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05/31/90 EVERETT E. BERNARD v. UNITED STATES

May 31, 1990

EVERETT E. BERNARD, APPELLANT
v.
UNITED STATES, APPELLEE. HERON L. REDMON, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge

Terry and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb

Following a jury trial on an assortment of drug-related charges, appellant Everett Elroyd Bernard was convicted of distribution of marijuana, possession of marijuana with intent to distribute it, and unlawful possession of cocaine, in violation of D.C. Code § 33-541 (d) (1988). Bernard's codefendant, appellant Heron Redmon, was convicted of unlawful possession of marijuana and unlawful possession of cocaine. Id. § 33-541 (d). Both men now appeal their convictions, alleging that the trial Judge made a diverse assortment of errors. The principal issue raised which warrants plenary Discussion is whether the government's evidence was sufficient to permit the jury to find beyond a reasonable doubt that the contraband sold by Bernard was in fact marijuana and that he distributed a "usable amount" of the drug. A second issue -- whether there was sufficient evidence to establish that appellants constructively possessed cocaine -- is addressed in non-summary fashion in Part III of this opinion.

We hold that the identity and amount of a suspected controlled substance may be proved by circumstantial evidence, that the evidence in the present case was sufficient to support the jury's verdict, and that Bernard's motion for judgment of acquittal was properly denied. Discerning no merit in any of the other contentions raised by either appellant, we affirm the judgments entered below.

I

The evidence presented by the government, if believed by the jury, established that on January 23, 1988, an officer who was using binoculars in a concealed location observed both appellants, as well as other individuals, engaging in narcotics trafficking in the 7300 block of Georgia Avenue in northwest Washington, D.C. Specifically, the officer observed Bernard conversing with potential customers and handing small plastic objects to them. The customer would examine the object, sometimes raise it to his nose and smell it, and then give Bernard money for it. When Bernard ran out of the plastic objects, he would walk to the door of a nearby building and remove similar additional objects from a brown paper bag which was located on the ledge above the door. The officer also saw Redmon go to the paper bag -- obviously a "stash" in the lingo of the drug trade -- and remove objects from it. Redmon placed these objects in his pocket and then apparently sold several in transactions with passersby.

After observing this misguided entrepreneurial activity for an hour or so, the officer in the concealed observation post made radio contact with members of the arrest team, who promptly took both appellants into custody. They recovered $390 in cash from Bernard and $212 from Redmon. On the ledge from which the two men had been replenishing their inventory, officers recovered the brown paper bag, which contained twenty ziplock bags containing green weed which later proved to be marijuana. Also on the ledge were two other plastic bags. One of these bags contained six ziplock packets of marijuana. In the other, police found six clear bags filled with white powder which was subsequently shown to be cocaine. *fn1

These events led to the conviction of both appellants as described above. Each was sentenced to consecutive terms of incarceration.

II

Bernard contends that the trial Judge should have granted his motion for judgment of acquittal in connection with the charge of distribution of marijuana. Noting that the contraband which he allegedly sold to the suspected purchasers was not introduced into evidence, *fn2 Bernard claims that the government is required to produce the drugs in court so that he can "confront the evidence against him." He also argues that since the drugs were not in evidence, no determination could be made as to whether he distributed a "usable amount" of marijuana. We are unable to agree with these contentions.

Circumstantial evidence is not intrinsically inferior to direct evidence. In assessing the sufficiency of the government's proof, we make no distinction between direct and circumstantial evidence. See, e.g., In re E.G.C., 373 A.2d 903, 906 (D.C. 1977); cf. Holland v. United States, 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954) ("circumstantial evidence in this respect is intrinsically no different from testimonial evidence"); Morrison v. United States, 417 A.2d 409, 413 (D.C. 1980) (operability of pistol may be proved by circumstantial evidence). Indeed, as we had occasion to observe in Jones v. United States, 318 A.2d 888, 889 (D.C. 1974) (quoting State v. Goetz, 7 Or. App. 515, , 491 P.2d 220, 222 (1971), cert. denied, 408 U.S. 929, 33 L. Ed. 2d 342, 92 S. Ct. 2510 (1972)),

the amount of narcotics the defendant had in his possession, like any element of any crime, can be proven by circumstantial evidence.

(Emphasis added).

Although this court held in Jones that the presence of a "usable amount" of a controlled substance may be proved circumstantially, we have never had occasion to decide whether the same kind of proof is sufficient to establish the identity of a suspected unlawful drug. Logically, the two situations are indistinguishable. The federal appellate courts which have ...


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