Jessica A. Lihlakha v. United States
Jessica A. Lihlakha v. United States
Opinion of the Court
Following a bench trial, appellant Jessica Lihlakha was convicted of misdemeanor receiving stolen property (RSP)
I.
Lauren Banks testified that on August 13, 2011, she returned to her dorm room at Howard University and, upon entering, left her book bag in the hallway. During
The woman called Banks the next day to say that she had found two Macbook Pros with the name “Lauren” on them after going to see “the guy she said she got the HP from.” She told Banks that she had found two Mac laptops “at the same place” in “the room where the other computers were.” The woman asked Banks for her full name to determine which of the Mac laptops belonged to her. Banks complied and learned that the caller apparently had her laptop. The caller then contacted Banks again to set up a meeting to exchange the money for the laptop that evening. At that point, Banks contacted the Howard University police, who suggested that Banks either meet the caller herself or have a police officer go in Banks’s place. Banks agreed to have an officer pose as Banks to meet the caller. Per police instructions, Banks told the caller that she needed another day for her parents to wire her the reward money, and she continued to communicate with the caller until they arranged a time and place to meet. At the meeting on August 17, 2011, a police officer posing as Banks met the caller, and the officer thereupon recovered the laptop and brought Lihlakha to the police department for questioning. The police showed Banks a photo of the person who, an officer said, had delivered Banks’s computer. (From the photo, Banks eventually identified that person in court as Lihlakha.) Not long thereafter, Banks heard knocking on her dorm room door. After looking through the peephole, she recognized Lih-lakha (from the photo) as the person standing outside her door with a man who was trying to put a key into it that did not fit. The two then left, and Banks reported the incident to campus police.
The next witness for the government was Investigator Elizabeth Neville, the police officer who met the caller while posing as Banks. Officer Neville testified that Lihlakha had approached her at the place where Banks and the caller had arranged to meet. Neville asked Lihlakha if she had the laptop and told Lihlakha to sit down next to her. Neville testified that she saw a laptop inside Lihlakha’s bag and asked about it, whereupon Lihlakha pulled the laptop out of her bag, opened it, turned it on, and passed it to Neville. Immediately thereafter, other police officers arrived and took Lihlakha away.
The government also presented the testimony of Investigator Ronald Tarpley of the Howard University Police, who testified that he had questioned Lihlakha about how she obtained Banks’s laptop. According to Tarpley, Lihlakha replied that a local drug dealer named “Kool-Aid” had told her “he had a stolen laptop” for which a reward had been offered, and that if “she returned [the laptop] she [could] keep 700 and give him 300 of the $1,000 reward.”
Finally for the government, Investigator William Brown of the Howard University Police testified that he had told Lihlakha on August 18, 2011, that she was prohibited from coming “on Howard University property.” He added that he gave her a
For the defense, Lihlakha testified that a man named Tony, whom she knew as “Kool-Aid,” had shown her a “sign” indicating that a reward was offered for the return of a missing computer. Lihlakha called the phone number on the sign, and the woman who answered told her that she had “left [the computer] out” but did not indicate that it had been stolen. Lihlakha eventually obtained a computer from Tony that she believed belonged to the person with whom she had spoken over the phone. Lihlakha testified that she had wanted to return the computer to the rightful owner the same day, even if the owner did not yet have the reward money, but that the owner had asked Lihlakha to wait until the owner obtained the money from her parents. After arranging a time to meet with the owner, Lihlakha attempted to return the computer but instead met an undercover police officer who was posing as the owner, and “[t]hat’s when the police came out.” Lihlakha acknowledged that after her arrest, a dean ordered her not to go inside the East or West Towers at Howard University, where Banks resided. Lihla-kha further testified that she had never visited Banks’s dorm room inside the West Tower.
On cross-examination, Lihlakha testified that she had asked Tony, whom she was “dating loosely,” for “some money.” He had given her a “flyer” offering a reward for the return of a missing laptop. He then told her that a “computer he received was what he thought was on the flyer” and asked Lihlakha to call the number on the flyer and “find out about it.” Lihlakha further testified that Tony did not tell her the laptop was stolen; he said that he had received it from a Howard University student in “exchange for something.” Lihla-kha added that she had asked no questions and had no further information. She also testified that Tony did not ask her to give him any portion of the reward money, that she did not call the police once she obtained the computer, and that she did not tell Tony to call the police.
The trial court discredited Lihlakha’s testimony, finding that it was inconsistent and appeared to be “fashioned on the fly.” The judge then credited the testimony of Banks and Investigator Tarpley, finding Lihlakha guilty of RSP beyond a reasonable doubt. The judge discredited the portion of Investigator Brown’s testimony that Lihlakha had been barred from coming onto any of Howard University’s property. Howevér, the judge found Lihlakha guilty of unlawful entry nonetheless based on “the terms of the barring notice” given to Lihlakha and, inferentially, on Lihla-kha’s own testimony that a dean at Howard had made it clear to her “not to go to the [dormitory] towers at all.”
II.
At the time of trial, D.C.Code § 22-3232(a) (2001) provided:
A person commits the offense of receiving [1] stolen property if that person [2] buys, receives, possesses, or obtains control of stolen property, [3] knowing or having reason to believe that the property was stolen, [4] with the intent to deprive another of the right to the property or a benefit of the property.4
We are therefore left to determine whether the evidence is sufficient for a fourth-element finding that, at the time appellant acted in receiving the stolen property, she intended to deprive Banks of the right to her computer or a related benefit. Lihlakha does not renew on appeal the principal defense she presented at trial: the third-element defense that she did not know the laptop had been stolen. Rather, she now presents two arguments claiming innocent intent premised on the irrelevance of whether she knew that the laptop “was stolen or not.”
First, she contends that she and Banks had voluntarily entered into a valid unilateral “contract” pursuant to which Lihlakha would receive an advertised reward in exchange for returning Banks’s computer. In this connection, citing case law
III.
A.
Initially, we must resolve whether counsel at trial adequately preserved the arguments that Lihlakha now presents
Of these two defenses, it is clear that Lihlakha did not claim “consent” at trial. Our review of consent, therefore, is limited to plain error,
Without elaboration, counsel did suggest the return-for-reward defense at trial. In closing argument, while contending primarily that Lihlakha did not have reason to believe the computer was stolen, counsel also relied on what the government has called “the law of reward” to nullify Lihlakha’s “intent to deprive” Banks of her property or its benefit. Said counsel:
I think that it is a situation where a young lady was trying to do what she thought was the right thing to try and return this computer[,] and also there was a motive out of it where she could try and get a few dollars as a result of her efforts.
Trial counsel therefore articulated, albeit quite generally, the legal theory on which the RSP conviction here will ultimately turn — as formalized by counsel in Lihla-kha’s brief on appeal.
B.
Appellate counsel relies on cases from this jurisdiction recognizing that “rewards are governed by the law of [unilateral] contracts,”
Lihlakha stresses, therefore, that she did not intend to deprive Banks of her laptop, even though she knew it was stolen, because she merely obtained the laptop “with the intent to return it in exchange for the reward.” This court has never considered the relevance, if any, of returning stolen property for a reward when defending a charge of RSP. Other courts have done so, however, beginning with a premise derived from the common law, as codified in the Model Penal Code: “[T]he offense is established by knowing possession of stolen property ‘unless the property is received, retained, or disposed with purpose to restore it to the owner.’ ”
The courts appear uniformly to uphold RSP convictions if the possessor of property known to be stolen expressly conditions return of the property on receipt of compensation.
C.
After hearing the parties’ opening statements, the trial judge observed:
[S]he learns from fliers that a computer has been stolen. She has it in her possession. She seeks to get money for it. She’s on notice that it’s stolen and doesn’t turn it over to the police or anybody else until she arranges a meeting to profit by it. If that’s the way the evidence comes out, it seems to me unless I am missing something that that would inexorably establish her guilt beyond a reasonable doubt.
Thus, the judge seemed to believe that the proffered behavior of responding to a previously offered reward was enough in itself to establish the “intent to deprive.” At that point, therefore, the judge did not appear to recognize the possibility that expectation of a reward for return of stolen property could be consistent with innocent intent. Nor did the judge do so later when defense counsel argued rather opaquely the return-for-reward defense in his closing statement.
On appeal, however, the government does recognize a return-for-reward defense, although in a curious, very limited way. The government acknowledges that if the evidence shows that the possessor of property, known to be stolen, intended to return it to the owner even without the reward, then the possessor’s expectation of a reward, as advertised, could not be understood as an unlawful condition on the return.
We believe the government is right to acknowledge that mere expectation of a reward upon swiftly returning known stolen property to the owner or designee does not automatically establish the intent required by our statute for conviction of RSP. However, the government’s understanding of the return-for-reward defense is based on a speculative scenario not only absent on the demonstrable facts of record but also unworkable on the hypothetical facts the government posits. The government presupposes proof of an intent that cannot in all likelihood be established, that is, what the possessor of stolen property would have done if the owner had revoked the reward — but did not. As to this case, more specifically, the government argues that Lihlakha brought known stolen property to the owner, Banks, who had announced a reward, but that there can be no reasonable doubt that if Banks had refused to pay the reward — a situation that never occurred (because the police intercepted the tender) — Lihlakha would have withheld the computer. On this record, there is no way to know what Lihlakha’s behavior would have been in that situation — a hypothetical revocation of an announced reward that allegedly would have transmuted Lihlakha’s coming forward with the laptop into a postulated demand for payment upon returning it.
The legal issue, therefore, is not what Lihlakha would have done had the facts unfolded differently but, rather, whether the District’s RSP law recognizes that a motive to obtain an announced reward is compatible with an intent to return known stolen property to its owner without imposing a forbidden condition that “deprive[s]” the owner of “the right to the property or [its] benefit.”
We perceive such compatibility in § 223.6(1) of the Model Penal Code, as elaborated by the Second Circuit’s decision in Godwin v. United States
(1) the reward had been announced, or was believed to have been announced, before the property was possessed or agreed to be possessed; (2) the person claiming the reward had nothing to do with the theft; (3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and (4) the possessor imposed no condition on return of the property.25
On this view of the law,
On the one hand, we cannot say that Lihlakha’s testimony necessarily suggests that she, herself, imposed a condition on return of the laptop beyond mere expectation of the reward ■ that Banks had announced.
On the other hand, from the testimony of Banks, Investigator Tarpley, and Lihlakha herself there is evidence sufficient for a finding that, by assisting Tony, Lihlakha had a culpable “intent to deprive” the rightful owner of her laptop because she had something “to do with the theft.” Specifically, based on the evidence of how Lihlakha came across Banks’s laptop and her plan to split the reward with Tony, it would be reasonable for a fact-finder to infer that Lihlakha was aware that she was enabling either the thief or a fence to profit illegally from the theft, and thereby deprive Banks of the right to her property.
We note, however, that even though the evidence may be sufficient to sustain a conviction, it does not compel it. As an appellate court, we do not make findings of fact and therefore may not rule on our own reading of the evidence unaided by the trial court’s findings as to the return-for-reward defense.
IV.
The evidence is sufficient to support Lihlakha’s unlawful entry conviction. The trial judge discredited Investigator Brown’s testimony that the barring notice extended to Howard’s entire campus, but Lihlakha herself did not dispute Brown’s testimony that he had given her a copy of the barring notice, which excluded her from the dormitory towers (where Banks lived) and which the court found “speaks for itself.” Moreover, Lihlakha testified that a Howard dean had warned her “not to go to” the dormitory towers. Finally, the trial judge credited Banks’s testimony in which she stated that she saw Lihlakha standing outside of her dorm room, in violation of the barring notice.
[[Image here]]
For the foregoing reasons, we affirm Lihlakha’s conviction for unlawful entry but remand the record for factual findings
So ordered.
. D.C.Code § 22-3232(a) & (c)(2) (2001 & Supp. 2011). The RSP statute has since been amended, see infra note 4.
. D.C.Code § 22-3302 (2001 & Supp. 2009).
.Counsel for both parties spell appellant’s last name in the briefs as "Lihlakha.” During her testimony at trial, however, appellant spelled her name "Lihalakha,” according to the stenographer. Absent any motion to correct the spelling, we have relied on the appellate briefs.
. See also In re R.K.S., 905 A.2d 201, 219 (D.C. 2006); Moore v. United States, 757 A.2d 78, 82 (D.C. 2000). Both R.K.S. and Moore recognize another element — "the property had a value of $250 or more” — which has been supplanted by amendment to the statute changing the language for a misdemeanor to: "the stolen property has some value.” D.C.Code § 22 — 3232(c)(2).
. It is not clear whether Lihlakha’s admission to Investigator Tarpley that Tony "had a stolen laptop” was referring to the HP laptop or to Banks’s laptop, which she told Banks she had obtained from a "guy” (whom Lihlakha later identified during her testimony as Tony) at the "same place” where she obtained the HP in a "room where the other computers were.” Either way, the computers all came from the same source, and Lihlakha does not contest on appeal that she knew the computer at issue was stolen.
. Godwin v. United States, 687 F.2d 585 (2d Cir. 1982).
. Model Penal Code § 223.6(1).
. See Newby v. United States, 797 A.2d 1233, 1238 & n. 2 (D.C. 2002).
. See Arthur v. United States, 986 A.2d 398, 404 (D.C. 2009) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
. Glover v. District of Columbia, 77 A.2d 788, 790 (D.C. 1951); see Glover v. Jewish War Veterans of United States, 68 A.2d 233, 234 (D.C. 1949).
. See Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 1:17 (4th ed. 2007).
. Godwin v. United States, 687 F.2d 585, 588 (2d Cir. 1982) (quoting Model Penal Code § 223.6(1)); see State v. Barker, 176 W.Va. 553, 346 S.E.2d 344, 349 (1986) (mere receipt of stolen goods knowing them to have been stolen is not itself a crime, "as where the property is received with the intent of restoring it to the owner without reward”).
. United States v. Calkins, 906 F.2d 1240, 1247 (8th Cir. 1990); State v. Simonson, 298 Minn. 235, 214 N.W.2d 679, 681 (1974); State v. Lusher, 708 S.W.2d 188, 189-90 (Mo.Ct.App. 1986).
. Calkins, 906 F.2d at 1247.
. Id.; Simonson, 214 N.W.2d at 681; see Balter v. State, 58 Ark. 513, 25 S.W. 603, 605 (1894).
. See, e.g., United States v. Mardirosian, 602 F.3d 1, 7-8 (1st Cir. 2010) ("We tread no new ground in declaring that the act of demanding a fee for the return of stolen property is unlawful.”); Calkins, 906 F.2d at 1247 (affirming jury instructions stating that "[a] person who knowingly possesses stolen goods has no right to demand compensation or a reward from the owner as a condition to returning the goods, and he may not withhold or conceal the goods until a reward is made available”); People v. Wielograf, 101 Cal.App.3d 488, 161 Cal.Rptr. 680, 684-85 (1980) (evidence sufficient for conviction of RSP when defendant permitted storage of stolen vehicle in his garage for several days and suggested to thieves that vehicle be turned in for reward); People v. O'Reilly, 153 A.D. 854, 138 N.Y.S. 776, 783 (1912) (defendant guilty of RSP after he held onto stolen property and returned it only when reward had been paid); People v. Dadon, 167 Misc.2d 628, 640 N.Y.S.2d 425, 427 (N.Y.Crim.Ct. 1996) (motion to dismiss information denied where "accusatory instrument here alleges that defendants sought a reward as a condition of returning the property”).
.See Calkins, 906 F.2d at 1247 ("There is a distinction between hoping for or expecting a reward upon restoration of stolen property ... and unlawfully withholding or failing to restore stolen property until a reward is paid or made available.”); Lusher, 708 S.W.2d at 189-90 (evidence insufficient for RSP when owner of stolen fence posts asked defendant to find them and, when defendant did so, gave defendant money to buy them from individual who had purchased them from thief, and defendant returned them forthwith to owner); State v. Lopez, 109 N.M. 578, 787 P.2d 1261, 1264 (N.M.Ct.App. 1990) (public policy encouraging private investigators to ferret out and return stolen goods supports availability of "intent-to-return defense”; thus, prospect
. Godwin v. United States, 687 F.2d 585, 588 (2d Cir. 1982); cf. Mardirosian, 602 F.3d at 4; Baker, 25 S.W. at 605; Dadon, 640 N.Y.S.2d at 427.
. Godwin, 687 F.2d at 588; see Calkins; 906 F.2d at 1247; Lopez, 787 P.2d at 1264 (RSP conviction supported by evidence that defendant was present at time of theft and worked in concert with alleged thief to return property for reward).
. Calkins, 906 F.2d at 1247; see Simonson, 214 N.W.2d at 681-82 (withholding or concealing stolen property with intent to return it only upon payment of reward constitutes intent to deprive, because "[o]nce defendant learned that property was stolen, he became obligated to immediately and unconditionally return the property to the owner or at least make it available for him to pick up").
. At oral argument, government counsel acknowledged:
You can return stolen property to the rightful owner in the hope of getting a reward and perhaps an expectation that you may get a reward.... [But] [y]ou always have to have the intent to return the property even if you hope or expect to get a reward.... If she always has the intent to return the stolen property, there wouldn’t be the requisite mens rea.
. Government counsel also argued:
There is evidence in the record that appellant would only return the property if she was promised and paid the reward.... [T]here is evidence in the record from which a reasonable finder of fact would infer that she would not return the computer until she received the reward.... [S]he would only return [the laptop] for the reward that was offered.... She doesn't [say that] I was always going to give you back your computer.
. 687 F.2d 585 (2d Cir. 1982).
. See supra notes 16-20.
. See supra notes 16-20.
. Traditionally, RSP has been a specific intent crime. See, e.g., DiGiovanni v. United States, 580 A.2d 123, 126 (D.C. 1990) (noting that "[t]o properly instruct the jury on the intent required for conviction of receiving stolen property,” a trial judge must include an instruction on specific intent). However, as noted earlier, see supra note 4, a recent amendment to the RSP statute (inapplicable
. This concern is intensified by the fact that the trial judge wondered why the government had not charged Lihlakha with theft, not mere RSP. The judge remarked after opening statements: "I don’t know why they haven’t charged theft since if she knew she had somebody else's property, she had a duty to turn it in under the law of the District of Columbia not to seek to profit ... from it, and I think that would make out the elements of theft, but that isn't the charged offense.”
. Lihlakha testified that she had come into possession of the computer because “someone told me that there was a way I could make money in returning [it]," and that "[t]he only reason I got involved ... was for the reward.” She further testified: ”[I]t's [Banks’s] property. I didn't want it. I'd rather give it to [her] so that I can go on my way. We can work out [her] paying me later. That was my standpoint, like it’s not that urgent that I need the money right now.” On cross-examination, Lihlakha testified that: "[Banks] was telling me if I don’t pay you today how do you know that I’ll pay you. I told her that the money wasn't why I was helping her. I'm helping you because we’re students, like I understand your plight.... [T]he reward was an incentive but it was not the only reason why I was helping her.... In my mind if I can help anyone, that's how Howard is, that’s the culture that we’re brought up in that [at] Howard you stick together.”
.There is evidence that Tony, a local drug dealer whom Lihlakha had been dating, showed her a “sign” or "flyer” indicating a reward for a missing laptop; that Lihlakha obtained an HP laptop "for the low” from a "guy” she later identified as Tony; that when Banks said that the reward would be $1,000 but that the HP was not hers, Lihlakha told Banks she would "keep an ear out to see if your ... laptop comes up”; that Lihlakha then went to see the "guy” (Tony) at “the same place where she had gotten the HP” and found in "the room where the other computers were” two Mac laptops, one of which belonged to Banks; and that Tony had told Lihlakha “he had a stolen laptop” for which they could split the reward, $300 for Tony, $700 for Lihlakha.
. "In a bench trial, the judge, as fact finder, has the right to make credibility determinations, weigh the evidence, and draw reasonable inferences of fact.” Joiner-Die v. United States, 899 A.2d 762, 764 (D.C. 2006). However, this court — as in this case — reviews questions of law de novo. See United States v. Felder, 548 A.2d 57, 61 (D.C. 1988).
. In addition, this court has observed: "A defendant's unexplained (or unsatisfactorily explained) possession of recently stolen property may support a conviction of larceny ... or receiving stolen property.” Byrd v. United States, 598 A.2d 386, 393 (D.C. 1991) (en banc) (citation omitted) (citing Blackledge v. United States, 447 A.2d 46, 50 (D.C. 1982)). This announced “presumption,” id., (or, more accurately, permissible inference), however, does not compel a conviction, which rests, as always, with the fact-finder.
. See D.C.Code § 17-306 (2012 Repl.) ("The District of Columbia Court of Appeals may ... remand the cause and ... require such further proceedings to be had, as is just in the circumstances.”); see also McFerguson v. United States, 770 A.2d 66, 76-77 (D.C. 2001) (remanding record for factual findings relevant to application of inevitable discovery doctrine and retaining jurisdiction over appeal); Foster v. United States, 699 A.2d 1113, 1115-16 & 1116 n. 5 (D.C. 1997) (remanding rather than reversing outright where the evi-dentiary record was "sufficient to support a finding of guilt but insufficient on the precise grounds apparently relied upon by the trial court” following a bench trial). Although in a record remand the trial court, lacking jurisdiction, "does not ... have the authority to amend the ruling that is on appeal,” Bell v. United States, 676 A.2d 37, 41 (D.C. 1996), it would not amend the ruling merely by making findings, as requested, on the return-for-reward defense. If the trial court were to accept the defense and transmit that finding to us, a reversal would be attributable to this court, having retained jurisdiction all along.
. See Kelly v. United States, 348 A.2d 884, 885-87 (D.C. 1975) (violation of validly issued barring notice of which defendant had notice constituted unlawful entry).
Concurring Opinion
concurring:
I join the majority opinion in recognizing a return-for-reward defense. With respect to the majority’s delineation of that defense, I write only to ensure that there is no confusion about the fourth element, i.e., that “the possessor imposed no condition on return of the property.” Majority Opinion at 488. Seeking a previously announced reward in exchange for the return of stolen property is not such an impermissible condition; rather, what an individual returning stolen property for a reward may not do is “impose a condition on return” of the stolen property beyond the promised reward. See Majority Opinion at 489.
I also agree with the majority that there is sufficient evidence from which a fact-finder could reject a return-for-reward defense in this case, although I think it is a close call. We acknowledge above that a defendant is not entitled to a return-for-reward defense if she had “something to do with the theft,” Majority Opinion at 489, a disqualification that extends beyond assistance with the act of stealing the property to assistance with the sale of stolen property for profit, otherwise known as fencing. Here, admissions Ms. Lihla-kha made to Ms. Banks and Investigator Tarpley
Lastly, I agree with the majority that our determination that the evidence is sufficient does not obviate the need for findings from the trial court regarding Ms. Lihlakha’s entitlement to a return-for-reward defense. But on the subject of remand, I do not understand why we are remanding only the record to the trial court and not the case. In so doing we retain jurisdiction, and thereby preclude the trial court from altering its verdict, see Bell v. United States, 676 A.2d 37, 41 (D.C. 1996), even as we acknowledge the possibility that, the sufficiency of the evidence notwithstanding, the trial court might reach a different conclusion about Ms. Lihlakha’s guilt when it “evaluates the evidence anew in light of’ this newly acknowledged defense. Majority Opinion at
.Unlike the majority, I do not think we can rely on Ms. Lihlakha’s trial testimony to demonstrate that the evidence was sufficient. The trial court discredited this testimony. If the trial court thought Ms. Lihlakha's testimony was entirely unreliable, I do not see how we can point to what she said at trial as affirmative evidence on which a fact-finder could rely to find her guilty.
. He sold Ms. Lihlakha the HP laptop "for the low.”
. For example, the multiple "Lauren” laptops.
Reference
- Full Case Name
- Jessica A. LIHLAKHA, Appellant, v. UNITED STATES, Appellee
- Cited By
- 16 cases
- Status
- Published