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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 12-CF-1434 & 12-CF-1503

JACQUES PARKER & JONATHAN JENKINS, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the

District of Columbia

(CF3-1232-12 & CF3-3203-12)

(Hon. Herbert B. Dixon, 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 Service, 

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. Liu, 

United States Attorney at the time the briefs were filed, Elizabeth Trosman, 

Chrisellen R. Kolb, Ronald C. Machen Jr., John P. Mannarino, and Patricia Riley, 

Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, WASHINGTON, Senior Judge, and 

OKUN, Associate Judge, Superior Court of the District of Columbia.

*

 *

 Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
2

WASHINGTON, 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 reasons, 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, cellphone, 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 attacked by approximately fifteen 
3

people, including appellants Jenkins and Parker. Specifically, 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 some of his assailants wore masks but that appellants had their masks 

rolled up, and Mr. Walls could see their faces. He also testified that while 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 

tried to run to a convenience store to call the police, some of his assailants caught 

him and took his jacket, keys, and cellphone. 

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

Medical records indicated that Mr. Walls complained of left knee and left 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, appellant Jenkins was charged with two counts of robbery 

and one count of felony assault, 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. The trial court subsequently denied the 

motion. At the same hearing, the 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 the severance motion.

Subsequently, appellant Jenkins filed a motion 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

II. 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 

justifiable 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.3d 623, 627 (D.C. 2017) 

(quoting Rivas v. United States, 783 A.2d 125, 134 (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 Assault
6

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 sustained 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 

bodily 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 manner, 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.” Id. 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, 1264 (D.C. 2013). Nor is the 

statutory standard satisfied by evidence of “everyday 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 medical attention required by the statute must be aimed at one of two 
7

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 hospitalization” 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 quotations omitted). 

Applying 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 undoubtedly 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 after 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, nowhere does the record “suggest that [his] 

injuries demanded treatment of a higher order, requiring true medical expertise, 

rather than everyday remedies such as ice packs, bandages, and self-administrated 
8

over-the-counter medications.” Wilson v. United States, 140 A.3d 1212, 1218 

(D.C. 2016) (internal quotations 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 what 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 tests 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 available over the counter[,]” or whether Mr. Walls 

used that medication, the brace, or the crutches 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 “long-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 speculate 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); see 
9

also Nero v. United States, 73 A.3d 153, 158-59 (D.C. 2013) (differentiating

sufficient evidence of felony assault for a potentially “life-threatening” gunshot 

wound suffered by one victim from insufficient evidence of felony assault for

another gunshot victim requiring only “diagnostic tests, pain medication, and 

wound care”). 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 insufficient to support appellant Jenkins’ conviction 

for felony assault, the government did introduce sufficient evidence to support a 

conviction for 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 same 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 supporting 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.” Perez v. United 

States, 968 A.2d 39, 105-06 (D.C. 2009).
10

B. Robbery

Next, both appellants argue that even if there is sufficient evidence of their 

participation in the group assault on Mr. Walls to sustain their convictions for 

simple assault, there is no evidence that they participated in the robbery or 

intended to rob Mr. Walls on January 16, 2012. Thus, they contend that their 

robbery convictions based on an aiding 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 specific 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 principals — in 

this case, the specific intent to steal from Greene.”); see also Williams v. United 

States, 113 A.3d 554, 560-61 (D.C. 2015) (noting that to establish robbery under 
11

D.C. Code § 22-2801, the government must prove: “(1) a felonious taking, (2) 

accompanied by . . . the carrying away, of (3) personal property of value, (4) from 

the person of another or in his presence, (5) against his will, (6) by violence or by 

putting him in fear, (7) [with] the intention to steal” (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 based on the evidence 

presented that appellants were leading and/or participating in the violence that sets 

robbery apart from simple theft. See id. After 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. After 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 

cellphone before he was able to escape. Given these facts, a reasonable jury was

entitled to view the entire attack on January 16, as a coordinated venture by a 

group of assailants. Therefore, viewed in the light most favorable to the 

government, this evidence supports a “reasonable inference” that appellants’ 

individual assaults on Mr. Walls were undertaken in conjunction 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, we affirm appellants’ 

robbery convictions because “proof of conduct which [so] designedly encourages 

or facilitates a crime [] support[s] an inference of guilty participation in the crime 

as an aider and abettor.” Id. (internal quotations 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, appellants argue that the trial 

court erred by failing to respond “No” to a jury note that asked 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 there was no 

evidence of appellants’ express intent to participate in the robbery. More 

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 

the 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” because
13

the aiding and abetting instruction previously given was already clear and 

adequately addressed intent. Ultimately, the trial court decided not to respond 

“no” and that the jury instructions that had been previously provided appropriately 

answered the jury’s question. Thus, the trial court replied: “In response to your 

note concerning aiding 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 further 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 affirmative 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 committed 

in a particular way[,] planned[,] or agreed upon; 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 reasonable 

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.” As for assault, the trial court stated 

that the defendant had to act “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 discretion 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 circumstances” 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)). But, 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

Therefore, the question on appeal is whether the aiding and abetting 

instruction provided the jurors with the necessary understanding to address their 

confusion. See id. at 338. On appeal, appellants press the argument that the trial 

court erred by not responding to the jury’s question by simply saying “No.” 

However, the answer to the jury’s question would be “No” only if the jury believed 

the defendants lacked the intent to commit the subsequent robbery. If the jury 

believed the defendants had the intent to commit the robbery but simply did not 

explicitly express it to their confederates, answering the jury’s question with a 

“No” would have been misleading. Referring the jury back to the aiding and 

abetting instruction directly addressed those uncertainties while providing

sufficient clarification 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

crimes, without an express 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 with 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, the aiding and abetting 
16

instruction informs the jury that, in order to find the defendants guilty of aiding and 

abetting a crime (in this case, the robbery), the jury had to find that the defendants

knowingly associated themselves with those committing the robbery, intended by 

their actions to make the robbery succeed, and took “[s]ome affirmative conduct ... 

in planning or carrying out the crime.” The instruction also makes clear that aiding 

and abetting does not require an express agreement between defendants to carry 

out the affirmative misconduct. As the instruction notes, the “government 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, 160 

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, because 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 

appellants of aiding and abetting the robbery merely because they committed the 

underlying assault. While it is true that the trial court could have included a direct 
17

reference to robbery in the aiding and abetting instruction, we see no error in 

failing to do so here because the 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 personally acted with the intent” necessary to 

commit the other crime and that he “knowingly and intentionally aided and abetted 

in committing [that] crime.” Thus, while the aiding and abetting instruction given 

in this case did not specifically address the 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,”

specifically assault and robbery. Because 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 appellant Parker acknowledges that there is nothing 

“technically inaccurate” about the trial court’s instruction and, under those 

circumstances, we will not assume the jury misunderstood or overlooked their 

instructions. 
18

We also reject appellants’ argument that the trial court’s reinstruction failed 

to address the jury’s confusion about the assault “opening the door” to another 

crime. Here, appellants admit 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.” 

This is not a case where the jury may have been confused because it was given 

instructions applicable to only 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, appellants’ 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 connect the individual assaults to a group robbery “was 

confusing as applied to the evidence” of those interrelated crimes. 

Fourth, 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 further 
19

clarifying instruction on the subject,” chilled the jury from asking for further help 

with understanding the relationship between the charged offenses in the context of 

the aiding and abetting instruction. However, it does not appear from the record 

that there 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 aiding 

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 statement. Further, appellants’ requests 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 an incomplete 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.

IV. Eyewitness Identification Expert Testimony

Appellants next argue that the trial court erroneously excluded their 

eyewitness identification expert. Before the trial began, appellants sought to 
20

introduce testimony from Dr. Steven Penrod, a psychology professor who 

specializes in eyewitness identification reliability issues. The 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 

Dyas3 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 the trial 

court’s ruling in this appeal.

A. Admissibility of Expert Testimony

We review a trial court’s decision on the admissibility of expert testimony

for abuse of discretion. See Girardot v. United States, 92 A.3d 1107, 1109 (D.C. 

2014) (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 ken 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) expert testimony is inadmissible 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 Evidence 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)). Rather than 

the three-factor test laid out in Dyas, we now review the admissibility of expert 

testimony under the following 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 testimony is the product of 

reliable principles and methods; and (d) the expert has 
22

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 focus 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 its 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. The question of whether Rule 702 

applied retroactively to cases that had already been tried but 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 . . . that 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 review 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)). “To 
23

find harmless error, this court must be satisfied ‘with fair assurance, after 

pondering all that happened without stripping the erroneous action 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 “help 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.” 

Because 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 expert 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 describes 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 appellants 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 the 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 identifications 

because “the studies on which [the expert witness] would have relied concern the 

 4 This conclusion is aided by the government’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 different.” 
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 

eyewitness 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 because 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 identifications 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 over a substantial period of time . . . then 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 trier 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 met 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] 

misleading 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 admissibility). 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 as 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. We 
27

evaluate the trial court’s decision on the probative 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 “does 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 

Dyas 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 

identifications 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) (probative 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 the 
28

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. 2015) (no 

abuse of discretion in excluding expert testimony where witness knew robber 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 Rulings

Appellant Jenkins’ other claims of evidentiary errors are unavailing. 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. Excited Utterances
29

Appellant Jenkins takes issue with the trial court’s admission of Mr. Walls’ 

911 call and his statements to Officer Pulaski and Detective Bolding shortly after 

that call where Mr. Walls described how he had been robbed. In appellant Jenkins’ 

view, the statements were “gratuitous” and “improperly bolster[ed] Walls’ 

credibility.” The government responds that these statements were admissible as 

excited 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 shock 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 under 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 for 
30

determining the admissibility of an excited utterance is 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 hit 

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 when describing the incident to Officer Pulaski support a 

finding of “nervous 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 called 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 suffering effects of the shooting). Evidence was 
31

presented that Officer Pulaski and Detective Bolding arrived soon thereafter and 

took his statement. Officer Pulaski testified that when he arrived, Mr. Walls was 

“visibly injured,” “shaken and agitated,” and 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 admissibility 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) (explaining that the trial court was also “obligated to confirm 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 totality, 

suggest sincerity in the declarant’s statements, we 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. See 
32

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”). This 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 1211. 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 responding to questions, Mr. 

Walls was emotional – “shaken” and “angry” – and was also described as “fearful”

and “unable to give an adequate account of what happened to him.” These 

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 under
33

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

B. Prior Identification

Appellant Jenkins also challenges three out of court 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’ 

testimony. The government counters that the statements are not hearsay as they 

fall under the prior-identification exception to the hearsay rule. While prior 

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 

unimpeached 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.2d 821, 836 (D.C. 1981)).
34

when the identification 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 cross-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.). The description of the offense is admissible under the 

prior-identification exception “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 quotations omitted). “[D]etailed accounts of the actual 

crime” are inadmissible. Id.

Here, the statements 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 [appellant 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, the declarant, was 

identifying appellant Jenkins after having perceived him to Detective Bolding

when he testified at trial about both statements. A prior identification also requires
35

that the declarant “is subject to cross-examination concerning the statement,” D.C. 

Code § 14-102(b)(3), but we have held that a declarant’s availability to be crossexamined, 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 (“Because 

[declarant] was available for cross-examination, her statement to [the police 

officer] was admissible as substantive evidence”). While Mr. Walls was not crossexamined specifically about these statements, he was cross-examined extensively

about the identification procedures Detective Bolding used during the photo array, 

and there is no evidence in the record that he was unavailable to be recalled after 

Detective Bolding testified about his statements. Thus, Mr. Walls’ statements to 

Detective Bolding were 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 asked 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 robbed 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 that statement when Mr. Henderson asked Mr. Walls who 

had robbed him a few days earlier. Appellant Jenkins argues that this 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 elements of 

the prior identification test. See D.C. Code § 14-102(b)(3). Also, rather 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 was 

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 may 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, the trial court did not abuse its discretion in admitting all 

three of Mr. Walls’ statements. 

 

C. Character Evidence
37

Appellant Jenkins next contends that the trial court erred in admitting certain 

evidence of his bad character. Specifically, Jenkins contends 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 

photographs pulled from Facebook in a binder at the police station and that the 

photographs included a picture 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 guilty of the offense charged.” 

We review the admissibility of such evidence to determine if it is relevant, 

or if it “tends to 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). We 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 value 
38

is substantially outweighed by the danger of unfair prejudice . . . or by 

considerations of . . . needless presentation of cumulative evidence”). 

We conclude that the 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 who 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 appellant 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 minimized 
39

any potential prejudice arising from this statement by allowing defense counsel to 

cast doubt on Mr. Henderson’s testimony by establishing 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. Detective Bolding testified that he “focus[ed his] work on the police 

patrol areas of PSA 703 and 704 . . . which includes Pomeroy Road.” And, as 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 knowledge 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 description 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) (police 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 these statements caused the jury to “infer that Mr. Jenkins was a known 

criminal” is lessened by the fact that, due to the stipulation, the jury already knew 

appellant Jenkins had been incarcerated. Thus, any prejudice to appellant Jenkins 

from Detective Bolding’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’ Severance Motion

Appellant Jenkins also contests 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 

committed to the sound discretion of the trial court.” Parker v. United States, 751 

A.2d 943, 947 (D.C. 2000) (internal quotations 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 Rule 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 quotations omitted); see also Bailey v. United States, 

10 A.3d 637, 642 (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 citations 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 quotation omitted).

After reviewing the trial record, we do not believe the trial court abused its 

discretion when it denied appellant Jenkins’ severance motion, both because the 

evidence of the two robberies was kept separate and distinct8 and because evidence 

 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 based.” 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 conclude that he “has had a reasonable opportunity to be heard” on this 

issue. 
42

of the two crimes was 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 quotations omitted), because the 

evidence was unlikely “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, 609 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 “separate 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). Thus, 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 quotations 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 and 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. United States, 69 A.3d 373, 379 (D.C. 2013) (internal quotations

omitted).

There 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 inside an apartment building appellant Jenkins frequented. 

Evidence of each robbery is also directed toward the genuine and material issue of 

contested fact in the case, whether appellant Jenkins was misidentified as the 

perpetrator of the robberies. While evidence of the robberies could not be admitted 

to show appellant Jenkins’ propensity to rob, the evidence 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 disputed he was the one who robbed 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 substantially 

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 result 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 Counsel
45

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 trial, 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. While 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. United 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 addressing the deficiency prong 

of appellant Jenkins’ ineffective assistance of counsel claims without 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 Jenkins’] 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 the 
47

record, “[t]he trial court erred when it repeatedly explained away trial counsel’s 

inaction as ‘trial tactics’ without a sufficient foundation for doing so . . . .” 

(James) Woodard 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); Alexander 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 reason 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 assistance 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 thus, 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 on 
48

certain deficiency claims, because the appellant could not show prejudice, “any 

need for a hearing on the deficiency allegations is now moot”). To 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) 

(internal quotations omitted). “To demonstrate prejudice, an appellant must show 

‘a reasonable probability that, but for counsel’s unprofessional errors, the result 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 and 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 above, a jury could more reasonably credit 

 10 See (Reynard) Woodard 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 requesting 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, 

because 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.

VIII. Conclusion

We reverse appellant Jenkins’ conviction of felony assault and remand the 

case for an entry of conviction on the offense of simple assault and for 

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

It is so ordered.