March 15, 2016.
from the Superior Court of the District of Columbia.
(CMD-1870-15). (Hon. Judith N. Macaluso, Trial Judge).
L. Johnson was on the brief for appellant.
Phillips, United States Attorney, and Elizabeth Trosman, John
P. Mannarino, Stuart Allen, and Alyse I. Constantinide,
Assistant United States Attorneys, were on the brief for
GLICKMAN, and THOMPSON, Associate Judges, and FERREN, Senior
Ferren, Senior Judge.
Following a bench trial on May 12, 2015, appellant, Vincent
Pannell, was found guilty of possession of phencyclidine
(PCP), in violation of D.C. Code § 48-904.01(d) (2012
Repl.), a misdemeanor. On the same day, the trial court
sentenced appellant to forty-five days of imprisonment,
execution of sentence suspended, and supervised probation for
nine months. Appellant contends that there was insufficient
evidence at trial to support his conviction. In particular,
he asserts that the government did not prove beyond a
reasonable doubt that appellant had actual or constructive
possession of the PCP found in the car in which he was a
passenger. For the reasons elaborated below, we agree with
appellant, reverse his conviction, and remand for vacation of
that judgment and for entry of a judgment of acquittal.
government presented evidence that on January 25, 2015, at
approximately 12:44 a.m. Metropolitan Police Department
Officers Jeremy Kniseley and Andre Parker were on patrol in a
marked vehicle, with Parker driving and Kniseley in the front
passenger seat. As they pulled out of a gas station, they
turned onto Alabama Avenue, Southeast, a few car lengths
behind a white Cadillac. The officers could see the
silhouettes of two occupants in the car, neither of whom was
making any hand motion or gesture. About 20 seconds later,
the officers saw the white Cadillac drive through a stop sign
without coming to a complete stop. Officer Parker then
activated the emergency equipment on his vehicle, which
included a spotlight allowing the officers to see more
clearly into the Cadillac. Again, neither officer observed
either of the occupants making a hand motion or gesture.
ten seconds after the emergency equipment was activated, both
cars came to a stop. The patrol car had pulled up behind the
Cadillac, and both officers got out, with Parker approaching
the driver's side of the Cadillac and Kniseley
approaching the passenger's side. As Kniseley came upon
the Cadillac, he could " smell a pretty strong odor that
[he] recognized to be PCP." He went to the passenger
side window, which was partially down, while Parker
approached the driver's side window and asked the driver
for his license, registration, and insurance. Neither officer
observed either occupant make a hand motion other than to
retrieve documents from the glove compartment and the
driver's identification from his back pocket. The
documents established that appellant did not own the
Kniseley asked the passenger to step out of the car, at which
point the officer noticed " what appeared . . . to be a
white cigarette, in the gap between the . . . left edge of
the seat and the center console." Kniseley identified
the cigarette as a " dipper," a cigarette dipped in
PCP. The cigarette was " approximately two [to] three
inches to the left of [appellant's left] mid-thigh."
When appellant stepped out of the car, Kniseley " could
tell that the smell was still localized to the car and not .
. . actually on the passenger that was sitting there."
conducted a search of the interior compartment of the
that the dipper was " extremely wet" and
discovering that a " second dipper . . . was a little
bit further down in the edge of the seat." Based on how
wet the dippers were, Kniseley estimated that they had been
dipped in liquid PCP " within the past five to ten
minutes at most." There were no burn marks on either of
the cigarettes, which indicated that they had not yet been
smoked. During the stop and search of the vehicle, appellant
" was cooperative and polite[; ] . . . there was nothing
about him that seemed excited or anxious."
Kniseley arrested appellant and searched him incident to the
arrest. No PCP was found on appellant's person. The
driver was patted down but never searched by either officer;
he was given a ticket for running the stop sign. The defense
presented no evidence at trial.
reviewing a challenge to sufficiency of the evidence, this
court views the evidence in the light most favorable to the
government, " giving full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts."
If the evidence " is such that a reasonable [factfinder]
must have a reasonable doubt as to the existence of
any of the essential elements of the crime, then the evidence
is insufficient." 
order to prove constructive possession, the government was
required to show that appellant " knew that the [PCP]
was present in the car and that he had both the ability and
the intent to exercise dominion or control over it."
Constructive possession " may be proven by direct or
circumstantial evidence."  The evidence at trial was
sufficient to show, and appellant does not dispute on appeal,
that appellant knew PCP was in the car, given its "
strong chemical odor that's somewhat overwhelming."
Nor does appellant dispute the trial court's finding that
he had the ability to exercise dominion or control over the
PCP cigarettes, given their close proximity to him in the
passenger seat. The question thus becomes whether a
reasonable factfinder could have found, beyond a reasonable
doubt, that appellant also had the intent to exercise control
over the PCP-laced cigarettes.
Rivas, this court considered a situation
remarkably similar to the one before us now. Police officers
pulled up behind a Honda automobile, stopped in the middle of
the street. There was a driver (identified as the
vehicle's owner), as well as a front seat passenger, the
appellant Rivas. (Two other individuals were in the rear
seats.) Rivas got out of the car " [s]econds later"
to speak with someone on the sidewalk nearby, leaving the
front passenger door open. The car then pulled over to the
curb, whereupon the police activated their emergency lights,
moved in behind the parked car, and, after ordering the
occupants out of the car, saw " two plastic bags
containing a visible white rock substance
[later shown to be crack cocaine] in the console between the
two front seats."  Rivas, who by then had moved around
the corner to speak with someone else, was soon arrested. No
evidence was available to show how long Rivas had been inside
the Honda, or what he or others in the car had been doing.
There was no fingerprint evidence that Rivas had handled the
cocaine bags, or any evidence that he had ever engaged in a
drug transaction. Nor was any ...