Lewis v. State

ROBERT LEWIS v. STATE OF MARYLAND

No. 2481

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

July 7, 2021

Circuit Court for Baltimore County

Case No. 03-K-18-003684

UNREPORTED

Beachley, Ripken, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Moylan, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

The appellant, Robert Lewis, was convicted in the Circuit Court for Baltimore County by Judge Nancy M. Purpura, sitting without a jury, of 1) participating in a criminal gang, 2) of conspiracy to distribute a controlled dangerous substance, and 3) of a firearms offense. Judge Purpura imposed a sentence of 15 years imprisonment for the participation in a criminal gang. The other sentences were concurrent. On this appeal, the appellant raises, by way of questions, two contentions:

1. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR PARTICIPATION IN A CRIMINAL GANG WHEN THERE WAS NO EVIDENCE THAT APPELLANT'S DRUG CRIMES WERE COMMITTED FOR THE BENEFIT OF A CRIMINAL GANG?

2. MUST THE COMMITMENT RECORD BE REVISED TO REFLECT TIME IN CUSTODY SINCE APRIL 20, 2018?

The Maryland gang statute in effect at the time of the events charged in this case was Maryland Code, Criminal Law Article, Sect. 9-804(a), which then provided:¹

A person may not: (1) participate in a criminal gang knowing that the members of the criminal gang engage in a pattern of organized crime activity; and (2) knowingly and willfully direct or participate in an underlying crime, or act by a juvenile that would be an underlying crime if committed by an adult, committed for the benefit of, at the direction of, or in association with a criminal gang.

(Emphasis supplied.) See Madrid v. State, 247 Md. App. 693, 735-41, 239 A.3d 770 (2020); Baires v. State, 249 Md. App. 62, 78-89, 245 A.3d 37 (2021).

Legal Sufficiency Of The Evidence

The criminal gang in which the appellant allegedly participated was known as the "500" or "500 L." It was said to be active in the 500 block of Rose Street in Baltimore City. When the appellant was indicted, twelve other persons were indicted with him. Two of those twelve, Keith Worthington and Harvey Turner, were tried along with the appellant. They were both also found guilty of participation in a criminal gang. Neither of them has appealed his conviction.

As the appellant poses this central question in his appellant brief, "The main point of contention at trial [and on this appeal] was whether 500 L was a criminal gang or just a bunch of guys that sold weed and molly." We are satisfied that the trial evidence supported the judge's conclusion that 500 L was, indeed, a criminal gang.

As we prepare to review the legal sufficiency of the evidence to convict, it behooves us to remind ourselves of just how limited our reviewing function is. In State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336 (1994), Judge Raker articulately pointed out that the burden of production is by no means a burden of ultimate persuasion:

Fundamentally, 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.

In other words, when a sufficiency challenge is made, the reviewing court is not to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt; rather, the duty of the appellate court is only to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Emphasis supplied.)

In Travis v. State, 218 Md. App. 410, 422-23, 98 A.3d 281 (2014), this Court spoke emphatically to the same effect:

Virtually every crime testified to by multiple witnesses could give rise to half a dozen conceivable scenarios or different stories. That is why we have factfinders. We, on the other hand, are not concerned with those other possible stories, because we are not factfinders. The factfinding job has already been done by someone else. All that matters at this juncture is that the factfinding judge believed the victim's story. Unless clearly erroneous (a rare phenomenon, indeed), Judge Groton's findings of fact are the only facts in the case as far as we are concerned. There are no other stories. No other facts or factual scenarios even exist and it is pointless, therefore, to bring them up. In assessing legal sufficiency, we are required to take that version of the evidence most favorable to the prevailing party. What then is the appellant seeking to do by beguiling us with different stories which are immaterial to the only legal issue before us? An appraisal of legal sufficiency is not a proper venue for jury argument. Appellate concern is not with what should be believed, but only with what could be believed.

(Emphasis supplied.) See also Goff v. State, 387 Md. 327, 338, 875 A.2d 132 (2005); Middleton v. State, 238 Md. App. 295, 304, 192 A.3d 777 (2018).

Our concern is not with what a factfinding judge SHOULD have found, but only with what a factfinding judge COULD have found. Chisum v. State, 227 Md. App. 118, 127, 132 A.3d 882 (2016) ("The issue of legal sufficiency is precisely the same under either trial modality. In a court trial just as in a jury trial, the issue is the satisfaction of the burden of production."). On the burden of production, the inferential long shot is just as satisfying as is the inferential favorite.

The appellant is a paraplegic and is confined to a wheelchair. It was nonetheless the State's case that he was not simply a participant in the activities of the 500 L gang but was, along with Gregory Randall, one of the two actual leaders of the gang.

In terms of the legal sufficiency of the evidence, the appellant in his brief makes several major concessions:

It appears that the State proved that the 500 or 500 L committed two or more underlying crimes, due to the several incidents of distribution of marijuana and fake molly. Conspiracy to distribute CDS and distribution of CDS, as well as distribution of a counterfeit substance, are underlying crimes as defined in CR 9-801(f). It also appears that the State proved beyond a reasonable doubt that the object of 500 was to "get money" through drug distribution and that 500 had something of a command structure. Lewis does not concede that the State proved that he was a leader, but Lewis will concede that the cooperator, Randall, was shown to be in charge.

(Emphasis supplied.)

The appellant also concedes that "Lewis's conspiracy and counterfeit drug convictions satisfy" the requirement that he knowingly and willfully directed or participated in an underlying crime. His insufficiency claim is exceedingly narrow:

[T]here was insufficient evidence of (4) [evidence that he took part in the gang knowing that gang members had committed two or more underlying crimes] in that the State failed to show that Lewis knew that the others in the 500 gang had committed two or more underlying crimes.

The evidence, however, abundantly demonstrated that the appellant was fully aware of every aspect of the gang's activities. One key witness was Timothy Zeller, the appellant's driver, who testified that the appellant, along with Gregory Randall, was one of the two leaders of the 500 L gang. Zeller testified that he drove the appellant to the gang's corner to sell drugs on a daily basis and that he personally observed the appellant sellingdrugs with other members of the 500 L gang. Zeller also testified that he observed the appellant interact with various juveniles as part of the drug transactions and specifically that he observed the appellant and Malik Mungo, a juvenile member of the 500 L gang, sell marijuana together.

Two other key witnesses were Lionell Young and Vernon Miller, both of whom were members of the 500 L gang. Each of them testified that the appellant was one of the founders and leaders of the 500 gang. Each of them testified that it was the appellant and Randall who controlled who would be allowed to sell drugs in the gang's area.

Another key witness was Joseph Flowers, the appellant's cousin. He was not himself a member of the 500 L gang, but he was allowed by the appellant to sell drugs with them. Flowers testified that the appellant and Randall were the leaders of the gang and that he had observed each of them directing various members of the gang to conduct sales of marijuana and molly. Flowers also testified that he had observed the appellant enlisting juveniles to work for him, including some who would sit on the steps of Flowers's house to sell marijuana and molly. Flowers testified that he had seen gang members give money from those drug sales to the appellant and Randall. According to Flowers, the appellant and Randall got a cut of the money made from the sales of those other gang members.

Another entire category of witnesses against the appellant were undercover police officers who had made purchases of drugs from the appellant. Detective Shivdayl Bawa was videotaped purchasing drugs from the appellant and one of his co-defendants, Harvey Turner. As Turner told the undercover officer that they had molly for sale, the tape showedthat the appellant broke off a portion of drugs from a bigger rock. Detective Bawa handed over the purchase money to the appellant.

Detective Stephon White made an undercover purchase of...