Alphonso N. Owens v. United States , 2014 D.C. App. LEXIS 160 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-1332
ALPHONSO N. OWENS, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-18008-11)
(Hon. Heidi M. Pasichow, Trial Judge)
(Argued March 18, 2014 Decided May 15, 2014)
William T. Morrison for appellant.
David B. Goodhand, Assistant United States Attorney, with whom
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and
Brandon S. Long, Assistant United States Attorneys, were on the brief, for
appellee.
Before FISHER and EASTERLY, Associate Judges, and FERREN, Senior Judge.
FISHER, Associate Judge: After a jury trial, appellant Alphonso Owens was
convicted of receiving stolen property (RSP)1 and unauthorized use of a vehicle
1
D.C. Code § 22-3232 (2011 Supp.).
2
(UUV).2 On appeal, he argues that a supplemental instruction responding to a note
from the jury constituted reversible error. Although the instruction was not an
ideal explanation of the subjective knowledge required for RSP, appellant has not
shown plain error, and we affirm his convictions.
I. Factual Background
On September 14, 2011, officers from the Metropolitan Police Department‟s
(MPD) auto theft unit located a 1996 gold Nissan Maxima that had been reported
stolen on September 12. They stopped the Maxima and arrested appellant, who
was the driver. During the stop, MPD officers observed that the Maxima‟s steering
wheel column was damaged and held together by duct tape, that the metal around
the passenger-side door lock had been pulled back and had a jagged edge, and that
a side vent window was “broken out” and covered with duct tape. The officers
also noted that the key in the Nissan‟s ignition read “BMW” and had been shaved
down to a one-inch point. When asked how he had obtained the Maxima,
appellant said that he was test-driving it. He explained that an acquaintance had
delivered the car that morning, offering to sell it and telling appellant that the
damage was due to an accident and subsequent remedial measures. Appellant told
2
D.C. Code § 22-3215 (2011 Supp.).
3
police that he has “experience knowing about stolen cars” and conceded that he
“should have used better judgment.”3
II. The Jury Instructions on RSP
The version of the statute in effect at the time of this offense stated that “[a]
person commits the offense of receiving stolen property if that person buys,
receives, possesses, or obtains control of stolen property, knowing or having
reason to believe that the property was stolen, with intent to deprive another of the
right to the property or a benefit of the property.” D.C. Code § 22-3232 (a) (2011
Supp.) (emphasis added). The trial court used the standard jury instructions for
RSP. See Criminal Jury Instructions for the District of Columbia, No. 5.301,
Receiving Stolen Property and Attempted Receipt of Stolen Property (5th ed. rev.
2010). In order to meet the third element, the trial court explained, the government
must prove that “[a]t the time the defendant [acquired the property], he knew or
had reason to believe that the property was stolen.”
3
Appellant did not testify, but his thirty-minute interview with police was
recorded and played in its entirety during trial.
4
After a day of deliberation, the jury asked, “[d]oes #3 „reason to believe‟
mean he had a lower degree of certainty that the property had been stolen by
someone? OR does it mean there were logical „reason[s] to believe‟ the property
was stolen, but those reasons did not register with him?” With the approval of
both parties,4 the trial court instructed that “Element No. 3 . . . requires that the
defendant either knew or had reason to believe that the property was stolen. In
terms of the reason to believe, that determination should be based upon what a
reasonable person would have believed under the facts and circumstances as you
find them.”
III. Applying the Statute
Appellant contends that the trial court‟s supplemental instruction, referring
to “what a reasonable person would have believed,” impermissibly diminished the
government‟s burden and allowed the jury to use a negligence standard to convict
him. While acknowledging that this was “certainly not a pristine instruction,” the
4
Appellant‟s counsel emphasized that “there‟s no diminution or reduction
in terms of the reasonable doubt that the government must overcome in order to
meet that element.” The judge told counsel that the jury was “asking whether
there‟s a difference in the state of mind required for either [„knew‟ or „had reason
to believe‟].” After discussion, appellant‟s counsel twice agreed with the proposed
instruction.
5
government emphasizes that the trial court‟s supplemental “instruction correctly
directed the jurors‟ attention to appellant‟s actual state of mind, and informed them
that they could not convict appellant of RSP unless they found either he personally
knew of the Maxima‟s stolen nature or he personally „had reason to believe‟ that
the Maxima was stolen[.]”
“Our primary goal [in statutory construction] is to ascertain and give effect
to the intent of the legislative body that drafted the language.” Tenley & Cleveland
Park Emergency Comm. v. District of Columbia Bd. of Zoning Adjustment, 550
A.2d 331, 334 n.10 (D.C. 1988). Here, the plain language of the RSP statute
distinguishes between “knowing” and “having reason to believe.” Moreover, the
legislative history of the statute states that “[t]he phrase „having reason to believe‟
is intended to have the same meaning as that given to the phrase „having cause to
believe‟ under the current law. It is not required that th[e] offender have actual
knowledge.” D.C. Council, Report on Bill 4-133 at 54 (Feb. 12, 1981). While
discussing an identically-worded element of the proposed trafficking in stolen
property statute, 5 the same report notes that “it is intended that the offender‟s
5
This legislative proposal was subsequently enacted and provided that “[a]
person commits the offense of trafficking in stolen property if, on 2 or more
separate occasions, that person traffics in stolen property, knowing or having
reason to believe that the property has been stolen.” 29 D.C. Reg. 3984 (1982).
6
knowledge or belief may be inferred from the circumstances of the offense and it is
not required that the offender know for a fact that the property is stolen. Rather, it
is sufficient if the offender had „reason to believe‟ that the property is stolen.” Id.
at 49. It plainly was the legislature‟s intent to reach beyond actual knowledge.
The challenge for us is to give effect to this legislative purpose without permitting
a jury to convict a defendant for mere negligence. See DiGiovanni v. United
States, 580 A.2d 123, 126 (D.C. 1990) (Steadman, J., concurring) (invoking “the
principle that neither simple negligence nor naiveté ordinarily forms the basis of
felony liability”).
The “reason to believe” language, or something close to it, has been a part of
our RSP statute for a long time. See D.C. Code § 22-2205 (1953 Supp.) (it is a
crime to “receive or buy anything of value which shall have been stolen[,] . . .
knowing or having cause to believe the same to be so stolen”) (emphasis added).
Thus, it is surprising that this court has done little to explain what the phrase
“having reason to believe” means. Given the frequency with which this offense is
prosecuted, it is time for us to address this issue of statutory construction.
7
Many jurisdictions employ statutory language similar to ours,6 but they do
not agree on its meaning. Compare State v. Korelis, 541 P.2d 468, 469 (Or. 1975)
(“A finding of either actual knowledge or a belief by the defendant that the
property was stolen is essential to a conviction for theft by receiving.”), with Davis
v. State, 586 So. 2d 817, 819 (Miss. 1991) (“If a person has knowledge from facts
and circumstances which should convince a reasonable person that property has
been stolen, in such situation the rule is that, in a legal sense, he knew the property
was stolen.” (citations omitted)). Even where a jurisdiction‟s statute requires
“knowledge,” the definition of guilty knowledge is often expansive. See, e.g.,
Jordan v. State, 148 A.2d 292, 300 (Md. 1959) (“it is not necessary that [guilty]
knowledge be direct or actual, it being sufficient if circumstantial and inductive,
6
Ariz. Rev. Stat. Ann. § 13-1802(A)(5) (“having reason to know that the
property was stolen”); Ark. Code Ann. § 5-36-106(a)(2) (“[h]aving good reason to
believe the property was stolen”); Ky. Rev. Stat. Ann. § 514.110(1) (“having
reason to believe that it has been stolen”); Mich. Comp. Laws Ann. § 750.535(1)
(“having reason . . . to believe, that the . . . property is stolen”); Minn. Stat. Ann.
§ 609.53, subd. 1 (“having reason to know the property was stolen”); Miss. Code.
Ann. § 97-17-70(1) (“having reasonable grounds to believe it has been stolen”);
N.C. Gen. Stat. Ann. § 14-71.1 (“having reasonable grounds to believe the same to
have been feloniously stolen”); Ohio Rev. Code Ann. § 2913.51(A) (“having
reasonable cause to believe that that property has been obtained through
commission of a theft offense”); Or. Rev. Stat. Ann. § 164.095(1) (“having good
reason to know that the property was the subject of theft”); W. Va. Code Ann.
§ 61-3-18 (having “any stolen goods or other thing of value” the defendant “has
reason to believe has been stolen”).
8
and the receiver believed or reasonably suspected, from the circumstances of the
transaction, that the property was stolen”).
Our most helpful examination of this issue is found in a concurring opinion
by Judge Steadman, who concluded that the “requisite mental state [for RSP]
should be interpreted and defined as a subjective one, focusing on the defendant‟s
actual state of mind, and not simply on what a reasonable person might have
thought.” DiGiovanni, 580 A.2d at 126 (D.C. 1990) (Steadman, J., concurring).
“Of course,” he added, “the latter [„what a reasonable person might have thought‟]
bears directly on the issue whether the defendant had a like state of mind.” Id. at
126 n.2; see also Charles v. United States, 371 A.2d 404, 406 (D.C. 1977) (the
government must show “that the individual receiving the property had guilty
knowledge that it was stolen”).
We agree that the mental state for RSP is a subjective one. But the task of
discerning a defendant‟s knowledge (or “reason to believe”) usually requires a jury
to rely on reasonable inferences rather than direct proof. Charles, 371 A.2d at 410(“absent acknowledgment by the accused himself, his awareness of a particular
fact is never capable of direct proof and must be inferred from other evidence”).
For example, “a jury reasonably may infer the requisite state of mind for the
9
offense of receiving stolen property where evidence reveals defendant‟s
unexplained (or unsatisfactorily explained) possession of recently stolen property.”
Blackledge v. United States, 447 A.2d 46, 50 (D.C. 1982); see Barnes v. United
States, 412 U.S. 837, 843-46 (1973) (this inference is “deeply rooted in our law”).
It also is appropriate for the jury to consider what a reasonable person would have
believed to inform its analysis of the defendant‟s own state of mind. See Thomas
v. United States, 557 A.2d 1296, 1300 (D.C. 1989) (“a showing that a reasonable
person would have been aware of a risk is often the best available evidence that the
defendant was aware of it”).
“Guilty knowledge cannot be established by demonstrating mere negligence
or even foolishness on the part of the defendant, but it may be satisfied by proof
that the defendant deliberately closed his eyes to what otherwise would have been
obvious to him.” United States v. Gallo, 543 F.2d 361, 369 n.6 (D.C. Cir. 1976);
see Charles, 371 A.2d at 410 (“[A] distinction has been recognized between guilty
knowledge of a fact or circumstance and the culpable avoidance of such
knowledge (i.e., a failure to inquire)[.]”) (discussing whether “knowing” language
of offense of maliciously destroying stolen property requires proof of a higher
order than the “having cause to believe” language of RSP)).
10
Following these principles, we reiterate that a jury may draw reasonable
inferences about the defendant‟s knowledge from the facts and circumstances of
the case. In some RSP cases, perhaps, the government will simplify matters by
proceeding on a theory of actual knowledge. If the government does argue more
broadly that the defendant had “reason to believe” the property was stolen, we
recommend that the following instruction be given to explain the elements of the
offense:
Element No. 3 requires that the defendant either knew or
had reason to believe that the property was stolen. This
state of mind is a subjective one, focusing on the
defendant‟s actual state of mind, and not simply on what
a reasonable person might have thought. In determining
whether the government has met its burden of proving
the defendant‟s subjective state of mind, you may
consider what a reasonable person would have believed
under the facts and circumstances as you find them. But
guilty knowledge cannot be established by demonstrating
mere negligence or even foolishness on the part of the
defendant. It may, nonetheless, be satisfied by proof
beyond a reasonable doubt that the defendant deliberately
closed his eyes to what otherwise would have been
obvious to him.
IV. Plain Error Analysis
11
“When a party fails to raise a timely objection to an instruction, we will
review that claim of error under the plain error standard.” Williams v. United
States, 858 A.2d 984, 990 (D.C. 2004). “Under [that] standard, appellant must
show not only that the error was plain or obvious, but also that the error affected
substantial rights and resulted in a clear miscarriage of justice.” Id. at 992 (citing
United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he plain-error exception is
cold comfort to most defendants pursuing claims of instructional error.” Wilson v.
United States, 785 A.2d 321, 326 (D.C. 2001) (citation omitted). 7
Appellant has not met his burden of demonstrating plain error. See Lowery
v. United States, 3 A.3d 1169, 1173 (D.C. 2010) (“[A]ppellant bears the burden of
persuasion on each of the four prongs of the plain error standard.”). He primarily
faults the trial court‟s explanation that “reason to believe” is “based on what a
reasonable person would have believed under the facts and circumstances as you
7
We reject appellant‟s claim that the trial court‟s supplemental instruction
was structural error. “Only a limited class of constitutional errors qualify as
structural errors.” In re Taylor, 73 A.3d 85, 100 (D.C. 2013). Unlike Sullivan v.
Louisiana, 508 U.S. 275, 281 (1993), where a reasonable doubt instruction was
constitutionally deficient, the alleged error in this case concerns only one element
of one of the charged offenses. See Neder v. United States, 527 U.S. 1, 8 (1999)
(structural “errors „infect the entire trial process,‟ and „necessarily render a trial
fundamentally unfair‟”).
12
find them.” Appellant contends that this instruction lowered the government‟s
burden and impermissibly introduced a simple negligence standard.
We agree that this supplemental instruction was error. It improperly focused
on what a reasonable person would have believed without emphasizing the jury‟s
duty to determine appellant‟s subjective knowledge. Additionally, because it was
given in specific response to a note from the jury, the supplemental instruction
created a significant risk that the jury would apply the wrong standard when
assessing appellant‟s state of mind. See Yelverton v. United States, 904 A.2d 383,
388 (D.C. 2006) (“[A] supplemental charge given in response to a question from a
deliberating jury must be viewed in a special light.” (citation omitted)). But we
have not previously said much about the subjective knowledge requirement for
RSP, and reasonable minds therefore could debate whether the trial court‟s error
was plain or obvious. However, we will assume without further discussion that the
first two prongs of plain error have been established here.
Even if the supplemental instruction was an “obvious” error, appellant
cannot show that it affected his substantial rights or resulted in a clear miscarriage
of justice. First, there was powerful evidence supporting the inference that
appellant actually knew the Maxima was stolen. The condition of the car and the
13
unique nature of the “key” were clear indications that the car had been stolen.
Moreover, appellant was in possession of recently stolen property. Second, in
order to convict appellant of UUV, the jury had to find that “[w]hen he took, used
or operated the vehicle, [appellant] knew that he . . . did so without the consent of
the owner.” Thus, the guilty verdict for UUV reflects a finding, beyond a
reasonable doubt, that appellant had subjective knowledge that the Maxima was
stolen. Because of the overwhelming proof against him and the finding of
subjective knowledge underlying the UUV verdict, appellant has not carried his
burden of demonstrating plain error.
V. Conclusion
The judgment of the Superior Court is hereby
Affirmed.