Lowman v. United States

632 A.2d 88, 34 A.L.R. 5th 805, 1993 D.C. App. LEXIS 240, 1993 WL 384972

• Court: District of Columbia Court of Appeals
• Decided: September 30, 1993
• Docket: 92-CF-238, 92-CF-481
• Status: Published

Opinions

ROGERS, Chief Judge:

Appellants Katrina M. Lowman and Richard Lee Carter were convicted by a jury of distribution of cocaine. D.C.Code § 33-541(a)(1) (Repl.1988). Lowman contends on appeal that the trial judge erred in denying her motion for a judgment of acquittal, giving an aiding and abetting instruction, and refusing to instruct the jury that certain jury instructions applied only to her and others applied only to her co-defendant, Carter. Carter contends that the trial judge also erred in denying his motion for a judgment of acquittal. We affirm.

I.

Officer Johnson testified that while working undercover on July 30, 1991, he approached appellant Lowman in the 1400 block of Columbia Road, N.W., and asked her if she knew “anyone with some twenties,” meaning twenty-dollar bags of cocaine. Lowman replied, “[y]es, I will take you up the street.” Lowman then approached appellant Carter and asked him, “do you have any twenties?” He responded, “[y]es. Wait over there by the fence.” Carter walked up the street and was met by a juvenile while Lowman and the officer waited by a fence. Carter waved to Lowman and the officer, and both walked towards him.

The officer testified that “Carter displayed] a plastic bag, and the juvenile reached into the bag and retrieved a small object.” Carter then proceeded to walk up the street, and the juvenile walked back towards the officer and Lowman and handed the officer “a loose rock-like substance.” The officer gave the juvenile twenty dollars.¹ Lowman was standing next to the officer during this period and only walked away after the drug transaction. She did not, however, handle the drugs or the money. According to Officer Johnson and other officers, the juvenile was arrested while walking with Carter, Carter was arrested shortly af-terwards, and Lowman was arrested later, separately from the juvenile and Carter.²

The government also offered expert testimony that a runner brings the buyer to the seller and the holder holds the drugs and/or money, but that it is not inconsistent for runners and holders to have no money or drugs on them when they are arrested.

Lowman testified that she knew the juvenile, and that she had seen Carter before July 30, 1991, but she did not know him personally. She explained that the officer approached her and asked if she knew anyone who had “20 rock.” She told the officer that she did know people who were selling drugs, and she “took him down the street to show him who all out there had some.” Carter and the juvenile walked by, the officer asked if one of them had drugs, and one of them said yes. Lowman was not sure whether Carter or the juvenile answered the officer. “So all of us stood_ The juvenile came back. He said officer [sic], the three of them walked that way.... I turned around ... I was going through the cut.” Lowman claimed that she did not expect to receive money or drugs for helping the officer and she denied acting as a runner. She admitted, however, that she understood that a drug transaction would take place, but she claimed that she did not actually see it because she was standing behind the others. Lowman explained that she waited with the others during the drug transaction, not because she wanted to be sure the sale went smoothly, but because she was talking to some friends. She later told a friend that “I don’t know why they locked [Carter] up because I didn’t see him with no drugs, I didn’t see him do nothing.”

Carter called a former girlfriend as a witness. The girlfriend testified that on the evening of July 30, 1991, she and her friend were with Carter and the juvenile almost continuously, except for a few minutes when she made a telephone call, until Carter and the juvenile were arrested. The girlfriend did not see Carter or the juvenile sell drugs.

Carter testified that on July 30, 1991, he went to a liquor store and played video games with the juvenile, his girlfriend, and a friend of his girlfriend’s, and then all four of them walked along Columbia Road. Carter saw and spoke with another friend while his girlfriend was on the telephone. He did not see the juvenile sell drugs, nor did he speak with Lowman. According to Carter, “after the undercover officer asked if anybody had any 20’s [the juvenile] said yes and stopped. I continued to walk.”

II.

Sufficiency of the Evidence. Viewing the evidence, as we must, in the light most favorable to the government, there is no basis on which to conclude that no reasonable juror could have found both appellants guilty beyond a reasonable doubt. See, e.g., Green v. United States, 608 A.2d 156, 158 (D.C.1992); Williams v. United States, 604 A.2d 420, 421 (D.C.1992); Wright v. United States, 508 A.2d 915, 918 (D.C.1986). The court must defer to the jury’s right to weigh evidence, determine credibility, and draw inferences from the testimony presented. See, e.g., Green, supra, 608 A.2d at 158; Wright, supra, 508 A.2d at 918. The government is not required to rebut all possible inferences of innocence. See, e.g., In re T.J.W., 294 A.2d 174, 176 (D.C.1972).

A.

A reasonable jury could reasonably find Lowman guilty of distributing cocaine on an aiding and abetting theory, which the government stressed in closing argument. Lowman admitted that she intended to help the undercover officer find people who were selling the illegal drugs that the officer wanted to buy. According to officers Johnson and Etienne, Lowman, after inquiring if Carter had such drugs, stayed with undercover Officer Johnson until the drug transaction was completed and then she left. The court has recently upheld a conviction under similar circumstances.

In Griggs v. United States, 611 A.2d 526, 527, 529 (D.C.1992), the defendant was found guilty of distributing a controlled substance, on an aiding and abetting theory, where an officer approached the defendant and asked if anyone was “working,” the defendant escorted the officer to a seller, and the defendant told the seller that the officer “wanted one twenty.” Id. at 527. The court stated that:

[the defendant] accompanied [the officer] to [the seller], introduced [the officer] as his cousin, and waited while [the officer] purchased crack cocaine from him. This conduct clearly “encourage[d] and faeili-tate[d]” [the seller’s] crime of distribution. We conclude that the jury’s verdict [that the defendant aided and abetted distribution of a controlled substance] was supported by the evidence.

Id. at 529. Griggs is controlling here.³ See also Stevenson v. United States, 608 A.2d 732, 732-33 (D.C.1992) (defendant stood nearby during drug transaction, seller immediately gave money from sale to defendant; aiding and abetting because conduct was intended to encourage and facilitate); United States v. Monroe, 301 U.S.App.D.C. 100, 990 F.2d 1370, 1372 (1993) (defendant asked if officer was “looking” and referred him to eo-defendant); cf. Wright, supra, 508 A.2d at 918 (presence and holding what was probably stolen property); In re J.N.H., 293 A.2d 878, 880 (D.C.1972) (presence, a “menacing” position in front of shop counter, fleeing with armed man). Although Lowman did not introduce the buyer and seller to each other, as occurred in Griggs, supra, Lowman brought the two together — a willing buyer to a willing seller — and she specifically asked Carter if he had any twenty-dollar rocks, the precise drugs that the undercover officer had said he wanted to buy.

The court recently stated in Minor v. United States, 623 A.2d 1182, 1187 (D.C.1993) (per curiam), that “being an agent of the buyer is not a defense to a charge of distribution.” In that case the defendant took a more active role than Lowman since he quoted a price to the buyer and there was “some kind of exchange” between the defendant and the seller after the sale, implying that the seller and the defendant had a relationship regarding the sale of drugs. Id. at 1184. Even were Lowman implicitly arguing that she was aiding and abetting the buyer rather than the seller, the jury could reasonably find that Lowman encouraged and facilitated the sale of the drugs and, therefore, that she was aiding and abetting the seller’s distribution of cocaine. Lowman brought the buyer to the seller, asked the seller if he had drugs in the quantity sought by the buyer, remained during the actual sale, and left almost immediately after the sale. There was evidence that Lowman knew one of the sellers and had previously seen the other seller. While Lowman did not vouch for the buyer, as the defendant did (or represented that he could) in Griggs, supra, 611 A.2d at 527, it cannot be reasonably argued that in Griggs the defendant was assisting the seller while Lowman was aiding only the buyer.⁴

The cases on which our dissenting colleague relies are distinguishable. In several cases, the defendant merely gave the buyer the name and address of a seller and the buyer went alone to meet the seller, raising the inference that the defendant was not really concerned about whether or not the sale occurred and was only interested in helping the buyer.⁵ See infra dissenting opinion, at 99-101. Lowman, by contrast, not only brought the buyer to the seller and asked whether the seller had what the buyer wanted to purchase, but she also waited with the buyer while the sale occurred. See Winston, supra, 687 F.2d at 835 (defendant was “the catalyst who put [the] transaction together,” introducing the parties, quoting a price, and giving rise to an inference that he “acted with the specific intent to facilitate the sale”). Unlike our dissenting colleague, infra at 98, we do not read the legislative history of the District of Columbia’s statute to suggest more than that the Council of the District of Columbia was distinguishing between possession and distribution, between first and repeat offenders, and between dealers who sell to adults and those who sell to minors. See Counoil of the District of Columbia, Report of the Committee on the JudiCiary on Bill 4-123, the “District of Columbia Uniform Controlled Substances Act of 1981,” at 5, 6. The concern our dissenting colleague addresses, namely the distinction between a person who aids a buyer and a person who aids the seller of illegal drugs, is not found in that history. The humanitarian and policy considerations favoring the dissent’s approach are, in our view, more properly for the legislature, rather than the court, to weigh in deciding whether to amend existing law. We are unpersuaded at this point that the court’s interpretation of aiding and abetting might result in a buyer of illegal drugs being guilty of the crime of distribution. See United States v. Swiderski, 548 F.2d 445, 451 (2d Cir.1977) (one who receives drugs does not aid and abet distribution “since this would totally undermine the statutory scheme. Its effect would be to write out of the Act the offense of simple possession”); dissenting opinion at 96. Nor do we concede, as implied by the dissent at 97, that the statutory language is ambiguous.⁶ Rather, the statutory language covers a broad class of persons, providing, with exceptions not relevant here, that “it is unlawful for any person knowingly and intentionally to ... distribute ... a controlled substance.” D.C.Code § 33-541(a) (Repl. 1989). See also Minor, supra, 623 A.2d at 1186-87 (purchasing agent defense has been eliminated); Long v. United States, 623 A.2d 1144, 1149 n. 10 (D.C.1993). Under controlling authority we conclude that there was sufficient evidence that Lowman was aiding and abetting the distribution of cocaine.

B.

A reasonable jury could also reasonably find appellant Carter guilty of distributing cocaine. Officer Johnson testified that Carter replied affirmatively when Lowman asked him whether he had any drugs, told the officer and Lowman to wait by a fence, and then waved them to come over. He also testified that the juvenile removed something from a bag that Carter was holding. See Mason v. United States, 256 A.2d 565, 566-67 (D.C.1969) (supplying drugs to another, who sold them to undercover officer). Carter admitted being with the juvenile when the officer asked about drugs, and he was with the juvenile when the juvenile was arrested. The juvenile was found with the twenty dollar bill that the officer had used to buy the drugs. The jury could reasonably infer, therefore, that when Carter held out a bag from which the juvenile removed something, Carter was giving the juvenile drags to sell to the officer. Cf. Green, supra, 608 A.2d at 158. The evidence gave rise as well to a reasonable inference that what the juvenile removed from the bag held by Carter had subsequently field-tested positive for cocaine. Contrary to Carter’s contention, it was unnecessary for the government to show that Carter possessed drugs; the government needed only to show that he aided and abetted the juvenile’s sale of the drugs. See id. at 157, 158, 160; cf. Greer v. United States, 600 A.2d 1086, 1088 (D.C.1991).

III.

Appellant Lowman’s other contentions are unpersuasive.

Aiding and Abetting Instruction. The trial judge did not err in giving the aiding and abetting instruction over objections by defense counsel. An aiding and abetting instruction may be given where it appeal’s that there was a principal involved, regardless of whether the defendant is charged as a principal or an aider and abettor.⁷ Judge v. United States, 599 A.2d 417, 420 (D.C.1991); Stewart v. United States, 439 A.2d 461, 463 (D.C.1981); cf. 22 D.C.Code § 22-105 (Repl.1989); Davis v. United States, 498 A.2d 242, 246 (D.C.1985). The government argued to the jury that Lowman was aiding and abetting a drug transaction. Although Lowman did not handle money or drugs, she brought the officer to the sellers. Hence, there was evidence from which the jury could reasonably find that she was not the principal but she was instead aiding and abetting a drug sale.

A defendant may be found guilty of aiding and abetting if a crime was committed, the defendant assisted or participated in the crime, and she or he did so with guilty knowledge. Wright, supra, 508 A.2d at 918 (citation omitted); Gillis v. United States, 586 A.2d 726, 728 (D.C.1991); Byrd v. United States, 364 A.2d 1215, 1219 (D.C.1976); see also Payton v. United States, 305 A.2d 512, 513 (D.C.1973). These elements have been met in appellant Lowman’s case. The dissent’s reliance on United States v. Salamanca, 300 U.S.App.D.C. 384, 393, 990 F.2d 629, 638 (1993), see dissenting opinion at 95 n. 4, is misplaced because that case involved a defendant’s mere presence during a crime whereas the evidence in the instant case showed more than mere presence. See Greer, supra, 600 A.2d at 1088; Creek v. United States, 324 A.2d 688, 689 (D.C.1974); Perry v. United States, 276 A.2d 719, 719-20 (1971).⁸

Lowman maintains, however, that she “was not an active participant; at best only a naive person on the street, acting as an unknowing participant, i.e. a good Samaritan.” The evidence did not require the jury to accept this assertion. Lowman admitted that she knowingly facilitated a drug transaction by taking the undercover officer to someone she knew was selling drugs. She inquired whether appellant Carter and the juvenile had the drugs that the officer was seeking to buy and then she remained with the officer until the drug transaction was completed. A reasonable jury could reasonably have found that her actions and presence were intended to facilitate a drug sale.

Lowman’s reliance on Creek, supra, 324 A.2d 688, is misplaced. In Creek the court stated that a defendant could be found guilty of aiding and abetting a robbery where he acted as a lookout during a purse snatching, fled with the thief, and was arrested in the company of the thief. Creek, supra, 324 A.2d at 689. The court concluded that “[t]he inference that [the defendant’s] presence by the gate [where the defendant crouched as a lookout] ‘designedly encouraged,’ or ‘facilitated’ the [crime] is clearly warranted.” Id. Although Lowman did not flee with, and was not arrested in the company of, Carter, she did more than serve as lookout: she actively solicited the sale by conveying and matching up a willing buyer to a willing seller.

Prior Convictions Instruction. Nor do we find any reversible error as a result of the trial judge’s denial of Lowman’s request that the jury be instructed that the instruction on prior criminal convictions applied only to Carter. On direct examination, Carter admitted that he had previously been convicted of attempted unauthorized use of a motor vehicle. Upon completion of the direct examination, the judge instructed the jury that evidence of Carter’s prior conviction could be used only to determine credibility of the defendant as a witness and did not bear on whether the defendant was guilty. While a “defendant in a criminal case is entitled to an instruction on any issue ‘fairly raised by the evidence,’” Smith v. United States, 309 A.2d 58, 59 (D.C.1973) (citation omitted), a trial judge also retains discretion to decide the form and wording of the instruction.⁹ Assuming that it would have been preferable for the trial judge to clarify that the prior conviction evidence could only be used to evaluate appellant Carter’s credibility, we conclude that it must necessarily have been clear to the jury that this instruction applied only to Carter, and, therefore, that any error was harmless.

The only evidence before the jury concerning a prior conviction was Carter’s prior conviction for unauthorized use of a motor vehicle; there was no such evidence concerning Lowman. Immediately after Carter’s direct examination, when he admitted his prior conviction, the trial judge instructed the jury on the limited use of prior convictions in a manner that made it clear that the instruction pertained only to Carter. During the general instructions, the judge gave a similar limiting instruction on the use of prior convictions. Lowman’s counsel conceded that “I think it’s clear that it [the instruction] does [apply only to Carter], but I just want this jury to make sure they don’t think they’re hearing some mysterious instruction applying to Ms. Lowman.” In addition, Carter’s prior conviction for attempted unauthorized use of a motor vehicle involved a distinct offense that was not similar or related to the charge in the instant ease. Cf. Dorman v. United States, 491 A.2d 455, 459-60 & n. 2 (D.C.1984) (en banc). The judge also instructed the jury that each defendant’s guilt or innocence should be determined separately, by considering only the evidence applicable to that defendant. Under these circumstances, any prejudice that might have improperly arisen as a result of Carter’s prior conviction was minimal at most.¹⁰

Accordingly, we affirm the judgments of conviction.¹¹

1 . The parties stipulated that a twenty dollar bill recovered from the juvenile was the same bill the officer used to pay for the drugs.

2 . Officer Etienne was acting as Officer Johnson's backup at the time of the undercover buy. He testified that Carter approached Officer Johnson and Lowman and then walked over to the juvenile; Carter then left, and the juvenile walked back to the officer and Lowman.

3 . The government also relies on Green, supra, 608 A.2d at 157, 160, where the defendant approached a police officer and brought the officer to a juvenile, who sold drugs to the officer. In Carter v. United States, 591 A.2d 233, 234 (D.C.1991), where a defendant claimed that an officer "approached him looking for cocaine," and that he told the officer "that he knew a friend down the hall who was selling,” the court did not address whether the defendant could be found guilty under his own version of the facts, but it stated that the jury was free to believe the officer’s testimony rather than the defendant's.

4 . Arguably, there was stronger evidence in Griggs than in the instant case that the defendant was aiding and abetting the buyer rather than the seller because the defendant in Griggs sought payment from the buyer and stated that he would lie to the seller. See Griggs, supra, 611 A.2d at 527.

5 . See, e.g., Morei v. United States, 127 F.2d 827 (6th Cir.1942); State v. Gladstone, 78 Wash.2d 306, 474 P.2d 274, 276-78, 279 (1970) (en banc) (no communication between defendant and seller, defendant simply gave seller's name and drew a map showing buyer where to find seller); cf. United States v. Winston, 687 F.2d 832, 835-36 (6th Cir.1982) (interpreting and distinguishing Morei, supra). Other cases are factually distinguishable. For example, in People v. Bryant, 106 A.D.2d 650, 483 N.Y.S.2d 117, 118-19 (N.Y.App.1984), the court stated that the jury could not have found that the defendant acted "in concert with" the seller, but first noted that "the prosecution’s case was premised on a theory” that the defendant and the seller were co-owners of the drugs “and that the two men were partners in this criminal venture.” Id. 483 N.Y.S.2d at 118. In any event, the court viewed the defendant’s statement, "see Michael and tell him I said it’s ok to serve you,” as an ambivalent response to the question of whether the defendant had any drugs. Id. Daigger v. State, 268 Ark. 249, 595 S.W.2d 653, 654 (1980), mentions accomplice liability but not an aiding and abetting theory, and it provides too few facts to determine what the defendant did at the sale location and if the defendant spoke to the sellers, for example to introduce the buyers or enquire about merchandise availability. It seems likely but not certain that the relevant defendant in Daigger was present during the sale. See id. Several of these cases do not consider an aiding and abetting theory in depth. Contrary to the suggestion by the dissent, the point is not that our aiding and abetting law differs from that of other jurisdictions, see dissenting opinion, infra, at 100 n. 19, 101 n. 20, but that in several cases relied on by the dissent the defendants were not charged with, the prosecutors did not argue, the jury apparently was not instructed on, and the appellate court did not consider, liability under an aiding and abetting theory.

Davila v. State, 664 S.W.2d 722, 724 (Tex.App.1984), is inapposite because the defendant was charged with constructively transferring drugs, which was a completely different theory than that used to prosecute Lowman and which required proof that the drugs belonged to the defendant, or were under her control, and .were delivered at her "instance or direction.” Id.

6 . Hence, in our view, the dissent misapplies the rule of lenity. Dissenting opinion at 97. See Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961) (rule of lenity "only serves as an aid for resolving an ambiguity. It is not to be used to beget one”) (footnote omitted); Luck v. District of Columbia, 617 A.2d 509, 515 (D.C.1992); Logan v. United States, 483 A.2d 664, 666 (D.C.1984) (citations omitted).

7 . Lowman's reliance on Head v. United States, 451 A.2d 615, 626 (D.C.1982), is misplaced. In that case the court held that the trial court did not err in giving an aiding and abetting instruction even though the defendant had been prosecuted as a principal because the jury could have found that appellant was aiding and abetting two cohorts.

8 . See also Nye & Nissen v. United States, 336 U.S. 613, 618, 620, 69 S.Ct. 766, 769, 770, 93 L.Ed. 919 (1949) (aiding and abetting theory "is well engrained in the law,” person who "consciously shares in any criminal act” is an aider and abettor); Stevenson, supra, 608 A.2d at 733 (presence is enough to constitute aiding and abetting if it is intended to encourage or facilitate the principal offenders' commission of the crime); Bailey v. United States, 135 U.S.App.D.C. 95, 98-99, 416 F.2d 1110, 1113-14 (1969) ("[pjresence is thus equated to aiding and abetting when ... it designedly encourages the perpetrator, facilitates the unlawful deed — as when the accused acts as a lookout — or when it stimulates others to render assistance to the criminal act”) (footnotes and citations omitted); see also In re T.J.W., supra, 294 A.2d at 176 ("[the defendant] did not, at any time, avail himself of opportunities to withdraw from the scene of the criminal activity.... [B]y his continued presence he gave tacit approval and encouragement").

9 . See Fludd v. United States, 336 A.2d 539, 541 n. 3 (D.C.1975); Howard v. United States, 128 U.S.App.D.C. 336, 339, 389 F.2d 287, 290 (1967).

10 . Cf. (John) Smith v. United States, 558 A.2d 312, 314-15 (D.C.1989) (en banc) (regarding guilt by association).

11 . Lowman’s other contentions — that the trial judge should have instructed the jury to make clear that the principal actor instructions applied solely to Carter, and that the aiding and abetting instructions applied only to Lowman — were not raised in the trial court. Cf. Devone v. United States, 401 A.2d 971, 973-74 (1979), cert. denied, 444 U.S. 876, 100 S.Ct. 160, 62 L.Ed.2d 104 (1979). We find no plain error. See Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc).