Lead Opinion
Appellant Tamara Smith appeals her convictions of unlawful possession of a firearm (“felon in possession”), possession of an unregistered firearm, two counts of unlawful possession of ammunition, and possession of a prohibited weapon (a machine gun),
I.
On August 27, 2010, at 5:40 p.m., officers of the Metropolitan Police Department executed a search warrant at an apartment located at 3908 Stanton Road in Southeast, Washington, D.C.
During an interview conducted after her arrest, appellant stated that she lived in the apartment with Evans and his fifteen year old son.
At trial, the government relied on a theory that appellant constructively possessed the firearm and boxes of ammunition found in the purple backpack next to her bed and the firearm and ammunition found in the black duffle bag in the loft. Appellant was tried but acquitted on the counts of possession of an unregistered firearm and unlawful possession of ammunition related to the contents of the black duffle bag found in the loft area. The jury convicted appellant of all counts related to the contents of the purple backpack and this appeal followed.
II.
“When there is a sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether a reasonable factfinder could find guilt beyond a reasonable doubt.” James v. United States, 39 A.3d 1262, 1269 (D.C.2012) (internal quotation marks and citation omitted). “[T]he jury is entitled to draw a vast range of reasonable inferences
“Constructive possession, which is simply a doctrine used to broaden the application of possession-type crimes to situations in which actual physical control cannot be directly proved, is often described in terms of dominion and control.” 1 Wayne R. LaFave, Substantive Criminal Law § 6.1(e) (2d ed. 2003). To prove constructive possession of contraband, the evidence must show that the accused (1) had knowledge of its presence and (2) “had both the ability and the intent to exercise dominion and control over it.” Moore, supra, 927 A.2d at 1050. “Constructive possession may be sole or joint.” Rivas v. United States, 783 A.2d 125, 129 (D.C.2001) (en banc); see, e.g., Moore, supra, 927 A.2d at 1051 (determining that “[i]t is of little moment that much of the same evidence showed constructive possession by [both of Moore’s co-defendants]”). The elements of constructive possession “may be proven by direct or circumstantial evidence.” Rivas, supra, 783 A.2d at 129.
“Where knowledge and ability to exert control over contraband are shown, the additional evidence necessary to prove constructive possession is comparatively minimal.” Moore, supra, 927 A.2d at 1050 (internal quotation marks and citation omitted). We have recognized that such “additional evidence” may include “[e]vidence showing the accused’s control or occupancy of the premises in which the contraband is found.” Id. Indeed, a jury is generally “entitled to infer that-a person exercises constructive possession over items found in his home”; that is, by virtue of the contraband being found in an occupant’s home, a juror may infer that the occupant has both knowledge of its presence and intent to exercise dominion and control of the contraband. Id. (internal quotation marks and citation omitted); see also Taylor v. United States, 662 A.2d 1368, 1373 (D.C.1995) (“It is usually easy to establish that the owner of a car or the occupant of a living area has constructive possession of illicit items recovered from these places.”). Although this inference does apply even if a person shares the premises with others, “it is plainly not as strong an inference in that circumstance.” Moore, supra, 927 A.2d at 1050. Therefore, “there must be something more in the totality of the circumstances — a word or deed, a relationship or other probative factor — that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the defendant intended to exercise dominion or control over the [contraband], and was not a mere bystander.” James, supra, 39 A.3d at 1269 (quoting Rivas, supra, 783 A.2d at 128) (emphasis in original). Ultimately, “[w]hether constructive possession has been proved beyond a reasonable doubt in any given case depends on a fact-specific inquiry into all the circumstances.” Id. (internal quotation marks and citation omitted).
Viewing the evidence in the light most favorable to the government, we conclude that the evidence was sufficient to
First, although the backpack was closed when the officers initiated their search, the presence of the backpack in appellant’s bedroom was conspicuous. It was a brightly colored purple backpack, designed for children, and no children lived in the apartment. The brightly colored children’s backpack was conspicuously leaning in plain sight against an entertainment center adjacent to appellant’s bed. Importantly, the backpack was not secreted in a closet or hidden out of sight. Nor was it a typical “man’s backpack” that was in an area of the bedroom that suggested it was in Evans’ sole possession, such as a drawer or closet used only by Evans. Second, regardless of whether the jury credited the police officers’ testimony indicating that appellant told the police after her arrest that she was alone in the apartment during the week prior to the search or, alternatively, the testimony from appellant’s neighbor that Howard was in and out of the apartment that week, it was undisputed that appellant was alone in the master bedroom during that period. Thus, appellant was the sole occupant of the master bedroom for several days before the search, with ample ability to control the backpack and its contents, conspicuously located in her bedroom next to her bed. From these facts, a juror could reasonably infer that appellant had the requisite intent to exercise control over the backpack.
Notably, the jury acquitted appellant of all counts related to the contraband in the black duffle bag that the police found in the closet of the loft area. This verdict suggests that the jurors’ review of the evidence was nuanced. The verdict reflected that appellant’s connection to the black duffle bag was more attenuated than her connection to the purple backpack because the black duffle bag was not found in appellant’s bedroom and was not in a conspicuous location, notwithstanding that some of her personal items were found in the loft area where the police recovered the duffle bag. The jury arguably discerned that the “something more” required to establish constructive possession was lacking with respect to the black duf-
This case is distinguishable in several critical aspects from In re R.G., 917 A.2d 643 (D.C.2007), upon which appellant relies, where we held that R.G. did not have constructive possession of a pistol found in her bedroom, within several feet of where she was found sleeping. In R.G., there was evidence that the windowsill on which the pistol was found was dusty but that the pistol itself was not, suggesting that the pistol had recently been brought into R.G.’s bedroom, and R.G. testified that her boyfriend had entered her room in the early morning hours. 917 A.2d at 648-49. Here, appellant was the sole occupant of the master bedroom for the week prior to execution of the search warrant. In R.G., we noted that “the difficulty with the District’s case is that R.G.’s boyfriend was in the room, and indeed in the bed, with R.G., and the District offered no evidence tending to show that it was not the boyfriend who owned the pistol and who brought it to R.G.’s room.” Id. at 649. In contrast, whereas R.G. did not have exclusive control over the room when the police recovered the pistol, appellant had exclusive control over her bedroom while Evans was out of town until shortly before the police executed the warrant and appellant and Evans were not in bed together when the police arrived. The court in R.G. also expressed concern as to whether R.G., who was a minor, had the ability to order an armed adult man to remove the weapon from her bedroom. Id. at 651. In this case, however, a reasonable juror could find that appellant had the ability to exercise dominion and control over the backpack and its contents when she was the sole occupant of the bedroom for the week prior to the search.
This case is also distinguishable from Rivas v. United States, where we reversed the conviction despite finding that the accused was in close proximity to the cocaine and had knowledge of its presence. 783 A.2d 125 at 134-35. In Rivas, we held that, although it was suspicious that Rivas had been in the car next to the cocaine, which was in plain sight, and that he walked away from the scene when police arrived, the evidence was insufficient to prove beyond a reasonable doubt that Rivas harbored the requisite intent to possess the cocaine and was not a “mere bystander” who was in “the wrong place at the wrong time.” Id. at 135-38. We were troubled by the lack of evidence to establish “how long Rivas had been in the car, how he had come to be there, or what he had been doing.” Id. at 134. Here, we know that appellant was not just a visitor who happened to be found at the apartment when the police arrived. To the contrary, the evidence established that appellant lived there and her belongings were scattered throughout the apartment. Indeed, her identification card was found in close proximity to the purple backpack in her bedroom. Consideration of the evidence in its totality — especially that appellant was the sole occupant of the master bedroom for several days before the search and therefore had the ability to exercise control over the conspicuously colored backpack that was in her bedroom next to her bed — belies the possibility that appellant was a “mere bystander.”
While we acknowledge that this is a close case, we emphasize that for purposes of our review, we must view the evidence in the light most favorable to the government and reverse only “when there is no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt.” Moore, supra, 927 A.2d at 1049. The evidence presented during tri
For the foregoing reasons, appellant’s convictions are hereby
Affirmed.
. D.C.Code § 22-4503(a)(1) (2009 Supp.); D.C.Code § 7-2502.01 (2009 Supp.); D.C.Code § 7-2506.01(3) (2009 Supp.); and D.C.Code § 22-4514(a) (2009 Supp.), respectively.
. Our review of a transcript of a pretrial hearing indicates that the search warrant was predicated on information provided by a confidential informant who had visited the apartment within forty-eight hours prior to the search and had observed two guns therein, which the informant described as a dark colored AK-47 assault rifle and a black 9 millimeter semi-automatic handgun. The government was unable to locate the confidential informant for trial and did not disclose the informant’s identity. The jury was not privy to the information in the affidavit used to obtain the warrant, and we do not consider it when assessing the sufficiency of the evidence. The trial judge did, however, inform the jury that the police had the right to search the closed bags found in the apartment.
. Neither appellant nor Evans testified during the trial but police officers testified about statements made by Evans and appellant. All statements from these parties were made during post-arrest interviews conducted by the police.
. In evaluating sufficiency challenges in the context of charges other than constructive possession, we have recognized that "[i]ntent can rarely be proved directly, and must often be discerned from the surrounding circumstances.” Gray v. United States, 585 A.2d 164, 165 (D.C.1991) ("Although the evidence arguably does not exclude every hypothesis inconsistent with an intent to kill — [the appellant] might conceivably have intended only to wound the children — this does not invalidate the jury's verdict. The evidence need not compel a finding of guilt beyond a reasonable doubt.”); see also Long v. United States, 687 A.2d 1331, 1346 (D.C.1996) ("It is well established that the jury may infer the intent to rob from the 'totality of the evidence.’ ”); Bailey v. United States, 831 A.2d 973, 986 (D.C.2003) ("Intent is often inferred from surrounding circumstances.”).
Concurrence Opinion
concurring in part and concurring in the judgment:
As the court acknowledges near the conclusion of its opinion, this is indeed a “close case.” That is hardly a rarity in “constructive possession” prosecutions. More than forty years ago, in his concurring opinion in United States v. Holland, 144 U.S.App.D.C. 225, 227-28, 445 F.2d 701, 708-04 (1971), Judge Tamm commented that “the more cases one reads on constructive possession, the deeper is he plunged into a thicket of subjectivity.... It is illogical to believe that from the chaotic patchwork which flows ex cathedra, there is created a stable and definable body of law.” Unfortunately, the intervening decades have not, in my judgment, significantly allayed the concern expressed by Judge Tamm in Holland, and the liberty of the citizen often turns on largely subjective judgments.
In this particular case, I have no doubt that there was ample circumstantial evidence to permit an impartial juror to find beyond a reasonable doubt that Ms. Smith had knowledge not only of the purple backpack in the bedroom that she shared with her boyfriend, Maurice N. Evans, but also of the bag’s deadly contents, which included a .45 caliber Uzi style machine gun and numerous rounds of ammunition. The only question of substance presented in this appeal is whether the prosecution established the final and most challenging element of a constructive possession case, namely, proof beyond a reasonable doubt that the defendant intended, individually or jointly with Evans, to exercise dominion and control over the contraband and to guide its destiny. See In re R.G., 917 A.2d 643, 648, 649 n. 4 (D.C.2007). This question, in my view, largely turns on whether or not the present case is controlled by our decision in R.G., which is the main authority relied on by Ms. Smith’s counsel on appeal.
For the reasons summarized below, I am of the opinion that the principal distinctions from R.G. suggested by the government, and to some extent by the court, are unrealistic and, at least to me, uncon-
I.
In R.G., the police executed a search warrant during the early hours of the morning in seventeen-year-old respondent R.G.’s bedroom. They recovered a loaded .38 caliber pistol from a window sill adjacent to the bed which R.G. was sharing with her adult boyfriend. Both R.G. and the boyfriend were arrested and charged, inter alia, with carrying a pistol without a license (CPWOL).
R.G. testified that she was unaware of the presence of the weapon and that the boyfriend must have brought it with him when he came to visit her at 3:00 a.m. that day, a few hours before the arrival of the officers. There was dust on the window sill but not on the pistol, a fact which tended to corroborate R.G.’s claim that the pistol had not been at that location for an extensive period of time.
The trial judge adjudicated R.G. to be guilty of CPWOL and related offenses. The judge did not believe R.G.’s claim that she (R.G.) was unaware of the presence of the pistol. The judge did not, however, explicitly address the “intent” element of constructive possession. This court unanimously reversed the adjudication of guilt, concluding as a matter of law that although there was ample evidence to support the trial judge’s finding that R.G. knew of the presence of the pistol, the District of Columbia had failed to prove beyond a reasonable doubt that R.G. intended to exercise dominion and control over the weapon.
II.
In its brief in the present case, the government emphasizes that Ms. Smith’s boyfriend (and co-resident) had been out of town for a week or so, returning to the apartment earlier on the day that the police executed the search warrant, and that during his absence, Ms. Smith had been the only person staying in the unit. It was especially significant, according to the government, that by her own admission, Ms. Smith “was the only one who had stayed [at the apartment] — and thus had control of the premises — in the week leading up to the execution of the search warrant.” My colleagues in the majority seem to agree with the government, and they too focus on the fact that Ms. Smith “was the sole occupant of the master bedroom for the week prior to the execution of the search warrant.” Why, the government and the majority implicitly ask, did Ms. Smith not get rid of the contraband while she was in control?
Why not, indeed? I suggest that to decide the case on the theory that Ms. Smith is guilty because she did not remove the Uzi and ammunition during her boyfriend’s brief absence is to adhere to the dubious principle that, in the informal and ironical (but unpublished) phrase coined by one of my colleagues on the court, we must “hold the line against creeping practicality.” First, on the record before us, no trier of fact could fairly find beyond a reasonable doubt that the Uzi and ammunition were brought to the apartment during the week that Ms. Smith was there alone. Indeed, Ms. Smith’s boyfriend acknowledged to the police that some of the ammunition — though not the rounds recovered from the bedroom — belonged to him and had been in the apartment for years.
If the contraband was already in the unit when Evans left, then I suppose that
My colleagues also attempt to distinguish R.G. on another (but related) ground, as follows:
The court in R.G. also expressed concern as to whether R.G., who was a minor, had the ability to order an armed adult man to remove the weapon from her bedroom. Id. at 651. In this case, however, a reasonable juror could find that appellant had the ability to exercise dominion and control over the backpack and its contents when she was the sole occupant of the bedroom for the week prior to the search.
Although it is true that R.G. was a minor — she was seventeen years old — I do not believe that the outcome of her appeal would have been different if she had been a year older, or even twice as old. Tamara Smith was thirty-four years of age at the time of her arrest, but ordering an armed man to remove weapons from the apartment they shared would surely be a perilous venture regardless of a woman’s age. Further, for the reasons I have described, Evans’ trip out of town was, in my judgment, largely irrelevant. I therefore cannot associate myself with the stated grounds on which the majority seeks to distinguish this case from our unanimous decision in R.G.
III.
Notwithstanding my views as set forth above, however, I do not believe that the decision in In R.G. controls this appeal. Although I agree with my colleagues that the case is a close one, I conclude, albeit not without with some hesitation, that Ms. Smith’s convictions should be affirmed.
The facts in Ms. Smith’s case are dramatically different. When the police arrived at the apartment to execute the search warrant, they found themselves in what amounted to, or at least suggested, a small indoor arsenal or garrison. Recovered from various locations in the apartment were a .45 caliber Uzi style machine gun, a black assault-style weapon, and well over 150 rounds of .357 and other ammunition, as well as a bulletproof vest, a gun-cleaning kit, and several indicia of a drug selling operation. Evans admitted to the police that some of the .357 ammunition had previously belonged to a now-dead relative and had previously been in his own possession for many years.
Viewing the record, as we must, in the light most favorable to the prosecution, and drawing all reasonable inferences in the prosecution’s favor, an impartial juror could surely find beyond a reasonable doubt that Ms. Smith, a resident of the apartment, knew of the weaponry that was located there, and especially of the Uzi and the ammunition in the closed backpack found near her bed, ie., the contraband of which she was convicted of possessing. This is true even though the items were not in plain view when the police entered.
This does not, of course, resolve the issue whether the prosecution proved that Ms. Smith had the requisite intent. In R.G., we recognized that the constructive possession doctrine should not automatically be applied “to impose liability on a person who simply fails to dissociate from, or has mere knowledge of, the presence of contraband.” Id. at 651 (quoting Rivas v. United States, 783 A.2d 125, 145 (D.C.2001) (en banc) (Ruiz, J., concurring)).
Few constructive possession cases are simple. Whether a given factual situation involves the intent to exercise dominion
The applicable standard, however, is whether any reasonable juror could, on these facts, find the requisite intent beyond a reasonable doubt. For me, that is not at all an easy call, but I am not prepared, on this record, to second-guess the verdict of the jury. Accordingly, I join my colleagues in voting to affirm the judgment.
. If the contraband belonged to Mr. Evans and Ms. Smith turned it over to the police, she would, among other things, be stealing Evans' property, albeit property he presumably had no legal right to possess.
. Evans entered a guilty plea with respect to this ammunition.
. But see also R.G., id. at 650 (declining to decide under what, if any, circumstances, passive but willing tolerance of the presence of contraband satisfies the intent required for constructive possession).