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WHITE v. U.S.

June 11, 1998

MISCHELL D. WHITE, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, ROBERT S. TIGNOR, J. [714 A2d Page 116]

Before Terry and Schwelb, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge:

Appellant was convicted of carrying a pistol without a license (CPWL), in violation of D.C.Code § 22-3204(a) (1996). His sole contention on appeal is that the government's evidence was insufficient to sustain his CPWL conviction because the pistol, when recovered by the police, was in a box in the back of an ice cream truck which he had been driving, and thus was not "on or about" his person as required by the statute. We affirm. *fn1 [714 A2d Page 117]

I

A. The Government's Evidence

In the early morning hours of February 20, 1996, Officers Robert Wigton and Mark Wood were on plainclothes duty in an unmarked car. At about 1:45 a.m. they were following a white ice cream truck with two occupants when they saw it run a yellow traffic light and commit other traffic infractions. *fn2 They decided to stop the truck, but before they did so, the officers broadcast a request over the police radio for a marked police car to assist them. Then, while the officers were waiting for backup assistance, the truck stopped near the corner of Sixth and Edgewood Streets, N.E. As its driver, appellant White, was parking the truck, a marked police cruiser responding to the officers' earlier call pulled up in front and blocked the truck's path.

The two plainclothes officers parked their car several feet behind the truck. Officer Wigton, who was in the passenger seat, glanced at the truck's large side-view mirror and saw movement in the forward section of the truck. He saw White look at the officers' unmarked car and then, accompanied by the other occupant, move toward the back of the truck. The officers got out of their car and approached the truck, Wigton on the passenger side and Wood on the driver's side. As they approached, one of the truck's occupants switched on its interior light.

Looking into the lighted interior through the customer service window on the truck's passenger side, *fn3 Officer Wigton saw White reach into a cardboard box containing bags of potato chips, pull his right hand away from the box, and then move back to the front section of the truck. The officer did not see any object in White's hand; however, after White withdrew his hand, Wigton saw the handle of a gun protruding from the box. *fn3 While White's hand was inside the box, the other occupant, Jamil Ross, was standing approximately six feet behind White in the forward section of the truck.

Both White and Ross were arrested and taken into custody. Moments later Officer Richard Griffin, a crime scene evidence technician, took photographs of the truck and recovered the gun from the potato chip box. The gun, which was operable and loaded with sixteen rounds of ammunition, was processed for fingerprints. No usable prints were recovered from the handle of the gun. Three prints were recovered from the magazine, but none of them matched those of Mr. White, Mr. Ross, or Norman Thompson, the owner of the truck.

Finally, the government presented evidence that White was not licensed to carry a gun and that the gun seized from the truck was not registered in the District of Columbia.

B. The Defense Evidence

White testified that on the day before his arrest he worked in the ice cream truck from 9:00 a.m. until 9:30 p.m. His job was to drive the truck while two other persons stayed at the service window to serve customers. White said that, except to lock the service window at the end of his shift, he had not been in the back of the truck at all that day. After work White drove the truck to a friend's house to play cards. At some point after leaving the card game, White picked up Jamil Ross, and the two of them rode around for thirty or forty minutes. Finally, White drove to Edgewood Street, where he lived, intending to park the truck in front of his house. As he started to park, Mr. Ross went to the back of the truck to get some candy. Then White saw a marked police car approaching, so he stopped the truck and turned off the engine. The officers in the [714 A2d Page 118]

police car ordered him to get out of the truck, and he complied.

White said that he did not see Mr. Ross or anybody else in the ice cream truck that day with a gun and did not know there was a gun in the truck. He concluded, however, that it "had to be" Mr. Ross who put the gun in ...


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