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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-CF-943

                         RONALD J. JACKSON, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF3-15862-15)

                       (Hon. Marisa J. Demeo, Trial Judge)

(Argued March 13, 2019                                    Decided June 27, 2019)

      Mindy A. Daniels for appellant.

      Eric Hansford, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman, Michael P. McCarthy, and Ryan
Creighton, Assistant United States Attorneys, were on the brief, for appellee.

      Before FISHER and BECKWITH, Associate Judges, and FERREN, Senior Judge.

      FISHER, Associate Judge: A jury found appellant Ronald Jackson guilty of

assault with a dangerous weapon. The sole question before this court is whether

the trial court abused its discretion by admitting evidence that appellant used PCP

eighteen hours before the attack without any accompanying expert testimony
                                         2

enabling the jury to evaluate whether Jackson was under the influence of the drug

at the time of the assault. We reverse and remand for a new trial.



                              I. Factual Background



      Appellant Ronald Jackson and Desmon Beasley had been best friends for

over forty years. In 2014, Jackson moved into Beasley’s apartment. At that time,

Beasley weighed over 600 pounds and, as a result, had limited mobility. Jackson

paid Beasley a small amount in rent and assisted Beasley with daily activities.



      By November 2015, the situation between Beasley and Jackson had

changed, and Beasley wanted Jackson to move out.               Beasley had lost a

considerable amount of weight and was better able to move around. He began to

pursue a romantic relationship with his friend, Erika Williams, and found it

difficult to do so with Jackson in the apartment.       Additionally, Beasley was

frustrated by Jackson’s inability to maintain a steady job and had difficulty

supporting both himself and Jackson on his Social Security income.



      Tensions between Jackson and Beasley came to a head on November 13,

2015. That morning, Beasley told Jackson to leave the apartment and offered him
                                         3

money for a Metro fare. Beasley heard Jackson leave, and then went back to sleep

in the bedroom with Williams. Later that afternoon, Williams woke up and asked

Beasley to escort her to the bathroom. From the hallway, Beasley saw Jackson

sitting on the couch in the living room, shucking clams and eating ice cream.



      According to the evidence at trial, Beasley approached Jackson and

demanded multiple times that he leave the apartment. Jackson did not respond to

Beasley and, instead, stared at the television with a blank face and glassy eyes.

Beasley grew upset that Jackson was not responding to him. Although Beasley

and Jackson had never physically fought during their forty-year friendship, Beasley

struck Jackson hard on the head. During the ensuing scuffle, Jackson picked up

the knife he was using to shuck clams and swung it at Beasley’s face, striking him

in the eye. By all accounts, the attack was out of character for Jackson, who is

normally a peaceful person. The attack left Beasley blind in his left eye.



                          II. Relevant Trial Testimony



                              A. Evidence of Drug Use
                                         4

      Prior to trial, the government moved in limine to admit evidence that

Jackson used phencyclidine (PCP) on November 12, 2015, the night before the

fight. The government contended that such evidence provided important context

that would serve to explain Jackson’s odd behavior, why Beasley wanted Jackson

to leave the apartment, and why Beasley was in the living room when he was

assaulted. Jackson opposed the motion, arguing that any evidence of PCP use was

evidence of other crimes or bad acts which was unfairly prejudicial.



      Judge Marisa Demeo ruled the evidence admissible. Citing cases which we

discuss below, the court found that such testimony would provide context and

serve to explain the witnesses’ observations, beliefs, and behaviors. The court

determined that there was a close temporal relationship between Jackson’s use of

PCP on November 12 and the attack the following afternoon. After reviewing the

proffered evidence, the court found that its probative value was not substantially

outweighed by the danger of unfair prejudice. The court denied the government’s

request to admit testimony of Jackson’s use of PCP prior to November 12, 2015.



      At trial, both Williams and Beasley testified that they smelled PCP in the

apartment prior to the assault. Williams testified that at around 8:00 p.m. on

November 12, while she was at the apartment, she saw Jackson smoke a cigarette
                                          5

which had a “plastic” odor, similar to embalming fluid. Over objection, Williams

testified that the cigarette smelled like PCP, an odor she recognized from walking

past individuals smoking it on the streets. Williams further testified that Jackson

began acting strangely after smoking the cigarette.        She described Jackson’s

movements as being “disconjointed” and “demonic.” Williams stated that the

apartment smelled like PCP the following morning as well. Beasley, who had used

PCP in the past, corroborated this testimony, stating that he smelled the odor in the

apartment on November 13. Williams testified that because she felt uncomfortable

around PCP, and “wasn’t sure what was going to happen,” she asked Beasley to

walk her to the bathroom. Despite the testimony from Williams and Beasley,

Jackson denied using PCP on November 12 or 13, or smelling it in the apartment

either day.



                            B. Jackson’s Claim of Self-Defense



      At trial, Jackson testified that he stabbed Beasley in self-defense. He said

that Beasley struck him so hard on the head that he “lost a little . . . understanding

of what was going on.” Jackson stated that as he lay “sideways” on the couch, he

felt Beasley “pin[] down” his left arm. Then, Beasley put his entire body weight

on Jackson. Jackson testified that while Beasley was pushing into him with his
                                          6

whole weight, he was struggling to get off the couch, but “couldn’t breathe and . . .

was in fear for [his] life.” To defend himself, Jackson grabbed the clam shucker

which was “right at [his] reach” and swung it at Beasley. It is undisputed that

Jackson called the police after the fight and stated that he stabbed Beasley in the

eye, but did not mention anything about doing so in self-defense. A character

witness testified that Jackson’s “reputation was exceptional for being a very

peaceful person.”



                             C. The Jury’s Verdicts



      Ultimately, the jury acquitted Jackson of aggravated assault while armed but

convicted him of the lesser-included offense of assault with a dangerous weapon.

This timely appeal followed sentencing.



                                   III. Analysis



      As a general rule, evidence of another crime is “inadmissible to prove

disposition to commit” the charged offense. Drew v. United States, 331 F.2d 85,

89 (D.C. Cir. 1964). However, we have long recognized a distinction between

other crimes evidence that is used to suggest propensity and that which is relied
                                           7

upon to prove the charged offense. Johnson v. United States, 683 A.2d 1087,

1096-98 (D.C. 1996) (en banc). In Johnson, we discussed three instances in which

such evidence falls into the latter category: “where [it]: (1) is direct and substantial

proof of the charged crime, (2) is closely intertwined with the evidence of the

charged crime, or (3) is necessary to place the charged crime in an understandable

context.” Id. at 1098.



      In Toliver v. United States, 468 A.2d 958, 960-61 (D.C. 1983), we held that

evidence of another crime “is admissible when relevant to explain the immediate

circumstances surrounding the offense charged.” Id. at 960. Such evidence serves

to provide the jury with the necessary context of the charged offense and to

“complete the story of [that] crime.” Id. (citation omitted). Indeed, because of its

nature, “this limited class of evidence is not other crimes evidence because it is too

intimately entangled with the charged criminal conduct” and falls outside of Drew.

Id.   Regardless of whether such evidence is admissible under Drew or

Toliver/Johnson, it is still subject to a balancing of its probative value and

prejudicial effect.   Johnson, 683 A.2d at 1098-99 (adopting Federal Rule of

Evidence 403).
                                        8

                          A. Admissibility of PCP Evidence



       We agree with the government that testimony regarding Jackson’s use of

PCP qualifies as Toliver/Johnson evidence.         It was not offered for the

impermissible purpose of showing propensity to commit crime, see Drew, 331

F.2d at 89-90, but “to explain the immediate circumstances surrounding” the

attack, see Toliver, 468 A.2d at 960. The evidence served to provide context for

the crime itself, to explain Jackson’s behavior, and to test his memories and

perceptions of the fight. Id.



       However, our inquiry into the admissibility of the PCP evidence does not

end there. As with all evidence, this testimony is inadmissible if its probative

value is substantially outweighed by the danger of unfair prejudice. See Johnson,

683 A.2d at 1098-99. A wide “variety of factors” are considered in this analysis,

“including the need for the evidence, the efficacy of alternative proof, and the

degree to which the evidence probably will rouse the jury to overmastering

hostility.”   United States v. Morton, 50 A.3d 476, 482 (D.C. 2012) (internal

quotation marks omitted). We recognize that this evaluation is “quintessentially a

discretionary function of the trial court, and [is] owe[d] a great degree of

deference.” Malloy v. United States, 186 A.3d 802, 811 (D.C. 2018) (quoting
                                         9

Holmes v. United States, 143 A.3d 60, 63 (D.C. 2016)). However, we cannot defer

to the trial court’s judgment in this instance. As appellant contends, and we

discuss further below, without the testimony of an expert, the probative value of

the evidence was substantially outweighed by its prejudicial effect.



      As a threshold matter, government counsel asserted for the first time at oral

argument that appellant failed to preserve this argument.        Appellee therefore

argues that we must review only for plain error. We disagree. At a pretrial hearing

on the government’s motion to admit the PCP evidence, appellant asserted multiple

times that it was “speculative.” Appellant noted the lack of expert testimony,

stating that it “would be one thing” if the government planned on calling “an

expert dealing with PCP.” He further addressed the gap in time between when

Williams saw Jackson smoking PCP and the attack, stating that while Jackson may

have used PCP prior to the attack, “it doesn’t mean that he was under the influence

at the time of the incident.” Although much of this discussion was focused on the

foundation for Williams’ testimony, it was sufficient in our view to preserve the

issue for appeal. See Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992)

(“Objections must be made with reasonable specificity; the judge must be fairly

apprised as to the question on which he is being asked to rule.”) (emphasis added).
                                         10

Accordingly, we review for abuse of discretion. See Muschette v. United States,

936 A.2d 791, 797 (D.C. 2007).



                             B. The Need for an Expert



      In assessing the need for an expert, “[t]he determinative question . . . is

whether the jurors are ‘just as competent as the expert to consider and weigh the

evidence and draw the necessary conclusions.’” Minor v. United States, 57 A.3d

406, 415 (D.C. 2012) (emphasis omitted) (quoting Adams v. United States, 502

A.2d 1011, 1021-22 (D.C. 1986)). The evaluation of juror competence may vary

with the issue being addressed. For example, while we permit lay witnesses to

offer opinions on whether an individual appeared to them to be under the influence

of drugs, see Harris v. District of Columbia, 601 A.2d 21, 24-26 (D.C. 1991), and

allow jurors to weigh the credibility of that testimony without the aid of an expert,

assessing the effect of drug use upon testimonial capacity “seems to require

information beyond that ordinarily attributable to the average juror,” Durant v.

United States, 551 A.2d 1318, 1328 n.12 (D.C. 1988) (quoting J. Weinstein & M.

Berger, 3 Weinstein’s Evidence ¶ 607[04], 607-61)).
                                         11

      A review of our cases reveals that expert testimony ordinarily is required

when the key question is whether and how PCP continues to affect a particular

individual hours after ingestion. See Robinson v. United States, 50 A.3d 508, 525

(D.C. 2012) (error to exclude expert testimony proffered by defense “about the

general effects of PCP within 24 hours of use” because it would help explain to the

jury whether “PCP [smoked several hours before the time in question] was still

affecting [a witness].”); Kigozi v. United States, 55 A.3d 643, 651-53 (D.C. 2012)

(stating that where the crucial issue was “whether [murder victim] was actively

under the influence of PCP at the time of the shooting so as to undermine the

reliability of his dying declaration,” defense counsel was ineffective in deciding to

rely on what the “average juror would know about PCP and its general effects . . .

without knowing what an expert would be able to contribute to the jury’s

understanding of the evidence”) (internal quotations omitted); Durant, 551 A.2d at

1328 (holding that an expert was necessary to determine whether an individual

who had an unspecified amount of PCP in his urine the day after he allegedly

committed a crime was under the influence of the drug at the time of the crime);

United States v. Roy, 114 Daily Wash. L. Rptr. 2481, 2491 (Burgess, J.) (Super. Ct.

Dec. 1, 1986) (requiring expert testimony to determine how long evidence of PCP

use can remain in the body). Relying on our precedent, we conclude that the

analysis the jury was asked to conduct in this instance was not within “the ken of
                                        12

the average layperson.” Blakeney v. United States, 653 A.2d 365, 369 (D.C. 1995)

(brackets and citation omitted).



      The lack of expert testimony regarding the effects of PCP and how long they

may last impacts both probative value and prejudicial effect. In this case, without

an expert to assist the jury, the probative value of the PCP evidence was low. An

eighteen-hour gap existed between when Williams saw Jackson smoking a PCP-

laced cigarette at 8:00 p.m. on November 12 and the attack, which occurred at 2:00

p.m. the following afternoon.      This gap in time, coupled with the general

uncertainty about the effects of PCP on a particular individual, leaves too much

room for speculation. We see several questions attributable to the lack of expert

testimony, including: the amount of time it takes a PCP high to dissipate; whether

repeated use of PCP can create a higher level of tolerance, thus reducing the drug’s

effect on a particular individual; and whether Jackson was under the influence of

PCP at the time of the attack. See Coates v. United States, 558 A.2d 1148, 1154

(D.C. 1989) (recognizing that the effect of narcotics depends on a variety of

factors). Because of these unresolved questions we conclude that “the government

provided too slim a reed to support a conclusion that [appellant] was under the

influence of PCP at the time” of the attack. Durant, 551 A.2d at 1328. Expert
                                        13

testimony was therefore required to “impart[] probative value” to the evidence of

Jackson’s PCP use. Id.



                 C. The Government’s Arguments Regarding the
                           Evidence’s Probative Value


      The government attempts to persuade us that the PCP evidence was “highly

probative” for two reasons: (1) to explain why Williams wanted Beasley to escort

her to the bathroom and (2) to explain the “shocking” attack and Jackson’s odd

behavior the night before. We are not convinced.



      First, we do not see why there was a need to explain, with or without the aid

of an expert, why Beasley was present in his own living room. Moreover, while

Williams testified that she felt “uncomfortable” because of the PCP use the night

before, she did not express those concerns to Beasley. Beasley believed that

Williams asked for an escort because “she was kind of inebriated.” Because

Williams’ uneasiness around PCP had no bearing on the interaction between

Beasley and Jackson, it was not probative with respect to Jackson’s claim of self-

defense.
                                        14

      The government’s other reason – explaining appellant’s shocking attack —

is undercut by the lack of proof to support the desired conclusion. It may well be

that many violent attacks are committed because the assailant is under the

influence of PCP. However, as discussed, the evidence that Jackson was acting

under the influence of PCP at the time of the attack was largely speculative.

Williams’ testimony that she saw Jackson smoking PCP eighteen hours beforehand

is the only concrete evidence of his PCP use. Although there was testimony

describing a PCP odor the following day, it is not clear whether that smell lingered

from the night before or provided circumstantial evidence of more recent use by

Jackson. 1   Importantly, while the government characterizes the fight as a

“shocking” attack, the initial aggressor was Beasley, not Jackson.



                     D. The PCP Evidence’s Prejudicial Effect



      Turning to the prejudicial effect, we further conclude that without expert

testimony, the PCP evidence was prejudicial. Evidence of an individual’s drug use

may inherently have a prejudicial effect. See, e.g., Rogers v. United States, 419

A.2d 977, 981 (D.C. 1980) (considering evidence that a witness is a drug user to be
      1
        At oral argument, government counsel appeared to contend that Jackson
must have smoked PCP sometime after Williams saw him do so. There are many
other explanations, apart from the smell of PCP in the apartment earlier that
morning, for Jackson’s “glassy eyes” and odd choice of food just before the attack.
                                       15

“inflammatory”). In many instances, this effect is minimal, and would not be so

substantial as to preclude a trial court from admitting such evidence.      Here,

however, this prejudicial effect was compounded by the government’s failure to

present expert testimony describing how an individual may act while on PCP. The

jurors apparently were forced to rely on their own (perhaps quite varied)

impressions of the drug. See Harris, 601 A.2d at 24 (recognizing that “drugs other

than alcohol can produce a confusing array of symptoms”) (quoting State v. Rifkin,

140 Vt. 472, 476, 438 A.2d 1122, 1124 (1981)). Those impressions may be

colored by stories in the news describing individuals on PCP as violent and

impulsive. But see Kigozi, 55 A.3d at 653 (holding that, even assuming a jury

would know about the “general effects of PCP,” it would not be able to determine

how a particular individual’s actions could have been affected by the drug).

Furthermore, had an expert testified, Jackson would have been able to cross-

examine her and perhaps could have presented evidence to rebut her conclusions.

In the circumstances of this case, Jackson could not know what the jurors’

assumptions may have been, and did not have an opportunity to address them

appropriately.



      For the reasons discussed above, the trial court exercised its discretion

erroneously in admitting evidence of Jackson’s PCP use. But this error does not
                                           16

necessarily establish an abuse of discretion. We must also consider “whether the

impact of that error requires reversal.” Johnson v. United States, 398 A.2d 354,

367 (D.C. 1979). “It is when both these inquiries are answered in the affirmative

that we hold that the trial court ‘abused’ its discretion.” Id.



                             E. Harmless Error Analysis



      In order to affirm, we must be satisfied “with fair assurance, after pondering

all that happened without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.” Kotteakos v. United States,

328 U.S. 750, 765 (1946). An error is harmless if we “find it highly probable that

that error did not contribute to the verdict.” Clark v. United States, 593 A.2d 186,

192 (D.C. 1991) (internal quotations omitted). This decision cannot be based on a

“mere hunch that the case would have ended with the same verdict.” Id. Rather,

“we must look to the closeness of the case, the centrality of the issue affected by

the error, and any steps taken to mitigate the effects of the error.” Id. at 193. After

analyzing all relevant facts and inferences, we cannot say with fair assurance that

admitting the PCP evidence without testimony from an expert did not substantially

sway the jury’s verdict.
                                          17

         We agree with the government that there were valid reasons why the jury

may have disbelieved Jackson’s version of events. To start, although Jackson

described a fight in which he “fear[ed] for [his] life,” there was little evidence of a

struggle. Neither Jackson nor the apartment appeared to be “disheveled” in any

way, and Williams did not hear “any kind of tussling” while she was in the

bathroom.     Furthermore, Jackson’s testimony at trial differed from his initial

statements to emergency personnel and the police. Perhaps even more detrimental

to his defense, Jackson’s attestations in his application for a civil protection order

conflicted with both the version of events he told police and what he testified to at

trial.



         Despite these inconsistencies, we cannot say that the evidence against

Jackson was overwhelming. It was the government’s burden to disprove self-

defense beyond a reasonable doubt. Williams v. United States, 90 A.3d 1124, 1128

(D.C. 2014). By all accounts, Beasley was the initial aggressor, and he struck

Jackson without warning. It is also undisputed that Beasley weighed almost 500

pounds at the time of the attack — nearly three times more than Jackson weighed.

That information alone made a claim of self-defense plausible.
                                        18

      It may be reasonable for a man attacked by someone three times his size to

believe it “necessary to protect himself from imminent bodily harm.” But when a

jury is led to believe that Jackson was high on PCP at the time of the attack, this

self-defense theory is undermined. It is likely that the jury viewed the stabbing as

the product of a drug-fueled rage rather than Jackson’s reasonable effort to protect

himself. Such a conclusion would be entirely valid if founded on evidence, but not

when it is based on speculation.



      Furthermore, “[t]he issue to which the error related was an important one.”

Clark, 593 A.2d at 193. In making such determinations, we often look at the

emphasis a prosecutor places on the evidence in question. See Allen v. United

States, 837 A.2d 917, 923 (D.C. 2003) (quoting United States v. DeLoach, 504

F.2d 185, 192 (D.C. Cir. 1974)). Specifically, we have noted that “[a] prosecutor’s

stress upon the centrality of particular evidence in closing argument tells a good

deal about whether the admission of the evidence was meant to be, and was,

prejudicial.” Morten v. United States, 856 A.2d 595, 602 (D.C. 2004) (internal

quotations omitted).



      Throughout closing arguments, the government relied on the PCP evidence

to explain Jackson’s behavior. The government’s theory was that “in an explosive
                                        19

moment of anger, the defendant, who had been acting erratically for about more

[sic] than twelve hours from November 12 into November 13,” stabbed Beasley.

Multiple times, the government described Jackson as a “peaceful, regular guy”

until he smoked PCP and his “demeanor actually changed.” According to the

government, after smoking the PCP, Jackson “snapped, and in an explosive

moment of anger, stabbed [Beasley] in the eye.”



        The government tied the fact that Jackson smoked PCP on the night of

November 12 to the attack the following afternoon, stating that “what happens on

November 12th . . . explains and . . . puts into context the sequence of events that

happened on November 13th. So, you can’t evaluate November 13th without

November 12th.”     The prosecutor commented several times that Jackson was

acting strangely for at least twelve hours after smoking the PCP.2         But the

testimony at trial does not corroborate this assertion. Beasley and Williams were

not with Jackson for the entire eighteen-hour period between when he smoked the

PCP and the fight the following afternoon. Accordingly, the witnesses did not

testify—nor could they—that Jackson was acting strangely for that entire period of

time.



        2
        The government’s assertion in closing arguments that the gap in time was
twelve hours seems to have been a mathematical error.
                                         20

      Given the government’s reliance on Jackson’s use of PCP and, as we

discussed above, the likelihood that such evidence would undermine Jackson’s

self-defense claim, the erroneously admitted testimony was directly related to the

key issue before the jury. Finally, we note that the trial judge took no steps to

mitigate the effects of this error. See Clark, 593 A.2d at 193.



      The government argues that any error was harmless because “the evidence

that appellant used PCP was almost certain to come before the jury anyway” to

“assess [Jackson’s] perception of the events and his ability to remember them.”

But, had the evidence been admitted on cross-examination of Jackson, it would

have been admitted for the purpose of impeaching his ability to accurately perceive

and recall events. It would not have been admitted, as it was here, to explain his

behavior.



      Moreover, using the evidence to test Jackson’s credibility may not have

avoided the need for an expert. In order for evidence of an individual’s drug use to

be admissible for impeachment purposes, a sufficient foundation must be laid to

show that the individual “in fact was under the influence of drugs at the relevant

time.” Durant, 551 A.2d at 1326. See also Rogers, 419 A.2d at 981. It is not

obvious that the use of PCP eighteen hours “prior to the events in question” was
                                         21

“probative of impaired perception and memory” and could have been properly

admitted on cross examination without illumination from an expert. Durant, 551

A.2d at 1326. Likewise, this evidence would be equally inadmissible to impeach

the account of Jackson’s reputation by the character witness. The PCP testimony

can only rebut Jackson’s claim to have a peaceful nature if it can be established

that the attack on November 13 was a result of using PCP. As we have reiterated

throughout this opinion, without relying on expert testimony, such a conclusion is

too speculative. Accordingly, we conclude that the trial court’s error was not

harmless.



                                     IV. Conclusion



      For the reasons discussed above, we reverse appellant Jackson’s conviction

for assault with a dangerous weapon and remand this case to the trial court for

further proceedings consistent with this opinion.



                                              It is so ordered.
