April 17, 1995
MARK F. SCHAFER, APPELLANT,
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.
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 up cause a tremendous amount of pain....
Both the complaining witness and the defendant have done their best to repair *fn6 on the stand to be completely uninvolved total strangers. Nothing could be further from the truth.... *fn7
We worked from Burglary II and then there was some consideration probably given to Unlawful Entry. But, then after we found out that there was a sharing of living space, we decided not to do an Unlawful Entry....
With all these things aside, the T.V. was bought; however be it, by the defendant but it is the complaintant's T.V., plain and simple. Mr. Schafer knew that he should not have gone into those places where Ms. Simanavichus home, her home, at that time it was her home again.... The T.V. was in her name, in her place.
Unfortunately, I have to find the defendant guilty for Taking Property Without Right, based upon those two things, ... [the T.V. is] in her name, it's in her living place and the District of Columbia does not recognize self-help as a means of redress or collecting a debt for getting your own property. ... I don't say I agree with this; but, I'm stuck with the law. [The commissioner also concluded that the compact disc player belonged to Ms. Simanavichus for the same reasons--it was in her name, in her apartment. He made no findings with respect to the other articles appellant had removed.]
Our scope of review in this case is controlled by D.C. Code § 17-305 (a) (1989). *fn8 In order to sustain a conviction for taking property without right, the government must show that appellant: (1) took and (2) carried away (3) the property of another (4) without the right to do so. Tibbs v. United States, 507 A.2d 141, 144 (D.C. 1986) (emphasis supplied) (discussing D.C. Code § 22-3816).
The foregoing requirements, however, are not the only elements of the offense. Unlike most disputes between ex- spouses or ex-lovers over household property which are ordinarily tried in suits for replevin or in the small claims court, appellant here was charged and tried for a criminal offense. In the absence of language to the contrary, this means that the prosecution must prove beyond a reasonable doubt that the defendant intended to commit a criminal act. As the Tibbs opinion, (supra) , put it, "to convict a person of taking property without right, the government need not prove any specific intent; a general intent to commit the proscribed act is all that the law requires." Id. at 143. *fn9
Accordingly, we turn to the question of whether there was enough evidence of even general intent here to support the conviction. In other words, in the context of this particular case, we must determine whether substantial evidence in the record demonstrates that in removing the television set appellant actually knew, or had reason to know that it was the property of another, not his own. What the commissioner relied upon in finding that this piece of property was "complainant's T.V. pure and simple" was that it was in "her name, in her place" for "at that time it was her home again," and Mr. Schafer knew that he should not have gone into those places." *fn10 Significantly, the commissioner made no finding that Schafer knew, or had reason to know, that the T.V. set was the property of another person. In fact, one of the commissioner's express findings, viz, that Schafer was not guilty of conduct involving theft or moral turpitude, implies that the trier of fact cleared the accused of any criminal intent.
In affirming the commissioner's decision, the reviewing Judge observed that "ample evidence supported the verdict," stating that the "Commissioner found that the relevant property belonged to the complaining witness because it had been given to her by the defendant as gifts." This is not precisely accurate. What the commissioner said in explaining why the television set belonged to complainant was that it was "in her name, in her place." Plainly he was referring to the sales slip, which listed complainant's name and address as the recipient.
A sales slip, however, unlike a deed conveying land, does not establish ownership. Nor does it prove a gift in the absence of evidence that the sales clerk entered complainant's name on the receipt, because the purchaser said he intended the article to be a present. Appellant might have instructed the clerk to put complainant's name and address on the sales slip because the address designated the place where the item was to be serviced by the retailer's maintenance men. Perhaps -- as counsel suggested at oral argument -- appellant was in another part of the store (not at the counter where the goods were packaged), thus causing the clerk to write the name of the person to whom he actually turned over the item rather than the person whose credit card had been used to effectuate the sale. *fn11 No single one of these possibilities is more probable than the others.
Although complainant testified that she "understood" and later that she "assumed" the items she subsequently charged him with stealing were gifts, she was aware because of an angry exchange of words some months before the final break up that appellant regarded these pieces of property as his. She admitted that he had warned her that "he was going to take everything away from me if I threw him out," and thereupon she "put everything he ever gave me in front of the door...."
But even granting that the trial Judge was correct in inferring that the commissioner's Conclusion, rested upon the assumption that the television set was a gift to complainant, the evidence here, even if presented in a civil instead of a criminal proceeding, falls short of establishing that a gift had been made.
In this jurisdiction it is well established that the burden of proving that a transfer was a gift is upon the person asserting. the gift. Davis v. Altmann, 492 A.2d 854, 855 (D.C. 1985), citing, inter alia, Murray v. Gadsden, 91 U.S. App. D.C. 38, 49, 197 F.2d 164, 205 (1952): "The requisites of a valid gift inter vivos are delivery, intention on the part of the donor to make a gift, and absolute Disposition of the subject of the gift." As our summary of the record indicates, there was evidence of delivery, but no proof of the other two requisites. The government has failed to meet this burden -- a fatal flaw in its attempt, to establish an essential element of the offense of taking property which the accused knew was the property of another person.