Lihlakha v. United States, 12–CM–606.

• Decision Date: 24 April 2014
• Docket Number: No. 12–CM–606.,12–CM–606.
• Citation: 89 A.3d 479
• Court: D.C. Court of Appeals
• Parties: Jessica A. LIHLAKHA, Appellant, v. UNITED STATES, Appellee.

89 A.3d 479

Jessica A. LIHLAKHA, Appellant,

v.UNITED STATES, Appellee.

No. 12–CM–606.

District of Columbia Court of Appeals.

Argued Nov. 7, 2013.

Decided April 24, 2014.

R. Michael Labelle, Washington, DC, for appellant.

Clare Pozos, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, John L. Hill, and Ann K.H. Simon, Assistant United States Attorneys were on the brief, for appellee.

Before GLICKMAN and EASTERLY, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

Following a bench trial, appellant Jessica Lihlakha was convicted of misdemeanor receiving stolen property (RSP) ¹ and unlawful entry. ² On appeal, Lihlakha challenges the sufficiency of the evidence to support her convictions. We affirm her conviction for unlawful entry but remand the record for further findings on the RSP charge.³

I.

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 that she had “just gotten this HP for the low,” and that she would “keep an ear out and see if ... your laptop comes up.”

The woman called Banks the next day to say that 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 that 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 that 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 that Banks either meet the caller herself or have a police officer go in Banks's place. Banks agreed to have an officer pose as Banks to meet the caller. Per police instructions, Banks told the caller that she needed another day for her parents to wire her the reward money, and she 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 the officer thereupon 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. (From the photo, Banks eventually identified that person in court as Lihlakha.) 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.

The next witness for the government was Investigator Elizabeth Neville, the police officer who met the caller while posing as Banks. Officer 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.

The government also presented the testimony of 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 replied that a local drug dealer named “Kool–Aid” had 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.”

Finally for the government, Investigator William Brown of the Howard University Police testified that he had 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.

For the defense, Lihlakha testified that a man named Tony, whom she knew as “Kool–Aid,” had shown her a “sign” indicating that a reward was offered for the return of a missing computer. Lihlakha called the phone number on the sign, and the woman who answered told her that she had “left [the computer] out” but did not indicate that it had been stolen. Lihlakha eventually obtained a computer from Tony that she believed belonged to the person with whom she had spoken over the phone. Lihlakha testified that she had wanted to return the computer to the rightful owner the same day, even if the owner did not yet have the reward money, but that the owner had asked Lihlakha to wait until the owner obtained the money from her parents. After arranging a time to meet with the owner, Lihlakha attempted to return the computer but instead met an undercover police officer who was posing as the owner, and “[t]hat's when the police came out.” Lihlakha acknowledged that after her arrest, a dean ordered her not to go inside the East or West Towers at Howard University, where Banks resided. Lihlakha further testified that she had never visited Banks's dorm room inside the West Tower.

On cross-examination, Lihlakha testified that she had asked Tony, whom she was “dating loosely,” for “some money.” He had given her a “flyer” offering a reward for the return of a missing laptop. He then told her that a “computer he received was what he thought was on the flyer” and asked Lihlakha to call the number on the flyer and “find out about it.” Lihlakha further testified that Tony did not tell her the laptop was stolen; he said that he had received it from a Howard University student in “exchange for something.” Lihlakha added that she had asked no questions and had no further information. She also testified that Tony did not ask her to give him any portion of the reward money, that she did not call the police once she obtained the computer, and that she did not tell Tony to call the police.

The trial court discredited Lihlakha's testimony, finding that it was inconsistent and appeared to be “fashioned on the fly.” The judge then credited the testimony of Banks and Investigator Tarpley, finding Lihlakha guilty of RSP beyond a reasonable doubt. The judge discredited the portion of Investigator Brown's testimony that Lihlakha had been barred from coming onto any of Howard University's property. However, the judge found Lihlakha guilty of unlawful entry nonetheless based on “the terms of the barring notice” given to Lihlakha and, inferentially, on Lihlakha's own testimony that a dean at Howard had made it clear to her “not to go to the [dormitory] towers at all.”

II.

At the time of trial, D.C.Code § 22–3232(a) (2001) provided:

A person commits the offense of receiving [1] stolen property if that person [2] buys, receives, possesses, or obtains control of stolen property, [3] knowing or having reason to believe that the property was stolen, [4] with the intent to deprive another of the right to the property or a benefit of the property.⁴

The first two elements—that the property was stolen by someone and that Lihlakha received, possessed, or obtained control of the property in question—are uncontested. Moreover, Lihlakha admitted to Investigator Tarpley (contrary to her testimony at trial) 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.⁵

We are therefore left to determine whether the evidence is sufficient for a fourth-element finding that, at the time appellant acted in receiving the stolen property, she intended to deprive Banks of the right to her computer or a related benefit. Lihlakha does not renew on appeal the principal defense she presented at trial: the third-element defense that she did not know the laptop had been stolen. Rather, she now presents two arguments claiming innocent intent premised on the irrelevance of whether she knew that the laptop “was stolen or not.”

First, she contends that 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, citing case law ⁶ and the Model Penal Code,⁷ Lihlakha argues that she lacked the criminal mind essential to RSP 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, not dependent on contract theory, arguing that 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.”

III.

A.

Initially, we...