Appeal from the Superior Court of the District of Columbia. J2144-04 (Hon. Fern L.R. Saddler, Trial Judge.
The opinion of the court was delivered by: Schwelb, Senior Judge
Before RUIZ and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.
Following a fact-finding hearing in this juvenile delinquency case, R.G., a girl aged seventeen at the time of the offense, was found guilty, on a constructive possession theory, of carrying a pistol without a license (CPWOL), unlawful possession of an unregistered firearm (UF), unlawful possession of ammunition for an unregistered firearm (UA), and unlawful possession of a controlled substance (marijuana). On appeal, R.G. contends that the evidence was insufficient as a matter of law to support the finding of guilt with respect to the weapons offenses. R.G. acknowledges her guilt of unlawful possession of marijuana.
We conclude that although there was sufficient evidence to support a finding that R.G. had knowledge of the location of the pistol, which was a few feet from her, the evidence was insufficient, as a matter of law, to establish beyond a reasonable doubt that R.G. had the intent to exercise dominion and control over the pistol. Because such intent is an element of constructive possession, we vacate for insufficient evidence the adjudication of guilt as to CPWOL, UF and UA. We affirm as to unlawful possession of marijuana.
The sole question on appeal is whether the evidence was sufficient to establish, beyond a reasonable doubt, that R.G. was in constructive possession of a pistol and ammunition*fn1 that were found in her bedroom during the execution of a search warrant on September 24, 2004. Police testimony introduced by the District of Columbia established that R.G. had been sharing the bed in her bedroom with her adult boyfriend. A search of her bedroom disclosed the presence of a .38 caliber pistol on the windowsill adjacent to the bed. In addition to the pistol, the police recovered a single plastic ziploc bag of marijuana, which was in plain view on a lunch pail near the bed. A drape and a plastic sheet were between the bed and the window, and while the pistol was not in plain view with the sheet in place, it could be seen from the bed if the sheet was pushed back a little. A police officer testified that the weapon was "immediately in arm's reach of the bed," and that when he saw R.G. on the bed, she was approximately four or five feet from the pistol. He further testified that if
R.G. and her boyfriend "were laying on the bed with their head[s] at that end of the bed, [the pistol] would have been right above their heads." The foregoing testimony adduced by the District was essentially undisputed.
Disregarding her attorney's advice, R.G. took the witness stand in her own defense. She freely acknowledged that the single bag of marijuana recovered from her bedroom belonged to her, but she insisted that she had no knowledge of the presence of the handgun.
R.G. had volunteered to the officers, and she reiterated at the evidentiary hearing, that she had anticipated a police search of her home because two of her cousins had been arrested on the previous day. She also stated that drugs and weapons had been recovered from the house during previous police searches. R.G. told the trial court that she had been living at her residence, which was owned by her grandmother, for five months. She also testified that the house had four bedrooms, and that she lived there with nine other family members, including six adults.
R.G. testified that on the night of her arrest she was asleep in her room when her boyfriend, who was outside on the street, threw a rock at her window at about 3:00 a.m., apparently in order to bring his presence to her attention.*fn2 R.G. opened the door to the house and let the boyfriend come in, and the couple went to bed. At approximately 4:30 or 5:00 a.m., however, the two of them were woken by the sound of the police coming up the stairs. The officers found the pistol and the marijuana, and both R.G. and her boyfriend were taken into custody.
R.G. stated that she did not know that there was a pistol in her room. She explained that she was "fun," and that other members of the household or guests liked to "chill" and hang out in her room. R.G. also asserted that she would have noticed if the sheet behind her bed had been moved, for she would have felt air coming into the room.
The trial judge found R.G. guilty of all charges. The judge expressly declined to credit R.G.'s testimony that she was unaware of the presence of a pistol in her room. In making this credibility assessment, the judge relied on uncontradicted evidence that the pistol was in close proximity to R.G., that the room was small, and that it was R.G.'s room. The judge found, in conformity with R.G.'s testimony, that other people in the house would "hang out" in R.G.'s room. The judge explained as follows her finding that R.G. was guilty of all charges:
For a finding of [CPWOL], the court was able to find that the [District] met those elements in this case. The court believes the [District] proved all the elements beyond a reasonable doubt. The firearm was not registered, the ammunition was not registered. The respondent admitted to the marijuana. There was construct[ive] possession in this case. It was in arm's reach of her bed, and it was no mistake, or in this case ...