concurring:
I agree that appellant’s conviction should be reversed, but not precisely for the reasons set forth in Judge Rogers’ opinion for the court. I start from the premise that, as a matter of law, the simultaneous possession of two quantities of the same drug constitutes only one offense. If there was ever any doubt about this, that doubt was laid to rest several months ago by our decision in Briscoe v. United States, 528 A.2d 1243 (D.C.1987), in which we held that a defendant who possessed six tinfoil packets of marijuana in the kitchen and four containers of marijuana in bulk in the bedroom of the same apartment was guilty of only one act of possession, and hence only one statutory violation. Likewise in this case, possession of the marijuana in the cigarette and the marijuana in the tinfoil packets was a single act, punishable only once. Legally, the two quantities of marijuana merged into one, so that it would not matter if some jurors found that appellant possessed only the cigarette while others found that he possessed only the tinfoil packets. Were it not for the peculiar circumstances in which the verdict was rendered in this case, I would hold that Bris-coe controls and that we should affirm the conviction. See also, e.g., Cormier v. United States, 137 A.2d 212, 216-217 (D.C.1957) (simultaneous carrying of two pistols without a license for either of them constitutes only one violation of statute which proscribes carrying “a pistol” without a license).
What makes this case different is the return of the partial verdict, followed by the separation of the PCP charge from the marijuana charge when one of the jurors was taken ill. Since the evidence showed that the PCP was associated only with the marijuana in the tinfoil packets, the lack of a verdict on the PCP charge makes it impossible for us, as a reviewing court, to determine whether the marijuana verdict was based on the cigarette or the tinfoil packets. This is a critical issue because, as Judge Rogers points out, appellant raised different defenses with respect to the two quantities of marijuana. Thus we cannot say that the manner in which the jury reached its verdict is of no legal consequence — as we did, for example, in Tyler v. United States, 495 A.2d 1180, 1182 (D.C.1985), where we held that even if some jurors found the defendant guilty as a principal and others found him guilty as an aider and abettor, reversal was not required because an aider and abettor is deemed to be a principal as a matter of law.
I agree in essence with Judge Rogers’ observation, ante at 1235, that this case presents the flip side of Hack v. United States, 445 A.2d 634, 641 (D.C.1982), and on that basis I concur in reversal. I emphasize, however, that this is a unique case with special facts, and that the general rule, applicable to almost all cases, is that announced in Briscoe.
*1237I am in full agreement with the remainder of Judge Rogers’ opinion, dealing with Brown’s other claims of error, and also with footnote 2 on page 1233.