RUIZ, Senior Judge:
On July 5, 2012, appellant Eddie Williams was charged by superseding indictment with assault with a dangerous weapon (ADW),
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"
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, 363-67 (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
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 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).
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, 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.
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
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 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.
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
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:
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."
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.
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, therefore, conclude that appellant has not shown there was plain error warranting reversal of his convictions.
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.
For the foregoing reasons, we affirm the judgment of conviction.
So ordered.