Reed v. United States, 6794.

• Decision Date: 11 December 1973
• Docket Number: No. 6794.,6794.
• Parties: David R. REED, a/k/a Lee Reed, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

312 A.2d 775

David R. REED, a/k/a Lee Reed, Appellant, v. UNITED STATES, Appellee.

No. 6794.

District of Columbia Court of Appeals.

Argued June 5, 1973.

Decided December 11, 1973.

Appeal from the Superior Court, District of Columbia, John F. Doyle, J Stephen A. Herman, Washington, D. C., court appointed, with whom Charles R. Cutler, Washington, D. C., court appointed, was on the brief, for appellant.

Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Ann S. DuRoss, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, HARRIS, Associate Judge, and HOOD, Chief Judge, Retired.

REILLY, Chief Judge:

This is an appeal from judgments of conviction for (1) unauthorized use of a motor vehicle, and (2) carrying a pistol without a license, in violation of D.C.Code 1973, §§ 22-2204 and 22-3204, respectively. Appellant was sentenced to imprisonment for a term of one to three years on the first count, and 364 days on the second, the terms to run concurrently. In this court, appellant assigns as error (1) denials of motions for acquittal, and (2) the imposition of an adult sentence in contradistinction to a sentence under the Youth Corrections Act. We find no error and affirm.

Evidence for the government was presented by two plainclothes Metropolitan Police officers. They testified that while on patrol in an unmarked car they saw appellant, in the company of two other men, take a gun from his belt, spin it twice, and replace it. The trio then crossed the street, got into a parked U-Haul van on the driver's side, with appellant entering last. The van was driven around the corner into an alley, behind an apartment house.¹ The officers followed. When they caught up with the van, the men had already alighted and were standing under some trees next to one of the apartments. Neither officer could say for sure who had been driving, but the trees were apparently to the passenger side of the vehicle when the police saw the men, with appellant being the closest to it.² As the officers approached and identified themselves as policemen, appellant's two companions ran away. Appellant Reed also started to run but stopped after a few steps and was apprehended, with a gun being recovered from the ground approximately two feet from where he was standing.³ Being unable to produce a contract for the rental of the U-Haul van or a license for the pistol, he was arrested and charged with receiving stolen property,⁴ unauthorized use of a vehicle, and carrying a pistol without a license.

At the conclusion of the government's case in chief, appellant unsuccessfully moved for a judgment of acquittal, and renewed this motion at the close of all the evidence. He now argues that the evidence was insufficient to sustain the convictions of unauthorized use of the van and unlicensed possession of the pistol. We disagree.

Viewing the evidence in the light most favorable to the government — as we must — Crawford v. United States, 126 U.S. App.D.C. 156, 375 F.2d 332 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied 331 U.S. 837, 67 S. Ct. 1511, 91 L.Ed. 1850 (1947), we find the trial court correctly submitted the case to the jury. While no witness testified that he actually saw Reed steal or drive the U-Haul van, inference of guilt may properly be drawn from circumstantial evidence. See United States v. Weston, 151 U.S. App.D.C. 264, 466 F.2d 435 (1972); Pendergrast v. United States, 135 U.S.App.D. C. 20, 416 F.2d 776, cert. denied 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969).

In the instant case, without resorting to speculation, a jury could reasonably have concluded from the testimony placing appellant Reed as the last person to enter the driver's side of the truck before it started away, that he must have been the person at the wheel. Such conclusion was also consistent with the testimony respecting his relative juxtaposition to the truck, just after its occupants had alighted. Such clear evidence of possession is sufficient to permit an inference of guilt of unauthorized use of a motor vehicle, United States v. Johnson, 140 U.S.App.D.C. 54, 57, 433 F.2d 1160, 1163 (1970); Scott v. United States, 125 U.S.App.D.C. 138, 369 F.2d 183 (1966). To be sure, the defendant's own testimony put into issue the matter of possession, but the resolution of credibility was properly left to the jury. Hill v. United States, D. C.App., 280 A.2d 925, 927 (1971).

On the pistol carrying charge, it was certainly within the prerogative of the jury to have believed the direct testimony of the officer concerning the twirling incident notwithstanding appellant's disclaimer on the witness stand. See Smith v. United States, D.C.App., 292 A.2d 150 (1972).

In turning now to the challenged sentence, we note that appellant being of the age of 19 when convicted, was eligible under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq., for commitment for treatment and supervision in lieu of imprisonment.⁵ This court recently held in Small v. United States, D.C.App., 304 A.2d 641, 644 (1973):

. . . [T]hat when the trial court imposes adult punishment upon a youth offender the record (1) must show that the sentencing judge was aware of the defendant's eligibility for Youth Act treatment and considered this treatment before imposing the adult sentence, and (2) must contain an explicit and reasoned determination that the defendant would not derive rehabilitative benefit from Youth Act treatment. . . .

In the case before us, the record clearly shows that the trial court satisfied the first of these two guidelines, for after conviction and before imposing sentence, the court committed him to the authorities at the Youth Center for observation and study with the object of obtaining the report specified in another provision of the Youth Corrections Act.⁶ It was not until the court had received and examined this report that final sentence was imposed. In open court, the trial judge stated:

The recommendation that I have . . . received under § 5010(e) after the examination is that he be sentenced as an adult, and I shall follow that.

It is contended that this statement falls short of an explicit determination that appellant would derive no rehabilitative benefit from Youth Act treatment. In Small we remanded the case for resentencing because of the absence of a finding by the trial court under § 5010(d) of the Youth Corrections Act that the offender would not derive benefit from the rehabilitative treatment contemplated by the preceding subsections of that Act. In that case, the trial court implicitly refused to make such a determination when requested to do so, stating that it had no intention of disclosing the presentence report.

In marked contrast to that case, the record on appeal here reveals that the trial court had before it two reports upon which it relied in making its determination. The first was a presentence report of the probation department of the Superior Court, describing in detail appellant's criminal record, extending from the time he was 12 years old up to the date of his latest conviction. This included two escapes from juvenile correctional institutions in 1968 and 1969, and one from the D.C. Jail in June of 1972, while awaiting sentencing in the present case. The second, prepared by the Classification Committee at the Youth Center was an evaluation and recommendation concurred in by the Board of Parole. It found that the of fender would not benefit from the Youth Center's program and recommended that he be sentenced as an adult. Citing his history of involvement with the law and the past failures of correctional officials in effectuating a change in his attitude, the report concluded that "[t]he Committee as a whole did not see Mr. Reed as amenable to modifying his behavior . . . [and] was of the opinion that it would be quite some time before [he] showed any signs or sincere efforts for change." (From Committee Evaluation, August 21, 1972; R. II at 16.)

By expressly announcing that it would accept and follow these conclusions, the trial court in effect adopted as its own the finding that appellant would not benefit from Youth Act treatment and the reasons given in support thereof. Appellant, however, insists that this was not enough and that the trial court should have made independent findings. This thesis is at odds with a decision of the United States Court of Appeals for this circuit, sitting en banc in United States v. Coefield, 155 U.S.App. D.C. 205, 476 F.2d 1152 (1973), in which judge Fahy, writing for the majority observed (at 1157):

The approach in Waters [United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722] and Ward [United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992] would seem to presuppose a statement of reasons by the sentencing judge if these special provisions are not being utilized and the youth offender is sentenced as an adult. To require reasons to be stated is clearly not inconsistent with those decisions; and we now deem this to be essential to a knowledgeable administration of the Act as intended by Congress. When, however, prior to imposing a sentence, the judge has availed himself of the assistance afforded by section 5010(e), and after considering the report in light of the other data before him, follows its findings or recommendation in imposing sentence, additional reasons need not be stated, although, of course, the judge is not precluded from adding reasons of his own. [Footnotes omitted.]

We regard Coefield as an authoritative exposition of the proper construction of Section 5010(d) of the Youth Act, for as we previously observed both in the Small case, where that opinion was cited with approval,⁷ and in Paul v. United States, D.C.App., 301 A.2d 226 (1973), special deference should be accorded to holdings of federal circuits in the interpretation of a statute of national rather than local...