                              District of Columbia
                               Court of Appeals
No. 15-CM-554

VINCENT PANNELL,                                                     APR - 7 2016
                                          Appellant,

         v.                                            CMD-1870-15


UNITED STATES,
                                          Appellee.


              On Appeal from the Superior Court of the District of Columbia
                                   Criminal Division

         BEFORE: GLICKMAN and THOMPSON, Associate Judges; and FERREN, Senior
Judge.


                                   JUDGMENT

               This case was submitted to the court on the transcript of record and 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 appellant’s conviction is reversed,
and the case is remanded for vacation of that judgment and for entry of a judgment of
acquittal.

                                             For the Court:




Dated: April 7, 2016.

Opinion by Senior Judge John M. Ferren.
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
                                                                           4/7/16
                                 No. 15-CM-554

                         VINCENT PANNELL, APPELLANT,

                                        v.

                            UNITED STATES, APPELLEE.

                           Appeal from the Superior
                        Court of the District of Columbia
                                (CMD-1870-15)

                     (Hon. Judith N. Macaluso, Trial Judge)

(Submitted March 15, 2016                                    Decided April 7, 2016)

      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.


      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,
                                         2

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.



                                         I.



      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
                                         3

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.”
                                           4

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 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.
                                            5

                                            I.



       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


       1
        Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
       2
           Id. (citation and internal quotation marks omitted).

       3
           Id. at 129.
       4
           Id.
                                         6

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.



                                        III.



      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
      5
          See supra note 1.
      6
          Rivas, 783 A.2d at 128.
                                         7

plastic bags containing a visible white rock substance [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 incriminating evidence found on Rivas’s

person. Nor, finally, did Rivas say anything to inculpate himself.8



      A jury convicted Rivas and the driver of possession with intent to distribute

cocaine, and a division of this court affirmed. Sitting en banc, however, this court

reversed, concluding — as to facts fitting this case — that “[a] passenger in

someone else’s car, who is not the driver and who does not have exclusive control

over the vehicle or its contents, may not be convicted solely on the basis that the

drugs were in plain view and conveniently accessible in the passenger

compartment.”9      We held that “something more . . . — a word or deed, a

relationship or other probative factor —” was required to “prove[] beyond a

      7
          Id. at 129.
      8
          Id.
      9
          Id. at 128.
                                            8

reasonable doubt that the passenger intended to exercise dominion or control over

the drugs, and was not a mere bystander.”10           The “something more” that is

required, however, is “comparatively minimal”:11



                 [I]t could be a furtive gesture indicating an attempt to
                 access, hide or dispose of the object, flight or other
                 evidence of consciousness of guilt, evidence of
                 participation in an ongoing criminal venture involving
                 the contraband, an inculpatory statement, evidence of
                 prior possession of the item, actual possession of
                 paraphernalia relating to the use or sale of the
                 contraband, control of the area or container in which the
                 contraband is found, or the like.[12]



From time to time this court has reaffirmed Rivas,13 characterizing that decision

and others that lack evidence sufficient to prove intent as having “the quality of a


      10
           Id.
      11
           Id. at 137.
      12
           Id.
      13
           E.g., Hutchinson v. United States, 944 A.2d 491, 492-93 (D.C. 2008)
(cocaine found on floor of car blocked by defendant’s feet, without “something
more,” insufficient to infer intent); Jackson v. United States, 61 A.3d 1218, 1223-
24 (D.C. 2013) (cooler with marijuana found on floorboard next to defendant
insufficient, without “something more,” to infer intent); see also Burnette v. United
States, 600 A.2d 1082, 1083 (D.C. 1991) (per curiam) (gun found bulging under
floormat by defendant’s feet in rear passenger compartment did not evidence
proactive behavior by defendant).
                                          9

snapshot — a frozen instant in time and space, crystalized but devoid of

explanatory context.”14



      Although the “something more” requirement announced in Rivas to establish

intent will be satisfied by something “minimal,” that “something” has commonly

been an affirmative act by the defendant to conceal the contraband. For example,

in our Smith decision,15 the defendant, a passenger, sat in a “slouched position with

his knees holding shut the [loose] door to the glove compartment” containing a

pistol — evidence of a “conscious [act] to preserve the pistol’s hiding place.”16

Similarly, in Zanders,17 the defendant “pick[ed] up and drop[ped] a jacket onto the

floorboard [of the car], briefly concealing the gun” — an “affirmative act”

reflecting intent akin to acts in other relevant decisions affirming constructive

possession.18




      14
           Rivas, 783 A.2d at 134.
      15
           Smith v. United States, 899 A.2d 119 (D.C. 2006).
      16
           899 A.2d at 123.
      17
           Zanders v. United States, 75 A.3d 244 (D.C. 2013).
      18
         Id. at 251 (citing Smith, 899 A.2d at 123 (knees holding glove
compartment shut to conceal gun); Williams v. United States, 884 A.2d 587, 604
                                                          (continued . . .)
                                          10


      The foregoing decisions, illustrating “something more” based on “movement

or gesture in front of the police,”19 leave room, of course, for other indicia of

intent, as illustrated above in the block quotation from Rivas.20 This case carries us

into alleged indicia of intent other than overt movement or gesture.



                                        IV.


      The government’s overall argument that the record reflects “something

more,” sufficient to evidence intent beyond a reasonable doubt, is premised on

several evidentiary contentions. As the predicate for its argument, the government

emphasizes that the two PCP-laced cigarettes were found on appellant’s side of the

console, merely a few inches from his thigh. Accordingly, says the government,

they were “more accessible to appellant” than to the driver and thus are

distinguishable from the drugs in Rivas, which lay equally between driver and

passenger. The government recognizes, however, that this minor discrepancy is


_________________________________
(. . . continued)
(D.C. 2005) (knocking bag of chips to floor to conceal gun); White v. United
States, 714 A. 2d 115, 119 (D.C. 1998) (reaching into box that concealed firearm).
      19
           Zanders, 75 A.3d at 250 (citation and internal quotation marks omitted).
      20
           See text accompanying supra note 12.
                                           11

not, in itself, the “something more” required to prove culpable intent.21 Thus, the

government proffers three other factors.




      First, we are told, the top cigarette was bent, allegedly suggesting that

appellant had hastily attempted to hide it from the police officers. Again, however,

this government contention is based entirely on appellant’s proximity to the PCP

cigarette; for all one can tell without more, that cigarette as likely as not was bent

before the traffic stop, not in response to it. Both officers repeatedly testified that

they had not seen either the driver or appellant make any motion or gesture at any

time before or after the stop that would have suggested an attempt to conceal the

cigarettes.22 All the government can say, therefore, is that appellant “could have

easily . . . slid [the drugs] without detection” to the console between appellant and

the driver. Perhaps so. But, at least equally so, perhaps not. Perhaps the driver or

someone else put the cigarettes there. And, in any event, merely sliding the two


      21
          We have said that a “defendant’s close proximity to drugs in plain view is
certainly probative” of intent, as well as knowledge and ability, to exert control
over the contraband. Rivas, 783 A.2d at 128. But to repeat from Rivas, that
proximity alone to drugs in plain view is not the required “something more,”
particularly, as we have observed, when the defendant is a “passenger in someone
else’s car, who is not the driver and who does not have exclusive control over the
vehicle or its contents.” Id.
      22
         Rivas, 783 A.2d at 137 (no evidence that appellant made “furtive gesture
indicating an attempt to access, hide or dispose of the” cigarettes).
                                         12

cigarettes does not fit very well with the government’s contention that appellant

had acted “hastily” and “bent” one.




      Next, the government contends that appellant’s intent to exercise dominion

or control over the PCP-laced cigarettes — if not inferable from close proximity

and cigarette bending — may be reasonably inferred by adding the incontrovertible

evidence that both cigarettes were wet and apparently had been dipped “very

recently” in the PCP solution, likely five to ten minutes before the police

intervened. This dipping activity, argues the government, suggests an intention to

smoke the cigarettes “imminently” (and thus allegedly implicates appellant’s

“participation in an ongoing criminal venture”).23 While close proximity of a bent,

wet, PCP-dipped cigarette does not easily disturb characterization of the scene as a

“snapshot,” it does stir the imagination of activity to the point of a nonfrivolous

argument.



      The problem with this argument, however, is its material omissions: even if

the cigarettes had been in the car for at least five to ten minutes before the traffic

stop, no evidence suggests with meaningful clarity how, and more importantly by


      23
           See text accompanying supra note 12.
                                        13

whom, the cigarettes had been dipped and placed there — an omission of evidence

germane to appellant’s relationship to the cigarettes (aside from sitting next to

them). The evidence at trial, as noted, demonstrated that the cigarettes had likely

been dipped in PCP “five to ten minutes” before the vehicle was stopped and,

further, that PCP-dipped cigarettes “remain extremely wet for . . . [approximately]

10 to 15 minutes”; that they must be dried before they are smoked; and that it takes

at least 30 minutes for a PCP cigarette to dry. There was no evidence, however, as

to whether appellant had been “actively engaged in,”24 or even privy to, the

dipping or, for any other reason, was poised for “imminent usage” of the cigarettes.

Furthermore, no vial or other container that could have held liquid PCP and

perhaps implicated appellant was found in the car or on appellant’s person, despite

the fact that the cigarettes had been recently dipped. Nor was the driver ever

searched to determine whether he might have dipped the cigarettes. Finally, of

particular significance, the police officers had only observed appellant for thirty

seconds before conducting the stop. No evidence was presented to show how long

appellant had been in the car, how he had come to be there, or what he had been

doing earlier25 — questions relevant to appellant’s alleged culpability for


      24
           Rivas, 783 A.2d at 134.
      25
        Rivas, 783 A.2d at 134 (“[T]here was no evidence as to how long Rivas
had been in the car, how he had come to be there, or what he had been doing”);
                                                         (continued . . .)
                                         14

possession of PCP as a passenger in the vehicle. Certainly the cigarette dipping,

drying, and front-seat stashing — short of smoking — generates the vision of a

criminal chemist at work, but what’s missing is evidence that appellant participated

in that venture. We accept the reasonable inference of a possibility, or even

probability, that appellant did so, but not an inference, as required, beyond a

reasonable doubt.26



      Taking up the government’s third and last factor, we cannot say that

“something more” was finally established by the argument that, because there were

two cigarettes and two occupants of the car, “it was rational to infer that each man

intended to smoke one of the PCP-dipped cigarettes” — especially, adds the

government, because the front passenger window was rolled down. We have no

basis, however, for inferring (beyond mere possibility) that of the two cigarettes in

the car, one was allocable to each occupant, and that appellant and the driver

_________________________________
(. . . continued)
Hutchinson, 944 A.2d at 493 (“nor was there evidence even of how long
[Hutchinson] had been a passenger in the car”); Jackson, 61 A.3d at 1223 (“There
is no evidence indicating how long Mr. Jackson had been in the car, how he had
come to be there, or what he was doing there.”) (citation and internal quotation
marks omitted).
      26
           Rivas, 783 A.2d at 134 (“evidence is insufficient” if a factfinder “must
have a reasonable doubt as to the existence of any of the essential elements of the
crime”); see id. at 138 (“perhaps Rivas is probably guilty; but on the thin record of
this case, a reasonable doubt about his guilt ineluctably remains”).
                                         15

intended to smoke one apiece, while together. Nor can we infer significance from

an open car window, which is hardly atypical. Accordingly, this two-smoker

argument is a stretch.     The evidence as easily suggests that both cigarettes

belonged to the driver — or to appellant — but not that they more likely belonged

to one than to the other, and certainly not necessarily to appellant,27 especially in

the absence of any evidence that appellant “had ever handled the [cigarettes] or

engaged in a drug transaction.”28 This argument does not add a sufficient gloss on

the facts of the first two scenarios proffered by the government to demonstrate the

required “intent” beyond a reasonable doubt to hold appellant criminally

responsible for possession of PCP.



      Finally, the government’s case is further weakened by the fact that appellant

in all respects cooperated with the police, did not appear anxious, and manifested




      27
           We have acknowledged that “[c]onstructive possession may be sole or
joint,” In re R.G., 917 A.2d 643, 647 (D.C. 2007) (internal citation and quotation
marks omitted), but the evidence as to each must be proved. In In re R.G., for
example, a pistol was recovered in appellant’s bedroom, but we reversed
appellant’s conviction for missing “intent” because her “boyfriend was in the
room, and indeed in the bed, with [appellant], and the District offered no
evidence . . . that it was not the boyfriend who owned the pistol and who brought it
to [appellant’s] room.” Id. at 649.
      28
           Rivas, 783 A.2d at 129.
                                           16

no evidence of conscious guilt.29 In sum, this case is indistinguishable from the

facts and law in Rivas. The evidence presented, without more, cannot support the

inferences the government seeks to have us draw; it would require the factfinder

“to cross the bounds of permissible inference and enter the forbidden territory of

conjecture and speculation.”30


                                         *****


      For the reasons elaborated above, appellant’s conviction is reversed and the

case remanded for vacation of that judgment and for entry of a judgment of

acquittal.


                                                      So ordered.




      29
        See id. at 650 (“There was no evasive action by R.G., or other evidence of
consciousness of guilt on her part.”).
      30
           Id. at 134 (citation and internal quotation marks omitted).
