i.

AMENDED No. 99-CF-1153

STEVEN BENTON, APPELLANT,

n
[

DISTRICT OF COLUMBIA COURT OF APPE

()\~ 3D J 2002
DISTRICT Of COLUMBIA COURT Of APPEALS

v.
UNITED STATES, APPELLEE.

F3712-98

Appeal from the Superior Court of the District of Columbia Criminal Division (Hon. Ronna Lee Beck, Trial Judge) (Argued May 2, 2002 Before SCHWELB, RUIZ and REID, Associate Judges. :MEMORANDUM OPINION AND JUDGMENT Appellant Steven Benton was charged with two counts of first-degree theft, in violation ofD.C. Code 22-3811, -3812 (a),l for the unlawful taking of property from a home in the Northwest quadrant of the District of Columbia. After a jury trial, Mr. Benton was convicted of one count of first-degree theft in relation to the taking of property exceeding $250 in value, and one count of second-degree theft, a lesser-lncluded offense of the additional count offirst-degree theft originally charged in the indictment,2 Mr. Benton's primary contentions on appeal concern his claims that the trial court impermissibly admitted "other crimes evidence." We affirm the judgment of the trial court. FACTUAL SUMMARY Footnote #3 reflects the only amendment to this Memorandum Opinion and Judgment. The remainder of the Memorandum Opinion and Judgment is unchanged.
I

Decided May 30,2002)*

Subsequent codification at D.C. Code 22-3211, -3212 (a) (2001).

2 The trial court sentenced Mr. Benton to concurrent terms ofincarceration oftwo to six years for the first-degree theft and 180 days for the second-degree theft. The trial court also recommended mental health treatment and ordered Mr. Benton to pay $100 under the Victims of Violent Crime Compensation Act.

This case surrounds the s}lblet ofa house owned by Kunio and Marie Tanabe, located at 4306 Fessenden Street. Mr. and Ms. Tanabe (the "homeowners") rented the home to Patrick Auffret (the "renter"), who in tum sublet the property to Steven Benton and Tracey Alston3 in September 1997. The government's evidence showed that Mr. Benton and Ms; Alston posed as Brent Bell and Tracey Bell, a married couple, while negotiating the initial sublet arrangement with the renter and a subsequent lease agreement directly with the homeowners. Appellant claimed that his wife was depressed, their home in McClean, Virginia, had burned down, and that they lost a young daughter in an automobile accident. Mr. Benton also claimed to be a member of the Foreign Service. Although several witnesses testified at trial, including appellant's half-brother, there were no witnesses who could confirm Mr. Benton's background. Upon entering the original sublet, the parties agreed that Mr. Auffret would leave his furniture and other belongings in the home until Mr. Benton and Ms. Alston (posing as Mr. and Mrs. Bell) acquired furniture oftheir own. Through a series of intentional delays, and eventually by changing the locks on the house, Mr. Benton and Ms. Alston prevented Mr. Auffret from retrieving much ofhis property, and refused to return his furniture. Mr. Benton told one ofthe homeowners that he had purchased Mr. Auffret's furniture from him. As Mr. Auffret was preparing to notify the police about the situation, Mr. Benton was arrested and detained in connection with an unrelated event. Mr. Benton and Ms. Alston were evicted during the week of the arrest. Mr. Benton, who remained in detention, arranged for his half-brother to assist in the packing and moving process from the house on Fessenden Street. Evidence produced at trial established that during the week of the move approximately twenty telephone calls to the Fessenden Street home were placed from the facility where Mr. Benton was detained. Mr. Benton's half-brother testified that he spoke with appellant at least twice during the moving process, at which time Mr. Benton gave him instructions regarding what to pack. Numerous items belonging to Mr. Auffret and several of the homeowners' air conditioning units were taken during the move. A portion of Mr. Auffret's property was found in a Maryland apartment in Ms. Alston's possession approximately one month later.
ANALYSIS

Mr. Benton primarily contends that the trial court impermissibly admitted evidence at his trial concerning: (1) the fact ofhis prior arrest on an unrelated matter, (2) government witnesses' awareness that detectives were searching for him, and (3) the fact that his telephone calls to the Fessenden Street home during the week ofthe move were placed from a detention facility. Mr. Benton argues that the prejudicial effect of the evidence substantially outweighed its limited probative value.

Ms. Alston, originally a co-defendant in this case, is not a party to this appeal.

"A decision on the admissibility ofevidence ... is committed to the sound discretion ofthe trial court, and we will not disturb its ruling absent an abuse of discretion." Smith v. United States, 665 A.2d 962,967 (D.C. 1995) (references omitted). "[E]vidence ofprior bad acts that are criminal in nature and independent of the crime charged [may not be] offered to prove predisposition to commit the charged crime ...." Johnson v. United States, 683 A.2d 1087, 1092 (D.C. 1996) (en banc) cert. denied, 520 U.S. 1148 (1997).; see also Drew v. United States, 118 U.S. App. D.C. 11,331 F.2d 85 (1964). However, "[e]vidence ofa defendant's other criminal activity ... is admissible when relevant to explain the immediate circumstances surrounding the offense charged and when its probative value outweighs its prejudicial effect." Parker v. United States, 586 A.2d 720, 724 (D.C. 1991) (quotation and citations omitted).4 Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejUdice ...." Johnson, supra, 683 A.2d at 1099 (quotation and footnote omitted). In our analysis ofMr. Benton's primary argument, we assume, without deciding, that the admission ofthe challenged evidence in this case was error. Where the Court "assume[ s] that admission of the challenged testimony ... was error, we turn directly to considering whether the alleged error was harmless. In so doing, we take account of the traditional factors of the closeness of the case, the centrality of the issue affected by the error, and any steps taken to mitigate the effects ofthe error." Settles v. United States, 615 A.2d 1105,1109 (D.C. 1992) (references omitted). "As always, our focus is on the likely impact of the alleged error on the jury 's verdict." Id. (citingKotteakosv. UnitedStates, 328U.S. 750, 765 (1946) (question is whether error "substantially swayed" the jury's verdict. Although the arrest evidence was central to the government's explanation ofhow Mr. Benton completed the alleged theft, the case itself was not a particularly close one. While Mr. Benton offered no witnesses to testify on his behalf, the government's witnesses created strong, reasonable inferences that Mr. Benton: (1) misrepresented his identity and background in order to order to obtain the original sublet and subsequent lease in preparation for the theft;5 (2) prevented Mr. Auffret from gaining access to his furniture and other property;6 and (3) misrepresented the status of the furniture to the homeowners. Significantly, Mr. Benton's half-brother testified that he spoke with appellant twice during the moving process, and that appellant gave him instructions regarding what to pack.

4 As we said in Johnson, supra: "Drew does not apply where ... evidence (1) is direct and substantial proofofthe charged crime, (2) is closely intertwined with the evidence ofthe charged crime, or (3) is necessary to place the charged crime in an understandable context." 683 A.2d at 1098. It is true that Ms. Alston made the initial telephonic contact with Mr. Auffret for the sublease. However, Mr. Benton personally took charge of details surrounding the sublease and lease of the home, and communications with Mr. Auffret.
5

6 On several occasions Mr. Benton took steps to preclude Mr. Auffret from moving his furniture and other possessions, including allowing him access only to the kitchen and basement of the house, or no access at all, and informing Mr. Auffret that he, Mr. Benton, needed to keep the furniture in the house because his own was not yet available.

Finally, a detective indicated that items belonging to Mr. Auffret were found in a Maryland apartment where Ms. Alston was discovered hiding in a closet. With respect to steps taken to mitigate the effects of the alleged error, the trial court offered defense counsel an opportunity to craft a limiting instruction, but counsel did nothing in response. Nevertheless, the trial court gave two cautionary instructions related to the arrest evidence, including the following final instruction to the jury: You have heard evidence that Mr. Benton was arrested in January 1998. Evidence of the defendant's arrest has been admitted solely to put in context other evidence concerning the events in January 1998. You should not speculate about the reasons for that arrest. The fact that the defendant was arrested is not evidence that the defendant is guilty of the offenses with which he is charged in this case. You must not draw any inferences of guilt against the defendant from his prior arrest. As we have reiterated on several occasions, "[t]he jury is presumed to have followed the trial court's instructions." Davis v. United States, 700 A.2d 229,232 (D.C. 1997) (citing Harris v. United States, 602 A.2d 154, 165 (D.C. 1992); Owens v. United States, 497 A.2d 1086, 1092 n.7 (D.C. 1985), cert. denied, 474 U.S. 1085 (1986)). Thus, given the strength of the government's case and the trial court's efforts to mitigate the potentially prejudicial effect of the arrest evidence, we are persuaded that the alleged error (admitting evidence of Mr. Benton's prior arrest, awareness of witnesses that detectives were searching for Mr. Benton, and Mr. Benton's telephone calls from the detention center to the Fessenden Street home) did not substantially sway the jury's verdict in this case. We conclude, therefore, that the alleged error was harmless in its effect. Mr. Benton also contends that the trial court erred by admitting evidence indicating that he misrepresented his identity and background to Mr. Auffret and the homeowners. He deems this evidence to be impermissible character evidence of intent, or "other crimes evidence ofintent." He maintains that since he did not testify and his counsel did not make an opening statement or raise the issue of intent on cross-examination of the government's witnesses, admission of evidence relating to any misrepresentations of his background was irrelevant and impermissible. Even assuming it was relevant, he argues, its "probative value is substantially outweighed by the prejudicial impact." As the government points out, Mr. Benton's claim is subject to plain error review because his counsel failed to object to the admission of the evidence at trial. 7 "Under this

7 During oral argument, Mr. Benton conceded that the plain error standard applied. But, in a subsequent letter to the court, with a copy to the government, counsel for Mr. Benton stated that his concession "was premised upon the possibility that the court could decide, in line with the government's argument, thatthe evidence of misrepresentation was not impermissible character evidence." Counsel added: "Ofcourse, the appellant maintains, as represented in the argument-in-chief and the supplemental brief, that the evidence of (continued...)