Jessica A. Lihlakha v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-CM-606

JESSICA A. LIHLAKHA, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the

District of Columbia,

(CMD-16417-11)

(Hon. Truman A. Morrison III, Trial Judge)

(Argued November 7, 2013 Decided April 24, 2014)

R. Michael Labelle 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.

Opinion for the court by Senior Judge FERREN.

Concurring opinion by Associate Judge EASTERLY at page 25.

2

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

1

D.C. Code § 22-3232 (a) & (c)(2) (2001 & Supp. 2011). The RSP statute

has since been amended, see infra note 4.

2

D.C. Code § 22-3302 (2001 & Supp. 2009).

3

Counsel for both parties spell appellant‟s last name in the briefs as

“Lihlakha.” During her testimony at trial, however, appellant spelled her name

“Lihalakha,” according to the stenographer. Absent any motion to correct the

spelling, we have relied on the appellate briefs.

3

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

4

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

5

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

6

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

7

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

4

See also In re R.K.S., 905 A.2d 201, 219 (D.C. 2006); Moore v. United

States, 757 A.2d 78, 82 (D.C. 2000). Both R.K.S. and Moore recognize another

element – “the property had a value of $250 or more” – which has been supplanted

by amendment to the statute changing the language for a misdemeanor to: “the

stolen property has some value.” D.C. Code § 22-3232 (c)(2).

Furthermore, the “intent to deprive” element has since been deleted from the

statute with the passage of D.C. Law 19-120. See D.C. Code § 22-3232 (a) (2012

Repl.). The amended statute did not become effective until April 20, 2012 (a week

after judgment was entered in this case), whereas Lihlakha‟s tender of the stolen

laptop to Investigator Neville (in lieu of Banks) occurred on August 17, 2011, four

(continued . . .)

8

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

(. . . continued)

days after Lihlakha first contacted Banks. Therefore, the prior version of the

statute, which included the intent to deprive element, applies here. See Jones v.

United States, 719 A.2d 92, 94 (D.C. 1998) (“[F]aithful to our best knowledge of

the original understanding of the Ex Post Facto Clause[,] [l]egislatures may not

retroactively alter the definition of crimes or increase the punishment for criminal

acts.” (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990))).

5

It is not clear whether Lihlakha‟s admission to Investigator Tarpley that

Tony “had a stolen laptop” was referring to the HP laptop or to Banks‟s laptop,

which she told Banks she had obtained from a “guy” (whom Lihlakha later

identified during her testimony as Tony) at the “same place” where she obtained

the HP in a “room where the other computers were.” Either way, the computers all

came from the same source, and Lihlakha does not contest on appeal that she knew

the computer at issue was stolen.

9

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

law6 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

6

Godwin v. United States, 687 F.2d 585 (2d Cir. 1982).

7

Model Penal Code § 223.6 (1).

10

for its return, fully contemplating that Lihlakha “would possess property that

[Banks] had reported as stolen.”

III.

A.

Initially, we must resolve whether counsel at trial adequately preserved the

arguments that Lihlakha now presents on appeal. After a bench trial, in the

absence of a motion for judgment of acquittal at the end of trial, the defendant‟s

not guilty plea is enough in itself to preserve for appeal all challenges to

sufficiency of the evidence, whether specified at trial or not.8 There was no such

acquittal motion here. Sufficiency of the evidence, of course, means sufficient for

conviction of the charge, including sufficiency of a legally available defense.

Before we embark on a sufficiency analysis, therefore, we must evaluate the legal

validity of the two defenses, proffered on appeal, which Lihlakha contends the trial

court erroneously failed to recognize: return-for-reward (unilateral contract) and

consent.

8

See Newby v. United States, 797 A.2d 1233, 1238 & n.2 (D.C. 2002).

11

Of these two defenses, it is clear that Lihlakha did not claim “consent” at

trial. Our review of consent, therefore, is limited to plain error,9 and we are

satisfied that the trial court did not plainly err in this respect. This jurisdiction has

never recognized a consent defense in this context; indeed, to get there, counsel

would have us convert for use in reward cases a standard instruction on alleged

consent to sexual acts, otherwise criminal – an analogy we find wholly inapposite.

Furthermore, any consent by Banks to Lihlakha‟s actions would not have been

fully informed, given Lihlakha‟s failure to disclose her relationship with Tony

(which might well have discouraged mutual dealing). Finally, any meaningful

argument invoking consent is inherent in the elements of Lihlakha‟s return-for-

reward (unilateral contract) defense, to which we now turn.

Without elaboration, counsel did suggest the return-for-reward defense at

trial. In closing argument, while contending primarily that Lihlakha did not have

reason to believe the computer was stolen, counsel also relied on what the

government has called “the law of reward” to nullify Lihlakha‟s “intent to deprive”

Banks of her property or its benefit. Said counsel:

9

See Arthur v. United States, 986 A.2d 398, 404 (D.C. 2009) (citing United

States v. Olano, 507 U.S. 725, 732 (1993)).

12

I think that it is a situation where a young lady was trying

to do what she thought was the right thing to try and

return this computer[,] and also there was a motive out of

it where she could try and get a few dollars as a result of

her efforts.

Trial counsel therefore articulated, albeit quite generally, the legal theory on which

the RSP conviction here will ultimately turn – as formalized by counsel in

Lihlakha‟s brief on appeal.

B.

Appellate counsel relies on cases from this jurisdiction recognizing that

“rewards are governed by the law of [unilateral] contracts,”10 meaning, in this

context, that any agreement for a reward between the owner of stolen property and

someone who has come to possess it would be non-binding until the possessor has

satisfied all the conditions for the reward announced by the owner.11 Counsel

maintains that such a contract was satisfied here, free of criminal taint, upon

Lihlakha‟s attempted delivery of Banks‟s laptop. And that contract was valid, says

counsel, because “possession of [stolen] property with the consistent intent of

10

Glover v. District of Columbia, 77 A.2d 788, 790 (D.C. 1951); see

Glover v. Jewish War Veterans of United States, 68 A.2d 233, 234 (D.C. 1949).

11

See SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW

OF CONTRACTS § 1:17 (4th ed. 2007).

13

obtaining it to return it to the owner for a freely advertised reward” will negate “the

mental intent element of the crime of receiving stolen property.”

Lihlakha stresses, therefore, that she did not intend to deprive Banks of her

laptop, even though she knew it was stolen, because she merely obtained the laptop

“with the intent to return it in exchange for the reward.” This court has never

considered the relevance, if any, of returning stolen property for a reward when

defending a charge of RSP. Other courts have done so, however, beginning with a

premise derived from the common law, as codified in the Model Penal Code:

“[T]he offense is established by knowing possession of stolen property „unless the

property is received, retained, or disposed with purpose to restore it to the

owner.‟”12 The “unless” clause is where interpretation begins. Most courts stress

that to avoid conviction of RSP, one must return the property to its rightful owner

12

Godwin v. United States, 687 F.2d 585, 588 (2d Cir. 1982) (quoting

Model Penal Code § 223.6 (1)); see State v. Barker, 346 S.E.2d 344, 349 (W. Va.

1986) (mere receipt of stolen goods knowing them to have been stolen is not itself

a crime, “as where the property is received with the intent of restoring it to the

owner without reward”).

14

“immediately,”13 or in lieu of the owner to “law enforcement officials,”14 and in

any event must do so “unconditionally.”15

The courts appear uniformly to uphold RSP convictions if the possessor of

property known to be stolen expressly conditions return of the property on receipt

of compensation.16 Courts, however, have come to distinguish between demanding

payment for the return of stolen property and returning stolen property in response

13

United States v. Calkins, 906 F.2d 1240, 1247 (8th Cir. 1990); State v.

Simonson, 214 N.W.2d 679, 681 (Minn. 1974); State v. Lusher, 708 S.W.2d 188,

189-90 (Mo. Ct. App. 1986).

14

Calkins, 906 F.2d at 1247.

15

Id.; Simonson, 214 N.W.2d at 681; see Baker v. State, 25 S.W. 603, 605

(Ark. 1894).

16

See, e.g., United States v. Mardirosian, 602 F.3d 1, 7-8 (“We tread no

new ground in declaring that the act of demanding a fee for the return of stolen

property is unlawful.”); Calkins, 906 F.2d at 1247 (affirming jury instructions

stating that “[a] person who knowingly possesses stolen goods has no right to

demand compensation or a reward from the owner as a condition to returning the

goods, and he may not withhold or conceal the goods until a reward is made

available”); People v. Wielograf, 161 Cal. Rptr. 680, 684-85 (Cal. Ct. App. 1980)

(evidence sufficient for conviction of RSP when defendant permitted storage of

stolen vehicle in his garage for several days and suggested to thieves that vehicle

be turned in for reward); People v. O’Reilly, 138 N.Y.S. 776, 783 (N.Y. App. Div.

1912) (defendant guilty of RSP after he held onto stolen property and returned it

only when reward had been paid); People v. Dadon, 640 N.Y.S.2d 425, 427 (N.Y.

Crim. Ct. 1996) (motion to dismiss information denied where “accusatory

instrument here alleges that defendants sought a reward as a condition of returning

the property”).

15

to an offer of a reward.17 These courts, reflecting the common law, eliminate the

return-for-reward mentality from criminal intent if the evidence shows that “the

reward has been announced or is believed to have been announced before the

property is possessed or agreed to be possessed;”18 “that the person claiming the

reward had nothing to do with the theft”;19 and, as we have noted, that the person

17

See Calkins, 906 F.2d at 1247 (“There is a distinction between hoping for

or expecting a reward upon restoration of stolen property . . . and unlawfully

withholding or failing to restore stolen property until a reward is paid or made

available.”); Lusher, 708 S.W.2d at 189-90 (evidence insufficient for RSP when

owner of stolen fence posts asked defendant to find them and, when defendant did

so, gave defendant money to buy them from individual who had purchased them

from thief, and defendant returned them forthwith to owner); State v. Lopez, 787

P.2d 1261, 1264 (N.M. Ct. App. 1990) (public policy encouraging private

investigators to ferret out and return stolen goods supports availability of “intent-

to-return defense”; thus, prospect of reward does not defeat defense to RSP, as

long as property was never held “for any purpose other than to return goods to

owner,” such as “to use them or sell them to a fence”); Dadon, 640 N.Y.S.2d at

426 (“[W]here a person offers to return the property for a reward, the proper

analysis is whether such conduct establishes an intent to appropriate the property to

the possessor.”).

18

Godwin v. United States, 687 F.2d 585, 588 (2d Cir. 1982); cf.

Mardirosian, 602 F.3d at 4; Baker, 25 S.W. at 605; Dadon, 640 N.Y.S.2d at 427.

19

Godwin, 687 F.2d at 588; see Calkins, 906 F.2d at 1247; Lopez, 787 P.2d

at 1264 (RSP conviction supported by evidence that defendant was present at time

of theft and worked in concert with alleged thief to return property for reward).

16

“immediately and unconditionally turned over the goods to the rightful owner or to

law enforcement officials.”20

C.

After hearing the parties‟ opening statements, the trial judge observed:

[S]he learns from fliers that a computer has been stolen.

She has it in her possession. She seeks to get money for

it. She‟s on notice that it‟s stolen and doesn‟t turn it over

to the police or anybody else until she arranges a meeting

to profit by it. If that‟s the way the evidence comes out,

it seems to me unless I am missing something that that

would inexorably establish her guilt beyond a reasonable

doubt.

Thus, the judge seemed to believe that the proffered behavior of responding to a

previously offered reward was enough in itself to establish the “intent to deprive.”

At that point, therefore, the judge did not appear to recognize the possibility that

expectation of a reward for return of stolen property could be consistent with

innocent intent. Nor did the judge do so later when defense counsel argued rather

opaquely the return-for-reward defense in his closing statement.

20

Calkins, 906 F.2d at 1247; see Simonson, 214 N.W.2d at 681-82

(withholding or concealing stolen property with intent to return it only upon

payment of reward constitutes intent to deprive, because “[o]nce defendant learned

that property was stolen, he became obligated to immediately and unconditionally

return the property to the owner or at least make it available for him to pick up”).

17

On appeal, however, the government does recognize a return-for-reward

defense, although in a curious, very limited way. The government acknowledges

that if the evidence shows that the possessor of property, known to be stolen,

intended to return it to the owner even without the reward, then the possessor‟s

expectation of a reward, as advertised, could not be understood as an unlawful

condition on the return.21 Emphatically, however, government counsel argued that

this case does not reflect that limited exception. According to the government,

while not expressly conditioning return of the laptop on the announced reward,

Lihlakha‟s behavior was tantamount to imposing an express, and thus unlawful,

condition.22

21

At oral argument, government counsel acknowledged:

You can return stolen property to the rightful owner in

the hope of getting a reward and perhaps an expectation

that you may get a reward . . . . [But] [y]ou always have

to have the intent to return the property even if you hope

or expect to get a reward. . . . If she always has the intent

to return the stolen property, there wouldn‟t be the

requisite mens rea.

22

Government counsel also argued:

There is evidence in the record that appellant would only

return the property if she was promised and paid the

reward. . . . [T]here is evidence in the record from which

a reasonable finder of fact would infer that she would not

return the computer until she received the reward. . . .

(continued . . .)

18

We believe the government is right to acknowledge that mere expectation of

a reward upon swiftly returning known stolen property to the owner or designee

does not automatically establish the intent required by our statute for conviction of

RSP. However, the government‟s understanding of the return-for-reward defense

is based on a speculative scenario not only absent on the demonstrable facts of

record but also unworkable on the hypothetical facts the government posits. The

government presupposes proof of an intent that cannot in all likelihood be

established, that is, what the possessor of stolen property would have done if the

owner had revoked the reward – but did not. As to this case, more specifically, the

government argues that Lihlakha brought known stolen property to the owner,

Banks, who had announced a reward, but that there can be no reasonable doubt that

if Banks had refused to pay the reward – a situation that never occurred (because

the police intercepted the tender) – Lihlakha would have withheld the computer.

On this record, there is no way to know what Lihlakha‟s behavior would have been

in that situation – a hypothetical revocation of an announced reward that allegedly

(. . . continued)

[S]he would only return [the laptop] for the reward that

was offered. . . . She doesn‟t [say that] I was always

going to give you back your computer.

19

would have transmuted Lihlakha‟s coming forward with the laptop into a

postulated demand for payment upon returning it.

The legal issue, therefore, is not what Lihlakha would have done had the

facts unfolded differently but, rather, whether the District‟s RSP law recognizes

that a motive to obtain an announced reward is compatible with an intent to return

known stolen property to its owner without imposing a forbidden condition that

“deprive[s]” the owner of “the right to the property or [its] benefit.”

We perceive such compatibility in § 223.6 (1) of the Model Penal Code, as

elaborated by the Second Circuit‟s decision in Godwin v. United States23 and

refined by other case law.24 We draw upon these understandings and conclude that

a defendant may establish a return-for-reward defense that negates the requisite

intent for receiving stolen property if the evidence shows that:

(1) the reward had been announced, or was believed to

have been announced, before the property was possessed

or agreed to be possessed; (2) the person claiming the

reward had nothing to do with the theft; (3) the possessor

returned the property without unreasonable delay to the

23

687 F.2d 585 (2d Cir. 1982).

24

See supra notes 16-20.

20

rightful owner or to a law enforcement officer; and (4)

the possessor imposed no condition on return of the

property.25

On this view of the law,26 there is a problem here for the government. The

trial judge made no express finding on whether Lihlakha‟s returning the property

in response to a reward negated her criminal intent. We therefore have a concern:

the trial judge elaborated no further on his understanding of RSP law in reward

cases than he expressed at the time of opening statements; thus, he may well have

failed to consider all relevant aspects of a defendant‟s motivation under the law

applicable to RSP.27 We turn, therefore, to the record to help inform our

disposition of the case.

25

See supra notes 16-20.

26

Traditionally, RSP has been a specific intent crime. See, e.g., DiGiovanni

v. United States, 580 A.2d 123, 126 (D.C. 1990) (noting that “[t]o properly instruct

the jury on the intent required for conviction of receiving stolen property,” a trial

judge must include an instruction on specific intent). However, as noted earlier,

see supra note 4, a recent amendment to the RSP statute (inapplicable here) deleted

the “intent to deprive” element. We express no opinion on how that amendment

would affect the availability of a defense claim that the accused had obtained and

possessed stolen property in order to return it to its rightful owner (whether for a

reward or otherwise).

27

This concern is intensified by the fact that the trial judge wondered why

the government had not charged Lihlakha with theft, not mere RSP. The judge

remarked after opening statements: “I don‟t know why they haven‟t charged theft

since if she knew she had somebody else‟s property, she had a duty to turn it in

(continued . . .)

21

On the one hand, we cannot say that Lihlakha‟s testimony necessarily

suggests that she, herself, imposed a condition on return of the laptop beyond mere

expectation of the reward that Banks had announced.28 We therefore cannot say

that her testimony was conclusive enough to demonstrate, as the government

contends, that she was assuredly conditioning return of the laptop to Banks,

contrary to the return-for-reward defense we recognize here.

On the other hand, from the testimony of Banks, Investigator Tarpley, and

Lihlakha herself there is evidence sufficient for a finding that, by assisting Tony,

Lihlakha had a culpable “intent to deprive” the rightful owner of her laptop

(. . . continued)

under the law of the District of Columbia not to seek to profit . . . from it, and I

think that would make out the elements of theft, but that isn‟t the charged offense.”

28

Lihlakha testified that she had come into possession of the computer

because “someone told me that there was a way I could make money in returning

[it],” and that “[t]he only reason I got involved . . . was for the reward.” She

further testified: “[I]t‟s [Banks‟s] property. I didn‟t want it. I‟d rather give it to

[her] so that I can go on my way. We can work out [her] paying me later. That

was my standpoint, like it‟s not that urgent that I need the money right now.” On

cross-examination, Lihlakha testified that: “[Banks] was telling me if I don‟t pay

you today how do you know that I‟ll pay you. I told her that the money wasn‟t

why I was helping her. I‟m helping you because we‟re students, like I understand

your plight. . . . [T]he reward was an incentive but it was not the only reason why I

was helping her. . . . In my mind if I can help anyone, that‟s how Howard is, that‟s

the culture that we‟re brought up in that [at] Howard you stick together.”

22

because she had something “to do with the theft.” Specifically, based on the

evidence of how Lihlakha came across Banks‟s laptop and her plan to split the

reward with Tony, it would be reasonable for a fact-finder to infer that Lihlakha

was aware that she was enabling either the thief or a fence to profit illegally from

the theft, and thereby deprive Banks of the right to her property.29 The trial judge,

moreover, expressed an unequivocal belief that Lihlakha‟s testimony, apparently

“fashioned on the fly,” lacked credibility. And, aside from discarding Investigator

Brown‟s testimony relating to the scope of the barring notice, the trial court found

“no other reason to question the testimony” of the government‟s witnesses.

We note, however, that even though the evidence may be sufficient to

sustain a conviction, it does not compel it. As an appellate court, we do not make

findings of fact and therefore may not rule on our own reading of the evidence

29

There is evidence that Tony, a local drug dealer whom Lihlakha had been

dating, showed her a “sign” or “flyer” indicating a reward for a missing laptop; that

Lihlakha obtained an HP laptop “for the low” from a “guy” she later identified as

Tony; that when Banks said that the reward would be $1,000 but that the HP was

not hers, Lihlakha told Banks she would “keep an ear out to see if your . . . laptop

comes up”; that Lihlakha then went to see the “guy” (Tony) at “the same place

where she had gotten the HP” and found in “the room where the other computers

were” two Mac laptops, one of which belonged to Banks; and that Tony had told

Lihlakha “he had a stolen laptop” for which they could split the reward, $300 for

Tony, $700 for Lihlakha.

23

unaided by the trial court‟s findings as to the return-for-reward defense.30 Nor may

we assume at this time that the trial judge‟s skepticism about Lihlakha‟s credibility

would determine the verdict when the judge evaluates the evidence anew in light of

that defense.31 Accordingly, we remand the record to the trial court for resumed

consideration, and to make findings of fact responsive to the legal criteria we

announce here.32

30

“In a bench trial, the judge, as fact finder, has the right to make credibility

determinations, weigh the evidence, and draw reasonable inferences of fact.”

Joiner-Die v. United States, 899 A.2d 762, 764 (D.C. 2006). However, this court –

as in this case – reviews questions of law de novo. See United States v. Felder,

548 A.2d 57, 61 (D.C. 1988).

31

In addition, this court has observed: “A defendant‟s unexplained (or

unsatisfactorily explained) possession of recently stolen property may support a

conviction of larceny . . . or receiving stolen property.” Byrd v. United States, 598

A.2d 386, 393 (D.C. 1991) (en banc) (citation omitted) (citing Blackledge v.

United States, 447 A.2d 46, 50 (D.C. 1982)). This announced “presumption,” id.,

(or, more accurately, permissible inference), however, does not compel a

conviction, which rests, as always, with the fact-finder.

32

See D.C. Code § 17-306 (2012 Repl.) (“The District of Columbia Court

of Appeals may . . . remand the cause and . . . require such further proceedings to

be had, as is just in the circumstances.”); see also McFerguson v. United States,

770 A.2d 66, 76-77 (D.C. 2001) (remanding record for factual findings relevant to

application of inevitable discovery doctrine and retaining jurisdiction over appeal);

Foster v. United States, 699 A.2d 1113, 1115-16 & 1116 n.5 (D.C. 1997)

(remanding rather than reversing outright where the evidentiary record was

“sufficient to support a finding of guilt but insufficient on the precise grounds

apparently relied upon by the trial court” following a bench trial). Although in a

record remand the trial court, lacking jurisdiction, “does not . . . have the authority

to amend the ruling that is on appeal,” Bell v. United States, 676 A.2d 37, 41 (D.C.

1996), it would not amend the ruling merely by making findings, as requested, on

(continued . . .)

24

IV.

The evidence is sufficient to support Lihlakha‟s unlawful entry conviction.

The trial judge discredited Investigator Brown‟s testimony that the barring notice

extended to Howard‟s entire campus, but Lihlakha herself did not dispute Brown‟s

testimony that he had given her a copy of the barring notice, which excluded her

from the dormitory towers (where Banks lived) and which the court found “speaks

for itself.” Moreover, Lihlakha testified that a Howard dean had warned her “not

to go to” the dormitory towers. Finally, the trial judge credited Banks‟s testimony

in which she stated that she saw Lihlakha standing outside of her dorm room, in

violation of the barring notice.33

*****

For the foregoing reasons, we affirm Lihlakha‟s conviction for unlawful

entry but remand the record for factual findings on the return-for-reward defense to

(. . . continued)

the return-for-reward defense. If the trial court were to accept the defense and

transmit that finding to us, a reversal would be attributable to this court, having

retained jurisdiction all along.

33

See Kelly v. United States, 348 A.2d 884, 885-87 (D.C. 1975) (violation

of validly issued barring notice of which defendant had notice constituted unlawful

entry).

25

the RSP charge consistent with this opinion. We perceive no basis for augmenting

the record with additional evidence, and we retain jurisdiction, awaiting return of

the trial court‟s findings.

So ordered.

EASTERLY, Associate Judge, concurring: I join the majority opinion in

recognizing a return-for-reward defense. With respect to the majority‟s delineation

of that defense, I write only to ensure that there is no confusion about the fourth

element, i.e., that “the possessor imposed no condition on return of the property.”

Majority Opinion at 20. Seeking a previously announced reward in exchange for

the return of stolen property is not such an impermissible condition; rather, what an

individual returning stolen property for a reward may not do is “impose a condition

on return” of the stolen property beyond the promised reward. See Majority

Opinion at 21.

I also agree with the majority that there is sufficient evidence from which a

fact-finder could reject a return-for-reward defense in this case, although I think it

is a close call. We acknowledge above that a defendant is not entitled to a return-

for-reward defense if she had “something to do with the theft,” Majority Opinion at

22, a disqualification that extends beyond assistance with the act of stealing the

26

property to assistance with the sale of stolen property for profit, otherwise known

as fencing. Here, admissions Ms. Lihlakha made to Ms. Banks and Investigator

Tarpley34 support the reasonable inference that Tony, a.k.a. “Kool-Aid,” the “guy”

from whom Ms. Lihlakha obtained the Mac laptop, was acting as a fence.

Although Ms. Lihlakha identified Tony as a drug dealer, one could infer that he

had a side business in selling computers35 belonging to other people.36 By agreeing

to split the reward for the stolen Mac laptop with Tony, Ms. Lihlakha arguably

affiliated herself with his illegal business. Thus I agree that a fact-finder could find

beyond a reasonable doubt that Ms. Lihlakha, through her dealings with Tony, had

“something to do with” fencing stolen property, thereby losing her claim to a

return-for-reward defense.

Lastly, I agree with the majority that our determination that the evidence is

sufficient does not obviate the need for findings from the trial court regarding Ms.

Lihlakha‟s entitlement to a return-for-reward defense. But on the subject of

34

Unlike the majority, I do not think we can rely on Ms. Lihlakha‟s trial

testimony to demonstrate that the evidence was sufficient. The trial court

discredited this testimony. If the trial court thought Ms. Lihlakha‟s testimony was

entirely unreliable, I do not see how we can point to what she said at trial as

affirmative evidence on which a fact-finder could rely to find her guilty.

35

He sold Ms. Lihlakha the HP laptop “for the low.”

36

For example, the multiple “Lauren” laptops.

27

remand, I do not understand why we are remanding only the record to the trial

court and not the case. In so doing we retain jurisdiction, and thereby preclude the

trial court from altering its verdict, see Bell v. United States, 676 A.2d 37, 41 (D.C.

1996), even as we acknowledge the possibility that, the sufficiency of the evidence

notwithstanding, the trial court might reach a different conclusion about Ms.

Lihlakha‟s guilt when it “evaluates the evidence anew in light of” this newly

acknowledged defense. Majority Opinion at 23. Moreover, I see no point in

retaining jurisdiction, since the only legal issue before us is sufficiency, and we

have, with this opinion, resolved that issue.