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Lesher v. United States

Court of Appeals of Columbia District

December 1, 2016

KAMONTE J. LESHER, Appellant,
v.
UNITED STATES, Appellee.

          Submitted September 13, 2016

         Appeal from the Superior Court of the District of Columbia Criminal Division (CMD-3806-14) (Hon. Truman A. Morrison, III, Trial Judge)

          Ian A. Williams was on the brief for appellant.

          Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Kamil Shields and Jason B. Feldman, Assistant United States Attorneys, were on the brief for appellee.

          BEFORE: Thompson and McLeese, Associate Judges; and Ruiz, Senior Judge.

         JUDGMENT

         This case was submitted to the court on the transcript of record, the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment of the Superior Court is affirmed.

          Thompson, Associate Judge:

         Following a bench trial, appellant Kamonte Lesher was found guilty of attempted possession with intent to distribute a controlled substance (marijuana) ("attempted PWID") and possession of drug paraphernalia ("PDP"). See D.C. Code §§ 48-904.01 (a)(1), 48-904.09, 48-1103 (a) (2012 Repl.). He asserts that the evidence was insufficient to sustain the convictions and that the trial court reversibly erred by allowing a police officer to testify about the results of a field test. We disagree and therefore affirm.

         I.

         The government presented evidence that on the evening of March 5, 2014, members of the Metropolitan Police Department executed a search warrant at a row house located at 725 Otis Place, N.W. Officer Qasim Thomas testified that, while searching a large room on the second floor of the house, he found, in plain sight in the middle of the floor, a social security card, a notice of unsatisfied parking tickets, and a police report from an unrelated incident, all bearing appellant's name.[1] Although other people were in the house during the search, no documents or personal items belonging to any other person were found in the room. Another officer searched appellant, whom officers encountered just inside the doorway of the room, and found a green weed-like substance on his person. Searching the rest of the room, officers found currency totaling over $2, 300 in three different locations; three plastic bags containing a green weed-like substance behind the radiator (with the largest of the bags containing nine smaller-sized knotted sandwich bags of the green weed-like substance); and, on the floor in front of the futon and in close proximity to the bags of green weed-like substance, a box of empty ziplock sandwich bags and a digital scale. Officer Thomas field tested portions of the substance found on appellant's person and behind the radiator, and the test produced "a positive color reaction for THC, which is the active ingredient in marijuana."

         Detective George Thomas, Jr., whom the court qualified as an expert in the areas of the distribution and use of marijuana, the packaging of marijuana for street level distribution, and the price for which marijuana is sold, testified that the green weed-like substance found behind the radiator produced "a very strong odor consistent with marijuana." Detective Thomas further testified that sandwich bags are a "common way[]" in which marijuana is packaged. Focusing on one of the bags of the green weed-like substance found behind the radiator, Detective Thomas told the court that the fact that one of the bags contained "nine small packaged bags, " which reflected "labor intense" work to "remove smaller portions, and . . . place them into the smaller sandwich bags, then . . . tie them up[, ]" was consistent with distribution rather than personal use. He testified in addition that the quantity of the substance found in the bags "in combination" was not consistent with personal use. Finally, he told the court that the assortment of different-sized plastic bags (which he said corresponded to the amount of marijuana that would be sold for $5, $20 to $30, or $40 on the streets) and the "close proximity" of the bags to each other and to the digital scale and sandwich bags were "consistent with the intent to distribute."

         Citing the absence of clothing and other belongings in the second-floor room, the trial court stated that the case was a "difficult and close" one in terms of whether appellant could be linked to the evidence found in the room. Nevertheless, the court found that "the inference is a natural one that [appellant] had dominion and control over the place where he allowed [his] documents to be on the floor, including his social security card." Reasoning that appellant had dominion and control over the room, the court also found that he had constructive possession of the green weed-like substance found behind the radiator, including knowledge of it, "the ability to guide its destiny, and the specific intent to do so." The court also cited as a "tiny factor" in its analysis the fact that the substance found on appellant's person appeared to have the same color as the substance found behind the radiator. Regarding whether appellant "thought he had marijuana, " the court relied on Detective Thomas's testimony that the green weedlike substance smelled like marijuana and was packaged "in a fashion that marijuana is packaged, both for personal consumption and for distribution ...


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