Malloy v. United States

• Decision Date: 24 October 1968
• Docket Number: No. 4717.,4717.
• Citation: 246 A.2d 781
• Parties: Irby MALLOY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

246 A.2d 781

Irby MALLOY, Appellant, v. UNITED STATES, Appellee.

No. 4717.

District of Columbia Court of Appeals.

Argued September 9, 1968.

Decided October 24, 1968.

Nicholas A. Addams, Washington, D. C., appointed by this court, for appellant.

David A. Clarke, Jr., Special Asst. U. S. Atty., for appellee. David G. Bress, U. S. Atty., Frank Q. Nebeker, Clarence A. Jacobson, Robert S. Bennett, and William G. Reynolds, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before MYERS, KELLY and FICK-LING, Associate Judges.

MYERS, Associate Judge.

After a nonjury trial, appellant was convicted of unlawful possession of heroin in violation of D.C.Code, § 33-402 (1967). His appeal charges that the evidence was legally insufficient to support his conviction.

In our review of an appeal from a conviction in the trial court, we must consider the evidence presented at trial, including all inferences reasonably arising therefrom, in a manner most favorable to the Government. We will not upset a conviction on the facts as long as there is evidence which reasonably permits the finding of guilt. Curley v. United States, 81 U.S. App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The Government, however, must have satisfied its burden of presenting evidence legally sufficient to support the conviction in the first instance, of proving every material element of the crime.

In the instant case, the Government was charged with proving appellant's possession of a substance and the identity of that substance as one proscribed by the narcotic drug statute. For us to affirm, we need only satisfy ourselves that there is evidence in the record which would reasonably permit a finding of these elements. The evidence must go further than merely raising the possibility that the elements are present. A conviction cannot rest on mere possibilities.¹ "Inferential proof of an ultimate fact may not be based upon a mere possibility, speculation or conjecture." Jackson v. District of Columbia, D.C.Mun. App., 180 A.2d 885, 888 (1962).² Circumstantial evidence is adequate to prove an essential element, such as possession in this case, only when "the only possible inference to be derived from it is that of guilt." Maryland & Virginia Milk Producers Ass'n v. United States, 90 U.S.App.D.C. 14, 23, 193 F.2d 907, 917 (1951). The Government must negate reasonable inferences which are consistent with innocence.³ The accused is not charged with explaining away suspicious inferences. Dowell v. United States, D.C.Mun.App., 87 A.2d 630 (1952). It is thus of no significance that appellant elected not to testify on his own behalf.

The Government's case was based on the testimony of two special police officers, a narcotics squad detective, and a chemist. The two officers testified that, while on duty at St. Elizabeths Hospital, they had occasion to check a report that someone was passing something to patients in the maximum security building. They observed appellant, who met the description of the suspected party, leave his car and begin walking toward the building. The officers called after him, and had approached to a distance of 25-30 feet from him when he turned around, making what one officer described as a "quick motion, as if he was throwing something away." Neither officer saw an object of any kind leave appellant's hand, or strike the ground. When the officers reached appellant, they began searching the immediate vicinity and questioning him about his presence in the area. He explained that he was en route to deliver cigarettes to a patient in the building and was allowed to proceed. The officers continued their search. When appellant returned, he was instructed to leave the grounds. When appellant reached the main gate of the hospital he was arrested pursuant to the instructions of the two officers who...