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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 14-CF-129

                         MICHAEL SANDERS, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF3-12936-13)

                    (Hon. Patricia A. Broderick, Trial Judge)


(Argued March 12, 2015                                      Decided July 2, 2015)

      Stefanie Schneider, Public Defender Service, with whom James Klein and
Alice Wang, Public Defender Service, were on the brief, for appellant.

       L. Jackson Thomas II, Assistant United States Attorney, with whom Ronald
C. Machen, Jr., United States Attorney at the time the brief was filed, and
Elizabeth Trosman, John P. Mannarino, and Marco A. Palmieri, Assistant United
States Attorneys, were on the brief, for appellee.

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

      MCLEESE, Associate Judge: Appellant Michael Sanders seeks reversal of his

conviction for assault with intent to commit robbery (“AWIR”). Mr. Sanders

argues that the jury was not given adequate guidance in response to a jury note
                                          2

about an element of the offense. We agree. Concluding that the error was not

harmless, we reverse and remand for further proceedings.



                                         I.



         The government presented the following evidence at trial. On May 17, 2013,

Hoa Truong was riding a Metro train. According to Mr. Truong, as the train

approached the Brookland Metro station, a person whom Mr. Truong later

identified as Mr. Sanders approached Mr. Truong and asked for money. Mr.

Truong told Mr. Sanders that he did not have any money, and Mr. Sanders turned

away and walked to the rear of the car. Mr. Sanders later approached Mr. Truong

again and asked for Mr. Truong’s phone. After Mr. Truong refused to give Mr.

Sanders the phone, Mr. Sanders punched Mr. Truong in the left eye. Mr. Truong

started to run away, but he was hit from behind by someone and fell to the ground.

The train then stopped, and someone helped Mr. Truong by pulling him off of the

train.



         The government also introduced testimony from Adam Hodge, who was

riding in the same Metro car. As the train approached the Brookland Metro station,

Mr. Hodge saw Mr. Truong “getting beaten.” Mr. Hodge did not see Mr. Sanders
                                         3

speak to Mr. Truong. He saw other people hit Mr. Truong, and saw Mr. Sanders

hit Mr. Truong once as everybody was getting off the train. When asked what role

Mr. Sanders played in the incident, Mr. Hodge explained that Mr. Sanders “was

just the last person to hit him.”



      At the close of the evidence, the trial court instructed the jury that the

elements of AWIR, each of which the government was required to prove beyond a

reasonable doubt, were (1) “Michael Sanders with force or violence injured or

attempted to injure Hoa Truong”; (2) “he did so voluntarily, on purpose and not by

mistake or accident”; (3) “at the time . . . Michael Sanders had the apparent ability

to injure Hoa Truong”; and (4) “at the time of the attempt to injure, Michael

Sanders intended to rob Hoa Truong.”



      On the second day of deliberations, the jury sent a note that included the

following question:


      [W]ith respect to . . . the 4th element of assault with the intent to
      commit robbery, what is the meaning of “at the time of the attempt to
      injure?” If the defendant intended to rob [Mr.] Truong immediately
      prior to the assault, is that “at the time”?


      The parties disagreed on the proper response. The United States took the

position that the answer was “yes,” because an intent to rob “immediately prior to
                                         4

the assault” satisfied the requirement that the intent be “at the time of the attempt

to injure.” Defense counsel argued that “the intent and the act have to coincide,”

and that “legally the answer is no.”      After further discussion, the trial court

answered the question by responding, “That is for the jury to decide.”



                                         II.



      Mr. Sanders argues that reversal is required because the jury was not given

an adequate answer to its question about an element of the offense of conviction.

We agree.



      “The decision on what further instructions, if any, to give in response to a

jury question lies within the sound discretion of the trial court.” Yelverton v.

United States, 904 A.2d 383, 387 (D.C. 2006) (internal quotation marks omitted).

“When a jury sends a note which demonstrates that it is confused, the trial court

must not allow that confusion to persist; it must respond appropriately.” Alcindore

v. United States, 818 A.2d 152, 155 (D.C. 2003); see also, e.g., Murchison v.

United States, 486 A.2d 77, 83 (D.C. 1984) (trial court is under obligation to

respond to jury’s confusion where jury “makes explicit its difficulties”) (internal
                                           5

quotation marks omitted). The trial court is required to clear away any confusion

“with concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 613 (1946).



      The jury in this case asked a legal question about the meaning of an element

of AWIR: “[W]hat is the meaning of ‘at the time of the attempt to injure?’ If the

defendant intended to rob [Mr.] Truong immediately prior to the assault, is that ‘at

the time’?” The parties agree on appeal about the correct answer to that legal

question: the intent to rob must exist at the time of the assault. See Singleton v.

United States, 488 A.2d 1365, 1367 n.2 (D.C. 1985) (elements of AWIR are: “1)

that defendant assaulted complainant, and 2) at the time of the assault, the

defendant acted with specific intent to commit the offense of robbery upon the

complainant”) (internal quotation marks omitted). It follows that the jury should

have been clearly told that the intent to rob must exist at the time of the assault.

Instead, the trial court said that the answer to that legal question was up to the jury.

We conclude that the jury was not given adequate guidance in response to its

question. See, e.g., Alcindore, 818 A.2d at 157-58 (where jury demonstrated

confusion about trial court’s instructions, court was required to re-instruct jury to

address confusion).
                                          6

      We are not persuaded by the United States’s arguments to the contrary. First,

the United States argues that the jury was asking whether intent to rob at the time

of the assault could be inferred from intent to rob immediately before the assault.

The jury’s question, however, was worded as a question about the meaning of the

“at the time” requirement, not as a question about the permissible bounds of

temporal inference.     Even if the note had been ambiguous, moreover, the

appropriate response would have been either to clarify the ambiguity or to take

steps to ensure that any potential confusion was dispelled. See Alcindore, 818

A.2d at 157 (where jury note was subject to at least two reasonable interpretations,

note exhibited sufficient ambiguity as to require response from trial court); see also

Garrett v. United States, 20 A.3d 745, 748-49 (D.C. 2011) (where jury note was

ambiguous as to whether jury had heard extrinsic evidence, trial court had duty to

inquire further); Murchison, 486 A.2d at 83 (expressing approval of trial court’s

request that jury clarify ambiguous note).



      Second, the United States argues that the pre-deliberation instructions to the

jury clearly stated that an intent to rob had to exist at the time of the assault, and

the trial court’s response to the jury note “appropriately left the jury to rely on the

[pre-deliberation] instructions.” The jury note, however, indicated that the jury

was unsure about how to understand the pre-deliberation instructions. In such
                                            7

circumstances, simply redirecting the jury to the pre-deliberation instructions

would not have been a sufficient response. See, e.g., Gray v. United States, 79

A.3d 326, 339 (D.C. 2013) (“[W]e cannot conclude that the court’s re-reading of

the instructions the jury had already heard (and had the opportunity to read and re-

read   for   themselves)     was    effectively    designed   to   dispel    the   likely

misunderstanding.”). In any event, the trial court did not tell the jury that the pre-

deliberation instructions had already answered the jury’s question. Rather, the trial

court told the jury that the jury could decide how to answer that question. Thus,

the response to the jury’s question by its terms authorized the jury to find Mr.

Sanders guilty even if the jury found that Mr. Sanders did not intend to rob at the

time of the assault. In other words, the response to the jury’s question undermined

rather than reinforced the statement in the pre-deliberation instructions requiring

that an intent to rob exist at the time of the assault.



       We therefore conclude that the response to the jury note was not adequate to

dispel the jury’s confusion. We also conclude that the error was not harmless. The

United States acknowledges that any error in this case would require reversal

unless the error “was harmless beyond a reasonable doubt.”                  Chapman v.

California, 386 U.S. 18, 24 (1967); see also Potter v. United States, 534 A.2d 943,

946 (D.C. 1987) (“The provision of an answer to a jury note that is adequate to
                                         8

dispel jury confusion on a controlling issue of a case is such an important aspect of

due process of law that we would have to be satisfied beyond a reasonable doubt

that an omission to provide [such an answer] was harmless before we could

conclude that it did not vitiate the verdict.”). We cannot conclude beyond a

reasonable doubt that the error did not affect the verdict in this case. Mr. Truong

testified that Mr. Sanders twice tried to obtain property from Mr. Truong, and Mr.

Hodge testified that Mr. Sanders threw only a single punch, just as everyone was

leaving the train. This testimony would have permitted a reasonable juror to

conclude that although Mr. Sanders had an intent to rob Mr. Truong at an earlier

point, there was a reasonable doubt as to whether Mr. Sanders still had that intent

at the time he struck Mr. Truong. See generally Longus v. United States, 52 A.3d

836, 857 (D.C. 2012) (“The jury could, of course, have picked and chosen among

the various parts of these witnesses’ testimony, crediting some, disbelieving

others.”). The response to the jury note erroneously authorized such a juror to find

Mr. Sanders guilty.



      Accordingly, the judgment of the trial court is reversed, and the case is

remanded for further proceedings.



                                                                 So ordered.
