Anaweck v. State

²⁴¹ MOYLAN, Judge. Seldom has evidence of other crimes been more relevant and valuable in helping to prove the crime in issue. Seldom have the appellants themselves made a more forceful case in support of that relevance and value. The appellants, Edward and Lena Anaweck, husband and wife, were convicted by a Baltimore County jury, presided over by Judge William R. Buchanan, Jr., of the unlawful possession of cocaine in sufficient quantity to reasonably indicate an intent to distribute.

Upon this appeal, they raise two substantial 1 contentions: 1) That Judge Buchanan erroneously permitted the introduction of evidence revealing other criminal activity on the part of both appellants; and 2) That the evidence was not legally sufficient to support the convictions for possession with intent to distribute. The t\yo contentions are so inextricably intertwined that our discussion will randomly wander back and forth between them. In terms of legal sufficiency, an otherwise pallid but viable prima facie case will take on a far ruddier hue with the infusion of the earlier observations of criminal activity. Conversely, that salutary contribution to evidentiary robustness as opposed to bare sufficiency, will demonstrate the relevance and the value of those earlier observa ²⁴² tions of criminal activity. “As the creeper that girdles the tree-trunk, the Law runneth forward and back____” 2 Edward and Lena Anaweck lived at 2532 McComas Avenue in Baltimore County.

On December 12, 1983, three officers of the Maryland State Police executed a search and seizure warrant at the McComas Avenue residence. At the time of the search, Edward Anaweck was not at home. Lena Anaweck was sitting in the kitchen, along with another individual named Charles Miller. In the course of the search, Lena Anaweck directed the troopers to a camera box located on a shelf in a closet in á first-floor bedroom.

Recovered therefrom was a large plastic baggie containing five smaller baggies, each of which contained a white powdery substance which the State Police Crime Laboratory determined to be cocaine having a purity of 36.4%. 3 This was the contraband that was the gravamen of the possession convictions. As we shuttle from “legal sufficiency” to “other crimes” to “legal sufficiency” again, our initial approach will view the events of December 12 as if frozen in time, encumbered by neither future nor past. What would we have if the evidence of December 12 were isolated in an historic vacuum chamber? We would have the argument on legal sufficiency precisely as framed by the appellants.

It is an argument of potent force, at least for the ultimate finders of fact if not for the legal referee. The appellants were not caught with the contraband in their hands. That, of course, is not legally fatal to proof of possession, but it does at least make the burden of persuasion a heavier one. “Possession and control need not be immediate and direct but may be constructive.” Henson v. State, 236 Md. 518, 525 , 204 A.2d 516 (1964); Bryant v. State, 229 Md. 531, 537 , 185 A.2d 190 (1962). “Appellant’s ²⁴³ argument that the mere fact that narcotics were found in his apartment does not establish beyond a reasonable doubt that he put them there or that they were in his possession is without force.” Armwood v. State, 229 Md. 565, 570 , 185 A.2d 357 (1962). “That the narcotics were not on his person but in the house of which he was a resident did not prevent the inference the police and the trial court drew — that he had possession and control of narcotics — from properly and permissibly being drawn.” Henson v. State, supra, 236 Md. at 524-525 , 204 A.2d 516 . It is also “well-settled that the proscribed possession ... of narcotic drugs under the Maryland law need not be sole possession.” Folk v. State, 11 Md.App. 508, 511 , 275 A.2d 184 (1971). “[T]here may be joint possession and joint control in several persons.

And the duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of the title.” Jason v. State, 9 Md.App. 102, 111 , 262 A.2d 774 (1970). A single eyewitness, lucky enough to catch a culprit red-handed, can in a few sentences easily prove sole and actual possession of contraband. The proof of joint or constructive possession, on the other hand, is frequently more circuitous and frequently involves a set of predicate circumstances from which the inference of joint or constructive possession may permissibly arise. This latter was the modality of proof in the case at bar.

In such a case, the skirmishing ranges over a broad field. Defense counsel will parry every circumstantial thrust with at least a colorable explanation. “It was found in his house, but he wasn’t home.” “It was found in a bedroom, but it wasn’t shown to be her bedroom.” “It was found in the house in which they resided, but three other adults resided there as well.” The prosecutor, in turn, will counter-parry by blocking or deflecting the explanations thrown forward by the defense. The weapons with which advocates thrust and parry and counter-parry are relevant facts. Relevant facts, in their turn, may be described as those ²⁴⁴ facts which have significant utility in the business of thrusting and parrying and counter-parrying.

In terms of legal sufficiency, the argument made on behalf of Lena Anaweck — upon the motion for judgment of acquittal, in jury argument below, and in appellate brief and argument — was straightforward. When the searching party arrived, Lena Anaweck was in the kitchen, where no narcotics or paraphernalia were found. She was not in the bedroom, in the closet of which the only narcotics recovered were found. Although she had knowledge of the location of the narcotics, leading the police directly to them, the narcotics still may have belonged to her husband or to any other of the four other residents of the house.

There was nothing to suggest that the suspect bedroom was the bedroom of Lena Anaweck; there were at least six rooms in the house, presumably including other bedrooms. There was no description of the type of clothing found in the suspect bedroom, so as even to imply that it was the bedroom of Lena Anaweck. That argument also, it will be noted, doggedly insists upon looking at the events of December 12 in a vacuum. Again in terms of legal sufficiency, the argument made in behalf of Edward Anaweck — upon the motion for judgment of acquittal, in jury argument below, and in appellate brief and argument — was even stronger.

He was not only not in the suspect bedroom at the time of the search, he was not even in the house. There was nothing to suggest that the suspect bedroom was his bedroom. There was nothing to make him a more likely possessor of the narcotics than any of the other five residents of the home in which they were found. Even in the isolated context of December 12, the State’s case was not quite so bereft of predicates for reasonable inferences; neither, however, was it any overwhelming one.

There had been recovered in the course of the search, a bank statement from Patapsco Federal Savings and Loan Association in the names of Lena Anaweck and Edward ²⁴⁵ Anaweck and giving their address as 2532 McComas Avenue. There was also a Baltimore Gas and Electric Company statement in the name of Edward Anaweck of 2532 McComas Avenue. It was clearly inferable that the suspect house was the home of Edward and Lena Anaweck. Defense argument about “four other residents, three of whom are adults” 4 did take on a less sinister connotation when it came out that the “three other adults” were the three daughters of Edward and Lena Anaweck, ranging in age from 20 to 24 years.

The fourth “other resident” was effectively eliminated as a suspect when it was revealed that he was the infant child of one of the daughters, the grandchild of Edward and Lena Anaweck. The situs of the search was, in the last analysis, the family home of the Anawecks and not some communal “shooting gallery.” There was nothing to suggest that any other individuals were using the house or any part thereof for illicit purposes. Neither Edward nor Lena Anaweck took the stand to offer any defense or explanation. In terms of the State’s burden of production — its establishment of a prima facie case — the evidence of December 12, standing alone, would obviously pose a closer quantitative call than that which we are here called upon to make.

The knowledge of the narcotics on the part of Lena Anaweck would make the call in her case an easy one. The call with respect to Edward Anaweck, on the other hand, would have been a closer one. His connection with the suspect property and the absence of any apparent alternative culprits would probably have been enough to permit the State to clear the “low hurdle” of legal sufficiency, but the margin of clearance would have been admittedly narrow. In this case, however, we are not called upon to make these closer decisions, for, despite the stubborn insistence of the ²⁴⁶ appellants, we are not going to look at the events of December 12 in a vacuum.

If the evidence of December 12, standing alone, might have given rise to at least arguable ambiguities, the observations of December 10 and December 11 dissolved those ambiguities and revealed unambiguous guilt. If plausible explanations might have been offered for the suspicious circumstances of December 12, the observations of December 10 and December 11 disintegrated those explanations. On December 10, Herman J. Mooney, a neighbor of the Anawecks for two years and a frequent visitor in their home, went to 2532 McComas Avenue in the company of Mike Wheeler, an undercover State Trooper. In the presence of Wheeler, Mooney purchased directly from Lena Anaweck a one-eighth-ounce package of cocaine for $280.

Edward Anaweck was present when the sale was consummated. On the next day, December 11, Mooney went again to the Anaweck residence. Trooper Wheeler was not directly present but was an observer, in a controlled-buy situation. Both Edward and Lena Anaweck were present again and sold another one-eighth-ounce package of cocaine for $280.

On the second occasion, the money was paid directly to Edward Anaweck. On both occasions, the sale was consummated, in the kitchen, where incidentally Lena Anaweck was sitting with Charles Miller when the search party arrived on December 12. These narcotics sales on December 10 and December 11 were crimes. They were crimes other than that of the charged possession on December 12.

The question for decision is that of whether they were relevant and important in establishing guilt with respect to the December 12 charge of possession. A preliminary word on the subject of relevance! Even if it could be said with certainty that the evidence of December 12, standing alone, would have established a legally sufficient, prima facie case of guilt as to both appellants, that would not dissipate the State’s legitimate need for ²⁴⁷ additional relevant evidence. Relevant evidence is necessary not only to meet the threshold burden of production, but also to meet the far greater burden of ultimate persuasion.

All evidence beyond that barely minimal amount that represents legal sufficiency will not be deemed redundant. When the State sufficiently satisfies its initial burden of production, its real task is not finished, but only begun. In the context of this case, the evidence of December 12 managed to clear the directed verdict hurdle but might still, in all likelihood, have failed to persuade 43 out of 50 juries of guilt beyond a reasonable doubt. Relevant evidence serves a vital function in helping the State satisfy not only its burden of production, but also its burden of persuasion.

We have but to look to the cases cited by the appellants themselves in support of their arguments on legal insufficiency to make the strongest possible case for the relevance of the observations of December 10 and December 11. The appellants cite Davis and Green v. State, 9 Md.App. 48 , 262 A.2d 578 (1970), a decision written by Chief Judge Murphy (now Chief Judge of the Court of Appeals), in which we overturned a conviction of the appellant Davis for possession on February 28, 1968, on grounds of legal insufficiency, but affirmed his conviction for possession on the following March 23, even as we affirmed convictions for possession on both dates in the case of the appellant Green. With respect to the conviction that was overturned, we found it significant that the appellant Davis was not in the suspect apartment on the date that a sale occurred and, indeed, stayed there only two nights a week. We pointed out that his conviction appeared “to rest entirely on the fact of his co-occupancy of the apartment and his relationship with Green.

To convict Davis because, as a joint occupant of the premises from which the marihuana was sold, he had nonexclusive access thereto is to infer his guilt solely on account of his intimate relationship and association with Green. We think this, without more, too thin a nexus upon which to predicate guilt____” 9 Md.App. at 55, 262 A.2d 578 . By way of contrast, we affirmed the possession con ²⁴⁸ viction of Davis as to March 23, even though he was not present when the search party arrived. He did arrive later, however, with fresh needle marks on his arm.

We held those needle marks to be enough to give rise to a reasonable inference that he knew of, and was involved with, the narcotics found in the apartment. We observed, at 9 Md. App. 55 -56, 262 A.2d 578 , “[t]he needle marks found on Davis’s arm at the time of his arrest permitted an, inference that he knew of the presence of, and was directly connected with, the narcotic paraphernalia found in the metal box, within which was also found an envelope of marihuana and some marihuana pipes.” In terms of demonstrating knowledge and involvement, the sales of December 10 and December 11 serve the same function here as the needle marks did there. In both instances, the subject is denied his pose of assumed innocence as to the “funny business” going on upon the premises. Our affirmance in the case of the appellant Green with respect to the possession charged on March 23 is indistinguishable from the case at bar.

An actual sale on Green’s part one month earlier clinched her conviction for possession on March 23. “She was present at the time the police undertook their search. There was evidence that she had engaged in at least one previous sale of marihuana from the premises. On these facts, an inference is clearly proper that she knew of and possessed the marihuana and narcotic paraphernalia in the metal box and that found on the coffee table.” 9 Md.App. at 56, 262 A.2d 578 . The evidence of other crimes now under consideration by us removes the flaw that led to the one reversal; it serves the same salutary function as that which led to two of the three affirmances.

In Haley, Peterson and Roberts v. State, 7 Md.App. 18 , 253 A.2d 424 (1969), we reversed the possession convictions of all three appellants where they were simply present in a house in which narcotics were found but where “none of the appellants had any proprietary interest in the premises or lived there” and where “the articles were not in the living ²⁴⁹ room but in a dresser in a bedroom under clothing, under a mattress in another bedroom, in a closet in the kitchen.” 7 Md.App. at 33 , 253 A.2d 424 . Speaking through Judge Orth, we found significant the absence of two evidentiary links. The first, already mentioned, was the lack of any proprietary interest in the place searched. That, of course, is not the situation before us in the case at bar.

The other thing missing in Haley, Peterson and Roberts v. State was that “there was no direct evidence properly admissible that they were engaged in violation of the narcotic laws.” 7 Md.App. at 34 , 253 A.2d 424 . The fatal flaw there is here corrected by the evidence that both appellants were directly “engaged in violation of the narcotic laws.” Evidence could hardly be more relevant and necessary than where it saves convictions from the type of reversal suffered in the very case cited to us by the appellants as authority. They also cite Scott v. State, 7 Md.App. 505 , 256 A.2d 384 (1969), but it has no bearing on the situation now under review. There, the appellant was found to have been properly convicted of the possession of narcotics found in the search of his bedroom but not properly convicted of the possession of narcotics found in his sister’s purse in a part of the house occupied by that sister.

Even there, we suppose, if evidence of earlier criminal activity had demonstrated that the appellant had been selling from his sister’s purse, the situation might well have been otherwise. Indeed, in Folk v. State, supra, we reviewed all of the narcotics possession cases in which the evidence was held to be not legally sufficient to support a finding of joint possession and identified the common thread running through them, at 11 Md.App. 514 , 275 A.2d 184 : “The common thread running through all of these cases negating joint possession is 1) the lack of proximity between the defendant and the contraband, 2) the fact that the contraband was secreted away in hidden places not shown to be within his gaze or knowledge or in any way under his control, and 3) the lack of evidence from which a reasonable inference could be drawn that the ²⁵⁰ defendant was participating with others in the mutual use of the contraband.” Against this benchmark, the relevance and vital importance of the “other crimes” evidence here in issue looms large. The significance of any “lack of proximity between the defendant and the contraband” on December 12 pales with the demonstrated proximity between both defendants and the contraband 24 hours earlier and 48 hours earlier. The claim that “the contraband was secreted away in hidden places not shown to be within... [their] knowledge or in any way under [their] control” cannot be made in the face of demonstrated knowledge and control twice within 48 hours as the appellants negotiated a sale in the kitchen, walked off into another part of the house to retrieve the contraband from the cache, and immediately returned to the kitchen with the contraband to consummate the sale.

There is obviously no “lack of evidence from which a reasonable inference could be drawn that the [appellants were] participating ... in the mutual use of the contraband” when the appellants are shown to be selling significant amounts of contraband for significant sums of money on at least a daily basis. A very shaky case without the evidence of December 10 and December 11 becomes an overwhelming case with that evidence. Just as we summarized, in Folk v. State, the failures in terms of legal sufficiency, we also summarized the successes in that regard. The successes show, by positive example, the same thing already demonstrated by the failures: the vital significance of highly relevant evidence, albeit evidence of “other crimes.” In Henson v. State, supra, the appellant, even as the appellants here, “was a maintaining resident of the premises being searched” and on which contraband drugs were found. 236 Md. at 524 , 204 A.2d 516 .

Even as with both appellants here, “the narcotics were not on his person but in the house of which he was a resident.” Id. The Court of Appeals held that the inference was permissible that “he ²⁵¹ had possession and control of narcotics” because significantly “[h]e had been seen during the period of observation which preceded the issuance of the search warrant ... in activities on the premises which led to the reasonable conclusion that he was involved personally in the narcotics traffic.” 236 Md. at 524-525 , 204 A.2d 516 . Those observations, made on seven other days prior to the ultimate search, showed probable sales of narcotics and were, therefore, evidence of “other crimes,” even as in the case at bar. An additional piece of circumstantial evidence, also of the “other crimes” variety, was that the defendant there “was a known addict and admitted to the police that he was a heavy user.” What was critical to the State’s case there