Appeal from the Superior Court of the District of Columbia (F 1542-00) (Hon. Frederick D. Dorsey, Trial Judge)
Before Terry and Ruiz, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: King, Senior Judge
David Van Buren Peery was convicted of five counts of second-degree theft (D.C. Code § 22-3811 (1996)). He contends his convictions should be vacated because:
(1) the trial judge impermissibly shifted the burden of proof from the government to the defense, and
(2) the trial court erred in denying his motion for judgment of acquittal (MJOA), when the government failed to present sufficient evidence to prove he knowingly used his corporate charge card for personal expenses without authority. We agree on the latter point and, therefore, reverse.
Peery, an attorney, began working for the law firm of Bernabei and Katz (B&K) in June of 1999 as "of counsel." In late June of 1999, he was issued a corporate American Express (AMEX) card, which he began using for both business and personal expenses. At the time the card was issued to Peery, B&K had no written policy regarding proper use of the corporate card. Furthermore, no oral instructions were provided by either of the partners or the office manager or anyone else in the firm regarding proper use of the card. He was never informed that he could not use the card to charge personal items.
On August 9, 1999, when B&K received the AMEX bill, Peery approached the office manager, Antonio Mapp, and told him that he "inadvertently" charged "a couple" of personal expenses to the card and that he would reimburse the firm. Mapp responded, "Okay." On August 10, 11, 12, 13 and 14, Peery again used the card to charge personal items. Those uses of the card were the basis for the theft charges for which Peery was convicted. On August 13, 1999, a summary of the bill was provided to Debra Katz, a named partner in the firm, who upon noticing the bill to be higher than normal, reviewed the itemized portion of the bill. She discovered the large number of apparently personal charges made by Peery. *fn1
The next day, B & K decided to terminate Peery and drafted a letter to that effect, which was delivered to his Silver Spring, Maryland office. Peery first received a copy of the letter when he attempted to enter the firm on the afternoon of August 14, 1999 and was refused entry.
We consider the claim of insufficiency in the light most favorable to sustaining the conviction, Jones v. United States, 716 A.2d 160, 162 (D.C. 1998), giving deference to the factfinder's ability to weigh the evidence and make credibility and factual determinations. Lewis v. United States, 767 A.2d 219, 222 (D.C. 2001). Furthermore, in a bench trial, we will not reverse "unless an appellant has established that the trial court's factual findings are plainly wrong, or without evidence to support them." Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992). Therefore, in order to prevail, Peery must establish "that the government presented 'no evidence' upon which a reasonable mind could find guilt beyond a reasonable doubt." Owens v. United States, 688 A.2d 339, 402 (D.C. 1996); Mihas, 618 A.2d at 200 (quoting Robinson v. United States, 506 A.2d 572, 573 (D.C. 1986)).
To convict Peery of second-degree theft, the government needed to prove: (1) that "he [Peery] wrongfully obtained the property of [B&K], (2) that at the time he obtained it, he specifically intended 'either to deprive [B&K] of a right to the property or a benefit of the property or to take or make use of the property for [himself] . . . without authority or right,' and (3) that the property had some value." Nowlin v. United States, 782 A.2d 288, 291 (D.C. 2001) (quoting Criminal Jury Instructions for the District of Columbia, No. 4.38 (4th ed. 1993)). It is uncontested that the evidence at trial was sufficient to establish both the first and third elements of second-degree theft. The question we address is ...