Grayson v. United States

953 A.2d 327, 2008 D.C. App. LEXIS 332, 2008 WL 2828490

• Court: District of Columbia Court of Appeals
• Decided: July 24, 2008
• Docket: 06-CM-1419
• Status: Published

Opinions

PER CURIAM:

The majority of the court has concluded that the evidence is sufficient to sustain appellant’s conviction of second-degree theft. To be sure, as Judge Schwelb demonstrates in Part III A of his opinion, appellant did not confess to the crime. However, we are not prepared to say that, when the remaining evidence is “view[ed] ... in the light most favorable to the prosecution, [no ] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We will not attempt to set forth the evidence in detail — Judge Schwelb’s opinion does that. However, it was undisputed that, despite preliminary discussions, a sale of the jacket had not been completed before Ms. Swann left town and that appellant nevertheless entered Ms. Swann’s apartment and took the jacket while she was out of the city. Although appellant asserted that she had done so with permission, the trial court, as the judge of credibility, disbelieved that assertion and instead credited Ms. Swann’s testimony that she had not given any such permission. The court also rejected appellant’s testimony that she paid $75.00 toward the purchase of the jacket before Ms. Swann left town, crediting Ms. Swann’s “testimony that the defendant never paid her any money....” Moreover, the finder of fact concluded that appellant changed her story between her first and second interviews with the detective, betraying her consciousness of guilt. These assessments of credibility, as well as Ms. Swann’s testimony, supported the trial court’s finding that appellant took the jacket with criminal intent.

Nevertheless, the record does not support the trial court’s statement that “we have the defendant’s confession that she took the jacket without the complaining witness’ permission.” Perhaps the court meant to say that “the defendant admitted that she took the jacket, and I find that she did so without the complaining witness’s permission.” But we cannot assume that such an important comment on the evidence was a mere slip of the tongue. Because the reference to a confession is clearly erroneous, “the possibility exists that in finding guilt, the trier of fact was swayed by erroneous factual matter.” In re C.J. III, 514 A.2d 460, 464 (D.C.1986). Therefore, “we are constrained to remand this case for the court to weigh the evidence in the record afresh and render a new verdict.” Shewarega v. Yegzaw, 947 A.2d 47, 54 (D.C.2008). See also National Housing P’ship v. Municipal Capital Appreciation Partners I, L.P., 935 A.2d 300, 321 (D.C.2007) (remanding “for reconsideration in light of all the evidence of record”). The court’s findings on remand shall be in writing and non-conclusory in nature.

Vacated and remanded.