October 15, 2015
from the Superior Court of the District of Columbia
(CF2-16529-12) (Hon. Robert I. Richter, Trial Judge)
L. Ruttenberg, with whom William D. Coglianese was on the
brief, for appellant.
Kristina L. Ament, Assistant United States Attorney, with
whom Ronald C. Machen Jr., United States Attorney at the time
the brief was filed, and Elizabeth Trosman, Suzanne Grealy
Curt, and Christian Natiello, Assistant United States
Attorneys, were on the brief, for appellee.
Fisher and McLeese, Associate Judges, and Ruiz, Senior Judge.
Fisher, Associate Judge
bench trial, appellant Ross Green was convicted of, among
other offenses, possession of 3,
("MDMC") with intent to distribute
("PWID"), a felony. He did not file a direct appeal,
but now challenges the denial of his motion for a new trial.
September 20, 2012, police officers entered appellant's
home to execute a search warrant and seized an assortment of
pills, tablets, and capsules of various colors, and a pink
ziplock bag of orange powder. (The conviction under review
here relates only to MDMC.) The police also seized a digital
scale, an assault rifle, a handgun, magazines for the rifle
and handgun, and assorted ammunition. Danielle LaVictoire,
who was qualified without objection as an expert in
controlled-substance analysis, testified that one partial
tablet, two capsules, and the ziplock bag of powder tested
positive for MDMC. Her report, admitted as Exhibit
described the drug more formally as "3,
hydrochloride." She also said that, based on the amount
of MDMC powder in the two capsules found in Green's
apartment, "you might be able to make 82 capsules
worth" of MDMC from the quantity of powder in the
George Thomas was qualified without objection as an expert in
the distribution and use of illegal drugs. He testified that
MDMC is a different compound than
methylenedioxymethamphetamine ("MDMA" or
"ecstasy"), but that they are chemically
similar-MDMC is only "one analog or one compound
different from Ecstasy or MDMA." He also testified that
MDMC is more potent than MDMA, that the "street
name" for MDMC is "molly, " and that the
amount of MDMC found in appellant's apartment was
inconsistent with possession for personal use. The cell phone
seized from appellant's apartment contained numerous text
messages, from May and June of 2012, in which he discussed
selling a variety of drugs, including "molly, " to
other individuals. Those text messages did not use the
called Dr. Jeffrey Smith, an expert in internal and emergency
medicine and continued care, to testify that appellant had
prescriptions for many of the drugs seized from his
apartment, though not for the MDMC. Although appellant's
counsel adamantly asserted that MDMC was not "molly,
" he presented no evidence to support that claim and
called no other witnesses. Appellant did not testify.
announcing his finding on June 12, 2013, Judge Richter
observed that "the evidence is overwhelming . . . that
the MDMC was possessed with the intent to distribute."
He commented that while "the quantity alone might not be
enough, [and] the text messages alone might not be enough, .
. . together they clearly constitute proof beyond a
The Motion for a New Trial
17, 2013, five days after the finding of guilt, appellant
asked the court to extend the deadline for filing a motion
for a new trial. The court granted the request on June 19,
giving appellant until September 9 to file a Rule 33 motion.
Appellant's new counsel asked for a second extension on
July 8, and the court granted that enlargement of time on
July 9, giving appellant until October 9 to file his motion
for a new trial.
four months after the finding of guilt, on October 9, 2013,
appellant filed a motion for a new trial pursuant to Super.
Ct. Crim. R. 33 ("Rule 33"). With that motion, he
submitted an affidavit, signed on October 7, 2013, from
Michael Radon, who had over forty years of experience working
as a substance-abuse counselor or supervisor in
Massachusetts, the West Indies, and Maryland. Since 2011, Mr.
Radon has worked as a consultant and expert witness. He
averred that "molly" was the street name for MDMA,
not MDMC, and that the two substances had "unique,
non-overlapping street names."
also submitted the affidavit of Dr. Wayne Duer, a forensic
toxicologist in Florida, signed on October 4, 2013, who said
that the quantity of MDMC found in appellant's apartment
"typically would yield significantly less than between
16 and 41 capsules, tablets or caplets of MDMC." He
based this statement on "a DEA publication" about
the amount and form in which MDMC is normally distributed and
his prediction that some powder would be lost in the process
of filling the MDMC capsules. Both proposed experts stated in
their affidavits that MDMC was one of a class of drugs to
which users were known to develop a tolerance, thus
necessitating taking more of the drug to achieve the same
"high." As Judge Richter commented, these
statements about tolerance and typical dose seem to be
intended as "new evidence suggesting personal use."
addition to asserting that "molly" is not used to
refer to MDMC, appellant's motion for a new trial
attacked other aspects of Detective Thomas's testimony.
Thomas had said that MDMC is more potent than MDMA, but the
affiants swore the opposite was true. The detective also
testified that MDMC is not methylone, but Dr. Duer swore that
"MDMC is methylone."
briefing by the parties, Judge Richter denied the motion in a
short order, concluding that "[t]hese new assertions,
even if presented at trial, would not have resulted in a
different verdict." "Even if there had been some
confusion in Detective Thomas' testimony regarding MDMA
and MDMC, " Judge Richter noted, "the evidence is
still clearly convincing that MDMC was possessed with the
intent to distribute." Appellant had "also
attack[ed], for the first time post-trial, the chemist's
testimony regarding the MDMC and present[ed] new evidence
suggesting personal use." Nevertheless, "[g]iven
the testimony presented at trial, the evidence of PWID is
more than sufficient and convincing." In sum,
appellant's "post-trial change in tactics for
meeting the Government's evidence is both too late and
"trial court's denial of a motion for new trial is
reviewed for abuse of discretion. We will not reverse if the
denial is reasonable and supported by the record."
Tyer v. United States, 912 A.2d 1150, 1166 (D.C.
2006). "In general, a trial court does not need to hold
a hearing before ruling on a motion for new trial."
Geddie v. United States, 663 A.2d 531, 534 (D.C.
1995). The moving party bears the burden of persuasion.
Tyer, 912 A.2d at 1167.
posits that the affidavits attached to his Rule 33 motion
negated crucial evidence presented by the government at
trial. First, he asserts that the text messages about
"molly" did not indicate his intent to distribute
MDMC because "molly" is MDMA, not MDMC. Thus, he
assumes these text messages must be ignored altogether.
Second, he contends that the quantity of MDMC he possessed,
standing alone, is insufficient, as a matter of law, to prove
his intent to distribute.
argues, therefore, that his PWID conviction should be vacated
due to insufficient evidence and the case remanded for entry
of a judgment of guilt for the lesser-included offense of
misdemeanor possession of MDMC. In the alternative, he seeks
a new trial on the PWID charge.
The Evidence Was Sufficient
argues that the evidence was insufficient to prove his intent
to distribute MDMC. It is not at all clear that he is
entitled to raise this issue now, having failed to take a
direct appeal. We need not decide this issue, however,
because his argument is founded on an erroneous premise. He
asks us to consider the trial record not as it actually
exists, but as it might have existed if the
affidavits he submitted were testimony that had been
presented at trial and credited by the trial court. But we do
not decide sufficiency challenges based on a hypothetical
record; instead, we review the evidence that was before the
fact-finder when it made its finding of guilt. See, e.g.,
Vest v. United States, 905 A.2d 263, 266 (D.C. 2006)
("It is only where the government has produced no
evidence from which a reasonable mind might fairly infer
guilt beyond a reasonable doubt that this court can reverse a
conviction." (brackets and citation omitted)); cf
Best v. United States, 66 A.3d 1013, 1019-20 (D.C. 2013)
(in determining whether the Double
Clause would bar a retrial, "[w]e evaluate sufficiency
based on the evidence that was before the trial court, even
if it was admitted erroneously") (citing Lockhart v.
Nelson, 488 U.S. 33, 40-42 (1988)). Appellant makes no
effort to demonstrate that the evidence actually in the trial
record was insufficient to support his conviction for PWID.
See Jackson v. Virginia, 443 U.S. 307, 324 (1979)
(explaining that reversal for insufficient evidence is
appropriate only if, "upon the record evidence adduced
at the trial[, ] no rational trier of fact could have found
proof of guilt beyond a reasonable doubt").