Appeals from the Superior Court of the District of Columbia (M-1880-97) (M-1876-97) (Hon. Paul R. Webber, III, Trial Judge)
Before Farrell and Ruiz, Associate Judges, and Pryor, Senior Judge. *fn1
Opinion concurring in part and dissenting in part by Associate Judge RUIZ, at page 10.
After a bench trial, James Andrews and Tawanna Bolden were convicted of possession of marijuana, in violation of D.C. Code § 48-901.01 (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.
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 134 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 them selves; a ziplock containing six grams from behind a bookcase in the right rear bedroom; and one ziplock from the person of a co-defendant 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 Bolden'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.
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).
Bolden contends that she could not fairly be convicted either as a principal (i.e., on a theory of actual or constructive possession) or as an aid er 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 ...