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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.
