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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CF-676

JEROME C. LEWIS, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2013-CF1-2826)

(Hon. Milton Lee, Trial Judge)

(Argued January 28, 2021 Decided December 2, 2021) 

Deborah A. Persico for appellant Lewis.

Anne Y. Park, Assistant United States Attorney, with whom Timothy J. Shea,

United States Attorney, and Elizabeth Trosman, John P. Mannarino, Michelle D. 

Jackson, and Kimberley C. Nielsen, Assistant United States Attorneys, were on the 

brief, for appellee.

Before GLICKMAN and MCLEESE, Associate Judges, and STEADMAN, Senior 

Judge.

GLICKMAN, Associate Judge: Jerome Lewis appeals his convictions after a 

jury trial of first-degree felony murder with aggravating circumstances, the 

underlying felony of first-degree cruelty to children, and second-degree murder as a 
2

lesser included offense of the charge of first-degree felony murder (arson). (The 

jury acquitted appellant of arson and of first-degree felony murder predicated on that 

felony.) These charges were based on evidence that appellant set a fire in the 

basement of his house in the middle of the night — a fire that filled the upper floors 

with smoke and resulted in the death from smoke inhalation of a four-year-old child. 

Appellant’s principal claim is that the trial court erred by admitting unreliable expert 

testimony as to the origin and cause of the fire. He also asserts that the court erred 

by refusing his request to instruct the jury on civil negligence; that the evidence at 

trial was not sufficient to support his murder and child cruelty convictions; and that 

the court erred by denying his motion for a new trial in the interests of justice. We 

are not persuaded by appellant’s arguments, and we affirm his convictions.

I. The Evidence at Appellant’s Trial

This appeal is from a retrial held after the jury could not reach a verdict on the 

main counts at issue in appellant’s first trial, which was in 2016. Although the jury 

in that first trial found appellant guilty of one count of threats to do bodily harm, he 

does not challenge his threats conviction. In what follows, therefore, we summarize 

only the pertinent evidence presented by the government at the retrial. Appellant 

presented no evidence at that trial.
3

A. Factual Background

Appellant owned and resided in a house located at 2616 33rd Street in 

Southeast Washington, D.C. He occupied the basement of the house and rented the 

upper floors to his cousin Shirley Jenkins-Holland, her husband Alex Holland, their 

adult daughters Sarah and Alexis, and Sarah’s two young children, S.M.J. and M.J.

There was a stairway down to appellant’s basement apartment from the first floor 

kitchen area. The basement also had a door opening to the backyard. In the 

basement, appellant had his own kitchen and his private living space. He slept on a 

mattress there. Shirley testified that appellant had “basic linen” (i.e., a cotton or 

polyester “sheet”) and a fleece blanket or cover on the mattress; she could not say 

exactly what material the sheet and blanket were made of. Alexis also recalled the 

blanket on appellant’s mattress but did not know whether it was made of cotton or a 

synthetic material. 

Initially, appellant got along well with the Jenkins-Holland family and spent 

considerable time socializing with them upstairs. The two young children, S.M.J. 

and M.J., were fond of appellant and frequently visited him in his basement 

apartment.
4

Over time, however, appellant’s relations with the family deteriorated. 

Appellant complained about their failure to pay the bills and the odor of the 

seasonings the family used in cooking their meals. To prevent the unpleasant 

cooking smell from bothering him in the basement, appellant put up a plastic tarp 

from the ceiling to the floor at the top of the stairs leading down from the first-floor 

kitchen. 

The government presented evidence that, by 2013, appellant was in need of 

money. His primary source of income was the rent he received from the JenkinsHolland family and from the tenants of a second house he owned, which amounted 

in total to only about $1800 a month. On three occasions between January 2012 and 

January 2013, appellant sought to borrow money from family members to finance 

two trips he took to Africa. One of those family members, appellant’s uncle, testified 

to his impression that appellant’s financial situation in 2012 was tenuous and that he 

needed money in a hurry because he spent it as soon as he got it. When appellant 

returned home in January 2013 from his second trip to Africa, he said he had found 

a wife there and asked the Jenkins-Holland family to move out. Shirley and Alex 

told appellant they could not afford to move out immediately. He agreed to give 

them six months and to lower their rent by $200 a month to enable them to save 

some money. 
5

B. The Fire

A month later, on February 16, 2013, Sarah and Shirley noticed the curious 

fact that appellant had removed his television and his father’s military burial flag 

from the basement and left those items outside in the backyard. That night, Alexis 

and Shirley put the children down to sleep and then went to bed. (Shirley’s husband 

Alex was out of town.) Shortly after 3:00 a.m., Alexis was awakened by smoke 

filling her room on the second floor. She ran to the children’s room. However, only 

M.J. was there; four-year-old S.M.J. had gone to sleep in her grandmother’s room. 

Alexis took M.J. and went to wake up Shirley, who immediately ran down to the 

first floor bedroom to awaken Sarah and her boyfriend. Shirley saw smoke but no 

fire on the first floor until she opened the door that led to Sarah’s bedroom and the 

basement stairwell. At that point, Shirley saw fire coming up the stairs from the 

basement, and the plastic tarp appellant had hung at the top of those stairs was 

engulfed in flames. Blocked by the fire from reaching Sarah’s bedroom, Shirley 

screamed for her to wake up. Alexis, who ran down the stairs with M.J. to join 

Shirley, also saw flames coming from the basement. Alexis did not see fire in any 

other room. Screaming at her mother to “come on,” Alexis, Shirley, and M.J. went 

out the front door of the house. The door shut behind them and automatically locked. 
6

Alexis then realized S.M.J. was still somewhere inside the house, but she did not 

have a key to get back inside. 

Sarah was awakened by her mother’s screams. She smelled the smoke and 

ran to her door. When she opened it, she saw the fire moving toward her from the 

basement and the tarp at the top of the stairwell. Sarah sustained second-degree 

burns to her arms, shoulder, and back. She woke up her boyfriend and they jumped 

out their bedroom window into the backyard. 

There Sarah saw appellant standing and facing the house, silently watching 

the fire. He was calm, smoking a cigarette, and fully dressed. He had not alerted 

anyone in the house to the fire and he ignored Sarah and her boyfriend’s narrow 

escape. Sarah ran to the front of the house, where she found Shirley, Alexis, and 

M.J., and realized S.M.J. was still inside the home. 

At about 3:15 a.m., Metropolitan Police Department (MPD) Officer Mark 

Abbey saw smoke coming from the vicinity of appellant’s house and went to 

investigate its source.1

 As he neared the house, Officer Abbey heard a man pacing 

 1

 Officer Abbey first noticed the smoke while he was watching a security 

camera in a guard booth at the home of then-Mayor Vincent Gray, which was located 

behind appellant’s house. 
7

in the darkness and muttering to himself. The officer called out and asked if 

everything was all right. The man, whom Officer Abbey could not see, answered in 

a calm voice that “everything’s fine.” Officer Abbey did not believe it and ran back 

to get his flashlight. When he returned, he saw flames coming from the basement of 

appellant’s house and appellant pacing and muttering in the backyard. Officer 

Abbey recognized appellant’s voice as that of the man in the alley who told him 

everything was fine. 

Video footage from a surveillance camera located in the alley behind 

appellant’s house was introduced at trial. In addition to corroborating Officer 

Abbey’s account of his arrival at around 3:15 a.m., the footage showed earlier 

activity by someone, presumably appellant, opening and closing the basement door 

and moving around outside the house at various times between 1:17 a.m. and 2:34 

a.m., followed by smoke and fire coming from the basement door at 3:12 to 3:13 

a.m. 

Officer Abbey called the fire department and went to the front of the house, 

as did appellant. Other MPD officers arrived on the scene. One of them, Officer 

Mario Barr, testified that he saw appellant standing in front of the house, mumbling
8

to himself, while Sarah hysterically yelled that her child was inside. The officers 

kicked in the front door, but there was so much smoke that they could not enter. 

Shirley screamed at appellant, “[Y]ou burned our house down,” and he 

responded, “I’m going to kill you, bitch.” Upon hearing that S.M.J. was still in the 

house, appellant climbed on the roof and attempted to enter by a window, but the 

smoke prevented him. After another confrontation with Shirley, in which he again 

threatened to kill her and attempted to kick and elbow her, the police arrested and 

searched appellant. In his front pocket, they found a half-used book of matches.

During a later search of the basement, police recovered a pack of Kool cigarettes and 

a receipt from a nearby gas station for two packs of Kool cigarettes purchased with 

appellant’s credit card at 1:48 a.m. on the morning of the fire. 

Firefighters eventually found S.M.J. lying unconscious in an upstairs 

bedroom. The child was hospitalized and treated for second-degree burns and smoke 

inhalation. She succumbed to her injuries two days later. 

While appellant was detained at the D.C. Jail following his arrest, he spoke 

with friends about the fire during visits and phone calls. His conversations were

recorded. In them, appellant claimed there had been two separate, unrelated fires —

one on his mattress in the basement and the other upstairs in the first-floor kitchen 
9

— and he denied being responsible for the latter. In one conversation, appellant 

suggested that the fire on the mattress was the result of an accident, because “you 

know . . . people fall asleep plenty of times with a cigarette burning.” This fire could 

not have caused the upstairs fire, appellant said, because he “had turned the water 

on” and “the whole carpet was wet” so he “knew the mattress couldn’t have caught 

on fire like that.” In a conversation with another friend, appellant admitted that he 

was burning the mattress and that he watched it burn: 

I’m watching what I’m burning. I’m literally watching 

what I’m burning. No sooner as it got to a point and I was 

like, I’m gonna go ahead and take it out because I was just 

going to use the fire extinguisher, but then I’m just going 

to take it outside the house . . . . No sooner as I walked, 

walked past the vents, that’s when all this other toxic 

smoke started coming from the vents. You know, plastics, 

and all of it. You know, plastic burning, you know that’s a 

toxic smell as opposed to just . . . cotton.

Consequently, appellant said, he “didn’t get a chance to throw nothing outside” and 

his “mattress never made it out the house.” 

During one visit, on April 4, 2013, appellant proposed a scheme, requiring his 

friend’s assistance, to submit an inflated insurance claim for the repairs on his home. 

“[W]ork with me,” appellant said, “so that way I can come out with a little bit of 
10

money.” Appellant outlined how his friend could get “in on the contract” and “get 

a piece of that money” too, “so we all can eat.” 

C. Investigation of the Origin and Cause of the Fire

Investigation of the fire’s origin and cause began at 5:00 a.m. on February 17, 

2013. Special Agent (SA) Chad Campanell, a fire investigator with the Bureau of 

Alcohol, Tobacco, and Firearms (ATF), arrived that morning to assist the D.C. Fire 

Department with the investigation. SA Campanell personally examined the fire 

damage and took photographs to document it. He observed that the most severe fire 

damage was in the basement, with some in the rear of the first floor (near the stairs 

to the basement). There was no fire damage on the second floor. SA Campanell 

inspected the electrical fixtures, outlets, and such, and found no evidence that the 

fire was electrical in origin.

SA Campanell recruited Lee McCarthy, a fire investigator at the ATF’s Fire 

Research Lab, to assist the investigation and to perform tests to determine whether

an accidentally dropped cigarette could have caused the fire by igniting the bedding 

material and mattress in the basement (as appellant had suggested). McCarthy 

reviewed photographs, documents and reports, including witness statements, and 

other evidence collected in the case, and he personally inspected the house in January 
11

2014. The trial court accepted McCarthy as an expert in determining the origin and 

cause of fires and in fire protection engineering. His report was admitted in 

evidence. 

Based on the pattern of damage he observed, his understanding of fire 

dynamics and behavior, and the statements of witnesses and appellant himself,

McCarthy concluded that the fire originated in the basement, the site of the greatest 

fire damage. From there it flowed up the stairwell, which itself was considerably 

burned. On the first floor, the severity of the damage correlated with its proximity 

to the stairs to the basement. The worst damage in the basement was in the living 

space: the fire almost entirely consumed the furniture, and metal springs were all 

that remained of the mattress. McCarthy concluded there was no second fire starting 

on the first floor (contrary to appellant’s claim to his friends).

In McCarthy’s opinion, “the most data” (including appellant’s own 

statements) supported the mattress as being where the fire originated.2

 Finding no 

 2

 There were some signs, however, that fires might have been started at other 

spots in the basement as well. McCarthy could not rule out that possibility. If so, 

McCarthy noted, that in itself was evidence the fire was intentionally set. See United 

States v. Aman, 748 F. Supp. 2d 531, 535-36 (E.D. Va. 2010) (citing the National 

Fire Protection Agency’s Guide for Fire and Explosion Investigations (2008 ed.) 

(“NFPA 921”) for the proposition that “multiple, non-communicating fires are more 
12

evidence for an electrical cause of the fire, McCarthy narrowed the potential ignition 

sources to either an open flame such as a match or a lighter or, conceivably, a lit 

cigarette that had fallen on the bedding. 

McCarthy testified that it is relatively hard to start a fire in a mattress, because 

federal safety regulations require mattresses to be made from fire retardant materials 

with a low burning rate in order to increase escape time. An open flame deliberately 

held to a bare mattress long enough could ignite it, but one would not expect a

dropped cigarette alone to do so.

3 However, a cigarette might ignite bedding 

material on top of a mattress, such as sheets and blankets, which in turn could suffice 

to set the underlying mattress on fire. McCarthy therefore planned and conducted 

testing to determine the conditions under which a smoldering cigarette might have

ignited the bedding material on appellant’s mattress, and how long that would take.

To do so, McCarthy conducted a literature review, developed a testing 

protocol with other engineers at the ATF Fire Research Lab, and had his peers there

 

likely to be incendiary — that is, intentional — fires because, quite logically, 

accidental fires do not ordinarily start simultaneously in multiple places”).

3

 SA Campanell gave similar testimony. He said he had ignited many beds, 

and that it was very difficult to do so with a cigarette (“an unreliable ignition source,” 

in his words). 
13

review his protocol and help him conduct the tests. In formulating his testing 

protocol for ignition of the bedding material, McCarthy relied on witness statements 

that appellant had some type of fleece blanket and a sheet on a Sealy Posturepedic 

mattress purchased in 2010, and that Kool cigarettes had been found in the basement.

McCarthy therefore conducted testing with Kool cigarettes on Sealy Posturepedic 

mattresses.

His procedure had two phases. In the first phase, because McCarthy did not 

know the exact composition of the bedding fabric, he tested three different types —

all cotton; all synthetic; and a 50/50 cotton and synthetic blend. McCarthy 

conducted twenty experiments, and within each experiment, he tested fifty samples, 

for a total of 1,000 tests of ignition via cigarette. In the first ten experiments, 

McCarthy used the same material but varied the physical configuration of the 

bedding on the mattress. In the next ten experiments he used forced air to observe 

the effect of variable airflow across the surface of the bedding. 

The results of the first phase of testing were as follows: (1) None of the 

synthetic materials transitioned into flames. (2) Only the 100% cotton material 

sustained smoldering. (3) The 100% cotton material was more likely to smolder

when it was in a crumpled configuration. (4) In the 1,000 tests conducted, only two 
14

samples of the 100% cotton bedding transitioned from smoldering fire to flaming 

fire. 

In the second phase of testing, McCarthy conducted 100 additional 

experiments with all cotton bedding. He tested the cotton bedding at different

thicknesses and in different configurations. His tests showed that: (1) a double 

sample (e.g., blanket plus sheet) was more likely to ignite than a single sample; (2) 

a crumpled configuration was more likely to ignite than a flat configuration; and (3) 

forced airflow increased the likelihood of ignition. 

In the 1100 tests conducted, the mattress ignited only twenty times. In those 

instances, it took between 3 and 28 minutes for flaming combustion to occur; the 

average time was 12 minutes. 

Based on his testing and the evidence, including appellant’s own statement 

that he watched the mattress burn, McCarthy opined that the cause of the fire was 

“either a cigarette dropped onto some cotton material” or an open flame. Either way,

McCarthy classified the fire as incendiary, “meaning an intentionally-set fire,” rather 

than accidental or undetermined. He reasoned that if the cause was a dropped 

cigarette, his tests showed there would have been ample time for someone aware of 

it to extinguish the fire before it grew out of control, so the failure to put out the fire 
15

in that case indicated it was no accident. Whereas, if the cause was an open flame 

like a match or lighter, that indicated someone held the flame to the mattress (or 

bedding) long enough to ignite it, indicating the fire was set deliberately. 

II. Legal Analysis

A. Admission of the Expert Testimony

In October 2016, in Motorola Inc. v. Murray,

4 this court abandoned the 

Dyas/Frye “general acceptance” test governing the admissibility of expert 

testimony.

5 In its stead, we adopted the reliability-based standards of admissibility

set forth in Federal Rule of Evidence 702, as interpreted in Daubert v. Merrell Dow 

Pharmaceuticals, Inc.6

Rule 702 imposes five distinct conditions on the admission of expert 

testimony. The trial judge must be satisfied that (1) the witness is qualified as an 

 4

 147 A.3d 751 (D.C. 2016) (en banc).

5

 See Dyas v. United States, 376 A.2d 827 (D.C. 1977); Frye v. United States, 

293 F. 1013 (D.C. Cir. 1923).

6

 509 U.S. 579 (1993).
16

expert; (2) the witness’s expertise “will help the trier of fact to understand the 

evidence or to determine a fact in issue”7

; (3) the witness’s testimony is “based on 

sufficient facts or data”8

; (4) “the testimony is the product of reliable principles and 

methods”9

; and (5) “the expert has reliably applied the principles and methods to the 

facts of the case.”10 The Rule thus elevates the trial judge’s role as gatekeeper; it 

essentially provides that “when a party proffers expert scientific testimony, the trial 

court must make ‘a preliminary assessment of whether the reasoning or methodology 

underlying the testimony is scientifically valid and of whether that reasoning or 

methodology properly can be applied to the facts in issue.’”11 The objective of this 

requirement “is to make certain that an expert . . . employs in the courtroom the same 

level of intellectual rigor that characterizes the practice of an expert in the relevant 

field.”12 The gatekeeping role is not intended “to displace the normal tools of the 

 7

 Fed. R. Evid. 702(a).

8

 Fed. R. Evid. 702(b).

9 Fed. R. Evid. 702(c).

10 Fed. R. Evid. 702(d).

11 Motorola, 147 A.3d at 754 (quoting Daubert, 509 U.S. at 592-93). The 

same general requirements apply to non-scientific expert testimony. Id. at 755 

(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) and Rule 702(a)).

12 Id. (quoting Kumho Tire, 526 U.S. at 152).
17

adversary system,” in which “[v]igorous cross-examination, presentation of contrary 

evidence, and careful instruction on the burden of proof are the traditional and 

appropriate means of attacking shaky but admissible evidence.”13 Both the 

preliminary reliability determination and the manner in which it is made are 

committed to the trial judge’s discretion, reviewable for abuse.14

At appellant’s first trial, which was held before our decision in Motorola, he

objected (unsuccessfully) to the admission of McCarthy’s testimony under the thenapplicable Dyas/Frye test.15 Prior to his second, post-Motorola trial, appellant 

moved for a pretrial evidentiary hearing (commonly called a “Daubert hearing”) to 

evaluate the reliability of the testing that McCarthy had performed. The judge

denied this request; after reviewing the transcript of McCarthy’s testimony at the 

first trial, he deemed an evidentiary hearing unnecessary and was satisfied the 

testimony would be admissible under Rule 702. Thereafter, at trial, appellant moved 

to strike McCarthy’s testimony for failure to meet the Rule’s reliability 

 13 Id. at 754 (quoting Daubert, 509 U.S. at 596).

14 Id. at 755 (citing Kumho Tire, 526 U.S. at 158). 

15 Appellant argued that McCarthy’s testimony would not aid the jury in 

determining the facts at issue, and that it would be more prejudicial than probative.
18

requirements. The judge denied this motion, concluding inter alia that appellant’s 

objections went to the weight of the evidence rather than its admissibility. 

Appellant now argues that the trial court abused its discretion in admitting 

McCarthy’s expert opinion testimony at his retrial. He identifies four overlapping 

respects in which, he contends, the court erred. First, appellant argues, the court 

erred in declining his request for a pretrial Daubert hearing. Second, appellant 

contends McCarthy’s experiments were not applied reliably to the facts of this case, 

as Rule 702(d) requires. Third, appellant further argues that McCarthy’s 

experiments were not relevant to whether the fire was intentionally set, and that even 

if relevant, their probative value was minimal and outweighed by the danger of 

unfair prejudice. Fourth, appellant asserts the court also erred by permitting 

McCarthy to opine on the ultimate issue of appellant’s intent. There is no question 

that appellant preserved the first two of these claims by raising them in timely 

fashion in the trial court in connection with his second trial. The parties disagree 

over whether appellant preserved the third claim, which reprises objections he 

lodged unsuccessfully at his first trial. However, the trial judge expressed his own 

understanding that appellant was objecting on relevance grounds and specifically 

cited Federal Rule of Evidence 403 (which requires the judge to weigh probative 

value against the danger of unfair prejudice). We therefore treat appellant’s third 
19

objection as preserved. Appellant raises his fourth objection to McCarthy’s 

testimony for the first time in this appeal, though, so he must establish plain error to 

prevail on it here.

Addressing each of appellant’s objections in turn, we conclude that the trial 

judge did not abuse his discretion in admitting McCarthy’s expert testimony.

1. The Trial Court Did Not Err by Declining to Hold a Pre-Trial Daubert

Hearing.

As we reiterated in Motorola, Rule 702 allows trial courts “broad latitude” 

and “considerable leeway” in deciding how to go about making the preliminary 

assessment of the reliability of proffered expert testimony.16 “[T]here is no 

particular procedure that the trial court is required to follow in executing its 

gatekeeping function under Daubert,”17 and the court has the discretion “to avoid 

unnecessary reliability proceedings.”18 Rule 702 and Daubert do not require a pretrial evidentiary hearing as long as the trial court has a sufficient evidentiary basis 

 16 Id. at 755 (quoting Kumho Tire, 526 U.S. at 141-42, 152). 

17 United States v. Diaz, 300 F.3d 66, 73-74 (1st Cir. 2002). 

18 Motorola, 147 A.3d at 758 (quoting Fed. R. Evid. 702 advisory 

committee’s notes to 2000 amendments and Kumho Tire, 526 U.S. at 152).
20

without it for its decision.

19 In Kumho Tire, for example, the Supreme Court upheld 

a reliability determination based on the trial court’s review of the proposed expert’s 

deposition testimony.20

Here, the trial judge reviewed the transcript of McCarthy’s expert testimony 

at appellant’s first trial to make the threshold reliability determination required by 

Rule 702. This was neither unreasonable nor unfair to appellant. In the first trial, 

McCarthy fully described his testing principles and methodology and their 

application to the evidence in this case, and appellant had and exercised the 

opportunity to challenge his expert opinion testimony by cross-examination and 

 19 See, e.g., United States v. Nichols, 169 F.3d 1255, 1262 (10th Cir. 1999) 

(holding the trial court did not abuse its discretion by declining to hold a pre-trial 

evidentiary Daubert hearing because the challenged testimony did not involve any 

new scientific theories); Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir.1998) 

(holding the trial judge “had a sufficient basis for her decision without holding a 

hearing” and further explaining that “[w]e have not required that the Daubert inquiry 

take any specific form and have, in fact, upheld a judge’s sua sponte consideration 

of the admissibility of expert testimony”); 4 WEINSTEIN’S FEDERAL

EVIDENCE § 702.02[2] (2d ed. 2000) (“The admissibility of expert testimony is 

often decided after a separate hearing. However, the trial judge is not required to 

hold a hearing on the admissibility of expert evidence.”).

20 526 U.S. at 142, 145-46, 152. See also Oddi v. Ford Motor Co., 234 F.3d 

136, 153-54 (3d Cir. 2000) (in limine hearing unnecessary where trial court could 

make preliminary reliability determination based on expert’s deposition testimony 

and reports, and where opponents of admission did not show the record was 

incomplete or that they had new or additional information to present).
21

argument. McCarthy’s testimony at the retrial did not materially diverge from his 

earlier testimony.21 The judge found it “clear” from the transcript that McCarthy 

reached his conclusions in this case by applying scientific principles of fire origin 

and causation (along with his own “vast” experience) in tests designed to cover the 

range of possible conditions under which the fire occurred.22 The judge also 

specifically considered factors identified in Daubert as potentially bearing on 

reliability of McCarthy’s methods and their applicability in this case.

23 Among other 

 21 At the first trial, McCarthy did not note the possibility that the fire had 

multiple points of origin in the basement. Although he did acknowledge that 

possibility at the second trial, he did not affirmatively opine that there were multiple 

points of origin, nor did he rely on that possibility in formulating and presenting his 

conclusions. We therefore do not view this as a material deviation from his previous 

testimony.

22 Cf. Aman, 748 F. Supp. 2d at 535-36 (“The general methodology NFPA 

921 recommends for investigating the cause of a fire is essentially the well-known 

‘scientific method’ of generating and testing hypotheses [citing Daubert, 509 U.S. 

at 593]. . . . Because the methodology described in NFPA 921 has been peer 

reviewed, is generally accepted in the field of fire investigation, and incorporates the 

classic scientific methodology . . . , the methodology is reliable within the meaning 

of Rule 702 . . . and Daubert.” (citing cases)).

23 See Daubert, 509 U.S. at 593-94; Motorola, 147 A.3d at 754. The judge 

found some of these factors, such as the known or potential error rate of the test 

procedure, to be inapplicable to McCarthy’s tests. We perceive no error in that 

finding. Cf. Aman, 748 F. Supp. 2d at 536 (“While a known error rate is also a factor 

to be considered in a Daubert analysis, a known error rate is not strictly required 

under Daubert. 509 U.S. at 593-94 (emphasizing that the Daubert factors are not a 

‘definitive checklist,’ and that ‘the inquiry envisioned by Rule 702 is . . . a flexible 

one’)”).
22

things, the judge noted that McCarthy employed “principles that are longstanding 

principles for use in the field” and invoked “a number of national studies . . . as a 

basis for some of the conclusions that he reache[d]”; that McCarthy evaluated 

alternative possible explanations for the fire; that McCarthy explained how and why 

the evidence supported his conclusions; and that McCarthy was not “extrapolating 

from a premise to an unfounded conclusion.” 

Because the trial judge was able to make a preliminary reliability 

determination based on the evidentiary record from appellant’s first trial, we 

conclude the judge did not abuse his discretion by denying appellant’s request for a 

pretrial Daubert hearing. Such a hearing was not necessary to comply with Rule 

702.

2. The Trial Court Did Not Err by Finding That McCarthy’s Experiments 

Were Reliably Applied to the Facts of This Case.

Rule 702(d) requires a determination that “the expert has reliably applied the 

principles and methods to the facts of the case.” Appellant asserts that the 

experiments McCarthy performed to determine the likelihood that a cigarette ignited 

the fire in the mattress, and how long it would have taken to do so, were not reliably 

applied to the facts of this case, because the test conditions were not substantially 

similar to the conditions in appellant’s basement at the time of the fire. Specifically, 
23

appellant emphasizes that witnesses could not specify, and therefore McCarthy did 

not know, the specific type and material of the bedding on appellant’s mattress, if 

any, on the morning of the fire.

The appropriateness of scientifically valid experiments to test hypotheses of 

fire causation is not in question. “Ordinarily, a key question to be answered in 

determining whether a theory or technique is scientific knowledge that will assist the 

trier of fact will be whether it can be (and has been) tested. ‘Scientific methodology 

today is based on generating hypotheses and testing them to see if they can be 

falsified; indeed, this methodology is what distinguishes science from other fields of 

human inquiry.’”24 Courts have excluded fire expert testimony because the experts 

failed to test their hypotheses as to the causes of fires.

25

 24 Daubert, 509 U.S. at 593 (citation omitted).

25 See, e.g., Atl. Specialty Ins. Co. v. Porter, Inc., No. CV 15-570, 2016 U.S. 

Dist. LEXIS 145415, at *17-*19 (E.D. La. Oct. 20, 2016), aff’d, 742 F. App’x 850 

(5th Cir. 2018) (expert testimony held inadmissible where the expert “never did any 

testing to confirm his hypothesis” as to cause of fire); Pride v. BIC Corp., 218 F.3d 

566, 578 (6th Cir. 2000) (“The failure of Pride’s experts to test their hypotheses in a 

timely and reliable manner or to validate their hypotheses by reference to generally 

accepted scientific principles as applied to the facts of this case renders their 

testimony on the cause and origin of the fire unreliable and therefore inadmissible 

under Daubert and Federal Rules of Evidence 702 and 104.”); Comer v. Am. Elec. 

Power, 63 F. Supp. 2d 927, 938 (N.D. Ind. 1999) (excluding electrical engineering 

expert’s testimony in fire case in part because the expert never did “any testing to 
24

For an experiment meant to demonstrate what actually happened to be reliably 

applied to the relevant facts, its conditions must be “substantially similar to those of 

the alleged occurrence.”26 This “does not require an identity of conditions but only 

that degree of similarity which will insure that the results of the experiment are 

probative.”27 We recognize that “[n]o event can be perfectly reenacted . . . and 

dissimilarities that are neither material nor misleading do not bar admission of 

experimental evidence.”28 Possible dissimilarities and uncertainties can be taken 

into account and “adjusted for or explained so that their effect on the results of 

experiments can be understood by the jury” and jurors can assess the probative value 

of those results.29 The initial evidentiary determination of whether experiments are 

substantially similar to the facts at issue “may not always be capable of a mechanical 

solution . . . . [and] [f]requently common sense provides a good guide to whether a 

 

determine how many volts it would actually take” to start the fire in the manner the 

expert hypothesized).

26 Butts v. United States, 822 A.2d 407, 414 (D.C. 2003) (quoting Taylor v. 

United States, 661 A.2d 636, 643 (D.C.1995)).

27 Id. at 414-15 (quoting Love v. State, 457 P.2d 622, 627 (Alaska 1969)).

28 Id. at 415 (quoting State v. Ritt, 599 N.W.2d 802, 812 (Minn. 1999)).

29 Id. (quoting Taylor, 661 A.2d at 644).
25

factor entering into an evidentiary determination is substantial or merely 

unimportant.”30

In Butts, for example, the defendant, impaired by alcohol, had driven at 

twenty-five miles per hour down a city street on “a dark and rainy night” and had 

struck and killed a pedestrian there.

31 At her trial for negligent homicide, a

prosecution expert in accident reconstruction testified about a visibility study he had 

performed. “The study was conducted at night, while it was raining, on a wet 

roadway, in the same model car as the one [the defendant] was driving, traveling at 

the same speed as [the defendant], with a mannequin dressed in dark clothing”

positioned at the site of the collision.32 By photographing the mannequin from the 

car at various distances, the expert concluded that an unimpaired driver could have 

detected the pedestrian from a distance of 300 feet and had ample time to react and 

avoid hitting him.33 The defendant argued that certain conditions of the study so 

differed from the conditions on the night of the accident that the study lacked 

 30 Id. (quoting Love, 457 P.2d at 628).

31 Id. at 412.

32 Id. at 415.

33 Id. at 414.
26

probative value. In particular, the study used a mannequin that had a lighter 

complexion than the pedestrian who was hit, it ignored the adverse effects on 

visibility of same-lane traffic and spray from other vehicles in the rain, and the street 

light above the point of impact was lit during the study but may not have been on 

the night in question.34 Nonetheless, this court held that the trial court did not abuse 

its discretion by admitting the expert’s testimony. “Common sense tells us,” the 

court explained, that “all substantial conditions from the night of the accident were 

adequately re-created during the visibility study, and that the dissimilarities . . . were 

slight in comparison.”35 “Moreover,” we said, “the dissimilarities [were] of the type 

that could easily be, and in fact were, explained to the jury for it to consider when 

assessing the weight of the evidence.”36

In this case, we reach the same conclusions. The exact conditions of the 

mattress and its possible bedding at the time of the fire could not be known with 

certainty. But there were limits to the area and range of uncertainty, because the 

witnesses were able to provide some relevant information. The make of the mattress 

 34 See id. at 412 n.3, 414, and 415 n.6.

35 Id. at 415.

36 Id.
27

itself was known — it was a Sealy Posturepedic purchased in 2010. Appellant’s 

bedding was described as a fleece blanket and a “basic” sheet. (We note that in one 

of his recorded conversations, appellant himself referred to the material that caught 

fire as “cotton.”) There was no evidence of any additional bedding or other 

flammable items on the mattress, or of any unusual conditions that might have had 

a bearing on how the fire erupted. The residual uncertainties mainly related to the 

particular composition of the blanket and sheet, how they were configured on the 

mattress at the time of the fire, and whether air currents in the basement affected the 

fire’s growth. McCarthy identified these uncertainties and accounted for them by 

performing over a thousand tests covering a range of possibilities. He designed those 

tests in light of the available evidence, his research in the fire investigation literature, 

and his consultation with his ATF peers. McCarthy tested sheets and fleece blankets 

composed of 100% cotton, 100% synthetic material, and a 50/50 cotton and synthetic 

blend. He arranged the bedding in different configurations and employed forced air 

to see how the variations affected the outcome of the experiments. 

By these means, we are satisfied the trial judge could find that McCarthy 

reliably applied his methodology to the facts of this case and ensured that his tests 

would be probative and not misleading to the jury. To the extent there remained 

possible dissimilarities between the test conditions and the conditions existing at the 
28

scene of the fire, they were fodder for cross-examination and the presentation of 

contrary expert testimony, but they were not substantial enough to bar admission of 

McCarthy’s testimony.37

3. McCarthy’s Experiments Were Relevant and Their Probative Value 

Was Not Substantially Outweighed by the Danger of Unfair Prejudice.

Appellant claims that McCarthy’s experiments were not relevant to prove a 

fact in issue, because appellant never denied that the mattress caught fire, only that 

he intentionally set it on fire. Alternatively, appellant asserts that the danger of 

unfair prejudice substantially outweighed whatever probative value the experiments 

had. Neither contention is persuasive.

 37 Cf. United States v. Santiago, 202 F. App’x 399, 401-02 & n.3 (11th Cir. 

2006) (upholding admission of arson investigator’s experiments to recreate the scene 

of a fire, which involved “attempts to use cigarettes in different positions and later 

an open flame to ignite cardboard, plastic wrap, bags, and tape,” where “the trial 

court appropriately determined that any differences in conditions between the 

warehouse and [the investigator’s] laboratory were negligible”); Royal Ins. Co. of 

Am. v. Joseph Daniel Const., Inc., 208 F. Supp. 2d 423, 427 (S.D.N.Y. 2002) 

(holding expert’s testimony on origin and cause of a fire to be reliable and 

admissible, where the expert analyzed the data and developed his hypothesis, “relied 

on deductive reasoning, a method recognized as ‘scientific,’ . . . identified all of the 

potential ignition scenarios,” and eliminated certain causes, including “careless 

disposal of cigarettes, . . . based on a reasonable analysis of the circumstances”).
29

“[T]he evaluation and weighing of evidence for relevance and potential 

prejudice is quintessentially a discretionary function of the trial court, and we owe a 

great degree of deference to its decision.”38 We perceive no abuse of that discretion 

here.

“Evidence is relevant if it has ‘any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.’”39 This relevance standard applies 

to expert testimony as much as to other evidence; it is inherent in the requirement of 

Rule 702(a) that expert testimony “help the trier of fact to understand the evidence 

or to determine a fact in issue.” The test for relevancy is not a stringent one. 

“Ordinarily, any evidence which is logically probative of some fact in issue is 

admissible and if the evidence offered conduces in any reasonable degree to establish 

the probability or improbability of a fact in controversy, it should go to the jury.”40

 38 Johnson v. United States, 683 A.2d 1087, 1095 (D.C. 1996) (en banc).

39 Plummer v. United States, 813 A.2d 182, 188 (D.C. 2002) (quoting Street 

v. United States, 602 A.2d 141, 143 (D.C. 1992)).

40 Id. at 188-89 (brackets omitted; quoting Dockery v. United States, 746 A.2d 

303, 306 (D.C. 2000)). 
30

McCarthy’s experiments were probative of a material and contested issue in 

this case. As he explained, the experiments showed that if a dropped cigarette caused 

the fire in appellant’s mattress, it likely would have taken long enough to ignite the 

bedding that anyone watching would have had ample time to extinguish the fire 

before it got out of control. (Alternatively, if the fire was set with a match or other 

flame, that implied someone deliberately held it to the flammable material of the 

bedding.) The experiments therefore provided evidence tending to establish that the 

fire was incendiary, i.e., intentionally maintained, a disputed fact material to whether 

appellant had the mens rea for both first-degree cruelty to children and murder.

41

The experiments unquestionably were relevant.

Nor has appellant shown that their probative value was substantially 

outweighed by the danger of unfair prejudice.42 In this context, “unfair prejudice”

 41 To prove first-degree cruelty to children, the government had to show that 

appellant intentionally, knowingly, or recklessly engaged in conduct that created a 

grave risk of bodily harm to a child. D.C. Code § 22-1101(a). The same mens rea 

is incorporated in the first-degree felony murder charge predicated on first-degree 

cruelty to children and in second-degree murder.

42 See Johnson, 683 A.2d at 1099 (adopting Federal Rule of Evidence 403 

and holding that relevant evidence may be excluded if its probative value is 

substantially outweighed by unfair prejudice). “The ‘substantially outweighs’ 

approach is apparently the product of the general federal policy promoting the 

admission of as much relevant evidence as reasonably possible.” Id.
31

means “an undue tendency to suggest decision on an improper basis, commonly, 

though not necessarily, an emotional one.”43 Appellant has made no showing of any 

likelihood of such prejudice from McCarthy’s testimony. In his brief on appeal, 

appellant argues that the jurors might have over-valued McCarthy’s opinion on “the 

central question before them” because they “were aware McCarthy had participated 

in the investigation of this case as an ATF agent and was privy to much information 

not disclosed to the jury (such as witness statements; appellant’s statement to police; 

thousands of photographs).”44 This is utter speculation. It lacks record support, and 

it is untethered to the issue of whether the trial judge should have excluded 

McCarthy’s specific testimony about the experiments he performed. We attach no 

weight to appellant’s imaginary scenario of prejudice.

 43 Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1999) (quoting Fed. 

R. Evid. 403 advisory committee’s note); see also Old Chief v. United States, 519 

U.S. 172, 180 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, 

speaks to the capacity of some concededly relevant evidence to lure the factfinder 

into declaring guilt on a ground different from proof specific to the offense 

charged.”).

44 Brief for Appellant at 34-35. 
32

4. The Trial Court Did Not Plainly Err by Allowing McCarthy to Opine on 

Whether Appellant Caused the Fire Intentionally.

Appellant claims, for the first time on appeal, that McCarthy should not have 

been allowed to opine on whether appellant “did or did not have the mental state or 

condition constituting an element of the crime charged or of a defense,”45 as such 

opinion testimony is specifically prohibited in federal criminal cases by Federal Rule 

of Evidence 704(b). Since appellant did not object at trial to McCarthy’s testimony 

on this ground, he must, to prevail, show “plain error” – meaning a clear or obvious 

error that affected appellant’s substantial rights and that, if left uncorrected, would 

permit a miscarriage of justice to stand or otherwise compromise the fairness, 

integrity, or public reputation of judicial proceedings.46 Appellant has not shown 

the trial judge clearly erred in allowing McCarthy to opine that the fire was 

incendiary in nature. 

This court has not adopted Federal Rule of Evidence 704(b). It “has noted 

multiple times that Rule 704(b) did not disrupt our ‘local law of evidence . . . which

 45 Id. at 31-32.

46 See, e.g., Williams v. United States, 210 A.3d 734, 738 & n.7 (D.C. 2019) 

(rejecting unpreserved challenge to erroneous admission of expert opinion testimony 

for failure to satisfy all the requirements of plain error). See generally Comford v. 

United States, 947 A.2d 1181, 1189-90 (D.C. 2008).
33

does not prohibit expert witnesses from stating opinions on ultimate facts or issues 

to be resolved by the jury.”47 Thus, “in conflict with Rule 704(b), D.C. [law] allows 

an expert in criminal cases to testify to a defendant’s ‘mental state or condition.’”48

Moreover, McCarthy did not express an opinion as to appellant’s mental state or 

condition. Rather, he testified only that his experiments, by showing how long it 

likely would have taken an accidentally dropped cigarette to ignite the mattress, 

supported a conclusion that the fire was incendiary, i.e., intentionally set by 

someone. He did not opine that appellant in particular intentionally set the fire. 

While “[a]n expert’s opinion that a specific defendant had the ‘intentions’ 

[constituting an element of the crime charged] might be thought a determination 

prohibited by Rule 704(b),” expert testimony that only addresses “the intentions of 

a hypothetical individual, not [the defendant] in particular” has been held not to run 

afoul of that Rule.49 Be that as it may, given that our local law allows expert 

 47 Jackson v. United States, 76 A.3d 920, 940 (D.C. 2013) (holding that expert 

may testify as to defendant’s mental state in an insanity case) (quoting Blaize v. 

United States, 21 A.3d 78, 84 n.8 (D.C. 2011); brackets omitted).

48 Hon. Steffen W. Graae, Brian T. Fitzpatrick, & Hon. Henry F. Greene, The 

Law of Evidence in the District of Columbia § 704.01[2] (6th ed. 2020).

49 United States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992). See also 

United States v. Mejia, 448 F.3d 436, 449 & n.9 (D.C. Cir. 2006) (Rule 704(b) not 

violated where expert witness only testified about “drug organizations in general” 

and “never offered an opinion regarding the mental state of the defendants”); United 

States v. Smart, 98 F.3d 1379, 1388 (D.C. Cir. 1996) (stating expert “testimony 
34

witnesses to state opinions on ultimate issues, including a defendant’s mental state, 

the trial judge did not plainly err by allowing McCarthy’s testimony in this case.

B. Appellant’s Request for a Civil Negligence Instruction

Appellant asserts the trial judge erred in denying his request for an instruction 

on civil negligence. In seeking the instruction, appellant’s counsel argued that 

negligence was “a key part of the defense” and there was a “very significant factual 

foundation” that the fire “was negligently set.” He clarified, however, that he did 

not want the negligence instruction to be included in the instruction on the 

defendant’s theory of the case, “because we’re not conceding that the defendant 

acted in any way whatsoever.” Rather, he explained, “negligence can mean a lot of 

different things to a lot of different people,” and “it’s best that [the jurors] get . . . 

their definition directly from the Court.” When the judge asked counsel if he was 

 

should not be excluded under Rule 704(b) as long as it is made clear . . . that the 

opinion is based on the expert’s knowledge of common criminal practices, and not 

on some special knowledge of the defendant’s mental processes”) (internal quotation 

marks and citation omitted)); United States v. Lundy, 809 F.2d 392, 394, 396 (7th 

Cir. 1987) (upholding admission of fire expert’s testimony under Federal Rule of 

Evidence 403, where expert “only testified that in his opinion fire was not 

accidental,” “included a detailed rationale for his opinion that the fire was 

purposefully set,” and “never testified that Lundy or anyone else in particular caused 

the fire”).
35

“committing . . . to argue” negligence, counsel responded, “No, definitely not.” The 

government opposed the request. The prosecutor argued that “negligence has no 

place in the instructions” because “[t]his is a criminal matter” and the offense 

instructions already cover the subject by requiring proof that the defendant acted 

intentionally or consciously disregarded an extreme risk. 

In declining to instruct the jury on civil negligence, the judge reasoned that 

the instruction would “create[] confusion,” “it would be difficult for the jurors to . . 

. separate out what the [offense] elements are and then look at a very different 

standard for negligence,” and the criminal “instructions adequately spell out the 

necessary mental state” for the charged offenses. 

We review a trial court’s decision on whether to give a requested jury 

instruction for abuse of discretion, viewing the instructions as a whole, and 

considering the record in the light most favorable to the requesting party.50 “When 

a defendant requests an instruction on a theory of the case that negates his guilt of 

the crime charged, and that instruction is supported by any evidence, however weak, 

 50 Washington v. United States, 111 A.3d 16, 23 (D.C. 2015) (holding that trial 

court did not abuse its discretion in declining to give missing evidence instruction).
36

an instruction stating the substance of the defendant’s theory must be given.”51 

However, “the instruction need not be framed in the exact language proposed by the 

defendant.”52 

The instruction that appellant specifically requested, Instruction 5-2 of the 

Standardized Civil Jury Instructions for the District of Columbia (2014 ed.), stated

that “[n]egligence is the failure to exercise ordinary care,” i.e. “to use the same 

caution, attention or skill that a reasonable person would use under similar 

circumstances.”53 Although appellant’s counsel strongly indicated he did not intend 

to make a negligence argument, we presume he wished to rely in some way on 

Instruction 5-2 to inform the jury it could not find appellant criminally liable unless 

it found him more than merely negligent, i.e., that the fire was not due to his mere 

failure to exercise ordinary care. We are not persuaded there was evidence at 

appellant’s trial supporting a “simple negligence” theory of the fire’s origin. But 

 51 Gray v. United States, 549 A.2d 347, 349 (D.C. 1988).

52 Id.

53 Instruction 5-2 went on to say, “It is negligent to do something that a person

using ordinary care would not do. It is also negligent to fail to do something that a 

person using ordinary care would do.” 
37

even if there was, an instruction on that theory would have been superfluous at best, 

if not, indeed, confusing and misleading. 

That is so for three reasons. First, the offense instructions given by the judge 

did not employ the term “negligence,” so appellant’s expressed concern that the jury 

needed to be instructed on its proper legal definition was unfounded. And the 

definition of negligence that appellant proposed, “failure to exercise ordinary care,” 

was, without more, too broad to be useful to the jury, as that definition encompasses 

failures that are reckless or intentional as well as failures we think of as merely 

careless. Second, negligence was not a defense to the charges in this case (nor did 

appellant claim he intended to argue negligence as the theory of his defense).54 

 54 As the Supreme Court of Indiana explained in a case holding that a 

defendant convicted of criminal recklessness in the discharge of a firearm was not 

entitled to an instruction on negligence,

Negligence, as used by Defendant here, is an argument, 

not a legal defense. Defendant’s legal defense was and is 

that he is not guilty of criminal recklessness because his 

actions did not meet the legal requirements of 

recklessness. The jury was properly instructed that the 

State was required to prove beyond a reasonable doubt that 

Defendant had acted “in plain, conscious and unjustified 

disregard of the harm that might result therefrom, and the 

disregard involved a substantial deviation from acceptable 

standards of conduct.” Defendant was free to and did 

argue that he did no more than fail “to exercise reasonable 

or ordinary care.” As the trial court accurately observed, 
38

Third, the judge made it crystal clear that the charges in this case all required proof 

of more than negligence. The charge of first-degree cruelty to children requires the 

prosecution to prove that the defendant intentionally, knowingly, or recklessly 

engaged in conduct creating a grave risk of bodily harm to a child and causing bodily 

harm.55 The same degree of culpability is required to prove both first-degree felony 

murder based on first-degree cruelty to children56 and the (lesser included) offense 

of second-degree murder.57 The trial judge accurately and explicitly instructed the 

jury it would need to find such heightened culpability to convict appellant of each 

 

Defendant’s negligence argument is simply a statement 

that State failed to prove that he was reckless. No 

additional instruction to the jury on this point was 

required.

Springer v. State, 798 N.E.2d 431, 435 (Ind. 2003).

55 See D.C. Code § 22-1101(a).

56 See Kitt v. United States, 904 A.2d 348, 355 (D.C. 2006) (“The only intent 

required to be guilty of [first-degree felony murder based on an enumerated felony] 

is the intent to commit the underlying felony.” (citing Lee v. United States, 699 A.2d 

373, 385 (D.C. 1997))). 

57 See Robinson v. United States, 928 A.2d 717, 728 (D.C. 2007) (Second 

degree murder requires proof that “(1) the defendant caused the death of the victim; 

(2) the defendant had the specific intent to kill or commit serious bodily injury on 

the victim, or acted with conscious disregard [of] an extreme risk of death or serious 

bodily injury to the decedent; and (3) there were no mitigating circumstances.” 

(citing Williams v. United States, 858 A.2d 984, 993 n.11 (D.C. 2004))).
39

offense. “Intentionally,” the judge elaborated, “means that [appellant] acted 

voluntarily and on purpose. Not by mistake or accident.”58 “Recklessly,” the judge 

instructed, “means that [appellant] was aware of and disregarded the grave risk of 

bodily harm his conduct created.”59 As the instructions manifestly required a finding 

of more than negligence, and did not even mention the term, we conclude the judge

did not abuse his discretion in declining appellant’s request for an instruction 

defining negligence. We see no reason to suppose the jury could have been confused 

on this point.60

 58 See, e.g., Jones v. United States, 813 A.2d 220, 225 (D.C. 2002) (explaining 

that the words “intentionally or knowingly. . . . refer[] to an act that ‘was deliberate 

or on purpose, not accidental.’” (quoting Campos v. United States, 617 A.2d 185, 

189 (D.C. 1992))).

59 See, e.g., Thompson v. United States, 690 A.2d 479, 482-83 (D.C. 1997)

(“Because the defendant’s state of mind must be wrongful, . . . we must not permit 

the adjective ‘reckless’ . . . to become a synonym for ‘negligent.’. . . A defendant is

therefore ‘reckless’ only if he intentionally does an act with a willful disregard of its 

potential consequences.” (cleaned up)).

60 We do not mean to say that a criminal defendant could never be entitled to 

an instruction explaining the difference between criminal recklessness and noncriminal negligence. For example, in Springer the Supreme Court of Indiana 

acknowledged that such an instruction may be required to guide the jury in cases 

involving “conduct that can be undertaken with due care” (e.g., driving a car) and a 

genuine issue as to whether the defendant’s failure to exercise due care was negligent 

or reckless. Springer, 798 N.E.2d at 436; see also New v. State, 135 N.E.3d 619, 

624 (Ind. Ct. App. 2019). But this is not such a case. 
40

C. Sufficiency of the Evidence

Appellant asserts the evidence in its entirety was insufficient to prove beyond 

a reasonable doubt that he intentionally, knowingly, or recklessly set the fire that 

killed S.M.J. However, viewing the evidence, as we must, in the light most favorable 

to sustaining the jury’s verdict,61 we disagree. We readily conclude there was more 

than sufficient evidence allowing the jury to find beyond a reasonable doubt that 

appellant intentionally set the fire to burn down his house and recklessly endangered 

the lives of all its other occupants. This evidence included: (1) the eyewitness and 

expert testimony establishing that the fire emanated from appellant’s room, 

originated on his mattress there, and was incendiary in origin; (2) the video and other 

evidence establishing that appellant (alone) was present in the basement and active 

in the early morning hours leading up to the fire; (3) the eyewitnesses’ accounts of 

appellant’s strange and unconcerned behavior after the fire erupted; (4) the half-used 

book of matches found in appellant’s pocket when he was arrested; and (5) 

 61 See, e.g., Dickerson v. United States, 650 A.2d 680, 683 (D.C. 1994).
41

appellant’s admission that he set the fire (“what I’m burning”) and was “literally 

watching what [he was] burning.”62

Appellant also argues that the evidence was insufficient to prove he knew he 

was creating an extreme risk of death or serious bodily injury to S.M.J. by setting 

the fire. This argument, too, is unavailing. Starting an uncontrolled fire in the 

middle of the night in a house where a young child is known to be sleeping, and 

doing nothing to alert anyone or protect that child, “constitutes at least reckless 

behavior creating a grave risk of bodily injury to the child.”63

D. Motion for a New Trial

Appellant asserts the trial judge erred in denying his motion for a new trial, in 

which he argued that the jury’s verdicts were inconsistent and there was insufficient 

evidence to support his convictions. We have already disposed of the latter ground. 

As to the former, appellant principally argues that by acquitting him of arson, the 

 62 In addition, the evidence that appellant was in financial difficulties and 

connived with a friend to submit an inflated insurance claim for the fire damage 

supplied a possible pecuniary motive for him to set the fire.

63 Phenis v. United States, 909 A.2d 138, 164 (D.C. 2006).
42

jury found he did not intentionally set his house on fire. In rejecting this argument, 

the trial court noted that “juries are permitted to return inconsistent verdicts.”64

A “trial court’s denial of a motion for new trial is reviewed for abuse of 

discretion. We will not reverse if the denial is reasonable and supported by the 

record.”65 A “new trial will be ordered in the interest of justice only when, after 

considering the evidence, the court can find that ‘exceptional circumstances’ 

prevented the defendant from receiving a fair trial.”66 Such exceptional 

circumstances are absent here, and we perceive no abuse of discretion or other error 

on the part of the trial judge in denying appellant’s motion. As we have said, the 

proof at trial amply supported the jury’s guilty verdicts, and it is well-settled that “a 

not guilty verdict to one count of an indictment that is inconsistent with a guilty 

verdict to another count cannot invalidate the guilty verdict so long as the guilty 

 64 Citing Hamling v. United States, 418 U.S. 87, 101 (1974).

65 Green v. United States, 164 A.3d 86, 90 (D.C. 2017).

66 Tyer v. United States, 912 A.2d 1150, 1167 (D.C. 2006) (quoting Huggins 

v. United States, 333 A.2d 385, 387 (D.C. 1975)).
43

verdict is based upon sufficient evidence.”67 The trial judge properly abided by that 

rule.68

III. Conclusion

 67 Ransom v. United States, 630 A.2d 170, 172 (D.C. 1993) (holding that 

acquittal for assault with a dangerous weapon did not invalidate conviction for 

possession of a firearm during a crime of violence predicated on the assault); see 

also, e.g., Smith v. United States, 684 A.2d 307, 312 (D.C. 1996) (acknowledging 

this court’s “settled jurisprudence upholding criminal convictions based on 

inconsistent verdicts as long as there was evidence to support the convictions”).

68 Appellant also argues that the felony murder and child cruelty statutes are 

inconsistent, because felony murder can be based on an “accidental” killing 

(occurring in the course of committing one of the predicate felonies), while cruelty 

to children cannot be based on purely accidental conduct. Appellant is confused; 

there is no inconsistency in finding a defendant guilty of felony murder for an 

accidental death that arises out of the defendant’s non-accidental commission of 

child cruelty.

Lastly, appellant argues that his conviction for second-degree murder cannot 

stand because, where that offense is charged only as a lesser included offense of 

felony murder, there must be proof (absent here) of “an intentional killing on 

impulse.” Fisher v. United States, 749 A.2d 710, 712 (D.C. 2000). That is a 

misreading of Fisher; while proof of such an intentional killing would suffice, the 

jury was permitted to convict appellant of second-degree murder as a lesser included 

offense of felony murder on finding the element of malice based on recklessness. 

See id. at 712-13.
44

For the foregoing reasons, we affirm appellant’s convictions. We remand for 

the trial court to vacate the second-degree murder and child-cruelty convictions, both 

of which merge into appellant’s conviction for first-degree felony murder.69

 69 See Byrd v. United States, 510 A.2d 1035, 1036-37 (D.C. 1986) (en banc); 

Page v. United States, 715 A.2d 890, 894 n.6 (D.C. 1998); Lee v. United States, 699 

A.2d 373, 382-83 (D.C. 1997).