jenkins’ previous incarceration an d not asking for a propensity instruction, an issue we do not decide here, 10 appellant Jenkins was not prejudiced because the outcome of the trial would have been the same regardless of these potential deficiencies. First, the jury heard testimony that Mr. Walls’ pill bottle, which was inside Mr. Walls’ jacket taken during the assault, was found in an apartment appellant Jenkins frequented

. Second, Mr. Walls and Mr. Henderson frequently saw appellant Jenkins outside the building, and thus, as discussed abo ve, a jury could more reasonably credit

10 See (Reynard) Wood ard v. United States , 738 A.2d 254, 259 (D.C. 1999) (“Like the trial court, however, we do not decide this [deficiency] issue because we conclude that Woodard was not prejudiced by defense counsel ’ s failure to consult with him before req uesting jury instructions on second

- degree murder and manslaughter. ”).49
their identifications of Jenkins. Third, only defense counsel brought up the stipulation to impeach Mr. Walls ’ credibility; the government did not try and make any improper propensity argument (nor did the jury even know why appellant Jenkins had previously been incarcerated). If anything, taking away defense counsel ’ s chance to attack Mr. Walls ’ recollection of constantly seeing appellant Jenkins because he was in jail might have made the government ’ s job easier, b ecause there was one fewer seed of doubt about Mr. Walls ’ credibility in the jury ’ s mind. On this record, there is no reasonable probability that the stipulation and lack of jury instruction would have prevented appellant Jenkins’ convictions for assault and robbery. Thus , appellant Jenkins did not suffer Strickland prejudice, and we affirm the trial court’s denial of his § 23

- 110 motion.

VI I I . Conclusion

We reverse appellant Jenkins’ conviction of felony assault and remand the case for an entry of con viction on the offense of simple assault and for resentencing

. On the remaining issues raised by appellants, we affirm.

It is so ordered.