Barkley v. United States

455 A.2d 412, 1983 D.C. App. LEXIS 289
CourtDistrict of Columbia Court of Appeals
DecidedJanuary 7, 1983
Docket81-922
StatusPublished
Cited by18 cases

This text of 455 A.2d 412 (Barkley v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barkley v. United States, 455 A.2d 412, 1983 D.C. App. LEXIS 289 (D.C. 1983).

Opinions

KERN, Associate Judge:

Appellant seeks a reversal of his conviction for grand larceny, D.C.Code 1981, § 22-2201, upon the grounds that (a) the jury’s verdict could have been based upon an improper theory of liability, and (b) the jury could have reached a nonunanimous verdict as to what crime of grand larceny the appellant committed.

In November 1978 the appellant sold a Sansui amplifier to the complaining witness for $300, which was to be paid at a later date. On Thanksgiving Day, believing he had not been timely paid for the amplifier, the appellant and his codefendant went together to the complainant’s apartment to collect payment. When they discovered that the complainant was not at home, they forced open the door, according to the government’s evidence, and entered the apartment. From that point forward, there is conflicting evidence as to exactly what occurred. However, it is agreed that a number of items of property were taken from the complainant’s apartment; among them the amplifier; a stereo speaker in which the victim had hidden $280; a television set; another speaker; another amplifier; and, possibly, a leather coat. The appellant was charged with burglary and grand larceny.

At trial, appellant conceded that he had taken “his” Sansui amplifier but argued [414]*414that he had a claim of right to it. Appellant contended further that he had neither taken nor participated in the taking of any other items, but rather his companion had removed them. The government presented evidence that the appellant had, indeed, helped take all of the items and argued that he had aided and abetted in additional ways, such as by carrying away the stolen property in his car. The jury had been instructed generally as to aiding and abetting and as to the defense of claim of right, with no specification that the claim of right defense was limited in application to the Sansui amplifier alone. The appellant was found not guilty of burglary but was convicted for the lesser included offense of unlawful entry and for the offense of grand larceny.1

Appellant first argues that his grand larceny conviction must be reversed because the verdict could have been reached on an improper basis. He argues, and the prosecution concedes on appeal, that for only two of the stolen items — the Sansui amplifier and the $280 cash — was there proof in the record that their value exceeded $100, the threshold value for a grand larceny conviction. Appellant suggests that, because he did not know (and could not be expected to know) that the $280 was hidden inside the speaker, he cannot, as a matter of law, be held liable for stealing this money even if the jury found that he participated in the stealing of the speaker. He contends that he should have been acquitted of stealing the $280 because he could never have formulated the specific intent to take it, and therefore that the $280 was improperly before the jury as a possible basis for the grand larceny conviction. Because the jury could have accepted his claim of right defense as to “his” Sansui amplifier and reached its verdict entirely on the improper basis of the $280, appellant maintains the conviction for grand larceny cannot stand.

Appellant argues, correctly, that whenever various alternative theories of liability are submitted to a jury, any one of which is later determined to be improper, the conviction cannot be sustained. This is because of the possibility that the verdict might have rested entirely upon the improper theory. See Chiarella v. United States, 445 U.S. 222, 237 n. 21, 100 S.Ct. 1108, 1119 n. 21, 63 L.Ed.2d 348 (1980); United States v. Gallagher, 576 F.2d 1028, 1046 (3d Cir.1978); Beck v. United States, 298 F.2d 622, 630-31 (9th Cir.1962).

In this case, even assuming that the $280 was properly put before the jury, there is another improper basis upon which the verdict may have rested. The government concedes that it did not present evidence that the value of any articles other than the Sansui amplifier and the cash exceeded $100. Yet it is possible that the jury may have disbelieved the complainant’s testimony that the $280 was ever hidden inside the speaker, or that the jury may have found that the appellant did not have the requisite specific intent to steal the $280, not knowing it to be inside the speaker. If that were the case, and if the jury had also accepted appellant’s claim of right defense with respect to the Sansui amplifier, the verdict of guilty for grand larceny would have been based entirely upon the theft of all the other articles for which there concededly was no proof of value. Therefore, the jury may have simply speculated on the value of these items in reaching a verdict of guilty on the grand larceny charge.

We agree that, because those articles of unproven value could have been the sole basis for the conviction, the grand larceny conviction cannot be sustained. Under these circumstances, we need not reach the question whether the theft of an object— the speaker — automatically confers liability, through a presumed intent to steal, for the theft of any objects hidden inside — the $280.

The question which follows, then, is whether this case should be remanded for a new trial or whether the evidence supports a verdict of guilty for the lesser offense of petit larceny.

[415]*415We conclude that the evidence is sufficient to support a conviction for the lesser offense of petit larceny. Even if the cash hidden inside the speaker were not a proper basis for conviction, the jury could not have reached a verdict of guilty of larceny entirely on the basis of a theft of only this money. To find that the appellant had stolen the $280, the jury would necessarily have found that the appellant had stolen the speaker in which it was hidden. Thus, any error in submitting the money to the jury would be harmless error so far as a verdict of guilty of some larceny is concerned. In sum, the jury would therefore have reached its verdict on one or both of two entirely proper theories of liability of larceny: (1) that the appellant stole the Sansui amplifier and had no right to do so, or (2) that he participated in the theft of all the other stolen property, which concededly had some value. There is thus no danger of a conviction for petit larceny being grounded on an incorrect or improper theory of liability, as there was in the Chiarella line of cases.

However, appellant also asserts that, because the jury was not required to reach unanimous agreement as to which of the various items the appellant stole, he was deprived of his right to a unanimous verdict. He argues that some jurors could have found him guilty of taking all of the property (rejecting his claim of right defense); some, the Sansui amplifier only; and others, all of the property except for the Sansui amplifier (accepting his claim of right defense). He is, in effect, therefore, arguing that there might not have been unanimous agreement that the" appellant committed any one criminal act; that there may still have been a reasonable doubt as to whether he took the amplifier without a right to do so and a reasonable doubt as to whether he participated in the taking of the other items.

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Barkley v. United States
455 A.2d 412 (District of Columbia Court of Appeals, 1983)

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Bluebook (online)
455 A.2d 412, 1983 D.C. App. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barkley-v-united-states-dc-1983.