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             DISTRICT OF COLUMBIA COURT OF APPEALS

                Nos. 12-CF-1604, 12-CF-1605, and 12-CF-1504

                             FURL J. WILLIAMS,
                       ARTHUR TERENCE BULLOCK, and
                       MARTEESE NORMAN, APPELLANTS,

                                        v.

                           UNITED STATES, APPELLEE.

                       Appeals from the Superior Court
                         of the District of Columbia
                (CF3-3568-12, CF3-3570-12, and CF3-3569-12)

                       (Hon. Gerald I. Fisher, Trial Judge)

(Argued May 15, 2014                                      Decided April 23, 2015)

      Peter H. Meyers for appellant Williams.

      Abram J. Pafford for appellant Bullock.

      Daniel M. Gonen, Public Defender Service, with whom James Klein and
Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant
Norman.

      David B. Goodhand, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Elizabeth H. Danello and Holly Shick, Assistant United States Attorneys,
were on the brief, for appellee.

      Opinion for the court by Senior Judge REID.
                                        2

      Concurring opinion by Associate Judge FISHER at page 24.

      Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and REID,
Senior Judge.

      REID, Senior Judge: In these appeals, appellants Furl J. Williams, Arthur

Terence Bullock and Marteese Norman, challenge their convictions of robbery1 on

various grounds – (1) insufficiency of the evidence (Mr. Williams and Ms. Norman),

(2) erroneous denial of a motion to sever (Mr. Williams and Mr. Bullock), (3)

erroneous denial of a motion to suppress (Mr. Williams and Mr. Bullock), and (4)

abuse of discretion in dismissing a juror (Ms. Norman). Because of our disposition,

we consider only the first issue. We hold that the evidence was insufficient to

convict Mr. Williams, Ms. Norman and Mr. Bullock of robbery because the

government’s proof failed to establish at least one of the elements of that offense

beyond a reasonable doubt.       Consequently, we reverse appellants’ robbery

conviction.




      1
        Robbery is a violation of D.C. Code § 22-2801 (2012 Repl.). The jury
found Mr. Williams, Mr. Bullock, and Ms. Norman not guilty of conspiracy to
commit robbery.
                                          3

                             FACTUAL SUMMARY



      The government presented evidence showing that Loi Chau, a forty-nine year-

old man, worked the 2:30 p.m. to 11:00 p.m. shift at the Marriott Hotel on

Connecticut Avenue, in the Northwest quadrant of the District of Columbia.2 Mr.

Chau testified as follows. After getting off from work on the night of February 24,

2012, he walked to the nearby Metro Elevator. As he “was pushing the button,

waiting for the elevator to come up, [he] saw three people walk to him, and [he] did

not know these people. And [he] ke[pt] pushing the button, waiting for the elevator

to come up.” The prosecutor asked, “[W]hat did those three people look like?”

Mr. Chau responded, “They are three black Americans. I don’t know them, so I

keep pushing the button, waiting for the elevator.” The people did not say anything

but they “look[ed] back” at him and then approached Mr. Chau. They were about

three to four feet from Mr. Chau, and he could “[n]ot quite touch them.” Mr. Chau

“was afraid that they had guns or knives,” so he “took out [his] wallet and gave it to

them and they left.” Although he did not see any guns or knives, he “was afraid

they [had] guns and knives because at that time it was very dark, and [he] was the

      2
          Mr. Chau spoke Vietnamese and had limited knowledge of the English
language. There was no Vietnamese interpreter on the scene at any time on the
night of the incident and the investigation.
                                         4

only one there.” He repeatedly said he was afraid the people had (a) gun(s) and/or

(a) knife/knives. But on cross-examination Mr. Chau stated that the three people

did not threaten him or make him afraid. See note 5, infra.



      When the three people approached him two of them said, “What, what, what.”

Mr. Chau interpreted these words to mean, “do I have any money.”3 He did not

have any money. His wallet contained his driver’s license, Metro card, bank cards,

union cards, and business cards. Initially Mr. Chau saw the faces of the three

people when they were by the elevator where there was a light, but when they

walked away he could only see their backs. Mr. Chau called 911 and reported that

the people “took [his] money and they walked away.” Mr. Chau spoke only “a little

bit” of English and another man on the street helped him with the 911 call.4 Mr.

Chau followed the people who had his wallet so that he could retrieve his Metro

card. He was about three blocks behind the three individuals but never lost sight of

      3
         The prosecutor inquired, “Why do you say they were asking for money?”
Mr. Chau answered, “No, they said, ‘what, what,’ and their intention when they
approached me.” The prosecutor did not ask for clarification of Mr. Chau’s
response. According to Mr. Chau, the third person was quiet. Mr. Chau “didn’t
know how to say” “the robbery word,” so he told the 911 operator that “they took
money from me,” and “they took my money and they walked away.”
      4
         Mr. Chau understood the 911 operator’s question as to where he “was
heading,” but the operator “said a lot of other things that [he] did not understand.”
                                         5

them. Another man also followed the three young men. Later, the police stopped

the three people and Mr. Chau identified each of them.5



      On the night of February 24, 2012, Metropolitan Police Department (“MPD”)

Officer Kenneth Boone, a technician, had completed an assignment and was driving

southbound on Connecticut Avenue shortly after 11:00 p.m., in an unmarked car and

plain clothes. While he was waiting for the traffic light to turn green, he saw the

backs of what appeared to be “three black males . . . in front of [another] male.” He

thought that the single male was “not free to move forward, he didn’t have his

freedom of movement.” Officer Boone saw the three males walk away northbound

on Connecticut Avenue, and he proceeded to where the single male was standing, in

order to check on him. The man, later identified as Mr. Chau, looked “[k]ind of …

confused, kind of shocked.” Mr. Chau said, “they took everything.” Officer

      5
         On cross-examination, Mr. Chau reiterated that there was no money in his
wallet. When he called 911, however, he stated, “My money, my money, my
money” several times. He explained that he “did not know how to use the term
‘rob’” and he used a word he knew “so that the police can come fast.” He admitted
that none of the defendants pushed or touched him, and that only two asked for
money but he asserted that “all three of them went together.” He agreed that none
of the defendants “threatened to hurt [him] if he didn’t hand over [his] wallet.”
Although Mr. Chau said he was afraid, he added that the three defendants “did not
make – threaten me or make me afraid,” and he saw no weapons – guns or knives.
Mr. Chau did not give a description of the persons who took his wallet when he
called 911.
                                         6

Boone kept his eye on the three males who were walking north on Connecticut

Avenue and followed them, and contacted the police dispatcher on his cell phone.

He advised the dispatcher that the three men were wearing “black jackets and . . .

black hats.” He followed the three men until they reached a “7-Eleven” store where

they stopped to speak with two men who were seated, before continuing up

Connecticut Avenue. One man slowed down at a bus stop and the other two turned

off onto and down a walkway near an apartment building. The two men eventually

turned around and came back to Connecticut Avenue as the police arrived. Officer

Boone introduced himself to the arriving officers and then left the scene.



      Samuel Hart testified that he was coming up a Metro escalator on Connecticut

Avenue when he “noticed like a Chinese [or] Korean [man] with three suspects

standing in front of him.”6 He was about thirty feet away from Mr. Chau and the

three young people. One person had on a black hoodie; one had on red, white and

black sneakers; two had dreads; and they had on dark jeans. One of the Asian

man’s legs appeared to be short and the three persons around him “looked suspicious


      6
          Mr. Hart demonstrated how Mr. Chau and the three young people were
situated on the street. As a result of the demonstration, the trial judge stated, “I
would say about a 90 degree angle between Mr. Hart, and the other three were in
kind of a little bit of an arc around him, reaching around him.”
                                        7

at a certain time on Connecticut Avenue” because “a majority of rich middle class

people live” on Connecticut Avenue and people with hoodies and “all dark clothing”

are not seen after eleven or twelve o’clock. He saw three black men, one of whom

was “light-skinned.” One person was “observing the scenery” or “looking around

to see if anybody else can see it.” Two of the men spoke with the Asian man and

“one took the wallet.” The three men walked up Connecticut Avenue, and Mr. Hart

asked the Asian man whether something was wrong. The man stated that he “just

got robbed his wallet,” and Mr. Hart told him to call 911. Mr. Hart also called 911

and then followed the three men. When the men reached the area of a “7-Eleven”

store and an apartment building, Mr. Hart saw the one with the red, black and white

sneakers, hat and black hoodie veer off through a cut near the apartment building

and then “run[] out to be with the other two.” Mr. Hart flagged down the police

when he saw their cars.



      Mr. Hart stated on cross-examination that two of the men had hair in

dreadlocks, and one of them wore red, white and black shoes; and that the third

person had a shorter haircut and had a hat on.7 He testified before the grand jury


      7
         Mr. Hart acknowledged that he did not give a description of the three
people during his 911 call.
                                         8

that the man with the red, white and black shoes took Mr. Chau’s wallet. He

“assumed” Mr. Chau was being robbed “[b]ecause he kept yelling ‘help.’” He

denied that he had a prior possession of cocaine conviction in 1999. 8 He also

initially denied that he had consumed two 12-ounce cans of beer on the evening of

the incident. He noted that since the incident he had had surgery for a brain tumor.



      Officer Walter Pankowski testified that he was on duty in an unmarked police

car with other officers when he heard “a call for a robbery that had just occurred.”

The officers saw an Asian male waving them down as they approached the 3000

block of Connecticut Avenue. Mr. Chau was “excited” and said, “they took my

wallet, they took my wallet.” Mr. Chau was walking toward the bus stop saying,

“up there, up there, up there.” Officer Barcus had stopped Mr. Bullock; and when

Mr. Chau reached the place where Mr. Bullock was standing, he stated, “He took my




      8
          Counsel for Mr. Bullock read the following stipulation to the jury during
the presentation of evidence by the defense: “The parties in this case, we stipulate
and we agree that Samuel Michael Hart was convicted of the following offenses:
He was convicted of false report to the police in August of 2009; possession of a
prohibited weapon in Fairfax in August 2003; escape, December 2001; theft in the
second degree, 2001; Bail Act violation, 2008; possession of cocaine, April 30th,
’99; theft in the second degree, and Bail Reform Act violation in ’96.”
                                         9

money, it was him, it’s him.” 9 Mr. Williams and Ms. Norman were in “close

proximity” to Mr. Bullock.


      Officer James Legasi responded to the scene and stopped Ms. Norman. She

had on a black hat. He handcuffed Ms. Norman, and when he began to pat her

down, she told Officer Legasi that she was female and her name was LaKeisha

Wilson. Officer Legasi also recovered the clothing that Mr. Williams was wearing

on the night of the incident and the clothing matched the lookout description for one

of the suspects. A Metro smart trip card was inside one of Mr. Williams’s pockets.

Officer Legasi identified Mr. Williams in court. In addition, Officer Legasi found a

green credit card in the 2700 block of Connecticut Avenue that bore Mr. Chau’s

name, as well as Mr. Chau’s wallet.10 However, Officer Legasi also denied that he

had found a wallet.


      9
           Officer Barcus(s) did not testify at appellants’ trial. The affidavit,
attached to the complaint against appellants, only references Officer Barcus’s
conversation with Mr. Hart on the night of the incident. The government does not
mention the alleged statement by Mr. Chau about money that Officer Pankowski
testified was made while Officer Barcus detained Mr. Bullock. The government
only cites the testimony of Detective Tabron. Officer Barcus’s name appears as
both Barcuss and Barcus in the record.
      10
          Officer Legasi indicated that he and other officers canvassed the area from
the 3000 block of Connecticut Avenue, where Ms. Norman was stopped, to the 2600
block, where the offense occurred. Officer Adrian Harris found a white and red, or
a white credit card in the grassy area in the 2700 block of Connecticut Avenue, in
                                                                       (continued…)
                                        10

      Officer Adam Crist proceeded to the 3000 block of Connecticut Avenue with

Officer Legasi.   They saw Mr. Williams and Ms. Norman standing together.

Officer Crist stopped Mr. Williams. He then canvassed the Connecticut Avenue

area near the stop, found a wallet in the bushes in the 2700 block, between the

sidewalk and the apartment building, and secured the wallet without touching it.

On cross-examination, he declared that the lookout was for “three black males

wearing all dark jackets.”



      MPD Detective Keith Tabron investigated the incident involving Mr. Chau.

When he arrived on the scene he interviewed Mr. Chau and took him back to the

place where he first saw the defendants. Detective Tabron testified that he had

“[j]ust a very little” trouble understanding Mr. Chau, and that he posed “[v]ery

short” and “very narrow,” direct questions to him.         He also conducted an

identification show-up procedure in the area where the defendants were stopped.

He was seated in the front of a police car and Mr. Chau was in the back. According

to Detective Tabron, the following occurred.


 (…continued)
front of an apartment building. Mr. Chau’s name was on the card. Ninotchka
Sylvester, an MPD civilian crime scene technician processed the crime scene and
found a debit or credit card on the ground near a curb, and one farther up near the
apartment complex. She dusted these items for fingerprints but found none.
                                          11

      The suspects were brought out separately. Mr. Chau identified Ms. Norman

as the person to whom he gave his wallet. She was wearing a hat. Mr. Chau

identified Mr. Williams and said he “was demanding money from him”; that he “was

asking for money.” Mr. Chau also identified Mr. Bullock and declared that he “was

asking for money from him.” On cross-examination Detective Tabron stated that

he did not ask Mr. Chau for physical descriptions of the alleged persons who took his

wallet before he identified the suspects. Detective Tabron acknowledged that when

he testified before the Grand Jury, he was asked whether he could understand Mr.

Chau on the night of the incident; and he replied, “Vaguely.” The detective did not

seek to get an interpreter. In his WACIIS report, Detective Tabron wrote that Mr.

Chau “said that all three subjects were demanding money at the same time they were

pushing and shoving [him].” On cross-examination at trial, Detective Tabron also

was asked whether he “thought that Mr. Chau said that he was pushed by the

suspects?” He replied, “No, I didn’t thought [sic] that Mr. Chau said he was pushed

by the subjects.” Defense counsel inquired, “You didn’t think that?” Detective

Tabron replied, “No, I should have written that Mr. Chau was asked if he was pushed

or shoved by the subjects, and he just went, “yeah, yeah, yeah,” so I interpret that as

yes.” Defense counsel then stated, “Because you asked him a question and he said

yes?” Detective Tabron replied, “Yes.”
                                         12

      All three defendants moved for judgment of acquittal before presentation of

evidence by the defense. After listening to the arguments of defense counsel in

favor of the motion and taking issue with recollections about some of the testimony,

the trial court denied the motion on the ground that “there’s sufficient evidence for

those charges.” The court declared that, “If the only evidence had been Mr. Chau’s

direct testimony, or maybe where he was at the end of cross, . . . maybe, and I say

maybe there would be insufficient evidence.” The court continued saying, “[O]n

redirect examination my recollection was that, and my recollection is clear that he

was impeached with his prior inconsistent statement before the Grand Jury in which

he stated that the individuals asked for money, put in tandem with their physical

conduct, they were within a foot or so of him late at night on a fairly empty street

after walking by him and after coming close.” The court also stated that “once [Mr.

Chau] gave the wallet, . . . the fact that they accepted the wallet and went away with

it, I think there’s some circumstantial evidence about what their intent was to begin

with.”11 The defendants renewed their motion for judgment of acquittal at the end


      11
           The trial court actually was mistaken in its recollection of the redirect
testimony of Mr. Chau. Although the prosecutor sought to bring out other words
that the defendants said to Mr. Chau, other than “what, what, what,” and specifically
the words, “Where’s the money,” she was unsuccessful during redirect examination.
When the prosecutor tried to get Mr. Chau to remember his April 6, 2012, Grand
Jury testimony, he was unable to do so. The prosecutor read a question from the
Grand Jury testimony, “What happened after [the three people] looked at you?”
                                                                      (continued…)
                                          13

of the presentation of all evidence. The trial court denied the motion for the same

reasons it articulated earlier.



                                    ANALYSIS



       Although all of the defendants argued for acquittal at trial on the ground that

the evidence was insufficient to establish a robbery, only Ms. Norman and Mr.

Williams contend on appeal that the government failed to prove the elements of a

robbery. “In reviewing a conviction for sufficiency of the evidence, we consider all

the evidence in the light most favorable to the government, according deference to

the fact-finder ‘to weigh the evidence, determine the credibility of the witnesses, and

draw all justifiable inferences of fact . . . .’” Jones v. United States, 67 A.3d 547,

549 (D.C. 2013) (citation omitted). “[I]f a trier of fact could find the essential

elements of the crime beyond a reasonable doubt, we must affirm the convictions.”

Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996) (citation omitted).

“Conversely, we must reverse if there is no evidence upon which a reasonable mind

might fairly conclude guilt beyond a reasonable doubt.” Id. (internal quotation

 (…continued)
Before she could read his answer, Mr. Chau replied, “When they looked at me, then
they just said, ‘What, what?’” The prosecutor tried again, and Mr. Chau said, “Then
three people approach me and two people said, ‘What, what?’”
                                          14

marks and citations omitted). “[T]he evidence in a criminal prosecution must be

strong enough that a jury behaving rationally really could find it persuasive beyond a

reasonable doubt. . . . The evidence is insufficient to convict if, in order to convict,

the jury is required to cross the bounds of permissible inference and enter the

forbidden territory of conjecture and speculation.” Rivas v. United States, 783 A.2d

125, 134 (D.C. 2001) (en banc) (internal quotation marks and citation omitted); see

also United States v. Wagstaff, 865 F.2d 626, 629 (4th Cir. 1989) (to determine

whether the fear or intimidation requirement for robbery has been met, courts may

not “substitute[] a set of assumptions about the person taking money . . . for the

individualized analysis of that person’s actual behavior”). In sum, “if the evidence,

when viewed in the light most favorable to the government is such that a reasonable

juror must have a reasonable doubt as to the existence of any of the essential

elements of the crime, then the evidence is insufficient and we must say so.” Rivas,

supra, 783 A.2d at 134 (emphasis in original) (internal quotation marks and citation

omitted).



      D.C. Code § 22-2801 (2012 Repl.) provides:


                    Whoever by force or violence, whether against
             resistance or by sudden or stealthy seizure or snatching, or
             by putting in fear, shall take from the person or immediate
             actual possession of another anything of value, is guilty of
             robbery.
                                           15




We have said that “[i]n the District of Columbia, robbery retains its common law

elements,” and that “the government must prove larceny and assault.” Lattimore,

supra, 684 A.2d at 359 (citations omitted). The elements of robbery are: “(1) a

felonious taking, (2) accompanied by an asportation [or carrying away], of (3)

personal property of value, (4) from the person of another or in his presence, (5)

against his will, (6) by violence or by putting him in fear, (7) animo furandi [the

intention to steal].” Id. (alteration in original) (citations omitted).



      On this record we conclude that the government failed to prove the element of

“violence or putting [a person] in fear.” No violence was involved in this case, and

thus, our focus is on “fear.” To prove the “putting in fear” element, the government

must establish some “menacing conduct of the accused and his purposeful design …

to engender fear in . . . [the] victim.” Parks v. United States, 627 A.2d 1, 5 (D.C.

1993) (internal quotation marks and citations omitted). The test is not whether the

victim experienced actual fear or had a “subjective perception” of fear, but “whether

the assailant acted in such a manner as would under the circumstances portend an

immediate threat of danger to a person of reasonable sensibility. . . .” Id. (citation

omitted); see also In re D.R., supra, 96 A.3d 45, 47 n.2 (D.C. 2014) (in “an

intent-to-frighten assault, the government must show that the defendant committed
                                          16

some threatening act that would lead a reasonable person to believe he was in

imminent danger of bodily harm”) (internal quotation marks and citation omitted);

Parnell v. Oklahoma, 389 P.2d 370, 375 (Okla. Crim. App.) (“Intimidation in the

law of robbery means putting in fear, and the fear must arise from the conduct of the

accused rather than the mere temperamental timidity of the victim.”).



      Fact-finders may reasonably infer a defendant’s “present ability to either

injure or frighten the victim” from the display of a weapon by the defendant. Parks,

supra, 627 A.2d at 6. Fact-finders also may infer the fear element from words

spoken by the defendant or by his conduct. See Owens v. United States, 497 A.2d

1086, 1090 (D.C. 1985) (“An intent to commit robbery may be inferred not only

from the words uttered by the suspect but also from his conduct or from the totality

of the evidence.”) (internal quotation marks and citation omitted); see also In re

D.R., supra, 96 A.3d at 47 n.2 (“brandish[ing] a large knife and angrily threaten[ing]

to eviscerate [defendant’s] neighbor with it . . . is certainly sufficient to support a

finding that [defendant’s] statements would have put a[] . . . reasonable person in

apprehension of bodily harm”) (internal quotation marks omitted); United States v.

Ketchum, 550 F.3d 363, 367 (4th Cir. 2008) (“intimidation element [of a federal

bank statute] is satisfied if an ordinary person in the teller’s position reasonably

could infer a threat of bodily harm from the defendant’s acts, whether or not the
                                         17

defendant actually intended the intimidation”; “intimidation generally may be

established based on nothing more than a defendant’s written or verbal demands to a

teller”); United States v. Gilmore, 282 F.3d 398, 403 (6th Cir. 2002) (“unequivocal

written and verbal demands for money to bank employees are a sufficient basis for a

finding of intimidation” under a federal bank statute).



      Here, there was no showing of an objectively reasonable fear on the part of

Mr. Chau. Indeed, he testified that the defendants “did not . . . threaten [him] or

make [him] afraid.” Undoubtedly, Mr. Chau had a subjective fear because it was

late at night when three young people (whom he described, when asked, only as

“three black Americans”) walked by him and he thought that they had knives or

guns. The government insists, however, that “appellants’ actions . . . created a

reasonable fear of danger in Mr. Chau” because they “surrounded Mr. Chau en

masse, ‘[a]ll three together’ . . . in an arc, depriving him ‘freedom of movement.’”

In addition, “while one of the three looked around to ensure that no one else was

watching, another asked Mr. Chau for his money and the third took the wallet.”

Furthermore, the government continues, Mr. Chau “was out-numbered by

appellants,” and his “vulnerability was significantly enhanced by the fact that there

were few people out and about.” Moreover, the government argues, (a) appellants

first walked past Mr. Chau, “look[ed] back at him, and then returned to his location”;
                                         18

(b) “possession of an undisclosed weapon may be inferred from the surrounding

facts and circumstances” such as wearing a jacket which would have raised concern

about a concealed weapon; and (c) appellants “did not return Mr. Chau’s wallet after

Mr. Chau offered it.”



      Part of the difficulty with the government’s arguments on this record is that

the government “substitutes a set of assumptions about [the appellants] . . . for the

individualized analysis of [the appellants’] actual behavior.” Wagstaff, supra, 865

F.2d at 629. Moreover, at times the government appears “to cross the bounds of

permissible inference and enter the forbidden territory of conjecture and

speculation.” Rivas, supra, 783 A.2d at 134 (citation omitted). Government

assumptions, conjecture and speculation are most evident, perhaps, with respect to

whether Mr. Chau stated on the night of the incident that two of the appellants

actually demanded money or asked Mr. Chau for money.



      Mr. Chau’s consistent testimony is that the only words actually uttered by two

of the appellants were, “What, what, what.” When the prosecutor attempted to

elicit specific language showing that two of the appellants unequivocally asked for

money, she was unsuccessful. In response to the prosecutor’s question, “Why do

you say they were asking for money,” Mr. Chau replied, “No, they said ‘what, what,’
                                         19

and their intention when they approached me.” The language “and their intention

when they approached me” does not translate into a specific demand for money.

Even if we look to Detective Tabron’s testimony that Mr. Chau said that Mr.

Williams was demanding or asking for money, and that Mr. Bullock was asking for

money, we cannot say that Detective Tabron’s hearsay testimony would be “strong

enough that a jury behaving rationally really could find it persuasive [as to the fear

element] beyond a reasonable doubt.” Rivas, supra, 783 A.2d at 134. Detective

Tabron testified before the grand jury that he could understand Mr. Chau (who spoke

only “a little bit” of English) “[v]aguely” on the night of the incident. At trial, a

defense counsel asked Detective Tabron whether he “thought that Mr. Chau said that

he was pushed by the suspects?” The Detective said, “No,” he didn’t think so, and

that he should have written in his WACIIS report “that Mr. Chau was asked if he was

pushed or shoved by the subjects, and he just went, ‘yeah, yeah, yeah,’ so I interpret

that as yes.”12 Given the demanding standard of “beyond a reasonable doubt,” and


      12
           The government acknowledges Mr. Chau’s “language” and
“understanding” issues and his “difficulty with English.” But in footnotes, the
government makes at least two major assumptions about Mr. Chau’s testimony that
two of the appellants said, “What, what, what” when they approached him. First,
Mr. Chau said, “What, what, what” “after he had given appellants his wallet” since
the “statement makes more sense in that context, because appellants were likely
mocking Mr. Chau’s request and/or his poor English.” Yet, there is not a shred of
credible evidence that appellants mocked Mr. Chau or his command of the English
language. The government’s second assumption (indeed speculation) is that “Mr.
                                                                    (continued…)
                                         20

Detective Tabron’s grand jury and trial testimony as cited, we are left with doubts as

to whether Detective Tabron merely assumed what Mr. Chau told him during his

investigation of the incident.



      The government cites little case law in its analysis of the fear element. It

appears to rely principally on Dublin v. United States, 388 A.2d 461 (D.C. 1978), a

case involving a customer’s aggressive behavior toward a waitress in a restaurant,

and ultimately the customer’s reach over the counter toward the cash register and a

demand for money. The central issue relating to the customer’s robbery conviction

was whether the trial court erred by failing to give a requested instruction about

larceny as a lesser-included offense of robbery. Id. at 463. This court declared

that the trial court “correctly concluded that a lesser offense instruction was not

warranted as larceny (rather than robbery) was not fairly inferable from the

evidence,” and we also noted that “the government [was not] relieved of its burden

of proving that the victim was put in fear by the defendant at the time of the

robbery,” as opposed to the period “before the robber approached.” Id. at 464.

 (…continued)
Chau’s difficulty with English and his inability to precisely understand the
prosecutor’s questions likely meant that the jury did not place significant weight on
his testimony that appellants only said “what, what, what” to him.” We cannot say
that either of these government assumptions constitutes reasonable inferences on
this record.
                                         21

      However, there are at least a few other cases in other jurisdictions revealing

the type of proof that satisfied the fear or intimidation element of robbery. In

Parnell, supra, 389 P.2d 372, appellants had agreed to do repair work in the attic of

the eighty-four year-old victim’s house for $25. On the day of the repairs the victim

was alone in the house. Two of the appellants proceeded to the attic to work and the

third stayed in the dining room. When the repairs were completed one of the

appellants informed the victim that the bill amounted to $600.00. The victim

testified that she was frightened, that one man was on one side of her and another on

the other side, between her and the door. She gave one of the appellants $300.00,

and in response to his question as to when she could pay the rest, the victim

suggested that maybe she could go to the store and cash a check. The men left.

One of the victim’s neighbors testified at trial that she saw the victim shortly after

the men left and she “appeared to be frightened.” Id. at 374. The jury returned a

verdict of guilty on the charge of robbery by fear. The appellate court held that “the

evidence was wholly insufficient to support the verdict of the [j]ury,” because there

was insufficient proof of the fear or intimidation element. Id. at 375. The court

declared, “Where a person parts with money upon a mere demand made in a rough,

positive voice, with an oath, the taking is not robbery; the menace not being such as

to excite reasonable apprehension of danger.” Id. at 374.
                                         22

      Spencer v. State, 30 A.3d 891 (Md. 2011), on which Mr. Williams and Ms.

Norman rely, involved a robbery at an automobile service center.           Appellant

walked into the center one afternoon and without pointing anything or implying

anything, told the person at the cash register, “Don’t say nothing.” The cashier

handed the cash register drawer to appellant because he “wasn’t taking no chances.”

Id. at 893-94. The court held that “the State failed to prove an essential element of

the crime of robbery” because “[t]here was no evidence that [petitioner] conducted

himself in a manner that could cause apprehension in a reasonable person that the

petitioner was about to apply force.” Id. at 893. “[N]o note was handed to the

cashier, no demand for money was made, and no reference to money or the cash

register was made by the petitioner.” Id. at 899.



      In both Parnell and Spencer the court focused on the conduct and words of the

appellant and the petitioner in concluding that the evidence was insufficient to prove

the fear or intimidation element.13 Here, viewed in the light most favorable to the


      13
         We are aware that in some financial institution or bank robbery cases,
courts have said that “intimidation generally may be established based on nothing
more than a defendant’s written or verbal demands to a teller. . . .” Ketchum, supra,
550 F.3d at 367 (citation omitted). But in these types of cases courts generally
require “unequivocal written and verbal demands for money to bank employees.”
Gilmore, supra, 282 F.3d at 403.
                                          23

government and within the “beyond a reasonable doubt” standard, the government’s

evidence establishes that three young people walked by Mr. Chau, turned around

and walked back to him. Two of the young people said, “what, what, what,” while

the third was quiet or “observing the scenery” or “looking around.” Mr. Chau

handed his wallet to one of the young people.          This evidence did not prove

“menacing conduct” that would “engender fear,” Parks, supra, 627 A.2d at 5, or

“some threatening act that would lead a reasonable person to believe he was in

imminent danger of bodily harm.” In re D.R., supra, 96 A.3d at 47 n.2 (citation

omitted). In sum, we hold that on this record, the government failed to prove the

element of “violence or putting [a person] in fear.”



      Accordingly, for the foregoing reasons, we reverse appellants’ robbery

convictions.14



                                               So ordered.




      14
         Because the government must prove all of the elements of the crime
beyond a reasonable doubt, Rivas, supra, 783 A.2d at 134, and because we hold that
the government did not satisfy its burden in this case, Mr. Bullock gets the benefit of
our ruling on Mr. Williams’s and Ms. Norman’s challenge to the sufficiency of the
evidence on the robbery charge.
                                         24

      FISHER, Associate Judge, concurring in the judgment: There is no doubt that

Mr. Chau surrendered his wallet to appellants because he feared them. But due to a

language barrier, and perhaps nervousness, he was unable to clearly explain what

appellants had done to engender that fear or to communicate that this was a robbery.

I therefore reluctantly agree that “the government failed to prove the element of

‘violence or putting [a person] in fear.’” Opinion for the court at 23.



      Of course, appellants did not give the wallet back or try to explain that

Mr. Chau had misunderstood the situation. Instead, they walked away together

with the wallet, rifling through it in search of valuables, and one of them kept

Mr. Chau’s Metro card. However, the government has not asked us to enter

judgment on a lesser-included offense. For these reasons, I concur in the judgment.
