KAMONTE J. LESHER v. UNITED STATES

District of Columbia
Court of Appeals
No. 14-CM-1474
DEC - 1 2016
KAMONTE J. LESHER,
Appellant,
v. CMD-3806-14
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
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.
For the Court:
Dated: December 1, 2016.
Opinion by Associate Judge Phyllis D. Thompson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CM-1474 12/1/16
KAMONTE J. LESHER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-3806-14)
(Hon. Truman A. Morrison, III, Trial Judge)
(Submitted September 13, 2016 Decided December 1, 2016)
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.
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
2
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.
1
The room measured about “20 by 20” and contained a futon (which
Officer Thomas considered a bed) and a desk. Officer Thomas also saw in a case
in the room a Progressive Insurance card, but did not seize it and could not recall
whether there was a name on it. Viewing a photo of the card, the trial court
remarked that it could not be sure the card was an identification card containing
somebody’s name as opposed to an insurance form or a business card bearing the
name of an insurance agent.
3
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
4
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
5
marijuana,” the court relied on Detective Thomas’s testimony that the green weed-
like substance smelled like marijuana and was packaged “in a fashion that
marijuana is packaged, both for personal consumption and for distribution on the
street.” Regarding whether the evidence proved that appellant had the intent to
distribute, the court found that Detective Thomas’s testimony “coupled with the
[digital] scale[] and the bags” was enough to demonstrate the requisite intent.
II.
Appellant contends there was insufficient evidence for the court to find that
he constructively possessed the green weed-like substance found behind the
radiator. We disagree.
“In determining whether the evidence is sufficient to support a conviction,
we must review the evidence in the light most favorable to the government, giving
full play to the right of the [finder of fact] to determine credibility, weigh the
evidence, and draw justifiable inferences of fact, and making no distinction
between direct and circumstantial evidence.” Ortiz v. United States, 942 A.2d
1127, 1131 (D.C. 2008) (internal quotation marks omitted). “[T]o prevail [on a
claim of insufficiency of the evidence, the appellant] must establish that the
6
government presented no evidence upon which a reasonable mind could find guilt
beyond a reasonable doubt.” Peery v. United States, 849 A.2d 999, 1001 (D.C.
2004) (internal quotation marks omitted).
To prove constructive possession of a controlled substance, “the evidence
must show that the accused knew of its presence and had both the ability and intent
to exercise dominion and control over it.” Moore v. United States, 927 A.2d 1040,
1050 (D.C. 2007) (citing Rivas v. United States, 783 A.2d 125, 129 (D.C. 2001)
(en banc)). Beyond proximity to the substance and knowledge of its existence,
“there must be something more in the totality of the circumstances that . . .
establishes that the accused meant to exercise dominion or control over the
narcotics[.]” Rivas, 783 A.2d at 130. This court has “often found that evidence
was sufficient to establish a defendant’s constructive possession of contraband
where the contraband was recovered in proximity to the defendant’s personal items
such as mail or personal papers, photographs, and identification cards.” Schools v.
United States, 84 A.3d 503, 510 (D.C. 2013) (citing cases). Where contraband is
found in a residence occupied by more than one person, “the government must also
establish that the accused is more than a mere visitor to the premises[.]” Guishard
v. United States, 669 A.2d 1306, 1312 (D.C. 1995).
7
In this case, the presence of appellant’s social security card, police report,
and parking violation notice — an assemblage of important documents that an
individual would be unlikely to leave in a room where he was a casual visitor —
permitted the trial court to infer that the room where officers found the green
weed-like substance was, if not appellant’s bedroom, at least a room over which
appellant had dominion and control. Further, the absence of evidence suggesting
that room was occupied by any other person permitted the court reasonably to infer
that appellant was aware of what was stored or secreted in the room, including the
stash of green weed-like substance behind the radiator. Also, as the trial court
noted, the similarity in color of the green weed-like substance found on appellant’s
person and the larger amount of green weed-like substance found behind the
radiator was some evidence that appellant knew of and had the ability to control
the larger quantity. In addition, the evidence of the digital scale and sandwich bags
in plain sight and in close proximity to the location of the bags of green weed-like
substance permitted the court to infer that appellant was able to and intended to
exercise control over that stash of marijuana-like substance.2
2
Appellant also asserts, in the second-to-last sentence of the Argument
section of his brief, that the government did not show he had the ability and intent
to exercise dominion and control over the digital scale and sandwich bags.
Because appellant did not develop this argument, we may consider it waived. See
Matthews v. United States, 13 A.3d 1181, 1190 n.8 (D.C. 2011) (treating argument
as waived because “[i]t is not enough to merely mention a possible argument in the
(continued…)
8
III.
Appellant next contends that the court’s finding that he was guilty of
attempted possession with intent to distribute marijuana is erroneous as a matter of
law because the government presented no evidence that the green weed-like
substance actually was marijuana. This argument cannot be squared with our case
law.
To prove attempted possession with the intent to distribute, the government
must show that the defendant attempted to possess a controlled substance, but “it is
not necessary to establish that the substance a defendant attempted to possess was
the proscribed substance.” Seeney v. United States, 563 A.2d 1081, 1083 (D.C.
1989). “[T]he substance ‘need not [be] a controlled substance at all; what matters
(…continued)
most skeletal way, leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones” (internal quotation marks omitted)). But
even if not waived, the argument is not persuasive. The evidence that the digital
scale and sandwich bags were found in plain sight in a room where appellant (and
no one else) was found was sufficient to prove that appellant knew of the items and
had the ability to exercise control over them. The evidence that appellant — and,
as far as the evidence showed, no one else — had dominion and control over the
room where there was also evidence of “labor intense” work to place portions of
marijuana-like substance “into . . . smaller sandwich bags” was sufficient to prove
that appellant intended to “guide the[] destiny” of the scale and sandwich bags.
9
is that appellant believed it to be one.”’ Newman v. United States, 49 A.3d 321,
324 (D.C. 2012) (quoting Washington v. United States, 965 A.2d 35, 43 (D.C.
2009)). “[T]he defendant’s belief that he was dealing in controlled substances[]
may be proved by circumstantial evidence[.]” Fields v. United States, 952 A.2d
859, 865 (D.C. 2008). The government must also show the defendant had the
requisite intent to distribute the substance. Seeney, 563 A.2d at 1083.
In Newman, we reasoned that “the characteristics of the green plant material
indicate that appellant knew (or believed) that the substance was marijuana.” 49
A.3d at 324.3 The surrounding circumstances can also support an inference that a
defendant thought a substance was an illicit substance. See Duvall v. United
States, 975 A.2d 839, 846 n.7 (D.C. 2009). In this case, the court heard evidence
from the government’s expert that the green weed-like substance both smelled like
and was packaged like marijuana, and that the bags of the substance were found
stuffed behind a radiator, an out-of-sight location supporting an inference that they
3
Appellant endeavors to differentiate this case from Newman on the
ground that behavior evincing consciousness of guilt (i.e., the evidence that the
defendant got up and moved at “a very fast pace” away from approaching police
officers and discarded the substance once he was out of the officers’ field of vision,
see 49 A.3d at 324-25) is not in play here. But nothing in Newman suggested that
such behavior is necessary to establish beyond a reasonable doubt that a drug-
possession defendant believed the substance he possessed was a controlled
substance.
10
had been hidden or secreted because what they contained was thought to be illegal
to possess. That evidence was sufficient to enable the court to find beyond a
reasonable doubt that appellant believed the substance he constructively possessed
was marijuana. Cf. Newman, 49 A.3d at 326 (reasoning that the “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”).
IV.
Appellant further contends the trial court erred in admitting Officer
Thomas’s testimony about the field test he performed on the green weed-like
substance. Appellant asserts that the testimony, which linked the green weed-like
substance to the “active ingredient in marijuana,” was irrelevant to the attempted
PWID charge and was also prejudicial. Appellant argues in addition that Officer
Thomas improperly was permitted to give the testimony even though he had not
been qualified as an expert. We conclude that we do not need to address these
arguments. Even if arguendo evidence tending to prove that the green weed-like
substance actually was marijuana was irrelevant and the court erred in admitting it
without qualifying Officer Thomas as an expert, we are satisfied that no prejudice
11
ensued to appellant, i.e., “that the judgment was not substantially swayed by the
error.” Clayborne v. United States, 751 A.2d 956, 968 n.12 (D.C. 2000) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). The trial judge repeatedly
expressed his skepticism about the evidentiary value of field tests. We discern no
reason to think the trial judge placed reliance on the field-test results, given that he
made no mention of the field test in announcing his findings and verdict, which
were based on the officer’s testimony about the smell and packaging of the green
weed-like substance.
V.
Finally, appellant contends that the evidence was insufficient to find him
guilty of PDP. He asserts that in order to prove that the digital scale and sandwich
bags were drug paraphernalia, the government was required to prove beyond a
reasonable doubt that the weed-like substance was actually a controlled substance.
Again, we disagree.
The PDP statute under which appellant was convicted, D.C. Code § 48-1103
(a)(1), generally makes it “unlawful for any person to use, or to possess with intent
to use, drug paraphernalia to . . . process, prepare, test, analyze, pack, repack, store,
12
[or] contain . . . a controlled substance.” The term “drug paraphernalia” includes
“[s]cales and balances or other objects used, intended for use, or designed for use
in weighing or measuring a controlled substance” and “containers used, intended
for use, or designed for use in packaging small quantities of a controlled
substance[.]” D.C. Code § 48-1101 (3)(E), (I) (2012 Repl.).4 “In determining
4
We interpret the phrase “intended for use” in § 48-1101(3)(E) and (I) to
refer to the state of mind of the defendant. In arriving at that interpretation, we
have found the Supreme Court’s opinion in Posters ‘N’ Things v. United States,
511 U.S. 513, 518-19 (1994) instructive. In Posters ‘N’ Things, the Court had to
interpret the phrase “primarily intended . . . for use [with illegal drugs]” as it
appeared in 21 U.S.C. § 857 (d) (which defines the term “drug paraphernalia” as
“any equipment, product, or material of any kind which is primarily intended or
designed for use” in connection with an unlawful controlled substance). 511 U.S.
at 517. The Court held that Ҥ 857(d) establishes objective standards for
determining what constitutes drug paraphernalia [,]” rejecting the argument that §
857(d) establishes “a subjective-intent requirement on the part of the defendant.”
Id. at 517-18. In reaching that conclusion, the Court relied on 21 U.S.C. § 857 (e),
explaining that:
§ 857 (e) lists eight objective factors that may be
considered “in addition to all other logically relevant
factors” in “determining whether an item constitutes drug
paraphernalia.” These factors generally focus on the
actual use of the item in the community. Congress did
not include among the listed factors a defendant’s
statements about his intent or other factors directly
establishing subjective intent. This omission is
significant in light of the fact that the parallel list
contained in the Drug Enforcement Administration’s
Model Drug Paraphernalia Act, on which § 857 was
based, includes among the relevant factors “statements
by an owner . . . concerning [the object’s] use” and
“direct or circumstantial evidence of the intent of an
(continued…)
13
whether an object is drug paraphernalia, a court or other authority shall consider, in
addition to all other logically and legally relevant factors . . . [t]he proximity of the
object, in time and space, to a . . . controlled substance; . . . and . . . [e]xpert
testimony concerning its use.” D.C. Code § 48-1102 (a)(2), (12) (2012 Repl.).
The government may prove that an item is drug paraphernalia “circumstantially or
inferentially.” Brooks v. United States, 130 A.3d 952, 955 (D.C. 2016).
In rejecting appellant’s argument that conviction under D.C. Code § 48-1103
(a)(1) requires proof of intent to use the possessed item(s) of paraphernalia with a
substance that is actually a controlled substance, we rely on a comparison of § 48-
1103 (a)(1) to D.C. Code § 48-904.10. Section 48-904.10, entitled “Possession of
(…continued)
owner . . . to deliver it to persons whom he knows, or
should reasonably know, intend to use the object to
facilitate a violation of this Act.
511 U.S. at 519-20 (footnotes omitted). Thus, the Court’s analysis in Posters ‘N’
Things supports a conclusion that where a drug-paraphernalia statute does provide
that an owner’s “statements” and “intent” are “factors that may be considered . . .
in determining whether an item constitutes drug paraphernalia,” the phrase
“intended for use” in the definition of “drug paraphernalia” signals that the
relevant inquiry is defendant’s subjective intent with respect to use of the items.
Because D.C. Code § 48-1102 (a)(1) and (4) explicitly make such factors relevant
to whether an object is “drug paraphernalia,” we look to the evidence of
appellant’s intent in determining whether the evidence was sufficient to support his
conviction for PDP.
14
drug paraphernalia,” provides generally that whoever has in his or her possession a
hypodermic needle, hypodermic syringe, or other instrument that has on or in it
any quantity (including a trace) of a controlled substance with intent to use it for
administration of a controlled substance by subcutaneous injection in a human
being shall be fined . . . or imprisoned for not more than 180 days, or both.” Thus,
under § 48-904.10, the government’s failure to prove that the possessed
paraphernalia was accompanied by at least a “trace” of a controlled substance
requires acquittal. By contrast, § 48-1103 (a)(1) requires only possession of drug
paraphernalia with intent to use it in connection with a controlled substance and
does not require the presence of a controlled substance, whether actual or fake.
See Chambers v. United States, 564 A.2d 26, 27 n.1 (D.C. 1989) (noting that the
“paraphernalia offense defined in D.C. Code § 33-603 (a) (1988), [the prior
codification of § 48-1103] . . . does not require proof that any controlled substance
is present”), overruled on other grounds, Berroa v. United States, 763 A.2d 93, 96
(D.C. 2000). Clearly, the legislature knew how to condition a conviction for
possession of drug paraphernalia on proof of presence of a controlled substance if
it meant to do so. That it did not do so in § 48-1103 (a)(1) is telling.
We discussed in section III above the evidence that supported an inference
that appellant possessed a green weed-like substance that he believed to be
15
marijuana, with the intent to distribute it. Together with that evidence, Detective
Thomas’s testimony that scales and sandwich bags are used in the distribution of
marijuana and the evidence that the scale and sandwich bags were found in close
proximity to each other5 and to the bags of green weed-like substance that smelled
like and was packaged like marijuana supported a further inference: that appellant
intended to use the scales and bags to weigh and package what he believed to be
marijuana. Because D.C. Code § 48-1103 (a)(1) does not require the presence of
an actual controlled substance (or of any substance at all), this further inference
sufficed to prove that the scales and sandwich bags were “intended for use” in
weighing or packaging marijuana, D.C. Code § 48-1101 (3)(E), (I), and thus
constituted drug paraphernalia. See Williams v. United States, 604 A.2d 420, 421
(D.C. 1992) (rejecting the argument that a conviction for possession of drug
paraphernalia requires proof that the item of paraphernalia was actually used in
drug activity).6
5
The presence of the digital scale and sandwich bags together in close
proximity to the green weed-like substance distinguishes this case from Brooks, in
which we observed that “[t]he fact that a defendant possesses a single such item
[associated with marijuana], standing alone, does not in our view normally suffice
to permit a finding beyond a reasonable doubt that the defendant intended to use
the item for a drug-related purpose.” 130 A.3d at 958.
6
Even if appellant was mistaken in his belief that the green weed-like
substance was marijuana, that would not negate the intent required for the offense
of PDP. See Wiggins v. United States, 521 A.2d 1146, 1149 n.4 (D.C. 1987) (“A
(continued…)
16
For the foregoing reasons, the judgment of the Superior Court is
Affirmed.
(…continued)
reasonable mistake of fact constitutes a defense when it negates the criminal intent
required for the offense.”).