that while the government offered a theory of constructive possession, it failed to offer any evidence of two essential elements of constructive possession: 1) that Mr. Thomas had dominion and control over the firearm; and 2) that his possession was "knowing". See United States v. Hernandez, 251 App. D.C. 5, 780 F.2d 113, 116 (D.C. Cir. 1986). A review of the evidence shows, however, that while contrary interpretations are possible, the weight of the credible evidence against a guilty verdict is not greater than the weight of the credible evidence supporting the verdict, and no miscarriage of justice occurred.
In United States v. Pardo, 204 App. D.C. 263, 636 F.2d 535, 549 (D.C. Cir. 1980) the court held that "mere proximity" to contraband is insufficient to establish constructive possession. There "must be some action, some word, or some conduct" linking the individual to the contraband in question, and indicating that the defendant had some stake in it and some power over it. Id. Evidence has been deemed sufficient to establish constructive possession where a defendant lived in an apartment and used the bedroom in which a shotgun was found. United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989). A finding of constructive possession of drugs was upheld where the defendant was found in a townhouse where drugs were sold, and upon police entry was observed pitching things into another room where drugs and a gun were found. United States v. Dunn, 269 App. D.C. 373, 846 F.2d 761, 764 (D.C. Cir. 1988). A defendant's gesture toward a weapon when confronted by police can be evidence of constructive possession. Hernandez, 780 F.2d at 120. Moreover, the fact that a defendant took evasive action in response to the presence of police can be considered in inferring constructive possession. Id. at 117, citing United States v. Reese, 183 App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977).
Evidence has been held insufficient to establish possession where a gun was found hidden (but partly visible) in a couch, and there was no evidence that the defendant lived in or leased the premises, or that he headed for the gun in question or knew of its existence. United States v. Long, 284 App. D.C. 405, 905 F.2d 1572, 1576 (D.C. Cir. 1990). Similarly, evidence of drug possession was insufficient where the defendant was present in a confined area where a drug transaction was occurring, but there was no other evidence to link the defendant with the drugs. Pardo, 636 F.2d at 549-50.
In this case, the evidence supports the jury's finding of constructive possession. The evidence goes beyond alleging the defendant's "mere proximity" to the gun. While it is true that there was no evidence that the defendant slept in the bedroom or knew the combination of the safe, there was other credible evidence allowing a reasonable inference that the defendant possessed the sawed-off shotgun found in the safe.
The photographs of the defendant with two firearms, one of which appeared to be identical to one of the guns found in the safe, link the defendant to the contents of the safe. It is a reasonable inference that the gun in the safe was the same gun that was in the photograph, that it belonged to the defendant, and that the defendant kept it in the safe.
It follows that if the defendant's gun was in the safe, the defendant knew about the safe and its contents. If so, a conclusion that the contents of the safe, including the sawed-off shotgun, were under the defendant's knowing dominion and control would be reasonable.
The government also offered evidence that the defendant and his mother tried to prevent police entry. As previously stated herein, evasive action by a defendant when confronted by police can be some evidence of possession of contraband. Hernandez, 780 F.2d at 117, citing United States v. Reese, 183 App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977). Moreover, when the agents entered the apartment, the defendant attempted to run toward the sofa, where a loaded handgun was found. Ammunition identical to that found in this handgun was found in the safe. The defendant's residence in the apartment and presence there, along with the action of moving toward the sofa, evidences possession of the gun in the sofa. The presence of ammunition in the safe matching that of the gun found in the sofa is further support for the government's theory that the defendant knew of and had dominion and control over the contents of the safe, and also supports an inference of constructive possession.
While the reasoning supporting the verdict is inferential, it is not against the weight of the evidence. The defendant denied ownership of the safe and claimed that he did not know its combination, but these assertions are not necessarily more credible than the inferences to be drawn from the photographs, the defendant's actions upon police entry, and the fact that the defendant lived in the apartment where the safe was found.
There was discussion at trial regarding whether the defendant slept in the bedroom where the safe was found. While evidence that the defendant slept there would have simplified the government's task of linking the defendant to the safe, it was not essential. In a small apartment, it is hardly incredible that the defendant could have kept his safe in what may have been his mother's closet. Moreover, the government's theory of constructive possession did not preclude the possibility of joint possession of the safe and its contents. Finally, the location of the safe is not crucial in light of the other indicia linking the defendant to the contents of the safe.
The defendant further argues that the evidence supporting the drug charge and the gun charge was the same, and the fact that the jury returned a verdict of not guilty on the drug count and guilty on the firearm charge indicates that the jurors were "overwhelmed" and prejudiced by the Government's "dramatic display" of firearms in this case. This argument fails because, as stated above, there was sufficient evidence to link the defendant to the shotgun. There were no photographs offered linking the defendant with drugs; this difference may have been crucial to the jury.
B. Motion for Judgment of Acquittal
In considering a motion for judgment of acquittal, the Court must view the evidence in the light most favorable to the government, "allowing the government the benefit of all reasonable inferences that may be drawn from the evidence." United States v. Musser, 873 F.2d 1513, 1519 (D.C. Cir. 1989). If the evidence permits either a verdict of acquittal or a verdict of guilt, the decision is for the jury. United States v. Sutton, 255 App. D.C. 307, 801 F.2d 1346, 1358 (D.C. Cir. 1986) (citing Curley v. United States, 81 App. D.C. 389, 160 F.2d 229, 237 (D.C. Cir. 1947), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947)). The motion may be granted only when there is no evidence upon which a reasonable mind might find guilt beyond a reasonable doubt. Hernandez, 780 F.2d at 120, citing United States v. Fench, 152 App. D.C. 325, 470 F.2d 1234, 1242 (D.C. Cir. 1973), cert. denied, 410 U.S. 909, 35 L. Ed. 2d 271, 93 S. Ct. 964 (1973).
This standard is more difficult for the defendant to meet than the standard for granting a new trial, since the evidence is construed in the light most favorable to the government. The defendant fails to meet the lesser standard required for a new trial, because, as previously discussed herein, the verdict was not against the weight of the evidence. Therefore, the defendant also fails to meet the standard for a judgment of acquittal, because there was sufficient evidence to support the verdict, even without viewing the evidence in the light most favorable to the government.
The Court commends counsel on both sides, Michael C. Wallace, Sr., Assistant Federal Public Defender, and Erik P. Christian, Assistant United States Attorney, for their fine presentation of the evidence in this case and for their good work in connection with the pending motion.
For all of the foregoing reasons, the Court shall deny the defendant's Motion for Judgment of Acquittal, or, in the Alternative, for New Trial. The Court shall issue an Order of even date herewith in accordance with this Memorandum Opinion.
In accordance with the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 12 day of September, 1991,
ORDERED that the defendant's Motion for Judgment of Acquittal, or, in the Alternative, for New Trial shall be, and hereby is, denied.