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Burwell v. United States

June 22, 2006

BRIAN A. BURWELL, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (M3927-04) (Hon. James E. Boasberg, Trial Judge).

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

Argued April 13, 2006

Before SCHWELB, RUIZ, and GLICKMAN, Associate Judges.

Following a bench trial, Brian Burwell was found guilty of unlawful possession of marijuana, in violation of D.C. Code § 48-904.01 (d) (2001). On appeal, he contends that the evidence was insufficient as a matter of law to support his conviction. We disagree and affirm.

I. THE TRIAL COURT PROCEEDINGS

A. The Judge's Evidentiary Findings

The sole witness at the trial of Burwell and of his co-defendant, Earl Johnson,*fn1 was Officer Michael Johnson of the United States Park Police. The trial judge "found the officer credible, his manner and demeanor on the stand appropriate and believable, [and that] his testimony had the ring of truth." Based on Officer Johnson's testimony, the judge made essentially uncontested findings of fact as set forth below.

On April 16, 2004, at 3:25 a.m., Officer Johnson stopped a car which was being driven by Burwell.*fn2 Earl Johnson was riding in the front seat, and a third man, one Sutton, was in the rear seat.*fn3 After Officer Johnson approached the vehicle, some or all of the three occupants stated that they were on their way home from a party. While speaking with the driver, the officer observed "the shavings of a blunt [cigar]," in the rear seat area, as well as the outside wrapper of a cigar. Knowing from experience that "hollowed out" cigar shells are used to smoke marijuana, the officer directed Burwell to step out of the vehicle and proceed to the rear of the car. Officer Johnson then questioned Burwell, and Burwell stated that the car belonged to his girlfriend. The officer asked for, and received, Burwell's consent to a search of the vehicle, and he directed Earl Johnson to step out from the passenger seat.

Using his flashlight to illuminate the inside of the vehicle, Officer Johnson observed small amounts of a leafy substance (later shown to be marijuana) lying on the front floor board. There was also marijuana on the tip of the car's lighter, which also was on the floor. When Officer Johnson approached the rear door, he detected the odor of marijuana,*fn4 and he found a bag containing marijuana between the rear seat and the rear door on the driver's side. The judge then found that

[t]here was a further search, and one ounce of marijuana was found in the glove box, . . . as well as a Backwoods cigar container or wrapper in Mr. Johnson's coat pocket and other cigars on the seat next to Mr. Sutton. These cigars are typically hollowed out and filled with marijuana to smoke as blunts . . . .

[T]he substances were tested and all tested positive for marijuana.*fn5

Finally, at the request of the prosecutor, the judge made a finding that "the officer asked [if] anyone [would] take responsibility for the marijuana and no one did."

B. The Judge's Decision

Based on the foregoing evidentiary findings, and after hearing argument, the judge found both defendants guilty beyond a reasonable doubt. The judge ...


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