Driver v. U.S., 85-723.

• Decision Date: 18 February 1987
• Docket Number: No. 85-723.,85-723.
• Citation: 521 A.2d 254
• Parties: Ivan DRIVER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 254

521 A.2d 254

Ivan DRIVER, Appellant, v.UNITED STATES, Appellee.

No. 85-723.

District of Columbia Court of Appeals.

Argued September 30, 1986.

Decided February 18, 1987.

William J. Mertens, Washington, D.C., appointed by this court, for appellant.

Saul M. Pilchen, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on brief for appellee.

Before NEBEKER and NEWMAN, Associate Judges, and PAIR, Senior Judge.

PAIR, Senior Judge:

Appellant was charged by indictment with armed robbery of a senior citizen,¹D.C.Code §§ 22-2901, -3202, -3901 (1981); forgery, id.§ 22-3841(Supp. 1986); and uttering, id.§ 22-3841.A jury found appellant guilty on all counts and he was sentenced to three-to-fifteen years' incarceration for armed robbery, and two-to-ten years' incarceration (each concurrent to the other but consecutive to the armed robbery sentence for forgery and uttering).Appellant now asserts he is not guilty of forgery under the terms of § 22-3841; that there was insufficient evidence to establish his participation in the armed robbery, and that he was improperly sentenced for the forgery conviction.We affirm the convictions but remand for resentencing as to the forgery conviction.

Houston Washington, the complaining witness, testified that on the morning of August 24, 1983, he received a phone call from appellant who offered to drive him to the bank and grocery store that morning.Washington, a seventy year-old man, had known appellant for a couple of years, and appellant had taken him on many errands in the past.Approximately a half hour after the phone call, appellant arrived at Washington's house and took him to the bank.

Washington had to visit the bank to cash several checks for his aunt.When he entered appellant's automobile, Washington had his aunt's checks and other items in a small shaving kit which he carried in his lap.Washington did not tell appellant why he was going to the bank.He did not open the shaving kit while in appellant's car.Washington entered the bank alone and obtained three blank money orders for his aunt.He recalled that one money order was for $300, and another was for $200; he could not remember the denomination of the third.He took these blank money orders, some of his aunt's cash, and some cash that he withdrew from his own account and placed them inside the shaving kit.He then reentered appellant's car.

Appellant then asked for, and received, thirty dollars from Washington, saying that he needed the money to pay back a loan to a friend.Appellant then told Washington that he had to visit the friend prior to taking him to the grocery store, and drove to, and entered, an apartment building on Virginia Avenue where he remained for fifteen or twenty minutes.During that time, Washington remained alone in the car with the pouch on his lap.Appellant then returned to the car and got behind the wheel.Before he started the car, however, a gunman ran out of the apartment building which appellant had just left, and approached the driver's side of the car.Without saying a word, the gunman "poked"appellant with his gun, reached across the front seat of the automobile, and took Washington's shaving kit.The gunman took nothing from appellant, did not search further in the vehicle for valuables, and immediately ran back into the apartment building.

Appellant told Washington that he did not know the thief.Washington did not recognize him either.Nevertheless, appellant ran into the apartment building in pursuit of the gunman, and emerged alone about fifteen minutes later.Before he returned, however, an unknown man approached Washington and returned the shaving kit, saying that it was found on the ground.The money orders and cash had been removed.

Appellant did not mention anything further about the armed robbery, and did not call the police.Instead, appellant drove Washington to the grocery store, and although usually appellant would wait for Washington to complete his shopping and then take him home, on this occasion he waited only five minutes and then drove off alone.Washington took the bus home.

When he arrived home in the early afternoon, Washington called the bank and spoke with Mona Tolle, the manager.He told her about the robbery, and she called the police, who later interviewed Washington.

Mona Tolle, the bank manager, testified that Washington, whom she had known for over fifteen years, purchased three money orders on August 24, 1983.The value of the money orders was $300, $225, and $115, respectively.When he called her that afternoon to report that they had been stolen, she called a "hot line" to report the numbers of the stolen instruments.As Tolle was phoning in these numbers, Diane Peay, a teller who was standing about five feet from Tolle, came over and reported that a man was at her window trying to cash one of the stolen money orders.The person trying to cash the money order was identified as appellant.

Diane Peay, the teller, testified that she had worked at the bank for several years, and knew both Washington and appellant.On the afternoon of August 24, 1983, appellant came to her window, presented a blank money order, and asked her to cash it.Peay asked appellant for some identification, and he gave her his driver's license.She then asked him to fill out the money order with his name and address, and she watched him do this.It was during this time that Peay overheard Tolle reporting over the phone the numbers of the stolen money orders.Apparently in response to her queries, appellant told her that he had purchased the money order from the bank.Despite this explanation, she took the money order that appellant had just signed, and his driver's license, and showed them to Tolle.

Tolle took the stolen money order from Peay, and asked appellant how he had obtained it.Appellant then informed her that he had found the money order in a hallway.Apparently after learning that Tolle knew the instrument was stolen, appellant told her that he was at the bank at Washington's behest, and that he was going to take the cash to Washington.However, when Tolle called Washington and explained the matter to him, Tolle recalled that Washington was confused.Appellant then spoke briefly on the phone to Washington, in a conversation that Tolle did not hear, and afterwards told Tolle that Washington wanted him to return the money order.Tolle did not believe appellant's representations and called the police.When the police arrived at the bank, she gave them the money order that appellant had tried to cash and directed them to Washington's house.

Detective John Flatley, assigned to the robbery branch of the Metropolitan Police, interviewed Washington on the day of the robbery and visited the Virginia Avenue crime scene with him.He also spoke with Tolle and Peay.Following his investigation, he arrested appellant on August 31, 1983, and took handwriting samples from him.

I.The Sentence

Appellant received concurrent sentences of two-to-ten years' imprisonment for the forgery and uttering convictions.He contends that under the sentencing scheme established by D.C.Code § 22-3842, these sentences are illegal.We agree.Because the written instrument involved was of a value of more than $250 but less than $10,000, the concurrent sentences under D.C.Code § 22-3842(a) were improper and he must be resentenced in accordance with § 22-3842(b).²

Appellant goes on to contend that, when his case is remanded for resentencing, the trial judge may only sentence him under § 22-3842(c), which provides for a penalty of not more than $2,500 and/or three years' incarceration.He urges this position by claiming, for the first time, that his indictment did not adequately allege that the instrument he forged and uttered carried a value of $250 or more.This appeal presents appellant's first challenge to the sufficiency of the indictment.When an indictment is attacked for the first time on appeal, it will be "`liberally construed in favor of validity[.]'"United States v. Bradford,482 A.2d 430, 433(D.C.1984)(quotingUnited States v. Pheaster,544 F.2d 353, 361(9th Cir.1976), cert. denied,429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546(1977)).

We have consistently held that:

Unless an indictment is "so deficient as to be totally lacking in the statement of an offense,"an appellant's failure to object to it prior to trial will constitute a waiver of his right to that objection on appeal.If, however, the indictment does state the elements of the offense — as does the one here — and merely lacks particularity, an appellant may assert this lack of particularity on appeal if he made an objection at trial.

Williams v. United States,404 A.2d 189, 192(D.C.1979)(citations omitted).

Appellant did not move to dismiss this indictment before trial.Similarly, he did not raise an objection at trial.

Nonetheless, in this case, it is correct that appellant's indictment does not say in so many words that the value of the money order he forged and uttered was of a value of $250 or more.However, the indictment's forgery count contains a photocopy of the actual money order at issue in the case, and the uttering count makes reference to the copy and incorporates it "by reference."The photocopy, which clearly reveals that the value of the money order is $300, was sufficient in the context of this case to provide the necessary allegation of value.

II.Forgery Under Section 22-3841

Appellant contends also that the recently enacted forgery statute, D.C.Code § 22-3841, marks a return to common law elements³ of forgery.We disagree.The legislative history of § 22-3841 demonstrates no intention to reanimate the common law offense of forgery in the District of Columbia.⁴SeePeoples Drug Stores, Inc. v. District of Columbia,470 A.2d 751, 754(D.C.1983)(en banc)(reference to legislative...