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Jose A. Ramirez v. United States

August 16, 2012

JOSE A. RAMIREZ, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CF2-7191-10) (Hon. Robert E. Morin, Trial Judge)

The opinion of the court was delivered by: Washington, Chief Judge:

Submitted June 21, 2012

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and NEBEKER, Senior Judge.

Appellant Jose Ramirez was charged with possession with intent to distribute cocaine (PWID) and possession of drug paraphernalia.*fn1 Following a jury trial, he was acquitted of PWID, but convicted of the lesser-included offense of possession of cocaine.*fn2 He was also convicted of possession of drug paraphernalia. On appeal, Mr. Ramirez claims that: (1) the evidence was insufficient to support his convictions; and (2) the trial court erred by instructing the jury that it could find him guilty of possession of drug paraphernalia based on possession of one ziplock bag. For the reasons stated below, we disagree and affirm.

I.

The government presented the following evidence at trial. On April 23, 2010, Metropolitan Police Department officers executed a search warrant at 1445 Otis Street, N.W., Apartment 301. The police conducted a "knock and announce" and, after waiting and receiving no response, entered the apartment by force. Inside the apartment, the police found two men: Pascual Luna, who was seated at the dining room table in the kitchen; and Mr. Ramirez, who was walking out of the kitchen. Mr. Ramirez told police that he lived in the apartment. When asked where in the apartment he resided, he pointed to the bed in the living room.

Police found drugs and drug paraphernalia throughout the apartment. In the kitchen, police found, inter alia, 43 ziplock bags containing a white powdery substance and assorted drug paraphernalia, including digital scales. Inside the kitchen sink was a plate with white powder residue. The kitchen sink's faucet was running, the plate was wet, and there was a large quantity of a white powdery substance underneath the plate.

In a closet directly next to the bed in the living room where Mr. Ramirez resided, police found a ziplock bag containing a white powdery substance in the pocket of a pair of jeans, a backpack which contained a digital scale, a jacket with $1,250 in one of its pockets, mail matter bearing Mr. Ramirez's name, and two photos of Mr. Ramirez. In the back bedroom where Mr. Luna resided, police recovered additional drugs and drug paraphernalia. Police searched Mr. Ramirez and Mr. Luna and found $102 on Mr. Ramirez, and ziplock bags containing a white powdery substance and $520 on Mr. Luna.

An expert in the distribution and use of narcotics in the District of Columbia testified that powdered cocaine is usually packaged in small ziplock bags and that digital scales are used to measure cocaine and to cut up small portions of pure cocaine before adding cutting agents. The parties stipulated that, if called to testify, a Drug Enforcement Agency chemist would have testified that the white powdery substance was cocaine. Specifically, the chemist would have testified that the ziplock bag found in Mr. Ramirez's closet contained 0.11 grams of cocaine, and that the ziplock bags found on the kitchen table contained 27.2 grams of cocaine.

At the close of the government's case, Mr. Ramirez moved for judgment of acquittal, claiming that the government had not sufficiently proven any of the charges. The trial court denied Mr. Ramirez's motion.

The defense presented testimony from one witness, Eliberto Romero, who also lived in the apartment at the time the search warrant was executed. Mr.Romero testified that Mr. Ramirez had been living in the apartment for approximately three months prior to the incident and was unemployed during such time. Mr. Romero explained that Mr. Ramirez slept in the bed in the living room and that Mr. Ramirez only used and stored his personal belongings in the closet closest to his bed while Mr. Luna used the second closet in the living room. However, according to Mr. Romero, the backpack found in Mr. Ramirez's closet belonged to Mr. Luna.

The jury acquitted Mr. Ramirez of PWID, but convicted him of possession of cocaine and possession of drug paraphernalia. This appeal followed.

II.

Mr. Ramirez claims the evidence was insufficient to show that he possessed drugs or drug paraphernalia. We review sufficiency claims "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." Gibson v. United States, 792 A.2d ...


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