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Schafer v. U.S.

April 17, 1995

MARK F. SCHAFER, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia. (Hon. Lee F. Satterfield, Trial Judge).

Before Ferren and Schwelb, Associate Judges, and Reilly, Senior Judge.

The opinion of the court was delivered by: Reilly

REILLY, Senior Judge: From a conviction for taking property without right -- a misdemeanor under D.C. Code § 22-3816 *fn1 -- we are urged to set aside the judgment and the probationary sentence on the ground that there was a lack of evidence proving that appellant knowingly took the property of another person -- an essential element of the offense -- and therefore the trial court erred in affirming the findings of the commissioner who heard the case. An examination of the record discloses that this contention has merit. Accordingly, we reverse.

I.

A summary of the incidents which precipitated appellant's arrest and subsequent trial follows.

Sometime in 1991, appellant Schafer began an amorous relationship with the complaining witness Laima Simanavichus. In February of 1992, after appellant and his wife had separated, he moved into his lover's apartment, which consisted of a living room, bedroom, and bath along with a downstairs studio. *fn2 Both units were leased to her at a monthly rental of $500. Under their living-in agreement, he reimbursed her each month for the entire rent. Soon thereafter he purchased a color television set, a compact disc player, two items of telephone equipment, and two chairs, which were brought to the apartment and used for their mutual enjoyment and convenience. Later that year, becoming unemployed, he obtained a salaried job in Harrisburg, Pennsylvania, which necessitated his moving into living quarters in that city.

Nevertheless, appellant and complainant maintained their intimate relationship. Appellant continued to pay the rent for her apartment, and returning to Washington almost every weekend, spent the nights there with her. She in turn made three or four visits to Harrisburg, where she stayed overnight at his apartment and left some items of furniture and clothing there. Eventually, however, the affair soured. The complainant testified that as a result of taking anti-depressant pills, appellant was frequently moody, and quarrelsome. She decided to end the affair and on Easter Sunday in April 1993, notified him that she was breaking up the relationship and told him not to visit her apartment again. Appellant reluctantly accepted this ultimatum, but gave her a check dated April 24, to cover the rent for the first half of the next month (i.e., May 1-15, 1993), to enable him to pick up his "stuff," which she accepted and cashed three days later, April 27. *fn3

A day or two later, Simanavichus decided to reclaim appellant's keys to the apartment. Aware that he was due to attend an AA meeting in Silver Spring the following Sunday, May 2, she drove there, accosted appellant in a nearby parking lot and demanded the keys. When he refused, she grabbed them from his belt clip. In an attempt to retrieve them, he twisted her arm. She ran back to her car. When he followed her, she struck him on the head with a toy baseball bat. He countered by pulling away the bat, throwing it into the back seat of her car, and removing a duplicate set of keys from the ignition.

Appellant then drove to his brother's house, located in the city, and persuaded his brother to go with him in a pick-up truck to Simanavichus' apartment. There he retrieved some tools he had left in the studio and then unlocked the upstairs apartment -- the complainant was not there -- removed the television set, the stereo, two telephone items, and the two chairs, all of which he had purchased, and placed these various pieces of property in the truck. Before departing the premises, he dropped the keys into Simanavichus' mail slot.

When the complainant returned and discovered what had happened, she telephoned him, accused him of ransacking her apartment and stealing her property. He told her the only property he had taken belonged to him, and promised that he would return all property belonging to her then in the Harrisburg apartment. He did so the following weekend. *fn4

Not mollified, Simanavichus swore out a warrant for appellant's arrest, charging him with burglary. *fn5 As this was a felony offense, local authorities invoked the assistance of the Pennsylvania police, who responded by arresting appellant at his office, handcuffing him, and putting him into jail. As he did not have enough money to raise bail, he was detained there for two nights. Finally, his father arrived at the scene and posted the requisite bond.

After a preliminary investigation, the United States Attorney's office concluded that burglary had not been committed, but decided to try him on the lesser included offense of taking property without right. See (supra) note 1. As this offense was only a misdemeanor -- punishable by a maximum of 90 days imprisonment -- it was referred to a commissioner, who promptly conducted a trial on August 27, 1993.

In holding appellant guilty, the commissioner referring to the removal of the color television set, made oral findings and Conclusions of law, saying inter alia:

The stress that come about from situations that arise out of what we call a relationship, ... romantic involvement or when they disintegrate or break ...


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