In re D.P. , 996 A.2d 1286 ( 2010 )

GLICKMAN, Associate Judge,

dissenting;

Four persons were sitting in a parked Ford Taurus that had been stolen only hours earlier. The car’s ignition was “punched.” At the approach of a police officer, all four occupants of the Taurus abruptly sprang out of the car and took flight. Was that a coincidence? I think not. I think it enabled the trier of fact in this case to infer beyond a reasonable doubt that the occupants — including D.P., who was sitting in the right rear passenger seat — did not want to be caught because they knew they were in the Taurus “without the owner’s consent.”¹ Considered in isolation, neither the punched ignition nor D.P.’s flight may have sufficed to prove his culpability, as my colleagues conclude.² But even if “none of the individual items of proof tended in themselves to show guilty knowledge,” that does not mean “the combination of all the circumstantial facts proved was an equally insufficient basis from which” such knowledge could be inferred.³ In my opinion, “[w]hen viewed collectively the facts here argue against an innocent explanation” for D.P.’s conduct.⁴

Isn’t the most natural and obvious explanation for D.P.’s attempt to flee that he knew he did not belong in the stolen and damaged car? Why else would he have fled at the first sign of the police when he was doing nothing (else) wrong?⁵ It is not true that “flight alone — not coupled with any other indicia of guilt — is all that we have” here.⁶ What we have is D.P.’s flight “coupled with” his and his equally jittery friends’ unlawful presence in a recently stolen vehicle featuring a punched ignition and damaged steering column. It will not answer to quote the admonition that “men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.” ⁷ D.P. would have had no reason to fear being apprehended as a guilty party or having to appear as a witness if he was unaware he and his friends were trespassing in someone else’s car.

I appreciate that one may hypothesize other explanations for D.P.’s conduct that would be consistent with innocence. (Hypothesize we must, inasmuch as D.P. did not take the stand and explain why he acted as he did.) D.P. could have sought to avoid the police because he feared he was about to be arrested for misconduct unrelated to his presence in the Taurus, or for other idiosyncratic reasons. Or perhaps he entered the Taurus innocently enough and realized to his chagrin that it was a “hot car” only when the police officer happened on the scene. But in order to prove D.P. guilty beyond a reasonable doubt, the government was not required to “negate every possible inference of innocence.” ⁸ “[T]he test for sufficiency of evidence is not whether a reasonable doubt was possible, but rather whether a finding of no reasonable doubt was possible.”⁹ In applying this test, our review must be “deferential, giving ‘full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ”¹⁰1 think it was reasonable for the trier of fact in this case to discount the hypothetically possible innocent explanations of D.P.’s behavior as too unsubstantiated and implausible to dispel the strong inference that D.P. knew he was in the Taurus without its owner’s consent.¹¹

I thus conclude there was sufficient evidence of D.P.’s mens rea for the court to find him guilty of unauthorized use of a vehicle (UUV). That conclusion does not carry over to the other offenses with which D.P. was charged — theft and receiving stolen property. Unlike UUV, the latter offenses require the government to prove that the defendant actually or constructively possessed the stolen property at some point.¹² “A person’s presence in a vehicle as a passenger, without more, is insufficient to prove that he possessed the vehicle,”¹³ for it must be shown that he knowingly and intentionally exercised dominion or control over it.¹⁴ The evidence in this case — including D.P.’s flight, though it bespoke his consciousness of guilt — fell short of demonstrating D.P.’s dominion or control over the stolen Taurus; nor did the trial court find that he exerted such power over the car.¹⁵

Finally, to return to the UUV charge and a claim the majority finds it unnecessary to reach, D.P. also seeks reversal because there was no proof the Taurus was moved after he entered it. It is true this court has said that “at least some asportation is an element of the crime,”¹⁶ but it is difficult to square that obiter dictum¹⁷ with the language of the UUV statute itself. The statute makes it an offense to “operate[ ] or drive[ ]” a vehicle without the owner’s consent.¹⁸ “Operation” does not necessarily entail movement.¹⁹ And it is at least arguable that the operation requirement was satisfied, given the testimony that the car radio was in use. But, as the government has never made that argument, and as the trial court evinced no reliance on it, I would be content to concede the point to D.P. and to remand for the trial court to enter an amended judgment on a finding of attempted UUV rather than the completed offense.

1 . In re C.A.P., 633 A.2d 787, 792 (D.C.1993) (citing In re T.T.B., 333 A.2d 671, 673 (D.C.1975)).

2 . Parenthetically, though, regardless of the internal configuration of the car, I think it was reasonable for the trial court to infer that the punched ignition was visible to D.P. when he was sitting in the seat diagonally behind it.

3 . United States v. Harris, 140 U.S.App.D.C. 270, 285, 435 F.2d 74, 89 (1970).

4 . Id.

5 . According to the defense witness whose testimony the trial court credited, D.P. merely was listening to the radio while waiting to be driven home.

6 . Ante at 1289.

7 . Id. (quoting Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051 (1896)).

8 . Wheeler v. United States, 494 A.2d 170, 174 (D.C.1985).

9 . Harris, 140 U.S.App.D.C. at 284, 435 F.2d at 88 (emphasis in the original). "A court must deem the proof of guilt sufficient if, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Rivas v. United States, 783 A.2d 125, 134 (D.C.2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)).

10 . Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781).

11 . My position that there was adequate proof of D.P.'s guilty knowledge is consistent with our en banc decision in Rivas. That case concerned a passenger who distanced himself from a car containing cocaine after police stopped the vehicle. We held the evidence sufficient to prove the passenger’s knowledge of the cocaine, which was in plain view on the center console of the car; the evidence was deficient only because it did not also prove the passenger's intent to exercise dominion or control over the drugs. See, e.g., Rivas, 783 A.2d at 136-37 ("Assuming that the jury could conclude that Rivas did mean to distance himself while the police were around, that might reinforce the implication that he knew there was cocaine in the car and did not want to be connected with it, but it does not show also that he had some stake in the drugs himself.”) (internal quotation marks and footnote omitted).

12 . See D.C.Code §§ 22-3211 (theft), - 3232(RSP).

13 . In re R.K.S., 905 A.2d 201, 219 (D.C.2006) (internal quotation marks omitted).

14 . See Rivas, 783 A.2d at 129.

15 . See R.K.S., 905 A.2d at 219. The trial court specifically found there was no evidence to link D.P. to the original taking of the Taurus, and there was no testimony that he tampered with the vehicle or did anything other than sit in it with his friends and listen to the radio while waiting for a ride home.

16 . Allen v. United States, 377 A.2d 65, 67 (D.C.1977); but see Arnold v. United States, 467 A.2d 136, 139 (D.C.1983), rev'd on other grounds by Byrd v. United States, 598 A.2d 386 (D.C.1991) (en banc) (stating, without citation, that proof of asportation is not necessary for UUV).

17 . An obiter dictum is a comment in a judicial opinion that is unnecessary to the decision and therefore not precedential (though it may be persuasive). See Albertie v. Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C.1994). Although the Allen court expressed its agreement with the appellant's claim that as-portation is an element of UUV, that was not the issue, and the case did not rest on that proposition. The holding of the case, that an indictment charging UUV does not have to allege whence or whither the vehicle was taken, would have been the same whether or not the car had to be moved at all.

18 . D.C.Code § 22-3215(b) (2001) (emphasis added).

19 . The UUV statute appears to equate "operation” with "use” of a vehicle. D.C.Code § 22-3215(b). "Use” likewise does not necessarily entail movement.