Appeals from the Superior Court of the District of Columbia (Nos. F-9912-97 & F-9910-97) (Hon. John M. Campbell, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Argued September 22, 2005
Before RUIZ and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.*fn1
Appellants John Moore and Clifton Durant seek reversal of their convictions for narcotics and weapons offenses. They raise a variety of challenges, some of which have limited merit, but none of which entitles either of them to the requested relief. We affirm the judgments of conviction.
Durant, his wife Christina Durant, and Moore were charged in a seven-count indictment with the crimes of maintaining a crack house, possession of a prohibited weapon (a semi-automatic Beretta handgun), and other weapons-related offenses.*fn2 The indictment also charged each of the Durants (but not Moore) with unlawful possession with intent to distribute a controlled substance (cocaine) and possession of a firearm during a crime of violence or dangerous offense.
According to the government's evidence at trial, on the afternoon of December 22, 1997, officers and detectives of the Metropolitan Police Department's Major Narcotics Branch executed a search warrant at 1520 Holbrook Street, Apartment 204, in northeast Washington, D.C.*fn3 Upon entering the small, one-bedroom unit, the police found Christina Durant sitting in the living room. She was alone in the apartment, but the police observed an item or two of men's clothing in the bathroom in addition to the many items of women's apparel hanging in the bedroom.
On top of an entertainment center in the bedroom, the police found and seized a loaded 9 mm semi-automatic Beretta handgun; 91 ziploc bags of cocaine; $405 in cash; a quantity of recently dated mail correspondence individually addressed to Mrs. Durant and each of appellants (at addresses other than the Holbrook Street apartment), along with other personal papers in each of their names;*fn4 and photographs of appellants and Mrs. Durant. One of the photographs showed Moore standing in the bedroom of Apartment 204, holding what appeared to be the same 9 mm Beretta handgun as was found on the entertainment center. Two other photographs of Moore depicted him standing in the bedroom or at the front door of the apartment. Another photograph showed appellant Durant and his wife together by the apartment door. The police also seized Mrs. Durant's purse, which contained $200 in cash, personal papers and other items.
While the search was under way, Durant and Moore were observed on Holbrook Street in Durant's car, a Chevy Blazer. The police stopped the vehicle. Durant, who was driving, produced his license and, being asked, stated that he lived at 1520 Holbrook Street, Apartment 204. Durant and Moore then were arrested. In a subsequent search of the Blazer, the police retrieved Durant's keys, one of which was to the door of Apartment 204.
Mrs. Durant was the only defendant who took the stand at trial. She testified that she was the lessee of Apartment 204. She had lived there with her young son until October 1997, when she married Clifton Durant and began to reside with him at another address. After she moved out, Mrs. Durant stated, she continued to pay the rent and utility bills for the Holbrook Street apartment. She also continued to visit and utilize the unit, she explained, because its location was convenient to her son's school. Mrs. Durant testified that both her husband and Moore had keys to Apartment 204, and that she had allowed Moore to stay at the apartment. She described Moore as her husband's friend and employee. When the police arrived at the apartment on December 22, 1997, Mrs. Durant testified, she was in the living room watching television and preparing to go watch her son in a school play. Claiming that she had given her brother-in-law permission to occupy the apartment in her absence,*fn5 Mrs. Durant professed to have no knowledge of the gun and drugs found in the bedroom even though she had kept her clothing and other possessions there.
Following Mrs. Durant's testimony, each appellant put on a witness to establish that he did not reside at 1520 Holbrook Street. A rental company employee produced records showing that Clifton Durant had signed a lease in October 1996 for an apartment located at 1909 M Street, Northeast, for which he had paid rent through the date of trial. A second witness who knew Moore as a friend testified that Moore had lived at 1909 M Street until October 1997, and in Northern Virginia from then through January 1998.
After the case was submitted to the jury, for reasons that we shall discuss below, the trial court granted Mrs. Durant's motion for a mistrial. Soon thereafter, the jury found each appellant guilty on all counts.
The claims that appellants raise on appeal may be grouped as follows. First, both Moore and Durant argue that there was insufficient evidence to sustain some or all of their convictions. Second, Durant argues that the court erred in denying his pretrial motions for severance and the suppression of evidence. Third, Moore argues that the trial court's instructions regarding possession of a prohibited weapon were deficient. Fourth, both Moore and Durant argue that the court erred in denying their motions for a mistrial based on the jury's exposure to prejudicial evidence not introduced at trial. We address the four categories of claim, in that order.
A. Sufficiency of the Evidence
In an appeal from a criminal conviction, we evaluate the sufficiency of 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. . . ." Curry v. United States, 520 A.2d 255, 263 (D.C. 1987). We "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 v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in the original). Only when there is "no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt" may we reverse a conviction for evidentiary insufficiency. Frendak v. United States, 408 A.2d 364, 371 (D.C. 1979).
In general, a sufficiency challenge is to be evaluated in light of all the evidence adduced at trial, including any inculpatory evidence presented in the defense case, even if the government's evidence by itself would have been insufficient to sustain the conviction. An accused who elects to present evidence runs the risk of filling gaps in the prosecution case. See Franey v. United States, 382 A.2d 1019, 1021-22 (D.C. 1978); In re A.B.H., 343 A.2d 573, 575 (D.C. 1975). Thus, it is commonly said, "a defendant who introduces evidence after the denial of his motion for a judgment of acquittal made at the close of the government's case thereby waives that motion and cannot make the ruling the subject of appellate review." Franey, 382 A.2d at 1021.*fn6 In assessing whether there was sufficient evidence of appellants' guilt in the present case, therefore, we consider all the evidence admitted at trial, notably including Christina Durant's testimony as well as that of appellants themselves.*fn7
1. Constructive Possession
Durant contends that there was insufficient evidence to prove that he constructively possessed the drugs and gun found in the bedroom of Apartment 204. The contention does not persuade us.
To prove constructive possession of drugs, weapons, or other contraband, the evidence must show that the accused knew of its presence and had both the ability and intent to exercise dominion and control over it. Rivas, 783 A.2d at129. "Constructive possession may be sole or joint and may be proven by direct or circumstantial evidence." Id. Where knowledge and ability to exert control over contraband are shown, "the additional evidence necessary to prove constructive possession is comparatively minimal." Id. at 137. A wide variety of additional probative evidence may suffice. In particular, we have recognized that a prima facie case of constructive possession may be established by evidence linking the accused to "an ongoing criminal operation of which the possession is a part." Earle v. United States, 612 A.2d 1258, 1265-66 (D.C. 1992). Evidence showing the accused's control or occupancy of the premises in which the contraband is found may also serve to prove constructive possession. Rivas, 783 A.2d at 137; see also Taylor v. United States, 662 A.2d 1368, 1373 (D.C. 1995) ("It is usually easy to establish that the owner of a car or the occupant of a living area has constructive possession of illicit items recovered from these places."). In general, "a jury is entitled to infer that a person exercises constructive possession over items found in his home." United States v. Dykes, 365 U.S. App. D.C. 381, 385, 406 F.3d 717, 721 (2005) (internal quotation marks and citations omitted). "Evidence suggesting that a defendant has regular access to the premises, such as possession of a key, may also be sufficient to establish constructive possession." United States v. Dingle, 324 U.S. App. D.C. 453, 457, 114 F.3d 307, 311 (1997). The "inference that a person who occupies an apartment has dominion and control over its contents applies even when that person shares the premises with others, although it is plainly not as strong an inference in that circumstance." Dykes, supra (internal quotation marks and citations omitted).
Applying these principles, we find sufficient evidence that Durant constructively possessed the contraband found in Apartment 204. Although Durant was not present inside the apartment when the contraband was discovered, he was in the immediate vicinity. He had a key to the apartment; he admitted living there; he had been photographed there; and his wife was the lessee. The 91 ziplocs of crack cocaine and the semi-automatic handgun recovered from the apartment were found in the unit's only bedroom, lying in plain view next to Durant's personal papers. Taken together, these facts allowed a jury to infer beyond a reasonable doubt that Durant knew the drugs and gun were in his apartment, and that he had the ability and intent to exercise dominion and control over them.
It is of little moment that much the same evidence showed constructive possession by Moore and Christina Durant. Possession can be joint. In some cases involving the presence of more than one person on the premises or even shared occupancy and control, common possession of contraband is not indicated, and the evidence does not justify attributing the illegal items to one party rather than another beyond a reasonable doubt. See, e.g., In re R.G., 917 A.2d 643, 649-650 (D.C. 2007); In re T.M., 577 A.2d 1149, 1152 (D.C. 1990). In this case, however, the evidence showed a close personal and business relationship among the three defendants, and the quantity and packaging of the cocaine indicated a criminal sales enterprise involving multiple participants rather than possession of a small amount of drugs or a gun by a single individual for purely ...