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             DISTRICT OF COLUMBIA COURT OF APPEALS

                          No. 12-CF-825, 12-CF-1007


         CURTIS L. MCKNIGHT and ROBERT H. PUMPHREY, APPELLANTS,

                                       v.

                           UNITED STATES, APPELLEE.


                     Appeals from the Superior Court of the
                              District of Columbia
                       (CF1-25075-07, CF1-22254-08)

                     (Hon. William M. Jackson, Trial Judge)

(Argued May 20, 2014                                  Decided October 30, 2014)

      Craig N. Moore for appellant Curtis L. McKnight.

      Julian S. Greenspun for appellant Robert H. Pumphrey.

      Peter S. Smith, Assistant United States Attorney, with whom Ronald C.
Machen, Jr., United States Attorney, Elizabeth Trosman, Alessio D. Evangelista,
and Lara Worm, Assistant United States Attorneys, were on the brief, for
appellee.

      Before GLICKMAN and EASTERLY, Associate Judges, and PRYOR, Senior
Judge.
      Opinion for the court by Associate Judge EASTERLY.

      Opinion dissenting in part by Senior Judge PRYOR at page 18.
                                         2

      EASTERLY, Associate Judge: Curtis L. McKnight and Robert H. Pumphrey

were jointly tried in connection with the shooting death of Raynard Jennings. Mr.

McKnight, the gunman, was convicted of first-degree murder while armed,

possession of a firearm during the commission of a crime of violence (PFCV),

unlawful possession of a firearm by a convicted felon, and obstruction of justice. 1

Mr. Pumphrey, who had handed Mr. McKnight the gun used in the shooting, was

convicted of second-degree murder while armed under an aiding and abetting

theory, PFCV, and unlawful possession of a firearm by a convicted felon.2 Both

appellants now challenge their convictions on various grounds. We determine that

only one has merit: Mr. Pumphrey‟s insufficiency challenge to his conviction for

second-degree murder. Because there was insufficient evidence to support a jury‟s

determination beyond a reasonable doubt that Mr. Pumphrey possessed the

requisite malicious intent, we reverse Mr. Pumphrey‟s convictions for second-

degree murder and PFCV. We otherwise affirm.




      1
          D.C. Code §§ 22-2101, -4502, -4504 (b), -4503 (a)(2), -722 (a)(3) (2012
Repl.).
      2
          D.C. Code §§ 22-2103, -4502, -4504 (b), -4503 (a)(2) (2012 Repl.).
                                        3

                      I.    Facts and Procedural History



      The government‟s case against Mr. McKnight and Mr. Pumphrey rested on

the testimony of one eyewitness to the shooting, Shanicka Adams. Ms. Adams had

been in her bedroom watching television when, around two o‟clock in the morning,

she heard “arguing” outside. She went to the window and saw three men in the

street: Mr. McKnight and Mr. Pumphrey, whom she knew from the neighborhood,

and a man, later identified as Mr. Jennings, whom she did not know.3



      Ms. Adams testified that Mr. McKnight and Mr. Pumphrey were both

standing by Mr. Pumphrey‟s car. Mr. Jennings was sitting in a different car,

parked in front of Mr. Pumphrey‟s car. Mr. McKnight and Mr. Jennings were

arguing. Because Ms. Adams could not hear what the men were saying, she went

into her sister‟s room where the window was open. Looking out from her new

vantage point, she saw the two men, still arguing. She then observed Mr. Jennings

get out of his car and open his trunk. As Ms. Adams described it, he was “going

through everything,” and “throwing stuff out as if he was looking for something.”



      3
         Ms. Adams also saw Tasha White, another neighborhood acquaintance,
standing by her own vehicle, and another man sitting in Mr. Pumphrey‟s car.
                                          4

         Ms. Adams watched as Mr. McKnight followed Mr. Jennings to the trunk,

and then asked what Mr. Jennings was looking for. Mr. Pumphrey remained by his

car. As Mr. Jennings continued to rummage through his trunk, Ms. Adams heard

Mr. Pumphrey say: “[H]e‟s looking for something, he‟s looking for something.”

Mr. Pumphrey then walked to the passenger side of his car, reached through the

window, and retrieved a gun.4 Ms. Adams saw Mr. Pumphrey hand the gun to Mr.

McKnight and return to the driver‟s side of his car.



         According to Ms. Adams, when Mr. Jennings saw Mr. McKnight with a

gun, Mr. Jennings turned and began to run away. At that point, Mr. McKnight

started shooting. Ms. Adams testified that she saw Mr. McKnight fire three shots

and then she ducked down below the window. She testified that she heard a few

more shots and then returned to her bedroom; she did not look out the window

again.




         4
         Ms. Adams testified that she had seen Mr. McKnight and Mr. Pumphrey
with the gun before, and that she had seen Mr. McKnight carrying it in the
waistband of his pants the day before the shooting. But at trial Ms. Adams was
only able to give the most minimal description of the gun (“black,” “long handle”),
which was somewhat different from the description she had given the police. She
told the police that the gun was black and “small”; “[t]he handle was small and
shiny.”
                                         5

      Notwithstanding this testimony, and without any explanation of how she

could have seen subsequent events, Ms. Adams also testified that she saw what

happened after the shooting. She said she saw Mr. McKnight walk over to Mr.

Jennings‟s trunk and look inside, and she saw Mr. McKnight and Mr. Pumphrey

get into Mr. Pumphrey‟s car (Mr. Pumphrey as the driver) and leave the scene.5



      This was the entirety of Ms. Adams‟s testimony.           And although the

government called a number of witnesses to testify in its case in chief, none of

them provided any other direct evidence regarding Mr. McKnight and Mr.

Pumphrey‟s involvement in the shooting death of Mr. Jennings.



      At the conclusion of the trial, a jury found both men guilty of murder—Mr.

McKnight of first-degree murder while armed, and Mr. Pumphrey of the lesser

included charge of second-degree murder while armed, under an aiding and

abetting theory. This appeal followed.




      5
         Ms. Adams testified that she also saw Ms. White drive away in her car,
going in the same direction as Mr. McKnight and Mr. Pumphrey.
                                         6

                                  II.   Argument



      A. Mr. Pumphrey’s Appeal



      Mr. Pumphrey argues that the evidence at trial was insufficient to support his

conviction, under an aiding-and-abetting theory, for second-degree murder while

armed (and relatedly possession of a firearm during the commission of this crime

of violence). Specifically, Mr. Pumphrey contends that he lacked the requisite

intent for second-degree murder as required by Wilson–Bey v. United States, 903

A.2d 818, 822 (D.C. 2006) (holding that an aider and abettor must have the intent

required of the principal offender).



      When presented with a claim of insufficiency, we must review the evidence

“in the light most favorable to the government, giving full play to the right of the

jury to determine credibility, weigh the evidence, and draw justifiable inferences of

fact.” Coleman v. United States, 948 A.2d 534, 550 (D.C. 2008) (quoting Freeman

v. United States, 912 A.2d 1213, 1218 (D.C. 2006)). We may only reverse if we

determine that, based on the evidence presented by the government, no reasonable

juror could have fairly concluded that the defendant was guilty of the crime

charged beyond a reasonable doubt. Id. Applying this standard, we agree with Mr.
                                          7

Pumphrey that the government‟s evidence of his intent was inadequate, and thus

that his conviction for second-degree murder was, in this one respect, critically

unsupported.6



      Second-degree murder is statutorily defined as the “kill[ing] of another”

“with malice aforethought.” D.C. Code § 22-2103 (2012 Repl.). As this court

explained in Comber v. United States, 584 A.2d 26, 38 (D.C. 1990), “malice

aforethought has evolved into a term of art embodying several distinct mental

states”: (1) “the specific intent to kill,” (2) “the specific intent to inflict serious

bodily harm,” or (3) “a wanton and willful disregard of an unreasonable human

risk,” also known as “depraved heart malice.” Id. at 38-39 (internal quotation

marks omitted). With regard to the third manifestation of “malice aforethought,”

this court has said that, although proof of specific intent is not required, the bar is

nonetheless high for the government: “such depraved heart malice exists only

where the perpetrator was subjectively aware that his or her conduct created an

extreme risk of death or serious bodily injury, but engaged in that conduct


      6
          Because we determine that the evidence was insufficient to sustain his
conviction for second-degree murder and PFCV, we need not reach Mr.
Pumphrey‟s challenges to the trial court‟s severance ruling, the court‟s ruling
regarding the admission of evidence of threats by Ms. White to Ms. Adams, or the
court‟s jury instructions.
                                          8

nonetheless.” Id. at 39.



      It is the rare case where the defendant will clearly articulate his intent before

he acts, and intent must often be inferred. See Jones v. United States, 716 A.2d

160, 166 (D.C. 1998). Specific intent to kill or to inflict serious bodily harm may

be inferred from a defendant‟s actions. See, e.g., Graure v. United States, 18 A.3d

743, 759-60 (D.C. 2011) (finding sufficient evidence for inference that appellant

had a specific intent to kill where appellant poured gasoline on victim and ignited a

lighter); Castillo-Campos v. United States, 987 A.2d 476, 487 (D.C. 2010) (finding

sufficient evidence for inference that appellant had a specific intent to kill where

there was animosity between the appellant and the victim, and the accused shot at a

particularly vulnerable area of the body); Perez v. United States, 968 A.2d 39, 102

(D.C. 2009) (finding sufficient evidence of intent to inflict serious bodily harm

where appellant fought with his friend over a knife—which he eventually handed to

the friend who stabbed the deceased—because he wanted to do the stabbing

himself, or alternatively, from appellant‟s “joining in a group assault and viciously

kicking” the victim); Gray v. United States, 585 A.2d 164, 165 (D.C. 1991)

(finding sufficient evidence for inference that appellant had a specific intent to kill

where he fired three shots from a double-barreled shotgun through a screen door in

the direction of three children, twenty to thirty feet away); Fletcher v. United
                                          9

States, 335 A.2d 248, 250-51 n.5 (D.C. 1975) (finding sufficient evidence for

inference that appellant had a specific intent to kill where appellant fired at police

at close range before they drew their guns). Likewise, depraved heart malice can

be inferred from a defendant‟s conduct, for example, where a defendant:


             Fir[es] a bullet into a room occupied, as the defendant
             knows, by several people; start[s] a fire at the front door
             of an occupied dwelling; shoot[s] into . . . a moving
             automobile, necessarily occupied by human beings; [or]
             play[s] a game of “Russian roulette” with another person.


Comber, 584 A.2d at 39 n.13.



      In this case, however, the record contains neither direct evidence nor

adequate circumstantial evidence from which one could make reasonable

inferences, versus unsupported speculations, about Mr. Pumphrey‟s intent. Ms.

Adams, the sole eyewitness to the shooting presented by the government at trial,

testified only about a sliver of time during which she looked through her bedroom

window and saw Mr. McKnight and Mr. Jennings already engaged in an argument,

with Mr. Pumphrey standing nearby. She provided no evidence that Mr. Pumphrey

had any interest or involvement in this argument. She knew Mr. Pumphrey and

Mr. McKnight, but she did not or could not say whether either man had a prior

relationship with Mr. Jennings. She could not say what the argument between Mr.
                                        10

McKnight and Mr. Jennings was about; she could not hear much of what Mr.

McKnight and Mr. Jennings were saying. She provided no evidence that Mr.

Pumphrey had any reason to be present other than the fact that he was driving the

car in which Mr. McKnight was the passenger. Thus, Ms. Adams provided the

jury with no context for what she said she saw and heard next.



      Ms. Adams testified that she saw Mr. Jennings walk to the trunk of his car

and begin rifling through its contents. She testified that she heard Mr. Pumphrey

say, “he‟s looking for something, he‟s looking for something,” possibly indicating

that Mr. Pumphrey thought Mr. Jennings was seeking to arm himself. She stated

that she then saw Mr. Pumphrey retrieve a gun from the passenger-side of his car

and hand it to Mr. McKnight. She gave very little information about what Mr.

Pumphrey did or how he acted after he handed Mr. McKnight the gun, testifying

only that Mr. Pumphrey was walking back to the car when Mr. McKnight shot Mr.

Jennings. From these facts, it is reasonable to infer that Mr. Pumphrey wanted Mr.

McKnight to have the gun for protection in case Mr. Jennings was looking for a

weapon.   But it cannot reasonably be inferred with the requisite certainty to

support a finding of guilt beyond a reasonable doubt, that Mr. Pumphrey intended

for Mr. McKnight to shoot Mr. Jennings, or that he was subjectively aware that he
                                        11

was creating an extreme risk that Mr. McKnight would shoot Mr. Jennings without

the justification of self-defense.



      Finally, Ms. Adams gave no testimony about events after the shooting from

which one could determine that Mr. Pumphrey intended Mr. McKnight to shoot

Mr. Jennings or should have reasonably appreciated that there was an extreme risk

that Mr. McKnight would do so. She provided no testimony of any sort about Mr.

Pumphrey‟s demeanor after the shooting—e.g., that he was unafraid and

unsurprised, or even approving. She testified only that Mr. McKnight got into Mr.

Pumphrey‟s car and Mr. Pumphrey drove him away.



      Certainly one could speculate (as the government invited the jury to do at

trial) that Mr. McKnight and Mr. Pumphrey were part of some sort of gang or

crew, that this block of the District was their turf, that Mr. Jennings had crossed

some line or broken some rule, and that they purposefully shot him to enforce their

neighborhood control.7 But as defense counsel rightly argued to the jury, this


      7
         As a basis for this, the government argued in closing that the evidence
showed that Mr. McKnight and Mr. Pumphrey were “out there each and every day,
hanging out, playing basketball at all hours of the night at the elementary school,”
and that Mr. McKnight kept a gun hidden in various locations in the neighborhood.
The government further argued to the jury that Mr. Jennings had defied Mr.
McKnight and Mr. Pumphrey on the night of his death—that he had failed to “obey
                                                                      (continued…)
                                       12

theory was “made up out of thin air.” And the government does not press this line

of argument on appeal.     Instead the government cites to two cases where it

presented evidence at trial that the appellants had handed the gunman the gun and

this court upheld appellants‟ convictions for second-degree murder based on an

aiding and abetting theory: Coleman, 948 A.2d at 549-50, and Howard v. United

States, 656 A.2d 1106 (D.C. 1995). Beyond the hand-off of a gun, neither case has

analogous facts.



      In Coleman, the appellant discovered the shooting victims breaking into his

car. 948 A.2d at 539. He walked toward them carrying a gun, handed the gun to

the co-appellant shooter, and patted down the victims‟ pockets. Id. at 539-40. The

co-appellant then asked the appellant what he was “going to do about this here?”

Id. at 542. Appellant responded “fuck „em,” seemingly prompting his co-appellant

to shoot. Id. Unlike in Coleman, the government in this case presented no

backstory regarding Mr. McKnight and Mr. Pumphrey‟s encounter with Mr.



(…continued)
their command, whatever it is they told him to do”—and Mr. Jennings “pa[id] with
his life.” But “hanging out” and playing basketball, even at odd hours of the day,
coupled with the act of hiding a gun outside one‟s house does not create an
adequate foundation for an inference that Mr. McKnight and Mr. Pumphrey were
two fearsome men who held a city block captive and who were enforcing their
control over that block when Mr. McKnight shot Mr. Jennings.
                                        13

Jennings that might have explained his shooting as an act of purposeful retribution.

And unlike Coleman, there was no evidence that Mr. Pumphrey said anything to

encourage or, at a minimum, to indicate his reckless indifference to Mr.

McKnight‟s use of the gun.



      In Howard, the appellant, like Mr. Pumphrey, warned his companion that he

was in danger and handed his companion a gun; his companion then shot the

victim, and left the scene with appellant. 656 A.2d at 1110. But there the factual

similarity ends. The government in Howard presented much more contextual

information for the shooting from which intent could be inferred. Critically, the

shooter had already shot at the victim twice with a different gun before the

appellant handed the shooter a second gun. Id. In other words, unlike in this case,

whether or how the shooter would use the gun was no longer in question. In

addition, the government in Howard presented evidence that prior to the shooting,

appellant had known of, and formed an intent to participate in, a plan to kill the

victim. The government established that appellant knew the shooter had “beef”

with the victim and his friends, had “helped him dig up the weapons,” and then

accompanied him to the scene of the shooting. Id. at 1110.



      Unlike in Coleman and Howard, the government did not present sufficient
                                         14

evidence from which a reasonable juror could infer that Mr. Pumphrey acted with

the requisite malice aforethought. Consequently, Mr. Pumphrey‟s convictions for

second-degree murder and related PFCV cannot stand.



      B.       Mr. McKnight



      On appeal, Mr. McKnight argues that (1) the trial court abused its discretion8

by allowing witness Shanicka Adams to testify about having been threatened (by

someone other than Mr. McKnight or Mr. Pumphrey) in connection with her

testimony in the case, and (2) plainly erred9 by allowing the government to engage

in improper closing argument, notwithstanding defense counsel‟s failure to object.

We find these claims to be without merit, and accordingly affirm Mr. McKnight‟s

convictions.



      We begin with Mr. McKnight‟s challenge to the trial court‟s admission of

Ms. Adams‟ testimony that she was “scared” and that she had been threatened.

The trial court allowed the government to present this evidence to explain why Ms.

      8
        Ebron v. United States, 838 A.2d 1140, 1148 (D.C. 2003) (“Evaluating
and weighing evidence for relevance is within the trial court‟s discretion.”).
      9
          Harrison v. United States, 60 A.3d 1155, 1169 (D.C. 2012).
                                        15

Adams had not told her mother about being an eyewitness to the shooting until

“today,” the day of her trial testimony. (Curiously, Ms. Adams had said much the

same thing when she testified before the grand jury years earlier, explaining that

she had not told her mother until “just this morning” that she “was in the window

when it happened.”) Mr. McKnight argues that the evidence about the threat to

Ms. Adams and her consequent fear was more prejudicial than probative and was

improperly admitted under Mercer v. United States, 724 A.2d 1176 (D.C. 1999).10



      Whether or not the trial court‟s admission of this evidence was proper, we

see no possibility of prejudice under the particular circumstances of this case. To

begin with, this testimony was brief, and it was accompanied by a limiting

instruction directing the jury that there was no connection between Mr. McKnight

(or Mr. Pumphrey) and the alleged threat to Ms. Adams the week before trial. But

more importantly, the government had separately charged Mr. McKnight with

obstruction of justice, and in its effort to prove his guilt of that crime, had

presented other far more powerful evidence that Mr. McKnight had schemed to


      10
            In Mercer we explained that evidence of witness intimidation has
“potential for great prejudice” to the defendant and should only be admitted “to
explain specific behavior of the witness, such as inconsistent statements, delay in
testifying, or unusual courtroom demeanor.” 724 A.2d at 1184; see Ebron, 838
A.2d at 1148.
                                        16

threaten and forcibly prevent Ms. Adams from testifying at trial. Specifically, the

government entered into evidence the audio of several phone calls made by Mr.

McKnight to his sister and father while he was in pretrial detention. In one call,

for example, Mr. McKnight urges his father to “use a knife” on a woman

reasonably understood to be Ms. Adams. Against this evidentiary backdrop, the

prejudice from any improperly admitted evidence regarding threats to Ms. Adams

a week before trial by someone unconnected to Mr. McKnight was at most de

minimis.



      Mr. McKnight also challenged the trial court‟s failure to take corrective

action in response to the government‟s improper closing argument, in which the

prosecutor alleged that Mr. McKnight and Mr. Pumphrey controlled the

neighborhood block and commanded that the community “obey” them. In so

doing, Mr. McKnight claims that the prosecutor argued facts not in evidence and

distorted inferences to be drawn from those facts that were. We agree that the

prosecutor‟s argument was only tenuously connected to the evidence presented at

trial. See supra note 7. But as Mr. McKnight concedes, because trial counsel did

not object, our review of the government‟s argument is limited to plain error. See

Daniels v. United States, 2 A.3d 250, 263 (D.C. 2010).
                                           17

        To establish plain error, an appellant must show: (1) error, (2) that is plain,

(3) that affects his substantial rights, and (4) that compromises the fairness,

integrity, or public reputation of the judicial proceeding. See Lowery v. United

States, 3 A.3d 1169, 1173 (D.C. 2010). Mr. McKnight falters on the third prong of

our plain error test; he “cannot demonstrate that these comments . . . seriously

affected his substantial rights.” Daniels, 2 A.3d at 263. Based on the testimony of

Ms. Adams, the officers who responded to the scene, and the medical examiner,

the government presented uncontested evidence that Mr. McKnight shot Mr.

Jennings, who was unarmed, multiple times in the back as he was trying to run

away.        That evidence amply established his guilt of first-degree premeditated

murder while armed.11



                                   III.   Conclusion



        For the reasons set forth above we reverse Mr. Pumphrey‟s convictions for

second-degree murder while armed and PFCV.              We affirm Mr. Pumphrey‟s
        11
          This court has determined that premeditation requires a showing that
“before acting, [defendant] „gave thought to the idea of taking a human life and
reached a definite decision to kill.‟” Harris v. United States, 668 A.2d 839, 841-42
(D.C. 1995) (quoting McAdoo v. United States, 515 A.2d 412, 427 (D.C. 1986)).
Premeditation “may be inferred from the surrounding facts and circumstances, and
may occur in a period „as brief as a few seconds.‟” Id. at 842 (quoting Ruffin v.
United States, 642 A.2d 1288, 1291 (D.C. 1994)).
                                       18

remaining gun charge. We also affirm Mr. McKnight‟s convictions for first-degree

murder while armed, PFCV, unlawful possession of a firearm by a convicted felon,

and obstruction of justice.




                                                  So ordered.




      PRYOR, Senior Judge, dissenting in part: The question on appeal in this case

is whether there was sufficient evidence of appellant Pumphrey‟s homicidal state

of mind (as an aider and abettor) to warrant submission of a murder charge against

him to the jury.



      At about two o‟clock a.m. in the morning, in a residential neighborhood,

appellant McKnight was arguing with the decedent, who was seated inside of a car.

McKnight was standing outside of the car. As the argument ensued, the decedent

exited the car, opened the rear trunk and began a search which included throwing

items on the ground. McKnight and decedent were then standing next to each

other. Pumphrey was standing nearby outside of a second car watching the two

men. A woman was also standing next to a third car observing the situation.
                                         19

Pumphrey warned McKnight that decedent was looking for something. He then

obtained a loaded gun from his car and handed it to McKnight. As soon as

decedent saw the gun, he started to run away. McKnight fired multiple shots and

decedent‟s body was later found on the ground where he was killed. Pumphrey

and McKnight left the scene immediately in Pumphrey‟s car. The woman also left

in her car. Arriving police officers noticed both cars leaving as they responded to

the scene. A neighbor, who observed a part of this encounter, testified that she had

seen appellants together with a gun on an earlier occasion.



      In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court stated the

guiding concept which this court and others have consistently applied.

Recognizing that the jury has heard the evidence, and observed the demeanor of

the witnesses, the reviewing court should evaluate the evidence in the light most

favorable to prosecution and determine whether a rational juror could find proof of

the elements of the offense beyond a reasonable doubt. Stated conversely, the

proof is insufficient if no rational juror could find proof of the offense beyond a

reasonable doubt. In my opinion there is a tension in the test between “taking the

evidence in the light most favorable to the prosecution” and concluding “there is

proof beyond a reasonable doubt.”       By design, I think, the sufficiency test,

contemplates that the jury will consider, deliberate and reach a verdict which
                                         20

travels the space between the government‟s best case and the standard of proof to

convict. The court, as a gate keeper, need not render a verdict but rather should

exclude from the jury, as a matter of law, those cases where conviction would be

irrational and without evidence to satisfy the standard of proof.



      In this case the jury heard the evidence and listened to the argument of

counsel about the intent of Pumphrey. They were instructed by the trial judge

consistent with our standard instructions. Indeed in deciding the case, the jury was

free to apply the customary instruction to evaluate intent by evidence of the

surrounding circumstances.1 In this regard the jury was free to draw reasonable

inferences from the total evidence. Although there was no direct evidence of

      1
          “Proof of state of mind: Someone‟s [intent] [knowledge] [insert other
appropriate state of mind] ordinarily cannot be proved directly, because there is no
way of knowing what a person is actually thinking, but you may infer the
someone‟s [intent] [knowledge] [other appropriate state of mind] from the
surrounding circumstances. You may consider any statement made or acts [done]
[omitted] by [name of the defendant], and all other facts and circumstances
received in evidence which indicate his/her [intent] [knowledge] [other appropriate
state of mind].
       [You may infer, but are not required to infer, that a person intends the
natural and probable consequences of acts s/he intentionally did or did not do.] It
is entirely up to you, however, to decide what facts to find from the evidence
received during this trial. You should consider all the circumstances in evidence
that you think are relevant in determining whether the government has proved
beyond a reasonable doubt that [name of the defendant] acted with the necessary
state of mind.” Standardized Criminal Jury Instructions for the District of
Columbia, No. 3.101 (5th ed. rev. 2013).
                                          21

Pumphrey‟s mens rea, there were circumstances which the jury could properly

consider. They could consider that Pumphrey handed a loaded gun to McKnight in

the course of a heated argument. They could also consider that the appellants

immediately left the scene together.       Lastly, only the jury could decide the

accuracy of the testimony of the neighbor-witness and what inferences, if any, to

draw from her testimony.



      On balance, I am not persuaded that the verdict was the result of speculation

or without evidence to support it. I, therefore, vote to affirm all of the convictions.
