Newman v. United States

49 A.3d 321, 2012 WL 3213242, 2012 D.C. App. LEXIS 323

• Court: District of Columbia Court of Appeals
• Decided: August 2, 2012
• Docket: No. 09-CM-372
• Status: Published

Opinions

FISHER, Associate Judge:

Following a non-jury trial, appellant Kenneth Newman was convicted of attempted possession of a controlled substance (marijuana), in violation of D.C.Code §§ 48-904.01(d), 48-904.09 (2001).¹ He asserts that the evidence was insufficient to sustain that conviction and that reversible error occurred when an officer testified about a field test he conducted on the green plant material. We disagree, and affirm.

I. The Government’s Evidence

On the evening of August 15, 2008, at about 7:30 p.m., Officer Zachary Melby and his partner, Officer Duane Johnson, were in the 1400 block of K Street, Southeast, a place known to Officer Melby as a “high drug trafficking” area. Officer Mel-by was driving an unmarked blue Ford Taurus that he had driven “a lot” in that neighborhood over the years. Both officers were wearing plain clothes, but Officer Melby wore his badge hanging about fifteen inches below his chin.

While driving eastbound toward the intersection of 15th and K Streets, Southeast, Officer Melby saw appellant sitting on a wall alongside 935 15th Street, “looking down with a white piece of paper in his hand.” The officer demonstrated that appellant was “cupping his hands in a palm upward manner.” Officer Melby “slowed down and actually stopped.” Appellant then “looked up” and made eye contact •with the officers, who were less than twelve feet away. When appellant saw the officers, he “immediately got up and at a fast pace[] walked to the alley leading behind” where he had been sitting. Officer Melby explained that “the piece of paper was sticking, was protruding from his hand rather, and he looked up at us, immediately got up and moved quickly to the entrance of the alley.” At that time, Officer Melby could not see what was in the paper. As appellant left, he was still carrying the white paper in his hand.

When appellant moved away at “a very fast pace,” Officer Melby “immediately made a u-turn [and] drove into the alley[,]” losing sight of appellant for about twenty seconds. As Officer Melby drove into the alley, his partner told him to stop because the piece of white paper “was sitting on a brick wall.” ² When Officer Melby stopped in the alley, appellant was about a car length and a half from the officers, walking away. No one else was in the alley.

The officers got out of their car. Officer Johnson looked inside the white piece of paper and told Officer Melby to stop appellant, announcing “I got marijuana.” Officer Melby saw “the same piece of [white] paper” on the wall, next to Officer Johnson’s passenger door. Officer Melby recognized the paper on the wall because it “was sticking up” in “the same way” as “[t]he piece of paper that [appellant] had in his hand[.]” When appellant was holding the paper, a “portion of it was sticking up above his hands.” When “we turned the corner into the alley, it was sitting there the same exact way it was, the same exact way.” Officer Melby also saw a plastic zip-loc bag next to the paper on the wall.. There was nothing else on the wall.

Officer Melby told appellant to come back, and appellant did so. The officers searched appellant and found no drugs, empty zip-locs, or “anything like that[.]” Officer Johnson had placed the white piece of paper and the zip-loc bag on the hood of the police car. Both contained a green weed substance. “[I]t smelled like marijuana” and it looked like marijuana. Later, at the First District Vice Office, Officer Melby conducted a field test, which gave a color reaction indicating that the green plant material was marijuana.

II. The Court’s Findings

The trial court made detailed findings of fact consistent with the evidence summarized above and found appellant guilty. “As the officers come in behind him, the white piece of paper that he had in his hand is now on the wall with the marijuana on it.” Moreover, “the act of discarding the piece of paper clearly shows that he knew that it was something illegal.” “[H]e gets up, walks away, ... and then quickly gets rid of the white paper which contains the green weed-like substance.... ”

III. Analysis

A. The Evidence Was Sufficient

Our standard of review is well-established. “[W]e must view the evidence in the light most favorable to the government, recognizing the factfinder’s role in weighing the evidence, determining the credibility of witnesses, and drawing justifiable inferences from the evidence.” Mihas v. United States, 618 A.2d 197, 200 (D.C.1992) (internal quotation marks and citation omitted). “[T]he evidence need only permit a reasonable [fact-finder] to find guilt beyond a reasonable doubt; it need not compel such a determination.” Taylor v. United States, 601 A.2d 1060, 1062 (D.C.1991). To succeed in this challenge to the sufficiency of the evidence, appellant “must establish that the government presented ‘no evidence’ upon which a reasonable mind could find guilt beyond a reasonable doubt.” Mihas, 618 A.2d at 200.

Here, the direct and circumstantial evidence was sufficient to prove that appellant actually possessed the green substance in the white paper. See In re A.L., 839 A.2d 678, 680 n. 5 (D.C.2003) (“We do not reach [the] issue [of constructive possession], for the circumstantial evidence showed that A.L. had the marijuana in his actual possession before putting it in the drainpipe.”). Athough appellant was charged with attempted possession, “[e]very completed criminal offense necessarily includes an attempt to commit that offense.” Thompson v. United States, 678 A.2d 24, 27 (D.C.1996) (quoting Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990)). “The mens rea element requires proof that appellant had the ‘intent to commit the crime[ ]’ of attempted possession of a controlled substance (in this case, marijuana).” Fields v. United States, 952 A.2d 859, 865 (D.C.2008) (quoting Blackledge v. United States, 447 A.2d 46, 48 (D.C.1982)). But the substance “need not have been a controlled substance at all; what matters is that appellant believed it to be one.” Washington v. United States, 965 A.2d 35, 43 (D.C.2009). “[T]he identity of a controlled substance, or the defendant’s belief that he was dealing in controlled substances, may be proved by circumstantial evidence.... ” Fields, 952 A.2d at 865.

Here, both appellant’s behavior and the characteristics of the green plant material indicate that appellant knew (or believed) that the substance was marijuana. Immediately after making eye contact with Officer Melby, appellant got up and moved away at “a very fast pace.” Even though the officers were wearing plain clothes and did nothing to identify themselves as police,³ it is a reasonable inference, within the purview of the fact-finder, that appellant at least suspected that Officers Melby and Johnson were police. More importantly, appellant clearly sought to distance himself from the white piece of paper. Athough he took it with him when he got up and moved away, appellant’s discarding of the white paper containing the green substance shows appellant’s belief that he was holding a controlled substance. As the trial court explained, “the act of discarding the piece of paper clearly shows that he knew that it was something illegal.”

We recognize that the government’s case was largely circumstantial, and that appellate review of sufficiency claims is not “toothless.” Rivas v. United States, 783 A.2d 125, 134 (D.C.2001) (en banc). However, “[i]t is within the province of the fact finder to draw reasonable inferences from the evidence presented.” Smith v. United States, 837 A.2d 87, 93 n. 3 (D.C.2003); see Coleman v. Johnson, — U.S. -, 132 S.Ct. 2060, 2064, 182 L.Ed.2d 978 (2012) (“Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.’ ” (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))).⁴ This is not a case where the trier of fact “cross[ed] the bounds of permissible inference and enter[ed] the forbidden territory of conjecture and speculation.” Rivas, 783 A.2d at 134 (internal quotation marks and citation omitted). We therefore are not prepared to say that, when the evidence in this case is “view[ed] ... in the light most favorable to the prosecution, [no ] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

B. The Field Test

After he had returned to the First District Vice Office, Officer Melby conducted a field test on the green plant material. The purple color reaction indicated to him that the substance was marijuana. Cross-examination revealed that Officer Melby knew very little about the accuracy of the field test or how it worked. ‘We’ve been taught that once it turns purple, and in fact has a presence of THC, then it’s marijuana.” Defense counsel pressed harder: “Somebody told you at some point. They said, you put it in there, it turns purple, it’s marijuana?” Officer Melby responded, “That’s correct.”

Claiming that his right to confrontation was violated, appellant asserts that he “should have been permitted to cross-examine the person who told Officer Melby that if he saw purple it was marijuana.” In other words, appellant claims that “[t]he trial court denied [him] his rights when she refused to permit him to cross examine the person who instructed Officer Melby and who could explain the field test....” Appellant misconstrues the right of confrontation. This is not a case where the government introduced a forensic report without calling the person who prepared it. See Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Instead, Officer Melby was testifying from personal knowledge about a test that he performed himself.

Appellant’s argument is akin to saying that, whenever a DEA chemist testifies about the identity of a controlled substance, the government is required to call the professors who taught him chemistry in college and the supervisors who trained him at the DEA lab. But, not surprisingly, appellant cites no authority for such a broad interpretation of the confrontation clause. Cf. Melendez-Diaz, 129 S.Ct. at 2532 n. 1 (“[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”).

Appellant fares no better by claiming that Officer Melby’s testimony violated the rules against hearsay. “Most knowledge has its roots in hearsay.” Robinson v. Watts Detective Agency, 685 F.2d 729, 739 (1st Cir.1982). But repeating a statement made by someone else “is different from a statement of personal knowledge merely based, as most knowledge is based, on information obtained from other people.” Agfa-Gevaert, A.G. v. A.B. Dick Co., 879 F.2d 1518, 1523 (7th Cir.1989). “Knowledge acquired through others may still be personal knowledge ..., rather than hearsay....” Id. And although Officer Melby repeated, or confirmed, what others had told him about the field test, that occurred on cross-examination, a situation about which appellant cannot complain. See Parker v. United States, 757 A.2d 1280, 1286-87 (D.C.2000) (“It is well established that a defendant cannot well complain of being prejudiced by a situation which [he] created.” (internal quotation and citation omitted)). Moreover, these statements were not testimonial within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny.

Cross-examination revealed that Officer Melby knew little about the science on which the field test depended or about the rate of false positives. These complaints affect the weight of the evidence, not its admissibility. Ultimately appellant’s arguments boil down to a claim that the officer’s testimony about the field test was insufficient to prove that the substance was marijuana. But the field test was not necessary to prove attempted possession.⁵ The appearance, smell, and packaging of the substance, and appellant’s eagerness to discard it, amply supported the court’s conclusion that he believed the green weed-like material to be marijuana.

IY. Conclusion

The judgment of the Superior Court is hereby

Affirmed.

1 . Appellant originally was charged with possession of marijuana. Before the start of trial, the government announced that it was proceeding on the lesser-included offense of attempted possession, explaining that "the chemist who did the analysis [of the drugs]” had since left the Drug Enforcement Administration.

2 . This was not the “same wall” on which appellant had been sitting. It is not clear from the record if this brick wall was located perpendicular to, or entirely separate from, the wall on which the officers saw appellant sitting.

3 . The trial court found that appellant could not have seen the badge around Officer Mel-by’s neck because it was hanging too low.

4 . We reject appellant’s argument that, by relying on inferences drawn from circumstantial evidence, the trial court shifted the burden of proof to him. See Price v. United States, 985 A.2d 434, 438-39 (D.C.2009) (trial court may draw reasonable inferences from basic facts).

5 . Of course, the government may prove an attempt by proving a completed crime, and thus it could have convicted appellant by proving that the substance was in fact marijuana. While “not dispositive[,]” the positive field test "does constitute evidence that the substance recovered ... was marijuana....” Duvall v. United States, 975 A.2d 839, 845-46 (D.C.2009). But the government reduced the charge to attempted possession so it would not have to prove that fact.