MICHAEL J. WARNER v. UNITED STATES, 124 A.3d 79

Warner leased a one-bedroom condo near American University but had not paid required rent/deposit; his lease prohibited subletting without landlord approval (which he had not obtained).
In December 2011 Warner posted roommate ads, negotiated separately with Teresa Parks (who wired an $800 security deposit) and with Nicole Diaz; after collecting the Parks’ deposit Warner emailed Diaz that “the place is yours.”
Parks and her mother understood a month-to-month tenancy with an implicit assurance that, if the arrangement “worked out,” Teresa would remain for the spring semester; Warner denied he had authority to sublet but testified he expected Parks to leave after two months.
At bench trial the judge acquitted Warner of second-degree fraud but found him guilty of attempted second-degree theft, treating attempted theft by deception as a lesser included offense of second-degree fraud.
The judge did not explicitly find whether Warner, at the time he promised Parks the apartment for the semester, knew the promise was false (i.e., that he intended to continue seeking replacement roommates), nor did she specify that the attempted theft was by deception.
The Court of Appeals held attempted second-degree theft by deception can be a lesser included offense of second-degree fraud, found the evidence sufficient to permit such a conviction, but remanded for the trial judge to make explicit findings on whether Warner knowingly made a false promise.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted 2d-degree theft by deception is a lesser included offense of 2d-degree fraud	Gov: Elements of attempted theft by deception are a subset of fraud when fraud is premised on deceptive promises	Warner: Attempted theft (or other theft varieties) is not necessarily included in fraud	Held: Attempted 2d-degree theft by deception is a lesser included offense of 2d-degree fraud (elements are subset)
Whether evidence supported conviction for attempted theft by deception	Gov: Warner’s immediate dealings with Diaz after collecting Parks’ deposit support inference he intended the promise to be false	Warner: He intended Parks to stay at least two months and planned to return the deposit when able; no proof he intended to deceive at promise time	Held: Evidence sufficient for a rational factfinder to find attempt by deception, but factfinder must explicitly find mens rea (intent/knowledge of falsity)
Whether the trial judge made required findings of fact	Gov: Verdict stands if judge implicitly found falsity and intent	Warner: Judge failed to make explicit finding that promise was knowingly false; requested such a finding	Held: Because judge expressly disclaimed making that factual finding and did not specify theft-by-deception, remand is required for the judge to augment findings or conviction may be vacated

Schmuck v. United States, 489 U.S. 705 (discussing lesser-included offense analysis)
Youssef v. United States, 27 A.3d 1202 (scheme or systematic course of conduct requires multiple acts)
Cash v. United States, 700 A.2d 1208 (defining deception and use of subsequent acts to infer prior intent)
Saidi v. United States, 110 A.3d 606 (trial judge must make specific findings when timely requested)
Rivas v. United States, 783 A.2d 125 (standard for sufficiency of evidence review)