Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Jr., Trial Judge)
Before Farrell and King, Associate Judges, and Mack, Senior Judge. Opinion for the court Per Curiam. Separate statement by Senior Judge Mack.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: Appellant, Anthony Cash, appeals his conviction for possession with intent to distribute a controlled substance ("PWID"), in violation of D.C. Code § 33-541 (a) (1981). He raises three claims of error, one of which requires reversal of the conviction. *fn1 Specifically, during final instructions, with out either counsel expressing an objection, the court gave the instruction for simple possession of a controlled substance, rather than the instruction for possession with intent to distribute. *fn2 Thus, the jury was never told that, in order to convict, it must be satisfied that the government proved that appellant had the specific intent to distribute the controlled substance. The government concedes this instructional error requires reversal and we agree. White v. United States, 613 A.2d 869, 879 (D.C. 1992) (en banc).
The evidence, taken in the light most favorable to the government, established that the police observed Cash receiving money from a man standing next to him. Moments later, after being warned that the police were in the vicinity, Cash placed nine ziplock bags, each containing a twenty-dollar rock of crack cocaine, into the handle of a dumpster. An expert witness testified that the quantity and packaging of the seized contraband was consistent with an intent to distribute. Additionally, the police recovered two hundred fifty-one dollars in bills from Cash's pants pocket. On these facts, there was sufficient evidence to sustain a conviction for possession with intent to distribute, given a properly instructed jury. Spriggs v. United States, 618 A.2d 701, 704 (D.C. 1992) (quantity, packaging, and value of drugs possessed by defendant was more consistent with intent to distribute than with personal use, and circumstances surrounding defendant's arrest supported inference of intent to distribute).
There was also sufficient evidence to support a conviction for simple possession. Wright v. United States, 588 A.2d 260 (D.C. 1991); Bourn v. United States, 567 A.2d 1312, 1318 (D.C. 1989) (simple possession is a lesser included offense of PWID). Because of the instructional error, however, we reverse the PWID conviction and remand the case to the trial court either for a retrial on that offense, or at the election of the government, for entry of judgment on the lesser included offense of possession of narcotics. *fn3 See, e.g., Moore v. United States, 388 A.2d 889, 892 (D.C. 1978) (where government failed to present sufficient evidence of value element to support grand larceny conviction case, remanded for entry of judgment on petit larceny) (citation omitted).
MACK, Senior Judge, separate statement: I agree that the instructional error mandates reversal. On remand, however, I would not permit, at the sole election of the government, an entry of a judgment ...