MICHAEL J. WARNER, APPELLANT,
UNITED STATES, APPELLEE
Submitted January 22, 2015
Appeal from the Superior Court of the District of Columbia. (CMD-24360-11). (Hon. Patricia A. Wynn, Trial Judge).
Regina Michaels was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John Hill, and Susan M. Simpson, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior Judge.
Glickman, Associate Judge :
Michael Warner was charged by information with misdemeanor second-degree fraud. After a bench trial, the trial judge acquitted him of that charge but found him
guilty of attempted second-degree theft, which the judge concluded is a lesser included offense of second-degree fraud. On appeal, Warner argues that attempted second-degree theft is not included in second-degree fraud, and that, in any event, the evidence and the judge's findings were insufficient to support his conviction of attempted theft. We hold that attempted second-degree theft by means of deception is a lesser included offense of second-degree fraud, and that there was sufficient evidence to support appellant's conviction on that basis. Nonetheless, because we are uncertain whether the judge found an essential element of the lesser included offense, namely, that appellant intentionally or knowingly attempted to deceive, we remand for clarification on this point.
According to the evidence presented at trial, on October 27, 2011, appellant leased a one bedroom condominium apartment near the campus of American University. A month later, having failed to pay the required security deposit or the first month's rent, he began posting advertisements seeking a roommate on American University housing message boards and Craigslist.com. Appellant did this even though his lease prohibited subletting without his landlord's approval, which he had not secured. At trial, appellant testified that he was unaware of this prohibition in his lease.
On December 2, 2011, Teresa Parks, a junior at American University, saw one of appellant's ads and inquired about the apartment. The ad stated that the unit was available on a " short/month-to-month basis" for " [a]n extended period of time" starting in December. Ms. Parks advised that she was seeking a room for the entire spring semester, i.e., the period from January through May 2012. Responding to her inquiry by email on the afternoon of December 2, appellant stated, " I flexible - short or semester lease." According to appellant, Ms. Parks told him she " wanted a month-to-month lease" starting with the " December/January timeframe," with the possibility of continuing after those first two months if the living situation " work[ed] out." Appellant emailed her a draft month-to-month lease agreement.
Teresa Parks's mother, Vanessa Parks, phoned appellant on December 4 to finalize the deal. Mrs. Parks testified that appellant told her he owned the apartment and that it would be available for rent for " at least the semester." She told appellant that the preference was for her daughter " to stay for the entire semester, but [they] agreed to a month-to-month lease in case it didn't work out." In other words, Mrs. Parks testified, although the lease would be month-to-month, " the agreement verbally was that assuming everything worked out, [Teresa] would live there for the entire semester, at least."  After the conversation, Mrs. Parks wired $800 to appellant via Western Union as a security deposit to hold the apartment. Appellant picked up the wired funds at 9:41 a.m. on December 5, 2011, and texted Mrs. Parks to let her know that he had received the money.
Unbeknownst to Teresa and Vanessa Parks, appellant was in communication with someone else interested in his offer of a room for rent. Nicole Diaz, a senior at American University, called him after ...