Appeal from the Superior Court of the District of Columbia. (LT-7756-04) (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL, RUIZ, and FISHER, Associate Judges.
Appellant Raesheeda Ball challenges a judgment of possession entered upon a jury finding in favor of appellee Arthur Winn General Partnership/Southern Hills Apartments (hereafter "the landlord"). The jury found that Ms. Ball's rental apartment unit had been used as a "drug haven" such that she could be evicted under the Residential Drug-Related Evictions Act (the RDEA or the Act), D.C. Code §§ 42-3601 to -3610 (2001).
The RDEA permits a landlord to recover possession of a rental unit by proving that it "is a drug haven," id. § 42-3602 (a), defined as "a housing accommodation, or land appurtenant to or common areas of a housing accommodation where drugs are illegally stored, manufactured, used, or distributed." Id. § 42-3601 (8). The Act further instructs, id. § 42-3602 (a), that "[i]n making the determination that the rental unit is a drug haven . . . the Court shall consider," inter alia:
(1) Whether a tenant or occupant of the rental unit has been charged with a violation of the Uniform Controlled Substances Act or the Controlled Substances Act due to activities that occurred within the housing accommodation that contains the rental unit . . . ; [or]
* * * * (4) The testimony of a witness concerning the possession, manufacture, storage, distribution, use, or the attempted possession, manufacture, storage, distribution, or use of an illegal drug by a tenant or occupant in the housing accommodation that contains the rental unit. (Emphases added.)
If the court determines by a preponderance of the evidence "that the rental unit is a drug haven," the court must order relief that may include "[e]viction of the tenant or occupant within 72 hours." Section 42-3604 (a)(1)(A) (emphasis added).
Appellant makes two primary arguments on appeal. First, she contends that the trial judge incorrectly ruled as a matter of law - and therefore instructed the jury - that an "occupant" under the Act means anyone "authorized by the tenant or housing provider to be on the premises of the rental unit," id. § 42-3601 (16), rather than only an invitee who "lives on the premises" and is not a "mere guest or visitor" (Br. for App. at 18). Applying the plain language of the statutory definition of "occupant,"*fn1 we reject this argument. Ball's second contention has more merit. She contends that, in light of this court's intervening decision in Crescent Properties v. Inabinet, 897 A.2d 782 (D.C. 2006), the trial judge erroneously failed to instruct the jury that, to support eviction, it must find that the property "currently remained a drug haven . . . at the time of the hearing," id. at 789 - that, in the statutory words, it was a property "where drugs are illegally stored, manufactured, used, or distributed" at the present time. Id. at 786-87 (emphasis added) (quoting D.C. Code § 42-3601 (8)). We agree that the judge's instructions did not focus the jury, in accordance with Crescent Properties, on the landlord's burden to prove that any drug activity for which Ball was responsible continued at the time of trial, i.e., either was ongoing or would reasonably be expected to resume. Id. at 787, 789. We accordingly must remand for a new trial.
Trial of this matter took place on March 21, 2005. According to testimony presented there, on January 15, 2004, police officers answered a report of gunfire in front of the building where Ms. Ball's rental unit was located. A witness told the responding officers that the person discharging the gun had then gone into Ball's apartment. The police entered the apartment and saw five adult males, Ball's nineteen year old sister, and Ball's seven month old child there. After securing the scene, the police obtained and executed a search warrant and found in the apartment five handguns, three rifles (including shotguns), 125 grams of crack cocaine, and quantities of PCP and marijuana. They also recovered drug paraphernalia that included empty ziploc bags, plates with drug residue, a digital scale used to weigh narcotics, and $4,156 in cash. The three rifles were found in a front hall closet, and a nine millimeter semiautomatic handgun was in the same or a different hall closet. The bulk of the drugs were in a toilet (an effort had apparently been made to flush them down) and in coats lying in the common area, while the paraphernalia was found in bedrooms and the kitchen. All five men were arrested and charged with violation of the drug laws, though none was ultimately prosecuted (according to a police witness) because of concerns about the legality of the initial entry of the unit. Ball was not in the apartment at the time of the search and arrests.
On the basis of these events, the landlord served Ball with a notice to quit the apartment, asserting that she had violated an obligation of tenancy by allowing her apartment "to be used as a drug haven as defined by the [RDEA]." The landlord subsequently filed a complaint for possession against Ball alleging, among other things, the RDEA violation. Before trial, Ball objected to the admission of evidence regarding the actions of those present in the apartment when the drugs were found, asserting that because they were not residents and because visitors or guests are not "occupants" within the meaning of the Act, their actions could not establish the existence of a drug haven. Implicit in the argument was the concession - borne out by the trial testimony - that Ball would present no evidence that the others present had unlawfully entered the apartment or done so without her permission. Instead, Ball acknowledged at trial that Siddiq Anderson, one of the men present, was there at her request: she had asked him to stay there with her nineteen year old sister to watch Ball's child while she went out.
Relying on the statutory definition of "occupant," the trial judge rejected Ball's attempt to limit the meaning of the term to persons residing in the premises rather than those merely visiting, and left to the jury the issue of whether Anderson had been "authorized" by Ball "to be on the premises of the rental unit." The judge further instructed on the various factors to be considered in deciding whether Ball "or an occupant, a person she had authorized to be there, [had] used the premises as a drug haven." Finally, assuming the jury were to find that the landlord had met its burden on these issues, the judge instructed on the affirmative defenses Ball had raised under § 42-3604 (c), each of which she was required to prove by a preponderance of the evidence. The ...