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. 18

- CM

- 370

D ARNELL W. K ORNEGAY , A PPELLANT ,

v. U NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CMD

- 14607

- 17 ) (Hon. Patr icia A. Broderick , Trial Judge) (Argued October 23 , 201 9 Decided September 3, 2020 ) Nigel A. Barrella for appellant. Kevin Birney , Assistant United States Attorney , with whom Jesse K. Liu , United States Attorney , and Elizabeth Trosman , Suzanne Greal y Curt , and Andrea Coronado , Assistant United States Attorneys, were on the brief, for appellee.
Before E ASTERLY and M C L EESE , Associate Judges , and S TEADMAN , Senior Judge

. Opinion for the court by Associate Judge E ASTERLY
. Dissenting opinion by Sen ior Judge S TEADMAN at page 1 9

.2

E ASTERLY , Associate Judge : During a search after a traffic stop, police found less than two ounces of marijuana on and near Darnell W. Kornegay ’s
person. Mr. Kornegay was convicted after a bench trial of possession with in tent to distribute a controlled substance ( “ PWID ” )

. Relying on recent amendments to
the D.C. Code , he argues on appeal as he did at trial that , because it is now expressly lawful for an adult to possess less than two ounces of marijuana and
because less t han two ounces of marijuana in these circumstances no longer falls
within the definition of a controlled substance , it cannot be a crime to possess with
the intent to distribute that amount of marijuana

. Alternatively , he argues that the
evidence of his i ntent to distribute marijuana is legally insufficient. We agree that it was lawful for Mr. Kornegay to possess less than two ounces of marijuana in
these circumstances , need not address his second argument , and remand for the
trial court to vacate his con viction

.

I. Facts

Officers of the United States Park Police pulled over Mr. Kornegay , then twenty

- two , on August 24, 2017 , for a suspected window

- tint violation as he was driving in the 2600 block of Southern Avenue Southeast. As one officer approached th e vehicle, he noticed Mr. Kornegay reaching underneath his seat

.3

After in structing Mr. Kornegay to roll down his window , the officer saw a clear plastic bag containing a “green plant like material” in the armrest of the driver’s
door. The officer then di rected Mr. Kornegay to step out of the vehicle and pat ted
him down. Near Mr. Kornegay’s waistband, t he officer felt “ an unnatural bulge”
which turned out to be two more sandwich bags of a “ green plant like material

. ” All three bags contained marijuana , t he combined weight of which was approximately 1.73 ounces. The officers also recovered $769 in cash from Mr. Kornegay’s pants pocket, as well as additional empty plastic sandwich bags and a digital scale bearing a “green plant like material residue” from beneath the driver’s
seat of the car
.

Mr. Kornegay was charged with PWID marijuana, in violation of D.C. Code § 48

- 904.01(a)(1) (2014 Repl. & 2020 Supp.)

. At a bench trial, a Metropolitan Police Department (“MPD”) officer testified as an expert in the “packaging, distribution, and sale of marijuana on the streets of the District of Columbia.” He
testified that , with the scale, marijuana, plastic bags, and cash, Mr. Kornegay , at the time of his arrest, “ha[d] everything

. . . need[ed] to sell marijuana

. ” Mr. Kornegay testified in his own defense

. He admitted that he smoke d marijuana and
stated that on the night he was pulled over, he was heading to a birthday party and was taking some marijuana with him to give as a gift to the “birthday girl” and to4

share with friends at the party. He testified that he was carrying cash that evening
because he like d to pay for things in cash. The court did not credit Mr. Kornegay’s testimony and found him guilty of PWID marijuana. This appeal followed

.

II. L egal Frame work

For decades , m arijuana has been defined in the D.C. Code as “ a controlled
substance

. ” See District of Columbia Uniform Controlled Substances Act of 1981,
D.C. Law 4

- 29 §§ 102(3), 212(b), 401(a)(1) (1981)

. As such, D.C. Code § 48

- 904.01(a)(1), which makes it a crime “for any person knowingly or intentionally

to

. . . possess[] with intent to

. . . distribute[] a controlled substance , ” has long been understood to apply to marijuana in any amount

. 1 But in 2014 , the law governing marijuana changed sign ificantly

.

1 Reaching back further in time, marijuana was designated a “poison , ” the actual sale of which without the proper license was unlawful. See An Act to regulate the practice of pharmacy and the s ale of poisons in the District of Columbia, Pub. L. No. 148, ch. 2084, § 13, 34 Stat. 175, 180 (1906). See generally Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of America n Marijuana Prohibition , 56 Va. L. Rev. 971 , 989

– 91, 998

– 1011 (1970) ( discussing the evolution of the criminaliz ation of marijuana ).5

First, the D.C. Council enacted the Marijuana Possession Decriminalization
Amendment Act of 2014, which made it only a civil infraction for a person to possess or “transfer without remuneration” one ounce or less of marijuana

. D.C.
Law 20

- 12 6, § 101(a) (codified as amended at D.C. Code § 48

- 1201(a) )

. The impetus for the legislation was the acknowledged absence of a strong public health rationale for marijuana criminalization , 2 coupled with a reassessment of its costs, including the dispropor tionate arrest rates of African Americans for marijuana possession 3 and “the devast at ing toll” of these arrests on the individuals, their

2 Marijuana Possession Decrimina lization Amendment Act of 2014, D.C. Council , Report on Bill 20

- 409, at 6 (2014) (noting “ that marijuana is generally accepted to be no more harmful o r addictive than alcohol or tobacco, perhaps less so”)

. 3 The Council cit ed data showing, among other things, that (1) marijuana possession arrests had increased 62% between 2001 and 2010 and tha t the District’s per capita marijuana arrest rate in 2010 was higher than any other state in the nation; and (2) of the individuals arrested for a single count of marijuana possession in th e District between 2010 and 2013, the percentage of African America n arrestees was never lower than 87.72% and went as high as 93.77%, even though African Americans are only about half of the District’s population and the use of marijuana by blacks and whites is comparable

. Report on Bill 20

- 409, at 3

– 4

.6

families, and communities, 4 as well as the diversion of law enforcement, public
defender , and judicial resources flowi ng from these arrests. 5

The Council enacted D.C. Code § 48

- 1201(a) against the backdrop of strong public opinion in favor of decriminalization of marijuana for personal use. 6 But the District’s voters were not satisfied, and later that same year they we nt further and approved the Legalization of Possession of Minimal Amounts of Marijuana for
P ersonal Use Initiative of 2014 , D.C. Law 20

- 153 (2014)

. As described in the ballot summary, this initiative called for a

change[ to] the laws of the District of C olumbia to make it lawful

. . . for a person 21 years of age or older to possess up to 2 ounces of marijuana for personal use;

. . . [and] transfer without payment (but not sell) up to one ounce of marijuana to another person 21 years of age or older

. . . . Id. With the approval of this initiative, D.C. Code § 48

- 904.01(a), the umbrella

statute that prohibits the “manufacture, distribut[ion], or possess[ion]” of a controlled substance “with the intent to manufacture or distribute,” was amended

4 The report no ted that the downstream consequences of such an arrest include loss of employment, housing, food assistance , and other forms of public support, which adversely impact both the individual arrested and their families. Report on Bill 20

- 409, at 5.

5 Report on Bill 20

- 409, at 4

– 5.
6 Report on Bill 20

- 409, at 6 (citing 2013 poll showing that “75% of District residents support decriminalization of small amounts of marijuana”).7

in two way s. See D.C. Code § 1

- 204.105 (2016 Repl.) (providing that initiatives adopted by voter referendum “shall be an act of the Council” after the Board of Elections and Ethics certifies the vote).

First , the amended statute expressly made it “lawful and

. . . not

. . . an offense under District Columbia law, for any person 21 years of age or older” to :

(A) P ossess, use, purchase, or transport marijuana weighing 2 ounces or less ; (B) T ransfer to another person 21 years of age or older, without remuneration, marijuana weighing one ounce or less ; (C) Possess, grow, harvest , or process, within the interior of house or rental unit that constitutes such person’s principal residence , no more tha n 6 cannabis plants [ meeting certain qualifications, and including a c ap on the number of plants in a single residence ] ; (D) Possess within such house or rental unit the marijuana produced by such plants; provided that nothing in this subsection shall make it lawful to sell, offer for sale , or make available for sale any ma rijuana or cannabis plants.

D.C. Law 20

- 153, § 2(a) (codified at D.C. Code § 48

- 904.01(a)(1)). Second, the
amended statute excluded from the definition of “controlled substance” and “controlled substances” throughout the District of Columbia Code “[m]ari juana that is or was in the personal possession of a person 21 years of age or older at any specific time if the total amount of marijuana that is or was in the possession of8

that person at that time weighs or weighed 2 ounces or less , ” certain marijuana
p lan t s, and certain marijuana produced by those plants. Id. § 2(b) (codified at D.C. Code § 48

- 904.01(a)(1A)(A)). T his provision qualified that the definition of

“ controlled substances ” still “shall include any marijuana or cannabis plant sold or
offered for sale or made available for sale.” Id. (codified at D.C. Code § 48

- 904.01(a)(1A)(B)). These amendments went into effect in 2015. See id. § 5.

III. Analysis

Mr. Kornegay argues that his conviction for PWID is invalid because the
2015 amendment s to D.C. C ode § 48

- 904.01 , both in sub paragraph (a)(1) (A) and in paragraph (a)(1A) , make it lawful for an adult to possess two ounces or less of marijuana, even if that individual has the intent to distribute

. We review q uestions of statutory interpretation de novo

. 7 Peterson v. United States , 997 A.2d 682, 683 (D.C. 2010). Our aim is “to ascertain and give effect to the legislature’s intent. ”

7 In its brief, the government raises, but does not advance, an argument that plain error, rather than de novo, review applies. As we explained in Carrell v. United States , 165 A.3d 314 (D.C. 2017) (en banc) , however, “ i t is well settled in this jurisdiction that a full range of challenges to the sufficiency of the evidence are automati cally preserved at a bench trial by a defendant’s plea of not guilty

. . . [including] challenges to the requisite elements of the crime.” Id. at 326 (citation and internal quotation marks omitted).9

Lopez

- Ramirez v. United States , 171 A.3d 169, 172 (D.C. 2017) (int ernal quotation marks omitted). O ur “primary index” is the plain language of the statute, id ., which we examine holistically, “account[ing] for [its] full text, language as well as punctuation, structure, and subject matter , ” Hood v. United States , 28 A.3d 553, 559 (D.C. 2011) (in ternal quotation marks omitte d) ; accord Peoples Drug Stores, Inc. v. District of Columbia , 470 A.2d 751, 753 (D.C. 1983) (en banc) (“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that [they] ha [ve] used.” (inte rnal quotation marks omitted) ).

D.C. Code § 48

- 904.01(a)(1) makes it “unlawful for any person knowingly

. . . to

. . . poss ess [] with intent to

. . . distribute[] a controlled substance.” But sub paragraph (a)(1)(A), a product of the 2015 amendments to the
statute, by its plain language carves out an exception from the crime of possession and provides that “it shall be lawful , and shall not be an offense

. . . for any person 21 years of age or older to

. . . [p]ossess

. . . marijuana weighing 2 ounces or less.” D.C. Code § 48

- 904.01(a)(1)(A). The crime of possession with intent to distribute marijuana requires the government to prove (1) the elements of possession , namely that the defendant “ knowingly exercise [d] direct physical custody or control over ” an illegal amount of that substance , Johnson v. United States , 40 A.3d 1, 14 (D.C.10

2012) (internal quotation marks omitted); see also Rivas v. United States , 783 A.2d 125, 129 (D.C. 2001) (en banc) (defining the elements of constructive possession),
and (2) as an additional element, a defendant’s purpose to distribute the amount possessed. At least in the absence of some contrary provision of law, the language of § 48

- 904.04(a)(1) (A) would naturally be understood to mean that possession of

two ounces or less of marijuana is no longer a crime, without regard to whether the possessor intended to distribute the marijuana.

The government argues , however , that the 2015 amendments to the D.C. Code § 48

- 904.01 decriminalized only possession of marijuana for “ personal use

. ” According to the government, “ [ o ] nce someone forms the intent to distribute marijuana, that person has ceased to possess the ma rijuana merely for personal

use ” as authorized by the 2015 amendments. The weakness in this argument is that

t he words “personal use” do not appear in D.C. Code § 48

- 904.01 ; they are found only in the legislative history of the 2015 amendments , such as it exists , in the summary statement of the voter initiative. Cf. Zukerberg v. Bd. of Elections &
Ethics , 97 A.3d 1064, 1076 n.68 (D.C. 2014) (explaining that a ballot summary may be a means of discerning the voting public’s intent).11

Although we look to legislative history to “resolve a genuine ambiguity or a
claim that the ‘ plain meaning ’ [of statutory language] leads to a result that would be absurd, unreasonable, or contrary to the clear purpose of the legislation,” Hood , 28 A.3d at 559, we neither discern any ambiguity in the statute regarding the
conduct it define s as lawful , nor do we see any unreasonableness in reading the
statute as written. I ntent to distribute is almost always inferred from the
circumstances of possession

. See Abdulshakur v. District of Columbia , 589 A.2d 1258, 1263 (D.C. 1991) (observing that “[i]ntent is a state of mind, and must
ordin arily be proved circumstantially”)

. But the legislative history of the Marijuana Possession Decriminalization Amendment Act of 2014 reflects that the
Council was concerned about the reliance on circumstantial evidence that could be fully consistent with p ersonal use , particularly in the communities that have been disproportionately targeted with marijuana arrests

. See Marijuana Possession
Decrimina lization Amendment Act of 2014, D.C. Council , Report on Bill 20

- 409,

at 10

– 11 (2014) (explaining that “[t]oo many marijuana users have been accused of distribution merely because they carry their marijuana in a particular way or because they don’t have a bank account” and “routinely carry monthly rent payments or other large payments in cash on their person” ). T hus, one could reasonably conclude that , in order to shield from prosecution possession of less12

than two ounces of marijuana , it is necessary to make it lawful to possess that

amount even if intent to distribute could also be established

.

O ur discussion of D.C. Code § 48

- 904.01(a)(1) does not end here, because
the exception to the statute that makes it generally lawful to possess less than two ounces of marijuana ( with or without the intent to distribute ) is itself subject to an exception: Section 48

- 90 4.01(a)(1)(D) contains the proviso that “nothing in this
subsection shall make it lawful to sell, offer for sale, or make available for sale any marijuana or cannabis plants .” We acknowledge that , both in the statute as
enacted 8 and as codified, th is exce ption

- within

- an
- exception is typographically
located within sub paragraph (D) (making lawful the possession of only a subset of cannabis, 9 specifically, marijuana grown from cannabis plants lawfully possessed
within the home , as described in sub paragraph (C ) )

. But the text of this exception

-

8 Legalization of Possession of Minimal Amounts of Mari juana for Personal Use Initiative of 2014, D.C. Law 20

- 153 , § 2(a) (2014).

9 “[C]annabis” is defined under D.C. law as “all parts of the plant genus Cannabis, including both marijuana and hashish defined as follows,” while the term “marijuana” as defined refers specifically to “the leaves, stems, flowers, and seeds of all species of the plant genus Cannabis, whether growing or not.” D.C. Code § 48

- 901.02(3) ; s ee Hood , 28 A.3d at 559 (“[W]hen a legislature defines the language it uses, its definition is bi nding upon the court

. . . .” (internal quotation marks omitted)).13

within

- an
- exception plainly refers to the entirety of § 48

- 904.01(a)

. 10 Accordingly,
we understand § 48

- 904.01(a)(1) to permit an adult to possess two ounces or less
of marijuana regard less of their intent, so long as th at adult does not “sell, offer for sale, or make available for sale” the marijuana.

Because the government has not argued that the language “sell [or] offer for sale” in D.C. Code § 48

- 904.01(a)(1)(D) has any relevance to this case , we focus exclusively on the meaning of “make available for sale

. ” This phrase is no t defined in the D.C. Code. W e thus construe the words in this phrase “according to
their ordinary sense and with the meaning commonly attributed to them.” 11 Tippett

10 Further it would make little sense to apply this language only to conduct discussed within sub paragraph (D) instead of all of the lawful activities enumerated in sub paragraphs (A) throug h (D). By contrast, sub paragraph (C) contains a different exception

- within

- the

- exception, but , as it clarifies the specific conduct made lawful in that sub paragraph ( possession of cannabis plants within one home when more than one person lives and cultiva tes cannabis in the residence ), we do not read that exception to apply to the entirety of paragraph (a)(1). See D.C. Code § 48

- 904.01(a)(1)(C).

11 The parties did not cite, and we could not find, any analogs to this phrase in other laws decriminalizing marijuana possession that illuminate its meaning here

. Of the states that have legalized use of marijuana, only three use the language “made available for sale” in their marijuana regulations. The Colorado constitution, which was amended in 2012, sets ou t which acts are no longer criminal offenses under Colorado law and provides that marijuana plants may be possessed so long as the plants and the marijuana grown from the plants are not “made available for sale.” Colo. Const. art. 18, § 16(3) (b) . Califor nia and Michigan regulations that post

- date D.C. ’s 2015 amendments contain specific rules (continued...)14

v. Daly , 10 A.3d 1123, 112 6 (D.C. 2010) (en banc) (internal quotation marks omitted). According to its ordinary sense, the phrase “mak e available for sale” signals that a defendant must at the very least take some action beyond possession.

W e need not define the precise nature of the conduct that constitutes “mak [ing marijuana] available for sale,” because the government present ed no
evidence at trial that Mr. Kornegay engaged in any conduct , beyond possession,
that could possibly be characterized as his making the marijuana in his possession
available for sale. The evidence established that Mr. Kornegay was driving his vehicle when the officers pulled him over and found marijuana in the car and on his person

. As a matter of law , this evidence by itself did not establish that M r. Kornegay was making the marijuana available for sale at the time of his arrest

.

To respond to the government ’s arguments, however, we must explain what “making available for sale” is not. The government argues that the “making available for sale” exce ption

- within

- the

- exception for possession of two ounces or less of marijuana is satisfied if there is evidence that an individual ha s decided to
(...continued) for marijuana “made available for sale” at temporary marijuana or cannabis sales even ts. Cal. Code Regs. tit. 16, § 5602 (i)

– (j) (20 20 ); Mich . Admin. Code r. 420.27(1 1) ( 2020 )

.15

sell the marijuana in his possession to another person

. The government’s interpretation criminalizes an act th at th e statute says is not criminal (possession of less than two ounces) by virtue of a person’s merely conceiving of sell ing th at marijuana for even a fleeting moment

. But n o one would say that someone who
possess es an object

— e.g., a home, a car, a piece of furniture

— has made it available for sale simply by thinking about sell ing it

. More than mere thought, t he “ordinary sense” of the phrase requires some action

. Tippett , 10 A.3d at 1127.

Alternatively , the government argue s that possessing marijuana i n packaging (in this case in clear plastic bags) suffices as conduct to “ make marijuana available
for sale .” W ithout more, w e are un persuaded by this argument also. T he act of putting any object that might be sold, or is even intended for sale , i n to a co ntainer is not commonly understood as making that object available for sale

. For example,

a person making lemonade does not ma k e it available for sale simply by virtue of pouring it into paper cups. They are merely packaging the lemonade in a such way th at it could be sold , but they would have to take some sufficient additional action
or actions to communicate the availability of lemonade for purchase

. 12

12 We do not mean to suggest that “making available for sale” is equivalent to “offering for sale , ” but we need not explore the precise distinction between the two in this case.16

Accordingly , we hold that reliance on generic packaging alone will not suffice to show that marijuana was “ma [d] e available for sale” within the meaning of D.C. Code § 48

- 904.01(a)(1)(D)

.

Our dissenting colleague concludes that Mr. Kornegay made the marijuana available for sale because (1) Mr. Kornegay possessed the marijuana with intent to sell it; (2) t he marijuana was packaged so it could easily be sold; and (3) inferentially, he had previously sold marijuana. See post at 20. Even taking those circumstances as adequately supported by the evidence, we conclude that they fall short of making the marijua na available for sale. Our colleague des cribes Mr. Kornegay’s car as a “ mobile marijuana store, ” but there is no evidence in the
record either that Mr. Kornegay had previously sold marijuana from his car or that
he had arrangements to do so in the future. Id. Finally, we do not share our dissenting colleague’s view that it is hard to imagine what more Mr. Kornegay could have done, short of actually offering the marijuana for sale, to make the marijuana available for sale. For example, the government cou ld have presented evidence that he actually was using the car as a point of sale, that he was driving the car to a location where he hoped to find customers, or that he sent a confederate out on foot to look for customers to bring back to the car to purcha se marijuana. No such evidence was presented here.17

Based on our understanding of the plain language of D.C. Code § 48

- 904.01(a)(1), Mr. Kornegay did not commit the crime of possession with intent to distribute marijuana. Mr. Kornegay was old enough to le gally possess a lawful amount of marijuana , the amount he possessed did not exceed the limit under the
law , and he did nothing that could be construed as making the marijuana he possessed available for sale so as to render his conduct unlawful. Accordingl y , we conclude that Mr. Kornegay ’s PWID conviction cannot stand

.

We have conducted this analysis under § 48

- 904.01(a)(1 ) , but the government suggests that Mr. Kornegay ’s convict ion for PWID can be upheld
under § 48

- 904.01(a)(1A)

. That provision carves ou t from the definition of “controlled substances” marijuana weighing two ounces or less “ in the personal possession ” of a person twenty

- one years of age or older, D.C. Code § 48

- 904.01(a)(1A)(A), but excepts (and thus keeps within the definition of a contro lled substance) marijuana “sold or offered for sale or made available for sale. ” D.C. Code § 48

- 904.01(a)(1A) (B)

. 13 The government reasons that the marijuana was

13 This provision is not surplusage in light of D.C. Code § 48

- 90 4.01(a)(1) (D) because this paragraph amends the definition of “controlled substance” and “controlled substances” throughout the District of Columbia Code , including, for example, in D.C. Code § 48

- 903.02, which requires anyone manufacturing, dispensing, or distributing a controlled substance to regist er annual ly with the Mayor

. See Feaster v. Vance , 832 A.2d 1277, 1283 (D.C. 2003) (continued...)18

still a controlled substance since it was no longer “i n [ his ] personal possession” by
dint of his stated intent to give it to others , adverting back to its “not

- for

- personal

use” argument, see supra pages 10

– 12

.

We need not precisely define the bounds of “personal possession” here. 14 For the purposes of this case, we are satisfied that nothing in § 48

- 904.01(a)(1A) undermines the conclusion we have previously reached : even if we were to assume for purposes of discussion that the marijuana at issue was not in Mr. Kornegay’s “personal possession ”

— a proposition of which we are doubtful, given
tha t it was found in Mr. Kornegay’s pants and within his immediate reach in the driver’s side door , see Johnson , 40 A.3d at 14

— that would only mean that the marijuana met the legal definition of “marijuana” for purposes of D.C. Code § 48

- 904.01(a)(1). I t wou ld not mean, or even tend to imply, that Mr. Kornegay was (...continued) (explaining that, when interpreting a statute, “each provision of the statute should be construed so as to give effect to all o f the statute’s provisions” (internal quotation marks omitted)).

14 We note that the government’s interpretation of D.C. Code § 48

- 904.01 (a)(1A)(A)(i) is in tension with sub paragraph (a)(1A)(B) . If the exclusion of two ounces of marijuana from the defini tion of “controlled substance” u nd er (a)(1A) (A) (i) did not apply if an individual had an intent to sell it, it would undercut (a)(1A)(B) , which states that the exclusions of marijuana and cannabis plants from the definition of a “controlled substance” deta iled under (a)(1A)(A )(i

– iii) extend up to the point that the marijuana or cannabis plants are “ sold or offered for sale or made available for sale.”19

making the marijuana available for sale at the time of his arrest such that his conduct violated the statute, especially since “made available for sale” in D.C. Code § 48

- 904.01(a)(1A)(B) is likely to have the same definition as “make available for sale” does in D.C. Code § 48

- 904.01(a)(1)(D).

IV.

U nder D.C. Code § 48

- 904.01(a)(1)(A), Mr. Kornegay’s possession of 1.73 ounces of marijuana was not criminal as a matter of law. Accordingly , we reverse the judgment of the trial court and remand for the trial court to vacate Mr. Kornegay’s conviction

.

So ordered

.

S TEADMAN , Senior Judge , dissenting : To my mind, the determinative aspect of this ap peal is the applicability to this case of the exception in D.C. Code § 48

- 904.01(a)(1)(D) relating to “make available for sale.” I disagree with my colleagues’ conclusion on that point.

This phrase in context applies to action that is short of an “offer to sell” and20

yet is prohibited. But how short? The statutory language and the legislative history, such as it is, appear to reflect a determination to continue banning the commercial distribution of marijuana. In my view, at the very least, when the

mar ijuana has been transmuted into a format and product that is readily available for sale in the usual way and is possessed in circumstances where such a sale can readily be effectuated , and with the intent to make such a sale, it has been made
available for sale within the meaning of the statute.

The evidence is to be looked at as a whole, not piece by piece. In this case, appellant was found in his car in possession of three packets of marijuana packaged in a manner ready for sale, two of which were con cealed in his “groin area.” He had a supply of additional packets at hand. He had in his pocket a sizable amount of cash in multiple denominations. And, importantly, he had under his seat a weighing device containing marijuana residue. An expert testif ied that all these circumstances were consistent with a typical seller of marijuana. Appellant’s car was effectively a mobile marijuana store. It is hard to imagine what more could be done with the marijuana that would make it “readily available
for sale ” without an actual offer of sale. I respectfully dissent.