Zellers v. US

• Decision Date: 12 August 1996
• Docket Number: No. 93-CF-550.,93-CF-550.
• Citation: 682 A.2d 1118
• Parties: Penny L. ZELLERS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

682 A.2d 1118

Penny L. ZELLERS, Appellant, v. UNITED STATES, Appellee.

No. 93-CF-550.

District of Columbia Court of Appeals.

Argued October 17, 1995.

Decided August 12, 1996.

William S. Rhyne, McLean, VA, appointed by the court, for appellant.

Kristan L. Peters-Hamlin, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Robert A. De La Cruz, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN, TERRY, and REID, Associate Judges.

TERRY, Associate Judge:

Appellant was tried on an indictment charging second-degree burglary¹ and first-degree theft.² The evidence showed that she had crawled through an open window and taken a television set, a microwave oven, and several compact discs from the complainant's residence at a military base. The jury found appellant guilty of first-degree theft and also found her guilty of unlawful entry,³ a lesser included offense of second-degree burglary. A few weeks later she was given a suspended sentence on each count and placed on probation for a total of three years, with 280 hours of community service.

Before this court appellant challenges the theft conviction, arguing that the government presented insufficient evidence to establish that the value of the stolen property was at least $250, as required for first-degree theft.⁴ She also contends that the trial court erred in refusing to allow the complainant to be impeached with a summary court-martial conviction. We hold that the evidence offered by the government (appellant presented none) was insufficient to prove that the value of the stolen goods met the $250 statutory requirement. We also hold that a summary court-martial conviction may not be used to impeach a witness under D.C.Code § 14-305(b) (1995). Accordingly, we affirm in part and reverse in part.

I

In the summer of 1991, Lance Corporal Jeffrey Velilla was on active duty with the Marine Corps and was living in base housing at Fort Bellevue Naval and Marine Corps Base, adjacent to Bolling Air Force Base in the District of Columbia. He spent part of the Fourth of July weekend at Virginia Beach, Virginia, about 200 miles from Washington. When he returned to the base on Monday afternoon, July 8, he found that his house had been broken into and that his television set, his microwave oven, and all of his compact discs (CDs), about thirty-five or forty of them, were gone. He immediately reported the break-in to the Naval Investigative Service (NIS), and NIS agents came to his home to take a report and dust for fingerprints.

Appellant Zellers, the wife of another Marine, was Corporal Velilla's neighbor.⁵ On Sunday, July 7, when she learned that Velilla was away at the beach, she decided to break into his house and steal a few things. After enlisting the aid of another neighbor, Selena Sanchez, Ms. Zellers entered Velilla's house through the front window⁶ while Ms. Sanchez waited outside. Zellers then passed the television set and the other items through the window to Sanchez, who carried them to Zellers' house. Afterwards the two women put all the stolen items in Zellers' car, and the next day they took them to a pawn shop in suburban Virginia. The proprietor of the pawn shop paid Zellers $50 for the television set, $10 for the microwave, and $70 for the compact discs.

Later that day, when Ms. Zellers saw the NIS agents dusting Velilla's house for fingerprints, she became anxious that she might be considered a suspect. She remembered that the pawnbroker had taken down information from her driver's license and feared that the pawned articles could be traced back to her. Ms. Zellers and Ms. Sanchez went once again to the pawn shop and tried to buy everything back. They had to pay $100 for the television and the microwave, however, and as a result they did not have enough money to redeem the CDs as well. The two women took the television and the microwave to a friend's house and left them there for a couple of days.

On Thursday, July 11, Ms. Zellers called Corporal Velilla and asked him to come to her house. When he arrived, she told him that she was the one who had burglarized his house, that she was sorry, and that he would get his property back. Velilla left and called one of the NIS agents to report that Zellers had confessed to the burglary. The next day, July 12, Velilla found the television set and the microwave sitting outside on his doorstep. Some time later Zellers called him again and said that she would not be able to return his CDs, but that she would instead give him a gun that she owned. They arranged to meet, and at that meeting Zellers gave Velilla a .38 caliber pistol as compensation for the CDs. Velilla again called NIS and reported what had happened.

Finally, on July 15, Ms. Zellers gave a written statement to an NIS agent. In it she admitted the burglary and said that she had stolen Corporal Velilla's property because she needed money. From her statement the NIS was able to locate the pawn shop, and there an agent found some, but not all, of the missing CDs.

Corporal Velilla testified that he had purchased the CDs for approximately $15 each, at various times ranging from a few months to a little more than a year before the theft. He also said that the television set was less than two years old when it was stolen. The government introduced into evidence the original receipt, dated October 13, 1989, which showed that the purchase price of the television set was $640. Velilla also said that he had bought the microwave oven for $99; another receipt, dated October 18, 1988, corroborated his testimony and established the date of purchase. Photographs of the television set, the microwave, and the recovered CDs were introduced into evidence, along with the two receipts. In sum, the evidence produced by the government showed that all of the items stolen had been purchased by Velilla, at various times, for a total price of $1,339.

Appellant presented no evidence.

II

At the close of the government's case, defense counsel moved for a partial judgment of acquittal, arguing that the government had failed to prove that the value of the stolen items was $250 or more. The court denied the motion. Appellant now contends that this ruling was error and urges us to remand the case with directions to reduce her conviction to second-degree theft, a misdemeanor with a maximum penalty of 180 days in jail. See D.C.Code § 22-3812(b).⁷

When the value of property is at issue in a criminal case, there are different methods of proving value,⁸ and no one method is preferred over others. Although expert testimony is admissible and in some cases may be sufficient without additional proof, we have refused to require expert testimony to establish value. In re R.D.J., 348 A.2d 301, 304 (D.C.1975). We have also held expressly that "the market value of a chattel ... may be established by the testimony of its nonexpert owner." Saunders v. United States, 317 A.2d 867, 868 (D.C.1974) (citation omitted). Our case law reflects these principles. We have held, for example, that the testimony of the owner that the purchase price of the stolen goods was more than five times the statutory minimum, "the fact of their very recent purchase and mint condition at the time of the theft," and the fact that "two of the stolen items, a .38 caliber pistol and a camera, are not items of prompt depreciation or obsolescence" were sufficient to prove value in a prosecution for grand larceny (the statutory predecessor of what is now first-degree theft). In re J.F.T., 320 A.2d 322, 325 (D.C.1974). Likewise, we affirmed a conviction of receiving stolen property of a value of $250 or more when the property was a Ford automobile of "recent vintage" and fully operable, but the only other evidence relevant to the issue of value was a series of photographs which showed that the vehicle was in good condition. Curtis v. United States, 611 A.2d 51, 52 (D.C.1992).

On the other hand, we have reversed a grand larceny conviction when the only evidence of value was testimony that the stolen item, a television set, was purchased "approximately fourteen to fifteen months prior to the crime for $300 to $400 and that, when stolen, it was in `almost mint' condition and worked well." Moore v. United States, 388 A.2d 889, 891 (D.C.1978). We also reversed a grand larceny conviction when the only evidence of value was the owner's testimony that his stolen golf clubs had cost $312 and "that, at present, he could get at least $50 for them," coupled with "the physical presence" of the golf clubs in court. Boone v. United States, 296 A.2d 449, 450 (D.C.1972). See also Eldridge v. United States, supra note 8, 492 A.2d at 883 (testimony by store detective as to price marked on price tags of stolen merchandise "was incompetent to prove the value of the merchandise to which those tags were attached"); United States v. Thweatt, 140 U.S.App. D.C. 120, 126-127, 433 F.2d 1226, 1232-1233 (1970) (testimony of owner stating purchase price of stolen clothing was insufficient to prove value when clothing was old and worn, and some of it had been patched and repaired).

The principle underlying all of these cases is the same: that the evidence must be "sufficient to eliminate the possibility" that the jury's verdict was "based on surmise or conjecture" about the value of the property. Boone, supra, 296 A.2d at 450; see United States v. Wilson, 284 F.2d 407, 408 (4th Cir.1960). But we have been very strict in requiring affirmative proof of value, especially when the value alleged is close to the line dividing one offense from another:

We have noted recently a continuing indication of failure in governmental proof sufficient to establish a felony rather than a misdemeanor in larceny cases of this nature. Because of the important difference between a misdemeanor and a felony conviction, this court has been careful to require

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