Appeal from the Superior Court of the District of Columbia (CF2-15966-10) (Hon. Florence Y. Pan, Trial Judge)
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.
Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.
Concurring opinion by Senior Judge SCHWELB at page 14.
Appellant Tamara Smith appeals her convictions of unlawful possession of a firearm ("felon in possession"), possession of an unregistered firearm, two counts of unlawful possession of ammunition, and possession of a prohibited weapon (a machine gun),*fn1 on the basis that there was insufficient evidence to prove beyond a reasonable doubt that she had constructive possession of the firearm and ammunition. We affirm.
On August 27, 2010, at 5:40 p.m., officers of the Metropolitan Police Department executed a search warrant at an apartment located at 3908 Stanton Road in Southeast, Washington, D.C.*fn2 When the officers entered the apartment, appellant was standing in the living room and her boyfriend, Maurice Evans, was standing in the hallway.In the master bedroom, which appellant shared with Evans,the officers found a purple children's backpack on the floor next to the bed, leaning against an entertainment center. When the officers found the backpack, its contents were not visible. The officers opened the backpack and found a black .45 caliber Uzi style firearm and boxes of .40 caliber and .357 caliber ammunition. The officers also found a white bulletproof vest and a bore brush used to clean firearms inside the backpack. The officers found a photograph of appellant inside the entertainment center next to which the backpack was found. Additionally, the officers found a pair of men's shorts on the bed, which contained appellant's and Evans' D.C. identification cards. The officers also recovered two boxes of .357 caliber ammunition from inside the top drawer of a file cabinet located in the closet of the master bedroom. Mail addressed to Evans was in this drawer of the file cabinet. During an interview after his arrest, Evans stated that the file cabinet was his and that a cousin, who is now deceased, had put the ammunition in the file cabinet several years before. In the kitchen, the officers found mail addressed to appellant in a drawer and recovered one loose round of .38 caliber ammunition on top of a kitchen cabinet. In the loft area, which is accessible from the living room, the officers found a bare mattress, bags of clothing, mail addressed to both appellant and Evans, a photo album, a digital scale, and a Ruger gun box. Inside a closet attached to the loft, the officers discovered a closed black duffle bag that contained an assault rifle and ammunition.
During an interview conducted after her arrest, appellant stated that she lived in the apartment with Evans and his fifteen year old son.*fn3 She also stated that her cousin, William Howard, had a key to the apartment and "stayed there" occasionally. Appellant informed police officers that she was the only person who stayed at the apartment during the week before the search. However, Dominique Lewis, appellant's neighbor, testified at trial that she saw Howard entering and exiting the apartment during the week prior to the execution of the search warrant. Lewis testified that Howard lived in the apartment, slept in the loft area, and had clothes there. Nevertheless, Lewis had never seen Howard sleep in the master bedroom. The parties stipulated that Evans left the D.C. area on August 23, 2010, when he flew to Columbus, Ohio, and did not return to the apartment until the morning of August 27, 2010.
At trial, the government relied on a theory that appellant constructively possessed the firearm and boxes of ammunition found in the purple backpack next to her bed and the firearm and ammunition found in the black duffle bag in the loft. Appellant was tried but acquitted on the counts of possession of an unregistered firearm and unlawful possession of ammunition related to the contents of the black duffle bag found in the loft area. The jury convicted appellant of all counts related to the contents of the purple backpack and this appeal followed.
"When there is a sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether a reasonable factfinder could find guilt beyond a reasonable doubt." James v. United States, 39 A.3d 1262, 1269 (D.C. 2012) (internal quotation marks and citation omitted). "[T]he jury is entitled to draw a vast range of reasonable inferences from the evidence, but it may not base a verdict on mere speculation." Id. (citing In re M.L., 24 A.3d 63, 66 (D.C. 2011) (quoting Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc)). Ultimately, "[t]he evidence is sufficient if, after viewing it 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," id. (emphasis in original) (internal quotation marks and citation omitted), and we reverse "[o]nly when there is no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt . . . ." Moore v. United States, 927 A.2d 1040, 1049 (D.C. 2007) (internal quotation marks and citation omitted).
"Constructive possession, which is simply a doctrine used to broaden the application of possession-type crimes to situations in which actual physical control cannot be directly proved, is often described in terms of dominion and control." 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.1 (e) (2d ed. 2003). To prove constructive possession of contraband, the evidence must show that the accused (1) had knowledge of its presence and (2) "had both the ability and the intent to exercise dominion and control over it." Moore, supra,927 A.2d at 1050. "Constructive possession may be sole or joint." Rivas v. United States, 783 A.2d 125, 129 (D.C. 2001) (en banc); see, e.g., Moore, supra,927 A.2d at 1051 (determining that "[i]t is of little moment that much of the same evidence showed constructive possession by [both of Moore's co-defendants]"). The elements of constructive possession "may be proven by direct or circumstantial evidence." Rivas, supra,783 A.2d at 129.
"Where knowledge and ability to exert control over contraband are shown, the additional evidence necessary to prove constructive possession is comparatively minimal." Moore, supra,927 A.2d at 1050 (internal quotation marks and citation omitted). We have recognized that such "additional evidence" may include"[e]vidence showing the accused's control or occupancy of the premises in which the contraband is found." Id. Indeed, a jury is generally "entitled to infer that a person exercises constructive possession over items found in his home"; that is, by virtue of the contraband being found in an occupant's home, a juror may infer that the occupant has both knowledge of its presence and intent to exercise dominion and control of the contraband. Id. (internal quotation marks and citation omitted); 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."). Although this inference does apply even if a person shares the premises with others, "it is plainly not as strong an inference in that circumstance." Moore, supra,927 A.2d at 1050. Therefore, "there must be something more in the totality of the circumstances- a word or deed, a relationship or other probative factor- that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the defendant intended to exercise dominion ...