149 A.3d 519
D.C.2016Background
- Police executed a search warrant at a row house; officers found documents bearing Kamonte Lesher’s name in a second-floor room and encountered Lesher at the room doorway.
- Officers found a green weed-like substance on Lesher’s person and larger quantities hidden behind a radiator in the same room, including one bag with nine small knotted sandwich bags, plus over $2,300 in cash in multiple locations.
- In plain view near the stash were a digital scale and an open box of empty ziplock sandwich bags; portions of the substance were field-tested and produced a positive color reaction for THC.
- Detective Thomas, qualified as an expert on marijuana distribution and packaging, testified the substance smelled like marijuana, was packaged in a manner consistent with street distribution, and the quantity and packaging supported an intent to distribute.
- The trial court found Lesher had constructive possession of the hidden stash (dominion and control), that he believed the substance was marijuana and intended to distribute it, and that the scale and bags were drug paraphernalia; Lesher was convicted of attempted possession with intent to distribute (attempted PWID) and possession of drug paraphernalia (PDP).
Issues
| Issue | Plaintiff's Argument (Lesher) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Constructive possession of stash behind radiator | Evidence insufficient to link Lesher to hidden stash; room lacked others’ personal items | Lesher’s important documents in room, absence of others’ belongings, similarity of substances, and proximity of scale/bags support dominion and control | Court held evidence sufficient to infer dominion, knowledge, and intent to control (constructive possession) |
| Must substance be proven to be marijuana for attempted PWID conviction | Court erred because gov’t didn’t prove substance was marijuana | For attempted possession with intent to distribute, it suffices that defendant believed substance was a controlled drug; belief can be shown circumstantially | Court held proof defendant believed substance was marijuana was sufficient; actual chemical identity not required for attempt charge |
| Admissibility of officer’s field-test testimony | Field-test linking substance to THC was irrelevant/prejudicial and officer not qualified as expert | Field-test evidence was probative; officer permitted to describe test | Even if admission were error, it was harmless; trial judge did not rely on field test and verdict rested on smell/packaging/context |
| PDP conviction: must item be actually associated with a real controlled substance | PDP requires proof that item would be used with an actual controlled substance | PDP statute penalizes possession of items "intended for use" with controlled substances; proof may be circumstantial and need not show actual presence of a controlled substance | Court held § 48-1103(a)(1) does not require proof the substance actually was a controlled drug; surrounding evidence supported intent to use scale/bags with what Lesher believed was marijuana |
Key Cases Cited
- Ortiz v. United States, 942 A.2d 1127 (D.C. 2008) (standard for sufficiency review)
- Rivas v. United States, 783 A.2d 125 (D.C. 2001) (elements of constructive possession)
- Seeney v. United States, 563 A.2d 1081 (D.C. 1989) (substance identity not required for attempted possession; defendant’s belief matters)
- Newman v. United States, 49 A.3d 321 (D.C. 2012) (smell and packaging can show defendant believed substance was marijuana)
- Brooks v. United States, 130 A.3d 952 (D.C. 2016) (context for when possession of common item alone is insufficient to prove paraphernalia intent)
- Posters ‘N’ Things v. United States, 511 U.S. 513 (1994) (interpretive guidance on "intended for use" and objective factors for paraphernalia)
- Williams v. United States, 604 A.2d 420 (D.C. 1992) (paraphernalia conviction does not require proof item was actually used in drug activity)