Appeals from the Superior Court of the District of Columbia (CMD17953-07 & CMD17955-07) (Hon. Zinora Mitchell-Rankin, Trial Judge)
The opinion of the court was delivered by: Belson, Senior Judge
Argued September 17, 2009
Before FISHER and OBERLY, Associate Judges, and BELSON, Senior Judge.
Appellants Robert S. Thomas and Reginald Vincent were tried by the court without jury on two informations that charged respectively that each "maliciously did injure, break, and destroy certain property, that is, [a] vehicle mobilization unit ["boot"], property of [the] Department of Public Works, causing damage in the amount less than $200" in violation of D.C. Code § 22-303 (2001). The court found both guilty and imposed on each a sentence of imprisonment of 180 days with all but fifteen days suspended. Both filed timely appeals. A third co-defendant, Michael Haskins, was also found guilty, but does not appeal.
On appeal, both Thomas and Vincent argue that the evidence was insufficient to establish that they acted with malice, and Vincent argues as well that the evidence did not establish that he injured, broke or destroyed the boot. We cannot agree, and therefore affirm as to both appellants.
The evidence, viewed in the light most favorable to the government, Bolden v. United States, 835 A.2d 532, 534 (D.C. 2003), established that on July 31, 2007, Lieutenant Wylie Myers, a retired member of the Metropolitan Police Reserve, returned home from work and saw a group of men tampering with a District of Columbia vehicle immobilization device, or boot, that was affixed to a wheel and tire of a Lincoln Town Car. A so-called boot has two principal parts -- a "jaw," and an "arm." The jaw fits around the wheel and is bolted to the arm. Attached to the arm is a round plate large enough to cover the lug nuts of a wheel so as to prevent anyone from loosening the lug nuts to remove the wheel. A lock holds the jaw and arm together and prevents removal of the boot except by either the use of a key possessed by certain District of Columbia employees or forcibly by use of a sledge hammer or other tools to knock them apart.
Myers approached the group of about five men when he saw what they were doing, and recognized Thomas and Vincent, whom he knew. He told the group that they were "doing wrong," and warned them that they were doing so in broad daylight and on a surveillance camera.
When Myers saw the car, the complete plate section of the boot that covers the lugs was affixed to the vehicle. Myers saw the men step away from the car but, after going into his nearby house, he looked out and saw Vincent using "some type of tool" to pry off the boot, and Thomas jacking up the car. Vincent then removed the tire and wheel from the car with the jaw portion of the boot still attached.
In the meantime, Michael Haskins had arrived at the scene and was standing, and at times squatting, near Thomas by the front of the car. Vincent and Thomas then put the wheel, with the jaw attached, into the trunk of the Lincoln Town Car and attempted to put the spare tire on the car.
Shortly thereafter, police officers arrived on the scene, whereupon Haskins and Thomas shut the car's trunk. Vincent began to walk away. Officer Smith, who had seen the boot intact on the car earlier in the day, patted down Haskins and found on him the keys to the car. Haskins then acknowledged that he owned the car. Officer Smith opened the trunk and found the tire with the jaw of the boot still attached. The boot's arm and plate were missing. The jaw portion of the boot was not broken. A crowbar and sledge hammer were on the ground near the car, and a jack was beneath the car.
All three co-defendants moved for judgments of acquittal at the close of the government's case, arguing primarily that although the boot was removed, it was not injured or destroyed. The court denied the motions, stating that because the device was taken apart and the plate was missing, the boot could no longer function in its intended capacity, and that all the defendants were complicit in its removal from the car.
After the court denied the motions, Haskins testified briefly. He denied any knowledge of the fact that the boot was being removed from the car.
The trial judge found all three defendants guilty. As neither appellants nor their co- defendant Haskins asked the trial judge to find the facts specially pursuant to Super. Ct. R. Crim. P. 23 (c), she made general findings, but in doing so, indicated the basis for her conclusion that appellants were guilty as charged. On appeal from a finding of guilt where an appellant has not asked the trial court to find the facts specially, this court will review the record to ascertain whether there is evidence of record that supports the trial judge's conclusion of guilt. United States v. Musser, 873 F.2d 1513, 1519 (D.C. Cir. 1989) ("[S]ince no party requested the Court to find the facts specifically . . . findings will be implied in support of the judgment if the evidence, viewed in a light most favorable to the government, warrants them.") (internal quotation marks omitted). An appellate court may take the view of the facts that will support the judgment below when special findings have been waived. See United States v. Ochoa, 526 F.2d 1278, 1282 n.6 (5th Cir. 1976); McClain v. United States, 417 F.2d 489, 492 n.2 (9th Cir. 1969); see also 2 CHARLES ALAN WRIGHT & PETER J. HENNING FEDERAL PRACTICE AND PROCEDURE § 374 (4th ed. 2009).
Appellant Vincent's first argument is that the evidence does not support the conclusion that he injured or destroyed the boot. He points out that the boot "is a device which comes apart and is reassembled every time it is used. . . . It is designed to be taken apart and put back together." He also maintains that "there was no evidence that ...