Cottman v. State

KENNEY, J. Nathaniel Cottman, Jr., appellant, was convicted in the Circuit Court for Baltimore County of distribution of cocaine, conspiracy to distribute cocaine, and possession of cocaine. Appellant was sentenced, as a repeat offender, to ten years’ incarceration without the possibility of parole, for the distribution conviction. The remaining convictions were merged for sentencing purposes. Appellant presents two questions for our review, which we have reworded as follows: I. Did the county administrative judge’s designee err in denying appellant’s request for a postponement?

II

Was the evidence sufficient to sustain appellant’s convictions? ⁶⁸⁶ For the following reasons, we shall affirm appellant’s convictions. FACTUAL AND PROCEDURAL HISTORY In the early morning hours of August 14, 2002, appellant and Ms. Benson were arrested following the completion of a drug deal with Earnest Moore, an undercover Baltimore County Police Detective. On June 2, 2004, the morning that appellant’s trial was to commence in the Circuit Court for Baltimore County, appellant’s trial counsel appeared before the designee of the administrative judge and requested a continuance, claiming, among other things, that he had just located a “critical” witness for the defense. The designee of the administrative judge denied the motion, noting that the trial had been postponed on four prior occasions.

The case proceeded to a trial on the merits. Detective Moore, a member of the Essex Community Drug and Violence Interdiction Team, was the State’s only witness. At approximately 5:45 on the morning of August 14, 2002, he was wearing “undercover clothes” and driving an unmarked sport utility vehicle on Dartford Road in Essex. He witnessed several individuals leaning against a car parked in front of 1614 Dartford Road.

A woman, later identified as “Ms. Benson,” shouted: “Hey, come here.” Detective Moore pulled his vehicle to the curb and Benson, along with a male Detective Moore identified as appellant, approached. Benson stood next to the driver’s window. Appellant stood at the driver’s mirror and leaned toward the driver’s window, approximately two to three feet from Detective Moore. Benson asked Detective Moore whether he was a police officer, and he replied that he was not.

Appellant then inquired: “Are you sure you’re not police?” Detective Moore repeated his denial. Benson asked Detective Moore if he had been drinking, and lying, Detective Moore claimed that he had. Benson smelled his breath, and said, “Yeah, he’s all right.” Appellant walked to the front of the police vehicle and looked up and down the street. Detective Moore said that “lookouts” “commonly traveled with drug dealers in that area,” and ⁶⁸⁷ during drug transactions, “will keep a lookout to try to identify any police that are in the area.” According to Detective Moore, appellant’s actions were consistent with a drug dealer’s lookout.

While appellant was standing at the front of the vehicle, Benson asked Detective Moore what he wanted. Detective Moore responded that he wanted $20 worth of cocaine, and Benson retrieved a small bag of cocaine from her mouth. She exchanged the bag for a $20 bill Detective Moore presented. During the transaction, Detective Moore saw appellant’s face for “20 seconds, maybe at the most.” As he drove away, Detective Moore witnessed Benson and appellant walk together toward the group in front of 1614 Dartford Road.

He notified the surveillance units working with him that he had made a drug purchase and described appellant and Benson. Two to three minutes later, he returned to Dartford Road and walked to where appellant and Benson were being detained. Detective Moore identified both as the individuals involved in the earlier transaction. At trial, Detective Moore again identified appellant and testified that he had no doubt regarding his identification.

Incident to his arrest, appellant was searched, but no drugs or money was found. The substance in the bag Benson gave to Detective Moore was later analyzed and found to contain 0.2 grams of cocaine. Appellant stipulated that the substance in the bag was cocaine, and the drugs were admitted into evidence. After the State rested, appellant moved for judgment of acquittal, which was denied.

Appellant was advised of his constitutional rights, and declined to testify. He presented no additional evidence. The circuit court found Detective Moore’s testimony “very credible,” and concluded that appellant had aided and abetted the distribution of drugs and found him guilty of distribution of cocaine, conspiracy to distribute cocaine, and possession of cocaine. As noted, appellant was sentenced to ten years’ incarceration for distribution of cocaine, and the remainder of ⁶⁸⁸ his convictions were merged for sentencing purposes.

This appeal followed. DISCUSSION I. Appellant contends that the administrative court abused its discretion in denying the postponement. 1 He asserts that “[c]ounsel did not learn of the critical witness until the morning of trial,” and that the witness is “the person that did the crime [and] is willing to come in and testify that he did it.” The nature of the witness’s testimony and his willingness to testify, however, were not proffered to the court when the continuance was requested. Maryland Rule 4-271 provides, in pertinent part: On motion of a party, or on the court’s initiative, and for good cause shown, the county administrative judge or that judge’s designee may grant a change of a circuit court trial date. If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge’s designee for good cause shown.

See also Maryland Code (2001), § 6-103(b) of the Criminal Procedure Article (“C.P.”). Rulings on requests for continuances are within the sound discretion of the administrative judge and will not be disturbed on appeal absent an abuse of that discretion. See Evans v. State, 304 Md. 487, 514 , 499 A.2d 1261 (1985); Whack v. State, 94 Md.App. 107, 117 , 615 A.2d 1226 (1992); Burgess v. State, 89 Md.App. 522, 534 , 598 A.2d 830 (1991). To establish that the administrative judge abused his discretion in denying a continuance to obtain a witness, the party who requested the continuance must demonstrate: ⁶⁸⁹ “(1) that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; (2) that the evidence was competent and material, and he believed that the case could not be fairly tried without it; and (3) that he had made diligent and proper efforts to secure the evidence.” Whack, 94 Md.App. at 117 , 615 A.2d 1226 (quoting Wright v. State, 70 Md.App. 616, 623 , 522 A.2d 401 (1987)).

Here, appellant did not establish that he had exercised diligence in discovering and producing the witness. Defense counsel merely informed the trial court that the defense had located a witness the defense had been unable to locate previously. He did not, however, detail the efforts he or appellant had made to locate the witness, or otherwise provide information regarding the circumstances of finding the witness. In addition, defense counsel did not explain why the witness was “critical,” except with reference to the seriousness of the offenses with which appellant was charged and the consequences of appellant being convicted.

Defense counsel did not proffer that the witness’s testimony was competent and material, or that appellant “could not be fairly tried without [the witness].” He did not inform the administrative judge that the witness “was the person that did the crime” or that the witness was “willing to come in and testify that he did it.” Therefore, we are persuaded that the administrative court did not abuse its discretion in denying appellant’s request for a postponement.

II

Appellant also contends that the evidence was insufficient to sustain his convictions. He argues first that the evidence was insufficient to establish that he was “the male subject who approached Detective Moore’s car.” Because the “entire transaction lasted just a few seconds,” and Detective Moore’s attention was “focused on the female seller,” appellant asserts that Detective Moore “did not have an opportunity to see the male subject.” Furthermore, appellant contends that, even if ⁶⁹⁰ Detective Moore’s identification is credited, the State “failed to prove that the male subject exercised the requisite dominion and control over the cocaine to justify any rational trier of fact in concluding that he ‘possessed’ the cocaine at issue.” In reviewing appellant’s challenge to the sufficiency of the evidence, this Court does not “undertake a review of the record that would amount to, in essence, a retrial of the case.” State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994). Rather, an appellate court reviews the evidence in the light most favorable to the prevailing party below, in this case, the State. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

We give due deference to the trier of fact’s “finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” Albrecht, 336 Md. at 478 , 649 A.2d 336 . So long as we find that “any rational trier of fact could have found the elements of the crime beyond a reasonable doubt, the appellant’s conviction must be upheld.” Cooper v. State, 128 Md. App. 257, 266 , 737 A.2d 613 (1999) (citing Jackson, 443 U.S. at 319 , 99 S.Ct. 2781 ). In other words, our concern is not with whether the trial court’s verdict is in accord with what appears to us to be the weight of the evidence, but rather is only with whether the verdicts were supported with sufficient evidence — that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt. Albrecht, 336 Md. at 478-79 , 649 A.2d 336 (internal citations omitted).

The question before us is limited; it is “ ‘not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.’ ” Mora v. State, 123 Md.App. 699, 727 , 720 A.2d 934 (1998), aff'd, 355 Md. 639 , 735 A.2d 1122 (1999), (quoting Fraidin v. State, 85 Md.App. 231, 241 , 583 A.2d 1065 (1991)) (emphasis in ⁶⁹¹ Fraidin). A “trial court’s findings as to disputed facts are accepted by this Court unless found to be clearly erroneous after having given due regard to the lower court’s opportunity to assess the credibility of the witnesses.” McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992). We first consider appellant’s assertion that the evidence was insufficient to establish that he was the “male subject who approached Detective Moore’s car,” and therefore, insufficient to sustain any of his convictions. Detective Moore was a trained police officer, and, during the illicit transaction, he was necessarily aware that later he would likely need to identify Benson and her companion.

See Thomas v. State, 139 Md.App. 188, 211 , 775 A.2d 406 (2001), aff'd, 369 Md. 202 , 798 A.2d 566 (2002) (noting that a police officer making a photographic identification of a suspect six weeks after an undercover drug purchase “was not a lay witness describing a criminal to police; he was a police officer making a mental note of what he had seen during the commission of a crime”). At trial, he identified appellant as the “subject that was there that evening.” Appellant stood by his driver’s side mirror and leaned into the driver’s window. Detective Moore maintained that he was able to see both Benson and appellant during the transaction from two to three feet away. He identified appellant minutes after the transaction, and at trial, he remained certain of his identification.

If Detective Moore’s testimony was credited, which it was, a rational trier of fact could have concluded that appellant was the person who approached Detective Moore’s vehicle, asked him whether he was a police officer, stood in the front of his vehicle looking up and down the road during the drug sale, and accompanied Benson across the street after the sale. We next consider whether appellant’s actions were sufficient to sustain his convictions for possession, distribution, and conspiracy to distribute cocaine. Appellant claims that, even if Detective Moore’s testimony is credited, the evidence, viewed in the light most favorable to the State, merely demonstrated that appellant was present at ⁶⁹² the scene at the time the sale occurred. Because there was no evidence that he held the cocaine or the money, or otherwise directed Benson, the evidence was insufficient to permit a rational trier of fact to conclude that he exercised dominion or control over the cocaine.

In response, the State asserts that, although the cocaine was produced from Benson’s mouth, there was sufficient evidence presented from which “it could be inferred ... that this was Benson’s and [appellant’s] method of concealing their cocaine before it was distributed to their buyers.” Therefore, the State maintains, there was sufficient evidence for a rational trier of fact to find that appellant was in constructive possession of the cocaine. Alternatively, the State contends that “a determination by this Court that the evidence was insufficient to show that [appellant] possessed the cocaine at issue would not require reversal of [appellant’s] convictions for distribution of cocaine or conspiracy to distribute cocaine. [Appellant’s] conviction for distribution was based on an aiding and abetting theory.” In finding appellant guilty, the circuit court stated: “I can’t find beyond all doubt that [appellant] knew what he was doing, but I certainly find beyond a reasonable doubt that he was aiding and abetting the distribution of drugs, and therefore, the court finds him guilty of the charges against him.” “Under Maryland law, one may commit an offense as either a principal in the first degree, or a principal in the second degree.” Evans v. State, 382 Md. 248 , 263 n. 11, 855 A.2d 291 (2004). The actual perpetrator of a crime is termed the first degree principal. Owens v. State, 161 Md.App. 91, 99 , 867 A.2d 334 (2005). “[0]ne who encourages, aids, abets, or assists the active perpetrator in the commission of the offense, is a guilty participant, and in the eye of the law is equally culpable with the one who does the act.” Grandison v. State, 305 Md. 685, 703 , 506 A.2d 580 (1986). “ ‘A second degree principal must be either actually or constructively present at the commission of a criminal offense and aid, counsel, command, or encourage the commission of that of ⁶⁹³ fense.’ ” Owens, 161 Md.App. at 99 , 867 A.2d 334 (quoting State v. Raines, 326 Md. 582, 593 , 606 A.2d 265 (1992)).

See also Odum v. State, 156 Md.App. 184, 192 , 846 A.2d 445 (2004) (“A person may be guilty of a felony, as a principal in the second degree, by aiding, counseling, commanding or encouraging, either actually or constructively, the commission of the felony in the person’s presence.”). A principal in the second degree, “in the eye of the law[,] is equally culpable with the one who does the act.” Grandison, 305 Md. at 703 , 506 A.2d 580 . A person’s mere presence at the scene of the crime is not sufficient to establish that he or she participated in the crime. See, e.g., Fleming v. State, 373 Md. 426, 433-34 ,