Appeal from the Superior Court of the District of Columbia (CMD-11328-11) (Hon. Rufus G. King, III, Trial Judge)
The opinion of the court was delivered by: Easterly, Associate Judge
Submitted October 18, 2012
Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and NEBEKER, Senior Judge.
Appellant David Jackson challenges his conviction for possession with intent to distribute a controlled substance (marijuana) under D.C. Code § 48-904.01 (a)(1) (2001 & Supp. 2011). The drugs in question were discovered in a closed cooler on the floorboard behind the driver‟s seat of Mr. Jackson‟s co-defendant‟s car. When the police arrived at the scene, Mr. Jackson was seated in the backseat of the car on the passenger‟s side. Mr. Jackson argues that the fact that he was briefly observed "just sitting" in the car, near the drugs, is not enough to establish his constructive possession of the drugs beyond a reasonable doubt. We agree.
This court, in Rivas v. United States, 783 A.2d 125 (D.C. 2001) (en banc), reaffirmed its commitment to the requirement that guilt be proved beyond a reasonable doubt in constructive possession cases. Rivas held that to prove beyond a reasonable doubt a defendant‟s intent to exercise dominion or control over contraband - an essential element of constructive possession - the government must present evidence of "something more" than mere proximity. Id. at 130. But, in this case, evidence of proximity was all that was presented.
The police officers‟ momentary observation of Mr. Jackson‟s inactive presence in the car gave rise to numerous possible inculpatory inferences but did not connect to any other evidence so as to support a narrative of constructive possession. Instead, Mr. Jackson‟s ambiguous presence in the car potentially connected to any number of unknown facts demonstrating that he was simply in the wrong place at the wrong time. Absent other evidence linking Mr. Jackson to the drugs - e.g., evidence indicating when or why he entered the car, or what his relationship was to his co-defendant - a trier of fact would be unable to determine beyond a reasonable doubt that Mr. Jackson had the requisite guilty intent and "was not just an innocent bystander" to illegal activity. Id. at 128. Accordingly, pursuant to Rivas, the evidence against Mr. Jackson was legally insufficient to sustain a conviction for possession with intent to distribute marijuana.
Mr. Jackson initially came to the attention of the police on the afternoon of June 16, 2011, the date of the charged offense, because his co-defendant, Charles Winfield, was on the street, drinking a beer. Metropolitan Police Officer Stephen Stanford testified that, when he drove onto the 5100 block of Bass Place Southeast, he noticed Mr. Winfield, who was standing with "a young lady." Officer Stanford exited his car and, after confirming that Mr. Winfield was holding an open container of alcohol, called his partner, Officer Jason Newman, who was driving in a separate vehicle, for assistance.
At that point, Officer Stanford "looked across the street*fn1
and saw a Dodge Magnum . . . that was occupied by someone in
the rear seat."*fn2 This person was "not doing
anything illegal"; he was "just sitting." Officer Stanford asked Mr.
Winfield if the Dodge Magnum was his, "because it was running and [Mr.
Winfield] was not too far from it." Mr. Winfield acknowledged
ownership and gave his consent to Officer Stanford to search the car.
Meanwhile, Officer Newman arrived and went to speak to the person in
the car, Mr. Jackson.
Officer Newman testified that Mr. Jackson was "in the rear passenger seat right behind the front passenger seat." While Mr. Jackson was still seated in the car, Officer Newman asked for his name, date of birth, and address. The record does not reflect how they were able to communicate, i.e., whether any windows were rolled down or any doors were opened. Officer Newman testified that Mr. Jackson was "cooperative" and, at that point, Officer Newman did not notice "anything." Officer Newman "then asked Mr. Jackson to step out of the vehicle" so he could begin his search.
"[A]s soon as [Officer Newman] entered the rear of that vehicle, [he]
started smelling a strong odor of unburned marijuana."*fn3
Officer Newman testified that he then "noticed a purple
cooler that was sitting on the floorboard, right behind the driver‟s
seat in the rear part of the vehicle." The cooler was small, the type
a person would take "to a ball game" or "use to take . . . lunch in."
Officer Newman testified that "[a]s soon as I picked that purple
cooler up, the smell of unburned marijuana got much stronger." Officer
Newman opened the cooler and "found two large bags." Inside one bag
were "11 individually packaged sandwich bags containing - all
containing a green weed-like substance." Inside the other bag "was a
vacuum sealed bag containing a green weed-like substance." The cooler
also contained "multiple empty sandwich bags and a scale." Upon making
this discovery, Officer Newman and Officer Stanford placed Mr. Jackson
and Mr. Winfield under arrest. The contents of the cooler were later
confirmed to be marijuana.
Officer Newman acknowledged that when he first saw the cooler, the "[t]op was closed." Officer Newman also testified that he "never witnessed Mr. Jackson try to show any sort of authority over the cooler" and he "never saw him move toward the cooler." Officer Newman admitted that the only reason he arrested Mr. Jackson was because "[h]e was very close to the cooler."
Beyond Officer Stanford and Officer Newman‟s testimony placing Mr. Jackson in the car when the officers arrived at the scene, the only other evidence the government presented at trial was testimony from two expert witnesses. Yvette Johnson, a forensic chemist from the Drug Enforcement Agency, opined that the substance in the cooler was marijuana. Detective George Thomas, an MPD "resident narcotics expert," opined that the drugs were packaged as if for sale; he also explained generally that drugs could be sold from cars, and that individuals selling drugs together could divide up the work and one person could find buyers or other sellers to distribute the drugs while another could hold on to the drugs and actually make the sales.
In rendering its verdict, the trial court acknowledged that it was a "circumstantial case," but, focusing on the amount of drugs and its packaging, it determined that the evidence was sufficient to find Mr. Jackson ...