Bingman v. State

Smith, J., delivered the opinion of the Court. Appellant, Bruce Alan Bingman (Bingman), was convicted on June 6, 1978, of distribution of a controlled dangerous substance, phencyclidine, in violation of Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 286 (a) (1). His trial was before a judge sitting without a jury.

He presents two questions to us, (1) “Was the evidence sufficient to sustain the conviction?” and, (2) “Did the trial judge err in considering [Bingman’s] juvenile record at sentencing?” Counsel raised the issue of the sufficiency of the evidence “[a]t [Bingman’s] express request____” We granted the writ of certiorari because of the importance of construing the statute to which reference is made in the second issue. We shall set forth relevant facts as we consider each question. We shall affirm. 1. Sufficiency of the evidence Evidence was adduced that on the night in question a State trooper saw Bingman in a blue Volkswagen.

As the trooper pulled alongside, Bingman asked him if he wanted to buy a “can of flakes.” The trooper said this was drug jargon for phencyclidine. The trooper expressed interest. Bingman’s companion then asked the trooper to follow him to his apartment. At that point Bingman told the trooper “that the flakes were good and he knew [the trooper] would like them.” Bingman’s companion in Bingman’s presence removed a plastic bag containing a green leafy, substance from its place of hiding and turned it over to the trooper for a monetary consideration.

The contents were identified by laboratory examination as phencyclidine. The trooper also testified that ⁶¹ while the purchase was taking place Bingman advised him “how good the PCP was and that there was ... more of the same and all that ...The trooper claimed that Bingman suggested that he “smoke some of it right there to see if [the trooper] liked it.” Bingman presented counter testimony. In Garrison v. State, 272 Md. 123 , 321 A. 2d 767 (1974), Judge O’Donnell said for the Court: In reviewing the sufficiency of the evidence to sustain a conviction in a criminal case we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, State v. Devers, 260 Md. 360 , 272 A. 2d 794 (1971), but merely decide whether there was evidence, or probable inferences to be drawn from the evidence, upon which the trial court could find the defendant guilty beyond a reasonable doubt. Wilson v. State, 261 Md. 551 , 276 A. 2d 214 (1971); Drouin v. State, 222 Md. 271 , 160 A. 2d 85 (1960). “Possession” is defined by Code (1957, 1971 Repl.

Vol.), Art. 27, § 277 (s), to mean “the exercise of actual or constructive dominion or control over a thing by one or more persons.” The statute recognizes, as we held in Rucker v. State, 196 Md. 334, 340 , 76 A. 2d 572, 574 (1950), that such possession may be joint. [Id. at 128.] There clearly was legally sufficient evidence adduced in this instance to warrant the conviction of Bingman. 2. The juvenile record At sentencing Bingman’s pastor testified on his behalf. Among other things, he said: I’ve been visiting him at least twice a week since he’s been incarcerated. We have had an occasion to talk with each other about the seriousness of what he’s done.

He’s also told me that it was a dumb thing. ⁶² He’s very concerned about his wife. I married them; I counseled with them, knew that Bruce was having some problems. Bruce voluntarily left the county, disassociated himself for a time from all the people that he had been with, and now he’s requested or is requesting that he be allowed to rejoin his wife, take the job that he left, be able to move up to Upper Marlboro and start life all over again, and I honestly believe that Bruce is very, very sincere in his attitude and if you have mercy on him and allow him to go free, I don’t believe you will ever see Bruce back in this courtroom again. In response to a question from the trial judge, he testified that he had “known [Bingman] for almost eight years.” He was then asked whether he was “aware that back in 1973 [Bingman] was placed on probation as a juvenile for breaking and entering ... [a]nd that a mere twenty-six days later [he was] placed on probation again for breaking and entering and larceny, possession of stolen goods.” The minister indicated his knowledge of this fact as well as knowledge of certain subsequent criminal charges.

This colloquy relative to “probation as a juvenile for breaking and entering” is the foundation upon which Bingman’s contentions here rest. Code (1974, 1977 Cum. Supp.) § 3-824, Courts and Judicial Proceedings Article, provided in pertinent part at the time here applicable: (a) An adjudication of a child pursuant to this subtitle is not criminal conviction for any purpose and does not impose any of the civil disabilities ordinarily imposed by a criminal conviction.... (b) An adjudication and disposition of a child pursuant to this subtitle are not admissible as evidence against the child in any criminal proceeding prior to conviction, or in any other proceeding.

(c) Evidence given in a proceeding under this subtitle is not admissible against the child in any other proceeding in another court, except in a criminal proceeding where the child is charged with ⁶³ perjury and the evidence is relevant to that charge