                                District of Columbia
                                 Court of Appeals
No. 15-CM-158

JAYVON WILLIAMS,                                                                March 23, 2017
                                           Appellant,

       v.                                                CMD-17678-14

UNITED STATES,
                                           Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

BEFORE: GLICKMAN and BECKWITH, Associate Judges, and BELSON, Senior Judge.


                                     JUDGMENT

               This case came to be heard on the transcripts of record, the briefs filed, and
was argued by counsel. On consideration whereof, and for the reasons set forth in the
opinion filed this date, it is now hereby

            ORDERED and ADJUDGED that appellant’s conviction is reversed and
remanded with directions to enter a judgment of acquittal.

                                               For the Court:




Dated: March 23, 2017

Opinion by Senior Judge James A. Belson.
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

                                    No. 15-CM-158

                             JAYVON WILLIAMS, APPELLANT,
                                           V.

                               UNITED STATES, APPELLEE.
                             Appeal from the Superior Court
                               of the District of Columbia
                                    (CMD-17678-14)

                      (Hon. Ann O’Regan Keary, Trial Judge)


(Argued October 20, 2016                                   Decided March 23, 2017)

      Anna B. Scanlon for appellant.

       Vivian E. Kim, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman, Assistant United States
Attorney, were on the brief, for appellee.

      Before GLICKMAN and BECKWITH, Associate Judges, and BELSON, Senior
Judge.

      BELSON, Senior Judge: Appellant was charged by information with one

count of receiving stolen property, 1 one count of unlawful possession of



__________________________
      1
          D.C. Code §§ 22-3232 (a), -3232 (c)(2) (2001).
                                         2

ammunition,2 and one count of failure to obey a lawful order. 3 After a three day

bench trial, the court granted appellant’s motion for judgment of acquittal as to the

unlawful possession of ammunition, found appellant not guilty of failure to obey a

lawful order, and found him guilty of misdemeanor receiving stolen property —

four identification cards. Appellant filed a timely appeal in which he challenged

the sufficiency of the evidence. For the reasons stated below, we reverse the

conviction.


                                         I.



      At 10:30 P.M., a group of men approached Officer Steven Good for

assistance at 1133 North Capitol Street, Northeast, and asked to borrow his phone.

The men provided Officer Good with their names. At 4:00 A.M. the next day,

Officer Good observed a different group of men standing on the west side of First

Place, Northwest.      Officer Good made eye contact with appellant, who

subsequently nudged a backpack in a way that Officer Good characterized as an

attempt to push it out of the officer’s sight. Officer Good approached the group of

men and inquired if they had a moment to talk. In response to the officer’s


__________________________
      2
          D.C. Code § 7-2506.01 (3) (2001).
      3
          D.C. Municipal Regulation §§ 18-2000.2, -2002.10 (1995).
                                         3

question, the group took off running.        Appellant and another man ran south.

Good’s partner, Officer Ryan Jensrud, found appellant lying down alongside an

air-conditioning unit and clutching a backpack.         The officers searched the

backpack and found a single bullet, a wallet, jewelry items including watches, and

four identification cards. The men pictured on the identification cards matched the

faces and names of the men who had approached the officer to use his phone the

previous evening. Later, appellant said to the officer, referring to the other man

who was with him, “He had nothing to do with it. You can let him go. I did it all

on my own.” 4




      At trial, Officer Good did not describe the identification cards in detail or

state what kind of identification cards he recovered from the backpack. He did not

indicate whether the cards were government-issued identification cards, nor did he

state whether the cards were expired or currently valid. The only detail provided

was that the cards bore names and photographs. The identification cards were not

introduced into evidence.




__________________________
      4
         Trial counsel did not raise any objection pursuant to Miranda with regard
to the admission of this statement.
                                          4

      Officer Good began to testify that the four men who approached asking for

his phone said that they had been robbed. The defense immediately interposed an

objection, which the court sustained. The trial judge ruled that his statement

regarding robbery was hearsay, but that she would allow the officer to testify “that

he had an interaction with individuals earlier in the evening.”




      The court ruled that the government had established beyond a reasonable

doubt that appellant was guilty of receiving stolen property — the four

identification cards. The court reasoned, “The fact [] that defendant having in his

possession multiple I.D.’s of other persons who turn out to be the same individuals

who had approached the police officer for assistance earlier in the evening is strong

circumstantial evidence supporting a finding that these I.D.’s had been stolen.”

The court also observed, “I remain unconvinced that the Government is unable to

prove a case of [receiving stolen property] without producing the person who’s the

actual victim of the robbery.” Concluding that “all elements of the offense of
                                            5

receiving stolen property have been proved beyond a reasonable doubt[,]” the court

found appellant guilty of that offense. 5


__________________________
      5
          The trial judge set out the reasoning that led to the conclusion that the
identification cards were stolen and that appellant was aware that they were stolen
property:

             Focusing though on the several actions of the defendant
             which the Court believes establish in their totality
             circumstantial evidence to allow a finding beyond a
             reasonable doubt of receiving stolen property, I am
             focusing on specifically the very first encounter, the very
             first observation of Officer Good[] of the defendant who
             upon seeing Officer Good[] taking note of him, they had
             made eye contact as Officer Good[] is proceeding down
             the street in the police vehicle driven by Officer
             Jendru[d], Officer Good[] testified credibly about the
             defendant’s attempt to move the backpack which was on
             the ground near him out of view by nudging it with his
             foot.

             Secondly, we have the defendant’s action in eloping from
             the area, fleeing from contact when Officer Good[] asks
             if he can speak to him.

             Third, we have Officer Good[]’s following after the
             defendant and the other gentleman in an attempt to
             contact them and giving commands to them with regard
             to stopping or getting out of the street and the
             defendant’s action in continuing to flee from the area
             down 1st Place across L Street and into another area
             despite the police officers chasing him, and his apparent
             ignoring the police officers’ orders. We have this
             evidence which obviously reflects some consciousness of
                                                                 (continued . . .)
                                           6


__________________________
(. . . continued)
               guilt, and there is myriad case law indicating that
               unprovoked flight can be viewed as evidence of
               consciousness of guilt. We have evidence of the
               defendant still holding onto the backpack both when he
               leaves the area initially and when he is found at the end
               lying on the ground still holding onto the backpack.

             And, of course, we have the testimony of the officers to
             what’s found in the backpack and the matching of the
             I.D. faces to the persons who had approached him earlier.
             Finally, we have the defendant’s own statement, which
             the Government asserts and I feel that is a fair assertion
             reflects consciousness of guilt, taking apparent
             responsibility at the stationhouse when Mr. Gresham
             appears about to be charged after the backpack items
             have been discovered and saying to the police officer,
             there’s no need to hold him, it was all me, I did this on
             my own.

             This certainly reflects the defendant’s recognition that the
             items in the backpack were not his own, that the police
             are about to charge [the other man] with some criminal
             act related to the backpack. And in terms of the totality
             of the circumstances, the flight, the initial observation of
             him attempting to move the backpack out of view, the
             exact nature of the contents of the backpack, that they
             were items that were clearly not belonging to the
             defendant since the personal I.D. cards identified as
             belonging to three other individuals, two gentlemen
             named Price and one named Thomas, and the fact of the
             coincidence just hours earlier of the police officer having
             been approached by the individuals whose faces are
             shown on the identification, when coupled with the
                                                                     (continued . . .)
                                         7

                                         II.




      A person may be found guilty of the offense of receiving stolen property if

that person (1) “buys, receives, possesses or obtains control” of (2) “stolen

property” (3) “knowing or having reason to believe that the property was stolen[,]”

and (4) the property has “some value.” D.C. Code §§ 22-3232 (a), -3232 (c)(2).




      Appellant appeals his conviction arguing that the trial court erred (1) in

concluding that the identification cards had “value,” and (2) in finding that the

cards were stolen. As to both issues, appellant argues that the evidence was

insufficient.   As we conclude that the government did not adduce sufficient

evidence to establish that the cards were stolen, we will not address the issue of

their value.




__________________________
(. . . continued)
               defendant’s own statement provide a corroborating
               inference that the items in the backpack were stolen, and
               that the defendant would’ve had reason to believe that
               they were stolen.
                                         8

      “To sustain a conviction the evidence need be such that reasonable persons

could find guilt beyond a reasonable doubt. It is not a requirement that the

evidence compel, but only that it is capable of or sufficient to persuade the [fact-

finder] to reach a verdict of guilt by the requisite standard.” United States v.

Harris, 435 F.2d 74, 88 n.41 (D.C. Cir. 1970) (internal quotation and citation

omitted). However, “a finder of fact is not permitted to cross the bounds of

permissible inference and enter into the forbidden territory of conjecture and

speculation” in reaching a verdict. Roy v. United States, 652 A.2d 1098, 1103

(D.C. 1995) (internal quotation and citation omitted). Thus, the “evidence must

support an inference, rather than mere speculation, as to each element of the

offense.”   Nowlin v. United States, 782 A.2d 288, 291 (D.C. 2001) (internal

quotation and citation omitted).




      As pointed out above, two of the elements of the offense of receiving stolen

property are that the property in question be stolen, and that the defendant

committed the act in question “knowing or having reason to believe that the

property was stolen.”    See D.C. Code § 22-3232.       Appellant argues that the

government failed to adduce evidence sufficient to prove those elements beyond a

reasonable doubt. We find appellant’s argument persuasive.
                                         9

      A preliminary issue raised by appellant is whether the trial judge improperly

considered hearsay in reaching her conclusion. Appellant argues that the judge

improperly considered testimony regarding the “robbery” that she had excluded,

pointing out that she said, “I remain unconvinced that the Government is unable to

prove a case of [receiving stolen property] without producing the person who’s the

actual victim of the robbery.” While this language, taken out of context, may raise

the question whether the judge was considering the officer’s inadmissible hearsay

testimony about the “robbery,” it is apparent from the record that the judge was not

considering the inadmissible statement itself. Rather, for the reasons the judge

explained at length, she inferred that there was a “robbery” from the evidence at

hand but did not actually “consider” the inadmissible hearsay statement itself:

“The fact of the defendant having in his possession multiple I.D.’s of other persons

who turn out to be the same individuals who had approached the police officer for

assistance earlier in the evening is strong circumstantial evidence supporting a

finding that these I.D.’s had been stolen.” We do not agree that the judge’s

inference was based on inadmissible hearsay, and thus, we will review her

inference and trial finding under a sufficiency of the evidence standard — whether

a reasonable fact-finder could find, beyond a reasonable doubt, that appellant knew

or had reason to believe that the cards were stolen based on the subsidiary findings

of fact the judge has made.
                                         10

      The evidence before the trial judge on this question was: (1) four men

approached Officer Good asking to use his phone and provided him with their

names, (2) the names and faces of the individuals who approached the officer

matched those on the identification cards eventually found in appellant’s backpack,

(3) subsequently, appellant, after making eye contact with the officer, started to

nudge a backpack, (4) appellant ran when he was approached by the officer, (5)

appellant was found lying next to an air-conditioning unit and clutching the

backpack, (6) identification cards, jewelry, watches, a wallet, and a bullet were

found in the backpack, and (7) after his arrival at the police station, appellant made

the statement regarding the other man who had run from the officer, “He had

nothing to do with it. You can let him go. I did it all on my own.”




      Based on those facts alone, we must consider whether “reasonable persons

could find guilt beyond a reasonable doubt.”         Harris, 435 F.2d at 88 n.41.

Appellant relies heavily on Robinson v. United States, 270 A.2d 144 (D.C. 1970).

Although Robinson was a petit larceny case rather than a receiving stolen property

case, it is instructive as to inferring from circumstantial evidence that a crime has

been committed. In Robinson, the defendant and another man were standing by a

counter display of cold remedy capsules in a drugstore. 270 A.2d at 145. They

were carrying a large paper bag with the store’s name on it. The manager noticed
                                         11

that the bag had packages of capsules inside it that were of the same brand as those

sold at the store and displayed on the counter where they were standing. Id. The

manager asked the men if they had a sales slip, whereupon the defendant and the

other man abruptly left the store. Id. Thereafter, the manager noticed that the

counter was “substantially depleted” of that particular brand of capsules. Id. The

manager and a police officer found the defendant and his companion at the grocery

store next door, where the defendant tried to block the officer from entering the

store while his companion disposed of the bag in a freezer in the store. Id. The

bag was found to contain two cartons of the capsule packets and nineteen other

packets of capsules, bearing the same red crayon price markings as appeared on the

packets that were sold in the store. Id. However, there was no testimony that the

counter was fully stocked before the men were in the store. Id. The capsules in the

defendant’s bag were different in size than those sold on the counter. Id. As this

court put it: “In short, the prosecution did not establish that there was an unlawful

taking.” Id. at 146.




      The government would distinguish Robinson on the basis that it was a petit

larceny case rather than a receiving stolen property case, and points out that the

government in this case does not have to prove that appellant stole the property

himself in order to find him guilty of receiving stolen property. The government,
                                           12

however, fails to distinguish, and also fails to apply, what Robinson teaches

regarding the reach of circumstantial evidence in a situation somewhat analogous

to that presented here. Appellant aptly explains the nature of that failing in the

following passage of his reply brief:


               The government also argues that Appellant’s reliance on
               Robinson is misplaced because the Robinson Court “held
               that the government did not establish an ‘unlawful
               taking[’] because it failed to prove ‘by the requisite
               standard, that the [defendants] were the perpetrators.’”
               (Government’s Brief at 14) (quoting Robinson v. United
               States, 270 A.2d 144 (D.C. 1970)). Quite the opposite,
               the Robinson Court found that the government would
               have clearly proven that the defendants were the
               perpetrators had they actually proven an offense was
               committed.


      Appellant’s reply brief then quotes the following language from our opinion

in Robinson:


               The government arguably proved a guilty mind, but did
               not establish a guilty act. This evidence highly suggests
               that they were guilty of something. But the legal
               question, on the motion for judgment of acquittal, is
               guilty of what. The answer to that question cannot be
               founded in speculation or from the charge brought by the
               prosecution. It must be found in proof that a larceny
               indeed took place. If that proof can be found, short of
               speculation, then the behavior of appellant and his friend
               clearly is enough to prove, by the requisite standard, that
               they were the perpetrators.
                                        13

270 A.2d at 145-46.




      In Robinson, this court reversed on the basis that there was “no evidence that

the display counter was depleted of its stock by criminal rather than ordinary

commercial means.” 270 A.2d at 146. This court also observed that “the proof

offered at trial circumstantially tends only to establish that appellant and his

companion were attempting to avoid the consequences dictated by the reasonable

appearance of things.” Id.




      A weakness in the government’s case is that the cards were not reported as

stolen and thus, the government is relying on an inference that such a theft

occurred. If, for example, one or more of the owners of the cards had testified in

court that their identification cards had been stolen that evening or had been taken

from them in the course of a robbery — then appellant’s possession shortly after

the item was reported stolen would have been sufficient to establish guilt. See,

e.g., In re D.D., 775 A.2d 1096, 1098 (D.C. 2001) (Possession of recently “stolen

goods permits the reasonable inference that the person possessing it stole it.”)

(citing Head v. United States, 451 A.2d 615, 624-25 (D.C. 1982)). However, none

of the items found in appellant’s backpack had been reported stolen. Instead, the
                                           14

trier of fact was left with a number of facts and circumstances upon which to

consider whether to infer or not infer that the cards were stolen. The evidence did

not eliminate other scenarios under which the identification cards might have come

into appellant’s possession, including other scenarios which could have left

appellant with a consciousness of guilt.




      Appellant argues that the Robinson “guilty of what” inquiry is relevant to the

case at hand. We agree. While appellant acted suspiciously, it cannot be said that

the evidence adequately proves that he knew or had reason to believe the

identification cards in the backpack were stolen. Like the defendant in Robinson,

appellant may be guilty of something, but the question is “guilty of what.”

Robinson, 270 A.2d at 146. We conclude that the fact that four men “approached”

Officer Good and “asked for a phone” at 10:30 P.M. at 1133 North Capitol Street,

Northeast, combined with the fact that their faces matched the four faces shown on

the identification cards found in appellant’s backpack at 4:00 A.M. in the 1100

block of First Place, Northwest, and combined further with the acts of appellant

that bespoke consciousness of guilt — together are not sufficient to establish guilt.
                                         15

      Ultimately, what was lacking was a reasonable basis for inferring, beyond a

reasonable doubt, that there had been a theft of the four identification cards, and

that appellant had reason to believe that they were stolen.



      Accordingly, we reverse the conviction and remand with directions to enter

a judgment of acquittal.


                                              So ordered.
