Appeal from the Superior Court of the District of Columbia (No. CR F-2236-99) (Hon. Lee F. Satterfield, Trial Judge)
Before Steadman and Glickman, Associate Judges, and King, Senior
The opinion of the court was delivered by: Per Curiam
Submitted February 26, 2002
Concurring opinion by Associate Judge Steadman, with whom Senior Judge King joins, at p.8.
Appellant Elauin Hebron appeals his conviction for first degree theft on the grounds that the evidence was insufficient to convict him. We must agree with appellant that, under the demanding standards of our case law relating to proof of value, the government did not present sufficient evidence regarding the value of the stolen goods such that appellant could be found guilty of first degree theft. However, we reject appellant's challenge to the sufficiency of the evidence concerning his intent to deprive the owner of the goods.
The government presented evidence that appellant shared an apartment with the owner of the stolen goods, Mansoor Salahuddin, from January to March 1999. On March 20, 1999, Salahuddin was found shot to death. *fn1 The next day, Salahuddin's girlfriend, Tesa Jones, entered his apartment and discovered that all of Salahuddin's belongings except his furniture had been removed. On the day after, she returned and found the entire apartment was empty. Witnesses also testified that on March 21, appellant tossed mattresses off the apartment balcony to the parking lot below and moved boxes out of the apartment building. The police subsequently executed two search warrants and recovered Salahuddin's property from appellant's girlfriend's apartment and appellant's mother's house.
A first degree theft conviction must be supported by proof that the stolen property had a value of $250 or more at the time of the theft. See D.C. Code § 22-3212(a) (2001). "[W]e have been very strict in requiring affirmative proof of value, especially when the value alleged is close to the line dividing one offense from another . . . . Because of the important difference between a misdemeanor and a felony conviction, this court has been careful to require substantial probative evidence of value at the time of the theft." Zellers v. United States, 682 A.2d 1118, 1121 (D.C. 1996) (citation and internal quotation marks omitted). *fn2
Value in this context refers to the fair market value of the property. See Chappelle v. United States, 736 A.2d 212, 215 (D.C. 1999). Frequently, the testimony focuses on the purchase price of the stolen goods, but "purchase price is not necessarily equivalent to value." Zellers, supra, 682 A.2d at 1122. This court considers the following factors in evaluating purchase price testimony from owners: "whether the purchase was very recent, whether the chattel was in mint condition, and whether the chattel was subject to prompt depreciation or obsolescence." Chappelle, supra, 736 A.2d at 215. But regardless of whether the owner testifies or some other method is used to prove value, "[t]he government must introduce evidence of value . . . sufficient to eliminate the possibility that the jury's verdict was based on surmise or conjecture about the value of the property." Terrell v. United States, 721 A.2d 957, 959 (D.C. 1998) (citations and internal quotation marks omitted).
To establish the value of the stolen goods, the government had Jones testify as to the items taken and what the purchase prices for many of them were, i.e., a glass table and chairs bought two months before the theft for $189, a futon and mattress, coffee table, two end tables and a lamp bought four months before for $417, and a stereo bought eighteen months before for $189. *fn3 Thus, the government established that most of the stolen goods had been bought for $606 within the past four months. The question is whether the evidence concerning these goods as well as the year-and-a-half-old stereo was sufficient to prove the stolen property had a value of $250 or more at the time of the theft.
We first note that most of the purchases were quite recent because they were bought within four months before the theft. However, no evidence was adduced as to the condition of these items at the time of the theft nor were the items themselves or even photographs thereof presented to the jury. *fn4 See Malloy v. United States, 483 A.2d 678, 681 (D.C. 1984) (reversing grand larceny conviction when government offered no evidence concerning condition of stolen items). Furthermore, the stereo was subject to prompt depreciation or obsolescence. See id. at 680 n.2. As for the furniture, our prior case law offers little guidance on its depreciation rate. Compare Capers v. United States, 403 A.2d 1155, 1156 (D.C.) (jewelry), cert. denied, 444 U.S. 934 (1979); In re J.F.T., 320 A.2d 322, 325 (D.C. 1974) (pistol and camera) (not subject to prompt depreciation) with Malloy, supra, 483 A.2d at 680 n.2 (television and radio); Comber v. United States, 398 A.2d 25, 26 (D.C. 1979) (clothes) (subject to prompt depreciation).
In Zellers, supra, we were confronted with a similar problem in that we had no guidance for establishing the fair market value of compact discs (CDs). Although we noted that CDs were like pistols and cameras that did not suffer prompt depreciation, we said that "we cannot assume that the compact discs retained the value that they had at the time of their purchase." 682 A.2d at 1122. We then declined to take judicial notice as to "what may affect the ...