James M. Schools v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-CF-1448

JAMES M. SCHOOLS, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF2-7397-11)

(Hon. Stuart Nash, Trial Judge)

(Submitted October 22, 2013 Decided December 19, 2013)

Jamison Koehler was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,

Suzanne Grealy Curt, Ben Schrader, and Peter S. Smith, Assistant United States

Attorneys, were on the brief for appellee.

Before THOMPSON, Associate Judge, and WAGNER and SCHWELB, Senior

Judges.

Opinion for the court by Associate Judge THOMPSON.

Dissenting opinion by Senior Judge WAGNER at page 20.

THOMPSON, Associate Judge: A jury convicted appellant James Schools

(aka David Schools) of unlawful possession of a firearm by a felon, possession of

an unregistered firearm, and unlawful possession of ammunition (acquitting him of

2

possession with intent to distribute cocaine while armed, lesser-included cocaine-

possession charges, and possession of a firearm during a crime of violence). He

seeks reversal of his convictions on the ground that the evidence at trial was not

sufficient to show that he had constructive possession of the gun and ammunition

— i.e., that ―no jury could have reasonably concluded beyond a reasonable doubt

that [he] knew about the firearm and ammunition‖ or that he ―had the requisite

intent to exercise dominion and control‖ over them. We are persuaded by his

argument and therefore reverse.

I. The Evidence

The government presented evidence that shortly after 7:00 a.m. on April 21,

2011, Metropolitan Police Department (―MPD‖) officers executed a search warrant

of an apartment located at 1608 17th Place, S.E. The apartment, which was on the

first floor of a two-story building, had a front bedroom and a second ―back

bedroom‖ that had been converted from a sleeping porch and had a door that led

outside. Officer Alvin Cardinal testified that when police arrived at the apartment,

they knocked on the door and one officer loudly yelled, ―Police, search warrant‖ at

least twice. After waiting 15 to 30 seconds and hearing no response from inside

3

the apartment, officers used a battering ram to force entry into the apartment. They

first encountered a woman and a child near the front of the apartment. Officer

Cardinal and Detective Scott Brown, another member of the search team, testified

that two other people were stopped just outside the apartment, on the ―ledge‖ of the

back-bedroom door that led to the outside. When Officer Cardinal first approached

the back bedroom, he found appellant, whom he described as a ―large gentleman,‖

standing next to a bed, his back turned away from the door, and his hands

positioned ―as if he was manipulating or hiding something.‖ Appellant was

wearing only a pair of boxers and a tank top. Officer Cardinal twice ordered

appellant to ―put his hands up.‖ After the second order, appellant dropped a ―white

object,‖ raised his hands, and turned around. Officer Cardinal handcuffed the

appellant and took him into the living room, where officers were detaining ―all the

other . . . occupants who were in the house[.]‖

When officers returned to the back bedroom after taking appellant into the

living room, they saw, in the area where appellant had dropped the white object, a

white, man‘s shoe, inside of which were 53 green zip-lock bags containing crack

cocaine. Officers also found a digital scale on the windowsill of the room.

Detective Erick Alvarado testified that in the right middle drawer of a three-level,

4

six-drawer dresser, ―hidden underneath clothing,‖1 he found a .45-caliber handgun

in a plastic bag, five rounds of ammunition, and a shaving-kit-like bag that

contained, in a side pouch, a potato chips bag, inside of which were empty, pink

ziplock bags. Police were unable to recover any fingerprints from the handgun or

the ammunition.2

Officer Cardinal identified Government Exhibit 37 as a videotape that a

police technician took on the morning of the search, which, the officer explained,

was recorded before officers started searching, ―just to show where all the

evidence‖ was before anything was moved. As the prosecutor played the video for

the jury, Officer Cardinal identified a shot of appellant (whom the video shows to

be a heavyset man) and a shot of two other (much smaller) men, who are shown

seated in the living room and who Officer Cardinal testified were ―in the search

warrant.‖

1

Detective Alvarado, who found the gun, testified that he recalled that there

was ―clothing on top‖ of the items, but he could not say ―exactly what the piece of

clothing was.‖

2

As defense counsel emphasized during closing argument, the government

also presented ―no scientific evidence linking‖ appellant to the ziplock bags found

in the dresser drawer.

5

MPD Detective Lavinia Quigley, who also participated in the search,

testified that as it got underway, she gave appellant men‘s clothing (a shirt and

sweat pants) that she had found on a chair in the back bedroom, and he put the

clothes on. She had also looked in the front bedroom for clothes for appellant, but

found only female clothing and children‘s clothing. She also gave appellant shoes

that she testified she believed she got from the back bedroom (although, when

pressed on cross-examination, she testified that she was ―not sure‖ that she got the

shoes from the back bedroom rather than from a clothes closet in the living room). 3

She testified on cross-examination that her recollection was that there were clothes

in the living room closet.

MPD Detective George Thomas testified about the use of digital scales and

ziplock bags in drug distribution, the distribution-quantity and heat-sealed ziplock

packaging of the cocaine found in the apartment, and the ―reason[s] that someone

might possess a gun in connection with narcotics.‖ He also testified that the color

of ziplock bags used can be ―representative of [a drug dealer‘s] brand of

packaging.‖ On cross-examination, Detective Thomas testified that a drug dealer‘s

stash might be kept in ―someone else‘s place of abode[.]‖

3

The police videotape appears to show a pair of shoes (in addition to the

white shoes) on the floor in the back bedroom.

6

Valene Mason and MPD Officer Christopher Eckert testified for the defense.

Mason testified that she lived in the apartment with appellant and the couple‘s

young daughter. Appellant‘s nephew Jervel Mason (―the nephew‖) had also been

living there since the beginning of April, and both the nephew and a man by the

name of Timothy Thomas had stayed in the apartment on the night before the

search. ―[N]ormally,‖ Mason testified, the nephew slept in the back bedroom, and

appellant slept in the living room and kept his clothes in the living room closet and

the closet in the front bedroom. Mason further testified that on the night of the

search, appellant, whose health was ―pretty bad,‖ slept in the back bedroom

because he was feeling sick. Mason testified that the clothing inside the dresser in

the back bedroom belonged to the nephew.4 She testified that the shoe

(Government Ex. 2) containing cocaine also belonged to the nephew, as did a

wallet in the back bedroom that was shown in the police videotape. She testified

that a pack of Marlboro cigarettes in the back bedroom also shown in the video

belonged to Timothy Thomas. Mason further testified that when police came to

4

Mason also testified that before the police arrived, she had gone into the

back bedroom to retrieve her daughter‘s uniforms so that she could get her

daughter dressed in the front bedroom. She testified that there was no way to hang

clothes in the closet in the back bedroom, but that the closet contained a laundry

bag of clothes (including some men‘s clothes) that someone had given her and that

needed to be washed.

7

the apartment to execute the search warrant, the nephew and Thomas ran out the

door of the back bedroom. Mason identified two young men whom the video

shows sitting in the living room as the nephew and Timothy Thomas.

Officer Christopher Eckert testified that he arrested a man name Ronnie

Caldwell on June 1, 2011, and recovered 42 green zip lock bags containing crack

cocaine.5 Mason testified that Mr. Caldwell had been regularly visiting the

apartment during the week leading up to appellant‘s arrest, that she was afraid of

Caldwell because he had been ―involved in . . . shootings‖ in the neighborhood and

because she had seen him engage in physical violence, and that she had seen

Caldwell bring a gun into the apartment.

II. Applicable Law

The government proceeded against appellant on the theory that he

constructively possessed the gun and ammunition. Accordingly, the government

was required to prove that he ―(1) knew of the presence of the contraband, (2) had

5

When Officer Eckert first spotted Caldwell, he was standing in front of

th

1606 17 Place (apparently, next door to appellant‘s apartment building).

8

the power to exercise dominion and control over it, and (3) intended to exercise

dominion and control over it.‖ Ramirez v. United States, 49 A.3d 1246, 1249

(D.C. 2012) (internal quotation marks omitted). Appellant contends that no

reasonable juror could have found beyond a reasonable doubt that he knew about

the contraband because it was hidden from view, he made no movement toward it,

and he gave no ―other indication that he knew what was tucked away under some

clothes inside,‖ ―much less‖ that the other criteria for constructive possession were

satisfied.

An appellant making a claim of evidentiary insufficiency ―bears the heavy

burden of showing that the prosecution offered no evidence upon which a

reasonable mind could find guilt beyond a reasonable doubt.‖ Olafisoye v. United

States, 857 A.2d 1078, 1086 (D.C. 2004) (internal quotation marks omitted). In

considering an evidentiary-insufficiency claim, we ―view the evidence in the light

most favorable to the government, giving full play to the right of the jury to

determine credibility, weigh the evidence, and draw justifiable inferences of fact.‖

Freeman v. United States, 912 A.2d 1213, 1218 (D.C. 2006) (internal quotation

marks omitted). ―Expressed more fully, this means a reviewing court[,] faced

with a record of historical facts that supports conflicting inferences[,] must

presume — even if it does not affirmatively appear in the record — that the trier of

9

fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.‖ McDaniel v. Brown, 558 U.S. 120, 133 (2010) (internal quotation

marks omitted).

―Although the government is entitled to any reasonable inferences, [a court

reviewing an insufficiency-of-the-evidence claim] must consider all of the

evidence including that favorable to the defendant.‖ United States v. Rapone, 131

F.3d 188, 197 (D.C. Cir. 1997) (Silberman, J., concurring) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (―[U]pon judicial review all of the evidence is

to be considered in the light most favorable to the prosecution.‖) (emphasis in the

original); United States v. Grey Bear, 828 F.2d 1286, 1292 (8th Cir.), vacated in

part on other grounds, 836 F.2d 1088 (8th Cir. 1987) (noting that the appellate

court must review ―the evidence taken as a whole, including that offered by the

defendant‖); United States v. Beck, 615 F.2d 441, 448 (7th Cir. 1980) (―The

standard is not so strict that the defendant‘s evidence must be disregarded.‖). And,

although ―a jury is entitled to draw a vast range of reasonable inferences from

evidence, it may not base a verdict on mere speculation.‖ Rivas v. United States,

783 A.2d 125, 134 (D.C. 2001) (en banc) (internal quotation marks and brackets

omitted). At the same time, the government ―need not disprove every theory of

10

innocence in order to sustain a conviction.‖ Olafisoye, 857 A.2d at 1086 (internal

quotation marks omitted).

Constructive possession ―may be proven by direct or circumstantial

evidence.‖ Rivas, 783 A.2d at 129. However, a defendant‘s mere presence on the

premises where contraband is found or mere proximity to contraband is not enough

to satisfy the test for constructive possession of the contraband. Ramirez, 49 A.3d

at 1249; Rivas, 783 A.2d at 130. ―Rather, there must be something more in the

totality of the circumstances that — together with proximity and knowledge —

establishes that the accused meant to exercise dominion or control over the

[contraband].‖ Rivas, 783 A.2d at 130. ―[P]roximity or association may establish

a prima facie case of constructive possession if it is colored by evidence linking the

accused to an ongoing criminal operation of which that possession is a part.‖

Guishard v. United States, 669 A.2d 1306, 1312 (D.C. 1995) (internal quotation

marks omitted). ―[A]cts evincing consciousness of guilt‖ may also provide the

essential link between the appellant and the contraband. (Devenn) Smith v. United

States, 899 A.2d 119, 122 (D.C. 2006). In general, a jury may ―infer that a person

exercises constructive possession over items found in his home[,]‖ but this

inference is ―plainly not as strong‖ and may be unwarranted where the defendant

11

shares the premises with other people. Moore v. United States, 927 A.2d 1040,

1050 (D.C. 2007).

III. Analysis

Notwithstanding appellant‘s acquittal on the drug and drug paraphernalia

charges, the evidence in this case was certainly sufficient to permit the jury to infer

that appellant possessed the 53 bags of cocaine and the digital scale: They were in

plain view, supporting an inference that he knew of them; and the evidence

permitted the jury to find that he exercised dominion and control over the drugs by

attempting to hide them from police and also to infer, from appellant‘s

involvement with the drugs, that he intended to exercise dominion and control over

the scale. ―Where knowledge and ability to exert control over contraband are

shown, the additional evidence necessary to prove constructive possession is

comparatively minimal.‖ Moore, 927 A.2d at 1050 (internal quotation marks

omitted).

However, even viewing the evidence in the light most favorable to the

government, as we must, we think a reasonable fact-finder must have been left

12

with reasonable doubt about whether appellant knew about the firearm and

ammunition found hidden beneath clothing in the dresser drawer in the back

bedroom and intended to exercise dominion and control over these items. Any

inference of knowledge that might have been drawn from appellant‘s occupancy of

the apartment was weakened because of the evidence that appellant shared the

apartment with, or had given or yielded access to, several others. See In re R.G.,

917 A.2d 643, 649 (D.C. 2007) (―[W]hen two or more people are occupying a

place, a defendant‘s control over the place is not by itself enough to establish

constructive possession of contraband found there.‖) (internal quotation marks

omitted).

Specifically, during the government‘s case-in-chief, the jury heard, or saw

on the videotape, evidence that the nephew and Timothy Thomas were present in

the ground-floor apartment along with appellant on the (early) morning of the

search. The jury also heard Officer Cardinal‘s testimony that both men were ―in

the search warrant,‖ from which they could infer that both men had a repeated if

not regular presence in the apartment. The government‘s evidence (including the

videotape) also established that the back bedroom had a door to the outside (that

presumably would have enabled an individual to access the room without passing

through the rest of the apartment). In addition, the jury heard Mason‘s testimony

13

for the defense that she and the nephew resided in the apartment, that each of them

plus Timothy Thomas had stayed there the night before the search, that the nephew

normally slept in the back bedroom, that the nephew and Timothy Thomas exited

the apartment through the back bedroom when the police came; and that Caldwell

had frequently and recently been in the apartment. The jury was not required to

believe (and, for purposes of our analysis, we may not presume that they believed)

any of Mason‘s testimony, but the foregoing testimony, uncontradicted, informs

our view that, as to the firearm and ammunition, the government failed as a matter

of law to prove appellant‘s knowledge and intent.6

The evidence that appellant was in the back bedroom in his underclothes at

the time police arrived and that he had been sleeping there established that he had a

connection with the back bedroom, as did the fact that, without protest, he accepted

and donned clothing and shoes that Officer Quigley retrieved from the back

bedroom. But the clothing was found on a chair in the back bedroom, rather than

6

Cf. Curry v. United States, 520 A.2d 255, 262 (D.C. 1987) (concluding, in

a case where police executing a search warrant at an apartment found several

occupants and evidence of a drug-distribution operation, that the evidence was

insufficient to sustain Curry‘s conviction for possession of a gun and ammunition

that police found in her bedroom nightstand among her clothes, and relying on

Curry‘s testimony and other defense evidence that she had lived in the apartment

only sporadically and for only about two weeks, and that, at the time police

arrived, she had been away from the apartment for several hours).

14

in a closet or in a drawer, a location consistent with Mason‘s claim that appellant

did not usually occupy that room as his own.

We have often found that evidence was sufficient to establish a defendant‘s

constructive possession of contraband where the contraband was recovered in

proximity to the defendant‘s personal items such as mail or personal papers,

photographs, and identification cards.7 Here, however, there was no evidence that

any mail or papers, photographs, wallet, identification cards, or any other personal

effects linked to appellant were found in the back bedroom where the gun and

ammunition were found. The videotape shows, sitting on a shelf in the back

7

See, e.g., (Tamara) Smith v. United States, 55 A.3d 884, 885–86 (D.C.

2012) (evidence sufficed to establish defendant‘s constructive possession of a

firearm found in a backpack, where the backpack was found next to the

defendant‘s bed near a photograph of defendant, defendant‘s identification cards

were in the pocket of a pair of shorts on the bed, and mail addressed to the

defendant was in a file cabinet in the bedroom closet); Ramirez, 49 A.3d at 1250

(defendant‘s constructive possession of cocaine was proven where police found the

cocaine in a pair of pants in a closet containing mail addressed to the defendant and

photographs of the defendant, and the closet was near a bed that the appellant

admitted to sleeping on); Moore, 927 A.2d at 1051 (evidence sufficed to prove

defendant‘s constructive possession of contraband where the contraband was found

in the apartment‘s only bedroom, ―lying in plain view next to [the defendant‘s]

personal papers.‖); Guishard, 669 A.2d at 1311 (defendant‘s constructive

possession of a firearm was proven where the firearm was found in a dresser

drawer and atop the dresser were two traffic tickets issued to the defendant and two

medical bills addressed to him).

15

bedroom, a wallet with slots containing numerous papers or cards, but the

government offered no evidence about the contents of the wallet, and — without

contradiction — Mason testified that the wallet belonged to the nephew. Mason

also testified without contradiction that the clothing in the drawer where the gun

and ammunition were found belonged to the nephew. For its part, the government

presented no evidence about the size or type of clothing found in the drawer, an

omission that is particularly notable since the evidence established that appellant is

a large man (defense counsel described him as ―obese‖ in her opening statement),

while the other men who were found in the apartment and were named in the

search warrant are much smaller men,8 who (it can reasonably be assumed) would

have worn clothing much smaller than appellant could have worn.

Drawing all reasonable inferences in favor of the government, we take

appellant‘s stance with his back to the door and his apparent effort to hide a

distribution quantity of zipper bags after police, shouting loudly, entered the

apartment with a battering ram, as evidence of his involvement with ongoing

8

We say this based on the videotape. Cf. Scott v. Harris, 550 U.S. 372,

380-381 (2007) (explaining that although the court of appeals, in reviewing a grant

of summary judgment, was required to view the facts in the light most favorable to

the nonmoving party, the court also ―should have viewed the facts in the light

depicted by the videotape‖ that was part of the summary judgment record).

16

criminal drug activity and of his consciousness of guilt of something. But the jury

would have had to speculate to conclude that he demonstrated guilty knowledge of

the gun and ammunition in the drawer. We do not think that inferences that

appellant (1) knew of the presence of the firearm and ammunition hidden beneath

someone‘s clothing in the drawer and (2) intended to exercise dominion and

control over them are reasonable inferences from the limited evidence the

government presented. The prosecutor argued in closing that appellant ―knew

where that gun was‖ because ―[i]t was his dresser, his clothes in it‖ and referred to

―that dresser where he keeps his things, his clothes,‖ but there actually was no

evidence presented that the dresser (or the closet in the back bedroom) contained

clothing belonging to appellant.

The government relies heavily on our case law recognizing that proximity to

contraband may establish a prima facie case of constructive possession if there is

also evidence linking the defendant ―to an ongoing criminal operation of which

that possession is a part.‖ Guishard, 669 A.2d at 1312 (emphasis added). Its

reliance is not entirely misplaced. Undisputedly, there was evidence linking

appellant to an ―ongoing criminal (drug distribution) operation‖; the jury‘s

verdict‘s acquitting appellant of the possession-with-intent-to-distribute-cocaine

17

charge ―does not show that they were not convinced of [his] guilt‖9 of that charge.

However, evidence that a defendant was ―found [during the execution of a search

warrant] to be involved in . . . illegal activity consisting of drug distribution‖ is not

necessarily enough to show that ―the loaded pistol [found in a bedroom during the

search] was part of that operation‖ when ―there were . . . others present in the

apartment when the gun was found.‖ Curry, 520 A.2d 255, 265-66 (D.C. 1987)

(holding that the evidence that appellants Jones and Washington were found in the

living room of the apartment with drugs and other evidence of drug distribution did

―not permit a reasonable mind to fairly conclude beyond a reasonable doubt that

either Jones or Washington, or both, knew of the existence of a loaded pistol in the

bedroom nightstand,‖ because appellant Curry, ―amongst whose personal

belongings the weapon was apparently found, or any of the three others

present during the raid could have placed the loaded pistol in the bedroom

nightstand unbeknownst to‖ Jones and Washington).10

9

Mayfield v. United States, 659 A.2d 1249, 1255 (D.C. 1995).

10

Nor did the evidence in Curry that ―the loaded pistol was found in the

bedroom nightstand amongst [Curry‘s] clothes,‖ and that packets of heroin were

found in the bedroom dresser on top of which there were items of identification

belonging to her, lead to a conclusion that the evidence sufficed to convict her of

possession of the gun and ammunition, because ―a reasonable mind must concede

the reasonable possibility that . . . any of the three others found in the midst of [the]

drug distribution operation could have placed the weapon in the bedroom

unbeknownst to its occupant.‖ Curry, 520 A.2d. at 259-60, 262, 265 (so reasoning

(continued…)

18

Moreover, while we must assume the jury credited Detective Thomas‘s

testimony about the ―many instances where we find firearms in conjunction to

narcotics,‖ Detective Thomas did not testify that the co-presence of drugs and

firearms was inevitable, or invariable, or even usual. Rather, Detective Thomas

testified that ―[s]ometimes drug dealers have been victimized‖ and that ―[s]ome

dealers want to possess a weapon as a form of protection.‖ His generalized

testimony about what ―sometimes‖ occurs did little to make an inference that

appellant knew of the gun and ammunition less speculative.11

(…continued)

notwithstanding Curry‘s acknowledgment that, to her knowledge, ―nobody else

slept there or used the bedroom‖).

11

Detective Thomas‘s testimony was more tentative than expert testimony

about the link between drugs and guns that has been given in some other cases.

See, e.g., United States v. Bruce, 939 F.2d 1053, 1054 (D.C. 1991) (referring to

―expert testimony that ―in today‘s operations drugs and guns go hand in hand‘‖);

Hinnant v. United States, 520 A.2d 292, 293 (D.C. 1987) (D.C. 1989) (noting that

the expert testified that a drug seller in the circumstances described in the case

―would be likely to carry a gun to avoid being robbed‖); Curry v. United States,

520 A.2d 255, 265 (D.C. 1987) (reasoning that expert testimony that drug dealers

―typically‖ set up a security system to protect a house where drugs are sold ―did

not permit a blanket inference that a gun [found in the house] . . . comprised such a

security system‖).

19

―Reasonable doubt is a doubt arising from the evidence, or from a lack of

evidence, after consideration of all the evidence.‖ Bishop v. United States, 107

F.2d 297, 303 (D.C. Cir. 1939) (emphasis added). ―The reasonable doubt standard

of proof requires the factfinder ‗to reach a subjective state of near certitude of the

guilt of the accused.‘‖ Rivas, 783 A.2d at 133 (quoting Jackson, 443 U.S. at 315).

For us to conclude that the evidence permitted the jury to find beyond a reasonable

doubt that appellant constructively possessed the gun and ammunition, it is not

enough that the evidence taken in the light most favorable to the government

supported an inference that he ―might have [known of and] intended to exercise

dominion and control over the weapon, or even that it is more likely than not that

[]he had such [knowledge and] intent.‖ R.G., 917 A.2d at 648-49. To be sure, the

government was not required to negate all possibilities that appellant was innocent

of the gun and ammunition possession charges. But the prosecution‘s total failure

to present evidence of the kind discussed in the paragraphs above (i.e., evidence

that might have established who owned the wallet found in the back bedroom and

who could wear the clothes found in the dresser drawer) persuades us that the

evidence as a whole was not ―enough to establish beyond a reasonable doubt -- the

most exacting standard of proof known to our law -- that [appellant] had the

necessary personal relationship to the weapon and ammunition‖12 for his

12

In re T.M., 577 A.2d 1149, 1153 (D.C. 1990).

20

convictions to be sustained. Accordingly, we concluded that his convictions must

be, and they are hereby,

Reversed.

1

2

3

4 WAGNER, Senior Judge, dissenting: Viewing the evidence ―‗in the light

5 most favorable to government, giving full play to the right of the jury to determine

6 credibility, weigh the evidence, and draw justifiable inferences of fact . . . ,‘‖ as we

7 must, the evidence was sufficient to sustain appellant‘s convictions. Moore v.

8 United States, 927 A.2d 1040, 1049 (D.C. 2007) (quoting Curry v. United States,

9 520 A.2d 255, 263 (D.C. 1987)) (restating our oft repeated standard of review for

10 testing evidentiary sufficiency). Only by crediting evidence and making inferences

11 that the jury apparently rejected in this case can the majority conclude otherwise.

12 Such an analysis is inconsistent with our well-established precedents. Although

13 true, as the majority states, that in applying our familiar standard, courts have

14 recognized that ―we must consider all of the evidence including that favorable to

15 the defendant,‖ the principle remains that ―the government is entitled to all

16 reasonable inferences.‖ United States v. Rapone, 327 U.S. App. D.C. 338, 347,

17 131 F.3d 188, 197 (1997) (Silberman, J., concurring) (citing Jackson v. Virginia,

18 443 U.S. 307, 319 (1979), for the proposition that ―upon judicial review all of the

21

1 evidence is to be considered in the light most favorable to the prosecution‖).

2 Further, while recognizing that the reviewing court must consider ―the evidence

3 taken as a whole, including that offered by the defendant,‖ in United States v. Grey

4 Bear, cited by the majority, the court also made clear that it is the jury‘s province

5 to make credibility determinations and resolve evidentiary conflicts that in turn are

6 viewed in the light most favorable to the government. 828 F.2d 1286, 1292 (8th

7 Cir. 1987), vacated in part on other grounds, 836 F.2d 1088 (8th Cir. 1987). Put

8 another way, ―[i]n general, a sufficiency challenge is to be evaluated in light of all

9 the evidence adduced at trial, including any inculpatory evidence presented in the

10 defense case, even if the government‘s evidence by itself would have been

11 insufficient to sustain the conviction.‖ Moore, supra, 927 A.2d at 1049 (emphasis

12 added). As this court has stated repeatedly, ―[w]e must deem the proof of guilt

13 sufficient if, ‗after viewing the evidence in the light most favorable to the

14 prosecution, any rational trier of fact could have found the essential elements of the

15 crime beyond a reasonable doubt.‘‖ Id. (emphasis in original) (quoting Rivas v.

16 United States, 783 A.2d 125, 134 (D.C. 2001)) (en banc) (quoting Jackson v.

17 Virginia, 443 U.S. 307, 319 (1979)). When these well-established principles are

18 applied to the facts of the present case, it is clear that the evidence was sufficient

19 for a reasonable juror to find that appellant constructively possessed the handgun

22

1 and ammunition that the police found in a dresser drawer inside his residence

2 where he was shown to be engaged in a drug operation.

3

4 Briefly stated, in the light most favorable to the government, the evidence

5 showed that appellant actually resided in the two-bedroom apartment where the

6 contraband was found.1 The jury may infer that ―a person exercises constructive

7 possession over items found in his home‖ and that, although not as strong, the

8 inference applies even when the person shares the premises with another. See

9 Moore, supra, 927 A.2d at 1050 (citation omitted). At 7:00 a.m., when the police

10 entered the smaller bedroom where the testimony showed appellant had slept the

11 night before, he was standing in his underwear in close proximity to the dresser

12 where the weapon and ammunition were found. There was testimony that

13 appellant‘s fianceé and the child slept in the larger front bedroom and that the

14 closet in that room contained only women‘s and children‘s clothing, while the

15 smaller bedroom contained men‘s clothing. Later, a police detective retrieved a

16 shirt and pants from the back bedroom that appellant, a remarkably large person,

17 put on. When the police found appellant, he was facing away and appeared to be

1

Appellant‘s fianceé, Valene Mason, testified that she lived in the

apartment with appellant and their young daughter. A video taken of the apartment

showed a family photograph of appellant, a woman, and child on the living room

wall.

23

1 hiding something. When he complied with an order to show his hands, appellant

2 dropped a man‘s white shoe that contained fifty-three green zip-lock bags filled

3 with a substance later determined to be crack cocaine. See Smith v. United States,

4 899 A.2d 119, 122 (D.C. 2006) (holding that additional evidence that can prove the

5 knowledge and intent elements of constructive possession includes ―evidence

6 linking the accused to an ongoing criminal operation of which possession is a

7 part,‖ attempts to hide evidence, and other actions showing consciousness of guilt).

8 A digital scale was on the windowsill in plain view. The weapon and ammunition

9 were found in a dresser drawer in that room, along with numerous empty, pink zip-

10 lock bags. An expert witness testified that drugs and guns are often found together

11 and that some drug dealers use firearms to protect themselves from robbers. He

12 also testified about the packaging of illegal drugs in small, plastic ziplock bags, the

13 use of a particular color of ziplock to identify the ―brand‖ of drugs, and the use of

14 digital scales by drug dealers to weigh drugs for sale. From this evidence, it was

15 reasonable for the jury to conclude that appellant was engaged in an illegal drug

16 operation of which possession of the weapon and ammunition were a part. See

17 Guishard v. United States, 669 A.2d 1306, 1313 (D.C. 1995) (holding that,

18 although not in plain view, the proximity of the gun in the room where defendants

19 sold drugs was sufficient to permit the jury to infer they had convenient access and

20 thus dominion and control over the weapon so as to establish constructive

24

1 possession.) As the cited cases show, we have held evidence like that presented in

2 this case to be sufficient to prove that a defendant had constructive possession of a

3 weapon and ammunition. See, e.g., Guishard, supra, 669 A.2d at 1313.

4

5 Although Ms. Mason testified that appellant usually slept on the couch, that

6 her nephew resided in the apartment, that except for the night before the raid the

7 nephew usually slept in the back bedroom, that the wallet in the bedroom and

8 clothing in the bedroom drawer belonged to her nephew, and that a drug dealer had

9 brought a gun into the apartment, the jury was not required to credit this evidence.

10 In assessing credibility, the jury is allowed to consider, among other things,

11 whether a witness has any motive for not telling the truth and whether there are

12 inconsistencies between the witness‘ testimony and other evidence in the case. In

13 that connection, the jury was allowed to consider here that Ms. Mason‘s

14 relationship with appellant might have given her a motive to provide him with

15 exculpatory testimony. Further, her testimony that appellant stored his clothing in

16 the front bedroom was inconsistent with Detective Quigley‘s testimony that she

17 observed only female and a child‘s clothing in that closet, a matter that the jury

18 could consider in deciding the extent to which to believe the witness. Given the

19 jury‘s verdict, it is apparent that the jurors chose not to credit some of the evidence

20 that might have been favorable to appellant and to infer from other credible

25

1 evidence that appellant was linked to the weapon and ammunition found in the

2 drawer.

3

4 In challenges to evidentiary sufficiency, our standard of review requires us

5 to view the evidence in the light most favorable to the government and to give ―full

6 play‖ to the right of the jury to determine the credibility of the witnesses, to weigh

7 the evidence, to resolve any conflicts in the evidence, and to draw from the proven

8 facts such reasonable inferences as the jury deems appropriate. See Moore, supra,

9 927 A.2d at 1049 (citing Curry, supra, 520 A.2d at 263). Applying that standard

10 to the evidence in this case, a rational fact finder could find the essential elements

11 of the offenses of conviction beyond a reasonable doubt. See id. Even if Ms.

12 Mason‘s nephew and the other man named in the search warrant who were found

13 hiding on a ledge outside the apartment‘s back door were also involved in the drug

14 operation, the evidence was still sufficient to show that appellant possessed the

15 weapon either solely or jointly with others. See Guishard, supra, 669 A.2d at 1313

16 (holding that ―circumstantial evidence linking both appellants‖ to the gun hidden in

17 a drawer ―as well as to the drugs and other contraband found in the [shared]

18 apartment‖ was sufficient to establish constructive possession).

19

26

1 For the foregoing reasons, I respectfully dissent from the opinion of the

2 court.

3