Before Steadman and Reid, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Gallagher, Senior Judge
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Appeal from the Superior Court of the District of Columbia
(Hon. Michael L. Rankin, Trial Judge)
Appellant, Andre Chappelle, was convicted of first degree burglary, D.C. Code § 22-1801 (a) (1995 Repl.), and first degree theft, D.C. Code § 22-3812 (a) (1995 Repl.). Chappelle appeals, contending: (1) the trial court erred in admitting evidence that a police officer knew where he "hangs out"; (2) the government's rebuttal argument was improper and prejudicial; and (3) the evidence was insufficient to support a conviction of first degree theft. We agree that the evidence does not support first degree theft, and reverse that conviction. We affirm the conviction of first degree burglary, and direct entry of a conviction for second degree theft.
On August 3, 1997, sometime after 3:00 a.m., James Gant was sitting on his front porch when he saw two men walk past his house on Pleasant Street. One man wore dark pants and a striped shirt. The other, a taller man, wore dark pants and a light colored t-shirt.
After briefly losing sight of the two men, Gant saw them cross the street. Gant saw the two men walk into the front yard of a house that belonged to his neighbor, John Gray. The two men walked over to a window, and began to pry it open. Once the window was open, the man in the striped shirt put his head and shoulders through the window, into the house. The man then came back out of the window, and the two men walked away from the house. About two to four minutes later, the men returned. The taller man had changed his shirt to one of a darker color. Both men now wore black stocking caps. Gant observed the man in the striped shirt go through the window again, up to his waist. At this point, Gant called the police.
Officer Andre Kimvilakani was informed of a possible burglary in progress, and responded. When Kimvilakani arrived at Gray's house, he observed a milk crate under the window. When other officers arrived, Kimvilakani knocked on the door. Gray came to the door and let the police search his home. After completing the search, Kimvilakani asked Gray if anything was missing. Gray immediately noticed that a telephone was missing from his desk in front of the open window. Gray had purchased the telephone from Bell Atlantic two to three weeks prior to the burglary. The telephone had "six different operations on it," including caller identification and an answering machine. The base price of the telephone was $249. Gray, however, also paid $7.50 for shipping and handling, and $54.58 for a warranty contract.
Gray told Kimvilakani that Chappelle had been in his house that day. Gray had told Chappelle that he was looking for a refrigerator. Chappelle told Gray that he could get one for $50. Chappelle left and came back later to Gray's house with another individual and a large refrigerator. Later, Chappelle returned again, asking Gray if he wanted to buy a television for $20. Sometime between midnight and 1:00 a.m., Chappelle and this second individual returned with the television and left.
After hearing that Chappelle had been in the house earlier, Kimvilakani asked the other officers to locate him. Kimvilakani searched the neighborhood, and found Chappelle. He testified that he was able to find Chappelle because, "I know where he hangs out." When Kimvilakani found Chappelle, he was wearing a white shirt with blue and red pinstripes, and black pants. Chappelle was not in possession of the telephone, which was never recovered.
Kimvilakani took Chappelle back to Pleasant Street for a possible identification. Chappelle stood across the street, while Gant looked at him from his porch. Kimvilakani testified, "As soon as he saw Mr. ...