Rose v. United States
49 A.3d 1252
D.C.2012Background
- Antoine Rose, also known as Virgil Johnson, was acquitted of distribution of PCP and convicted of simple possession; he challenges the possession conviction and the lesser-included offense instruction.
- Maurice D. Calloway was convicted of distribution of PCP, possession with intent to distribute (PWID), and drug paraphernalia; his suppression motion is denied and affirmed on appeal.
- Officers observed Calloway, Rose, and others at a Ninth Street SE location; Calloway retrieved objects from a tree and exchanged them for money with Rose nearby.
- A PCP-containing cigarette was recovered from a passenger in the stopped car; a PCP-containing vial was recovered from the tree, and cash and cigarettes were found on Calloway.
- Rose’s verdict form allowed a lesser-included possession finding only if the greater charge (distribution) was found not proven; there was no objection to the form, and Rose invited a possession finding.
- The court addresses whether simple possession is a lesser-included offense of distribution, applies plain-error review, and upholds sufficiency of the evidence for possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether possession is a lesser‑included offense of distribution | Rose contends possession is a lesser offense of distribution and should have been instructed. | Calloway (and the government) argue the issue is unsettled; no duty to instruct absent clear evidence. | No plain error; the instruction issue is not clearly erroneous on this record. |
| Application of plain-error standard to the instruction | Rose asserts plain error from the instructional error. | Court should require clear, obvious error affecting substantial rights. | Plain error not established; failure to object at trial defeats plain-error claim on this record. |
| Sufficiency of the evidence to convict Rose of possession | Evidence supports possession, given Rose’s conduct and the PCP evidence found. | Defense expert suggested conduct favored possession, not distribution; insufficiency argues otherwise. | There was sufficient evidence to convict Rose of possession of PCP. |
| Suppression ruling regarding Calloway | Calloway challenges suppression; claim is lack of probable cause and reasonable suspicion. | Court denied suppression; abundant evidence supported probable cause and reasonable suspicion. | Convictions affirmed; suppression denial summarily upheld. |
Key Cases Cited
- Brockington v. United States, 699 A.2d 1117 (D.C.1997) (test for lesser-included offense instruction—elements and evidentiary basis)
- Minor v. United States, 623 A.2d 1182 (D.C.1993) (possession not always a lesser-included offense of distribution; factual reconstruction concerns)
- Lomel Allen v. United States, 580 A.2d 653 (D.C.1990) (distribution preceded by possession; general principle cited)
- Mozee v. United States, 963 A.2d 151 (D.C.2009) (invited error doctrine noted in reviewing instructional decisions)
- Tyson v. United States, 30 A.3d 804 (D.C.2011) (plain-error test components for appellate review)
- United States v. Colon, 268 F.3d 367 (6th Cir.2001) (distribution can occur without possession; limitations on always treating possession as lesser offense)