August 16, 2012
ANTOINE ROSE A/K/A VIRGIL JOHNSON AND MAURICE D. CALLOWAY, APPELLANTS,
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (CMD16463-09 & CF2-16461-09) (Hon. Robert E. Morin, Trial Judge)
The opinion of the court was delivered by: King, Senior Judge:
Argued May 22, 2012
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING, Senior Judge.
Antoine Rose, a/k/a Virgil Johnson,*fn1 who was acquitted of distribution of phencyclidine (PCP), challenges his conviction for simple possession of PCP*fn2 on the ground that, because simple possession is not a lesser-included offense of distribution, the jury should not have been instructed that it could convict him of that offense. He also contends the evidence was insufficient to support the conviction. Maurice D. Calloway challenges his convictions for distribution of PCP,*fn3 one count of possession with intent to distribute PCP,*fn4 and possession of drug paraphernalia,*fn5 on the ground that the trial court erroneously denied his motion to suppress. We affirm all of the convictions.
I. Factual and Procedural Summary
On the evening of July 28, 2009, at approximately 9:05 p.m., two Metropolitan Police Department (MPD) officers set up an observation post in the 3800 block of Ninth Street, Southeast. The officers set up in a wooded area across from a well-lit housing complex. Despite being in a wooded area, the officers‟ view was clear and unobstructed. Using binoculars, they were able to see activity in the complex‟s courtyard and stairway.
The officers observed a vehicle pull up, and watched as the occupants - one of whom was co-appellant Maurice D. Calloway - exited. He walked to a tree in the courtyard and placed an object in the tree‟s branches. Calloway then proceeded to sit and talk with a group of men on the stairs. Shortly thereafter, another car drove up, and Rose exited the rear passenger seat, approached Calloway, and showed Calloway money. Rose went back to the car and conferred with the front seat passenger, and then returned to Calloway. The two men walked to the tree, where Calloway retrieved something and handed it to Rose, and Rose gave Calloway money.*fn6 Rose put a cigarette in his mouth, drew back, and lit the cigarette on his walk back to the car. Rose handed an object to the passenger, and then went to sit with Calloway and the other men on the stairs, and the car drove away. That car was stopped, and the officers recovered a cigarette reeking of PCP from one of the passengers.*fn7 The arrest team moved in on the courtyard, and Calloway and Rose were arrested. A vial containing a liquid later found to be PCP was recovered from the tree. Two packs of cigarettes and $194 in cash were found on Calloway‟s person.
Calloway was charged with and convicted of distribution of PCP, PWID, and possession of drug paraphernalia. He challenges all of his convictions on the ground that the trial court erroneously denied his motion to suppress evidence.*fn8 Rose was charged with but acquitted of distribution of PCP. He was convicted, however, of the lesser-included offense of possession. On appeal, Rose challenges both the instruction that possession is a lesser-included offense of distribution and the sufficiency of the evidence to convict him of possession.
A. Possession as Lesser-Included Offense of Distribution
The record in this case is less than clear, and by all accounts incomplete. At some point during the course of the trial, not reflected in any of the transcripts, it was apparently agreed that the trial judge would instruct the jury that it could consider, with respect to Rose, the offense of simple possession as a lesser-included offense of distribution. It is unclear whether Rose requested the instruction, but there is nothing in the record indicating that the trial court questioned the giving of that instruction, or that either counsel objected to such an instruction. The record does reveal that the trial court drafted verdict forms reflecting this understanding.*fn9 Additionally, the court‟s instructions to the jury on this point were opaque at best. The court began by stating that both defendants were charged with distribution, and went on to discuss the elements of distribution. The trial judge then discussed the offense of possession with intent to distribute (PWID), and stated that "this only applies to Mr. Calloway." The judge next gave an instruction as to simple possession as a lesser-included offense of PWID. The judge then stated:
Of course, you may find that the government has not proven beyond a reasonable doubt that either defendant*fn10 possessed phencyclidine at all. You should first consider whether the defendant is guilty with intent to distribute phencyclidine. If you find that the defendant guilty by possession with intent to distribute or distribution, do not go on to consider the less[e]r offense of possession. Only if you find the defendant not guilty of the greater offense do you go on to consider the less[e]r offense of possession of phencyclidine.
(Emphasis added.) Except as indicated in italics in the passage quoted above, no instruction was given with respect to possession as a lesser-included offense of distribution. Possession as a lesser-included offense of PWID, however, was explicitly stated by the trial judge. Rose‟s counsel made no objection to the instructions. In closing, Rose‟s counsel urged the jury, "if you are firmly convinced that [Rose] had any involvement in this case, we ask you to find him guilty of the lesser included offense of possession of PCP."*fn11
i. Standard of Review
"A defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge." Brockington v. United States, 699 A.2d 1117, 1120 (D.C. 1997) (citation and internal quotation marks omitted).*fn12
Since Rose raises the lesser-included offense issue for the first time on appeal, he concedes our review can only be for plain error. He thus must show that there was: "(1) an error, (2) which is plain, meaning clear or obvious, and (3) which affects his substantial rights." Tyson v. United States, 30 A.3d 804, 807 (D.C. 2011) (quotation marks omitted) (citing United States v. Olano, 507 U.S. 725 (1993)). If Rose meets all three prongs of this test, he must also show (4) that the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted). Because we conclude that Rose has failed to establish the second prong of this test, we reject his claim with respect to the giving of the instruction of possession as a lesser-included offense of distribution.
This court has never decided the question of whether simple possession of a controlled substance is, or is not, a lesser-included offense of distribution of a controlled substance. The only direct mention of this issue by this court can be found in Judge Terry‟s concurring opinion in Minor v. United States, where he stated that he would hold "that, as a matter of law, possession is not and can never be a lesser included offense of distribution because there is no overlap between the two offenses." 623 A.2d 1182, 1188 (D.C. 1993) (Terry, J. concurring). Because the majority did not address this issue, Judge Terry‟s view is not the law of our jurisdiction.*fn13 Additionally, our standard jury instructions do not list possession as a lesser-included offense of distribution. We have observed, however, that "[i]t is self-evident that every distribution of an unlawful drug is immediately preceded by possession of that same drug with intent to distribute it." (Lomel) Allen v. United States, 580 A.2d 653, 659 (D.C. 1990).
The state and federal courts that have ruled directly upon this issue are decidedly split. Some courts have held that possession is a lesser-included offense of distribution. Anderson v. State, 867 A.2d 1040, 1045 (Md. 2005) ("It is not possible . . . to "distribute‟ a controlled dangerous substance . . . unless the distributor has actual or constructive possession (dominion or control) of the substance. Thus, the possession of the substance distributed is necessarily an element of the distribution.") (emphasis added); State v. Johnson, 627 N.W.2d 753, 760-61 (Neb. 2001) ("One cannot, however, commit the greater crime of distribution without committing the lesser offense of possession of a controlled substance, notwithstanding the fact that there are several forms of illegal possession. . . . We therefore conclude that the offense of possession of a particular controlled substance is a lesser-included offense of distribution of such particular controlled substance."); Austin v. Commonwealth, 531 S.E.2d 637, 639 (Va. Ct. App. 2000) ("[T]he offense of possessing a controlled substance . . . is a lesser-included offense of distribution of a controlled substance.").
Other courts have held that possession cannot be considered a lesser-included offense of distribution. See United States v. Colon, 268 F.3d 367, 377 (6th Cir. 2001) ("Although distribution may involve the actual or constructive possession of a controlled substance, "distribution‟ includes other acts perpetrated in furtherance of a transfer or sale . . . Thus, it is possible to commit the "distribution‟ element of the crime without possessing the drugs themselves."); United States v. Jackson, 213 F.3d 1269, 1296-97 (10th Cir. 2000) ("[I]t does not follow that simple possession is a lesser included offense of distribution . . . Although it may be unusual for a person to distribute a controlled substance without at least momentarily possessing the controlled substance, it is not impossible."), vacated on other grounds, 531 U.S. 1033 (2000); United States v. Gore, 154 F.3d 34, 46 (2d Cir. 1998) ("[G]enerally possession with intent and distribution should not be regarded as the "same offense,‟ nor is possession with intent always to be deemed a lesser included offense of distribution . . . except under the narrow set of facts "where the evidence shows only that the defendant handed over a pack of drugs.‟") (internal citation and alteration omitted); United States v. Sepulveda, 102 F.3d 1313, 1317 (1st Cir. 1996) ("It is possible - albeit unusual - to be guilty of distribution of a drug without also possessing it with intent to distribute . . . While "possession‟ is certainly helpful in proving distribution, it is technically not a necessary element."); United States v. Barrientos, 758 F.2d 1152, 1158 (7th Cir. 1985) ("[P]ossession is not a necessary element of a distribution charge."); State v. Goodroad, 455 N.W.2d 591, 593 (S.D. 1990) ("As distribution and possession of marijuana are distinct offenses, and possession is not a lesser included offense encompassed by distribution, Goodroad was properly charged and convicted on both counts."); People v. Bloom, 577 P.2d 288, 290 (Colo. 1978) (en banc) ("[P]ossession of a narcotic drug is not a lesser-included offense of "soft‟ sale of a narcotic drug."); State v. Brown, 200 S.E.2d 666, 667 (N.C. Ct. App. 1973) ("[U]nlawful possession cannot be considered a lesser included offense of the crime of unlawful distribution.").
Lastly, some courts have simply skirted the issue, and implied that possession was a lesser-included offense of distribution by declining to give a lesser-included offense instruction where no evidence at trial would have supported such conviction, implying that if evidence at trial would have adduced possession, the jury could have been instructed of possession as a lesser-included offense of distribution. See United States v. Kristofferson, 990 F.2d 1263 (9th Cir. 1993) ("[Appellant] did not meet his burden of demonstrating that the evidence at trial was such that the jury could rationally find him guilty of the lesser offense, yet acquit him of the greater," in order to merit a lesser-included offense instruction) (unpublished opinion); United States v. Fayne, 9 F.3d 1549 (7th Cir. 1993) ("Therefore, Fayne never represented to the jury that he merely possessed the cocaine that he was ultimately convicted of distributing (Correia‟s crack cocaine); he only represented that he possessed crack cocaine that he was not charged with distributing. The jury had no basis for finding that Fayne only possessed Correia‟s cocaine but did not deliver it to Correia.") (unpublished opinion); United States v. King, 567 F.2d 785, 790-91 (8th Cir. 1977) (denying lesser-included offense instruction of possession where party was charged with distribution and there was no rational basis upon which the jury could convict on possession); United States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974) (per curiam) ("[P]resent case law indicates that such an instruction is proper only when the charged greater offense requires that the jury find a disputed factual element which is not a requisite for conviction of the lesser included offense."); Jackson v. State, 444 S.E.2d 126, 127 (Ga. Ct. App. 1994) ("[C]ontrary to appellant‟s contention[,] the evidence at trial does not reasonably raise the lesser included offense of distribution of cocaine.").
With this background in mind, we turn to the instant case to consider whether the trial judge plainly erred in instructing the jury that possession was a lesser-included offense of the crime of distribution. We begin by noting that, as far as can be gleaned from the record before us, Judge Terry‟s comment in Minor and the lesser-included offense issue raised by that comment were never presented to the trial court. Indeed, a natural, common-sense reaction to the question of whether possession is a lesser-included offense of distribution is that yes, of course possession is a lesser offense, because in order to distribute, one must first possess. As we observed in (Lomel) Allen, "[i]t is self-evident that every distribution of an unlawful drug is immediately preceded by possession of that same drug with intent to distribute it." 580 A.2d at 659.
However, we recognize, as have many other courts, that there are circumstances in which a substance can be distributed without the charged individual having any actual or constructive possession. Indeed, "someone who participates in a drug transaction - e.g., as a broker or armed guard - can be liable for distribution without ever possessing the drugs." Colon, 268 F.3d at 376 (quoting Gore, 154 F.3d at 45).
"In reviewing jury instructions, we must look at the instructions "as a whole in assessing whether they constituted prejudicial error.‟" Mozee, 963 A.2d at 159-60 (citing Hunt v. United States, 729 A.2d 322, 325 (D.C. 1999)). Here, we need not decide whether there was error - the first step in the plain error analysis - for even assuming arguendo that the trial court erred in providing the lesser-included offense instruction, we certainly cannot say such error was plain. On the facts before us, where the lesser-included offense issue was not raised before the trial judge who had no occasion to consider it, where the verdict form was unequivocal and not objected to, where the defense presented expert witness testimony that Rose‟s conduct was consistent with possession and not distribution, where the defendant asked the jury to find him guilty on the lesser offense of possession, and where there is no clear case law in our jurisdiction, on an issue where other jurisdictions are split on the matter, we cannot, on this record, say there was plain - that is, clear or obvious, Tyson, 30 A.3d at 807 - error in this case. See Mack v. United States, 6 A.3d 1224, 1236 (D.C. 2010) ("As a result, we simply cannot find any error that is "plain,‟" ending the analysis.) (citation omitted); Wooden v. United States, 6 A.3d 833, 843 (D.C. 2010) ("[W]e can find no "error‟ that is "plain,‟ within the meaning of plain error review. That ends the matter."); see also (Norman) Allen v. United States, 495 A.2d 1145, 1152 (D.C. 1985) (en banc) ("[I]nstructional errors not raised at trial will not be distrubed [sic] on appeal . . . [where] counsel‟s failure to object can be viewed as a tactical choice.") (citations omitted); cf. Johnson v. United States, 840 A.2d 1277, 1280-81 (D.C. 2004) ("Even assuming that the court‟s failure to provide the May 14 note to counsel was an error of law, the error was not "so clearly prejudicial to substantial rights‟ as to jeopardize the fairness of the trial.") (citation omitted). We therefore reject Rose‟s claim that the trial judge committed plain error in the giving of the instruction.
B. Sufficiency of the Evidence
i. Standard of Review
When we review a claim of evidentiary insufficiency, we view the "evidence in the light most favorable to the government, giving full play to the right of the [fact- finder] to determine credibility, weigh the evidence, and draw justifiable inferences of fact," and we "will not disturb the lower court‟s findings of fact, unless they are clearly erroneous." Thomas v. District of Columbia, 942 A.2d 645, 648-49 (D.C. 2008) (internal citations omitted). We "must accept the inferences drawn by the trial court as to the facts before it, if they are supportable under any view of the evidence." Williams v. United States, 576 A.2d 700, 703 (D.C. 1990) (citations and internal quotation marks omitted). "When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." Kruse v. District of Columbia, 171 A.2d 752, 753 (D.C. 1961).
Rose‟s second claim of error is that there was insufficient evidence to convict him of possession. Rose was seen giving Calloway money, and then drawing in on a cigarette, consistent with a cigarette dipped in PCP. He was also seen lighting a cigarette as he walked back to the car, and a wet, partially-burned, PCP-laced cigarette was found on the ground outside of the front passenger side of the car when it was stopped, and three more PCP-laced cigarettes were found inside the car. On these facts, Rose‟s own expert testified that Rose‟s actions that night were consistent with possession, stating that in his opinion, "the case involving Mr. Rose is more consistent with at least personal use," but not sale, supporting a conviction for possession. Finally, where, as here, his counsel invited the jury to convict him of the lesser charge of possession at trial, we cannot say, especially considering the facts and circumstances of this case, that the evidence was insufficient. For all these reasons, we are satisfied that there was sufficient evidence upon which to convict Rose of possession of PCP.
Accordingly, it is ORDERED and ADJUDGED that the convictions of Calloway and Rose are hereby