Bolden v. United States

835 A.2d 532, 2003 D.C. App. LEXIS 683, 2003 WL 22671719

• Court: District of Columbia Court of Appeals
• Decided: November 13, 2003
• Docket: 97-CM-1589, 97-CM-1708
• Status: Published

Opinions

PER CURIAM:

After a bench trial, James Andrews and Tawanna Bolden were convicted of possession of marijuana, in violation of D.C.Code § 48-904.01(d) (2001). They both argue on appeal that the government failed to present sufficient evidence to support a finding of guilt beyond a reasonable doubt, based on either a constructive possession or an aiding and abetting theory. We agree that the evidence was insufficient as to Andrews, but we sustain Bolden’s conviction.

I.

On February 7, 1997, at 3:55 p.m., United States Park Police officers executed a search warrant at the house where appellants lived on 1124 Third Street, S.W. When the police entered, one officer saw “a cloud of smoke throughout the apartment” that had the odor of burning marijuana; another saw the same “thick gray cloud [of marijuana smoke] throughout the downstairs area.” As many as fourteen persons including eight adults were in the house, approximately five of them males, some of whom were “running about” in the first floor area. Altogether the police seized nearly 1000 grams of marijuana, packaged and loose, that had been deposited in different parts of the house. Specifically, they seized 160 grams of loose marijuana and 184 grams packaged in ziplocks from the dining room table; 170 grams in ziplock bags from the floor next to the dining room table; 146 loose grams and 106 grams packaged in 46 ziplock bags from the kitchen countertop; 172 grams packaged in 47 ziplocks contained in freezer bags from a trash can at the top of the stairs to the second floor; 78 additional loose grams in a sandwich bag from the same trash can; ten grams in two ziplocks lying on the stairs themselves; a ziplock containing six grams from behind a bookcase in the right rear bedroom; and one ziplock from the person of a codefendant as well as seven grams from behind where he was seated. From the officers’ observations, “bagging of marijuana was going on” in the kitchen and dining room area, involving what one officer described as “massive amounts of ... marijuana [in plain view].” Also seized was over $900 in cash. Appellant Bolden was arrested on the second floor standing in the hallway. Appellant Andrews was arrested downstairs lying on the floor, partially in a closet.

. Bolden was the lessee of the house and lived there with her children. Andrews lived in a downstairs bedroom with Bol-den’s permission. Patricia Baker, a friend of Andrews and Bolden, had come to the house that day to visit Andrews. She testified that she and Andrews left the house together and remained away for two hours or more. In doing so, they left the front door unlocked. Before leaving, Baker had observed no marijuana or drug activity in the house. She and Andrews returned to the house approximately five minutes before the police arrived. The trial judge credited Baker’s testimony as just described.

II.

In challenging the sufficiency of the evidence, appellants face a difficult burden. We examine the record in the light most favorable to the government, drawing all reasonable inferences in the prosecution’s favor. See Cash v. United States, 700 A.2d 1208, 1211 (D.C.1997). We defer to the right of the judge, as the trier of fact, to determine credibility and weigh the evidence. See Mitchell v. United States, 683 A.2d 111, 114 (D.C.1996). We may reverse only if there is “no evidence upon which a reasonable mind could fairly conclude guilt beyond a reasonable doubt.” Harris v. United States, 668 A.2d 839, 841 (D.C.1995).

A.

Bolden contends that she could not fairly be convicted either as a principal (ie., on a theory of actual or constructive possession) or as an aider and abettor. The government counters that she could properly be found guilty as an aider and abettor. We agree with the government.

To establish that Bolden aided and abetted the drug possession, “the government was required to offer proof that: (a) a crime was committed by someone; (b) [Bolden] assisted or participated in its commission[;] and (c) [her] participation was with guilty knowledge.” Garrett v. United States, 642 A.2d 1312, 1316 (D.C.1994) (quoting Wright v. United States, 508 A.2d 915, 918 (D.C.1986)). Although mere “presence at the scene of a crime, even when coupled with knowledge that a crime is being committed, is generally not enough to constitute aiding and abetting,” Montgomery v. United States, 384 A.2d 655, 658 (D.C.1978), “presence ... plus conduct which designedly encourages or facilitates a crime will support an inference of guilty participation [in the crime] as an aider and abettor.” Garrett, 642 A.2d at 1317 (citations omitted).

Here, the magnitude and duration of the drug activity taking place in the house while Bolden was present as the lessee and main occupant enabled Judge Webber reasonably to find that she both knew of the possession of the marijuana and, by facilitating it, had associated herself with the unlawful activity. First, as to knowledge, the judge could readily find that in a house thick with the smell of burning marijuana, the activity of five men smoking and packaging the drug did not escape Bolden’s knowledge. Indeed, because the smoke appeared to pervade the house and loose and packaged marijuana were found upstairs as well, it was a reasonable inference that some of the smoking may have occurred there, where Bolden, according to her testimony and Baker’s, spent most of her time. This is not to suggest that Bolden herself had been smoking or handling the marijuana; the evidence does not support that inference. But actual use or possession is not necessary to show aiding and abetting. See, e.g., Greer v. United States, 600 A.2d 1086, 1088 (D.C.1991). Bolden admitted that she knew the smell of marijuana, and the judge was not obliged to accept her testimony that she was unaware of its presence because she was asleep all the while the activity — and the general commotion of fourteen people in the house— was taking place. Furthermore, “[t]he natural inference is that those who live in a house know what is going on inside, particularly in the common areas,” United States v. Jenkins, 289 U.S.App. D.C. 83, 87, 928 F.2d 1175, 1179 (1991), and particularly when no effort has been made by the main actors to conceal their activity.

Equally reasonable is the trial judge’s finding that Bolden had made the house available to others for the illicit activity. She was the lessee and, as such, the person with the authority to control access to and use of the premises. No argument was made, certainly none the judge was obliged to credit, that she was disabled from exercising her power to eject the temporary occupants during the two hours or more that the activity continued. In Greer, supra, the defendant argued — as Bolden does — that even though the apartment belonged to her, her “mere presence” in close proximity to drugs packaged for distribution was insufficient to convict her. We responded that Greer’s “presence at the scene is not what ma[de] her an aider and abettor”:

The critical element of the government’s proof is the fact that appellant made her apartment available to others for the intended distribution of cocaine. That was enough to make her an aider and abettor of possession with intent to distribute ....

600 A.2d at 1088. Here Judge Webber found implausible the supposition “that approximately five males would enter Bol-den’s house sometime between two and four o’clock in the daylight hours to smoke and package ... large amounts of marijuana ... without [her] ... consent.” Bol-den, who lived in the house with her children, acknowledged that she kept the door to the house locked most of the time and that generally “nobody” had “access to [the] house” without her permission. Although the judge did not infer that Bolden herself had opened the door to allow the men entry — he credited Baker’s testimony that she had left the door open when leaving — he reasonably could find, and did, that an occupant and leaseholder otherwise as conscious of her security as Bolden would not have unwillingly let outsiders occupy large portions of her house for up to two hours to package and smoke marijuana without taking steps to stop them. Even if Bolden only acquiesced in the conduct, she facilitated activity of a kind that depends on privacy, at least from the eyes of law enforcement, thereby making herself an aider and abettor. See id. (“[A] reasonable juror could find from the evidence that appellant facilitated, and therefore aided and abetted, the possession of cocaine by others with intent to distribute it”); see also Earle v. United States, 612 A.2d 1258, 1270 (D.C.1992); United States v. LaGuardia, 774 F.2d 317, 319 (8th Cir.1985) (“The jury reasonably could find that as the lessee and an occupant of the apartment, [codefendant Gato] had control of the premises and permitted areas of the home to be used in the concealment of the drugs.”). Were we to require — with our dissenting colleague — more direct or immediate involvement in the illicit activity to sustain Bolden’s conviction, we would ignore this important purpose of accomplice liability to punish criminal enabling.

B.

We reach a difference conclusion as to Andrews. The government argues that he constructively possessed the marijuana or, alternatively, aided and abetted the possession. To establish constructive possession there must be direct or circumstantial evidence that the accused “(1) knew the location of the drugs, (2) had the ability to exercise dominion and control over them, and (3) intended to exercise such dominion and control.” Earle, 612 A.2d at 1265. Mere proximity to illegal drugs is not enough to prove constructive possession when “an individual is one of several people found by the authorities on the premises together with the substance.” Wheeler v. United States, 494 A.2d 170, 172 (D.C.1985); see also Bernard v. United States, 575 A.2d 1191, 1195 (D.C.1990). There must be “something more in the totality of the circumstances- — a word or deed, a relationship or other probative factor — that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the [person] intended to exercise dominion or control over the drugs, and was not a mere bystander.” Rivas v. United States, 783 A.2d 125, 128 (D.C.2001) (en banc) (emphasis in original).

In arguing that Andrews constructively possessed the marijuana, the government relies on the officers’ observation on entering that a cloud of marijuana smoke filled the rooms and that Andrews was found lying in front of a closet in his bedroom. This evidence alone does not prove that he had the requisite connection with the drugs. Judge Webber credited testimony that Andrews had returned to the house with Baker only five minutes before the police entered, and that Baker had seen no drug activity in the house before they left. The police found no marijuana or drug packaging paraphernalia in Andrews’ bedroom or on his person. Baker testified that Andrews had gone to his room directly on returning, and no other evidence linked him or his bedroom to the people in the kitchen or the drugs found in other parts of the house. While the evidence fairly supported an inference that Andrews knew the illicit activity was going on, his presence in the house so briefly while it occurred was insufficient to impute to him “some appreciable ability to guide the destiny of the drug[s]” being packaged and smoked by others. United States v. Staten, 189 U.S.App. D.C. 100, 105, 581 F.2d 878, 883 (1978); see Greer, 600 A.2d at 1087-88 (holding evidence insufficient to support finding of constructive possession where the facts did not show that defendant “ ‘had any personal role in the handling of the cocaine’ ” but, “[a]t most ... that others came to her apartment to sell drugs, with her permission, [and] there was no proof that she had any connection with the drugs themselves”) (citation omitted).

Nor was the evidence sufficient to convict Andrews as an aider and abettor. Unlike Bolden, he was not named on the lease and, indeed, paid no rent; he merely compensated Bolden — in a manner of speaking — by doing household chores. Although the trial judge found that Andrews had the authority to admit personal guests (such as Baker) to the house and to exercise some control over the premises, he was not a leaseholder. Andrews was himself a guest to the house, and, accordingly, his authority to admit or eject other guests was plainly inferior to that of the leaseholder, Bolden. Moreover, unlike Bolden who had been in the house throughout the drug activity, Andrews had been present for only five minutes when the police arrived. In these circumstances, his failure to take steps to end the illicit activity — on which the government relies — cannot be viewed as facilitation without stretching that aspect of aiding and abetting to the breaking point.

Accordingly, the judgments of conviction are

Affirmed as to Bolden, and reversed as to Andrews; case remanded with directions to enter a judgment of acquittal as to Andrews.