Lesher v. United States

• Decision Date: 01 December 2016
• Docket Number: No. 14–CM–1474,14–CM–1474
• Citation: 149 A.3d 519
• Parties: Kamonte J. Lesher, Appellant, v. United States, Appellee.
• Court: D.C. Court of Appeals

149 A.3d 519

Kamonte J. Lesher, Appellant,

v.United States, Appellee.

No. 14–CM–1474

District of Columbia Court of Appeals.

Submitted September 13, 2016

Decided December 1, 2016

Ian A. Williams was on the brief for appellant.

Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Kamil Shields and Jason B. Feldman, Assistant United States Attorneys, were on the brief for appellee.

BEFORE: Thompson and McLeese, Associate Judges; and Ruiz, Senior Judge.

Thompson, Associate Judge:

Following a bench trial, appellant Kamonte Lesher was found guilty of attempted possession with intent to distribute a controlled substance (marijuana) (“attempted PWID”) and possession of drug paraphernalia (“PDP”). See D.C. Code §§ 48–904.01(a)(1), 48–904.09, 48–1103(a) (2012 Repl.). He asserts that the evidence was insufficient to sustain the convictions and that the trial court reversibly erred by allowing a police officer to testify about the results of a field test. We disagree and therefore affirm.

I.

The government presented evidence that on the evening of March 5, 2014, members of the Metropolitan Police Department executed a search warrant at a row house located at 725 Otis Place, N.W. Officer Qasim Thomas testified that, while searching a large room on the second floor of the house, he found, in plain sight in the middle of the floor, a social security card, a notice of unsatisfied parking tickets, and a police report from an unrelated incident, all bearing appellant's name.¹ Although other people were in the house during the search, no documents or personal items belonging to any other person were found in the room. Another officer searched appellant, whom officers encountered just inside the doorway of the room, and found a green weed-like substance on his person. Searching the rest of the room, officers found currency totaling over $2,300 in three different locations; three plastic bags containing a green weed-like substance behind the radiator (with the largest of the bags containing nine smaller-sized knotted sandwich bags of the green weed-like substance); and, on the floor in front of the futon and in close proximity to the bags of green weed-like substance, a box of empty ziplock sandwich bags and a digital scale. Officer Thomas field tested portions of the substance found on appellant's person and behind the radiator, and the test produced “a positive color reaction for THC, which is the active ingredient in marijuana.”

Detective George Thomas, Jr., whom the court qualified as an expert in the areas of the distribution and use of marijuana, the packaging of marijuana for street level distribution, and the price for which marijuana is sold, testified that the green weed-like substance found behind the radiator produced “a very strong odor consistent with marijuana.” Detective Thomas further testified that sandwich bags are a “common way[ ]” in which marijuana is packaged. Focusing on one of the bags of the green weed-like substance found behind the radiator, Detective Thomas told the court that the fact that one of the bags contained “nine small packaged bags,” which reflected “labor intense” work to “remove smaller portions, and ... place them into the smaller sandwich bags, then ... tie them up[,]” was consistent with distribution rather than personal use. He testified in addition that the quantity of the substance found in the bags “in combination” was not consistent with personal use. Finally, he told the court that the assortment of different-sized plastic bags (which he said corresponded to the amount of marijuana that would be sold for $5, $20 to $30, or $40 on the streets) and the “close proximity” of the bags to each other and to the digital scale and sandwich bags were “consistent with the intent to distribute.”

Citing the absence of clothing and other belongings in the second-floor room, the trial court stated that the case was a “difficult and close” one in terms of whether appellant could be linked to the evidence found in the room. Nevertheless, the court found that “the inference is a natural one that [appellant] had dominion and control over the place where he allowed [his] documents to be on the floor, including his social security card.” Reasoning that appellant had dominion and control over the room, the court also found that he had constructive possession of the green weed-like substance found behind the radiator, including knowledge of it, “the ability to guide its destiny, and the specific intent to do so.” The court also cited as a “tiny factor” in its analysis the fact that the substance found on appellant's person appeared to have the same color as the substance found behind the radiator. Regarding whether appellant “thought he had marijuana,” the court relied on Detective Thomas's testimony that the green weed-like substance smelled like marijuana and was packaged “in a fashion that marijuana is packaged, both for personal consumption and for distribution on the street.” Regarding whether the evidence proved that appellant had the intent to distribute, the court found that Detective Thomas's testimony “coupled with the [digital] scale[ ] and the bags” was enough to demonstrate the requisite intent.

II.

Appellant contends there was insufficient evidence for the court to find that he constructively possessed the green weed-like substance found behind the radiator. We disagree.

“In determining whether the evidence is sufficient to support a conviction, we must review the evidence in the light most favorable to the government, giving full play to the right of the [finder of fact] to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.” Ortiz v. United States , 942 A.2d 1127, 1131 (D.C. 2008) (internal quotation marks omitted). “[T]o prevail [on a claim of insufficiency of the evidence, the appellant] must establish that the government presented no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.”

Peery v. United States , 849 A.2d 999, 1001 (D.C. 2004) (internal quotation marks omitted).

To prove constructive possession of a controlled substance, “the evidence must show that the accused knew of its presence and had both the ability and intent to exercise dominion and control over it.” Moore v. United States , 927 A.2d 1040, 1050 (D.C. 2007) (citing Rivas v. United States , 783 A.2d 125, 129 (D.C. 2001) (en banc)). Beyond proximity to the substance and knowledge of its existence, “there must be something more in the totality of the circumstances that ... establishes that the accused meant to exercise dominion or control over the narcotics[.]” Rivas , 783 A.2d at 130. This court has “often found that evidence was sufficient to establish a defendant's constructive possession of contraband where the contraband was recovered in proximity to the defendant's personal items such as mail or personal papers, photographs, and identification cards.” Schools v. United States , 84 A.3d 503, 510 (D.C. 2013) (citing cases). Where contraband is found in a residence occupied by more than one person, “the government must also establish that the accused is more than a mere visitor to the premises [.]”Guishard v. United States , 669 A.2d 1306, 1312 (D.C. 1995).

In this case, the presence of appellant's social security card, police report, and parking violation notice—an assemblage of important documents that an individual would be unlikely to leave in a room where he was a casual visitor—permitted the trial court to infer that the room where officers found the green weed-like substance was, if not appellant's bedroom, at least a room over which appellant had dominion and control. Further, the absence of evidence suggesting that room was occupied by any other person permitted the court reasonably to infer that appellant was aware of what was stored or secreted in the room, including the stash of green weed-like substance behind the radiator. Also, as the trial court noted, the similarity in color of the green weed-like substance found on appellant's person and the larger amount of green weed-like substance found behind the radiator was some evidence that appellant knew of and had the ability to control the larger quantity. In addition, the evidence of the digital scale and sandwich bags in plain sight and in close proximity to the location of the bags of green weed-like substance permitted the court to infer that appellant was able to and intended to exercise control over that stash of marijuana-like substance.²

III.

Appellant next contends that the court's finding that he was guilty of attempted possession with intent to distribute marijuana is erroneous as a matter of law because the government presented no evidence that the green weed-like substance actually was marijuana. This argument cannot be squared with our case law.

To prove attempted possession with the intent to distribute, the government must show that the defendant attempted to possess a controlled substance, but “it is not necessary to establish that the substance a defendant attempted to possess was the proscribed substance.” Seeney v. United States , 563 A.2d 1081, 1083 (D.C. 1989). “[T]he substance ‘need not [be] a controlled substance at all; what matters is that appellant believed it to be one.’ ” Newman v. United States , 49 A.3d 321, 324 (D.C. 2012) (quoting Washington v. United States , 965 A.2d 35, 43 (D.C. 2009) ). “[T]he defendant's belief that he was dealing in controlled substances[ ] may be proved by circumstantial evidence[.]” Fields v. United States , 952 A.2d 859, 865 (D.C. 2008). The government must also show the defendant had the requisite intent to distribute the substance. Seeney , 563 A.2d at 1083.

In Newman , we reasoned that “the characteristics of the green plant material indicate that appellant knew (or believed) that the substance was marijuana.” 49 A.3d at 324.³...