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Pannell v. United States

Court of Appeals of Columbia District

April 7, 2016


         Submitted: March 15, 2016.

          Appeal from the Superior Court of the District of Columbia. (CMD-1870-15). (Hon. Judith N. Macaluso, Trial Judge).

         Stephanie L. Johnson was on the brief for appellant.

         Channing 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 appellee.

         Before GLICKMAN, and THOMPSON, Associate Judges, and FERREN, Senior Judge.


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         John M. 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.


         The 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.

         About 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 Cadillac.

         Officer 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."

         Kniseley conducted a search of the interior compartment of the Cadillac, noting

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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."

         Officer 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.


          In 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." [1] 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." [2]

          In 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." [3] Constructive possession " may be proven by direct or circumstantial evidence." [4] 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.


         In Rivas,[5] 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.[6] 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

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[later shown to be crack cocaine] in the console between the two front seats." [7] 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 ...

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