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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CF-1837

                          EDDIE WILLIAMS, APPELLANT,

                                        v.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                            of the District of Columbia
                                  (CF2-4178-12)

                        (Hon. Florence Y. Pan, Trial Judge)

(Submitted February 5, 2014                             Decided January 15, 2015)

      Ian A. Williams was on the brief for appellant.

      Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,
Veronica M. Sanchez, and David B. Goodhand, Assistant United States Attorneys,
were on the brief, for appellee.

      Before THOMPSON and EASTERLY, Associate Judges, and RUIZ, Senior
Judge.


      RUIZ, Senior Judge: On July 5, 2012, appellant Eddie Williams was charged

by superseding indictment with assault with a dangerous weapon (ADW),1


      1
          D.C. Code §§ 22-402, -3611 (2012 Repl.).
                                           2

possession of a firearm during a crime of violence (PFCV),2 threats to injure

another person (felony threats),3 and commission of a felony while on release.4

The first three charges were tried by a jury, which convicted appellant of felony

threats and acquitted him of ADW5 and PFCV. The court convicted him of

committing a felony while on release. Appellant challenges the trial court’s ruling

admitting evidence that he had previously threatened the complaining witness on

multiple occasions, once while armed.          He also contends that the trial court

improperly admonished a witness to ―tell the truth‖ in the jury’s presence, and

impermissibly based appellant’s sentence in part on finding that appellant was

armed when he threatened the complaining witness, even though the jury acquitted

him of the weapons offenses. We conclude that appellant did not suffer substantial

prejudice as a result of the asserted errors, and affirm the convictions.




      2
          D.C. Code § 22-4504 (b) (2012 Repl.).
      3
          D.C. Code § 22-1810 (2012 Repl.).
      4
          D.C. Code § 23-1328 (a)(1) (2012 Repl.).
      5
          The jury hung on the lesser-included offense of simple assault.
                                          3


                                          I.


      All charges arise from a single incident on October 11, 2011, when appellant

approached a neighbor, D.J., and threatened to shoot him. D.J. and a friend who

witnessed the encounter testified that they saw appellant reach into the waist or

pocket of his jeans to reveal what looked like the handle of a gun. As the jury

learned, this was not the first hostile interaction between appellant and D.J. They

had met about one year before, right after D.J. had moved to the 37th Street, S.E.

neighborhood, when appellant put a gun to D.J.’s head and told him to ―give me all

your shit.‖ D.J. said at trial that the weapon appellant put to his head, which he

saw from the ―corner of [his] eye,‖ looked ―like a toy gun,‖ like a ―gray or black‖

9-mm gun. When D.J. resisted, appellant tried to ―jack‖6 him and asked him to go

to the ―cut,‖ an invitation that D.J. refused because he did not want appellant ―to

shoot‖ him. D.J. also testified that after that initial encounter appellant would call

him ―bitch ass‖ and taunt him on ―a weekly or monthly basis‖ about D.J.’s former

neighborhood, as ―everybody‖ did.




      6
        D.J. explained that ―jack‖ means ―like they trying to get me like play with
me like.‖
                                         4


                                        II.



      On appeal, appellant contends that the jury should not have been allowed to

hear evidence that: (1) he had once assaulted and made many taunting remarks to

D.J. during the course of the year prior to the October 11, 2011, incident that

underlay the charges, and (2) he was armed with what looked like a gray or black

9-mm gun a year before the charged offenses. The court admitted evidence of

appellant’s past taunts and armed assault against D.J. as relevant to the felony

threats count because it showed the relationship between the parties and explained

why D.J. would have believed that appellant was reaching for a gun. The trial

court ruled that evidence that appellant had brandished a weapon at D.J. in the past

was also relevant to the ADW and PFCV counts, insofar as it provided reason to

think that appellant owned the weapon used to commit the charged offenses. The

trial judge considered that ―the probative value is clearly far greater than any

prejudicial effect.‖



      We review the trial court’s evidentiary rulings for abuse of discretion. See

(Markus) Johnson v. United States, 960 A.2d 281, 294 (D.C. 2008). We apply a

five-step analysis in reviewing whether the trial court has properly exercised

discretion. Id. at 295 (citing (James) Johnson v. United States, 398 A.2d 354, 363-
                                         5

67 (D.C. 1979)). Part of the abuse of discretion standard includes an inquiry into

whether substantial prejudice has ensued as a result of the trial court’s

discretionary action. Id.



      It is a longstanding rule in this jurisdiction that in order to safeguard the

presumption of innocence, evidence of a defendant’s past bad acts is inadmissible

to prove disposition to commit the charged crimes. See, e.g., Harris v. United

States, 366 A.2d 461, 463 (D.C. 1976) (citing Drew v. United States, 331 F.2d 85,

89 (D.C. Cir. 1964)). Such evidence is admissible only if offered for a substantial,

legitimate purpose, such as proving motive, intent, common plan, identity, or

absence of mistake or accident, id. at 463 n.5 (quoting Drew, 331 F.2d at 90), and

only if the issue is genuine, disputed, and material in the case. See Campbell v.

United States, 450 A.2d 428, 430 (D.C. 1982) (citing Willcher v. United States,

408 A.2d 67, 75-76 (D.C. 1979)). However, evidence of the defendant’s past bad

acts does not come within the general rule of exclusion if it is ―(1) direct and

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

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

context.‖ (William) Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996)

(en banc). Evidence of past acts that place the charged crime in context are those

that are ―so closely related to the charged offense in time or place that they are
                                         6

necessary to complete the story of the crime by . . . placing it in context of nearby

and nearly contemporaneous happenings.‖ Id. (quoting Holmes v. United States,

580 A.2d 1259, 1266 (D.C. 1990)); see Wilson v. United States, 690 A.2d 468, 469

(D.C. 1997) (defendant’s threats to kill the decedent days before decedent was

killed were admissible because ―relatively contemporaneous‖ with the charged

offense).   As with any other relevant evidence, the trial court must exclude

otherwise admissible evidence of the defendant’s past bad acts if its probative

value is ―substantially outweighed‖ by the risk of unfair prejudice. (William)

Johnson, 683 A.2d at 1100-01.



                 A. Evidence of appellant’s past threats toward D.J.



      The offense of threats requires proof of three elements: (1) the defendant

uttered words to another person, (2) those words were ―of such a nature as to

convey fear of serious bodily harm or injury‖ to the ordinary hearer, and (3) the

―defendant intended to utter the words that constituted the threat.‖ Carrell v.

United States, 80 A.3d 163, 171 (D.C. 2013); United States v. Baish, 460 A.2d 38,

41 (D.C. 1983) (recognizing that the elements for misdemeanor threats under D.C.

Code § 22-407 and felony threats are the same), abrogated on other grounds by

Carrell, 80 A.3d at 171. In weighing whether the evidence suffices to satisfy the
                                          7

second element, the jury must posit an ordinary hearer ―aware of all the

surrounding circumstances,‖ including the relationship between the defendant and

the person to whom facially threatening language is directed, to determine whether

the defendant’s words, uttered within the framework of that relationship, would

convey fear of serious bodily harm. See Gray v. United States, 100 A.3d 129, 134,

135-36 (D.C. 2014); In re S.W., 45 A.3d 151, 154, 157 (D.C. 2012) (noting that

evidence is generally sufficient for a threats conviction when threatening

statements are made in the context of a ―volatile or hostile relationship‖).



      At issue in this appeal is whether the government’s presentation of evidence

about the past hostile relationship between appellant and D.J. in support of the

charged ADW and felony threats ran afoul of our longstanding prohibition on the

admission of evidence of a defendant’s past bad acts to prove propensity. Here,

because one of the past bad acts in evidence was similar to the charged offense—

armed assault and threats—the risk that the jury would draw an improper inference

of propensity was ―at its greatest.‖ Fields v. United States, 396 A.2d 522, 527

(D.C. 1978).7


      7
        Instead, the trial judge thought the reverse, noting that, ―this is a case in
which he’s alleged to have assaulted somebody with a gun so it’s the same type of
conduct and so I think the prejudicial effect is not so great as to substantially
outweigh the probative value.‖
                                          8


      Evidence about the hostile relationship between appellant and D.J. was

relevant to determining whether the defendant’s words charged as threats would

have conveyed a fear of serious bodily harm to an ordinary hearer in D.J.’s

circumstances.    Some evidence of the repeated taunting—especially the more

recent instances—was clearly probative and admissible to show appellant’s

hostility. But the same cannot be said of the prior armed assault. The passage of

time—about a year—reduced its probative value. The risk of prejudice from

evidence of the prior armed assault, when viewed in light of its reduced probative

value and the availability of other less prejudicial evidence (the repeated taunting)

to show appellant’s hostility, weighed heavily against admission of the year-old

armed assault. Nor was it admissible as ―intertwined‖ with the charged offenses.

Parker v. United States, 586 A.2d 720, 725 (D.C. 1991) (defendant’s physical

abuse of complaining witness seven months before the charged offense was too

temporally removed to be part of the ―surrounding circumstances‖ of the offense).



       The trial court, by misapprehending the risk of prejudice, see note 7 supra,

erred in its exercise of discretion. See (James) Johnson, 398 A.2d at 365 (noting

that failure to consider a relevant factor or reliance on an improper factor is error).

This initial error in the court’s analysis necessarily infected its subsequent

weighing of probative value and potential prejudice. We conclude, nonetheless,
                                          9

that there was no ―abuse‖ of discretion because appellant was not substantially

prejudiced. Id. at 367. First, the court gave a limiting instruction which told the

jury it could use evidence of the past attempted armed robbery only to provide

context for the charged offenses and to show the relationship between appellant

and the complainant, but not for any other purpose.8 Second, it appears that the

jury did not give undue consideration to the prior armed assault in light of its

acquittal on the armed offenses (ADW and PFCV). See (Renaldo) Lucas v. United

States, 102 A.3d 270, 281-82 (D.C. 2014) (emphasizing importance of proper

limiting instruction in evaluating prejudicial impact of prior crimes evidence).

Thus, we can be confident that the jury’s verdict finding appellant guilty of threats

was not substantially swayed by any error.


      8
          Other crimes evidence:

              You have heard evidence that Eddie Williams allegedly
              attempted to rob [D.J.] on a previous occasion. It is up to
              you as a threshold matter to decide whether to accept that
              evidence. This evidence was admitted for the limited
              purpose of providing context for the charged offenses
              and for showing the relationship between Mr. Williams
              and Mr. [J.]. In addition, there is some evidence that a
              gun may have been used during the alleged attempted
              robbery. It is up to you to decide if a gun was used. If
              you find that a gun was used on the prior occasion, you
              may infer but are not required to infer that the same gun
              was used during the charged offenses if those offenses
              occurred. You may not use this evidence for any other
              purpose.
                                        10


                         B. Evidence of prior gun possession



       Evidence that the defendant has possessed the weapon used to commit the

charged offense is relevant evidence of guilt, and is therefore admissible provided

that the connection between the weapon and the offense is not ―conjectural and

remote.‖ Busey v. United States, 747 A.2d 1153, 1165 (D.C. 2000) (quoting

Burleson v. United States, 306 A.2d 659, 662 (D.C. 1973)).         Thus, ballistics

evidence that the weapon used in the charged offense was also used by defendant

in another shooting eight days earlier is admissible as direct evidence that

defendant possessed that weapon. See Jenkins v. United States, 80 A.3d 978, 998-

99 (D.C. 2013). Evidence that the defendant’s weapon met the same general

description as the one used in the charged offense may also be admissible under

this well-established rule. See Daniels v. United States, 2 A.3d 250, 254, 262

(D.C. 2010) (testimony of several witnesses that the defendant had been seen many

times with a black gun and a silver gun was properly admitted when there was

testimony that the murder weapon was black and other testimony that it was

silver).   Admissibility turns on consideration of temporal proximity and the

closeness of the description of the weapon known to be (or have been) in the

defendant’s possession with the one used in the charged offense.         Evidence

connecting the defendant with the weapon used in the offense that puts the weapon
                                        11

in the defendant’s possession close in time to the offense is admissible. See, e.g.,

Jones v. United States, 27 A.3d 1130, 1134 (D.C. 2011) (one month after);

Muschette v. United States, 936 A.2d 791, 797 (D.C. 2007) (several weeks before).

But courts do not abuse discretion in admitting evidence that the defendant had the

weapon at a time further removed from the offense if there is strong evidence that

the weapon was the same type as the one used in the charged offense. See

McConnaughey v. United States, 804 A.2d 334, 338-39 (D.C. 2002) (eleven

months between two sightings of defendant with a chrome-colored .32 caliber

automatic weapon and offense in which .32 caliber bullets were fired from semi-

automatic pistol); (Phillip H.) Johnson v. United States, 701 A.2d 1085, 1092

(D.C. 1997) (picture of defendant taken more than a year before charged offense

admissible where .38 or .32 caliber revolver shown in picture was of design

abandoned in 1940s and would have produced bullets with no rifling marks like

.38 caliber bullets recovered from murder victim).



      In this case, the connection between the weapon purportedly used in the

charged October 11, 2011, assault and the weapon that, according to D.J., appellant

had used one year earlier in an attempt to rob him, was tenuous. D.J. and another

witness to the charged offense saw only what ―looked like‖ the black handle of a

gun in appellant’s waistband or pocket that they did not describe in any further
                                          12

detail, whereas a year earlier D.J. saw, out of the corner of his eye, appellant

brandishing a ―black or grey‖ gun that appeared to be a 9-mm handgun. The

considerable temporal remove between the two events coupled with the tenuous

similarities between the descriptions of the weapons lessened the probative value

of the evidence, while the risk of prejudice was significant for the reasons we have

discussed. These considerations weighed heavily against admission of evidence of

appellant’s prior armed assault on D.J. with a 9-mm gun.9



      We consider whether appellant was substantially prejudiced by admission of

the evidence and again conclude that he was not. The weaknesses in the evidence

connecting the two weapons were pointed out to the jury in closing argument, and

the trial court gave a proper limiting instruction. See note 8, supra. In light of the

jury’s acquittal of the ADW and PFCV charges, we are confident that the jury did

not consider the evidence of his prior gun possession for an improper purpose and

thus that appellant did not suffer substantial prejudice.




      9
         The trial court recognized that ―the details about this gun are less clear, as
those in the case law,‖ but concluded that ―there’s a reasonable probability that it’s
the same gun. There is no indication that it is not the same gun.‖ This statement
does not support admission of a defendant’s gun possession a year earlier.
                                          13


                                         III.



      Appellant contends the trial court plainly erred in reminding D.J. that he was

under oath and directing him to answer counsel’s questions truthfully. He argues

that by doing so in front of the jury, the trial court impliedly discredited D.J.’s

exculpatory testimony, lent judicial weight to the government’s case, and deprived

him of an impartial judge, constituting structural error.



      We begin by recounting what occurred at trial. D.J. was a reluctant and at

times uncooperative witness. At one point, the prosecutor asked D.J. what he had

seen when appellant ―reached into his pants pocket.‖ D.J. responded that he

thought he saw ―like a handle‖ but could not say of what, and then said it was

―probably like a belt or something like that. I don’t know. . . . I can’t explain.‖

The prosecutor asked D.J. to ―think back‖ to when he told the grand jury that he

saw a ―handle‖ and asked again, ―what do you mean by handle?‖ The following

colloquy ensued in the jury’s presence, without objection from the defense:




             [Government]:       . . . I want you to think back. You
                                 used the word handle. What do you
                                 mean by handle?
             [Defense]:          Objection.
                                          14

             [Court]:            Overruled. You’re under oath, sir.
                                 Answer the question.
             [Witness]:          Am I under oath?
             [Court]:            You’re under oath. You swore to tell
                                 the truth.
             [Witness]:          Okay.
             [Court]:            You have to tell the truth.
                                 ...
             [Witness]:          I think it’s like a – I think it’s like a
                                 handle, like a handle.
             [Government]:       Okay. Of what? What did you think
                                 it was?
             [Witness]:          I don’t know. It could have been
                                 anything. But I think it was a handle.
                                 I don’t know. . . . It was like he was
                                 holding on a door knob or something
                                 like that. That’s why I say handle.



The government then impeached D.J. with his statements to the grand jury that the

handle he saw was the handle of a gun.



      Appellant does not maintain that trial judges are generally precluded from

admonishing a witness to testify truthfully. What appellant contends is that to do

so in the jury’s presence while the witness is testifying ―is tantamount to telling the

witness that the judge does not believe the witness.‖
                                          15

      This court has never decided whether it is an abuse of discretion to remind

witnesses of their oaths or to admonish them to tell the truth during their testimony

in front of a jury.10 Other courts have found such statements to be within the

court’s discretion and even part of its obligation. See United States v. Hinson, 585

F.3d 1328, 1340 (10th Cir. 2009) (―It is entirely proper—and oftentimes it is

imperative—that a witness be cautioned about the consequences of an oath.‖

(quoting United States v. Vosper, 493 F.2d 433, 436 (5th Cir. 1974))). However,

instructing a witness to answer truthfully carries the implication that the judge

thinks the witness might not be doing so. In a jury trial, the assessment of a

witness’s credibility is a function reserved exclusively to the jury, and encroaching

on that function implicates the defendant’s right to a jury trial.




      10
           We have addressed a related question about the propriety of jury
instructions that indicate to the jury that the judge thinks one or more of the
witnesses are lying. In Kinard v. United States, 416 A.2d 1232, 1235 (D.C. 1980),
we rejected the ―falsus in uno‖ instruction as inappropriate for use in the District of
Columbia court system. That instruction told jurors, in part, that they could
disregard a perjurer’s testimony. We noted that ―one of the serious objections [to
the instruction] is that the jury readily may get the implication that the trial judge
considers that one or more of the witnesses have willfully testified falsely.‖ Id.
(quoting Knihal v. State, 36 N.W.2d 109, 113-14 (Neb. 1949)). The instruction
furthermore ―constitutes the expression of the judge as to the credibility of the
witnesses and the weight to be given to their testimony.‖ Id. Here, we are
considering not the appropriateness of an instruction but of an admonishment of a
particular witness during his testimony. But the concern that the judge may not
influence the jury’s assessment of the witness is the same.
                                         16


      In conducting plain error review, we must first determine whether it should

have been obvious to the trial judge that she should not have reminded the witness

of the oath and to ―tell the truth.‖ See Lowery v. United States, 3 A.3d 1169, 1173

(D.C. 2010). Even though it is well established that courts must scrupulously

avoid conveying to the jury that they believe a witness is lying or telling the truth,

we have not previously addressed the issue in terms of a facially neutral reminder

of the juror’s oath. Therefore, the error, if any, would not have been obvious to the

judge. Cf. Arthur v. United States, 986 A.2d 398, 412-13 (D.C. 2009) (holding that

in light of established legal principle that judge may not interfere in defendant’s

decision whether to testify, the manner in which trial judge addressed defendant

was obviously erroneous where judge did not simply inform the defendant of his

rights but ―impos[ed] considerable pressure‖ on defendant). Viewing the court’s

admonition in context, we think that in this case the court more likely conveyed

that the witness was being uncooperative and reluctant to answer questions—

something that would already have been apparent to the jury. That impression

would have been confirmed by a comparison between the witness’s in-court

testimony and the witness’s more forthright testimony before the grand jury. We,
                                         17

therefore, conclude that appellant has not shown there was plain error warranting

reversal of his convictions.11


                                         IV.



      Finally, appellant challenges the court’s decision to base his sentence in part

on the court’s finding that he was armed during the charged offense despite the

jury’s acquittal on the weapons charges, ADW and PFCV.12              We reject this

challenge. The court enjoys broad discretion in sentencing and can rely on ―all the

evidence presented at trial, including evidence of charges on which appellant was

acquitted,‖ provided that sentencing is not based on ―misinformation of a

constitutional magnitude.‖ Greene v. United States, 571 A.2d 218, 220-21 (D.C.

1990) (quoting United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985)).

There is no claim that the trial judge’s finding that appellant was armed was based

on misinformation of any kind; rather, the trial court assessed the evidence that


      11
          Appellant’s contention that the error was ―structural‖ in nature does not
alter our application of plain error review. See (Jose) Lucas v. United States, 20
A.3d 737, 741 (D.C. 2011).
      12
          The government argues that this objection was not raised at trial.
However, we note that appellant’s counsel asked the court at sentencing to impose
a lesser sentence in part ―. . . given the nature of the conduct, what the jury found,
[and] that there was no gun involved—.‖ This comment sufficed to preserve the
issue appellant now raises on appeal.
                                        18

was presented at trial in a different manner and under a lesser standard than the

jury.13 The statutes appellant was found guilty of violating carry sentencing ranges

of up to twenty years (for felony threats) and between one and five years (for

committing a felony while on release).14 The trial court’s sentences of twenty-four

months for felony threats and twelve months for committing a felony while on

release were within those ranges. ―Generally, a sentence within statutory limits is

not subject to review.‖ Smith v. United States, 837 A.2d 87, 100 (D.C. 2003)

(citing Walden v. United States, 366 A.2d 1075, 1076 (D.C. 1976)).



      For the foregoing reasons, we affirm the judgment of conviction.


                                             So ordered.




      13
          The trial court was aware of the jury’s acquittal on the PFCV and ADW
charges and clearly stated that she found by a preponderance of the evidence that
appellant was armed while he committed the offense despite the jury’s acquittal on
that charge.
      14
           See D.C. Code §§ 22-1810, 23-1328 (a)(1) (2012 Repl.).
