On Petition for Rehearing or Rehearing En Banc
Before Wagner, Chief Judge, Terry, Steadman, Schwelb, Farrell,
Ruiz, Reid, Glickman and Washington, Associate Judges
The opinion of the court was delivered by: Steadman, Associate Judge
Appellant Elauin Hebron was convicted by a jury of first degree theft, which requires proof that the stolen property had a value of $250 or more. D.C. Code § 22-3812(a) (1996) (now D.C. Code § 22-3212 (2001)).
On his appeal, a division of this court, per curiam, reversed his conviction on the ground that, under an especially demanding standard that might be read into certain language of our existing case law relating to proof of value, the government failed to present sufficient evidence to support a first-degree theft conviction. Hebron v. United States, 804 A.2d 270 (D.C. 2002) ("Hebron I"). Two members of the division, however, in a separate concurrence questioned whether the time had come to re-examine our body of case law concerning proof of value. Id. at 274.
We, therefore, grant the petition for rehearing en banc and undertake to clarify language used in our proof of value cases that may have fostered a misimpression, namely, that some sort of "super proof" is required in the proof of the element of value. Our past decisions, despite the emergence of language terming our proof of value as, for example, "very strict," never required any such enhanced proof. As a result and to correct any misconception as to what proof of value is required, we now reapply our long existing standard to the facts of appellant's case and hold, en banc, that the same uniform and familiar standard of evidentiary sufficiency applies to proof of value that applies to any other element of the charged offense, namely, proof beyond a reasonable doubt. See Rivas v. United States, 783 A.2d 125, 133 (D.C. 2001) (en banc); (Darius) Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc). As we noted in Rivas, 783 A.2d at 134, proof beyond a reasonable doubt also furnishes the standard for judicial review of the sufficiency of the evidence. That appellate standard, which we have articulated in numerous cases, requires that "[a]ll reasonable inferences must be drawn in favor of the government, and deference must be given to the trier of fact's right to determine credibility and weigh evidence . . . . [T]he government is not required to negate every possible inference of innocence before an accused may be found guilty of an offense beyond a reasonable doubt. It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." Smith v. United States, 809 A.2d 1216, 1221 (D.C. 2002) (citations and internal quotation marks omitted).
The approach, in at least some of our cases, which could be read to suggest that the value of an item must be proved with some sort of special strictness seems to have found its origin in this jurisdiction in a 1970 decision of the United States Court of Appeals for the District of Columbia Circuit, United States v. Thweatt, 140 U.S. App. D.C. 120, 433 F.2d 1226 (1970). In Thweatt, the government attempted to prove that the value of the stolen property was greater than $100 (as the statute then required) by introducing the testimony of a pawnbroker and the victim. The pawnbroker indicated a stolen typewriter had a resale value of $55 and the victim noted he had purchased three shirts for $12 and a suit for $38 three or four years before the theft, which the trial court described as "old worn clothing, some of it patched and repaired." The government argued that testimony of the original price of the items stolen was in itself sufficient proof of value. Understandably the appellate court rejected that view and adopted the rule that "when there is a possibility of convicting the defendant of grand or petit larceny . . . it is essential that the government introduce evidence of that value in order to give the jury a firm basis upon which it can render a verdict" and that proof of value could not rest on "conjecture and surmise." 140 U.S. App. D.C. at 126-27, 433 F.2d at 1232-33. Unremarkably, the court concluded that the government had failed to introduce sufficient evidence of value in the case before it.
Our own case law, however, developed in a manner that tended, in its phraseology, to suggest that the government's proof of value was subject to a requirement of proof distinct from and well above and beyond that required for other elements of an offense, which we variously termed "very strict" or "requiring affirmative proof of value" or "substantial probative evidence of value" or "clear proof of value." Zellers v. United States, 682 A.2d 1118, 1121 (D.C. 1996). *fn1 In particular, we seriously discounted the relevance of proof of original purchase price, although such an inquiry would appear to be the logical starting point for the great bulk of value determinations and a plainly relevant fact to be taken into account with the totality of surrounding circumstances in evidence. In In re J.F.T., 320 A.2d 322, 325 (D.C. 1974), we gave weight to original purchase price as "remov[ing] from the area of speculation" the proof of value when the stolen property (1) had been recently purchased at a price well in excess of $100, (2) was in "mint condition" at the time of the theft, and (3) was not subject to "prompt depreciation or obsolescence." Id. We soon termed our J.F.T. decision, without explanation, an "exception" to the general stringent rule, see Williams v. United States, 376 A.2d 442, 444 (D.C. 1977), and tended to disregard or marginalize probative force in purchase price evidence that did not meet the test of J.F.T. See e.g., Chappelle v. United States, 736 A.2d 212, 215-216 (D.C. 1999) (stating factors to be considered when owner testifies as to purchase price); Zellers, 682 A.2d at 1121 (fact that television set cost $640 would not prove that value twenty-one months later exceeded $250, even if in "almost mint" condition); Malloy, supra at note 1, 483 A.2d at 680-81 (rejecting purchase price alone as grounds for departure from our "strict" rule of proof). *fn2
The underlying purpose of the proof of value requirement was and has always been to ensure that the jury's verdict was not "'based on surmise or conjecture' about the value of the property." Zellers, 682 A.2d at 1121 (quoting Boone, 296 A.2d at 450). *fn3 But such a consideration is not unique to the element of value; it applies across the board. See, e.g., Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229, 233 (1947), cited with approval in Jackson v. Virginia, 443 U.S. 307, 317-318 (1979) ("The jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice, or sympathy. The critical point in this boundary is the existence or non-existence of a reasonable doubt as to guilt."). The principle is universal that a reviewing court will affirm a verdict only when the evidence presented can form the basis for permissible inferences and not mere speculation. See, e.g., Rivas, 783 A.2d at 134; Curry v. United States, 520 A.2d 255, 263 (D.C. 1987); Smothers v. United States, 403 A.2d 306, 312 (D.C. 1979).
It is important to keep in mind precisely what must be proven when the issue is whether a statutory value amount has been exceeded in a prosecution for first degree theft and similar criminal offenses. The matter to be determined is not the absolute value of the items stolen, as would be the case in, for example, a condemnation action. Rather, the proof must only show that the value, whatever it may be in absolute terms, exceeded the statutory minimum. To be sure, when the proof indicates a value nearing that minimum, such proof may need to be offered with greater precision. In that sense the use of phrases like "strict rule" can be understood to have highlighted the need for the government in such circumstances to take special care in presenting proof beyond conjecture or speculation on an element - value - integral to the seriousness of the offense and potential punishment. Compare, e.g., D.C. Code § 22-3212(a) (2001) (punishing first-degree theft by imprisonment for up to ten years) with D.C. Code § 22-3212(b) (2001) (punishing second-degree theft by imprisonment not to exceed 180 days). The ultimate evidentiary test of sufficiency, however, remains the same. *fn4
A jury, as a result, should not be precluded from drawing reasonable inferences from an item's purchase date and price when determining, on the totality of facts and circumstances, whether the government has met its burden of proving value under the theft statute. In another criminal context, the Supreme Court has recognized "the saving grace of common sense." Bell v. United States, 349 U.S. 81, 83 (1955). See also Hill v. Metropolitan African Methodist Episcopal Church, 779 A.2d 906, 909 (D.C. 2001) ("jury . . . surely could use its common sense and everyday experience to infer reasonably from the evidence"); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2.04 (4th ed. 2002) ("When you consider the evidence, you are permitted to draw, from the facts which you find have been proven, such reasonable inferences as you feel are justified in the light of your experience."). Indeed, in the proof of value context itself, we have sustained a conviction for grand larceny in appropriate circumstances when the key evidence of the value of the items stolen was the owner's testimony and have rejected the argument that expert testimony was required to establish market value. See, e.g., Ross v. United States, 520 A.2d 1064, 1066 n.5 (D.C. 1987); In re R.D.J., 348 A.2d 301, 304 (D.C. 1975); Saunders v. United States, 317 A.2d 867, 868 (D.C. 1974), cited with approval in Williams v. United States, 805 A.2d 919, 928 (D.C. 2002). Cf. District of Columbia v. Shannon, 696 A.2d 1359, 1365 (D.C. 1997) (internal quotation marks omitted) (noting that when a matter falls "within the realm of common knowledge and everyday experience, a plaintiff will not need expert testimony to establish a standard and a deviation"); Zellers, 682 A.2d at 1120 (recognizing that the determination of fair market value is within the understanding of the average juror). In sum and consistent with the historical origins of our rule, the government need not prove value in first degree theft and like offenses with any "strictness" or "precision" greater than any other element of the offense, and the question of sufficiency will be reviewed under the same uniform standard that applies across the board in criminal cases.
We now apply this uniform standard to appellant's case. In doing so, we affirm his conviction of first-degree theft, with its requirement that the stolen property have a total value of $250 or more. D.C. Code § 22-3212 (a) (2001).
While our focus herein remains on the evidence of value, we first recount the general setting of the offense. *fn5 From January until March 1999, appellant and one Mansoor Salahuddin ("Salahuddin") shared a two-bedroom apartment on Xenia Street in the District of Columbia. Prior to sharing the apartment with appellant, from November 1998 until sometime in January 1999, Salahuddin lived alone in the apartment, which was his principal dwelling place. At approximately 4:00 a.m. on Saturday, March 20, 1999, Salahuddin returned home to the apartment with his girlfriend Tess Jones ("Jones"). *fn6 On their return, they found appellant in the apartment. After a brief conversation, appellant and Salahuddin left the apartment together but got into separate vehicles. Appellant returned about twenty minutes later, informed Jones that Salahuddin indicated to appellant that he'd be right back, and then left the apartment again. Salahuddin ...