Cox v. United States
| Decision Date | 15 July 2010 |
| Docket Number | No. 07-CF-1345.,07-CF-1345. |
| Citation | 999 A.2d 63 |
| Parties | Nelson COX, Appellant,v.UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Lisa D. Chanel for appellant.
Leslie Ann Gerardo, Assistant United States Attorney, with whom Jeffrey A. Taylor and Channing D. Phillips, respectively the United States Attorneys at the times of original and supplemental briefing, Roy W. McLeese III, Elizabeth Trosman, and Sharon K. Donovan, Assistant United States Attorneys, were on the briefs, for appellee.
Before GLICKMAN, KRAMER and OBERLY, Associate Judges.
After a jury trial, appellant Nelson Cox was convicted of two crimes: (1) possession with intent to distribute a controlled substance, cocaine, while armed,1 and (2) the commission of that offense (a felony) while on release in another case.2 He was acquitted of a number of other offenses: possession of a firearm during a crime of violence (PFCV); carrying a pistol without a license (CPWL); four counts of possession of an unregistered firearm (UF); and eight counts of unlawful possession of ammunition (UA). The counts on which Cox was convicted, as well as the PFCV and CPWL counts and one count each of UF and UA, stemmed from his arrest in a traffic stop. The remaining UF and UA counts resulted from a subsequent police search of Cox's mother's residence.
Cox raises a bevy of challenges to his convictions. Only one of his claims entitles him to any relief. We hold that the trial court responded erroneously to a jury note seeking clarification of the phrase “while armed with or having readily available a pistol” in the instruction on possession with intent to distribute cocaine (PWID) while armed. The court did not dispel the jury's evident confusion as to the meaning of the term “readily available.” By telling the jury to give the words their “ordinary meaning ... in everyday conversation,” the trial court permitted the jury to convict Cox simply because a pistol was within his reach, even if he was unaware of the weapon's presence or lacked the intent to exercise dominion or control over it. As we cannot deem the error to have been harmless, appellant's conviction of PWID while armed cannot stand.
On September 17, 2005, United States Park Police Officer Frank Morales stopped a car with windows tinted more darkly than District law permits. Officer Morales and his partner, Officer Cynthia Barrett, approached the car while a third police officer, Officer James Knapp, arrived to back them up. As Officer Morales came up on the driver's side of the vehicle, he noticed the front seat passenger bend over and move his hands at or below knee level.
Upon addressing the driver to tell him the reason for the stop, Officer Morales smelled alcohol on the driver's breath and asked him to step out of the car to take a sobriety test. The driver agreed to do so and asked whether he was going to be searched, explaining that he had a BB gun in his waistband. At Officer Morales's directions, the driver removed the gun and placed it atop the vehicle. The front seat passenger did not have any weapons on his person.
Meanwhile, appellant Cox, who was sitting in the seat behind the front passenger, had been ordered to put his hands where the officers could see them. Despite that order, Cox allowed his hand to drop toward his waistband. Worried that Cox was reaching for a gun, Officer Morales directed him to pull his hand back up. Cox complied, but as Morales tried to communicate with Officer Knapp, Cox again allowed his hand to drop. Morales then ordered him out of the car and began to pat him down for weapons.
During the pat down, Officer Morales's “hand went over [what was] immediately apparent to [him] [as] a bag of narcotics” concealed in an extra pocket in Cox's jacket. (We quote the testimony, credited by the trial court, that Morales gave in the hearing on Cox's evidence suppression motion.) The bag was about “two inches long, maybe a little over an inch wide and full” of what Morales identified as crack cocaine. The officer testified that he did not squeeze or manipulate the bag, but knew at once what it was, since he had felt similar objects “over a hundred times easy.” Morales proceeded to seize approximately sixty ziplock plastic bags containing an off-white rock-like material. This cocaine, as later testing confirmed it to be, was the subject of the PWID while armed count on which Cox was convicted.3
After placing Cox under arrest, the police searched the car. Underneath the front passenger seat, Officer Morales found a Taurus .38 caliber revolver lying on the floor behind the lever used to move the seat forward or backward. The handle of the pistol was facing the rear of the car, where Cox had been seated. The pistol was loaded with distinctive, two-toned hollow-point bullets. The police later test-fired the weapon and determined that it was operational. The “while armed” enhancement of the PWID count on which Cox was convicted related to this pistol, as did the PFCV and CPWL counts and one of the UF counts, on each of which Cox was acquitted.4
At the police station, Cox gave a statement on videotape in which he said he had found the drugs and put them in his pocket, intending either to sell them to a crack user or to give them away. Cox did not admit to having known about the pistol hidden under the front passenger seat.5
Cox also told the police in his videotaped statement that he had been living at his mother's residence. Two-and-a-half months later, on December 7, 2005, United States Park Police officers executed a search warrant at that location. Throughout the premises, the officers found firearms and ammunition, including bullets of the same type, and bearing the same markings, as those discovered in the pistol seized by Officer Morales during the September traffic stop. Along with the firearms and ammunition, the Park Police also found photographic identification papers and other documents in Cox's name, including mail sent to him at that address. (At the time of the search, Cox was no longer living in the house, as he had been incarcerated as a result of his September arrest.) 6
D.C.Code § 22-4502(a) (Supp.2009) permits the imposition of enhanced penalties on persons convicted of having committed a crime of violence or a dangerous crime “when armed with or having readily available” a pistol. Cox raises two challenges to his conviction under this statute. First, he contends, the trial court should have granted his motion for judgment of acquittal because the government failed to adduce sufficient evidence to prove he was “armed with” the pistol under the front passenger seat or that it was “readily available” to him while he was carrying the cocaine.7 Second, he argues, the trial court erred in instructing the jury on the meaning of the words “armed with or having readily available” when the jury requested clarification. We address these claims in turn.
“A court must deem the proof of guilt sufficient if, ‘after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” 8 We must give “ ‘full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” 9
In the present case, the sufficiency question is a close one. Cox was not “armed with” the pistol hidden under the seat in front of him; we have held that “armed with” in D.C.Code § 22-4502(a) “means actual physical possession of the pistol or other firearm.” 10 And, while Cox was sitting within reach of the pistol, proximity and ease of access alone do not suffice to prove ready availability: we have construed the statute to mean that “in order to have a weapon ‘readily available,’ one must at a minimum have constructive possession of it.” 11 To prove constructive possession, the prosecution was required to show that Cox knew the pistol was present in the car, and that he had not merely the ability, but also the intent to exercise dominion or control over it.12
The elements of constructive possession may be established by direct or circumstantial evidence.13 Direct evidence of Cox's possession of the pistol was lacking: Cox did not confess to having possessed the weapon, no witness testified to having seen him with it, and his fingerprints were not found on it. Moreover, as the pistol was not in Cox's plain view, his knowledge and intent cannot be inferred from the mere fact that he was near it.14 Indeed, as Cox argues, the pistol could have been hidden by the front seat passenger, whose suspicious movements Officer Morales observed when he approached the car. The government did not present any evidence at trial as to the relationship between Cox and the front seat passenger (or any other occupant of the vehicle).15
Nonetheless, other circumstantial evidence in addition to the pistol's location close to Cox supported the inference that Cox constructively possessed it. To begin with, as the government argued at trial, the orientation of the pistol on the floor under the seat, with its handle facing the rear, suggested it was the rear-seat passenger, Cox, who had stowed it there. The fact that the pistol was loaded with the same distinctive ammunition that the police subsequently discovered in the house where Cox had been living also helped link the weapon to him. Furthermore, this is a situation where “the additional evidence needed to complete the proof of constructive possession may be furnished by evidence linking the accused to an ongoing criminal operation of which that possession is a part.” 16 To invoke that principle, “[t]he...
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