Warner v. United States
| Decision Date | 17 September 2015 |
| Docket Number | No. 12–CM–1593.,12–CM–1593. |
| Citation | 124 A.3d 79 |
| Parties | Michael J. WARNER, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Regina Michaels, Bethesda, MD, was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John Hill, and Susan M. Simpson, Assistant United States Attorneys, were on the brief for appellee.
Michael Warner was charged by information with misdemeanor second-degree fraud.1After a bench trial, the trial judge acquitted him of that charge but found him guilty of attempted second-degree theft,2which the judge concluded is a lesser included offense of second-degree fraud. On appeal, Warner argues that attempted second-degree theft is not included in second-degree fraud, and that, in any event, the evidence and the judge's findings were insufficient to support his conviction of attempted theft. We hold that attempted second-degree theft by means of deception is a lesser included offense of second-degree fraud, and that there was sufficient evidence to support appellant's conviction on that basis. Nonetheless, because we are uncertain whether the judge found an essential element of the lesser included offense, namely, that appellant intentionally or knowingly attempted to deceive, we remand for clarification on this point.
According to the evidence presented at trial, on October 27, 2011, appellant leased a one bedroom condominium apartment near the campus of American University. A month later, having failed to pay the required security deposit or the first month's rent, he began posting advertisements seeking a roommate on American University housing message boards and Craigslist.com. Appellant did this even though his lease prohibited subletting without his landlord's approval, which he had not secured. At trial, appellant testified that he was unaware of this prohibition in his lease.
On December 2, 2011, Teresa Parks, a junior at American University, saw one of appellant's ads and inquired about the apartment. The ad stated that the unit was available on a “short/month-to-month basis” for “[a]n extended period of time” starting in December. Ms. Parks advised that she was seeking a room for the entire spring semester, i.e., the period from January through May 2012. Responding to her inquiry by email on the afternoon of December 2, appellant stated, “I flexible—short or semester lease.” According to appellant, Ms. Parks told him she “wanted a month-to-month lease” starting with the “December/January timeframe,” with the possibility of continuing after those first two months if the living situation “work[ed] out.” Appellant emailed her a draft month-to-month lease agreement.
Teresa Parks's mother, Vanessa Parks, phoned appellant on December 4 to finalize the deal. Mrs. Parks testified that appellant told her he owned the apartment and that it would be available for rent for “at least the semester.” She told appellant that the preference was for her daughter “to stay for the entire semester, but [they] agreed to a month-to-month lease in case it didn't work out.” In other words, Mrs. Parks testified, although the lease would be month-to-month, “the agreement verbally was that assuming everything worked out, [Teresa] would live there for the entire semester, at least.”3After the conversation, Mrs. Parks wired $800 to appellant via Western Union as a security deposit to hold the apartment. Appellant picked up the wired funds at 9:41 a.m. on December 5, 2011, and texted Mrs. Parks to let her know that he had received the money.
Unbeknownst to Teresa and Vanessa Parks, appellant was in communication with someone else interested in his offer of a room for rent. Nicole Diaz, a senior at American University, called him after seeing his ad on Craigslist. Their initial conversation apparently took place the night of December 4, after appellant's conversation earlier that day with Mrs. Parks. Ms. Diaz and appellant exchanged emails on December 5, after appellant had picked up the Parks' $800 security deposit.
Ms. Diaz testified that appellant told her he owned the apartment and had a roommate who would be leaving in December, so that she would be able to move in in mid-January. He also told her he was a businessman who traveled a lot, so she would often have the apartment to herself. At 11:01 a.m. on the morning of December 5, Ms. Diaz emailed appellant that she was “all set to 100% commit to the place.” At 11:28 a.m., less than two hours after he picked up the security deposit wired by Mrs. Parks, appellant responded to Ms. Diaz, also by email, that “[t]he place is yours.” Ms. Diaz was unaware of appellant's dealings with the Parks family.
Appellant testified that he told Ms. Diaz she could not move in until after January because he had “a prospective roommate” until then. While he had intended to have Ms. Parks as his roommate “for at least two months,” she “did not commit to an entire semester” and he expected her to move out after January. “I was hoping to maintain a stream of income so I could pay my rent,” appellant testified, “so I was looking for another roommate ... to come in right after [Teresa] Parks had left.”
As things turned out, neither of the subleases under discussion came to fruition. Ms. Diaz became concerned after appellant sent her a follow-up email proposing a move-in date at the end of January and asking for a deposit of $850 to hold the room. She phoned him to ask why the deposit was $850 when the advertised rent was $800 per month, and whether she could have a mid-January move-in date as they had discussed. According to Ms. Diaz, appellant said the $850 figure was a mistake and that it would be “completely fine” for her to move in to the apartment in mid-January. But as the conversation progressed and she asked other questions, appellant became “very volatile” and “rude,” and Ms. Diaz perceived “there was something definitely wrong” with the deal. The next day, December 6, she informed appellant that she was no longer interested in the apartment.
That afternoon, after her daughter informed her of Ms. Diaz's experience, Mrs. Parks telephoned appellant.4He denied having had any contact with Ms. Diaz. Mrs. Parks accused him of trying to pull off a scam, and appellant offered to cancel their deal and return her security deposit. Mrs. Parks agreed that would be the best thing for him to do. Appellant said he would wire the money back to her by Western Union.
Appellant never returned the security deposit, however. He testified that he did not do so because
After the evidence was in and the parties had delivered their closing arguments, the trial judge stated she needed additional time to review the evidence and would not reach a verdict that day. Three weeks later, when the parties returned to court, the judge announced partial findings but identified additional legal issues for the parties to brief before she could render her verdict. One of those issues concerned the previously unmentioned possibility that appellant might be found guilty of a lesser included offense.
The judge explained that she was unable to find that appellant knew he lacked authority to sublet his condominium unit to Ms. Parks and never intended to make it available to her, as the government contended. Rather, the judge “accept[ed]” appellant's testimony that he expected Ms. Parks to stay in the apartment for two months and then leave at the end of January, making way for Ms. Diaz to reside there from February onward. Ms. Parks and appellant both understood that her tenancy would be month-to-month, the judge found, “and that there was no promise that it would be for a full semester.”
Nonetheless, the judge identified a different possible basis for finding appellant guilty of either fraud or a lesser offense. “The potential fraud,” the judge stated, was rooted in appellant's “implied promise” to Ms. Parks that he would not search for someone to replace her as his roommate before the end of the spring semester “unless it turned out that [their arrangement] was not working.” As the judge elaborated:
I am finding that there was at least an implicit promise that there would not be any search for additional tenants. That there was going to be this opportunity to try this arrangement, and that he was not going to exercise his sort of blanket right to terminate this month-to-month lease, that instead there, if everything worked out [Teresa Parks] would have the full semester.
This implicit promise was material to appellant's agreement with Teresa Parks and her mother, the court concluded.
Whether appellant's promise was fraudulent, the judge reasoned, depended on (Emphasis added.) Appellant inquired whether the judge had made a finding on this question and argued that no evidence had been presented on the issue. In response, the judge said “the only evidence” was appellant's negotiation with Ms. Diaz “shortly after” his conversations with Teresa Parks and her mother, from which “one could infer ... that at the time he entered into this oral agreement he knew that he wasn't going to perform.” The judge added, however, that she “did not make a factual finding” on this issue and had “skipped over it because I thought that perhaps I would not have to make that factual finding ... depending on what the law was.”
Having rejected the government's theory of prosecution and identified appellant's...
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