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02/23/90 PERRY E. DOUGLAS v. UNITED STATES

February 23, 1990

PERRY E. DOUGLAS, APPELLANT
v.
UNITED STATES, APPELLEE. ANTHONY J. SANDERS, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Luke C. Moore, Trial Judge

Before Terry and Steadman, Associate Judges, and Reilly, Senior Judge.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellants were convicted of attempted second-degree burglary, in violation of D.C. Code §§ 22-103 and 22-1801 (b) (1989). *fn1 On appeal they contend that the government failed to prove who owned the retail store that was the subject of the attempted burglary, and also failed to prove that they had a specific intent to steal. We reject both arguments and affirm the convictions. *fn2

I

At approximately 3:30 a.m. on August 22, 1984, a silent burglar alarm was triggered at the Standard Drug Store at 914 F Street, Northwest. The alarm company sent one of its investigators, Alfred Johnson, to the scene. At the same time, Metropolitan Police Officer Elysia Branson, who had heard a radio broadcast about the burglar alarm, parked her van about a block away and began to survey the area. *fn3 Aided by a pair of high-powered binoculars, Branson saw five men standing in a huddle in front of Central City Discount, a stereo store located next to Standard at 916 F Street. They appeared to be passing a metal object back and forth and pulling at the security grate in front of the stereo store. Officer Branson identified the four defendants in court as four of the five men whom she saw in front of 916 F Street and later helped to arrest.

Branson radioed her supervisor, Sergeant John Hickey, who was only a few blocks away, and told him what she had seen and heard. Hickey replied that he would come and investigate, and in a few minutes he arrived at Ninth and F Streets in an unmarked police car. By that time, however, the five men had begun to move away from Central City Discount, so Hickey and his partner, Officer Rudolph Goddard, drove around the block in an effort to find them. After circling the area for several minutes, Hickey spotted five men walking north on Eleventh Street toward F Street. He drove past them, then parked his car at Eleventh and F Streets and began to watch them through binoculars as they headed back toward the stereo store.

Meanwhile Mr. Johnson, the man from the burglar alarm company, was completing his investigation. He found that a telephone line in the alley behind the Standard Drug Store had been cut, thereby setting off the alarm. Johnson testified that as he was putting his tools into his car, he was approached by four or five men who began to ask him questions. He could not recall the content of his conversation with these men, however, and he did not identify any of them in court. Sergeant Hickey, from his observation point, saw the five men approach Johnson. He could see them clearly because the entire area in front of the store was illuminated by high-intensity street lights. Hickey testified that these were the same five men that he saw walking on Eleventh Street and identified four of them as the defendants in this case.

After Johnson left, the five men lingered at the corner of Ninth and F Streets for about fifteen minutes before heading into an alley adjacent to the stereo store. With his binoculars Hickey watched as each of them entered the alley. Four of the five men were then out of Hickey's view, but one stayed near the mouth of the alley and kept looking back and forth, periodically stepping out toward the sidewalk. Shortly after 5:00 a.m. they all came out of the alley and walked to the front of the stereo store. One of the men then separated from the others, walked east on F Street toward Ninth Street, and disappeared.

Suddenly Sergeant Hickey heard the sound of glass breaking, followed by the ringing of an alarm. Officer Branson also heard the alarm go off and saw the four men walking rapidly toward her. *fn4 Two of them headed north on Ninth Street and were arrested by Officer Branson, while Sergeant Hickey arrested the other two, who continued eastward on F Street. At no time did any of the four attempt to run away or resist arrest. However, appellant Douglas, who was wearing a knapsack, threw the knapsack over a nearby fence before being apprehended.

Officer William Carter, a crime scene examiner, recovered the knapsack, which contained a pipe wrench, a flashlight, a pair of channel lock pliers, a large screwdriver with a broken tip, a set of keys, and other items. Officer Carter also noticed that the glass was broken in the front window of the stereo store at 916 F Street, and he found a pair of wire cutters on the loading platform in the rear of an office building at 918 F Street.

All told, the government presented five witnesses, but they did not include the owner of either the Standard Drug Store or Central City Discount. The defense offered no evidence.

II

Both of appellants' arguments are challenges to the sufficiency of the evidence supporting their convictions. In reviewing such challenges, the court must examine all the evidence, both direct and circumstantial, in the light most favorable to the government, mindful of the jury's right to weigh the evidence and assess credibility. E.g., United States v. Hubbard, 429 A.2d 1334, 1337-1338 (D.C.) (citing cases), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 153, 102 S. Ct. 308 (1981); Byrd v. United States, 388 A.2d 1225, 1229 (D.C. 1978) (citing cases). "It is only where there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the trial court may ...


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