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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CF-538

                         JAMES N. OFFUTT, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF2-12011-14)

                      (Hon. Todd E. Edelman, Trial Judge)

(Argued December 15, 2016                                  Decided April 6, 2017)

      Thomas D. Engle, with whom Sharon L. Burka was on the brief, for
appellant.

       Valinda Jones, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman and Chrisellen R. Kolb,
Assistant United States Attorneys, were on the brief, for appellee.

      Before THOMPSON and MCLEESE, Associate Judges, and FERREN, Senior
Judge.


      MCLEESE, Associate Judge: Appellant James Offutt seeks reversal of his

conviction for tampering with evidence, arguing that the evidence was insufficient
                                          2

to support his conviction and that the trial court erroneously allowed him to be

cross-examined on an impermissible basis. We affirm.



                                          I.



      The evidence at trial indicated the following. In August of 2013, Mr. Offutt

had recently moved into an apartment building at 910 Eastern Avenue, N.E.

Dennis Bell had lived in the building for many years. Around 10:30 p.m. on

August 12, 2013, Mr. Bell saw Mr. Offutt sitting in front of the building. Mr. Bell

thought Mr. Offutt was watching him and might be an informant.              Mr. Bell

approached Mr. Offutt and asked if he could talk to Mr. Offutt for a minute. Mr.

Offutt responded, “[Y]ou don’t know me.” Mr. Bell replied, “I know I don’t know

you[,] I just want to talk to you.” In response, Mr. Offutt said, “I got something for

your ass.” Mr. Offutt then went into the apartment building.



      Mr. Bell remained outside, and a couple of minutes later he saw Mr. Offutt

coming towards him with a handgun. Mr. Bell moved towards Mr. Offutt, grabbed

the gun, and shot the gun in Mr. Offutt’s direction. Mr. Bell did not know if he hit

Mr. Offutt. Mr. Bell discarded the gun behind a parked car and ran away to try to

find police officers. From a distance, Mr. Bell saw Mr. Offutt pick up the gun.
                                         3



      An eyewitness flagged down two police officers and reported the incident.

The officers drove to the scene of the shooting. As they were searching the scene,

Mr. Offutt ran out of a building and told the police that he had been shot. The

officers called for an ambulance, which arrived.



      Meanwhile, Mr. Bell went to a police station and reported the shooting. Mr.

Bell then returned to the scene of the shooting. As Mr. Bell approached police

officers on the scene, Mr. Offutt noticed him. Mr. Offutt got out of the ambulance

and punched Mr. Bell in the face, saying, “that’s the [expletive] who shot me.”

Mr. Bell was arrested.



      Mr. Offutt was taken to Howard Hospital for treatment. There, a detective

told Mr. Offutt that the police would be getting a warrant to search Mr. Offutt’s

apartment. Mr. Offutt was medically discharged at 2:52 a.m. After Mr. Offutt left

the hospital, he went to the police station and spoke with Detective Jeffrey Dixon.

Mr. Offutt told Detective Dixon that he had gone to his apartment and the police

would not let him in. Detective Dixon explained that he was in the process of

obtaining a search warrant for Mr. Offutt’s apartment and that Mr. Offutt could not

go into the apartment until the warrant was executed.
                                         4



      Mr. Offutt lived in apartment 103. Police officers secured the apartment and

then guarded the apartment until a search warrant was obtained and executed. At

times, only the front of the apartment was guarded, but from sometime between

2:00 and 3:00 a.m. to 6:00 a.m. the back was guarded as well. The officers

guarding the apartment did not hear glass breaking and were not aware of anyone

entering the apartment.



      James Lee lived above Mr. Offutt, in apartment 203. Mr. Lee heard glass

shattering late on the night of August 12th. Mr. Lee testified to the grand jury that

he then went out on his balcony and saw Mr. Offutt when he looked down. Mr.

Lee also testified to the grand jury that he saw Mr. Offutt again in the morning,

standing beneath Mr. Offutt’s balcony. Mr. Lee’s trial testimony was less clear

about when and where he saw Mr. Offutt. Mr. Lee had not known Mr. Offutt well

at the time of the shooting, but the two had since become friends.



      The police executed the search warrant in the afternoon on August 13th.

When they entered the apartment, the officers noticed that the large glass door

going out to the balcony was shattered. Detective Dixon had been in the apartment

when it was first secured, and at that time the glass door was intact. In the back
                                         5

bedroom, a screwdriver lay next to an access panel on the wall that opened to

plumbing access for the bathroom. There was debris on the floor of the access

area, and there were marks as though something had been dragged across the

surface of the floor. The panel had not been removed when Detective Dixon was

securing the apartment.



      Mr. Offutt testified at trial. His account of the shooting was that Mr. Bell

verbally accosted him, Mr. Offutt eventually lost his temper and used an expletive,

Mr. Bell pulled a gun, Mr. Offutt ducked, and Mr. Bell shot Mr. Offutt. Mr. Offutt

denied breaking into his apartment. He testified that at the time of the incident he

weighed over 300 pounds. He had been in a car accident about a week or two

before the incident, injuring his neck and back. He had been told to go to physical

therapy for his injuries and he was on leave from his employment until September

because of the injuries. He had a plate in his arm that prevented him from doing a

pull-up, and he could not have climbed onto the balcony to break into his

apartment.



      Mr. Offutt did not tell the physicians treating him for the gunshot wound

about the car accident or the physical therapy. No physical-therapy records were

admitted into evidence.
                                         6



      The jury found Mr. Offutt guilty of simple assault and tampering with

evidence but acquitted Mr. Offutt of assault with a dangerous weapon, possession

of a firearm during a crime of violence, unlawful possession of a firearm,

possession of an unregistered firearm, and unlawful possession of ammunition.



                                         II.



      Mr. Offutt argues that insufficient evidence supported the tampering

conviction, because the United States presented no evidence as to what specific

object of evidence was tampered with by Mr. Offutt.          We conclude that the

evidence was sufficient.



      In reviewing the sufficiency of the evidence to support a conviction, “we

view 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, and making no distinction between direct and

circumstantial evidence.” Medley v. United States, 104 A.3d 115, 127 n.16 (D.C.

2014) (internal quotation marks omitted). “[T]he evidence is sufficient if, after

viewing it in the light most favorable to the prosecution, any rational trier of fact
                                           7

could have found the essential elements of the crime beyond a reasonable

doubt . . . .”   Smith v. United States, 55 A.3d 884, 887 (D.C. 2012) (internal

quotation marks omitted). “[A]lthough a jury is entitled to draw a vast range of

reasonable inferences from evidence, it may not base a verdict on mere

speculation.” Schools v. United States, 84 A.3d 503, 508 (D.C. 2013) (internal

quotation marks omitted). “[A]ppellate review of sufficiency of the evidence is

[not] toothless,” and “[w]e have an obligation to take seriously the requirement that

the evidence in a criminal prosecution must be strong enough that a jury behaving

rationally really could find it persuasive beyond a reasonable doubt.” Rivas v.

United States, 783 A.2d 125, 134 (D.C. 2001) (en banc).



       A person is guilty of tampering with physical evidence “if, knowing or

having reason to believe an official proceeding has begun or knowing that an

official proceeding is likely to be instituted, that person . . . conceals, or removes

a[n] . . . object, with intent to impair [the object’s] . . . availability for use in the

official proceeding.”     D.C. Code § 22-723 (a) (2016 Supp.).             An “official

proceeding” is “any trial, hearing, investigation, or other proceeding in a court of

the District of Columbia or conducted by . . . an agency or department of the

District of Columbia government.” D.C. Code § 22-721 (4) (2012 Repl.).
                                         8

      As Mr. Offutt acknowledges, the jury could reasonably have concluded that

Mr. Offutt broke into his apartment and removed some object. Mr. Offutt also

does not dispute that he knew or had reason to know that an official proceeding

had begun or was likely to begin in connection with the shooting. Mr. Offutt

argues, however, that there was no evidence of what exactly was taken and that it

therefore is unduly speculative that the object was taken to impair the object’s use

in that proceeding. We disagree. It is true that there was no direct evidence as to

precisely what Mr. Offutt took from his apartment. The absence of such direct

evidence, however, is not necessarily fatal to a prosecution for tampering with

evidence.   See, e.g., State v. Majors, 318 S.W.3d 850, 859-61 (Tenn. 2010)

(Tennessee tampering statute does not require proof of specific item altered,

destroyed, or concealed; sufficient evidence to support conviction where police

arrived to execute warrant, defendant ran to bathroom, police heard sound of

flushing toilet, and defendant emerged from bathroom). In the circumstances of

this case, moreover, we conclude that a reasonable juror could have inferred

beyond a reasonable doubt that Mr. Offutt acted with the intent to prevent the

police from finding something the police could have used in investigating and

prosecuting charges arising from the shooting.
                                         9

      The evidence permitted the jury to conclude the following. Mr. Offutt had

been shot right outside his apartment building during an altercation. Mr. Offutt

knew that the police were investigating the shooting and had obtained a warrant to

search Mr. Offutt’s apartment for evidence relating to the shooting. Mr. Offutt was

told that he could not go into his apartment until the warrant was executed.

Nevertheless, Mr. Offutt left the hospital, went to his apartment in the middle of

the night, broke in by climbing onto a balcony and shattering a glass door, and

removed something that had been hidden in the apartment. Given this sequence of

events, the jury could reasonably infer that Mr. Offutt acted out of fear that the

police would find something relevant to the shooting, which could include a gun,

ammunition, or other evidence tending to indicate that Mr. Offutt had brought the

gun to the encounter.



      It is possible that in fact Mr. Offutt did not possess anything relevant to the

shooting, but instead coincidentally possessed unrelated items that were so

incriminating as to cause Mr. Offutt to take the extraordinary steps that he took.

The evidence, however, “need not negate every possible inference of innocence to

be sufficient. The issue is whether the evidence is probative enough to permit the

jury to make the required inference beyond a reasonable doubt.” Brown v. United

States, 146 A.3d 110, 112 (D.C. 2016) (brackets, citation, and internal quotation
                                        10

marks omitted). Given the absence of evidence that Mr. Offutt possessed any

unrelated incriminating objects, and given the close temporal and physical

proximity between the shooting and Mr. Offutt’s removal of an object from his

apartment, the jury acted permissibly in inferring beyond a reasonable doubt that

Mr. Offutt was hiding something relevant to the shooting. See generally Poulnot v.

District of Columbia, 608 A.2d 134, 139 (D.C. 1992) (“Coincidences happen, but

an alternative explanation not predicated on happenstance is often the one that has

the ring of truth.”).



                                       III.



       Mr. Offutt also argues that the trial court erred by allowing impermissible

cross-examination. We conclude that any error was harmless.



       In an effort to challenge Mr. Offutt’s claim that he could not have climbed

onto his balcony because of injuries suffered in a recent car accident, the United

States established on cross-examination that Mr. Offutt had not mentioned the

accident to the doctors treating him for the gunshot wound and had not told them

that he was in physical therapy. After pointing out that Mr. Offutt’s attorney had

introduced medical records about Mr. Offutt’s gunshot wound, the United States
                                        11

further established that Mr. Offutt’s attorney had not introduced any medical

records relating to physical therapy for the claimed accident. The trial court

overruled Mr. Offutt’s objection to that cross-examination.



      On appeal, Mr. Offutt argues that this line of cross-examination unfairly

undermined his credibility, because the choice as to what evidence to introduce lay

solely with his attorney. Assuming without deciding that the cross-examination

was impermissible, we conclude that any error was harmless. See generally, e.g.,

Smith v. United States, 26 A.3d 248, 264 (D.C. 2011) (“[I]f . . . the error did not

influence the jury, or had but very slight effect, the verdict and the judgment

should stand . . . .”) (quoting Kotteakos v. United States, 328 U.S. 750, 764

(1946)). The questioning at issue came immediately after an unchallenged line of

questioning had established that Mr. Offutt had not told the physicians treating him

for his gunshot wound about the car accident in which he claimed to have been

seriously injured a week or two earlier. Moreover, it was accurate that no evidence

of medical records relating to the accident was before the jury, and the United

States could permissibly point out to the jury the absence of such corroborating

evidence. See, e.g., Harris v. United States, 602 A.2d 154, 165 (D.C. 1992) (en

banc) (prosecutor may permissibly argue absence of evidence corroborating

defense testimony). Finally, the United States did not thereafter bring up before
                                         12

the jury the absence of medical records relating to physical therapy for the claimed

accident. Cf., e.g., Dancy v. United States, 745 A.2d 259, 274 (D.C. 2000) (“The

fact that the prosecutor did not mention [the disputed evidence] in her opening,

closing, or rebuttal statements to the jury further demonstrates their insignificance

to the evidence of [the defendant’s] guilt.”).       Under the circumstances, we

conclude that any error in allowing the challenged cross-examination was

harmless.



                                        IV.




      For the foregoing reasons, we affirm the judgment of the Superior Court.




                                                    So ordered.
