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05/15/92 JAMES GREEN v. UNITED STATES

May 15, 1992

JAMES GREEN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)

Before Rogers, Chief Judge, and Ferren and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellant James Green appeals his conviction by a jury of unlawful distribution of cocaine, D.C. Code § 33-541(a)(1) (1988 Repl.), on the ground that the trial Judge erred by (1) denying his motions for judgment of acquittal; and (2) not instructing the jury on aiding and abetting. We affirm.

I

On August 17, 1990, the United States Park Police set up a drug observation post in the 2200 block of H Street, Northeast. Officer Jeffrey Wasserman testified that as he walked on H Street, appellant walked towards him and asked him what he was looking for. The officer responded that he was looking for a man who had previously sold him rock cocaine. After a colloquy, appellant told the officer that the officer's previous supplier was in prison, but that appellant "could take care of" him. The officer stated that he was interested in purchasing a fifty dollar rock of cocaine. Appellant then told the officer that he could get him a "good deal" if the officer would follow him.

Appellant then walked with the officer into a breezeway to an entrance of a building. A juvenile, Randy Meyers, came to a door, and appellant told Meyers that the officer wanted to purchase a fifty dollar rock of cocaine. Appellant explained that Meyers only had twenty dollar rocks but would give the officer three twenty dollar rocks for fifty dollars. The officer bought three rocks of cocaine from Meyers for fifty dollars. Appellant never touched the money or the drugs during the transaction. At the Conclusion of the transaction appellant asked the officer to remember him the next time he came into the area because he would take care of him on his return. A second officer, at an observation post using binoculars, observed appellant and the undercover officer converse and enter the breezeway area after having observed similar prior interactions between appellant with other persons who approached him and whom he approached, and with Meyers.

Appellant and Meyers were subsequently arrested while standing together on H Street, N.E. Two hundred and ninety-seven dollars and an electronic beeper were recovered from appellant. Officer Wasserman positively identified appellant and Meyers as the two persons who had sold him illegal narcotics. *fn1

II

Appellant contends that the trial Judge erred in denying his motions for judgment of acquittal because the evidence was insufficient to establish all of the crucial elements of the offense beyond a reasonable doubt. He points to the fact that evidence did not show that appellant had either physical contact with the controlled substance or the dominion and control that are required to prove constructive possession. See Thompson v. United States, 567 A.2d 907, 908 (D.C. 1989). While acknowledging his heavy burden and this court's required deference to the jury's factual determinations, appellant contends that there was no "probative evidence to establish possession, actual or constructive, of any controlled substance that was distributed during the transaction that gave rise to appellant's arrest and prosecution."

When reviewing a motion for judgment of acquittal, the evidence must be viewed by the court in the light most favorable to the government, giving full credit to the jury's right to weigh the evidence, draw reasonable inferences, and determine credibility. Carter v. United States, 591 A.2d 233, 234 (D.C. 1991); Thompson, (supra) , 567 A.2d at 908; Curry v. United States, 520 A.2d 255, 262 (D.C. 1987). The court may reverse only when there is no evidence upon which a reasonable person might fairly conclude guilt beyond a reasonable doubt. In re L.A.V., 578 A.2d 708, 710 (D.C. 1990); In re T.M., 577 A.2d 1149, 1151 (D.C. 1990).

In the instant case there was clear evidence that appellant aided and abetted in the distribution of a controlled substance. See Gillis v. United States, 586 A.2d 726, 728 (D.C. 1991); Wesley v. United States, 547 A.2d 1022, 1026 (D.C. 1988). Viewed in the light most favorable to the government, the evidence shows that appellant "went out and got the buyer and brought the buyer to the person who had the substance," as the government stated in its opening argument to the jury. Appellant asked the officer how much cocaine he wanted to purchase, offered to provide the officer with a "good deal," led the officer into a breezeway, explained the terms of a possible sale, and informed Meyers that the officer wanted to purchase cocaine. A reasonable jury could reasonably find that appellant knowingly and intentionally aided and abetted in the solicitation of the officer and in the transaction between the officer and Meyers. See United States v. Roberts, 913 F.2d 211, 218-19 (5th Cir. 1990), cert. denied, 111 S. Ct. 2264 (1991); United States v. Resto, 824 F.2d 210, 211 (2d Cir. 1987).

The problem arises, nevertheless, because the jury was never instructed on aiding and abetting. *fn2 Nor was the jury instructed on constructive possession. Without these necessary directions from the trial Judge, and absent evidence that appellant possessed or distributed a controlled substance, appellant maintains that "the jury's verdict could only be based on hypothesis and speculation," citing Crawley v. United States, 320 A.2d 309, 311 (D.C. 1974) (motion for judgment of acquittal is important safeguard for defendant, testing sufficiency of evidence and avoiding risk jury will capriciously find guilt when there is no legally sufficient evidence.

The trial Judge's instructions regarding the substantive offense were confined to describing the elements of distribution of cocaine as involving that act done knowingly and intentionally. *fn3 The jury was told that it "may find that the Defendant knowingly and intentionally distributed the cocaine if he did so consciously, voluntarily and purposefully and not because of mistake, inadvertence or accident." *fn4 However, the Judge also defined "distribute" for the jury to mean "the actual, constructive or attempted transfer of cocaine." *fn5 Neither party objected to the instructions given to the jury.

Super. Ct. Crim. R. 30 provides that "no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." The rationale of the rule inheres in judicial economy as a result of affording "the trial court the opportunity to correct errors and omissions which otherwise might necessitate a new trial." Deneal v. United States, 551 A.2d 1312, 1316 (D.C. 1988). While no obligation exists on a defendant to ask for an aiding and abetting instruction, thereby rendering less burdensome the government burden to prove guilt, *fn6 once the trial Judge instructed the jury on the meaning of the word "distribute," it was incumbent upon the defendant to ask for such clarification as he deemed was required to fully inform the jury about ...


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