After she
was convicted in a bench trial of “misdemeanor receiving stolen property
(RSP) [in violation of
District of Columbia Code § 22-3232] and unlawful entry [in violation of
District of Columbia Code § 22-3302]”, Jessica Lihlakha appealed. Lihlakha
v. U.S., 2014 WL 1640647 (District of Columbia Court of Appeals 2014). On appeal, she “challenge[d] the sufficiency
of the evidence to support her convictions.”
Lihlakha v. U.S., supra.
Since
Lihlakha was arguing that the evidence presented at trial was not sufficient to
prove her guilty beyond a reasonable doubt on either or both offenses, the
Court of Appeals began its analysis of his argument by outlining how the
prosecution arose:
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 minute or so that she left the bag unattended, her
laptop inside it, a Macbook Pro, disappeared. After reporting what happened to
campus police, Banks placed signs around her dorm building announcing a
`missing Mac laptop,’ providing her phone number, and stating that the `[f]inder
will be graciously compensated.’ The next evening, Banks received a phone call
from a woman who asked Banks whether she was missing an HP laptop and what the
reward would be for returning it. Banks answered that hers was not an HP but
added that the reward was $1,000. The caller then told Banks she had `just
gotten this HP for the low,’ and would `keep an ear out and see if . . .your
laptop comes up.’
The woman
called Banks the next day to say 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 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 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 [she] either
meet the caller herself or have a police officer go in [her] place. Banks
agreed to have an officer pose as Banks to meet the caller. Per police
instructions, Banks told the caller she needed another day for her parents to
wire her the reward money, and 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 . . . 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. . . . Not long thereafter, Banks heard
knocking on her dorm room door. After looking through the peephole, she
recognized Lihlakha (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.
Lihlakha v. U.S., supra.
The prosecution’s next witness
was Investigator Elizabeth Neville, the officer who
met the caller while posing as Banks. 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.
Lihlakha v. U.S., supra.
The
prosecution also presented testimony from 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 [said] a local drug dealer named `Kool–Aid’ 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.’
Lihlakha v. U.S., supra. The
prosecution’s final witness was Investigator William Brown of the Howard University Police,
who testified that he
told Lihlakha on August 18, 2011, that she was prohibited
from coming `on Howard University property.’ He added that he gave her a copy
of the barring notice at that time, that he explained it to her, and that she
refused to sign it.
Lihlakha v. U.S., supra.
The Court
of Appeals then took up Lihlakha’s sufficiency of the evidence argument as it
applied to the first charge. It noted
that, under District of Columbia Code § 22-3232(a) (as it existed at the time),
one commits receiving “[1] stolen property if that person [2] buys, receives,
possesses, or obtains control of stolen property, [3] knowing or having reason
to believe the property was stolen, [4] with the intent to deprive another of
the right to the property or a benefit of the property.” Lihlakha
v. U.S., supra.
The court
then analyzed the extent to which the prosecution’s evidence established each
of these elements. Lihlakha v. U.S., supra. It found that the first two elements were
uncontested. Moreover, Lihlakha admitted to Investigator
Tarpley . . . that her supplier, Tony, i.e., `Kool–Aid,’ `had
a stolen laptop’ which he would allow her to parlay into a $1,000 reward,
reduced by $300 for Kool–Aid (at trial she denied any such rebate). Lihlakha
has not contested receipt of this hearsay admission in evidence. Accordingly,
the evidence is sufficient to satisfy the third element of RSP: knowledge or
reason to believe that the property was stolen.
Lihlakha v. U.S., supra.
That left
the fourth element: that “at the time [Lihlakha]
acted in receiving the stolen property, she intended to deprive Banks of the
right to her computer or a related benefit.”
Lihlakha v. U.S., supra. On appeal, she “presents two arguments
claiming innocent intent premised on the irrelevance of whether she knew the laptop `was stolen or not.’” Lihlakha
v. U.S., supra.
First, she contends 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, . . . Lihlakha argues she lacked the
criminal mind essential to RSP [receiving stolen property] because her only
intent had been to seek possession for the purpose of returning the computer to
its rightful owner, even though she did so in the expectation of obtaining the
offered reward.
Alternatively, Lihlakha asserts a `consent’ defense, . . . arguing
Banks had authorized Lihlakha to seek possession of Banks's computer by
offering a reward for its return, fully contemplating that Lihlakha `would
possess property that [Banks] had reported as stolen.’
Lihlakha v. U.S., supra.
The Court
of Appeals took each argument in order:
Lihlakha’s lawyer argued that cases
[from the District of Columbia courts] recognize[ed] that `rewards
are governed by the law of [unilateral] contracts,’ meaning,
in this context, that any agreement for a reward between the owner of stolen
property and someone who has come to possess it would be non-binding until the
possessor has satisfied all the conditions for the reward announced by the
owner. Counsel maintains
that such a contract was satisfied here, free of criminal taint, upon
Lihlakha's attempted delivery of Banks's laptop.
And that contract was valid, says counsel, because `possession
of [stolen] property with the consistent intent of obtaining it to return it to
the owner for a freely advertised reward’ will negate `the mental intent
element of the crime of receiving stolen property.’
Lihlakha v. U.S., supra.
The court
noted, therefore, that Lihlakha stressed 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 `unless’ clause is where interpretation begins.
Most courts stress that to avoid conviction of RSP, one must return the property
to its rightful owner `immediately,’ or in
lieu of the owner to `law enforcement officials,’ and in any event must do so `unconditionally.’
Lihlakha v. U.S., supra (citations omitted).
As
Wikipedia explains, the Model Penal Code was meant to standardize the definitions
of crimes used in the U.S. states.
Section 223.6 of the Code, which you can find here, defines the offense
of receiving stolen property and § 223.6(1) creates an exception: “unless the property is received, retained,
or disposed with purpose to restore it to the owner.”
Some courts have held that this language
incorporates the common law “intent-to-return” defense to a charge of receiving
stolen property. See, e.g., State v. Lopez,
109 N.M. 578, 787 P.2d 1261 (New Mexico Supreme Court 1990). As the Lopez court
noted the common law defense “could apply to one who returned stolen property
to the owner for a reward.” State v. Lopez, supra.
The Court
of Appeals found this line of reasoning persuasive, and held that a defendant
may establish a return-for-reward defense that negates the
requisite intent for receiving stolen property if the evidence shows that:
(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.
Lihlakha v. U.S., supra.
The
problem was that, since the trial judge did not recognize the return-for-reward
defense, he did not hear evidence, from both sides, on whether the defense
would have applied in this case. Lihlakha v. U.S., supra. The Court of Appeals therefore remanded the
case to the judge so he could make the necessary findings and then determine
whether Lihlakha could, in fact, claim the defense. Lihlakha
v. U.S., supra.
The court
rather quickly rejected Lihlakha’s challenge to her unlawful entry conviction:
The trial judge discredited Investigator Brown's testimony
that the barring notice extended to Howard's entire campus, but Lihlakha 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). . . .
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.
Lihlakha v. U.S., supra.
The Court
of Appeals therefore affirmed her unlawful entry conviction and, as noted
above, remanded the case for fact-finding and a ruling on the availability of
the return-for-reward defense. Lihlakha v. U.S., supra.
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