Appeal from the Superior Court of the District of Columbia (F22-02)Hon. Ann O'Regan Keary, Trial Judge.
Before Ruiz, Reid, and Glickman, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
After a jury trial, appellant Emery Boddie was found guilty of unlawful possession with the intent to distribute a controlled substance (heroin) within a drug-free zone.*fn1 He filed a timely appeal, claiming that the trial court erred in denying his motion for judgment of acquittal. We affirm, and hold that to establish the applicability of D.C. Code § 33-547.1 (1998), recodified at § 48-904.07a (2001), the government need only prove beyond a reasonable doubt that the defendant possessed a controlled substance within the drug-free zone, or within 1,000 feet of a public or private school, with the intent to distribute it somewhere, not necessarily within the drug-free zone.
The government presented evidence during a suppression hearing and at trial in this case showing the following events. On the evening of January 2, 2002, around 6:44 p.m., Officer John Croson, a twelve-year plus veteran of the Metropolitan Police Department ("MPD") who was assigned to the vice unit, "received a telephone call from a reliable source." Officer Croson recognized the voice of an informant with whom he had worked previously around thirty times. The informant stated that a person "wearing a black leather jacket, blue jeans and a gray skull cap" "was holding and selling heroin in the park in the 300 block of K Street, in the Southeast quadrant of the District of Columbia.*fn2 The informant "had observed the [person] selling the narcotics." About ten minutes after he received the call from the informant, Officer Croson and two other MPD officers arrived at the K Street location.
Upon his arrival at the designated place, Officer Croson saw "eight to ten subjects standing in the courtyard," one of whom "match[ed] the description" given by the telephone informant. When the person, later identified as Mr. Boddie, saw the unmarked vehicle carrying the police officers who were wearing plain clothes, he "stare[d] at [the] vehicle and start[ed] to walk towards [an] alley." Officer Croson followed Mr. Boddie into the alley, got out of his vehicle, and "stopped" him. The area in which Mr. Boddie was stopped is "a high drug area where [people] sell narcotics . . . ." A park in that area was known as "an open-air heroin market."*fn3 Officer Croson asked whether Mr. Boddie "had anything on him." Mr. Boddie said "he had a stem on him."*fn4 He also admitted that he had "a couple of bags on [him]." When the officer could not find any drugs in Mr. Boddie's pockets, he inquired whether Mr. Boddie had "anything in [his] pants." Mr. Boddie removed "a . . . plastic bag from his crotch area" and handed it to the officer. The bag contained 45 "green zip-lock bags with a white powder substance that field-tested positive for heroin." Mr. Boddie was placed under arrest.
Mr. Boddie testified at the suppression hearing. He maintained that he had gone to a corner liquor store in the K Street area, purchased a bottle of wine, and was sipping from it when he was stopped by three men who "jumped out of [a] car, [and] told [him to] put [his] hands up." He denied having a "stem" on his person, and said one of the men removed the bags of heroin from his pocket after telling him "they had got a call." Mr. Boddie claimed that he was not selling heroin but used the drug.
Officer Croson gave essentially the same account of the events leading to Mr. Boddie's arrest at trial as he did at the suppression hearing.*fn5 However, at trial, he was asked more extensive questions about the location where the events took place on January 2, 2002. He said that an elementary school was situated at the corner of Fifth and L Streets, S.E. He measured the distance between the location of the school and the place where Mr. Boddie was arrested; the distance was "549 feet, 10 inches."*fn6 One of the other officers who accompanied Officer Croson on the night of Mr. Boddie's arrest, Officer Smith, corroborated Officer Croson's account of the events.
Sergeant John Brennan, a thirty-one year veteran of the MPD, testified "as an expert in the distribution, sale, and use of narcotics in the District of Columbia, as well as the [MPD] procedures regarding drugs and safeguarding evidence." He stated that 24 of the bags possessed by Mr. Boddie contained a 31 percent concentration, and the other 21 bags a 23 percent concentration, with respect to the purity of the heroin. This compared with the average street concentration of "between 15 and 20 percent" purity. The typical user would have only one to three bags on his or her person at a time. As Sgt. Brennan stated, "Would a user have 45 bags for personal use; no. Never in my 31 years on the police force have I ever seen that." He explained that a dealer could give 45 bags to a person on the street, and inform that person that he or she "can make $660 . . ." and then give the dealer $400 while retaining $260. Or, the dealer could give the person the bags, most of which the person would sell while keeping "one or two or three bags for [his or her] own use."
Mr. Boddie argues that the trial court erred by denying his motion for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal based on insufficiency of the evidence, we follow a familiar standard. "[W]e must view the evidence in [the] light most favorable to the government, recognizing the jury's province to weigh the evidence, determine the credibility of witnesses, and make justifiable inferences from the evidence." Smith v. United States, 777 A.2d 801, 810 (D.C. 2001) (citation and internal quotations omitted). "Reversal for insufficiency of the evidence will be warranted only if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Id. (citation and internal quotations omitted).
Mr. Boddie first maintains that the evidence was insufficient beyond a reasonable doubt to convict him because aspects of Sergeant Brennan's testimony did not support an inference of an intention to distribute, although the sergeant "rendered an opinion that [the] packaging of [a 45-bag] quantity of [heroin] could be considered suggestive of an intention to distribute it." He insists that the drugs he had on his person were for his personal use, not for sale to others. The government argues that it "presented unrefuted expert testimony that the quantity and packaging of the heroin recovered from [Mr. Boddie were] more consistent with an intent to distribute than with personal use."
Based on the testimony of Sergeant Brennan, and viewing all the evidence in the light most favorable to the government, the jury could reasonably infer that Mr. Boddie possessed 45 bags of heroin with intent to distribute, rather than for his own personal use. Indeed, taken as a whole, Sgt. Brennan's testimony was consistent with the inference, obviously drawn by the jury, that Mr. Boddie did not possess the 45 bags for personal use. See Taylor v. United States, 662 A.2d 1368, 1371 (D.C. 1995) ("An intent to distribute can be inferred from expert testimony and the possession of a quantity of drugs that exceeds a reasonable supply.") (citation omitted). Sgt. Brennan explained that a dealer might give a person bags of heroin to sell in exchange for part of the proceeds from the sales; or that a person might take the bags, sell most of them and keep one or two bags for personal use. He posed the question: "Would a user have 45 bags for personal use[?]" And, he answered his own question: "[N]o. Never in my 31 years on the police force have I ever seen that." Officer Croson's testimony also supported the inference, drawn from Sgt. Brennan's testimony, that Mr. Boddie possessed the 45 bags of heroin with intent to distribute. Officer Croson first observed Mr. Boddie in the park or courtyard at a housing area; the park was known "as an open air heroin market." Testing of the heroin in the 45 bags revealed a relatively high purity compared to that for the average street sale. Purity of the heroin and location of the defendant in a high drug area are factors supporting an inference of possession with intent to ...