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In re J.W.

Court of Appeals of Columbia District

October 9, 2014

IN RE J.W., APPELLANT

Submitted: September 29, 2014.

Appeal from the Superior Court of the District of Columbia. (DEL-1326-12). (Hon. Robert R. Rigsby, Trial Judge).

James E. Drew was on the brief for appellant.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Y. Sheppard, Assistant Attorney General, were on the brief for appellee District of Columbia.

Before FISHER and BECKWITH, Associate Judges, and FARRELL, Senior Judge.

OPINION

Page 1092

Fisher, Associate Judge.

Following a bench trial, appellant J.W. was found " involved" in possessing the implements of crime. D.C. Code § 22-2501 (2012 Repl.). On appeal, he contends that this statute does not apply to the bolt cutters he possessed and, therefore, the government failed to prove the offense charged. We agree.

I. Factual and Statutory Background

At approximately 3:45 a.m. on July 1, 2012, Metropolitan Police Department Officer Perry Morgan saw J.W. and another youth examining a Vespa scooter that was chained to a fence. Despite the hot weather, J.W. was dressed in black ski pants and had a black ski mask perched on top of his head. He was also carrying two-foot-long bolt cutters with yellow handles. When the two young men noticed the officer, they climbed on a bicycle and rode towards him. After stopping them, Officer Morgan asked J.W., who was sixteen years old at the time, what he was doing with the bolt cutters. J.W. replied, " [W]hat, I can't have these[?] . . . . [A]n officer said that it was okay for [me] to have these," and then dropped them to the ground. J.W. was arrested and, after a bench trial, was found " involved" in possessing the implements of crime.

J.W. was charged with violating a statute that prohibits the possession of " any instrument, tool, or implement for picking locks or pockets, with the intent to use such instrument, tool, or implement to commit a crime." D.C. Code § 22-2501 (2012 Repl.). The predecessor statute, part of the vagrancy laws, " was clearly intended as a 'burglar tool' statute, the

Page 1093

wording of which was typical of similar misdemeanor enactments in many states." [1] Rosenberg v. United States, 297 A.2d 763, 765 (D.C. 1972). In 1941 Congress broadened the scope of the vagrancy statute by deleting language pertaining to " burglary" and " against property." Pub. L. No. 77-352, 55 Stat. 808 (1941) (codified as D.C. Code § 22-3302). After the amendment, the statute covered the implements of " any crime," but it continued to be applied primarily to the possession of burglary tools. See, e.g., Patten v. United States, 248 A.2d 182, 183 (D.C. 1968) (" a paper bag containing several tools commonly used for burglary" ). The expansive language of the 1941 statute survived in subsequent enactments,[2] and the statute was increasingly applied " to narcotics paraphernalia, explosive mechanisms and other devices[.]" Rosenberg, 297 A.2d at 765.

In 1981, the Council of the District of Columbia created a new offense, possession of drug paraphernalia,[3] and repealed the statute which prohibited possession of implements of crime. See § 410 and § 604 (a)(2) of the District of Columbia Uniform Controlled Substances Act of 1981, D.C. Law 4-29, 28 D.C. Reg. 3108 (1981). Three months later, the Council enacted a new statute that substantially narrowed the categories of instruments, tools, and implements to which it applied.[4]See D.C. Law 4-52, ยง 3 (g), 28 D.C. Reg. 4348 (1981). Thus, the current " statute applies only to the possession of [an] 'instrument, tool or implement for picking locks or pockets,' unlike the former provision, which reached beyond those instruments to include other implements ...


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