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In re D.P.


June 3, 2010


Appeal from the Superior Court of the District of Columbia Family Court (DEL2888-06) (Hon. Judith N. Macaluso, Trial Judge).

The opinion of the court was delivered by: Oberly, Associate Judge

Argued April 28, 2010

Before GLICKMAN and OBERLY, Associate Judges, and TERRY, Senior Judge.

Opinion for the court by Associate Judge OBERLY.

Dissenting opinion by Associate Judge GLICKMAN at page 8.

After a bench trial, the Superior Court adjudicated D.P. a delinquent, finding that D.P. committed the offenses of unauthorized use of a motor vehicle (UUV), D.C. Code § 22-3215 (2001), receiving stolen property (RSP), D.C. Code § 22-3232 (a) (2001), and theft, D.C. Code § 22-3211 (2001). We conclude that the evidence that D.P. possessed the requisite mens rea for any of the three charges was insufficient as a matter of law. Accordingly, we reverse the adjudication of delinquency.

At trial, the government presented evidence that on December 12, 2006, Janice Pugh reported her Ford Taurus stolen from the parking lot in front of her apartment building. Pugh did not know who took the car and testified that she had not given anyone, including D.P., permission to use it.

The Taurus was discovered on December 13, 2006, approximately two blocks from Pugh's apartment, with D.P. and several others inside. Officer Williams, one of the officers at the scene, testified that he was working undercover that night in an unmarked police car, but wearing a vest bearing the word "POLICE." Williams testified that when he approached the Taurus, D.P. and friends got out of the car and tried to run away. (According to a friend of D.P.'s, the police car in which Williams was riding hit the driver's door of the Taurus.) Williams caught D.P. approximately 30 feet away from the vehicle, and arrested him on the spot. Although there was conflicting testimony on this point, the trial court found that D.P. was a back seat passenger in the car; the government does not dispute this finding, and we shall not re-examine it.

Williams testified that he saw from the outside of the car that the car's ignition was "punched," but did not indicate where in relation to the car he was when he made this observation. ("'Punched' is a term used to describe an ignition that is completely removed from the car so that it can be driven without a key." Reyes v. United States, 933 A.2d 785, 789 n.3 (D.C. 2007).) The picture of the ignition entered into evidence was taken from the front seat passenger's vantage point, and no photographic evidence from the vantage point of a back seat passenger was presented. Aside from the punched ignition, there was no evidence that the car had any visible damage - the windows were intact and there was no evidence of damage to the car doors. And although Pugh testified that one of the car's doors was damaged when the car was returned to her, she stated that "[y]ou can't see the damage."

"Proof beyond a reasonable doubt," we have explained "is not merely a guideline for the trier of fact; it also furnishes a standard for judicial review of the sufficiency of the evidence." Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc). Thus, although in a sufficiency challenge "[j]udicial review is deferential," this "does not mean that appellate review of sufficiency of the evidence is toothless. We do not fulfill our duty through rote incantation of these principles followed by summary affirmance." Id. (quotation marks omitted). Rather, "[w]e have an obligation to take seriously the requirement that the evidence in a criminal prosecution must be strong enough that a jury behaving rationally really could find it persuasive beyond a reasonable doubt." Id.

The reasonable doubt requirement thus "means more than that there must be some relevant evidence in the record in support of each essential element of the charged offense.

The fact that evidence is relevant does not automatically make it sufficient to support a criminal conviction. Slight evidence is not sufficient evidence; a 'mere modicum' cannot 'rationally support a conviction beyond a reasonable doubt.'" Rivas, 783 A.2d at 134 (quotation marks and citation omitted). And although a "jury is entitled to draw a vast range of reasonable inferences from evidence, it may not base a verdict on mere speculation." Id. (quotation marks and editing omitted). Thus, the evidence "is insufficient if, in order to convict, the jury is required to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation. In short, if the evidence, when viewed in the light most favorable to the government, is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime, then the evidence is insufficient and we must say so." Id. (quotation marks, citation, and editing omitted).

In this case, to prove that D.P. committed each of the offenses with which he was charged, the government was required to prove beyond a reasonable doubt that D.P. knew that the Taurus was stolen. See In re C.A.P., 633 A.2d 787, 792 (D.C. 1993) (to prove UUV, "the government must show . . . that the passenger was present in the vehicle with knowledge that the vehicle was being operated without the owner's consent"); In re P.A.S., 434 A.2d 461, 463 (D.C. 1981) (to prove RSP, government must demonstrate "that the individual receiving the property had guilty knowledge that it was stolen"); In re D.D., 775 A.2d 1096, 1098 (D.C. 2001) (per curiam) (to prove theft, government must prove that the defendant intended wrongfully to obtain or wrongfully to use the property of another). Relying on the fact that the ignition was punched and D.P.'s flight following police arrival on the scene, the government argues that it made this showing. We disagree.

As for the punched ignition, the trouble with the government's position is that, unlike the facts in the cases cited by the government, in this case there was no evidence that the ignition was visible to a person in D.P.'s position in the car.*fn1 Nor did the government introduce evidence that in addition to having a punched ignition, the Taurus was so badly damaged as to warrant an inference that D.P. knew that it was being used without the owner's consent.*fn2 On these facts, the trial court's conclusion that it was a matter of "common sense" that D.P. would have seen the ignition is not supported by the evidence, and we therefore must reject that finding. See Rivas, 783 A.2d at 134.

As evidence of D.P.'s guilty knowledge we are thus left with D.P.'s flight, and that is not sufficient. As the Supreme Court recognized long ago, "it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses." Alberty v. United States, 162 U.S. 499, 511 (1896); id. at 510 ("there are so many reasons for flight consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt") (quotation marks omitted). Consistent with this observation, our case law is clear that although flight can be probative of guilt, "evidence of flight, without more, is not enough to convict." Agnew v. United States, 813 A.2d 192, 198 (D.C. 2002); see also In re Q.L.J., 458 A.2d 30, 32 (D.C. 1982) (per curiam) (similar). In this case, if the trial had revealed that the punched ignition was visible to someone in the backseat of the Taurus, or if there had been other evidence of D.P.'s guilty knowledge, the government would have had a stronger case.*fn3 But flight alone - not coupled with any other indicia of guilt - is all that we have. Because "[a]bsent anything more, there is no more basis for attributing [D.P.'s] flight to [consciousness of guilt] than to a purpose consistent with innocence," we are constrained to hold that the government failed to sustain its burden of showing beyond a reasonable doubt that D.P. committed the offenses of UUV, RSP, and theft. Bailey v. United States, 416 F.2d 1110, 1112, 1115 (D.C. Cir. 1969) (evidence insufficient for robbery conviction where defendant had been seen with robber and fled when someone yelled, "[l]ook, they're robbing him," at time of robbery).*fn4

The adjudication of delinquency is Reversed.

GLICKMAN, Associate Judge, dissenting:

Four persons were sitting in a parked Ford Taurus that had been stolen only hours earlier. The car's ignition was 'punched.' At the approach of a police officer, all four occupants of the Taurus abruptly sprang out of the car and took flight. Was that a coincidence? I think not. I think it enabled the trier of fact in this case to infer beyond a reasonable doubt that the occupants -- including D.P., who was sitting in the right rear passenger seat -- did not want to be caught because they knew they were in the Taurus "without the owner's consent."*fn5 Considered in isolation, neither the punched ignition nor D.P.'s flight may have sufficed to prove his culpability, as my colleagues conclude.*fn6 But even if "none of the individual items of proof tended in themselves to show guilty knowledge," that does not mean "the combination of all the circumstantial facts proved was an equally insufficient basis from which" such knowledge could be inferred.*fn7 In my opinion, "[w]hen viewed collectively the facts here argue against an innocent explanation" for D.P.'s conduct.*fn8

Isn't the most natural and obvious explanation for D.P.'s attempt to flee that he knew he did not belong in the stolen and damaged car? Why else would he have fled at the first sign of the police when he was doing nothing (else) wrong?*fn9 It is not true that "flight alone -- not coupled with any other indicia of guilt -- is all that we have" here.*fn10 What we have is D.P.'s flight "coupled with" his and his equally jittery friends' unlawful presence in a recently stolen vehicle featuring a punched ignition and damaged steering column. It will not answer to quote the admonition that "men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses."*fn11 D.P. would have had no reason to fear being apprehended as a guilty party or having to appear as a witness if he was unaware he and his friends were trespassing in someone else's car.

I appreciate that one may hypothesize other explanations for D.P.'s conduct that would be consistent with innocence. (Hypothesize we must, inasmuch as D.P. did not take the stand and explain why he acted as he did.) D.P. could have sought to avoid the police because he feared he was about to be arrested for misconduct unrelated to his presence in the Taurus, or for other idiosyncratic reasons. Or perhaps he entered the Taurus innocently enough and realized to his chagrin that it was a "hot car" only when the police officer happened on the scene. But in order to prove D.P. guilty beyond a reasonable doubt, the government was not required to "negate every possible inference of innocence."*fn12 "[T]he test for sufficiency of evidence is not whether a reasonable doubt was possible, but rather whether a finding of no reasonable doubt was possible."*fn13 In applying this test, our review must be "deferential, giving 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'"*fn14 I think it was reasonable for the trier of fact in this case to discount the hypothetically possible innocent explanations of D.P.'s behavior as too unsubstantiated and implausible to dispel the strong inference that D.P. knew he was in the Taurus without its owner's consent.*fn15

I thus conclude there was sufficient evidence of D.P.'s mens rea for the court to find him guilty of unauthorized use of a vehicle (UUV). That conclusion does not carry over to the other offenses with which D.P. was charged -- theft and receiving stolen property. Unlike UUV, the latter offenses require the government to prove that the defendant actually or constructively possessed the stolen property at some point.*fn16 "A person's presence in a vehicle as a passenger, without more, is insufficient to prove that he possessed the vehicle,"*fn17 for it must be shown that he knowingly and intentionally exercised dominion or control over it.*fn18 The evidence in this case -- including D.P.'s flight, though it bespoke his consciousness of guilt -- fell short of demonstrating D.P.'s dominion or control over the stolen Taurus; nor did the trial court find that he exerted such power over the car.*fn19

Finally, to return to the UUV charge and a claim the majority finds it unnecessary to reach, D.P. also seeks reversal because there was no proof the Taurus was moved after he entered it. It is true this court has said that "at least some asportation is an element of the crime,"*fn20 but it is difficult to square that obiter dictum*fn21 with the language of the UUV statute itself. The statute makes it an offense to "operate[] or drive[]" a vehicle without the owner's consent.*fn22 "Operation" does not necessarily entail movement.*fn23 And it is at least arguable that the operation requirement was satisfied, given the testimony that the car radio was in use. But, as the government has never made that argument, and as the trial court evinced no reliance on it, I would be content to concede the point to D.P. and to remand for the trial court to enter an amended judgment on a finding of attempted UUV rather than the completed offense.

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