*2 RUIZ, Bеfore FARRELL and Associate PRYOR, Judges, Judge.* Senior PER CURIAM: trial, After a James Andrews bench of posses- Tawanna Bolden convicted were * upon Judge replace Judge Mack Mack was a member of the divi- her retirement Senior argument heard oral in this case. sion that the court. Pryor Judge Senior was selected lot to vations,
sion of “bagging marijuana violation of D.C.Code 48-904.01(d) (2001). § They argue both area, dining on” in the kitchen and room appeal government failed to involving what one officer described as prеsent sufficient evidence to of ... “massive amounts [in doubt, finding guilt beyond a reasonable *3 plain Also over in view].” seized was $900 on either a possession based constructive Appellant cash. Bolden was arrested on aiding or an and abetting theory. We standing hallway. the second floor agree that the evidence was insufficient as Appellant Andrews was arrested down- Andrews, but we sustain Bolden’s con- floor, lying partially stairs on the in a viction. closet.
I. .Bolden was the lessee of the house and 7, 1997, lived there with her children. February On at 3:55 Andrews p.m., Unit- ed States Park Police officers executed a lived in a downstairs bedroom with Bol- search appel- warrant the house where Baker, permission. den’s Patricia a friend Street, lants lived on 1124 Third S.W. Bolden, of Andrews and had come to the entered, police When the one officer saw house that day to visit Andrews. She “a throughout apart- cloud of smoke testified that she and Andrews left the ment” that had odor of burning mari- together away and remained for two juana; another grаy saw the same “thick so, doing hours or more. In left the cloud throughout [of smoke] front door unlocked. leaving, Before Bak- many downstairs area.” As as fourteen er had observed or persons including eight in adults were activity in the house. She and Andrews males, approximately five of them approximately returned to the house some of whom in “running were about” minutes before the arrived. The Altogether first floor area. trial credited Baker’s as nearly seized grams marijuana, 1000 just described. loose, packаged and that had deposit- been in parts ed different of the Specifi- house. II.
cally, they grams seized 160 of loose mari- grams packaged ziplocks and 184 in In challenging sufficiency of the evi table; dining grams from the room 170 in dence, appellants face a difficult burden. ziplock bags from the floor next to the light We examine the record most table; dining room grams loose government, drawing favorable to the all grams in 46 packaged ziplock bags prosecution’s reasonable inferences from countertop; grams the kitchen States, favor. See Cash v. United packaged ziplocks in 47 contained freez- (D.C.1997). 1208, 1211 defer to the We bags er from a trash can at top fact, right judge, as the trier of floor; stairs to the second 78 additional credibility weigh determine the evi grams loose in a bag sandwich from the dence. See Mitchell v. United can; grams ziplocks same trash ten two (D.C.1996). 111, 114 may A.2d We reverse themselves; lying on the stairs a ziplock if upon there is “no evidence a which containing grams six a behind book- fаirly guilt reasonable mind could conclude bedroom; right case rear and one beyond a reasonable doubt.” Harris v. ziplock person from the of a codefendant (D.C. grams as well as seven from behind where 1995). he was seated. From the officers’ obser- there, smoking have occurred where may
A. testimony and according to her could not Bolden contends Baker’s, time. This is most of her spent principal fairly be convicted either as had that Bolden herself suggest (ie., actual constructive theory marijuana; smoking handling been possession) or an aider and abettor. infer- does not the evidence government The counters that she possession is ence. But actual use or guilty an aider and properly be found abetting. necessary aiding to show agree government. abettor. We with the See, A.2d e.g., v. United Greer To that Bolden aided establish (D.C.1991). Bolden admitted gov “the drug possession, and abetted the that she knew smell *4 to required proof ernment was offer that: to her obliged accept the was nоt judge (a) someone; a crime was committed she unaware of its testimony that was (b) or participated assisted its [Bolden] the asleep all presence because was (c) commission[;] and participation [her] activity general the com- while the —and knowledge.” guilty was with Garrett v. motion fourteen the house— people of (D.C. 1312, 1316 United Furthermore, taking place. “[t]he was 1994) (quoting Wright v. United is those who live natural inference that 915, (D.C.1986)). A.2d Although 508 918 inside, a know what is house crime, “presence mere at the scеne of a areas,” particularly in the common United knowledge with coupled even when 83, Jenkins, U.S.App. States v. D.C. committed, being generally crime is is (1991), partic- 928 F.2d enough aiding to constitute abetting,” been made ularly when no effort has Montgomery v. A.2d activity. to their the main actors conceal (D.C.1978), “presence plus ... designedly encourages conduct which Equally judge’s reasonable is the trial facilitates crime will an inference made finding that Bolden had the as guilty participation the an activity. [in crime] fоr the illicit available to others Garrett, such, aider and abettor.” 642 A.2d at and, per- the lessee as the She was (citations omitted). to authority to control access son the premises. argument the No and use of Here, magnitude the and duration made, certainly the was judge was none drug activity the taking place the credit, obliged that she was disabled to present house while Bolden was as the exercising eject her the power occupant Judge lessee and main enabled occupants during the two hours temporary reasonably to find Webber that she both In activity the continued. more that possession of the of the knew Greer, argued supra, defendant —as and, it, by facilitating had her associated though apart- Bolden does—that even First, self with unlawful her, pres- her “mere belonged ment knowledge, judge readily find proximity drugs packaged ence” in close in a smell house thick with the was insufficient to convict for distribution burning responded “pres- that Greer’s her. We smoking packaging men did at her ma[de] ence the scene is not what Indeed, escape knowledge. Bolden’s abettor”: an aider and appeared pervade because smoke govern- critical element The packaged house and loose and mari well, appellant fact that juana proof upstairs found was a ment’s were others apartment made available to her reasonable inference some for conviction, the intended distribution of cocaine. sustain Bolden’s ig- we would enough That mаke her an aider important purpose nore this accomplice possession and abettor of with intent to liability punish enabling. criminal distribute .... B. Judge A.2d 1088. Here Webber implausible supposition
found ap “that reach a We difference conclusion proximately five males would enter Bol- as to government argues Andrews. The den’s house sometime between two and constructively possessed that he the mari four o’clockin the daylight hours to smoke or, alternatively, aided and abetted package large ... marijua amounts of possession. To establish constructive na ... ... consent.” Bol- [her] possession there must be direct or circum den, who lived the house chil with her “(1) stantial evidence that the accused dren, acknowledged kept that she the door (2) knew the location of drugs, had the to the house locked most of the time and ability to exercise dominion and control that generally “nobody” had “access to (3) them, over intended to exercise house” permission. [the] without her Al Earlе, such dominion and control.” though did not infer that Bolden proximity A.2d at 1265. Mere illegal *5 opened herself had the door to allow the drugs enough is not prove constructive entry men credited testimony Baker’s —he possession when “an individual is one of that she had left the door open when leav people several found the authorities on find, reasonably did, —he the premises together with the substance.” that an occupant and leaseholder otherwise States, 170, Wheeler v. United as conscious of her security as Bolden (D.C.1985); 172 see also Bernard v. Unit would not unwillingly have let outsiders 1191, (D.C.1990). ed 1195 occupy large portions of her house for up “something There must be more the to two package hours to and smoke mari totality of the circumstances-—a word or taking steps stop them. deed, relationship probative or other fac Even if only acquiesced in the con that, in conjunction considered tor — duct, activity she facilitated aof kind that proximity the evidence of knowledge, depends on privаcy, eyes at least from the proves beyond a reasonable doubt that the enforcement, of law thereby making her [person] intended to exercise dominion or (“[A] self an aider and abettor. id. See control over drugs, the and was not a mere juror could find from the evi bystander.” Rivas v. United 783 facilitated, dence that appellant and there 125, 128 (D.C.2001) (en banc) A.2d (empha abetted, fore aided and possession of original). sis in cocaine others with intent to distribute In it”); arguing that Andrews construc see also Eаrle v. United tively 1258, possessed gov (D.C.1992); A.2d United States LaGuardia, (8th ernment relies on the 317, officers’ observation 774 F.2d Cir. 1985) (“The on entering that a cloud of jury reasonably could find that smoke filled the rooms and that occupant as the lessee and an Andrews apart ment, lying was found front of a closet in his [codefendant had control of Gato] premises bedroom. permitted areas of This evidence alone does not prove requisite home to be used the concealment of the he had the connеction drugs.”). require drugs. Judge Were we to our with the credited Webber —with dissenting colleague direct or im that Andrews had returned to —more activity mediate involvement in the illicit only the house with Baker five minutes police ar- entered, minutes when for and that Baker before circumstances, his failure rived. In these drug activity had seen no activity to end the illicit steps to take no mar- left. The found before —on government relies—cannot which the ijuana drug packaging paraphernalia stretching facilitation without viewed as Bak- person. Andrews’ bedroom or on his abetting to the aspect aiding and gone to his er testified that Andrews had breaking point. directly on and no other returning, room him or his to the evidence linked bedroom of conviction Accordingly, judgments drugs in the kitchen or found in people are parts the house. evi- other While and reversed Affirmed fairly an inference that supported dence Andrews; with di- case remanded illicit Andrews knew acquittal a judgment rections to enter on, briefly his in the house so toas Andrews. impute it occurred was insufficient to
while
ability
guide
him
appreciable
“some
RUIZ,
concurring in
Judge,
Associate
destiny
drug[s]” being packaged
dissenting
part.
part
and smoked
others.
States v.
agree
I
that the evidence is insufficient
Staten,
U.S.App.
D.C.
Andrews of
convict James
Greer,
(1978); see
F.2d
A.2d
possession
theory
under
constructive
(holding
at 1087-88
evidence insufficient to
as an
possession, or
aider
abettor.
support finding
possession
of constructive
meaningful
is no
distinction
Because there
where the facts did
show that defen-
pre-
quantity
in the nature or
of evidence
“
any personal
dant
‘had
role in the han-
Bolden that cross-
against
sented
Tawanna
” but,
*6
dling of the cocaine’
most ...
“[a]t
doubt, I
es the threshold
that others came to her
to sell
apartment
conclude that the evidence is insufficient
drugs,
permission,
with her
there
[and]
theory
liability
under either
convict her
proof
any
no
that
was
she had
connection
Thus, I
Bolden’s
as well.
would reverse
themselves”) (citation
omit-
drugs
with
marijuana
possession,
conviction of
tеd).
part
that
the Per Curiam
dissent from
affirming her conviction.
opinion
Nor was the evidence sufficient to
by
my analysis, begin
an
To
I
includ-
convict Andrews as
aider and abettor.
frame
not recited in the
Unlike
he was not named on the
some facts
are
Baker,
and, indeed,
rent;
merely
opinion.
he
Per Curiam
Patricia
paid
lease
by
manner
friend
was credited
compensated Bolden—in a
whose
court,
that Bolden was
doing
chores. Al
the trial
testified
speaking by
household
—
seriously
brain cancer and was
ill with
though
the trial
found that Andrews
that included
guests
“always
symptoms
authority
personal
had the
to admit
sick”
Baker)
fever,
cold,
(such
vomiting, and weakness.
feeling
and to
house
exer
Baker,
result, according to
premises,
over the
he As a
cise some control
any
“sleeps
him
the time” and doesn’t “have
Andrews was
all
leaseholder.
was
house, and,
Bolden’s
accordingly,
energy.” Baker corroborated
guest
self
day
question,
testimony that on the
authority
eject
guests
other
his
to admit
out
went
Baker and Andrews
to that of the lеase
before
plainly
inferior
unlocked, Bol-
front
holder,
Moreover,
leaving
door
unlike Bolden
Bolden.
briefly
pre-
had come downstairs
throughout the
den
had been in the house
who
children, and had
for her
present
pare breakfast
Andrews had been
drug activity,
was,
returned to her
floor
police
though
second
bedroom to
arrived. Even
there
sleep, as
most,
was her custom. Baker also tes-
lapse
a two-hour
between the time
tified that when she and Andrews returned
go
when Baker saw Bolden
upstairs
later,
to the house one to two hours
she
sleep and Baker’s return when she saw
had looked into the second floor bedroom
asleep
Bolden still
in her room—two hours
asleep,
up
and seen Bolden
curled
under
during
theoretically
which it is
possible
the covers.
It was
a few minutes
that Bolden could have awoken
be-
police
later that
officers broke down
marijuana
come aware of the
smoke—
house, surprising
the back door of the
there is no evidence
the record as to
packaging marijuana
men who had been
during
when
men entered the house
kitchen,
up
downstairs
and rushed
period
or as to when the
steps catch them before
could hide
smoke would
permeated
have
the house so
attempt escape.
Bolden testified that
that it would have been noticeable on the
by
was awoken
the screams of her
any
second floor. Nor is there
evidence
who,
young children
scared
any
that Bolden in fact was awake at
time
onslaught, had
running up
cоme
the stairs
during
two
those
hours. Baker’s testimo-
sleeping
where Bolden was
on the sec- ny strongly implies
Any
that she was not.
Baker,
ond floor.
who was in the second inference,
therefore,
that Bolden had
arrived,
floor bathroom
when the
knowledge of the
smoke is
aspect
corroborated this
of Bolden’s testi-
speculation.
sheer
well,
mony
saying
that as she came out
Knowledge
pre
of criminal
is a
bathroom,
from the
she saw Bolden
requisite,
enough;
but
itself is not
aid
emerge sleepily from her bedroоm into the
ing and abetting requires some affirmative
hall, looking
calling
scared and
for her
assistance to
commission
crime.
young son. No one
con-
testified
Usually
assistance is shown
ac
trary.
some
tion, even if
slight,
abets
commis
Notwithstanding Bolden’s and Baker’s
premise
sion
the crime. To
criminal
testimony, my colleagues conclude that
action,
liability on in
government
as the
magnitude
“the
duration of the
here,
proposes
there must
circum
activity taking place in the house while
*7
in
stances which
context
аn infer
present
Bolden was
main
the lessee and
failing
person
ence
to act a
associ
occupant”
were sufficient
enable the
participated
ated with the
in it
venture
trial court to find that Bolden knew about
something
as in
or
he
she wished to
marijuana
the
in the house and had facili-
bring about. See Settles v. United
tated the use of her house for the unlawful
(D.C.1987)
348,
522 A.2d
(quoting Nye
activity,
becoming criminally
thus
liable as
613,
& Nissen v. United
336 U.S.
an aider and abettor. See ante at 535. I
619,
766,
(1949));
Beyond my conclusion that the evidence in order to support an “guilty inference of insufficient, I am by majori- troubled participation abettor,” as an aider and ty’s approach in deciding to affirm the Garrett v. United conviction. The trial reasoning court’s (D.C.1994), bare status must be less finding Andrews guilty and Bolden was so as it imply does not even knowledge of brief and to the point: The trial judge the commission of crime in presence. one’s found guilty Andrеws because he was a To hold otherwise is to amake homeowner occupant” “lawful of the house and had strictly lessee criminally liable for the “the power to admit premises others to the illegal activities of others conducted and to exercise premises control over the premises over which the home owner or [] and its use.” As to the trial lessee authority. has judge noted that she too was a “lawful occupant,” that her name was on the lease It also is evident from thе record of this documents and that she authority “had the bench trial the trial did not to, of, to control access and use prem- make credibility determinations and ises.” The trial court concluded that fact-findings that necessary would be “highly improbable” that five men pro- alternative conclusion “would enter Ms. Bolden’s house ... posed by my colleagues, that Bolden be- hours, daylight package smoke and ... came aware smoke with large amounts of ... without time to act such that her inaction would *9 knowledge [her] and consent.”2 imply acquiescence. so, In doing they en- 2. The trial court’s conclusion is undermined they and Andrews who left it unlocked when by testimony it credited that Bolden usual- morning. left the house that ly kept the door locked and that it was Baker house, in her appellate fact-finding overstep and gage activity being reviewing acquiesced drug our function trial she appellate not To the extent that by action. A trial court need make carried out others. court and in specific fact-findings testimony the absence of Baker’s was relevant credited however, if findings testimony we must affirm the evidence of her questions, these result. sleep record is sufficient before Baker that went mean, however, on ap- that That does she sleeping when returned left pellate ignore fact-findings review canwe that Bol- supports opposite inference: credibility determinations that were of, acquiesce did not den was unaware judge. judge the trial The trial Therefore, made in, infer- it credited Baker’s that was she rely my colleagues has ence on which un- and Andrews who had left the door heard and predicate factual the evidence they locked when left even judge trial to affirm Bol- credited locked, usually kept though Bolden den’s conviction. had returned home Therefore, I dissent reason- because arrived, minutes before the at which ing provided by is incorrect as a cloud time Baker saw of smoke that law, an matter of alternative rationale marijuana. like trial court smelled The the evidence. supported finding made no of fact to whether
Bolden became aware there was mari-
juana in her cloud
smoke that Baker and the discover- arrival, upon their nor to when
ed have noticed it so a reasonable
would that, knowing
inference could drawn