Appeals from the Superior Court of the District of Columbia (F1902-02 & F1903-02) (Hon. Ann O'Regan Keary, Motions Judge) (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Steadman, Senior Judge
Argued September 13, 2005
Before SCHWELB and RUIZ, Associate Judges, and STEADMAN, Senior Judge.
A loaded pistol was found in the glove compartment of an automobile occupied by appellant Drumgoole, the driver, and appellant Smith, the front seat passenger. Both presented the defense of innocent presence but were convicted by a jury of the offense of carrying a pistol without a license.*fn1 The principal issue before the panel on this appeal is Smith's challenge to the sufficiency of the evidence to establish that he had the intent to exercise dominion and control over the pistol, a requisite of the offense. He cites us in particular to the en banc decision in Rivas v. United States, 783 A.2d 125 (D.C. 2001) (en banc). We conclude that the evidence was sufficient and affirm both convictions.*fn2
We apply the oft-stated and well-settled standard for reviewing claims of insufficiency of evidence. "[W]e must view all the evidence in the light most favorable to the government and give deference to the right of the [fact finder] to weigh the evidence, determine the credibility of the witnesses, and draw all justifiable inferences of fact, making no distinction between direct and circumstantial evidence."
Earle v. United States, 612 A.2d 1258, 1265 (D.C. 1992). See also Gordon v. United States, 783 A.2d 575, 580 (D.C. 2001) ("In reviewing sufficiency claims, we view the evidence and draw all inferences in the light most favorable to the government."); Jones v. United States, 716 A.2d 160, 162 (D.C. 1998) ("When reviewing a challenge to the sufficiency of the evidence, we examine that evidence in the light most favorable to sustaining the verdict."). Moreover, and important here, the government's evidence need not "negate every possible inference of innocence" to be sufficient. See Timberlake v. United States, 758 A.2d 978, 980 (D.C. 2000). "A court must deem the proof of guilt sufficient if, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Rivas, supra,783 A.2d at 134 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).
Where, as here, the issue is one of constructive possession, the government must show that the defendant (1) knew of the contraband's presence, and (2) had the ability and intent to exercise dominion and control over it. Id. at 129.*fn3 "Constructive possession may be sole or joint . . . and may be proven by direct or circumstantial evidence." Id. (citations omitted). The prosecution must show that the defendant knew that the gun and ammunition were in the car and that "he had both the ability and the intent to exercise dominion or control over it." Id. We held in Rivas that mere proximity to exposed contraband within an automobile did not establish the requisite intent without "something more" in the way of evidence. Id. at 130. We described this "something more" as:
[S]ome action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them. There must be something to prove that the individual was not merely an incidental bystander. It may be foolish to stand by when others are acting illegally, or to associate with those who have committed a crime. Such conduct or association, however, without more, does not establish the offenses here charged.
Id. (quoting United States v. Pardo, 204 U.S. App. D.C. 263, 277, 636 F.2d 535, 549 (1980) (emphasis in original)).
The types of conduct that could link a defendant to the contraband may include (but are not limited to): "evidence linking the accused to an ongoing criminal operation of which the possession is a part, attempts to hide or destroy evidence, other acts evincing consciousness of guilt such as flight, and evidence of prior possession of the contraband." Id. at 146 (Ruiz, J., concurring) (footnotes omitted). At least where the contraband is in plain view, we described the additional evidence necessary to prove the intent element of constructive possession as "comparatively minimal," id. at 137, and the same would be true where the element of knowledge cannot be significantly disputed.
We turn to the facts of the case now before us.*fn4 At approximately 4:30 p.m. on March 23, 2002, Metropolitan Police Officers Antoine and Griffin responded to a radio call reporting that four men were smoking marijuana in a tan-colored Lincoln Continental automobile parked in front of 803 Quintana Place, N.W. The officers arrived at that location in a marked police cruiser. Officer Antoine approached the driver's side of the automobile and knocked on the window where he observed appellant Drumgoole in the driver's seat. When Drumgoole responded to Officer Antoine's request to roll down the car window, Officer Antoine smelled a strong odor of marijuana coming from the vehicle. Officer Antoine called for additional back-up and when they arrived, he had Drumgoole step out of the car and sit on the curb at the rear of the vehicle.
In the interim, Officer Griffin walked to the passenger's side of the car where he observed appellant Smith sitting in a slouched position in the front passenger's seat with his knees against the car's glove compartment.*fn5 When Officer Antoine signaled to Officer Griffin that he smelled marijuana, Officer Griffin asked Smith to get out of the car. When the door to the car opened, Officer Griffin also smelled marijuana. Smith's left knee lost contact with the glove compartment as he got out of the car, and the glove compartment door fell open revealing a fully loaded .357 caliber revolver with a ...