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July 2, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)

Before Terry, Associate Judge, and Reilly and Mack, Senior Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellant Edmonds was indicted for distribution of cocaine and for possession of cocaine with intent to distribute it (PWID), both in violation of D.C. Code § 33-541 (a)(1) (1988). In the same indictment Theodore Middleton was charged with possession of cocaine, D.C. Code § 33-541 (d). *fn1 After a jury trial, Edmonds was acquitted on the charge of distribution but was found guilty of PWID. On appeal he contends that the evidence was insufficient to support his conviction. We affirm.

The evidence, viewed as it must be in the light most favorable to the government, *fn2 showed that Edmonds handed Middleton a ziplock plastic bag as they both stood near the entrance to an alley. An undercover police officer, Michael Rorie, driving past in an unmarked car, saw this transfer clearly from a distance of ten to fifteen feet. Within "a matter of seconds" Rorie arrested Middleton, searched him, and found a single piece of crack cocaine in his possession. Meanwhile, Rorie's partner, Officer Stephen Ellis, turned his attention to Edmonds and saw him throw something to the ground which appeared to be a piece of brown paper. *fn3 It landed about five feet from where Edmonds was standing. Ellis immediately arrested Edmonds while another officer recovered the thrown object, which turned out to be a brown paper bag containing five smaller ziplock bags, each of which contained a quantity of crack cocaine. *fn4 An expert witness testified that when police officers arrive in an area where there are drug sellers, the sellers "try to get rid of the drugs that they have on them either by throwing them, hiding them, dropping them, or some other way of . . . distancing themselves from the drugs." The expert also said that crack cocaine for street sale is commonly packaged in small ziplock bags which sell for about $20 per bag.

Edmonds contends that this evidence was insufficient to prove beyond a reasonable doubt that he intended to distribute any drugs. We disagree. Although the jury acquitted him of the actual distribution of cocaine to Mr. Middleton, *fn5 the evidence of that distribution could still be considered by the jury as establishing an intent to distribute. See Ware v. United States, 579 A.2d 701, 702 n.1 (D.C. 1990). Even if we assume that the verdicts on these two counts were inconsistent, it has long been recognized that inconsistent verdicts are permissible. "Consistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 76 L. Ed. 356, 52 S. Ct. 189 (1932) (Holmes, J.); accord, e.g., United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984); Steadman v. United States, 358 A.2d 329, 332 (D.C. 1976); United States v. Fox, 140 U.S. App. D.C. 129, 132 n.21, 433 F.2d 1235, 1238 n.21 (1970) (collecting cases). Furthermore, the fact that the cocaine in the paper bag was packaged in separate ziplock bags, ready for sale to customers on the street, is strong evidence of an intent to distribute. Chambers v. United States, 564 A.2d 26, 31 (D.C. 1989); Shorter v. United States, 506 A.2d 1133, 1135 (D.C. 1986). We hold that there was ample evidence of Edmonds' intent to distribute, and that the trial court did not err in allowing the case to go to the jury.


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