Nowlin v. US, 99-CM-92.

• Decision Date: 27 September 2001
• Docket Number: No. 99-CM-92.,99-CM-92.
• Citation: Nowlin v. US, 782 A.2d 288 (D.C. 2001)
• Parties: Charles NOWLIN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

782 A.2d 288

Charles NOWLIN, Appellant, v.UNITED STATES, Appellee.

No. 99-CM-92.

District of Columbia Court of Appeals.

Argued December 1, 2000.

Decided September 27, 2001.

Christine Markel, Public Defender Service, with whom James Klein and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

Earl M. Campbell, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, John R. Fisher, Elizabeth Trosman, and Karla-Dee Clark, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and WASHINGTON, Associate Judges, and MACK, Senior Judge.

MACK, Senior Judge:

AppellantCharles Nowlin appeals from his conviction after a non-jury trial for second-degree theft in contravention of D.C.Code §§ 22-3811, -3812(b)(1996& Supp.2000).Appellant's sole contention on appeal is that the evidence regarding his knowledge and intent was insufficient.Based upon our review of the record, we conclude that appellant's conviction must be reversed.

I.

The evidence adduced at trial shows that on January 15, 1997, appellant Nowlin walked into Crestar Bank, presented his driver's license and Department of Human Services identification card and cashed a check made payable to him in the amount of $574.That check, numbered 6910, was issued from Bladensburg Auto Body Shop and bore the purported signature of James Carson, a co-owner of the shop.

Sometime later that month Carson noticed that the balance in the auto shop's checking account was unusually low.Upon investigation, he discovered that check 6910 was neither written nor signed by him.In addition, he did not recognize the name to whom the check was made payable.Shortly after discovering the forged check, Carson fired two part-time employees he believed to have taken check 6910 along with several other "missing" company checks.

An investigator for Crestar Bank studied check 6910 and determined the branch where the check was cashed and the types of identification appellant presented.He also recovered the security camera videotape that had recorded the transaction.The videotape and a copy of the check were submitted to the Metropolitan Police Department Financial Crimes Unit.After comparing the videotaped images to a file photograph of appellant, the police arrested him.

During a bench trial, the government offered the testimony of bank and police investigators who identified appellant as the individual who cashed the check.They also called Carson who testified that he did not know or recognize appellant.The prosecutor asked Carson only two questions in this regard; the complete exchange was as follows:

Q: Who is the payee listed on the check?

A: Well, it looks like Charles Newman or something.

Q: Nowlin?Can you spell it?

A: N-O-W-L-E-N?

Q: Do you know that individual?

A: No.

Q: Have you ever seen that individual before?

A: No.

It was established that Carson's business partner, Owen Mulkey, was also authorized to sign checks on behalf of the auto shop account.Other than Carson, no one else from the auto body shop was called as a witness.Nor did the government call a handwriting expert to compare appellant's handwriting with the writing on the face of check 6910.

After the government concluded the presentation of its evidence, appellant moved for a judgment of acquittal.Appellant argued that the government failed to present sufficient evidence of his specific intent.When the trial court asked the government to state the elements as to knowledge and intent, the government replied that appellant was "in possession of a check which he either knows or should have reason to know has not been uttered by the rightful owner."The government asked the court to infer that (1)appellant never saw Carson sign the check over to him, (2)appellant knew or should have known he possessed the check wrongfully, and (3)appellant received funds that he knew or should have known were never paid to him by Carson or the auto body shop.

The trial court denied appellant's motion for judgment of acquittal.Appellant did not testify and presented no evidence.The trial court then made its ruling and found

that the face of the check, combined with the testimony of the owner, is sufficient to prove beyond a reasonable doubt that [appellant] knew that he didn't have a right to these funds.The check is made out to [appellant] from this auto body shop.The owner of the shop says that he's never had any dealings with [appellant], which means that [appellant] presumably knew that he had never had any dealings with James Carson, who purportedly wrote this check.In addition, the check says that it's for auto repair, and [appellant] presumably knew that he had not done any auto repair work for this repair shop.

Appellant was convicted and this appeal followed.

II.

To convict appellant of second-degree theft under D.C.Code § 22-3811(b),¹ the government had to prove that (1)he wrongfully obtained the property of Crestar Bank, (2) that at the time he obtained it, he specifically intended "either to deprive [Crestar Bank] of a right to the property or a benefit of the property or to take or make use of the property for [himself]. . . without authority or right," and (3) that the property had some value.Criminal Jury Instructions for the District of Columbia, No. 4.38 (4th ed.1993);see alsoCash v. United States,700 A.2d 1208, 1210-11(D.C.1997).In this case, appellant disputes only the second element, arguing that the evidence was insufficient to show that he knew he had no right to the check and intended to deprive Crestar Bank of its property.He argues that any contrary conclusion is mere speculation.

When considering claims of evidentiary insufficiency in a criminal case, we view the evidence in the light most favorable to the government.SeeClyburn v. District of Columbia,741 A.2d 395, 396(D.C.1999).We recognize the right of the fact-finder to weigh the evidence, resolve issues of credibility, and draw justifiable inferences of fact.Seeid.To prevail, appellant is required to show that the facts did not amount to evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.SeeMihas v. United States,618 A.2d 197, 200(D.C.1992).The trial court's factual findings in a bench trial will not be overturned unless they are "plainly wrong" or "without evidence to support [them]."Id.(citation omitted).The government is not required to negate every possible suggestion of innocence.SeeMonroe v. United States,598 A.2d 439, 440 n. 4(D.C.1991).

Despite the deference afforded the trial court, "[t]he evidence must support an inference, rather than mere speculation, as to each element of an offense."Head v. United States,451 A.2d 615, 622(D.C.1982), cert. denied,513 U.S. 854, 115 S.Ct. 156, 130 L.Ed.2d 95(1994).Similarly, "[t]he evidence is insufficient . . . if in order to convict, the jury is required to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation."Roy v. United States,652 A.2d 1098, 1103(D.C.1995)(internal quotations omitted)(quotingCurry v. United States,520 A.2d 255, 263(D.C.1987)).

The trial court concluded that the requisite knowledge and intent was established by (1)"the face of the check" and (2) the testimony of Carson.The face of the check adds little or nothing to the guilt of appellant.Carson testified that he did not write out the check and did not sign it.However, the government failed to call a handwriting expert who might have been able to conclude that the front of the check was completed by appellant and aid the court, as a trier of fact, in evaluating appellant's seemingly innocent acts.Therefore, all that is reasonably certain from the evidence presented to the trial court is that Carson did not complete the check.Who may have completed and signed the check (and whether it was the same person) is left to speculation.Additionally, the fact that "auto repair" was written in on the memo line of the check is of minimal value.The memo line led the trial court to infer that appellant"knew that he had not done any auto repair work for this repair shop."This inference is unreasonable and not supported by the record.There is nothing in the record to indicate one way or the other whether appellant was entitled to compensation from Carson, Mulkey, or anyone at the auto shop.

Likewise the very limited testimony of Carson is insufficient to convict appellant, even when considered in conjunction with the face of check 6910.The...