Appeal from the Superior Court of the District of Columbia (CMD4940-06) (Hon. Jeanette Clark, Trial Judge).
Before FISHER, Associate Judge, and BELSON and SCHWELB, Senior Judges.
Opinion for the court PER CURIAM.
Opinion by Senior Judge SCHWELB, concurring in part and dissenting in part, at page 3.
The majority of the court has concluded that the evidence is sufficient to sustain appellant's conviction of second-degree theft. To be sure, as Judge Schwelb demonstrates in Part III A of his opinion, appellant did not confess to the crime. However, we are not prepared to say that, when the remaining evidence is "view[ed] . . . in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We will not attempt to set forth the evidence in detail -- Judge Schwelb's opinion does that. However, it was undisputed that, despite preliminary discussions, a sale of the jacket had not been completed before Ms. Swann left town and that appellant nevertheless entered Ms. Swann's apartment and took the jacket while she was out of the city. Although appellant asserted that she had done so with permission, the trial court, as the judge of credibility, disbelieved that assertion and instead credited Ms. Swann's testimony that she had not given any such permission. The court also rejected appellant's testimony that she paid $75.00 toward the purchase of the jacket before Ms. Swann left town, crediting Ms. Swann's "testimony that the defendant never paid her any money . . . ." Moreover, the finder of fact concluded that appellant changed her story between her first and second interviews with the detective, betraying her consciousness of guilt. These assessments of credibility, as well as Ms. Swann's testimony, supported the trial court's finding that appellant took the jacket with criminal intent.
Nevertheless, the record does not support the trial court's statement that "we have the defendant's confession that she took the jacket without the complaining witness' permission." Perhaps the court meant to say that "the defendant admitted that she took the jacket, and I find that she did so without the complaining witness's permission." But we cannot assume that such an important comment on the evidence was a mere slip of the tongue. Because the reference to a confession is clearly erroneous, "the possibility exists that in finding guilt, the trier of fact was swayed by erroneous factual matter." In re C.J. III, 514 A.2d 460, 464 (D.C. 1986). Therefore, "we are constrained to remand this case for the court to weigh the evidence in the record afresh and render a new verdict." Shewarega v. Yegzaw, 947 A.2d 47, 54 (D.C. 2008). See also National Housing P'ship v. Municipal Capital Appreciation Partners I, L.P., 935 A.2d 300, 321 (D.C. 2007) (remanding "for reconsideration in light of all the evidence of record"). The court's findings on remand shall be in writing and non-conclusory in nature.
SCHWELB, Senior Judge, concurring in part and dissenting in part: On October 31, 2006, following a one-day bench trial, Maxine Grayson was found guilty of theft in the second-degree in connection with the taking of a tan leather jacket from the apartment of the complaining witness, Veretta Swann. It is undisputed that Ms. Grayson took the jacket; her sole contention on appeal is that the evidence was insufficient, as a matter of law, to establish that Ms. Grayson appropriated the jacket without Ms. Swann's consent and with the intent to steal it.
In her oral decision finding Ms. Grayson guilty, the trial judge stated that "of course, we have the defendant's confession that [Ms. Grayson] took the jacket without the complaining witness' permission." A careful examination of the record discloses that there was no confession; on the contrary, Ms. Grayson unequivocally testified that Ms. Swann told her that "you can get the jacket." The trial judge's finding that Ms. Grayson confessed to theft, or to any other wrongdoing, was plainly erroneous and without evidence to support it.
The trial judge's finding that there was a confession when, in fact, there was none, without more, precludes affirmance of Ms. Grayson's conviction and requires, at least, a remand for revised findings which excluded any consideration of a purported confession. Indeed, the majority so holds. In my opinion, however, the remand ordered by the court is inappropriate because, in the absence of a confession, the evidence, viewed in the light most favorable to the prosecution, was insufficient as a matter of law to establish beyond a reasonable doubt that Ms. Grayson "intended either to deprive [Ms. Swann] of a right to the property . . . or make use of the property for [herself] . . . without authority or right," Cannon v. United States, 838 A.2d 293, 296 (D.C. 2003) (internal citation omitted). Accordingly, I would reverse the judgment and direct the entry of a judgment of acquittal.
Shortly before Christmas 2005, Veretta Swann lived in a shelter for recovering substance abusers. Ms. Grayson, who apparently had a similar background, was the resident manager. Ms. Swann testified that prior to the events that led to Ms. Grayson's conviction, the two women were friends and that they had "formed a bond."
Ms. Swann owned a tan leather jacket, and she kept it in a closet in her apartment. Both women testified that Ms. Grayson was interested in purchasing the jacket for her daughter, but that she was unable at the time to pay for it. Ms. Swann testified, and Ms. Grayson confirmed, that Ms. Swann offered to let Ms. Grayson have possession of the jacket and to pay for it later. According to both women, however, Ms. Grayson stated that she did not feel comfortable with such an arrangement.*fn1
Ms. Swann went to New York for the Christmas holidays. Ms. Swann testified that immediately before her departure, she asked [Ms. Grayson] before I left if she wanted the coat. She told me no. I asked her again before I left. I said, are you sure you don't want the coat before I leave. She told me no.
It is thus undisputed that Ms. Swann was offering, until just before Christmas, to let Ms. Grayson take possession of the jacket at once, and to pay for it later.
While Ms. Swann was in New York, she was required, by the rules of the shelter, to call in to Ms. Grayson daily. She testified that she called in on December 22, 23, 24, 25 and 26, and she stated that she did not, during any of these conversations, give Ms. Grayson permission to take the jacket. She testified, however, that when she called in on December 26, Ms. Grayson "told me she took the coat." According to Ms. Swann, Ms. Grayson explained during the telephone conversation on the 26th that her daughter had come and that she (Ms. Grayson) had given the jacket to her daughter for Christmas. In response to a question from defense counsel whether "that was the full extent of the conversation between the two of you," Ms. Grayson answered: "Yes." There is no indication in Ms. Swann's testimony that upon being told that Ms. Grayson had taken the jacket, she (Ms. Swann) ...