Appeals from the Superior Court of the District of Columbia (F-2402-03) (F-2398-03) (Hon. Erik P. Christian, Trial Judge).
Before WASHINGTON, Chief Judge, and FARRELL and REID, Associate Judges.
Mark and Monique Banks (brother and sister) appeal from their convictions by a jury of one count each of felony receipt of stolen property. See D.C. Code §§ 22-3232 (a) & 22-3232 (c)(1) (2001). Both contend that the evidence was insufficient to support their convictions, and Monique Banks claims error in the trial court's refusal to instruct the jury on the lesser-included offense of misdemeanor receipt of stolen property. See id. § 22-3232 (c)(2).
We hold that the evidence was sufficient to support both convictions, but that Monique Banks - who alone requested the lesser-included offense instruction and alone raises the erroneous denial of that instruction on appeal - was entitled to a jury instruction on misdemeanor receipt of stolen property. The government suggests that if we agree with Ms. Banks on that point, the case should be remanded as to her to permit the prosecution to elect between retrial on the greater charge and entry of judgment by the trial court on the lesser-included offense of misdemeanor receipt of stolen property. Ms. Banks makes no contrary argument. We adopt that course. See Willis v. United States, 692 A.2d 1380, 1382-83 (D.C. 1997).
In early April 2003, Harvey Brooks bought a used Plymouth minivan for $4,000. The year of manufacture is not shown by the record. In the week of April 25, 2003, the car was stolen from his home. The police found the van within a few days, and when Brooks examined it, he saw that the door, ignition, and dashboard had been damaged. Brooks identified a photograph of the interior of the recovered van: it showed that the ignition or steering column had been "cracked," the ignition switch had been pulled out, and the dashboard was damaged. An insurance appraiser told Brooks that the van was not worth the cost to repair the damage, which was estimated to be over $3,000, and that the car would be considered "totaled."
Brooks did not know either appellant and had not given either permission to use his car. On April 25, 2003, Metropolitan Police Department (MPD) Officer Ngyun observed an occupied vehicle - Brooks's minivan - blocking a private driveway in an alley. The van's engine was running. Ngyun and MPD Officer Antonio approached the vehicle where Monique Banks was seated in the front passenger seat, and Mark Banks in the driver's seat. Using his flashlight to see inside, Antonio could see that the ignition switch was missing and the dashboard was broken. Appellants were arrested.
We hold first that the evidence was sufficient to support appellants' convictions. In making that determination, we view the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact . . . . The evidence may be deemed sufficient even if it does not exclude every reasonable hypothesis other than guilt. . . . It is only where there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the trial court may properly take the case from the jury.
Gibson v. United States, 792 A.2d 1059, 1065 (D.C. 2002) (internal quotation marks and citations omitted). To convict appellants of felony receipt of stolen property, the government had to prove (1) that they bought, received, possessed, or obtained control of stolen property; (2) knowing or having reason to believe that the property was stolen; and (3) that the value of the property was $250 or more. D.C. Code §§ 22-3232 (a) & 22-3232 (c)(1).
Although Ms. Banks contends weakly that the minivan stolen from Brooks was not the same vehicle recovered, the testimony of Brooks and Officer Antonio allowed the jury to find that the stolen vehicle and the van appellants occupied were the same. Further, appellants' knowledge that the van was stolen could be inferred reasonably from Antonio's testimony that, from where he stood outside the vehicle on the passenger side, he could see that the ignition was punched or missing, the dashboard was broken, and there was no key in the ignition, even though the vehicle was running. See In re C.A.P., 633 A.2d 787, 792 (D.C. 1993). Appellants' unsatisfactorily explained possession of the van, stolen only days before, further supported the conclusion that they knew the vehicle was stolen. See Charles v. United States, 371 A.2d 404, 407 (D.C. 1977).
Appellants challenge the sufficiency of the evidence with respect to the value of the van. The government had to prove only, however, that the minivan had a value of at least $250 at the time appellants received it, see Hebron v. United States, 837 A.2d 910, 911 (D.C. 2003) (en banc); Nichols v. United States, 343 A.2d 336, 341 (D.C. 1975); the "absolute value of the item stolen" was not an issue. Hebron, 837 A.2d at 913. The jury could reasonably infer the required value from evidence of the vehicle's purchase date and the price Brooks paid for it. See id. at 913-14. Brooks testified that he had bought the vehicle approximately a month before it was stolen for $4,000. Although it was seriously damaged ...