Appeal from the Superior Court of the District of Columbia (F-2104-02) (Hon. Rafael Diaz, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and REID, Associate Judges, and KING, Senior Judge.
Appellant challenges the sufficiency of the circumstantial evidence to support his conviction for unlawful distribution of phencyclidine ("PCP"), in violation of D.C. Code § 48-904.01 (a)(1) (2001), and asserts that his convictions of mayhem while armed (D.C. Code §§ 22-406, -4502 (2001)), aggravated assault while armed (D.C. Code §§ 22-401.01 -4502 (2001)), and assault with a deadly weapon (D.C. Code § 22-402 (2001)) merge. We agree, and the government has conceded, that his convictions on these three counts merge, but we conclude that the evidence was sufficient to support appellant's conviction for distribution of PCP.*fn1
To prove the unlawful distribution of a controlled substance, the prosecution must demonstrate beyond a reasonable doubt that the substance distributed was in fact such an illegal drug. See Bernard v. United States, 575 A.2d 1191, 1193-94 (D.C. 1990). "'[A]s with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence . . . .'" Id. at 1193 (quoting United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962)). This rule is particularly important in prosecutions involving illegal narcotics, since the drugs "will often be unavailable for scientific analysis because their nature is to be consumed." Id. at 1194 (quoting United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988)). This is such a case, where the government did not directly prove the existence of the drug by presenting physical evidence and a chemical analysis of the substance seized.
The government presented evidence during trial establishing that on March 26, 2002, Camishia Mason and Sharnette Littlejohn spent the early evening at Littlejohn's home sharing a "dipper," which was described to the jury by Mason, Littlejohn, and a testifying police officer as a cigarette dipped in liquid PCP and then smoked. Littlejohn purchased the dipper around the corner from her house for twenty dollars. According to Littlejohn, the dipper made her "a little high," and Mason testified that it made her feel "light-headed, numb." Once the dipper's effects wore off, the two women decided they would like another one. They called one of Littlejohn's friends, identified only as "Juan," to come pick them up. He did, and brought a friend along to join the search for more dippers. The foursome traveled to a Motel 6 in Maryland, where Juan attempted to page a dealer he thought would deliver dippers to them at the hotel. After enjoying a couple of drinks (Hennessy and cokes) however, the impatient group decided they did not want to await the delivery. The group headed back to Littlejohn's house and tried to locate the person who had sold Littlejohn the first dipper she and Mason had shared earlier in the evening, but he was nowhere to be found.
Littlejohn then directed the group to Yuma Street, S.E., because she had purchased dippers there on previous occasions. Once they arrived at Yuma Street, Littlejohn and Mason exited the car and began walking up a grassy hill. They passed "a lot of people" they did not know who asked them what they wanted, but Littlejohn told them she did not want to buy from them. They continued up the hill until they found appellant, whom Littlejohn knew.
Littlejohn told appellant that they wanted "two dippers." Appellant then produced two cigarettes and dipped them in a bottle that he retrieved from inside his jacket. The bottle contained a liquid variously described by Littlejohn as "water" and "stuff." Appellant gave the dipped cigarettes to Littlejohn, who paid forty dollars for them.
While the transaction was taking place, appellant asked Mason if he knew her "from somewhere." Although both Mason and Littlejohn assured appellant that he did not know Mason, appellant became convinced that she was the same person who had gotten him thrown out of a nightclub the previous week. He instructed his cohort to get his gun, and, as the situation unraveled, appellant ended up shooting at Mason four times, striking her twice, in each of her legs. In the meantime, Littlejohn went back to the car, where Juan and his friend were waiting. The threesome drove away, leaving Mason on the street as appellant shot at her.
Littlejohn, Juan, and Juan's friend returned to the Maryland Motel 6, where Littlejohn smoked the cigarettes she had bought from appellant. She testified that, at the time, she had been smoking PCP regularly for about three years, "not every day but most of the time," and that compared to the other times she had smoked PCP, these cigarettes "got [her] high" and made her feel "a little woozy." Appellant continuously referred to the cigarettes she bought from appellant as "dippers," and never suggested she believed they were anything other than what she had set out to purchase -- cigarettes dipped in liquid PCP.
Appellant asks us to conclude that the government did not present evidence sufficient to establish, beyond a reasonable doubt, that the substance appellant sold to Littlejohn was PCP, as opposed to some other drug. Although we believe the case is a close one, we conclude that the evidence was sufficient to sustain the jury's verdict.
In determining whether the evidence was sufficient to support a conviction, this court applies the same standard used by the trial court in deciding a motion for judgment of acquittal. See Curry v. United States, 520 A.2d 255, 263 (D.C. 1987). Accordingly, we "review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence." Id. (citations omitted). See also Earle v. United States, 612 A.2d 1258, 1265 (D.C. 1992). "[I]t is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." Nixon v. United States, 730 A.2d 145, 148 (D.C. 1999) (quoting Gayden v. United States, 584 A.2d 578, 580 (D.C. 1990) (internal citations omitted)). However, "evidence is insufficient ...