CERRON H. HAWKINS, APPELLANT,
UNITED STATES, APPELLEE
Argued: October 24, 2014.
Appeal from the Superior Court of the District of Columbia. (CMD-17143-12). (Hon. Yvonne Williams, Trial Judge).
Sean J. Farrelly for appellant.
Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and FARRELL, Senior Judge.
Following a bench trial, the judge found appellant guilty of second-degree theft of a bicycle that Metro Police officers, as part of a so called bait-bike operation, had placed on a bicycle rack near the entrance to a Metro station. Appellant, conceding that " [t]he only disputed evidence in this case relates . . . to the element of intent" (Br. for Appellant at 7), argues that the trial judge misapprehended the law in rejecting his defense that he believed the bicycle had been abandoned,
because the judge found that he could not reasonably have held that belief in the circumstances.
The government now acknowledges that this was error. It concedes, first, and correctly, that in finding appellant guilty the judge focused on the reasonableness vel non of his belief that the bicycle belonged to no one and thus he could claim it for himself. She answered this question " no" because, among other things, the bicycle did not " look completely abandoned" from a photograph in evidence; appellant had " only [seen] the bike [on the bicycle rack] over a course of maybe five to ten minutes" ; and it lacked the specific badge of abandoned property carried by other bikes on the rack, which bore orange stickers revealing Metro's intent for them to be removed as abandoned. In short, the judge found that appellant acted rashly, not reasonably, in inferring (if he did infer) that the bike belonged to no one else: " If you're going to take something that's not yours, you need to fully research it. And that clearly was not done."
The government further concedes that, for a crime such as theft requiring proof of specific intent by the government, a defendant need not show that his belief that the property was abandoned was reasonable. Our decisions imposing a reasonableness requirement have all concerned crimes of general intent. See Simms v. District of Columbia, 612 A.2d 215, 218 (D.C. 1992); Goddard v. United States, 557 A.2d 1315, 1316 (D.C. 1989); Williams v. United States, 337 A.2d 772, 774-75 (D.C. 1975). Those decisions implicitly acknowledge the contrary rule, that where specific intent is at issue, abandonment as a defense is available if " [o]ne . . . [has] take[n] the property of another honestly but mistakenly believing . . . that it is no one's property. . . . In any such event, he lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable." Wayne R. Lafave, Substantive Criminal Law § 19.5(a) at 88-89 (2d ed. 2003) (" Claim of Right" ). See also Richardson v. United States, 403 F.2d 574, 576, 131 U.S.App.D.C. 168 (D.C. Cir. 1968) (" [S]pecific intent depends upon a state of mind, not upon a legal fact" such as actual entitlement to property) (citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)); In re Mitrano, 952 A.2d 901, 905 (D.C. 2008) (recognizing that " an unreasonable, but honestly held, belief would preclude [a] finding of theft" ) (emphasis in original).
The question remains, therefore, of the proper remedy for the trial court's error. Appellant asserts that the right course of action is entry of an acquittal, ...