Lowman v. US

• Decision Date: 30 September 1993
• Docket Number: No. 92-CF-238,92-CF-481.,92-CF-238
• Citation: 632 A.2d 88
• Court: D.C. Court of Appeals
• Parties: Katrina M. LOWMAN, Richard Lee Carter, Appellants. v. UNITED STATES, Appellee.

632 A.2d 88

Katrina M. LOWMAN, Richard Lee Carter, Appellants. v. UNITED STATES, Appellee.

Nos. 92-CF-238, 92-CF-481.

District of Columbia Court of Appeals.

Argued and Submitted March 17, 1993.

Decided September 30, 1993.

Eugene M. Bond, appointed by the court, for appellant Lowman.

Irwin A. Goldberg, appointed by the court, submitted on the brief for appellant Carter.

Stephen J. Pfleger, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Stevan E. Bunnell, and Roy W. McLeese, III, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and TERRY and SCHWELB, Associate Judges.

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, "yes, I will take you up the street." Lowman then approached appellant Carter and asked him, "do you have any twenties?" He responded, "yes. 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 afterwards, 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 Carters 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 "encouraged and facilitated" 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.³See 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 codefendant); 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.⁵See 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...