McCoy v. State

MOYLAN, Judge. The appellant, Tony Lorenzo McCoy, was convicted by a Frederick County jury, presided over by Judge Mary Ann Stepler, of 1) distribution, 2) possession with intent to distribute, and 3) possession of cocaine. On this appeal, he raises the four contentions: 1. that the evidence was not legally sufficient to sustain the convictions; 2. that Judge Stepler erroneously refused to admit a statement by one Lester Bethea; 3. that the court erroneously admitted Detective Ledwell’s statement that numerous drug arrests had been made in the area in which the appellant was arrested; and 4. that the court failed to merge the convictions for possession with intent to distribute and simple possession into the conviction for distribution. We hold that the evidence was legally sufficient to support the convictions.

The testimony of Sergeant Thomas Ledwell of the Frederick City Police Department alone was enough to establish, in terms of naked legal sufficiency, the guilt of the appellant. The appellant argues that Sergeant Ledwell’s identification of him should not have been persuasive for two reasons: 1) because Sergeant Ledwell was using binoculars at a distance of approximately twenty-five yards at the time he observed the critical sale of narcotics and 2) ⁵³⁸ because a defense alibi witness testified that the seller could not have been the appellant because the appellant was in a telephone booth at a different location at the time of the sale. These defense arguments, of course, go to the weight of testimony and the credibility of witnesses. They are concerned with whether the State met its burden of persuasion and not with whether the State met its burden of production.

On the issue of legal sufficiency, an appellate court is concerned only with the burden of production. Our inquiry is that of whether the testimony of Sergeant Ledwell, if believed and if given maximum weight, would have established the necessary elements of the crime. We hold that his testimony, if believed and if given maximum weight (contingencies beyond our power of review), would have established the necessary elements. On February 9, 1996, Sergeant Ledwell was working in an undercover capacity, as the supervisor of a tactical unit investigating narcotics activity, in the area of the John Hanson Apartments in Frederick City.

From a hidden observation post in a vacant apartment and using binoculars, he observed a courtyard surrounded by four three-story apartment buildings. At 9:15 P.M., he observed the appellant and one Lester Bethea walk toward the back of a hallway to an area behind a stairway. He observed Bethea give the appellant paper currency. He observed the appellant give Bethea several small white objects.

He observed the appellant and Bethea part company and walk away in opposite directions. Sergeant Ledwell’s observations were broadcast to other members of the police team in the area. Within one minute, Bethea was stopped and searched. On his person was found three rocks of crack cocaine with an estimated street value of $60.

Within three minutes, the appellant was arrested. Recovered from his person was $25 in currency. Glearly, this testimony, if believed and if given maximum weight, was enough to permit the jury reasonably to infer that the appellant was guilty of the crimes with which he was charged. ⁵³⁹ With respect to the testimony of the alibi witness, moreover, the appellant ignores the obvious fact that although such testimony might be a sound predicate for arguing that the State failed to meet its burden of persuasion, it has absolutely nothing to do with whether the State met its burden of production. In measuring legal sufficiency, which is what the burden of production is concerned with, the alibi