concurring in part and dissenting in part:
I agree with my colleagues that a remand is appropriate. However, I would not set aside the convictions, but rather would remand the record for a hearing as to whether appellant knowingly and intelligently entered into the stipulation which formed the basis for the findings of his guilt. I write this statement in part because the majority opinion does not state precisely what reversible error occurred, and in part because of my related belief that it unwarrantedly implies a degree of dereliction on the part of the trial court.
There had been separate hearings on appellant’s codefendants’ motions to suppress. Thereafter, rather than having the same witnesses testify again at a trial, the parties followed the altogether acceptable practice of entering into a stipulation. It read in its entirety:
STIPULATION
The United States, through its counsel, the United States Attorney for the District of Columbia, and the defendants, Michael Stover, Linda Jordan, and Robert Jordan, through their counsel, agree to the following stipulation of facts:
(1) On May 9, 1978, at approximately 12:15 a. m., officers of the Metropolitan Police Department executed a search warrant at the premises at 251 58th St., N.E., Apartment 34, Washington, D.C.
(2) That apartment is leased to defendant Linda Jordan, who lives there alone with an infant.
(3) Upon entering the living room, the officers saw defendants Michael Stover and Linda Jordan seated on. the living room sofa. Defendant Robert Jordan was seated nearby on a radiator. All three defendants were within arms [sic] reach of a coffee table where the officers found a usable quantity of marijuana and phencyclidine in plain view.1 DEA Chemist Norma Coleman analyzed the drugs seized from the coffee table confirming that they were marijuana and phencyclidine.
(4) On the couch that defendant Stover and Linda Jordan were seen sitting [s/e ], the police recovered a .38 caliber Smith & Wesson Revolver (Serial #2J6323), that was fully operable. This was verified by a test-fire on May 15, 1978. Also on the couch police recovered 10 live rounds of ammunition in the pocket of a blue jacket.
(5) Defendant Stover admitted ownership of the gun and the jacket. He stated that he had bought the gun the day before from a friend. Defendant Stover did not have, a license to carry a pistol issued by the police as provided by 22 D.C.Code 3206 nor did defendant Stover have the pistol or ammunition registered in accordance with the Firearms Control Regulation Act of 1975, §§ 201(a), 601, 706.
(6) Nothing in this stipulation is intended to alter the testimony given at the motions hearing or alter defendants’ right to challenge the Court’s ruling on the motion[s] to suppress.
The facts thus stipulated to rather clearly support the findings of guilt of appellant’s codefendants. As to appellant, however, there is some validity to the majority’s observation that “the sufficiency of the evidence is clearly a troublesome [issue].”2 Ante, at 875. Defense counsel might well have been pleased by the stipulation; he may have felt that it afforded his client a greater likelihood of ultimate success than a trial would have. Indeed, the exclusive thrust of appellant’s brief is that the stipulated facts are insufficient to show a know*877ing constructive possession of the drugs by him.
The government phrased the issue presented by this appeal quite differently than appellant stated it.3 The government considers the issue to be:
Whether the trial court committed plain error in failing to enter a judgment of acquittal sua sponte, when appellant failed to move at any time for a judgment of acquittal, and when the stipulated evidence showed that appellant and two others were within arm’s reach of a coffee table where the arresting officers found a usable quantity of marijuana and phencyclidine in plain view.
Although both appellant and his attorney signed the stipulation, defense counsel was not present at the hearing which led to the approval of the stipulation by the court. Another attorney was “standing in” for him at that proceeding.4 The trial judge made a considerable effort to ascertain that the three defendants understood the significance of their entering into the stipulation; only a very small portion of the trial judge’s careful explanatory remarks are quoted in the majority opinion. Immediately following the last statement by the trial judge which is quoted by the majority (ante, at 875), the following statements were made:
MR. ROBERT JORDAN [appellant]: I understand that.
THE COURT: Do you understand it also, the other gentleman? You have to speak out loud, because we’re on tape.
MR. STOVER [codefendant]: Yes, I do.
THE COURT: Okay. Do any of you have any question? Do you all wish the Court to sign this stipulation? You, ma’am?
MS. JORDAN [codefendant]: Yes.
THE COURT: And, Mr. Stover?
MR. STOVER: Hm-hm.
THE COURT: All right. The Court will approve the stipulation. The Court finds each defendant guilty as charged, refers the matter to the Probation Department for presentence investigation and report and a date, it doesn’t have to be the same date, at counsel’s convenience.
ATTORNEY: We’ve all agreed, your Honor, on December 6th, if that’s agreeable with the court.
As the government’s statement of the issue recognizes, no motion for a judgment of acquittal was made on appellant’s behalf.5 While appellant’s counsel appears to remain satisfied with the stipulation and his argument that it is inadequate to support the convictions, I am sufficiently troubled by counsel’s absence from the stipulated trial to be of the opinion that the record should be remanded for a determination as to whether appellant’s adoption of the stipulation in lieu of demanding a trial was knowing and voluntary. However, I respectfully dissent from setting aside the conviction and ordering that a trial be held.
. The “plain view” thus having been stipulated to, it is inappropriate for the majority to look to the return on the search warrant to raise a question with respect thereto. See ante, at 874 n.3. •
. But see note 5, infra.
. Appellant’s brief states the question presented to be as follows:
Was the defendant, by his presence in the apartment of another, guilty of constructive possession of illicit drugs found in the apartment as a result of a search warrant.
. We do not know the identity of that attorney (other than that he was counsel for one of appellant’s two codefendants) because the proceedings were tape recorded and counsel did not state their names.
.That being the case, a plain error standard of review would be applied in considering a challenge to the sufficiency of the evidence. See, e.g., In re J.N.H., D.C.App., 293 A.2d 878, 879-80 (1972); Foster v. United States, D.C.App., 290 A.2d 176, 177 (1972); Battle v. United States, 92 U.S.App.D.C. 220, 221, 206 F.2d 440, 441 (1953). Cf. Michaels Enterprises, Inc. v. United States, 376 U.S. 356, 357, 84 S.Ct. 783, 784, 11 L.Ed.2d 755 (1964).