December 11, 2003
IN RE A.L., APPELLANT.
Appeal from the Superior Court of the District of Columbia (J1396-00) (Hon. Thomas J. Motley, Trial Judge)
Before Terry, Schwelb, and Glickman, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued November 20, 2003
Dissenting opinion by Associate Judge GLICKMAN at page 4.
Following a factfinding hearing, A.L., a juvenile, was found guilty of unlawful possession of marijuana. On appeal, he presents a claim of evidentiary insufficiency. We affirm.
Viewed, as it must be, in the light most favorable to the District, see In re T.M., 577 A.2d 1149, 1151 (D.C. 1990), the evidence showed that Officer Ralph Shumac of the Metropolitan Police Department (MPD) observed A.L. walking down the street with a shiny object in his hand. Shumac believed that the object was a plastic bag. Upon the arrival of the police, and after making eye contact with Officer Shumac, A.L. detoured down a stairwell towards the locked laundry room of an apartment house, stayed in the stairwell for a few seconds, and then returned to the street. Shumac told his partner that A.L. had "put something down or . . . dropped something,"*fn2 and he asked his partner to detain A.L. Officer Shumac then walked to the stairwell to which A.L. had gone, and he recovered from a drainpipe a plastic sandwich bag containing nine smaller bags of marijuana. Asked by the Assistant Corporation Counsel whether the plastic bag was "consistent with" the object that he had seen in A.L.'s hand before A.L. had gone to the stairwell, Officer Shumac answered in the affirmative. *fn3
At the conclusion of the factfinding hearing, the judge ruled, in pertinent part, as follows:
Officer Shumac, the [c]court finds, went to the area, saw the respondent in an area, saw something shiny in his hand, went to the area, [and] recovered the shiny object from where the respondent was standing. That's the [c]court's view on what happened in this case. I think it's a fair inference for me as the finder of fact to say that it was the drugs, that it is the marijuana that's in this case, the marijuana, that's not contested by - as marijuana. In this case, the [c]court bases it[s] decision on what happened. One thing that everybody agrees upon, as I've stated before, is that the respondent was stopped. He said hold him until Officer Shumac went to the area, whether he was looking over here or over there, he went to that area and said I found it, place him under arrest. The only conclusion to reach is he went to the laundry room right by there looking for something he had seen.
. . . It makes no sense [for] the officer to have stopped [A.L.] and gone to that area unless he saw something there. . . .
They saw him go down there. I think I'm comfortable beyond a reasonable doubt that that's what happened, and I find the respondent guilty of possession of marijuana. That's the [c]court's ruling.
Applying our now-familiar standard of review, and deferring, as we must, to the trial judge's credibility determinations, *fn4 see In re T.M., 577 A.2d 1149, 1151 (D.C. 1990), we conclude that the evidence was sufficient to support the finding of guilt. Officer Shumac had no reason to proceed to the stairwell unless he first saw A.L. go there with suspected contraband in his possession. Immediately after A.L. left the stairwell, Shumac followed him there and found the contraband in the stairwell. The officer testified that the bag he found was consistent with, i.e., looked like, the shiny object he had previously seen in A.L.'s possession. The judge was free to credit this testimony, and he was not required to attribute to coincidence the discovery, in the stairwell to which A.L. had hastened upon seeing the police, of a plastic bag resembling the one he had seen in A.L.'s hand. *fn5
GLICKMAN, Associate Judge, dissenting:
Officer Shumac found a plastic bag of marijuana hidden in a drainpipe at the bottom of an otherwise empty stairwell that led from the street to the laundry room of an apartm ent building. What evidence connected this marijuana to A.L.? Only this: (1) Officer Shumac saw A.L. enter the stairwell and spend a few seconds in it; (2) before A.L. entered the stairwell, Officer Shumac saw him (at a distance of some thirty yards) holding "a shiny object which appeared to be a plastic bag"; and (3) the bag of marijuana that Officer Shumac recovered from the stairwell "appear[ed] consistent with" the shiny object that Officer Shumac had seen in A.L.'s hand.
There is a vast gulf between merely proving a thing possible and proving it beyond a reasonable doubt. The evidence in this case showed only that the bag of marijuana found in the drainpipe could have been what O fficer Shumac saw in A.L.'s hand. Could have been falls short of what the prosecution needed to show. W hile a trier of fact is entitled to draw reasonable inferences from the evidence, a finding that necessarily depends on conjecture or speculation in the absence of evidence cannot stand. See Curry v. United States, 520 A.2d 255, 263 (D.C. 1987). The trier of fact here could only speculate that what Officer Shumac saw A.L. holding was the bag of marijuana Officer Shumac subsequently found. Evidence to prove those two things were the same was lacking.
To understand what kind of evidence was missing in this case, we need look no further than the government's argument on appeal to this court. In its brief, the government based its sufficiency argument on the assumption that it had established two additional facts at A.L.'s trial. Specifically, the government relied on the suppositions that (1) Officer Shumac saw A.L. put something down in the stairwell, and (2) that A.L. no longer had the "shiny object" in his possession when he left the stairwell. Proof of either supposed fact would have filled the hole in the prosecution case by providing reason to infer that when A.L. went down the stairwell, he stashed the bag of marijuana that Officer Shumac found there. But in actuality, the government proved neither supposition. As the government now concedes, Officer Shumac testified unequivocally that he did not see A.L. put anything down in the stairwell.*fn7 And as the government also now concedes, there is "no support in the testimony" for the proposition that A.L. left the stairwell without the shiny object that Officer Shumac saw him holding before he entered it. "[N]one of the witnesses stated this," the government acknowledges.
Appellate review of the sufficiency of the evidence is deferential, but it is not "toothless." Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc). "We have an obligation to take seriously the requirement that the evidence in a criminal prosecution [or, as here, a juvenile delinquency adjudication] must be strong enough that a jury [or judge] behaving rationally really could find it persuasive beyond a reasonable doubt." Id. "Slight evidence is not sufficient evidence; a 'mere modicum' cannot 'rationally support a conviction beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 447 U.S. 307, 320 (1979)). Guesswork is no substitute for proof. In conformance with these principles, I would reverse A.L.'s delinquency adjudication for in sufficiency of the evidence.