                                  District of Columbia
                                   Court of Appeals
No. 11-CT-1619

KRISHNA PATRICK MUIR,                                                    JAN 14 2016
                                         Appellant,

         v.

                                                              CTF-4447-09
DISTRICT OF COLUMBIA,
                                         Appellee.


                On Appeal from the Superior Court of the District of Columbia
                                     Criminal Division

         BEFORE:   Glickman and McLeese, Associate Judges; and Newman, Senior
Judge.

                                       JUDGMENT

        This case came to be heard on the transcripts of record, the briefs filed, and was
argued by counsel. On consideration whereof, and for the reasons set forth in the opinion
filed this date, it is now hereby

       ORDERED and ADJUDGED that appellant‘s conviction for operating a vehicle
while impaired (―OWI‖) is reversed, and the matter is remanded for further proceedings
not inconsistent with this opinion.
       .

                                         For the Court:




Dated: January 14, 2016.

Opinion by Associate Judge Stephen H. Glickman.

Concurring opinion by Senior Judge Theodore R. Newman.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 11-CT-1619                         1/14/16

                      KRISHNA PATRICK MUIR, APPELLANT,

                                        V.

                       DISTRICT OF COLUMBIA, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CTF-4447-09)

                     (Hon. Anthony C. Epstein, Trial Judge)

(Submitted: June 25, 2015                          Decided: January 14, 2016)

      Daniel K. Dorsey was on the brief for appellant.

       Irvin B. Nathan, Attorney General for the District of Columbia at the time
the brief was filed, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy
Solicitor General, and Janice Y. Sheppard, Assistant Attorney General, were on the
brief for appellee.

      Before GLICKMAN and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.

      Opinion for the court by Associate Judge GLICKMAN.

      Concurring Opinion by Senior Judge NEWMAN at page 29.
                                           2

      GLICKMAN, Associate Judge: Appellant Krishna Patrick Muir went to trial

in 2011 on charges of driving under the influence (―DUI‖) and operating a vehicle

while impaired (―OWI‖). The trial judge instructed the jury that it could convict

Muir of OWI if it found his consumption of alcohol had impaired his ability to

operate a motor vehicle ―in any way,‖ while it would have to find ―an appreciable

degree‖ of impairment to convict appellant of DUI. Muir did not object to this

instruction. The jury proceeded to find him guilty of OWI and acquit him of DUI.

Following this verdict, the judge concluded that OWI actually requires the same

―appreciable degree‖ of impairment as DUI requires. Nonetheless, concluding that

the law on this point was unsettled and that the instructional error was neither plain

nor prejudicial, the judge declined to set the verdict aside.



      Subsequently, this court clarified in Taylor v. District of Columbia that the

alcohol-impairment threshold is the same for OWI and DUI, and that both offenses

require proof of an ―appreciable degree‖ of impairment.1 Relying on our decision

in Taylor, Muir asks us to reverse his OWI conviction on the ground that the

instruction given at his trial unconstitutionally allowed the jury to convict him

without finding the requisite degree of impairment.

      1
         49 A.3d 1259, 1267 (D.C. 2012). On motion of the District, this court
held the appeal in this case in abeyance pending its decision in Taylor. The stay
was lifted on August 25, 2014.
                                          3

      Having forfeited this claim by failing to object to the instruction at trial,

appellant must show plain error in order to obtain relief. Prior to the Supreme

Court‘s decision in Henderson v. United States,2 the unsettled state of the law at

the time of trial might have prevented appellant from showing the necessary

―plainness‖ of the instructional error within the meaning of the plain error doctrine.

But after Henderson, an error need only be clear as of the time of appellate review

to satisfy the plainness requirement, regardless of the state of the law at the time of

trial. And because we conclude there exists a reasonable probability that the now-

clear error did affect appellant‘s substantial rights and resulted in his conviction of

OWI despite the jury‘s determination that the government failed to prove an

essential element of that offense, we reverse his conviction and remand for further

proceedings.



                                I. Factual Background



      The main contested issue at appellant‘s trial was whether he was impaired

by his consumption of alcohol when his car was stopped and he was arrested on the

evening of Saturday, February 7, 2009. Metropolitan Police Department Officer



      2
          133 S. Ct. 1121 (2013).
                                          4

Henry Gallagher testified that he was on patrol in a police cruiser shortly after 9:00

p.m. that evening when he observed appellant driving down Emerson Street N.W.

toward Georgia Avenue.       Officer Gallagher saw appellant proceed through the

crosswalk and continue across Georgia Avenue without slowing or stopping and

then make ―rolling stops‖ (slowing but not actually stopping) as he went through

subsequent intersections.     Officer Gallagher activated his lights and siren.

Appellant sped up and drove for another block before coming to a stop and parking

in the 1500 block of Emerson Street.



      According to Officer Gallagher, appellant got out of the car and nearly fell

down before he grabbed the driver‘s door to steady himself. Officer Gallagher told

appellant to get back inside his car and appellant complied. When the officer

requested appellant‘s driver‘s license and registration, he smelled alcohol coming

from inside the car and on appellant‘s breath. Officer Gallagher noticed that

appellant‘s eyes were half open and saw a Styrofoam cup on the floor behind the

front passenger seat containing what smelled like an alcoholic beverage.3 Officer

Gallagher asked appellant how much he had had to drink, and appellant said ―one



      3
      Prior to the start of trial, the District dismissed a charge of Possession of an
Open Container of Alcohol in violation of D.C. Code § 25-1001 (2012 Repl.).
                                              5

shot.‖ Appellant attributed the odor of alcohol emanating from his vehicle to a

friend‘s having spilled beer on the car‘s door.



      Officer Gallagher asked appellant to step out to perform the standard field

sobriety test protocol, which consisted of a horizontal gaze nystagmus (―HGN‖)

test, a walk-and-turn test, and a one-leg-stand test.4 Appellant complied, though he

mentioned having a hip injury. During the HGN test, Officer Gallagher testified,

appellant‘s eye movements exhibited four out of a possible six clues indicating


      4
        In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court
described these tests as follows:

             The ―horizontal gaze nystagmus‖ test measures the extent
             to which a person‘s eyes jerk as they follow an object
             moving from one side of the person‘s field of vision to
             the other. The test is premised on the understanding that,
             whereas everyone‘s eyes exhibit some jerking while
             turning to the side, when the subject is intoxicated ―the
             onset of the jerking occurs after fewer degrees of turning,
             and the jerking at more extreme angles becomes more
             distinct.‖ The ―walk and turn‖ test requires the subject to
             walk heel to toe along a straight line for nine paces,
             pivot, and then walk back heel to toe along the line for
             another nine paces. The subject is required to count each
             pace aloud from one to nine. The ―one leg stand‖ test
             requires the subject to stand on one leg with the other leg
             extended in the air for 30 seconds, while counting aloud
             from one to thirty.

Id. at 585 n.1 (internal citation omitted).
                                          6

impairment. Appellant also had some difficulties with the walk-and-turn test, such

as missing a few of the heel-to-toe steps. According to Officer Gallagher, the clues

he observed during these two tests indicated an 80% probability that appellant‘s

blood alcohol content was ―above .10‖ (grams per 100 milliliters of blood,

implying legal intoxication).     Officer Gallagher did not observe any clues

suggesting impairment during appellant‘s performance of the one-leg-stand test.

However, the officer did notice that appellant was unsteady on his feet and that his

speech was slurred.



      The government also called Officer Sean Hill as a witness. Officer Hill was

at the scene when Officer Gallagher conducted the stop and saw appellant hold

onto the car door for support when he got out of the vehicle. He corroborated

Officer Gallagher‘s testimony and added that later, at the police station, he

observed that appellant‘s eyes were bloodshot, that there was a moderate odor of

alcohol on his breath, and that he swayed from side to side a bit.



      Based on their training, experience, and observations, both officers were of

the opinion that appellant was under the influence of alcohol.



      In his defense, appellant testified that on the night he was stopped, he was

driving to the home of his fiancée‘s family in the 1500 block of Emerson Street
                                         7

after having been at a wedding reception. He said he did not notice the police

cruiser or hear its siren before he parked his car, and he denied having difficulty

standing up when he got out. Appellant acknowledged having had an alcoholic

drink at the wedding reception some hours before the stop. He claimed it had no

effect on him and denied being impaired in his ability to drive. Appellant said his

eyes might have been red because he suffered from allergies. He confirmed that a

friend spilled a drink on his car door at the wedding while reaching into the car for

cigarettes. He said he had not seen the Styrofoam cup in the back of his car before

the police retrieved it and did not know what the cup contained.



      Appellant‘s fiancée and her father also testified, saying they witnessed

appellant‘s encounter with the police from across the street. They said appellant

got out of his car without any difficulty and acted normally when he was asked to

perform the field sobriety tests. They testified that he did not sway or wobble and

that he walked in a straight line when he performed the walk-and-turn test.



      Before the start of trial, the judge informed the parties of his tentative view

that the same standard of ―impairment to an appreciable degree‖ applies to both

DUI and OWI, and that the government therefore should elect which of the two

essentially equivalent charges it wished to proceed on. The government agreed
                                         8

that an ―appreciable degree‖ of impairment in the ability to operate a motor vehicle

must be shown for a DUI conviction, but it argued that both charges should be

submitted to the jury because a defendant can be found guilty of OWI if he was

impaired ―in any way.‖ Appellant did not object to this request, and the judge,

recognizing the uncertainty in the law, acquiesced in it.       Accordingly, at the

conclusion of the trial, the jury was asked to consider both counts on the

understanding that DUI and OWI are separate offenses differing only in the level

of impairment that must be shown to establish them. Borrowing from a model

instruction in the then-current edition of the ―Redbook,‖5 the judge instructed the

jury as follows (emphasis added):


            The defendant is charged with two offenses; driving
            under the influence of alcohol and operating while
            impaired by alcohol. They are two separate offenses, but
            they are related.

            Each of these charges has two elements and the
            Government must prove each element beyond a
            reasonable doubt. The first element of each charge is the
            same; that the defendant operated a motor vehicle in the
            District of Columbia.

            For the charge of driving under the influence, the second
            element is that . . . at the time the defendant operated the
            vehicle he was under the influence of alcohol. One is

      5
        Criminal Jury Instructions for the District of Columbia, No. 6.400 (5th ed.
rev. 2009).
                            9

under the influence of alcohol when one‘s ability to
operate a vehicle is impaired to an appreciable degree by
the consumption of alcohol. In other words, alcohol
disturbed or interfered with the defendant‘s normal
mental or physical faculties to an appreciable degree.

For the charge of operating while impaired, the second
element is that the defendant‘s consumption of alcohol
impaired in any way his ability to operate a vehicle.

For both charges, the Government does not have to prove
that the defendant was intoxicated or drunk while
operating the vehicle as those terms are commonly
understood.

In deciding whether the defendant was driving under the
influence or operating while impaired, you may consider
any fact or circumstance you consider relevant.

Evidence that the defendant recently consumed alcoholic
beverages is relevant to each charge, but does not in and
of itself prove that he was under the influence of or
driving while impaired by alcohol.

Evidence that the defendant‘s actual driving was
impaired is also relevant to each charge, but the
Government is not required to prove for either charge
that his driving was impaired. You may also consider the
results of field sobriety tests, the defendant‘s actions or
speech and any odor of alcohol.

For both charges, the question to be resolved from all the
evidence is whether the District of Columbia has proved
beyond a reasonable doubt whether the defendant‘s
consumption of alcohol impaired his ability to operate a
vehicle in the same way a reasonably careful and prudent
driv[er] not under the influence of alcohol would operate
it in similar circumstances.
                                           10

Appellant did not object to this instruction.6



      In the government‘s closing argument, the prosecutor emphasized the ―two

different standards‖ of impairment for DUI and OWI thusly (emphasis added):


             The Government is asking at the end of this case that you
             all do find the defendant guilty of driving under the
             influence to an appreciable degree and also operating
             while impaired to any degree.

             The Government doesn‘t have to show the defendant is
             falling down drunk. The [Government] has to show that
             this defendant was impaired to two different standards.


      In due course, the jury returned its verdict of guilty on the OWI count and

not guilty on the DUI count.         After taking the verdict, the judge sua sponte

requested the parties to brief the question of whether the two offenses are the same

and whether the ―appreciable degree‖ standard applies to both of them. Appellant

did not respond to this request. The government filed a brief arguing that the court

had instructed the jury correctly.



      On October 3, 2011, the trial judge issued an order allowing the jury‘s

verdict to stand. The judge concluded that DUI and OWI require proof of the same

      6
        Earlier, when the judge initially discussed the proposed instruction with
counsel, appellant‘s attorney said he would ―defer to the Court.‖
                                         11

level of impairment, namely that the defendant‘s ability to drive was impaired ―to

an appreciable degree‖ by his consumption of alcohol.         Moreover, the judge

recognized, ―use of the ‗in any way‘ standard [for OWI] in juxtaposition with the

‗appreciable degree‘ standard for DUI arguably could create a risk of an illegal

conviction for OWI because instructing the jury that DUI requires proof an

‗appreciable‘ degree of impairment and that OWI requires proof of impairment ‗in

any way‘ could imply (incorrectly) that proof of a non-appreciable degree of

impairment is sufficient for a conviction for OWI.‖ Nonetheless, the judge ruled,

appellant was not entitled to have his OWI conviction set aside, because he did not

object to the instruction on the elements of OWI and the mistaken ―impaired in any

way‖ instruction did not amount to plain error. The judge reasoned that the error

was not ―plain‖ given both the Redbook instruction employing the ―impaired in

any way‖ terminology for OWI and the lack of appellate guidance on the issue.7 In

addition, the judge reasoned, the error did not clearly prejudice appellant‘s

substantial rights, because the government‘s case was ―reasonably strong,‖ and the

last paragraph of the instruction effectively required the jury to find that


      7
        In Anand v. District of Columbia, 801 A.2d 951 (2002), this court declined
to resolve the question ―of whether there is in fact no inherent distinction between
the terms driving ‗while impaired‘ in one statutory provision and driving while
‗under the influence‘ in the other.‖ Id. at 955; see also Taylor, 49 A.3d at 1264 n.8
(―[N]either in Anand nor in any other case did we reach the issue[.]‖).
                                         12

appellant‘s ability to drive was impaired ―to a degree more than de minimis‖ in

order to convict him of either DUI or OWI.



                                II. Legal Background



      The OWI statute in effect at the time of appellant‘s arrest prohibited

operating or being in physical control of a vehicle ―while the person‘s ability to

operate a vehicle is impaired by the consumption of intoxicating liquor.‖8 The DUI

statute prohibited operating or being in physical control of a vehicle ―while under

the influence of intoxicating liquor or any drug or any combination thereof.‖9 A


      8
        D.C. Code § 50-2201.05 (b)(2) (2009 Repl.). As amended and renumbered
in 2013, the OWI statute now provides that ―[n]o person shall operate or be in
physical control of any vehicle in the District while the person‘s ability to operate
or be in physical control of a vehicle is impaired by the consumption of alcohol or
any drug or any combination thereof.‖ D.C. Code § 50-2206.14 (2014 Repl.).
      9
         D.C. Code § 50-2201.05 (b)(1)(A)(i)(II) (2009 Repl.). The current version
of the statute provides that ―[n]o person shall operate or be in physical control of
any vehicle in the District: (1) While the person is intoxicated; or (2) While the
person is under the influence of alcohol or any drug or any combination thereof.‖
D.C. Code § 50-2206.11 (2014 Repl.). The District prosecuted appellant under
subparagraph (2). A prosecution under subparagraph (1) requires proof of a
statutorily-specified alcohol concentration level, currently .08 grams or more per
100 milliliters of blood or corresponding concentrations in the breath or urine. See
D.C. Code § 50-2206.01 (9) (2014 Repl.) (defining the term ―Intoxicated‖). Proof
of an appreciable degree of impairment is not required when the government
establishes such a ―per se‖ violation. Harris v. District of Columbia, 601 A.2d 21,
26 (D.C. 1991).
                                           13

year after appellant‘s trial, this court issued its decision in Taylor v. District of

Columbia.10 The decision resolved outstanding ―questions about the difference

between OWI and DUI [that had made] it abundantly clear that . . . the relationship

between the two offenses need[ed] to get sorted out.‖11 Taylor clarified that while

OWI and DUI are ―separate and distinct‖ offenses,12 they both prohibit driving

while ―impaired‖ by alcohol and ―the alcohol-impairment threshold is the same‖

for both offenses.13 Based on an examination of the legislative history of the OWI

statute, we concluded that the only material difference between OWI and DUI—

the difference in the authorized punishments14—did not indicate ―a legislative


      10
           49 A.3d 1259 (D.C. 2012).
      11
           Id. at 1264 (internal quotation marks omitted).
      12
         See Scott v. District of Columbia, 539 A.2d 1085, 1086 (D.C. 1988)
(holding that a defendant who is charged only with DUI may not be convicted of
OWI because OWI is not a lesser-included offense of DUI).
      13
          Taylor, 49 A.3d at 1266. Previously we had merely accepted the
District‘s concession that OWI and DUI ―are so closely related that they should be
considered alternates, precluding punishment for both‖ without deciding whether
the standards were the same. Id. at 1264 n.9 (quoting Santos v. District of
Columbia, 940 A.2d 113, 114 (D.C. 2007)); see also Tabaka v. District of
Columbia, 976 A.2d 173, 174 (D.C. 2009) (accepting the government‘s concession
that ―if appellant‘s conviction for DUI is upheld, his conviction for OWI must be
vacated on remand as duplicative‖).
      14
         A greater penalty is authorized for DUI than for OWI. Thus, the current
statute provides that a person convicted of DUI (as a first offense) shall be fined
$1,000 and/or imprisoned for up to 180 days, while a person convicted of OWI (as
                                                                     (continued…)
                                          14

intent that OWI cover impairment below the threshold required for a conviction of

DUI,‖ but rather was designed to facilitate plea bargaining.15



         Taylor also clarified the degree of impairment that must be shown to prove

DUI and OWI. This, too, had been an area of some confusion. Poulnot v. District

of Columbia, the first of this court‘s decisions to discuss the level of impairment

required for DUI, quoted the standard articulated by the New Mexico Supreme

Court:


               [A] person is guilty of driving while under the influence
               of intoxicating liquor if he or she is ―to the slightest
               degree . . . less able, either mentally or physically or
               both, to exercise the clear judgment and steady hand
               necessary to handle as powerful and dangerous a
               mechanism as a modern automobile with safety to
               himself and the public.‖16




(continued…)
a first offense) shall be fined $500 and/or imprisoned for up to ninety days. D.C.
Code §§ 50-2206.13 (a), -2206.15 (a). (Greater penalties are authorized for repeat
offenders or, for DUI, when other aggravating factors are present.)
         15
         Taylor, 49 A.3d at 1265 (citing Council of the District of Columbia,
Committee on Transportation and Environmental Affairs, Report on Bill 4–389,
the ―Anti–Drunk Driving Act of 1982‖ at 7, 10).
         16
          Poulnot v. District of Columbia, 608 A.2d 134, 137 (D.C. 1992) (quoting
State v. Deming, 344 P.2d 481, 484-85 (N.M. 1959); emphasis in original).
                                         15

We said we ―generally agree[d]‖ with the New Mexico court‘s formulation, with

the caveat that ―‗appreciable‘ is, in our view, a more appropriate word than

‗slightest.‘‖17 Despite that caveat, some subsequent cases of this court continued to

say that ―the slightest degree‖ of impairment would suffice to prove DUI.18 In

Taylor, the court reiterated that ―‗appreciably‘ is the more appropriate word . . .

because it connotes primarily that the impairment must be capable of being

perceived by the naked senses, whereas ‗to the slightest degree‘ . . . may imply a

primary focus on a level of impairment that can be discerned only through

measurement of the amount of alcohol in the breath or blood.‖19



      Accordingly, Taylor held that the standard for both DUI and OWI is

―correctly expressed as that level of impairment at which a person is appreciably

less able, either mentally or physically or both, to exercise the clear judgment and




      17
           Id. at 138.
      18
        See Thomas v. District of Columbia, 942 A.2d 645, 649 (D.C. 2008);
Karamychev v. District of Columbia, 772 A.2d 806, 812 (D.C. 2001).
      19
           49 A.3d at 1267.
                                         16

steady hand necessary to handle as powerful and dangerous a mechanism as a

modern automobile with safety to himself and the public.‖20



                                    III. Discussion



      Appellant contends that his OWI conviction should be reversed because the

instruction given the jury unconstitutionally allowed it to find him guilty of OWI

without finding an essential element of the offense, namely that his driving ability

was ―appreciably‖ impaired.21 Because appellant did not object to the instruction,

his claim is subject to the strictures of ―plain error‖ review. 22 Superior Court


      20
          Id. (internal quotation marks omitted). We note that the Comprehensive
Impaired Driving and Alcohol Testing Program Amendment Act of 2012, which
went into effect as emergency legislation on July 30, 2012, includes a provision
defining the term ―impaired‖ to mean that ―a person‘s ability to operate or be in
physical control of a vehicle is affected, due to consumption of alcohol or a drug or
a combination thereof, in a way that can be perceived or noticed.‖ D.C. Code §
50-2206.01 (8). This definition is consistent with our holding in Taylor.
      21
          A Due Process violation is found where there is a reasonable likelihood
that a jury instruction allowed the jury to convict a defendant without proof beyond
a reasonable doubt of every essential element of the charged offense. See Victor v.
Nebraska, 511 U.S. 1, 6 (1994); Hatch v. United States, 35 A.3d 1115, 1121 (D.C.
2011).
      22
         We review only for plain error, though the trial judge concluded after the
verdict that the instruction was erroneous, because by then it was too late to undo
the effect of the error in the course of the trial. See Tann v. United States, No. 09-
CF-1438, 2015 D.C. App. LEXIS 533, at *181 (D.C. Nov. 19, 2015); see also
Brown v. United States, 881 A.2d 586, 593 (D.C. 2005) (―In order to preserve a
                                                                        (continued…)
                                           17

Criminal Rule 52 (b) provides that ―[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the

Court.‖ Accordingly, to obtain relief, appellant must establish that the instruction

was erroneous, that the error is ―plain,‖ and that it affected his substantial rights. If

those three threshold conditions are met, the Rule allows this court to correct the

error if it determines that the error ―seriously affects the fairness, integrity, or

public reputation of judicial proceedings.‖23       We address each of these four

conditions in turn.



                            A. Error in the Instruction



      The instruction told the jury that it could find appellant guilty of OWI if he

was impaired by the consumption of alcohol ―in any way,‖ in contrast to the

―appreciable degree‖ of impairment required to find him guilty of DUI.                As

(continued…)
jury instruction issue for appeal, Superior Court Criminal Rule 30 requires a party
to ‗object[] thereto before the jury retires to consider its verdict, stating distinctly
the matter to which that party objects and the grounds of the objection.‘ . . . When
a defendant fails to object to an instruction in the manner required by Rule 30, we
are limited to reviewing that instruction for plain error.‖).
      23
        Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006) (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997)); see also United States v. Olano, 507
U.S. 725, 732 (1993) (setting forth the above four-part test); Fed. R. Crim. P.
52(b).
                                         18

evidenced by the prosecutor‘s closing argument, the two terms are not, and at trial

were not understood to be, synonymous. Taylor establishes that the instruction

was erroneous because the ―appreciable degree‖ standard of impairment applies to

OWI just as it does to DUI.24



                             B. Plainness of the Error



      The OWI instruction was not plainly erroneous at the time of appellant‘s

trial in 2011. Taylor was not decided until a year later. We heretofore have

followed the Supreme Court‘s holding in Johnson that ―where the law at the time

of trial was settled and clearly contrary to the law at the time of appeal[,] it is

enough that an error be ‗plain‘ at the time of appellate consideration.‖25 This

relaxation of the plainness condition excuses the failure to object at trial when it




      24
         Because Taylor also establishes the equivalence of OWI with DUI, the
comment to the current Redbook instruction on DUI notes that ―the government
now dismisses the OWI charge at the start of any trial on the DUI charge, making a
separate OWI instruction unnecessary.‖ Criminal Jury Instructions for the District
of Columbia, No. 6.400 (5th ed. rev. 2015). It is within the discretion of the trial
court whether to require the government to elect among multiplicitous charges.
Reeves v. United States, 902 A.2d 88, 89 (D.C. 2006).
      25
           See, e.g., Thomas, 914 A.2d at 20 (quoting Johnson, 520 U.S. at 468).
                                          19

would have been futile to do so.26 By itself, however, such a relaxation of the

requirement does not benefit appellant in the present case, because at the time of

his trial, the law pertaining to the degree of impairment required for OWI was

unsettled, and there is no reason to think his objection would have been futile. (On

the contrary, the judge manifested his receptivity to it.)



       Johnson left open the question whether an error may be deemed ―plain‖

within the meaning of the plain error rule when the law was unsettled at the time of

trial, as long as the erroneous nature of the trial court‘s legal ruling has become

plain by the time of appellate review. In 2013, the Supreme Court answered that

question. Interpreting Federal Rule of Criminal Procedure 52(b) in Henderson v.

United States, the Court held that ―whether a legal question was settled or unsettled

at the time of trial, it is enough that an error be plain at the time of appellate

consideration for the second [plainness] part of the four-part Olano test to be

satisfied.‖27   The Court concluded, among other things, that this reading of


       26
        See id. at 21 n.26 (stating that Johnson‘s relaxation of the plain error rule
does not apply, and a ―forfeited claim would be subject to the usual plain error test
on appeal,‖ where the governing law is ―no longer settled‖ at the time of trial and a
timely objection therefore ―would not necessarily have been futile‖).
       27
         Henderson v. United States, 133 S. Ct. 1121, 1130-31 (2013) (quoting
Johnson, 520 U.S. at 468; internal quotation marks and brackets omitted).
                                         20

Criminal Rule 52 (b) advances the ―basic‖ principle that ―an appellate court must

apply the law in effect at the time it renders its decision,‖28 does not undermine

―the competing administrative principle that insists that counsel call a potential

error to the trial court‘s attention,‖ and is ―consistent with the basic purpose of

Rule 52(b), namely the creation of a fairness-based exception to the general

requirement that an objection be made at trial.‖29



      Henderson‘s analysis of the plain error doctrine is persuasive, and because

Superior Court Rule of Criminal Procedure 52 (b) is derived from Federal Rule of

Criminal Procedure 52 (b) and identical to it in all material respects, we have every

reason to follow Henderson and construe our Rule consistently. This accords with

this court‘s usual practice.30 Doing so redounds to appellant‘s benefit in this case,



      28
           Id. at 1129 (quoting Thorpe v. Hous. Auth., 393 U.S. 268, 281 (1969)).
      29
          Id. The Court further concluded that foreclosing plain error review when
the law was unsettled at the time of trial would be ―out of step with our precedents,
create[] unfair and anomalous results, and work[] practical administrative harm.‖
Id.
      30
         See Smith v. United States, 984 A.2d 196, 200 (D.C. 2009) (―This court
has often analyzed Superior Court Rules in light of federal courts‘ analysis of their
federal analogues.‖); D.C. Code § 11-946 (2012 Repl.) (providing that ―[t]he
Superior Court shall conduct its business according to the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure . . . unless it prescribes or
adopts rules which modify those Rules.‖).
                                            21

for while the degree of impairment required for OWI was an unsettled legal

question at the time of his trial, the answer to that question has become plain by the

time of our appellate review by virtue of our intervening decision in Taylor. For

purposes of the plain error doctrine, therefore, the instructional error in this case is

plain.



              C. The Effect of the Error on Appellant’s Substantial Rights



         For a plain error to ―affect substantial rights,‖ it must be of such a character

―that viewed in the context of the trial, there is a reasonable probability that but for

the error the factfinder would have had a reasonable doubt respecting guilt.‖31

Here, the jury‘s acquittal of appellant on the DUI charge shows there is a

reasonable probability that but for the erroneous instruction, the jury would have

had reasonable doubt respecting appellant‘s guilt of OWI.



         As the jury was instructed and as the case was presented to it, the one and

only difference between the charges of DUI and OWI was the level of driving

impairment the jury had to find in order to convict appellant of each offense: an

         31
          Portillo v. United States, 62 A.3d 1243, 1259 (D.C. 2013) (quoting
Wheeler v. United States, 930 A.2d 232, 245 (D.C. 2007)); see also Thomas, 914
A.2d at 21-22.
                                         22

―appreciable‖ degree of impairment for DUI, but ―any‖ degree of impairment for

OWI. The jury was told these terms referred to two different standards; it was

given no reason to think they were synonymous. There is no indication the jury

found the instruction confusing or that it was misled as to the meaning of

―appreciable‖ in this context. In the absence of any good reason to suppose

otherwise, we presume the jury followed the court‘s direction.32 Therefore, the

fact the jury acquitted appellant of DUI while simultaneously finding him guilty of

OWI must be taken to mean the jury had at least a reasonable doubt that appellant

was appreciably impaired by his consumption of alcohol. It follows that if the jury

had been instructed correctly that OWI also requires proof of an ―appreciable‖

degree of impairment, it would have acquitted him of that charge as well; it could

not rationally have done otherwise. At a minimum, we must conclude there is a

reasonable probability that would have been the outcome.

      32
          See, e.g., Plater v. United States, 745 A.2d 953, 959 (D.C. 2000) (―[W]e
trust the almost invariable assumption of the law that jurors follow their
instructions.‖ (Internal quotation marks omitted.)); see also Francis v. Franklin,
471 U.S. 307, 324 n.9 (1985) (―The Court presumes that jurors, conscious of the
gravity of their task, attend closely the particular language of the trial court‘s
instructions in a criminal case and strive to understand, make sense of, and follow
the instructions given them. Cases may arise in which the risk of prejudice
inhering in material put before the jury may be so great that even a limiting
instruction will not adequately protect a criminal defendant‘s constitutional rights.
Absent such extraordinary situations, however, we adhere to the crucial
assumption underlying our constitutional system of trial by jury that jurors
carefully follow instructions.‖ (Internal citations omitted.)).
                                         23

      Our decision in Taylor does not undercut this analysis.         In Taylor, the

deliberating jury sent four notes seeking clarification of the term ―to an appreciable

degree‖ and of the difference between DUI and OWI.33 The trial judge responded

by explaining to the jury that the impairment necessary for a DUI conviction must

be ―considerable‖ in degree while ―any‖ impairment (appreciable or not) is enough

for OWI.34 The jury ultimately returned a guilty verdict on the OWI charge but

deadlocked with respect to the DUI charge (as to which a mistrial was declared).

On appeal, this court (with one judge dissenting) upheld the OWI conviction,

finding that the instructional error was harmless. It did so, however, for three

reasons we find inapplicable here. The Taylor majority reasoned that (1) the

contents of the jury‘s notes indicated the jury was ―prepared‖ to convict of OWI

before it received the erroneous instruction35; (2) in finding the defendant guilty of

OWI, the jury ―necessarily‖ credited testimony that the defendant was

―perceptibl[y] or noticeabl[y]‖ (i.e., ―appreciably‖) impaired because there was no

evidence the defendant had ―a degree of impairment . . . beyond unaided human

perception‖ (such as blood-alcohol evidence)36; and (3) the jury‘s deadlock on DUI


      33
           49 A.3d at 1262-63.
      34
           Id. at 1263.
      35
           Id. at 1271.
                                            24

did not signify otherwise because the judge misled the jury by equating

―appreciable‖ with ―considerable‖ (denoting ―large in amount, extent, or degree‖),

thereby ―ratchet[ing] up the threshold for conviction of DUI, so that a conviction

of DUI appeared to require more than ‗appreciable‘ impairment.‖37 In short, the

majority in Taylor perceived that the instructional error in that case was prejudicial

to the prosecution, not the defense.



       None of the reasons for finding lack of prejudice adduced in Taylor apply to

the present case. First, we have no jury notes or other signs that the jury was

prepared to find appellant guilty of OWI before, or for any reason apart from, the

erroneous instruction it received. The only insight we have into the jury‘s thinking

is its verdict.



       Second, the jury in this case did not ―necessarily‖ credit the testimony that

appellant‘s impaired driving ability was perceptible, because there was other

evidentiary support for a finding that he had a degree of alcoholic impairment

(continued…)
       36
          Id. at 1267-68. The Taylor majority acknowledged that ―[i]n theory, the
term ‗impaired in any way or at some level‘ could include a degree of impairment
that is beyond unaided human perception (e.g., a level of impairment that escapes
detection without specialized testing or equipment).‖ Id.
       37
            Id. at 1269 (internal quotation marks omitted).
                                          25

beyond ―unaided human perception.‖ Unlike in Taylor, here appellant admitted

(both on the scene to Officer Gallagher and at trial) that he had had a drink prior to

driving, and the officer testified that he still had alcohol on his breath. In addition,

without accepting that appellant‘s performance in the field sobriety tests showed

perceptible impairment of his ability to drive, the jury could have credited Officer

Gallagher‘s opinion that the clues he observed in those tests indicated an 80%

likelihood that appellant‘s blood alcohol content exceeded .10 grams per 100

milliliters of blood. Based on this evidence, jurors who understood the OWI ―in

any way‖ standard to include impairment at a level above zero but beyond unaided

human perception could have been hard-pressed to acquit appellant under such a

low standard even though they doubted that he displayed impairment.               Their

instructions permitted the jurors to assess the evidence in this manner.



      Third, and perhaps most important, the jury‘s acquittal of appellant on the

charge of DUI cannot be explained away as the result of a misleading instruction

that led the jury to misapply the ―appreciable degree‖ standard. We have no reason

to conclude that the jury in the present case required a showing of more than an

appreciable degree of impairment when it considered the DUI charge. We must

presume the jury correctly understood and applied that standard. The jury‘s verdict

therefore means it was not convinced appellant was appreciably impaired. We
                                         26

cannot dismiss the significance of this. It bars us from upholding appellant‘s OWI

conviction on the theory that the jury likely did find an appreciable degree of

impairment.38



      We are not persuaded that prejudice to appellant from the instruction that

OWI and DUI require different degrees of impairment was prevented by the

further instruction that:


             For both charges, the question to be resolved from all the
             evidence is whether the District of Columbia has proved
             beyond a reasonable doubt whether the defendant‘s
             consumption of alcohol impaired his ability to operate a
             vehicle in the same way a reasonably careful and prudent
             driv[er] not under the influence of alcohol would operate
             it in similar circumstances.


Although this additional paragraph reiterates that a finding of driver impairment is

required by both charges, it does not correct or contradict the preceding instruction

that a different finding of impairment is required for each; nor does it make clear

that the finding required by OWI is an ―appreciable‖ degree of impairment rather


      38
          The principle that juries are permitted to return inconsistent verdicts, see
Evans v. United States, 987 A.2d 1138, 1140 (D.C. 2010), does not apply here (as
it would had the jury been instructed correctly that DUI and OWI share the same
―appreciable degree‖ standard of impairment). Because the jury was instructed
that different standards of impairment applied to the two offenses, its verdicts were
not inconsistent.
                                          27

than impairment ―in any way.‖ Even if the paragraph could have been read as

inconsistent with the preceding instruction or as offering a unifying interpretive

gloss on the two different standards of impairment previously given the jury, it is a

confusing inconsistency or a vague and unenlightening gloss.39 The proof of its

inadequacy lies in the jury‘s verdict itself; if this final paragraph had been

sufficient to convey to the jury a correct understanding of what it needed to find

beyond a reasonable doubt, the jury could not rationally have found appellant

guilty of OWI yet not guilty of DUI. It may not be clear exactly how the jury

understood the words ―impaired in any way‖ when it considered the OWI charge.

But what is reasonably clear is that the jury did not understand those words to

mean appellant had to be impaired to an appreciable degree, and that the jury found

appellant guilty of OWI even though it was unwilling to find he was so impaired.

      39
          See Francis v. Franklin, 471 U.S. at 322 (―Language that merely
contradicts and does not explain a constitutionally infirm instruction will not
suffice to absolve the infirmity. A reviewing court has no way of knowing which
of the two irreconcilable instructions the jurors applied in reaching their verdict.‖);
McFarland v. United States, 174 F.2d 538, 539 (D.C. Cir. 1949) (―If a charge to a
jury, considered in its entirety, correctly states the law, the incorrectness of one
paragraph or one phrase standing alone ordinarily does not constitute reversible
error; but it is otherwise if two instructions are in direct conflict and one is clearly
prejudicial, for the jury might have followed the erroneous instruction.‖); see also
Hatch v. United States, 35 A.3d 1115, 1123-25 (D.C. 2011) (holding that the
prejudice from a confusing instruction that the jury could have understood as
eliminating or alleviating the government‘s burden of proof with respect to an
essential element of the offense was not avoided by the court‘s general instructions
on the government‘s burden of proof and the presumption of innocence).
                                          28

       We conclude there is at least a reasonable probability that the plainly

erroneous instruction adversely affected appellant‘s substantial rights, by

unconstitutionally allowing the jury to find him guilty of OWI without proof

sufficient to the jury of an essential element of that offense. The third condition of

the plain error doctrine is satisfied.



            D. Serious Effect on the Fairness of the Judicial Proceedings



       As we have said, it is reasonably probable the (now-plain) instructional error

in this case misled the jury and caused it to convict appellant of OWI even though

the jury actually found the government failed to prove an essential element of the

offense beyond a reasonable doubt.        There is no question that such an error

seriously undermines the fairness of the proceeding.40




       40
          Cf. United States v. Houston, 792 F.3d 663, 668-69 (6th Cir. 2015)
(holding that erroneous instruction on ―the most crucial element of this crime‖ was
an error ―seriously affect[ing] the fairness, integrity or public reputation of judicial
proceedings‖).
                                          29

                                   V. Conclusion



      For the foregoing reasons, we reverse appellant‘s conviction for OWI and

remand for further proceedings not inconsistent with this opinion.41



                                                     So ordered.



      NEWMAN, Senior Judge:          Being of the view that we are the ultimate

authority in construing D.C. court rules, I concur in results.




      41
          Given that the jury‘s acquittal of appellant on the DUI charge signifies
that it found the evidence insufficient to prove appellant was appreciably impaired,
and that his OWI conviction was not inconsistent with his DUI acquittal, it appears
a retrial on the OWI charge may be barred by the doctrine of collateral estoppel
embodied in the Fifth Amendment guarantee against double jeopardy. See Evans,
987 A.2d at 1140-42. Because the parties have not addressed this question,
however, we refrain from doing anything more than raising it and allowing it to be
addressed on remand if necessary.
