# Earle v. United States > District of Columbia Court of Appeals · July 28, 1992 · 612 A.2d 1258 URL: https://www.frixlaw.com/law-library/cases/9543064 ## Case - **Full name:** Sewelle H. EARLE, Appellant, v. UNITED STATES, Appellee; Owen WHITE, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** July 28, 1992 - **Citations:** 612 A.2d 1258; 1992 D.C. App. LEXIS 199; 1992 WL 179460 - **Precedential status:** Published - **Opinion:** Concurring in part by Mack - **Judges:** Rogers, Ferren, Mack - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9543064 ## How later opinions describe it (automated extraction) - holding evidence sufficient for jury to infer intent to distribute where, among other things, ”[m]uch of the cocaine was packaged in zi-plock bags, in amounts regularly sold and purchased on the street” - finding constructive possession where defendant was in close proximity to contraband and evidence linked defendant to activity “of which the possession [of the contraband] is a part.” ## Opinion text MACK, Senior Judge, concurring in part, dissenting in part. I respectfully dissent from the court’s finding affirming the conviction of appellant Earle. In my view, the government has not proved, either through direct evidence or circumstantial evidence, that Earle had constructive possession of drugs. At the appellate level, our majority, in an elaborate and imaginative creation of inferences, has itself fallen into the classic trap of “casting *1272 too wide a net.” 1 See Wheeler v. United States, 494 A.2d 170, 173 (D.C.1985). Here, we are not at odds as to the applicable law, either with respect to the constitutional burden of the government to prove every element of the criminal offense beyond a reasonable doubt or the standard which the trial court, or this court, must apply in determining the legal sufficiency of the evidence to go to the jury or to support conviction. Likewise the basic facts we are reviewing are not disputed. In fact, the government produced direct evidence that Earle was found in the Park Road, N.W. house at the time of the police raid, that he gave his residence as being an address on Fort Totten Drive, N.E., that no money, no drugs, no weapons were found on his person, and, that nothing at all was found on the premises that would suggest that he lived there. Indeed, the arresting officer conceded that the arrest was predicated upon the fact that Earle happened to be in the house and that drugs were found there. Since the fact of mere proximity to drugs is obviously insufficient to convict one of a drug offense, it is the theory of constructive possession that the government concededly embraced in its effort to convict Earle. In order to meet the burden of establishing constructive possession, the government was obliged to present evidence from which a reasonable mind could conclude beyond a reasonable doubt that Earle knew of the presence of the drugs and had both the power and intention to exercise dominion and control over the drugs. See Wheeler, supra, 494 A.2d at 172 ; Curry v. United States, 520 A.2d 255, 264-65 (D.C.1987). This it did not do. The issue here is one of failure of proof — not the credibility of the accused. [Majority, note 13] The majority relies on the fact, undisputed, that Earle was found in a sleeping posture on a bed in Room 2 of the basement, fully dressed with the lights on — a room opening to the same basement corridor as Room 1, another room where a huge quantity of drugs were found. 2 The majority tells us that the doors to both rooms were open. It does not tell us further what government witnesses confirmed — that the drugs were on a table behind the door opening into Room 1, that there was no information whatsoever to show that Earle was ever in Room 1 prior to his being taken there after arrest, and that the rooms were positioned in such a way that it was possible to enter Room 2 from a hallway door (leading to an alley) without having seen what was hidden behind the opened door in Room 1. Earle testified that he was asleep and that he had not entered Room 1 before he was taken there after his arrest. Moreover, government counsel in arguing against a motion for judgment of acquittal, conceded that Earle could not have seen the drugs from the location where he was found. Thus, the government did not prove that the drugs were in “plain view” of Earle. The fact of “proximity” therefore, expressed in sole terms of distance, and negating the suggestion of view, tells us nothing as to knowledge, ability or intent and therefore nothing as to possession. Similarly, the undisputed fact that a resident of the house, codefendant White, knew Earle, tells us nothing. White testified that he knew Earle because he had encountered him in a park where they played soccer. He had never seen him enter the house. The remaining codefend-ant found in the house, McKenzie, had never seen Earle before the arrest. Both of Earle’s codefendants knew one “Tony,” a non-probative fact as to Earle, but nevertheless used by the majority today in its convoluted account culling the testimony of the three defendants in an attempt to infer *1273 guilt on the part of Earle. 3 [Majority at 1267-1269] Earle testified that he had never been in the house before the night he impulsively stopped at the basement door where he had seen Tony (a fellow soccer player) previously enter and that he did not know that White lived upstairs. The government produced no evidence to the contrary. Moreover, Earle gave a plausible account of his presence in the house the night of his arrest and it was corroborated to a great extent by his girlfriend. At twenty years old, working two jobs, living with the parents of the girlfriend (the young mother of his two year old son), exhausted, feeling trapped, and upset about an argument with his girlfriend, he walked out of their residence at Fort Totten Drive, N.E., into a pouring rain, crossed into Northwest by way of the Old Soldiers Home, and impulsively stopped at an alley door where he knew that “Tony” (a fellow soccer team player) lived and where he entered a room, was given beer and fell asleep. When he was awakened by a nightstick, drowsy and afraid, he saw two guns. When he realized he was facing the police, he gave a false name because he did not want his girlfriend’s parents to hear of his dilemma. Earle’s testimony is plausible because it is consistent with the government’s evidence. It is also consistent with innocence. The majority attempts to bolster its position by relying upon a “consciousness-of-guilt” theory. Case law, with respect to the dominion and control aspects of constructive possession, has expressed it thusly: “[T]o prove constructive possession the government also must present some evidence connecting the accused ‘to an ongoing criminal operation of which the possession is a part.’ ” Wells v. United States, 515 A.2d 1108, 1113 (D.C.1986) (emphasis supplied). Here the government proved no such connection, but more importantly, it proved no knowledge by Earle of possession by others. Wheeler, supra, 494 A.2d at at 171; United States v. Hubbard, 429 A.2d 1334, 1338 (D.C.), cert. denied, 454 U.S. 857 , 102 S.Ct. 308 , 70 L.Ed.2d 153 (1981). “[M]ere presence at the scene of the crime ... proximity to the drugs ... or [even] association with one in possession is not enough to allow a jury to find constructive possession.” Wells, supra, 515 A.2d at 1113 (citing Hubbard, supra, 429 A.2d at 1338 ). 4 Since the government proved no more than Earle’s mere presence at the scene of the crime or, at most, a tenuous acquaintance with tenants at the scene, this case should not have gone to the jury on a consciousness-of-guilt theory. Even in cases where an accused is a resident of the premises, and others have access to the premises, courts will not normally impute possession of an illegal item without proof that the accused is actually involved in some criminal enterprise of which the contraband is a part. Wheeler, supra, 494 A.2d at 173 ; Curry, supra, 520 A.2d at 264 . The majority, relying on an inference of “feigned sleep,” points to the officers’ testimony that Earle was found in a sleeping *1274 position, fully dressed in a lighted room after one officer had called loudly to a fellow officer. The fact of being fully dressed in such circumstances might or might not have some inferential value with respect to a resident but certainly less for a visitor — particularly a first-time visitor who had been drinking. I know of no case that suggests that being asleep under such circumstances would be so unusual as to imply consciousness of guilt of involvement in a criminal enterprise. 5 Moreover, the testimony of the officers that Earle, when awakened, did not appear to be startled, is not unequivocal. The first officer conceded that initially he had thought Earle was asleep and later that it was possible that Earle was asleep. The second officer, who testified that it was his “perception” that Earle was not asleep, could not identify Earle in the courtroom. As to the officers’ perception, it hardly seems necessary to note that any individual’s initial, physical reaction to a given set of startling circumstances (including noise) may well vary. Moreover, unlike the objective manifestations of flight, destruction of evidence, or concealment of identity, the question of whether one is startled, conscious or unconscious, is a subjective factor best known to the individual or a medical expert. In my view, the circumstances here do not support an inference of consciousness-of-guilt. Finally, in the recently decided case of Speight v. United States, 599 A.2d 794 (D.C.1991) (which in my view cannot be distinguished on the facts), 6 we soundly rejected the concept that constructive possession of items found on premises could be imputed readily to a visitor who sought to conceal his identity at the time of arrest. We said there: There was nothing to show that appellant’s real name connected him to the other individuals, to the apartment, or to the drugs. In the light of the absence of any other evidence connecting appellant to the criminal activity charged, his use of an alias coupled with his presence was insufficient to prove he was a prospective distributor of the drugs.... We conclude that no reasonable juror could find that appellant’s role was as a participant in drug trafficking in light of other plausible reasons for his presence. Id. at 798 (emphasis supplied). See also In re T.M., 577 A.2d 1149 (D.C.1990). We have recited a familiar litany again and again in reviewing the denial of a motion for judgment of acquittal: [W]e must review all the evidence in the light most favorable to the government and give deference to the right of the jury to weigh the evidence, determine the credibility of the witnesses and draw all justifiable inferences of fact, making no distinction between direct and circumstantial evidence. [Majority at 1265] In the onslaught of today’s drug activity, a court, in favoring government evidence, may be prone to forget that “all the evidence” means not just the evidence presented by the government, but also that evidence presented by the accused. See In re A.B.H., 848 A.2d 573, 575 (D.C.1975). *1275 In my view, the government’s evidence fell short of showing that Earle had knowledge of the presence of drugs or that he had the ability or intent to guide the destiny of the drugs. The inferences, if any, that could be drawn from the circumstances described by government witnesses were dissipated by Earle’s plausible explanation, as well as the government’s concessions. The trial court should have granted Earle’s motions for judgment of acquittal. I would reverse his conviction. . The majority uses the phrase “only a few feet away” (from the room where the drugs were found). Government counsel, in conceding the truth of evidence that the drugs could not be seen without entering Room 1, nevertheless speaks of Earle being within ten to fifteen feet of the drugs. . The majority, noting that no severance issue is presented, argues that the jury could have drawn inferences from the testimony of all three defendants in this joint trial. [Majority at 1267] First, let me repeat that the issue is not one of credibility but one of the failure of proof as to Earle. The majority is right, however, when it says no severance issue is presented. No severance issue is presented as to Earle because his defense was not inconsistent with the defenses of the codefendants and the testimony of the codefendants was not incriminating as to Earle. The majority is wrong when it creates, at the appellate level, a scenario of "Keystone Cops." [Majority at 1268] Even if the issue were one of credibility (and it is not) a jury would not have been free to use "the self-serving lies” of White and McKenzie to find fabrication on the part of Earle. [Majority at 1268-1269] That would be the ultimate in guilt by association. . There was no evidence that the drugs were in plain view of Earle, that he lived in the room or home where the contraband was found, that he attempted to conceal or destroy the contraband, or was observed making a transaction later found to involve narcotics, or exhibited some other consciousness-of-guilt, such as locking a door, not answering a door after the police identified themselves, or flight. See Wells, supra, 515 A.2d at 1113 (citing inter alia Stewart v. United States, 395 A.2d 3, 6 (D.C.1978)). . No one, regardless of heritage, education, moral values, social standing or economic wealth can go through life secure in the knowledge that he or she will only associate with the "pure in heart.” In the criminal law arena, the loose approval of inferences that scream of "guilt by association” thus pose a danger to everyone. Unfortunately, it is people, who because of economic factors are apt, not only to be in the wrong place at the wrong time, but also less able to counter the validity of the inferences we draw. . I do not follow the majority’s labored attempt to distinguish Speight . Did we reverse Speight’s conviction because several other individuals had a "demonstrably closer connection with the drugs than Speight had?” If so, I would point out that in the instant case, McKenzie was found with drugs on his person and White was the owner-occupant of the premises — with demonstrably closer connections than Earle had. Moreover, measured by known standards for proving constructive possession and the facts which were proved here, I am particularly troubled by the majority’s use of such phrases as "[Earle’s] rushing to position himself away from drugs and paraphernalia in plain view.” [Majority at 1267] "Earle’s apparent attempt to separate himself from the drugs when he heard the noise upstairs” [Majority at 1269], and "[Earle’s] prior association with other individuals present.” [Majority at 1269] (Emphasis added.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9543064. Public record. Not legal advice.