84 A.3d 503 (D.C. 2013), 12-CF-1448, Schools v. United States

Docket Nº:12-CF-1448.
Citation:84 A.3d 503
Opinion Judge:THOMPSON, Associate Judge:
Party Name:James M. SCHOOLS, Appellant, v. UNITED STATES, Appellee.
Attorney:Jamison Koehler was on the brief for appellant. Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Ben Schrader, and Peter S. Smith, Assistant United States Attorneys, were on the brief for appellee.
Judge Panel:Before THOMPSON, Associate Judge, and WAGNER and SCHWELB, Senior Judges. WAGNER, Senior Judge, dissenting:
Case Date:December 19, 2013
Court:Court of Appeals of Columbia District
 
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Page 503

84 A.3d 503 (D.C. 2013)

James M. SCHOOLS, Appellant,

v.

UNITED STATES, Appellee.

No. 12-CF-1448.

Court of Appeals of Columbia District.

December 19, 2013

Submitted Oct. 22, 2013.

Page 504

[Copyrighted Material Omitted]

Page 505

Jamison Koehler was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Ben Schrader, and Peter S. Smith, Assistant United States Attorneys, were on the brief for appellee.

Before THOMPSON, Associate Judge, and WAGNER and SCHWELB, Senior Judges.

THOMPSON, Associate Judge:

A jury convicted appellant James Schools (aka David Schools) of unlawful possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition (acquitting him of possession with intent to distribute cocaine while armed, lesser-included cocaine-possession charges, and possession of a firearm during a crime of violence). He seeks reversal of his convictions on the ground that the evidence at trial was not sufficient to show that he had constructive possession of the gun and ammunition— i.e., that " no jury could have reasonably concluded beyond a reasonable doubt that [he] knew about the firearm and ammunition" or that he " had the requisite intent to exercise dominion and control" over them. We are persuaded by his argument and therefore reverse.

I. The Evidence

The government presented evidence that shortly after 7:00 a.m. on April 21, 2011, Metropolitan Police Department (" MPD" ) officers executed a search warrant of an apartment located at 1608 17th Place, S.E. The apartment, which was on the first floor of a two-story building, had a front bedroom and a second " back bedroom"

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that had been converted from a sleeping porch and had a door that led outside. Officer Alvin Cardinal testified that when police arrived at the apartment, they knocked on the door and one officer loudly yelled, " Police, search warrant" at least twice. After waiting 15 to 30 seconds and hearing no response from inside the apartment, officers used a battering ram to force entry into the apartment. They first encountered a woman and a child near the front of the apartment. Officer Cardinal and Detective Scott Brown, another member of the search team, testified that two other people were stopped just outside the apartment, on the " ledge" of the back-bedroom door that led to the outside. When Officer Cardinal first approached the back bedroom, he found appellant, whom he described as a " large gentleman," standing next to a bed, his back turned away from the door, and his hands positioned " as if he was manipulating or hiding something." Appellant was wearing only a pair of boxers and a tank top. Officer Cardinal twice ordered appellant to " put his hands up." After the second order, appellant dropped a " white object," raised his hands, and turned around. Officer Cardinal handcuffed the appellant and took him into the living room, where officers were detaining " all the other ... occupants who were in the house[.]"

When officers returned to the back bedroom after taking appellant into the living room, they saw, in the area where appellant had dropped the white object, a white, man's shoe, inside of which were 53 green zip-lock bags containing crack cocaine. Officers also found a digital scale on the windowsill of the room. Detective Erick Alvarado testified that in the right middle drawer of a three-level, six-drawer dresser, " hidden underneath clothing," [1] he found a .45-caliber handgun in a plastic bag, five rounds of ammunition, and a shaving-kit-like bag that contained, in a side pouch, a potato chips bag, inside of which were empty, pink ziplock bags. Police were unable to recover any fingerprints from the handgun or the ammunition.[2]

Officer Cardinal identified Government Exhibit 37 as a videotape that a police technician took on the morning of the search, which, the officer explained, was recorded before officers started searching, " just to show where all the evidence" was before anything was moved. As the prosecutor played the video for the jury, Officer Cardinal identified a shot of appellant (whom the video shows to be a heavyset man) and a shot of two other (much smaller) men, who are shown seated in the living room and who Officer Cardinal testified were " in the search warrant."

MPD Detective Lavinia Quigley, who also participated in the search, testified that as it got underway, she gave appellant men's clothing (a shirt and sweat pants) that she had found on a chair in the back bedroom, and he put the clothes on. She had also looked in the front bedroom for clothes for appellant, but found only female clothing and children's clothing. She also gave appellant shoes that she testified she believed she got from the back bedroom (although, when pressed on cross-examination, she testified that she was " not sure" that she got the shoes from the back bedroom rather than from a clothes

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closet in the living room).[3] She testified on cross-examination that her recollection was that there were clothes in the living room closet.

MPD Detective George Thomas testified about the use of digital scales and ziplock bags in drug distribution, the distribution-quantity and heat-sealed ziplock packaging of the cocaine found in the apartment, and the " reason[s] that someone might possess a gun in connection with narcotics." He also testified that the color of ziplock bags used can be " representative of [a drug dealer's] brand of packaging." On cross-examination, Detective Thomas testified that a drug dealer's stash might be kept in " someone else's place of abode[.]"

Valene Mason and MPD Officer Christopher Eckert testified for the defense. Mason testified that she lived in the apartment with appellant and the couple's young daughter. Appellant's nephew Jervel Mason (" the nephew" ) had also been living there since the beginning of April, and both the nephew and a man by the name of Timothy Thomas had stayed in the apartment on the night before the search. " [N]ormally," Mason testified, the nephew slept in the back bedroom, and appellant slept in the living room and kept his clothes in the living room closet and the closet in the front bedroom. Mason further testified that on the night of the search, appellant, whose health was " pretty bad," slept in the back bedroom because he was feeling sick. Mason testified that the clothing inside the dresser in the back bedroom belonged to the nephew.[4] She testified that the shoe (Government Ex. 2) containing cocaine also belonged to the nephew, as did a wallet in the back bedroom that was shown in the police videotape. She testified that a pack of Marlboro cigarettes in the back bedroom also shown in the video belonged to Timothy Thomas. Mason further testified that when police came to the apartment to execute the search warrant, the nephew and Thomas ran out the door of the back bedroom. Mason identified two young men whom the video shows sitting in the living room as the nephew and Timothy Thomas.

Officer Christopher Eckert testified that he arrested a man name Ronnie Caldwell on June 1, 2011, and recovered 42 green zip lock bags containing crack cocaine.[5] Mason testified that Mr. Caldwell had been regularly visiting the apartment during the week leading up to appellant's arrest, that she was afraid of Caldwell because he had been " involved in ... shootings" in the neighborhood and because she had seen him engage in physical violence, and that she had seen Caldwell bring a gun into the apartment.

II. Applicable Law

The government proceeded against appellant on the theory that he constructively possessed the gun and ammunition. Accordingly, the government was required to prove that he " (1) knew of the presence of the contraband, (2) had the power to exercise dominion and control over it, and (3) intended to exercise dominion and control

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over it." Ramirez v. United States, 49 A.3d 1246, 1249 (D.C.2012) (internal quotation marks omitted). Appellant contends that no reasonable juror could have found beyond a reasonable doubt that he knew about the contraband because it was hidden from view, he made no movement toward it, and he gave no " other indication that he knew what was tucked away under some clothes inside," " much less" that the other criteria for constructive possession were satisfied.

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." Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C.2004) (internal quotation marks omitted). In considering an...

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