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07/10/92 CLINTON R. SIMMS v. DISTRICT COLUMBIA

July 10, 1992

CLINTON R. SIMMS, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nicholas S. Nunzio, Trial Judge)

Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Following a bench trial before Hearing Commissioner John W. King, appellant was found guilty of tampering with a vehicle in violation of 18 DCMR § 1105.2 (a) (1986), and sentenced under 18 DCMR § 1110.1 to a $160.00 fine and ten days imprisonment; the sentence was suspended and appellant was placed on six months probation. *fn1 The trial Judge affirmed the commissioner's decision. *fn2 Appellant now contends that the hearing commissioner erroneously refused to consider appellant's defenses of abandonment and mistake of fact. *fn3 We affirm.

I

At approximately 7:30 p.m. on May 3, 1990, Captain Joseph Amady of the Metropolitan Police Department observed a group of people attempting to raise a parked Volkswagen Jetta automobile onto the crane of a tow truck. Appellant was standing near a jack and he was placing boards underneath the car. Captain Amady also testified that the police department previously had recovered numerous stolen cars in the same location and that the Jetta being towed did not appear to have been there long. After a computerized check identified the Jetta as a stolen vehicle, *fn4 Captain Amady charged appellant with tampering with a vehicle.

Linda Hancock, who was present at the time of appellant's arrest, testified that after she had told appellant that she needed a grill and fender for her own Jetta, he escorted her to the stolen Jetta. According to her, before the police arrived appellant examined the stolen Jetta's fender and said, "It might work." He then placed a tire on the Jetta so the tow truck could move it. Ms. Hancock described the car as "an abandoned Jetta in the bushes."

Shawn Clayton, a defense witness, testified that the Jetta looked abandoned to him, since he had seen it a couple of times over the period of a month. He also testified that he overheard appellant talking to someone named Darryl about a request for Jetta parts; appellant told Darryl that he had seen the Jetta in Brandywine Alley, that the "windows are busted out of it . . . . it looked like it's brand new," and that he did not know if it was stolen or not.

Appellant also testified about his conversation with Darryl, and that when Linda Hancock asked if he could acquire parts for her Jetta, he told her that he had noticed "a Jetta abandoned" in the same place for "approximately three weeks to a month, [and that] the windows are all busted out and the car is totally destroyed." He had told her that "I don't know if it's been stolen or abandoned, as far as I know it's abandoned. No wheels on it and all that. It's in bad condition." She responded that she would get a tow truck driver, and less than two hours later she returned with a tow truck, and her two brothers had tried to get the Jetta hooked up to the tow truck to pull the Jetta out of the bushes. On cross-examination, when asked if he had said he did not know if the Jetta was stolen or abandoned, appellant explained that he knew the Jetta did not belong to him and that he had seen the Jetta five or six times over the three-weeks-to-a-month period. *fn5

The government, in rebuttal, called Officer Simmons who testified that he believed that the Jetta might have had a current (1991) Maryland tag on its rear, and that it "was basically pretty much stripped" at the time of appellant's arrest.

In finding appellant guilty, the hearing commissioner rejected appellant's claim of lack of jurisdiction, see note 3, (supra) , and also his defense that he believed the Jetta had been abandoned by its owner. The hearing commissioner ruled that, in general, abandonment had to be proved by unequivocal, clear and decisive evidence but that since appellant was not a member of any statutory class permitted under 18 DCMR § 1105.2 to touch a vehicle (i.e., the vehicle's owner, the vehicle owner's representative or a government official), abandonment in the nature of a mistake of fact was not a defense. Alternatively, the commissioner ruled that "under either the Government's theory or even the Defense theory, [appellant,] based on the evidence and the facts that I have found beyond a reasonable doubt[,] must be found guilty." Appellant raised the jurisdictional and abandonment claims in a Super. Ct. Crim. R. 117 (g) motion before the trial Judge, who affirmed the decision of the hearing commissioner without opinion upon entering the judgment and commitment order.

II

Appellant contends that the hearing commissioner erroneously rejected his defense of mistake of fact based on the evidence that appellant thought the stolen Jetta had been abandoned by its owner. He maintains that although the hearing commissioner recognized that tampering under 18 DCMR § 1105.2 was a general intent crime, the commissioner concluded that the offense was one of strict liability.

The prohibition against tampering does not ban all forms of contact with a vehicle by individuals not within one of the statutorily exempted groups. See In re R.F.H., 354 A.2d 844 (D.C. 1976). This court has construed the word "tampering" as limiting the regulation's applicability to those who physically contact another's vehicle with "an improper purpose or intent." Id. at 847 (concluding that the regulatory prohibition against tampering with a vehicle was not unconstitutionally vague) (footnote omitted). The court distinguished lawful and unlawful contact as follows:

[The definition of tampering] excludes from its coverage the Good Samaritan who is caught turning off the lights of another, because he does not possess an unlawful purpose in acting. It would, however, include those individuals apprehended for prying open or picking a vehicle's lock . . . . It would also ...


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