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               DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 12-FS-1771

                                IN RE J.W., APPELLANT.

                            Appeal from the Superior Court
                             of the District of Columbia
                                   (DEL-1326-12)

                         (Hon. Robert R. Rigsby, Trial Judge)

(Submitted September 29, 2014                              Decided October 9, 2014)

         James E. Drew was on the brief for appellant.

       Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Y.
Sheppard, Assistant Attorney General, were on the brief for appellee District of
Columbia.

      Before FISHER and BECKWITH, Associate Judges, and FARRELL, Senior
Judge.

         FISHER, Associate Judge: Following a bench trial, appellant J.W. was found

“involved” in possessing the implements of crime. D.C. Code § 22-2501 (2012

Repl.). On appeal, he contends that this statute does not apply to the bolt cutters he

possessed and, therefore, the government failed to prove the offense charged. We

agree.
                                          2


                     I.     Factual and Statutory Background



      At approximately 3:45 a.m. on July 1, 2012, Metropolitan Police

Department Officer Perry Morgan saw J.W. and another youth examining a Vespa

scooter that was chained to a fence. Despite the hot weather, J.W. was dressed in

black ski pants and had a black ski mask perched on top of his head. He was also

carrying two-foot-long bolt cutters with yellow handles. When the two young men

noticed the officer, they climbed on a bicycle and rode towards him.           After

stopping them, Officer Morgan asked J.W., who was sixteen years old at the time,

what he was doing with the bolt cutters. J.W. replied, “[W]hat, I can‟t have

these[?] . . . . [A]n officer said that it was okay for [me] to have these,” and then

dropped them to the ground. J.W. was arrested and, after a bench trial, was found

“involved” in possessing the implements of crime.



      J.W. was charged with violating a statute that prohibits the possession of

“any instrument, tool, or implement for picking locks or pockets, with the intent to

use such instrument, tool, or implement to commit a crime.” D.C. Code § 22-2501

(2012 Repl.). The predecessor statute, part of the vagrancy laws, “was clearly

intended as a „burglar tool‟ statute, the wording of which was typical of similar
                                          3


misdemeanor enactments in many states.”1 Rosenberg v. United States, 297 A.2d

763, 765 (D.C. 1972). In 1941 Congress broadened the scope of the vagrancy

statute by deleting language pertaining to “burglary” and “against property.”

Pub. L. No. 77-352, 55 Stat. 808 (1941) (codified as D.C. Code § 22-3302). After

the amendment, the statute covered the implements of “any crime,” but it

continued to be applied primarily to the possession of burglary tools. See, e.g.,

Patten v. United States, 248 A.2d 182, 183 (D.C. 1968) (“a paper bag containing

several tools commonly used for burglary”). The expansive language of the 1941

statute survived in subsequent enactments, 2 and the statute was increasingly

applied “to narcotics paraphernalia, explosive mechanisms and other devices[.]”

Rosenberg, 297 A.2d at 765.




      1
         This statute labeled as “vagrants,” those “[p]ersons upon whom shall be
found any instrument, tool or other implement used for the commission of
burglary, or the commission of any other crime against property, or for picking
locks or pockets who shall fail to give a good account of the possession of the
same[.]” Pub. L. No. 60-303, 35 Stat. 711 (1909).
      2
         See Pub. L. No. 83-85, 67 Stat. 97 (1953) (codified as D.C. Code
§ 22-3601) (repealed) (“No person shall have in his possession in the District any
instrument, tool, or other implement for picking locks or pockets, or that is usually
employed or reasonably may be employed in the commission of any crime, if he is
unable satisfactorily to account for the possession of the implement.”).
                                         4


      In 1981, the Council of the District of Columbia created a new offense,

possession of drug paraphernalia, 3 and repealed the statute which prohibited

possession of implements of crime. See § 410 and § 604 (a)(2) of the District of

Columbia Uniform Controlled Substances Act of 1981, D.C. Law 4-29, 28 D.C.

Reg. 3108 (1981). Three months later, the Council enacted a new statute that

substantially narrowed the categories of instruments, tools, and implements to

which it applied.4 See D.C. Law 4-52, § 3 (g), 28 D.C. Reg. 4348 (1981). Thus,

the current “statute applies only to the possession of [an] „instrument, tool or

implement for picking locks or pockets,‟ unlike the former provision, which

reached beyond those instruments to include other implements which are „usually

employed, or reasonably may be employed in the commission of any crime.‟”


      3
         This statute generally prohibits the possession of “a hypodermic needle,
hypodermic syringe, or other instrument that has on or in it any quantity (including
a trace) of a controlled substance with intent to use it for administration of a
controlled substance by subcutaneous injection in a human being[.]” D.C. Law 4-
29, § 410, 28 D.C. Reg. 3108 (1981) (codified originally as D.C. Code § 33-550
(1981) and currently as D.C. Code § 48-904.10 (2012 Repl. & 2014 Supp.)). The
next year, the Drug Paraphernalia Act of 1982 created an additional, more
generalized, offense of possession of drug paraphernalia. See D.C. Law 4-149, § 4,
29 D.C. Reg. 3369 (1982) (codified originally as D.C. Code § 33-603 and currently
as D.C. Code § 48-1103 (a) (2014 Supp.)).
      4
        The new statute also removed language about the defendant satisfactorily
accounting for his possession of the implement, eliminating concerns that the
previous statute had unconstitutionally shifted the burden of proof to the defendant.
D.C. Law 4-52, § 3 (g), 28 D.C. Reg. 4348 (1981); see Benton v. United States,
232 F.2d 341, 345 (D.C. Cir. 1956).
                                          5


Criminal Jury Instructions for the District of Columbia, No. 5.403 cmt. (5th ed.

rev. 2013).



                            II.    Construing the Statute



      When construing a statute, our purpose “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). But “[t]he primary and general rule of statutory

construction is that the intent of the lawmaker is to be found in the language that he

[or she] has used.” Peoples Drug Stores v. District of Columbia, 470 A.2d 751,

753 (D.C. 1983) (en banc) (internal quotation marks and citation omitted). Thus,

our primary focus is on the plain language of the statute, and this is perforce true

where, as here, there is no legislative history explaining the Council‟s intent in

narrowing the scope of the statute. 5 Furthermore, “in examining the statutory


      5
         In a footnote to an opinion issued shortly after the new implements of
crime statute was enacted, this court concluded “that the Council intended . . . to
repeal [the possession of implements of crime statute] solely as it applied to
narcotics paraphernalia; and to substitute therefor . . . a specific narcotics
paraphernalia possession provision.” United States v. Covington, 459 A.2d 1067,
1068 n.1 (D.C. 1983). Although the Council may not have intended to repeal the
previous statute in its entirety, it did not restore the original expansive language
when it enacted a new statute to replace the old one. It appears that this process of
                                                                       (continued…)
                                         6


language, it is axiomatic that „[t]he words of the statute should be construed

according to their ordinary sense and with the meaning commonly attributed to

them.‟” Id. (quoting Davis v. United States, 397 A.2d 951, 956 (D.C. 1979)).



      The first element of the crime requires the possession of “any instrument,

tool, or implement for picking locks or pockets[.]” D.C. Code § 22-2501 (2012

Repl.). Here, of course, we are concerned with the picking of locks, not the

picking of pockets. It seems more likely that appellant would have used the bolt-

cutters to sever the chain which secured the scooter rather than to break the lock.

But even if the lock was his target, “picking a lock” is generally understood to

require skill rather than brute force, as confirmed by the following definitions of

“pick”: Webster’s Third New International Dictionary 1709 (2002) (“to turn (a

lock) with a wire or a pointed tool instead of the key esp. with intent to steal”);

Dictionary.com, http://dictionary.reference.com/browse/pick (last visited Sept. 15,




(…continued)
repeal and partial reenactment has left a statutory gap. Cf., e.g., Del. Code Ann.
tit. 11, § 828 (West 2014) (prohibiting possession of burglar‟s tools or instruments
facilitating theft); N.Y. Penal Law § 140.35 (McKinney 2014) (prohibiting
possession of burglar‟s tools and instruments “adapted, designed or commonly
used for committing or facilitating . . . offenses involving larceny by a physical
taking”); Va. Code Ann. § 18.2-94 (West 2014) (prohibiting possession of tools or
implements “with intent to commit burglary, robbery or larceny”).
                                          7


2014) (“to open (a lock) with a device other than the key, as a sharp instrument or

wire, especially for the purpose of burglary”).



        The government proffers an expansive definition of lock-picking that

includes any manner of “open[ing] a lock with an instrument other than the proper

key.”                              Oxford                             Dictionaries,

http://www.oxforddictionaries.com/definition/english/pick-a-lock     (last   visited

Sept. 16, 2014). See also American Heritage Dictionary 1368 (3d ed. 1992) (“To

open (a lock) without the use of a key.”). But a penal statute must “define the

criminal offense with sufficient definiteness that ordinary people can understand

what conduct is prohibited[,]” Kolender v. Lawson, 461 U.S. 352, 357 (1983), and

we doubt that an ordinary citizen would anticipate that the term “picking locks”

encompasses every conceivable method of opening (including breaking or

destroying) a lock without the key. We therefore conclude that, in this context, the

term “picking a lock” means “the opening of the lock without the use of the

original or duplicate keys and without damage to the lock.” See Segal Lock &

Hardware Co. v. Fed. Trade Comm’n, 143 F.2d 935, 937 (2d Cir. 1944) (citation

omitted).
                                         8


                             III.   Applying the Statute



      We agree that bolt cutters may be used to commit a crime and that there was

abundant evidence that appellant carried them for that purpose. Thus, a cursory

comparison of these facts to the title of the statute – “possession of implements of

crime” – might lead to the conclusion that appellant is guilty of the crime charged.

However, “[t]he significance of the title of the statute should not be exaggerated.”

Mitchell v. United States, 64 A.3d 154, 156 (D.C. 2013). “[H]eadings and titles are

not meant to take the place of the detailed provisions of the text.” Bhd. of R.R.

Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528 (1947). We therefore focus

our analysis on the text of the statute, which limits its reach to tools and

implements “for picking locks or pockets.” Because bolt cutters are not “lock-

picking tools” within the definition we have adopted, there was insufficient

evidence to sustain J.W.‟s adjudication. We therefore vacate the adjudication for

possessing implements of crime.



                                             It is so ordered.
