APPEAL FROM THE SUPERIOR COURT, NOEL A. KRAMER, J.
Before Schwelb and Ruiz, Associate Judges, and Gallagher,
The opinion of the court was delivered by: Gallagher, Senior Judge:
A jury convicted appellant of unlawful possession with intent to distribute a controlled substance, cocaine, in violation of D.C.Code § 33-541(a)(1) (1995), and the trial court sentenced him to four to twelve years imprisonment. He contends on appeal that the trial court erred by concluding that he was ineligible for sentencing as a drug addict pursuant to former D.C.Code § 33-541(c)(2) (1993). *fn1 We affirm. [712 A2d Page 478]
In January of 1995, appellant was arrested and charged with possession with intent to distribute cocaine. The police, responding to a radio run, observed appellant and another individual exiting a building. As appellant walked towards the exit, he stepped into the doorway of the laundry room and threw a plastic object inside. The police recovered the plastic object and found it to be a sandwich bag containing eighty-nine ziplock packets of crack cocaine. The police also recovered three bags of counterfeit, or "dummy" drugs, and forty-four dollars from appellant's person.
At trial, the prosecution presented expert testimony based on the packaging and quantity of the recovered drugs that appellant possessed the eighty-nine packets of cocaine with intent to distribute. Appellant denied possession of the recovered drugs. Appellant and his girlfriend testified that appellant did not sell cocaine, but rather sold dummy drugs to support his habit. They both testified that no one would give appellant real drugs to sell because he had a reputation for selling counterfeit drugs. Appellant presented expert testimony that an individual who sold counterfeit drugs would not also sell real drugs.
Following conviction, the trial court held a sentencing hearing to determine appellant's eligibility for the addict exception. D.C.Code § 33-541(c)(2), supra. Appellant testified that he had been using crack cocaine regularly for approximately three years, and that his only expenses were drugs and food. At the time of his arrest, appellant supported his drug habit by selling counterfeit drugs. He testified that if he had been in possession of the eighty-nine packets of crack cocaine he would not have distributed them, but rather would have consumed them all himself. He further testified that he did not sell real cocaine to support his habit.
The trial court, after determining that appellant did not have any disqualifying convictions and that appellant was a cocaine addict, considered whether appellant's primary purpose in possessing with intent to distribute was to support his addiction. The trial court accepted the jury verdict that appellant intended to distribute the cocaine. The trial court found that appellant could have intended to share some of the drugs with other people, and discussed the broad definition of "distribution." Finally, the trial court stated:
I have the testimony from [appellant] that if he had [the cocaine] he would have used it all. And that testimony isn't, so to speak, usable circumstantial evidence to support the Addict Exception hearing. . . . [B]ecause merely intending to use drugs for your own personal purposes doesn't have the element required by the statute of intending to distribute it for the primary purpose of obtaining a drug. It writes out of the statute a portion of the statutory language. So, this is, to some degree, a factual determination.
I have to determine whether there is enough circumstantial evidence to suggest that those eighty-nine bags were possessed by Mr. Jefferson for the primary purpose of enabling him to get other drugs, not the same drugs, other drugs, and I can't so find.
Appellant argued, and continues to argue on appeal, that he should not be precluded from sentencing under the addict exception because he contends that he would have himself used the drugs for which he was convicted of possession with intent to distribute.
Former D.C.Code § 33-541(c)(2) (1993 Repl.) reads, in pertinent part:
[T]he court may, in its discretion, waive the mandatory-minimum sentencing provisions . . . when sentencing a person who has not been previously convicted in any jurisdiction in the United States for knowingly or intentionally manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance . . . if the court determines that the person was an addict at the time of the violation . . ., and that such person knowingly or intentionally manufactured, distributed or possessed with intent to manufacture or distribute a controlled substance . . . for the primary purpose of enabling the offender to obtain a narcotic drug or [712 A2d Page 479]
abusive drug which he required for his personal use because of his addiction to a narcotic ...