Cerrato-Molina v. State

MOYLAN, J. The appellant, Jose N. Cerrato-Molina, was convicted in the Circuit Court for Prince George’s County by a jury, presided over by Judge Daneeka V. Cotton, of 1) the possession of marijuana, 2) the possession of crack cocaine, and 3) the possession of cocaine hydrochloride. On this appeal, he raises the single contention that the evidence was not legally sufficient to have permitted Judge Cotton to deny his motion for a judgment of acquittal and to have submitted the case to the jury. A Preliminary Reader’s Guide Before launching into an analysis of the legal sufficiency of the State’s evidence, it behooves us to ask a very simple, but critical, question: “legally sufficient to prove what?” The three convictions were all for simple possession of controlled dangerous substances. In the context of this case, therefore, what exactly does “possession” entail?

Permeating the appellant’s argument is his insistence on an off-the-cuff layman’s definition that would simplistically assume that possession must be both actual and exclusive. His motion for acquittal was “based on the fact that the State had not placed the CDS in the hands of the appellant.” The criminal law, however, is not nearly so demanding. The contraband criminally possessed need never be in the hands of the criminal possessor. It will suffice, we hold as we undertake our sufficiency assessment, if the possession established was merely constructive rather than actual or was merely joint rather than exclusive.

We will proceed to a fuller discussion of the essential characteristics of possession infra. ³³² A Mosaic Of Legal Sufficiency The facts are simple. Aside from an uncontroversial chemist’s report that was stipulated to, the evidence consisted exclusively of the testimony of Detective Jackson of the Prince George’s County Police Department. At approximately 10 p.m., on June 13, 2008, Detective Jackson, in a marked police cruiser, was on routine patrol on Sargent Road in Hyattsville. He observed a white Jeep, facing southbound on Sargent Road, parked but with its motor running.

Detective Jackson turned his cruiser around and re-approached the Jeep from the rear. When he initially passed the Jeep, he had observed that its two occupants were drinking beer. After he turned around and approached nearer the Jeep, however, it suddenly took off and then proceeded at a high rate of speed through residential neighborhoods. As Detective Jackson followed, he observed a significant number of objects flying out of the front passenger window, a black bag and a variety of smaller items.

A short distance later, the Jeep was disabled as it ran up onto a curb. Its two occupants were immediately arrested. The driver was Marios Ramos. The passenger was the appellant.

Detective Jackson subsequently conducted a search back along the route of the chase. From the 6100 block of West-land Drive, he recovered three baggies of suspected drugs that were submitted to the Crime Laboratory and found to contain controlled dangerous substances. The Jeep was registered to Ramos. Except for the stipulated chemist’s report, the detective’s testimony was the totality of the case.

We will summarize briefly the evidence we deem to be significant. At least three baggies containing three different types of contraband drugs were in the white Jeep. The appellant (as the passenger) was one of the two occupants of the white Jeep. As Detective Jackson was observed to be approaching the Jeep, it sped away.

That flight permits the inference of consciousness of guilt on the part of someone. During the flight, the two men (it matters not which) attempted to dispose of the drugs by throwing them out of the ³³³ passenger window of the Jeep. We hold that that evidence was legally sufficient to support a finding that both the appellant and Ramos were in joint actual or constructive possession of the contraband drugs. It matters not which.

Airborne Contraband The appellant works himself into a lather over a meaningless distinction. He obsesses over the inconsequential detail of who threw the contraband out of the passenger window— the driver or the passenger. He argues in his brief: The police officer in [the] chase testified that he did not see who had thrown the objects out of the vehicle, merely that the objects were ejected from the passenger side of the vehicle.... The Appellant asserts that there was no direct evidence that he possessed the CDS found on the street.

Although it may be more probable that a passenger will throw objects out of a passenger side window, there was no evidence adduced at trial that would make it impossible for the driver to throw the objects out of the passenger side window in this instant case. Without more, the jury must speculate on who actually threw the objects out of the window—the driver or the passenger or both. (Emphasis supplied). The jury must, indeed, speculate.

In performing its broader duty of deciding whether or not to draw a permitted inference or in deciding which inference to draw out of a range of permitted inferences, the jury is by definition engaged in a speculative exercise. Informed and educated speculation, however, is not blind or haphazard speculation, which is, indeed, inappropriate. 1 ³³⁴ In terms of which permitted inference to draw in this case, the appellant will be no doubt chagrined at our indifference to who threw the baggies out of the window. It does not matter whether it was the driver or the passenger. Nor need the jurors have cared.

What we deem significant is that the “Appellant-Ramos team” threw the baggies out of the window and that is all that matters. The defenestration of evidence is a bad business—whether as a principal in the first degree or as a principal in the second degree. The appellant obviously seeks solace in a distinction between exclusive possession and joint possession. It is, however, a distinction which the possessory crime law does not consider significant.

Judge Orth spoke of the dispositively damning nature of joint possession in Jason v. State, 9 Md.App. 102, 111 , 262 A.2d 774 (1970), cert. denied, 258 Md. 728 (1970): “We find that the evidence was sufficient in law to sustain the convictions as to each appellant of possession of heroin, control of heroin and possession of narcotic paraphernalia as charged. We note that it is not required that there be sole possession and sole control; there 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.” (Emphasis supplied; citations and footnote omitted). Possession need not be actual.

In Folk v. State, 11 Md.App. 508 , 275 A.2d 184 (1971), the juvenile appellant was found to have committed what would have been, had she been an adult, the crime of possessing marijuana. She was but one of six occupants of a car that she did not own and was not driving. No marijuana was ever observed in her actual physical possession. She was nonetheless held by this Court to have been guilty of unlawful possession. “It is well-settled that the proscribed possession of marijuana or of narcotic drugs under the Maryland law need not be sole possession.” 11 Md.App. at 511 , 275 A.2d 184 .

Our opinion then set out what has come to be recognized ³³⁵ as the classic list of helpful guidelines for a case of joint possession. “The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or Q the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.” 11 Md.App. at 518 , 275 A.2d 184 . (Emphasis supplied). In Smith v. State, 415 Md. 174 , 999 A.2d 986 (2010), the police executed a search warrant on a private residence in Baltimore City. As the police entered the home, the defendant was one of five persons seated in chairs around a table.

A marijuana “blunt” was burning in an ashtray in the center of the table. All of the persons at the table “were within arm’s reach of the blunt,” but none had it in hand. 415 Md. at 178 , 999 A.2d 986 . Smith’s argument there, but for substituting presence in a house for presence in a car, was akin to the appellant’s argument here. “Petitioner contends that the State adduced insufficient evidence to sustain his conviction of possession of marijuana. He argues that proof of his mere presence in a house where marijuana was being smoked was insufficient to sustain his conviction.” 415 Md. at 186 , 999 A.2d 986 .

(Emphasis supplied). Judge Harrell’s opinion for the Court of Appeals soundly affirmed that the criminal possession that must be proved may be actual or constructive and may be exclusive or joint. “Petitioner was convicted of possession of marijuana[.] The Legislature defined ‘possess’ to mean ‘to exercise actual or constructive dominion or control over a thing by one or more persons. ’ The possession may be ‘actual or construe- ³³⁶ tive ... and the possession may be either exclusive or joint in nature. ’ ” 415 Md. at 187 , 999 A.2d 986 . (Emphasis supplied, citations omitted). See also Moye v. State, 369 Md. 2, 14 , 796 A.2d 821 (2002); State v. Suddith, 379 Md. 425, 432 , 842 A.2d 716 (2004) (“It has long been established that the mere fact that the contraband is not found on the defendant’s person does not necessarily preclude an inference by the trier of fact that the defendant had possession of the contraband.”).

An Inferential Heavy Favorite Versus An Inferential Longshot In affirming the legal sufficiency of the evidence, we may be going further than is necessary in pointing out that the unlawful possession need be only constructive and not actual. An inference was permissible in this case that the appellant had actual possession of the contraband drugs. In terms of the evidence jettisoned along the escape route, there were multiple throws of multiple items. Whoever made those throws (or any one of them) necessarily had, at least briefly, actual possession.

As many an erring athlete has learned to his chagrin, you can’t throw the ball until you have it. No police observation, to be sure, ever caught the appellant’s arm in motion, but it didn’t have to. A reasonable inference could fill that gap. Self-evidently, the baggies of contraband were not self-propelled drones.

Someone in the Jeep threw them out the passenger’s window. There were only two people in the Jeep—the driver and the passenger. Either one or the other, therefore, threw the contraband from the window. Thus far, that is no mere inference.

That is logical certainty. Going forward from that point, there emerge two competing inferences. They were by no means, however, equally potent inferences. As the thrower, the passenger (the appellant) was the heavy betting favorite.

The driver was a decided longshot. Geography favored the appellant as the probable thrower. The epicenter for the disgorging of incriminating evidence was ³³⁷ a point just inside the passenger window. The person deployed at that apparent launching site was the appellant, not the driver Ramos.

Geometry, which is a part of the business of drawing inferences, strongly favored the appellant. If, e.g., arrows are seen flying from a particular loophole in the castle wall and it is the appellant who is stationed behind that embrasure, to attribute the arrows to the appellant would not be clearly erroneous. The appellant’s plaint that “Detective Jackson ... never saw an arm extended from the [loophole]” is of no avail. Choosing between competing inferences is classic grist for the jury mill.

As the Court of Appeals noted in Smith v. State, 415 Md. at 200 , 999 A.2d 986 : “These inferences are the very type of inferences that juries are charged with making—to make findings of fact based on the evidentiary facts and their common sense reasoning. We conclude that the inferences made by the jury in the present case were supported by the evidence. It is not relevant to consider whether it also may have been reasonable to infer that Petitioner was merely an innocent bystander. The jury determined otherwise.

We defer to the jury’s finding that Petitioner had knowledge of and exercised dominion or control over the marijuana.” (Emphasis supplied, citation omitted). The appellant was eminently eligible for selection as the inferential pitcher of the contraband. Not only did positioning favor the appellant, but so, moreover, did opportunity. The driver was leading the police on a high-speed chase through the winding streets of a residential neighborhood.

That, without more, is a white-knuckled activity, best pursued with two hands on the wheel. A healthy division of labor between the driver and the passenger would make far more sense than would the picture of a beleaguered Ramos desperately multi-tasking as both pilot and bombardier, while his companion sits idly by in stunned innocence. The choice of competing inferences in this case enjoyed the benefit of far more effective tie-breakers than a mere flip of a coin. ³³⁸ It is conceivable, of course, that the jury could have inferred that Ramos aided and abetted himself, but it did not do so. A conclusion that Ramos acted alone, moreover, would not have been that version of the evidence, including reasonable inferences, most favorable to the State’s case.

That, of course, is the version of the evidence that we are enjoined to assess in examining legal sufficiency. In Neal v. State, 191 Md.App. 297, 318 , 991 A.2d 159 (2010), Judge Kehoe, with respect to competing inferences, observed for this Court, “An inference need only be reasonable and possible; it need not be necessary or inescapable.... The possibility of raising conflicting inferences from the evidence does not preclude allowing the fact finder to determine where the truth lies.” (Emphasis supplied, internal quotations and citations omitted). In the words of Neal , even if the appellant were not a “necessary or inescapable choice,” he was at least a “reasonable and possible” choice.

The eminently reasonable inference that the appellant threw the drugs out of the window is ipso facto a legally sufficient case. The appellant, understandably, has eliminated the word inference from his lexicon, but the law of evidence has not. How Close is Close? In affirming the convictions for unlawful possession, we will also, purely arguendo, consider the alternative rationale that even if the appellant was not in actual and exclusive possession of the CDS, he was at the very least in constructive and joint possession of the drugs.

If the appellant threw the drugs out of the window, his unlawful possession was actual. If Ramos threw the drugs out of the window, the appellant’s unlawful possession was at least constructive. In either event, he was guilty of unlawful possession. The first of the Folk factors is that of “proximity between the defendant and the contraband.” 11 Md.App. at 518 , 275 A.2d 184 .

In his reply brief, the appellant protests that there ³³⁹ was no showing of proximity between the appellant and the contraband. “There was no testimony adduced at trial that the CDS was in close proximity to the Appellant. Detective Jackson stated that he saw the CDS ejected from the vehicle, but he never testified that he saw the CDS anywhere in the vehicle, near the Appellant or not. Furthermore, no CDS was found in the vehicle or upon the Appellant or driver upon arrest. Since the CDS was ejected from the vehicle, it would be reasonable to infer that the CDS was in the vehicle somewhere, but we have no idea where.

Without more, a jury would have to speculate on where the CDS was and what was the proximity of the CDS to the Appellant when the CDS was in the car.” Reply Brief at 5. (Emphasis supplied). Proximity, of course, is a relative concept and the appellant insists on looking at it from a very Lilliputian point of view. We, on the other hand, do not hesitate to take judicial notice of the fact that the Jeep was not, in terms of its capaciousness, the Titanic.

The Folk decision itself established that within the passenger compartment of an automobile, everything is proximate. “In the case at bar, the proximity between the appellant and the marihuana could not be closer, short of direct proof that the appellant herself was in exclusive physical possession of the marihuana. She was one of six occupants in a Valiant automobile and was, therefore, whatever her position in the car, literally within arm’s length of the very other occupant of that automobile. The marihuana cigarette being smoked was, at any point in time, within direct physical possession of one of those occupants. Proximity could not be more clearly established.” 11 Md.App. at 518 , 275 A.2d 184 .

(Emphasis supplied). In Johnson v. State, 142 Md.App. 172, 197 , 788 A.2d 678 (2002), drugs were found to be in cozy proximity to a front seat passenger: “Johnson was a front seat passenger in a vehicle in which marijuana was found in the front close to where he was ³⁴⁰ sitting. The marijuana was found within arm’s reach of Johnson[.]” (Emphasis supplied). Distances do shrink, depending on one’s point of view.

In In re Ondrel M., 173 Md.App. 223, 236-37 , 918 A.2d 543 (2007), Judge Woodward also dealt with the quality of proximity in the context of an automobile’s passenger compartment: “First, as to the proximity factor, the marijuana in the crumpled newspaper was found on the floor directly behind the driver’s seat, which was within appellant’s easy reach. While the drugs were closer to the appellant in Larocca [v. State] by being immediately underneath his seat, the marijuana here was still readily accessible to appellant.” (Emphasis supplied). In this case and even assuming, arguendo, that the driver, Ramos, was throwing the contraband out the front passenger window, the contraband, on throw after throw, had to fly right in front of the appellant’s face. He, indeed, would have had to lean back to avoid being hit.

If the appellant had so much as raised his hand, he would have intercepted flying contraband in mid-flight. All of this does not even consider, moreover, the appellant’s inferential proximity to the contraband prior to Detective Jackson’s arrival on the scene, as the appellant and Ramos were quietly drinking beer together. If a mutually convenient spot were the center console between the two front-seat occupants, the observations of Johnson v. State, 142 Md.App. at 200 , 788 A.2d 678 , would be pertinent: “Common sense dictates, however, that a passenger can easily place an object on top of the gear shifter, and similarly can easily remove an object from that location. As is usually the case, the gear shifter was equidistant from both occupants of the vehicle.

We need not be certified automobile mechanics to conclude that the gear shifter was not within the exclusive dominion of the driver, as it was possible for the passenger to place and remove small objects on top of it.” ³⁴¹ Under a variety of possible rationales, the appellant was in proximity to the drugs that were ultimately thrown from the window. What Did The Appellant See? What Did The Appellant Know? The second Folk factor is that of whether “the contraband was within the view or otherwise within the knowledge of the defendant.” 11 Md.App. at 518 , 275 A.2d 184 .

Once again assuming, arguendo, that Ramos rather than the appellant was on the mound for the Fugitives, the contraband, on pitch after pitch, would have had to fly right in front of the appellant’s face on its path out of the window. It could not have been more visible to him without hitting him in the eye. Once again the inference was permissible that the appellant had the requisite knowledge of the contraband unless we were to believe that the appellant had no idea of what was being thrown out the window or of why it was being thrown. This Folk factor as well tilts against the appellant.

The inference was admissible that the appellant could not have been so incredibly oblivious of what was going on around him and of what was likely on the evening’s menu besides the beer. Inference Of A Common Recreational Agenda The third Folk factor does not hurt the appellant. He had no ownership or possessory right in the white Jeep. The fourth Folk factor, however, is another matter.

It is “the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.” 11 Md.App. at 518 , 275 A.2d 184 . At 10:00 p.m. on a June evening, the appellant and Ramos were sitting quietly in the parked Jeep drinking beer together. Somewhere in the vehicle, relatively modest amounts of marijuana and cocaine were close at hand. From the amount of contraband recovered by Detective Jackson, the inference was permissible that the drugs were more likely intended for personal use than for commercial sale.

Although initially having charged possession ³⁴² with intent to distribute, the State dropped those charges before taking the