KEVIN BYNUM and KEVIN WOMACK v. UNITED STATES. ( 2016 )


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  •                                  District of Columbia
    Court of Appeals
    Nos. 14-CF-1007 & 14-CF-1344
    MAR 31 2016
    KEVIN BYNUM and KEVIN WOMACK,
    Appellants,
    v.                                       CF2-2199-13;
    CF2-220-31
    UNITED STATES,
    Appellee.
    BEFORE: FISHER and THOMPSON, Associate Judges; and FERREN, Senior Judge.
    ORDER
    On consideration of the motion, filed by appellee United States, to publish this
    court‘s February 17, 2016, memorandum opinion and judgment, regarding the above-
    referenced matter, and no opposition having been filed, it is
    ORDERED that the motion to publish the memorandum opinion and judgment is
    granted, and that the decision be reissued as a published opinion forthwith.
    PER CURIAM.
    Copies to:
    Honorable Patricia A. Broderick
    Director, Criminal Division
    Cory Lee Carlyle, Esq.
    400 5th Street, NW – Suite 350
    Washington, DC 20001
    Mona Benach, Esq.
    1333 H Street, NW – #900W
    Washington, DC 20005
    Elizabeth Trosman, Esq.
    Assistant United States Attorney
    Notice: This opinion is subject to formal revision before publication in the
    Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
    Court of any formal errors so that corrections may be made before the bound
    volumes go to press.
    DISTRICT OF COLUMBIA COURT OF APPEALS
    Nos. 14-CF-1007 and 14-CF-1344                  2/17/16
    KEVIN BYNUM and KEVIN WOMACK, APPELLANTS,
    V.
    UNITED STATES, APPELLEE.
    Appeals from the Superior Court
    of the District of Columbia
    (CF2-2199-13 and CF2-2200-13)
    (Hon. Patricia A. Broderick, Trial Judge)
    (Submitted January 7, 2016                           Decided February 17, 2016)*
    Cory L. Carlyle was on the brief for appellant Kevin Bynum.
    Mona Luddy Benach was on the brief for appellant Kevin Womack.
    Vincent H. Cohen Jr., Acting United States Attorney at the time the brief
    was filed, and Elizabeth Trosman, Chrisellen R. Kolb, Danny Lam Nguyen, and
    James A. Ewing, Assistant United States Attorneys, were on the brief for appellee.
    Before FISHER and THOMPSON, Associate Judges, and FERREN, Senior Judge.
    *
    The decision in these appeals was originally issued as an unpublished
    Memorandum Opinion and Judgment. It is now being published upon the court‘s
    grant of appellee‘s motion to publish.
    2
    FISHER, Associate Judge: After a joint jury trial, appellants Kevin Bynum
    and Kevin Womack were convicted of receiving stolen property (―RSP‖) 1 and
    unauthorized use of a vehicle (―UUV‖), 2 among other offenses not challenged
    here.       On appeal, appellant Bynum disputes the sufficiency of the evidence
    supporting his UUV and RSP convictions, and both appellants contest the
    admission of District of Columbia Department of Motor Vehicles (―DMV‖)
    records. We affirm.
    I.    Background
    On February 9, 2013, Officer Jeffrey Jones tried to stop a silver Chrysler
    Concorde after hearing a radio run describing a stolen vehicle fleeing police and
    then seeing it driving the wrong way down Florida Avenue at twice the speed limit.
    The driver of the Concorde fled from Officer Jones at a high speed, running two
    red lights. Shortly thereafter, Jones arrived at the scene of a collision involving the
    Concorde and a red Toyota Solara. Officer Jones saw appellant Womack exit the
    Concorde through the driver‘s window and appellant Bynum exit through the
    1
    
    D.C. Code § 22-3232
     (a), (c)(2) (2012 Repl.) (misdemeanor).
    2
    
    D.C. Code § 22-3215
     (2012 Repl.).
    3
    passenger door.     Both appellants ran away but were apprehended after short
    pursuits.
    The ignition in the silver Concorde had been ―punched,‖ meaning that
    a blunt object has been taken to the ignition column to
    break the ignition, to remove it so that you can stick an
    item—for example, a flathead screwdriver—into the
    ignition and use that to start the car, instead of the
    ignition itself because, for the ignition, you need a key.
    There were ―multiple‖ air fresheners hanging in the area of the ―punched‖ ignition.
    In the government‘s photographs, however, the air fresheners do not hide or
    obscure the ignition. There was also a brick or stone in the Concorde‘s glove
    compartment, which could have been the tool used to break the ignition column.
    The owner of the silver Concorde did not testify. To prove that the vehicle
    was stolen and that appellants‘ use of it was unauthorized, the government sought
    to introduce DMV records, which stated that the car was registered and titled in the
    name of Mr. Charles Singletary. The court admitted the records over appellants‘
    objections. Neither appellant testified in his own defense.
    4
    II.    DMV Records
    Appellants argue that the DMV records were inadmissible hearsay without
    testimony from the clerk who created them. Appellants also argue that admitting
    the records violated their rights under the Confrontation Clause because the records
    are testimonial and were created specifically for litigation.
    This court reviews the admission or exclusion of evidence for abuse of
    discretion. See Dutch v. United States, 
    997 A.2d 685
    , 689 (D.C. 2010). However,
    we review de novo questions of statutory interpretation or whether evidence
    violates the Confrontation Clause.3 Eaglin v. District of Columbia, 
    123 A.3d 953
    ,
    955 (D.C. 2015) (statutory interpretation); Carrington v. District of Columbia,
    
    77 A.3d 999
    , 1003 (D.C. 2013) (Confrontation Clause).
    The D.C. Code gives the Director of the DMV authority to ―create and
    transfer titles electronically,‖ and states that ―[a] duly certified copy of the
    Director‘s electronic record of a title or lien shall be admissible in any civil,
    criminal, or administrative proceeding as evidence of ownership.‖ 
    D.C. Code § 50-1218
     (a), (b) (2012 Repl.). The Code further dictates that ―[a] certified copy
    3
    U.S. Const. amend. VI.
    5
    of any record of the Department of Motor Vehicles shall be deemed authentic
    without further testimony as evidence in any judicial proceeding or administrative
    hearing.‖ 
    D.C. Code § 50-1301
    .05a (a) (2012 Repl.). The legislative history
    confirms that the statutes were intended to ―ease the admissibility of DMV records
    in court‖ and would specifically ―allow a certified copy of a record to be admitted
    without the testimony of a DMV employee.‖ D.C. Council, Report on Bill 16-821
    at 8 (Nov. 8, 2006).4
    Both of the DMV records bore the following certification:
    This is an official document of the District of Columbia
    Department of Motor Vehicles, maintained under a duty
    imposed by law. I certify that the information contained
    herein is a true and accurate record. I further certify that
    the information contained herein is within my custody
    4
    This statutory rule of evidence permitting admission of DMV records is
    akin to the hearsay exception for public records:
    [T]he record first must be authenticated as an official
    record of the governmental body in question. Next, the
    party proffering the record must prove that the facts
    stated in the document are within the personal knowledge
    and observation of the recording official and that the
    document is prepared pursuant to a duty imposed by law
    or implied by the nature of the office.
    Goldsberry v. United States, 
    598 A.2d 376
    , 378 (D.C. 1991) (internal citations and
    quotation marks omitted).
    6
    and control and that I have personal knowledge of the
    information contained within this document.
    ―This court, along with other courts, has not treated data created and stored
    electronically any differently from other data‖ when applying evidentiary rules.
    Cf. Dutch, 
    997 A.2d at 689
     (applying business records hearsay exception). Thus,
    the DMV records are plainly admissible under the statutes and need not separately
    satisfy any hearsay exception.
    ―[T]he Confrontation Clause of the Sixth Amendment bars the admission of
    testimonial hearsay against a criminal defendant at trial, unless the witness is
    unavailable and the defendant has had a prior opportunity to cross-examine him.‖
    Jenkins v. United States, 
    75 A.3d 174
    , 180 (D.C. 2013). The Supreme Court has
    explicitly instructed that records ―created for the administration of an entity‘s
    affairs and not for the purpose of establishing or proving some fact at trial . . . are
    not testimonial.‖ Melendez-Diaz v. Massachusetts, 
    557 U.S. 305
    , 324 (2009).
    In this case, DMV registration and title records are the product of ―routine,
    objective[] cataloging‖ of ―unambiguous factual matter.‖ United States v. Bahena-
    Cardenas, 
    411 F.3d 1067
    , 1075 (9th Cir. 2005).             It is one of the express
    ―[c]ustomer service functions‖ of the DMV to ―[t]itle and register‖ vehicles in the
    7
    District. 
    D.C. Code § 50-904
     (2)(A) (2012 Repl.). As stated previously, the
    statute permits the Director to create and maintain those records electronically, and
    the electronic records are fully admissible in court proceedings. 
    D.C. Code § 50
    -
    1218 (a), (b); 
    D.C. Code § 50-1301
    .05a (a). Merely printing and certifying a copy
    of an electronic record does not impact its admissibility—the record is created
    when the information is entered into the DMV‘s electronic database, not when a
    DMV employee clicks on the ―print‖ button and signs the certifying statement on
    the copy. Cf. Tabaka v. District of Columbia, 
    976 A.2d 173
    , 175-76 (D.C. 2009)
    (holding that a certificate of no-record is testimonial because the DMV employee
    ―create[d]‖ the document ―for the sole purpose of providing evidence against a
    defendant‖).
    Thus, the DMV records were admissible in this case to prove that
    Mr. Singletary owned the Concorde, not appellant Bynum or appellant Womack.
    ―Because the primary purpose of [title and registration records] is to meet
    administrative needs rather than to document facts for future prosecution, the
    documents are not ‗testimonial‘ and their admission under the circumstances does
    not implicate the Confrontation Clause.‖ Jackson v. United States, 
    924 A.2d 1016
    ,
    1021 (D.C. 2007).
    8
    III.   Appellant Bynum’s Sufficiency Challenges
    In reviewing a sufficiency challenge to a jury verdict, this court views ―the
    evidence in the light most favorable to the government, giving full play to the right
    of the jury to determine credibility, weigh the evidence, and draw justifiable
    inferences of fact, and making no distinction between direct and circumstantial
    evidence.‖   Terry v. United States, 
    114 A.3d 608
    , 616 (D.C. 2015) (internal
    quotation marks omitted). ―The evidence need not compel a finding of guilt
    beyond a reasonable doubt, and it need not negate every possible inference of
    innocence.‖ Napper v. United States, 
    22 A.3d 758
    , 770 (D.C. 2011) (internal
    quotation marks omitted). ―To prevail on an insufficiency claim, an appellant must
    establish that the government presented no evidence upon which a reasonable mind
    could find guilt beyond a reasonable doubt.‖ Cooper v. United States, 
    28 A.3d 1132
    , 1135 (D.C. 2011) (internal quotation marks omitted).
    To establish UUV, the government must prove that: (1) appellant took a
    motor vehicle, or used, operated, or removed a motor vehicle from any place;
    (2) operated it, drove it, or caused it to be operated or driven for his own profit, use
    9
    or purpose; (3) without the consent of the owner; and (4) at the time appellant took,
    used, operated, or removed the vehicle, he knew that he did so without the consent
    of the owner. See Mitchell v. United States, 
    985 A.2d 1125
    , 1136 (D.C. 2009).
    For a passenger, such as Bynum, we have explained that the government must
    prove ―the passenger was present in the vehicle with knowledge that the vehicle
    was being operated without the owner‘s consent.‖ In re D.P., 
    996 A.2d 1286
    ,
    1288 (D.C. 2010) (internal quotation marks omitted).
    To establish misdemeanor RSP, the government must prove that appellant:
    bought, received, possessed, or obtained control of stolen property; knew or had
    reason to believe that the property was stolen; with the intent to deprive another of
    the right to the property or benefit of the property; and the property had some
    value. See Lihlakha v. United States, 
    89 A.3d 479
    , 483 & n.4 (D.C. 2014).
    On appeal, appellant Bynum challenges only the sufficiency of the evidence
    to prove he knew that the Concorde was stolen and being operated without its
    owner‘s consent. The government‘s evidence showed that the driver of the car in
    which appellant Bynum was a passenger engaged in two dangerous, high-speed
    flights from police officers; the ―punched‖ ignition was visible from the front
    passenger seat and not obstructed by the air fresheners hanging in the vicinity; and
    10
    appellant Bynum immediately fled from the scene after the Concorde collided with
    the Solara.
    We have held that where the ignition of the car has been plainly tampered
    with so that it may be driven without a key, and that damage is ―clearly visible‖
    from the passenger‘s position, the evidence is ―sufficient to warrant an inference
    that appellant saw‖ the ignition damage ―and had actual knowledge that the vehicle
    was being used without the owner‘s consent.‖ In re D.M.L., 
    293 A.2d 277
    , 278
    (D.C. 1972). Here, the government introduced photographs taken from Bynum‘s
    vantage point in the passenger seat that clearly show the ignition is missing and the
    area is damaged.     Cf. In re D.P., 
    996 A.2d at 1287-89
     (holding evidence
    insufficient to support UUV-passenger conviction for backseat passenger where
    photographic evidence showed only that front seat passenger would have seen the
    damaged ignition).
    In the UUV context, flight from the vehicle and the police after a crash may
    provide evidence of guilt. See In re R.K.S., 
    905 A.2d 201
    , 218 (D.C. 2006). Of
    course, ―a passenger is not to be convicted of aiding and abetting if he discovers
    only in the course of a 60 mile per hour chase that the vehicle is being operated
    without the owner‘s permission.‖ Jones v. United States, 
    404 F.2d 212
    , 216 (D.C.
    11
    Cir. 1968). But there was no evidence that appellant Bynum was innocently
    present in the stolen vehicle, and his flight from the scene after the collision amply
    supports an inference of his guilty knowledge. It does not matter that he may have
    had multiple reasons for fleeing, including the fact that he possessed marijuana
    (which was then illegal), for the government need not ―negate every possible
    inference of innocence.‖ Rollerson v. United States, 
    127 A.3d 1220
    , 1232 (D.C.
    2015) (internal quotation marks omitted).
    Although each fact viewed individually may not ―point unerringly to the
    appellant as possessing the requisite guilty knowledge,‖ when ―taken as a whole,
    together with their legitimate inferences, they permit a finding of such guilty
    knowledge beyond a reasonable doubt.‖ In re T.T.B., 
    333 A.2d 671
    , 673 (D.C.
    1975). Taken together, appellant Bynum‘s flight, the clearly visible damage to the
    ignition, and the fact that the car was driven without a key provide more than
    sufficient evidence for a reasonable jury to convict him of both UUV and RSP.
    IV.    Conclusion
    For the foregoing reasons, appellants‘ convictions are affirmed.