154 A.3d 106 (D.C. 2017), 15-CF-504, Dorsey v. United States

Docket Nº:15-CF-504
Citation:154 A.3d 106
Opinion Judge:Phyllis D. Thompson, Associate Judge.
Party Name:JAMES J. DORSEY, APPELLANT, v. UNITED STATES, APPELLEE
Attorney:Cecily E. Baskir for appellant. L. Jackson Thomas II, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino and William Schurmann, Assistant United States Attorneys, were on the brief, for appellee.
Judge Panel:Before BLACKBURNE-RIGSBY, THOMPSON, and MCLEESE, Associate Judges.
Case Date:February 23, 2017
Court:Court of Appeals of Columbia District
 
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154 A.3d 106 (D.C. 2017)

JAMES J. DORSEY, APPELLANT,

v.

UNITED STATES, APPELLEE

No. 15-CF-504

Court of Appeals of Columbia District

February 23, 2017

Argued September 28, 2016.

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Appeal from the Superior Court of the District of Columbia. (CF3-9678-13). (Hon. Anita Josey-Herring, Trial Judge).

Cecily E. Baskir for appellant.

L. Jackson Thomas II, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino and William Schurmann, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, THOMPSON, and MCLEESE, Associate Judges.

JUDGMENT

This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment of the Superior Court is affirmed.

OPINION

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Phyllis D. Thompson, Associate Judge.

A jury convicted appellant James J. Dorsey of unlawful possession of a firearm (" UPF" ), possession of an unregistered firearm (" UF" ), and unlawful possession of ammunition (" UA" ). He seeks reversal of his convictions on the grounds that there was insufficient evidence for jurors to find beyond a reasonable doubt that he possessed the firearm and ammunition in question, and that the government's delay in disclosing information favorable to his defense violated his right to due process. Appellant also argues that the trial court abused its discretion when it failed to afford the defense a mid-trial continuance to obtain its own DNA expert. Finally, appellant argues that it was error for the trial judge -- who acknowledged that she otherwise " would not have given [appellant] three years in jail" -- to impose a three-year mandatory minimum sentence for the UPF charge, based on the court's determination that appellant had a prior conviction for a crime of violence, without the jury having so found. We affirm.

I

.

The evidence at trial established that on June 7, 2013, several members of the Metropolitan Police Department (" MPD" ) executed a search warrant of an apartment located at 4701 Alabama Avenue, S.E.1 Among the eight or so officers present were Officer Robert Ranck, Detective Anthony Campanalle,2 and Officer Mark Allen Dega. Officer Ranck testified that as the officers, who were all wearing vests that said " police," approached the residence, they observed appellant and two women

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standing on the balcony of the apartment. Appellant reacted by " enter[ing] into the apartment." " Less than a minute" later, after knocking on the apartment door and announcing their presence, the officers used a battering ram to force entry into the apartment unit. Officer Ranck testified that appellant and four other individuals, including two adult females, one juvenile male (who was in a back bedroom located about fifteen feet from the apartment's kitchen),3 and a female child, were inside the apartment (or on the balcony). Detective Campanalle testified that, as the officers made entry into the apartment, he saw appellant " exiting the kitchen area . . . ." 4

Officer Dega testified that during the search, one of the officers found a .357 Magnum revolver located on the top shelf inside a cabinet in the apartment's kitchen. Officer Dega, a crime scene technician, testified that after photographing the gun on the shelf, he retrieved the gun, placed it on a kitchen countertop to photograph it, and thereafter placed the gun in a paper bag for transmission to the police station.

The government's evidence at trial also included the testimony of DNA analyst Andrea Borchardt-Gardner. Borchardt-Gardner testified that from the biological material collected from a swab of the gun, she was able to develop a partial DNA profile (i.e., eight of the fifteen locations that would constitute a full profile) that was from a single male contributor.5 Borchardt-Gardner testified that she compared that profile with appellant's DNA profile and found that " every allele [she] detected in the evidence sample was consistent with [appellant]." She concluded that appellant could not be excluded as a possible contributor of the partial DNA profile recovered from the gun. Based on a statistical analysis, she determined that the probability of randomly selecting another individual unrelated to appellant with the same partial DNA profile as the one recovered from the gun was one in 290 billion in the U.S. Caucasian population, one in eleven billion in the U.S. African-American population, and one in 52 billion in the U.S. Hispanic population. Borchardt-Gardner also testified that, while she had read a scholarly article about the secondary transfer of skin cell DNA (e.g., the transfer of DNA from skin cells present on an object to another object when the two objects touch), she had never encountered such a transfer in her own experience (as a supervising and senior DNA forensic analyst). She further testified that " [n]obody has the same DNA except for identical twins" and that a " son would share 50 percent of [his father's] DNA."

After the jury found appellant guilty on all three counts, the court sentenced him to the three-year mandatory minimum sentence described in D.C. Code § 22-4503 (b)(1) (2012 Repl.), based on his 1999 conviction in Maryland for first-degree assault.

II

.

Appellant contends that the evidence was insufficient to prove beyond a

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reasonable doubt that he possessed the gun found in the kitchen cabinet or its ammunition. When reviewing an insufficiency-of-the-evidence claim, we view the evidence in the " light most favorable to the government, drawing all reasonable inferences in the government's favor, and giving deference to the jury's right to determine credibility and weight." Rollerson v. United States, 127 A.3d 1220, 1232 (D.C. 2015) (quoting Blakeney v. United States, 653 A.2d 365, 369 n.3 (D.C. 1995)). " 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." Schools v. United States, 84 A.3d 503, 508 (D.C. 2013) (internal quotation marks omitted) (quoting Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C. 2004)).

To sustain a conviction for UPF, the evidence " must show that 1) the defendant had been convicted of a felony and 2) that he owned or kept a firearm, or that he had a firearm in his possession or under his control." Hammond v. United States, 77 A.3d 964, 969 (D.C. 2013) (internal quotation marks omitted). To support a conviction for UF, the evidence " must show 1) that the defendant knowingly possessed a firearm; and 2) that firearm had not been registered as required by law." Id. (internal quotation marks omitted). In general, to support a conviction for UA, the evidence must show that that the defendant possessed ammunition without having the necessary registration for a firearm. D.C. Code § 7-2506.01 (a)(3) (2012 Repl.). A weapon can be actually or constructively possessed. See Gorbey v. United States, 54 A.3d 668, 700 (D.C. 2012). " Constructive possession of a weapon requires proof that a defendant (1) knew of the weapon's location; (2) had the ability to exercise dominion and control over it; and (3) intended to exercise such dominion and control." Id. (internal quotation marks omitted). " The government may establish these elements by either direct or circumstantial evidence." Id. (internal quotation marks omitted). Evidence showing defendant's " connection with a gun" or " evasive conduct . . . coupled with proximity may suffice" to establish constructive possession. United States v. Alexander, 331 F.3d 116, 127, 356 U.S.App.D.C. 299 (D.C. Cir. 2003) (internal quotation marks omitted).

In this case, a number of factors support an inference that appellant constructively possessed the gun. First, although there was no evidence that appellant resided in the apartment,6 the government's evidence was that, of those present in the apartment at the time police officers entered, appellant was the only one seen exiting and in close proximity to the kitchen where the gun was found. Second, Officer Ranck testified that appellant immediately left the balcony when he saw the police officers approaching. The jury could infer that this was evasive conduct by appellant consistent with a consciousness that he needed to ensure that any contraband was off his person or hidden. See Alexander, 331 F.3d at 127 (" [E]vasive conduct . . . coupled with proximity [to an item] may suffice" to prove constructive possession of the...

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