                               District of Columbia
                                Court of Appeals
No. 14-CF-1343
                                                                    NOV - 3 2016
TRAVIS MCRAE,
                                  Appellant,

         v.                                                        CF2-7361-14


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, 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 appellant’s conviction of possession
with intent to distribute (“PWID”) is reversed, and the matter is remanded for entry of a
judgment of conviction on the lesser included offense of simple possession of marijuana.

                                              For the Court:




Dated: November 3, 2016.

Opinion by Associate Judge Stephen H. Glickman.
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-CF-1343                      11/3/16

                            TRAVIS MCRAE, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CF2-7361-14)

                      (Hon. Anita Josey-Herring, Trial Judge)

(Submitted March 15, 2016                              Decided November 3, 2016)

      Robin M. Earnest was on the brief for appellant.

       Channing D. Phillips, United States Attorney, and Elizabeth Trosman,
Robert Eckert, and Jay Apperson, Assistant United States Attorneys, were on the
brief for appellee.

      Before GLICKMAN and THOMPSON, Associate Judges, and FERREN, Senior
Judge.


      GLICKMAN, Associate Judge:       Travis McRae appeals his conviction for

possession of marijuana with intent to distribute (“PWID”).1 His principal claim

      1
          D.C. Code § 48-904.01 (a)(1) (2012 Repl.).
                                          3

on appeal, and the only one we find it necessary to address, is that the evidence at

trial was insufficient to prove he intended to distribute the 22.7 grams of marijuana

recovered by police from the pocket of his jacket. We agree that the evidence of

intent to distribute was insufficient.2



                                          I.



      On the night of November 15, 2013, according to the government’s evidence

at trial, appellant was standing outside an apartment building at 208 36th Street

N.E. with several other men when a police car drove up and stopped in front of

them. The officers, members of a gun recovery unit, were responding to a report

of a shooting in the block. Metropolitan Police Officer Pinto called out, “Hey,

guys, police,” and got out of the car along with two other officers. Appellant

      2
          The Marijuana Possession Decriminalization Amendment Act of 2014,
D.C. Law 20-126, which took effect July 17, 2014, decriminalized the possession
or transfer without remuneration of marijuana weighing one ounce or less. See
D.C. Code § 48-1201 (a) (2014 Repl.). Subsequently, the Legalization of
Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014,
D.C. Law 20-1064, made it lawful under D.C. Law to possess up to two ounces of
marijuana for personal use. See D.C. Code § 48-904.01 (a)(1)(A) (2016 Suppl.).
This court has held that the Decriminalization Amendment Act does not apply
retroactively to decriminalize the possession of marijuana prior to its effective
date, see Washington v. United States, 111 A.3d 640, 644-45 (D.C. 2015), and
appellant does not argue that either of these laws operates to invalidate his
conviction.
                                         4

turned and ran into the apartment building. Officer Pinto pursued him as he ran

upstairs and inside Apartment 4, into a bedroom, out a back door, and downstairs

to the back yard. The officer gave up the chase when appellant ran off into an

adjoining alley. On the ground beside the alley, however, Officer Pinto found

appellant’s discarded jacket. It contained appellant’s identification card, which

gave his address as 208 36th Street NE, Apartment 4; mail addressed to him there;

the keys to that apartment; and a plastic bag containing 22.7 grams (four-fifths of

an ounce) of marijuana.



      The police secured Apartment 4 while Officer Pinto obtained a warrant to

search it. In the bedroom through which appellant had fled, the police found his

photograph and personal papers bearing his name; a digital scale; 175 empty

ziplock bags in varying sizes and colors; and a loaded handgun.



      Detective George Thomas testified for the prosecution at trial as an expert in

the distribution and use of illegal drugs, including marijuana, in the District of

Columbia. He opined that dealers often use digital scales and ziplock bags like

those found in Apartment 4 for selling drugs on the streets, though most of the

bags were so small they “would actually not be utilized for purposes of selling

marijuana because they’re not designed for that.      They’re designed for other
                                          5

drugs.”   Only the 31 reddish bags found in Apartment 4 would be used for

marijuana, the detective testified, and even they were on the small side for that

purpose.3 However, he said, it is “rather common” for consumers to buy drugs in

bags like the one that held the marijuana in appellant’s jacket.



      Detective Thomas further testified that “lot[s] of times marijuana is sold by

[the] ounce or multiple ounce at a time.” As an example, he said, “There are

individuals that have purchased it by the pound and have broken it down into

smaller increments and sold it by the half ounce and one-half ounce [sic],” while

“some individuals have chosen to sell it” in smaller packages such as twenty, ten,

or even five dollar bags.       A $10 or “dime” bag would typically contain

approximately one gram, while a $5 or “nickel” bag would contain about half a

gram. Detective Thomas estimated that if the quantity of marijuana found in

appellant’s jacket were sold on the street by the gram, it would yield approximately

$220 to $230. On “the streets,” Detective Thomas added, users normally purchase

drugs in small quantities because “[i]f you ask for too many drugs on the streets,


      3
          The bags typically used to sell marijuana “would actually be a little bit
larger,” Detective Thomas testified. “Yes,” he added, “you can pack a gram [of
marijuana] in and you would have a nice fat bag here utilizing the red colored
ones. A lot of times those ziplock bags that contain that 1 gram would actually be
slightly larger than this.”
                                         6

[the sellers will] turn you away.” However, he said, “[m]arijuana has a uniqueness

to it because, yes, you can do both, but at the same time if you get over an ounce,

they’re not going to deal with you.”



      Finally, Detective Thomas testified that “[o]ne of the most common ways”

of consuming marijuana is by smoking it with a pipe or rolled up in cigarette

paper, cigar leaf, or a “manufactured roll.” The detective believed it would take

“quite a while” – more than just a long weekend – for even a heavy user to

consume “a whole ounce” of marijuana.



      The jury found appellant guilty of possession of marijuana with intent to

distribute. In addition, it found him guilty of possession of drug paraphernalia (the

ziplocks and scale found in the bedroom of Apartment 4),4 a conviction that

appellant does not challenge in this appeal.      The jury acquitted appellant of

possession of a firearm during a crime of violence or dangerous offense 5 and all

other charges relating to the handgun and ammunition found in the bedroom.




      4
          D.C. Code § 48-1103 (a) (2012 Repl.).
      5
          D.C. Code § 22-4504 (b) (2012 Repl.).
                                           7

                                          II.



      To convict appellant of PWID, the government needed to prove that he

possessed the marijuana discovered in his jacket with the specific intent to

distribute it.6    In evaluating appellant’s challenge to the sufficiency of the

government’s proof of that intent, we view the evidence in the light most favorable

to sustaining the jury’s verdict.7 To prevail, appellant must persuade us that there

was “no evidence upon which a reasonable mind could find guilt beyond a

reasonable doubt.”8 But while appellate review of sufficiency of the evidence is

deferential to the fact finding prerogatives of the jury, it is not “toothless.”9 The

reasonable doubt standard requires proof sufficient for a rational jury to reach a

“state of near certitude” as to the defendant’s guilt, proof “more powerful” than

what the jury would need just to find something “more likely than not” or even

“highly probable.”10 This elevated proof requirement “means more than that there

must be some relevant evidence in the record in support of each essential element

      6
           Taylor v. United States, 662 A.2d 1368, 1371 (D.C. 1995).
      7
           See Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc).
      8
           Watson v. United States, 979 A.2d 1254, 1256 (D.C. 2009).
      9
           Rivas, 783 A.2d at 134.
      10
           Id. at 133.
                                           8

of the charged offense.”11 “Slight evidence is not sufficient evidence; a ‘mere

modicum’ cannot ‘rationally support a conviction beyond a reasonable doubt.’” 12

Moreover, we must distinguish reasonable inference from mere speculation. We

must declare the evidence insufficient “if, in order to convict, the jury [was]

required to cross the bounds of permissible inference and enter the forbidden

territory of conjecture and speculation.”13 In short, this court is obligated “to take

seriously the requirement that the evidence in a criminal prosecution must be

strong enough that a jury behaving rationally really could find it persuasive beyond

a reasonable doubt.”14



      In the present case, there was no direct evidence that appellant had been

selling the marijuana found in his jacket or that he intended to sell it rather than

consume it himself. Instead, to prove his intent to distribute the marijuana, the

government relied on the inferences that might be drawn, in light of Detective

Thomas’s expert testimony and the surrounding circumstances, from the quantity

and packaging of the marijuana and the physical evidence of drug trafficking
      11
           Id. at 134.
      12
           Id. (quoting Jackson v. Virginia, 443 U.S. 307, 320 (1979)).
      13
           Id. (quoting Curry v. United States, 520 A.2d 255, 263 (D.C. 1987)).
      14
           Id.
                                          9

activity found in Apartment 4. For the following reasons, we conclude that this

evidence was not sufficient to permit a rational fact finder to find beyond a

reasonable doubt that appellant intended to distribute the marijuana he had in his

jacket.



      Our first reason centers on the quantity and packaging of that marijuana. An

intent to distribute can be inferred from the possession of a quantity of drugs that

“exceeds supply for personal use”15 or that is packaged in a manner indicative of

future distribution.16 But that sort of evidence was strikingly absent here. There


      15
           Johnson v. United States, 40 A.3d 1, 15 (D.C. 2012) (upholding PWID
conviction for possession of a parcel containing 4,797 grams of marijuana worth
between $10,000 and $47,000); see also, e.g., Taylor, 662 A.2d at 1371 (“An intent
to distribute can be inferred from expert testimony and the possession of a quantity
of drugs that exceeds a reasonable supply.”); Spriggs v. United States, 618 A.2d
701, 704 (D.C. 1992) (holding evidence of PWID sufficient based on expert
testimony that the “quantity, packaging, and value of the drugs possessed by
appellant . . . [were] more consistent with an intent to distribute than with personal
use”); Hinnant v. United States, 520 A.2d 292, 294 (D.C. 1987) (“The expert
testified that the heroin seized would yield sixty to seventy packets, an amount
which a reasonable trier of fact could readily find was inconsistent with appellant’s
own personal use.”); Shorter v. United States, 506 A.2d 1133, 1135 (D.C. 1986)
(“A quantity of a drug that exceeds a reasonable supply for personal use is
significant evidence of an intent to distribute.”).
      16
         See, e.g., Johnson, 40 A.3d at 15 (“According to the government’s
narcotics expert, the parcel and the way the drugs were packaged were typical of
‘how marijuana is sent through the Washington metropolitan area in bulk form’ for
further distribution.”); Taylor, 662 A.2d at 1371 (“Packaging of narcotics in a
manner making them ready to sell to individual purchasers is strong evidence of an
                                                                     (continued…)
                                          10

was no expert testimony or other evidence showing that the quantity or packaging

of appellant’s marijuana was more consistent with an intent to distribute than with

personal use. Detective Thomas did not testify, and we do not think it can be

maintained, that four-fifths of an ounce of marijuana exceeds a reasonable supply

for a single user (even if no one would be likely to smoke all of it in one lazy, hazy

weekend). That the marijuana had a potential retail value of around $220 or $230

if it were sold by the gram does not mean it was too much for one user to acquire

for his own consumption.



      On the contrary, Detective Thomas testified that users can and do buy as

much as an ounce of marijuana on the street, and that they commonly do so in bags

like the one appellant was carrying. This was as much as to say that appellant,

who had only one such bag in his jacket, fit the profile of a consumer of marijuana

at least as closely as he fit that of a seller. Case law in this and other jurisdictions

confirms that possession of an ounce of marijuana is consistent with personal



(continued…)
intent to distribute.”); Earle v. United States, 612 A.2d 1258, 1270 (D.C. 1992)
(holding evidence sufficient for jury to infer intent to distribute where, among
other things, “[m]uch of the cocaine was packaged in ziplock bags, in amounts
regularly sold and purchased on the street”); Chambers v. United States, 564 A.2d
26, 31 (D.C. 1989) (“The fact that the cocaine was in separate packages, rather
than in one large mass, is evidence of an intent to distribute.”).
                                         11

consumption,17 as does the fact that this and other jurisdictions have decriminalized

the possession of an ounce or more of marijuana for personal use.18



      Second, while an intent to distribute can be inferred when drugs are found

together with drug distribution paraphernalia,19 no such paraphernalia was found in

      17
          Cf. Burwell v. United States, 901 A.2d 763 (D.C. 2006) (affirming
conviction for simple possession of an ounce of marijuana); see also, e.g., In re
N.J., 752 S.E.2d 255 (N.C. Ct. App. 2013) (less than one-half ounce of marijuana
in three small bags, even with $1,200 in cash on defendant’s person, insufficient
for inference of intent to distribute); Phillips v. State, 961 So. 2d 1137, 1140 (Fla.
Dist. Ct. App. 2007) (10 small plastic bags containing marijuana totaling 26.6
grams insufficient for PWID when officers testified this amount also consistent
with personal use); State v. Davis, 904 P.2d 306, 308 (Wash. Ct. App. 1995)
(nineteen grams of marijuana in six baggies not inconsistent with personal use);
Davis v. State, 641 A.2d 941 (Md. Ct. Spec. App. 1993) (common nuisance
conviction reversed since 25.8 grams of marijuana consistent with personal use);
Wells v. Commonwealth, 347 S.E.2d 139, 140-41 (Va. Ct. App. 1986) (4.2 ounces
of marijuana in “seven sandwich baggies each containing ten baggie corners,” with
a total street value of $700, not inconsistent with personal use over a “period of
time”); Dukes v. Commonwealth, 313 S.E.2d 382 (Va. 1984) (one-half ounce of
marijuana consistent with personal use); Bentley v. Cox, 508 F. Supp. 870, 878
(E.D. Va. 1981) (73 grams of marijuana not inconsistent with personal use); Adkins
v. Commonwealth, 229 S.E.2d 869 (Va. 1976) (six ounces of marijuana not
incompatible with personal use).
      18
         See D.C. Code § 48-904.01 (a)(1)(A) (legalizing the possession of
marijuana weighing two ounces or less); Alaska Stat. § 17.38.020 (2015) (neither
criminal nor civil offense to possess or transfer without remuneration one ounce or
less of marijuana); Colo. Const. Art. XVIII § 16 (3) (2016) (same); Rev. Code
Wash. §§ 69.50.360 (3)(a), .4013 (2012) (neither criminal nor civil offense to
possess up to one ounce of useable marijuana); ORS § 475.864 (1) (2016)
(decriminalizing possession of up to one ounce of useable marijuana in a public
place).
                                         12

or near appellant’s jacket. The government points out that the police found no

pipe, cigarette paper, or other apparatus for personal consumption near the

marijuana either, but though the absence of such evidence might corroborate

affirmative evidence of drug trafficking, it cannot take the place of such

evidence.20



      Third, while flight from the police is indicative of consciousness of guilt,21

as the government argues, appellant’s flight could not be taken as implying

specifically that he had the intent to distribute the marijuana in his jacket pocket,

since his mere possession of that marijuana was unlawful and could have

motivated his flight regardless of what he intended to do with it.



(continued…)
      19
         See, e.g., Barnes v. United States, 760 A.2d 556, 558 n.3 (D.C. 2000)
(“The quantity and packaging of the drugs, together with the discovery [in the
same house] of the cutting and packaging paraphernalia, was more than sufficient
to show the required intent.”); Earle, 612 A.2d at 1270 (marijuana “found in
combination with” paraphernalia “associated with preparation and sale of illegal
drugs”).
      20
           Cf. Taylor, 662 A.2d at 1372 (noting that evidence of the defendant’s
intent to distribute crack cocaine, including the quantity and packaging of the drugs
and the circumstances of his arrest, was corroborated by the fact that the defendant
possessed no materials for personal consumption of the drugs and tested negative
for drug use).
      21
           See Comford v. United States, 947 A.2d 1181, 1187 (D.C. 2008).
                                         13

      Fourth, although Detective Thomas explained how appellant could have

used the digital scale and some of the empty ziplock bags found inside Apartment

4 to measure, package and sell small amounts of marijuana in nickel or dime bags,

his equivocal testimony fell short of linking the drug paraphernalia and the

possibility of such activity to the single pack of marijuana, in an amount consistent

with personal consumption, that was found in appellant’s jacket. The detective in

fact testified that most of the ziplock bags recovered from the apartment were

“designed for other drugs,” i.e., not for selling marijuana, and that while the 31

reddish bags could have been utilized to sell marijuana in gram increments, sellers

typically used larger bags for that purpose. Similarly, while the digital scale

likewise could have been used to weigh marijuana, it also could have been used for

weighing other drugs. Significantly, there was no evidence that the bags and

digital scale actually had been used in connection with marijuana at any time. No

trace of marijuana was found on the scale, in any of the ziplock bags, or anywhere

else in the apartment; and appellant’s mere personal possession of a consumable

amount of marijuana did not itself constitute evidence that the paraphernalia in the

apartment had been or would be employed in connection with it. The physical

evidence and Detective Thomas’s testimony unquestionably did implicate

appellant in some kind of drug trafficking activity. But it is hardly uncommon for
                                          14

persons who engage in drug dealing to possess marijuana for personal

consumption.22



      To be sure, the evidence in its totality does raise a strong suspicion that

appellant intended to use the digital scale and the ziplock bags in his apartment to

cut up and distribute the four-fifths of an ounce of marijuana he was carrying on

the street outside the apartment on the night of November 15, 2013. Based on this

evidence, we think a reasonable jury readily could find it more likely than not and

perhaps even highly likely that appellant possessed the marijuana with the intent to

distribute it.   But given the limitations of the government’s proof and the

unrebutted evidence that appellant could have possessed the marijuana for his own

consumption, we think that is as far as a reasonable jury could go; it could not

fairly reach a “state of near certitude” that appellant had the intent to distribute the

specific amount of marijuana in his possession. In this case, therefore, “[i]f the


      22
         See, e.g., Washington v. United States, 111 A.3d 640, 641 (D.C. 2015)
(defendant charged with, and found guilty of, simple possession of marijuana and
possession of drug paraphernalia, after police found two bags containing 1.8 grams
of marijuana along with 174 empty baggies and an empty pill bottle in the
defendant’s van); see also State v. Gilbert, 839 So. 2d 250, 256 (La. Ct. App.
2003) (three grams of marijuana, though separated into four baggies and
accompanied by “paraphernalia in the form of [numerous empty] eight ball labeled
zip lock bags,” held insufficient for inference of PWID as no expert testimony
established that it was inconsistent with personal use).
                                         15

standard of proof beyond a reasonable doubt means anything, the factors on which

the government relies are not compelling enough to permit a reasonable jury to

find [appellant] guilty” of PWID.23



      Accordingly, we reverse appellant’s PWID conviction.           Because the

evidentiary deficiency we have identified affects only the element of intent to

distribute, we remand for entry of a judgment of conviction on the lesser included

offense of simple possession of marijuana.24



                                                   So ordered.




      23
           Rivas, 783 A.2d at 135.
      24
           See Brockington v. United States, 699 A.2d 1117, 1121 (D.C. 1997).
