Appeal from the Superior Court of the District of Columbia (CMD14819-08) (Hon. Anthony C. Epstein, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ, Associate Judge, and NEBEKER and SCHWELB, Senior Judges.
Following a bench trial, appellant, Charles Price, was convicted of second-degree theft in violation of D.C. Code §§ 22-3211, -3212 (b) (2001). On appeal, appellant argues that the trial court erred in (1) finding the evidence sufficient to convict him of the crime of theft, because the crime was not completed and did not support that he had the intent to steal; and (2) impermissibly shifting the burden of proof onto appellant in violation of his right to due process of law. For the reasons that follow, we affirm.
On June 28, 2008, appellant and William C. Brady were observed, via closed-circuit surveillance video, by Police Officer and part-time Home Depot security officer, Anthony Wallace, entering the Home Depot store at 901 Rhode Island Avenue, N.E. Officer Wallace testified that appellant pushed an empty cart through some of the store's aisles before selecting "a large [can] of polyurethane" and placing it openly in his cart. As appellant pushed the cart with the polyurethane, he and Brady, who was trailing "three feet behind," went to the Inside Garden section of the store, which is located close to the exit. At that point, the surveillance cameras lost sight of the two men.
Jason Ford, a loss prevention officer who was on the floor near Inside Garden at the time, informed Officer Wallace that he saw appellant transfer the cart containing the polyurethane to Brady, and that the two men exchanged "a few words," although the officer did not know what was said. Appellant then exited the store, and Brady took the cart with the polyurethane to the customer service line for returning items. While waiting in line, he added a how-to book to the cart. Once at the cashier, Brady attempted to return the unpurchased merchandise for store credit, but was apprehended as the transaction was being finalized. The record is unclear as to whether he physically received the gift card containing store credit. After detaining Brady, Officer Wallace used the surveillance cameras to locate appellant sitting outside the building on the curb, where he was detained.
Brady, who entered a plea of guilty to second-degree theft for his involvement in the incident, testified that appellant had no knowledge of, or participation in, his scheme to return the polyurethane and book for store credit. Brady testified that appellant had hired him to stain and seal appellant's porch for $200. Under their arrangement, appellant would provide the stain and tools needed for the job, while Brady would procure the polyurethane. Brady testified that appellant accompanied him to Home Depot to show him the type of polyurethane needed. Because the polyurethane cost $109, and he was to be paid $200 for the job, Brady said that he "decided to get slick" and return the merchandise for store credit, get another container of polyurethane, "and pay for it with the gift card."*fn1
In analyzing a sufficiency claim, "[w]e view the evidence in the light most favorable to the government, recognizing the province of the trier of fact to weigh the evidence, determine the credibility of the witnesses and to draw reasonable inferences from the testimony." Dickerson v. United States, 650 A.2d 680, 683 (D.C. 1994). In reviewing a bench trial, we will not reverse unless appellant "establish[es] that the trial court's factual findings are plainly wrong, or without evidence to support them." Peery v. United States, 849 A.2d 999, 1001 (D.C. 2004) (citation omitted). Therefore, in order to prevail, appellant "must establish that the government presented 'no evidence' upon which a reasonable mind could find guilt beyond a reasonable doubt." Id.
To convict appellant of theft under D.C. Code § 22-3211, the government must prove that "(1) he  wrongfully obtained the property of [Home Depot], (2) that at the time he obtained it, he specifically intended 'either to deprive [Home Depot] 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." Peery, 849 A.2d at 1001 (quoting Nowlin v. United States, 782 A.2d 288, 291 (D.C. 2001)). The statute defines "wrongfully obtains" as "(1) taking or exercising control over property; (2) making an unauthorized use, disposition, or transfer of an interest in or possession of property; or (3) obtaining property by trick, false pretense, false token, tampering, or deception." D.C. Code § 22-3211 (a). "The fact that the possession was brief" or that the goods never left the store is immaterial. Groomes v. United States, 155 A.2d 73, 75 (D.C. 1959).
The trial court found appellant guilty of stealing the polyurethane within the store, because "(a) [appellant] obtained the polyurethane when he took it off the shelf and took possession of it, (b) he did it wrongfully, and (c) he did it with the specific intent to deprive the owner of the right to or benefit from the property."
Appellant claims that the trial court erred in finding the evidence sufficient to convict him of stealing the polyurethane. His argument is twofold: (1) he never "wrongfully obtained" the polyurethane as required by the theft statute because Home Depot consented to his handling of the polyurethane within the store, he left empty-handed, and the polyurethane never left the store; and (2) his intent to steal is unsupported by the evidence, because he left the store before Brady attempted to return the polyurethane.
On the first point, appellant argues that because Home Depot permits customers to cart around unpaid-for products within the store, he did not "wrongfully obtain" the polyurethane by placing it into a cart and moving it around the store as any legitimate shopper would, because he did not "tak[e] or exercise[e] control" over the merchandise in a manner inconsistent with the rights of the owner and Brady's fraudulent return transaction was never completed. D.C. Code § 22-3211 (a)(1). He argues that, at most, he could be convicted of attempted theft. The government counters that by ...