Handy v. State

HOLLANDER, J. A jury in the Circuit Court for Wicomico County convicted Richard D. Handy, appellant, of numerous drug and weapons charges. His appeal presents two thorny issues. The first pertains to the sufficiency of the evidence with respect to convictions arising from appellant’s presence in the home of another during a police raid. The second requires us to ⁵⁴³ determine whether the court was entitled to impose separate sentences for each gun “possessed” by the defendant in regard to a single drug trafficking conviction.

In turn, we must ascertain, in a case of possession of a firearm in connection with a drug trafficking offense, whether the unit of prosecution is the gun or the drug trafficking offense. In particular, Handy was convicted of possession of marijuana with intent to distribute, in violation of Md.Code (2002, 2005 Supp.), § 5-602 of the Criminal Law Article (“C.L.”) (Count 2); possession of marijuana, in violation of C.L. § 5-601(c)(1) (Count 4); possession of “controlled paraphernalia,” in violation of C.L. § 5-620 (Count 6); possession of drug paraphernalia, proscribed by C.L. § 5-619 (Counts 7 and 8); four counts of possession of a firearm “during and in relation to a drug trafficking crime” (Counts 9, 11, 12, 13), in violation of C.L. § 5 — 621(b)(1); possession of a regulated firearm by a person under 21 years of age (Counts 20, 22, 23, 24), in violation of Md.Code (2003, 2005 Supp.), § 5-133(d) of the Public Safety Article (“P.S.”); and altering the serial number on a firearm (Count 26), in violation of P.S. § 5-142(a). 1 As to the four firearms that appellant was convicted of possessing in relation to the single drug trafficking offense, the court imposed four sentences, two of which were consecutive and two of which were concurrent to the drug trafficking crime. 2 In total, appellant was sentenced to twenty-five years’ imprisonment, with all but fifteen years suspended. On appeal, Handy presents two questions, which we quote; ⁵⁴⁴ 1. Was the evidence sufficient to sustain the convictions?

If a defendant is convicted of a single drug trafficking crime, and possession of several firearms during and in relation to drug trafficking, and if a single violation of Criminal Law Article § 5-621 (b)(1) occurs, are multiple consecutive sentences for each firearm illegal? For the reasons that follow, we shall reverse three of appellant’s convictions and sentences under C.L. § 5-621 for possession of a firearm in relation to a drug trafficking crime (Counts 11, 12, 13), but affirm the remaining convictions and sentences. FACTUAL AND PROCEDURAL SUMMARY 3 The incident occurred on February 7, 2005. Appellant, who was born on October 22, 1986, was eighteen years old at the time of the occurrence and at the trial, held in June 2005.

At approximately 8:30 p.m. on February 7, 2005, Salisbury City Police Detective Brian Tilghman, along with other members of the Wicomico County Narcotics Task Force (the “Task Force”), executed a search and seizure warrant at 115 Delaware Avenue in Salisbury. Because the officers had information that “there were numerous subjects inside the residence,” they used a “break and go” entry method, by which they broke a window located about “six or seven feet” from the side door. Detective Tilghman explained that the distraction gave the officers “a little bit of time to get through the door and kind of have a little bit of the element of surprise.” Tilghman was the third officer of the 12-person team to enter through the side door into a small hallway leading from the outer door to the kitchen. The first two officers “continued into the living room,” which was adjacent to the kitchen. ⁵⁴⁵ Detective Tilghman estimated the kitchen to be “maybe a 15-foot room.” Upon entering the kitchen, appellant was one of two subjects “running” through the kitchen, “directly at” Tilghman.

Appellant took “four or five steps” across the length of the room. As he ran, “[h]e was in arms reach of at least four firearms which were clearly visible upon [Detective Tilghman’s] entry to the residence.” Two of the weapons were located on the kitchen table and the other two were located on a pair of stools “right beside the table,” which were around three feet tall. Detective Tilghman testified: Immediately upon entering the kitchen, it was — they were large, three of the weapons were large revolvers, kind of like you see back in the wild, wild west days. There were two firearms, one large revolver and one small semiautomatic handgun on the kitchen table, and then two other large revolvers on top of two stools which were stacked up like a shelf in the kitchen.

Some of them — I would have been blind not to see them. It was that blatant. After “a brief struggle,” appellant was subdued and placed in flex-cuffs. According to Maryland State Trooper First Class Kenneth Moore, a member of the Task Force, Handy did not have any drugs, paraphernalia, weapons, or ammunition on his person, nor any significant amount of money.

Trooper Moore testified as an expert “in the valuation and identification of controlled dangerous substances” and “the common practices of users and dealers of controlled dangerous substances.” He recalled that he and a fellow officer conducted a physical surveillance of the residence “for about an hour and 15 minutes” before the police made their entry. Moore was parked across the street from the house, and was “able to observe ... the front door as well as the side door.” According to Moore, “the only person that came or went from that residence” was “a confidential informant” who had been sent by the police. Before entering through the side door, Moore waited “out front until the residence was secured.” At around 8:30 p.m., after Detective Tilghman’s team made the initial entry, Troop ⁵⁴⁶ er Moore entered the house and “could smell burnt marijuana.” There were “eight persons total in the house.” Moore did not know whether the police had announced their presence, because he “didn’t make entry.” But, he heard “people inside, a female saying, F, it’s the police. So I am assuming somebody yelled something or at least they recognized them.” He immediately observed that appellant and Gary Simpson, a juvenile, were being detained in the kitchen, and that a “number of persons in the living room area” were also in custody.

Moore also observed four handguns in the kitchen-two weapons on the table and two resting on stools. Trooper Moore summarized his observations of the crime scene, stating: As soon as you enter the kitchen area, you see a very small kitchen, kind of cluttersome, some small chairs just to the left as you enter the door, there is a kitchen table with a window and the blinds had fallen down on top of the table. Sitting on top of the table, you saw a revolver style handgun on the left-hand side of the table. On the right-hand side, there was a small semiautomatic style handgun.

Immediately to the left of the table, there was — I’m not sure if there was a small table or two stools. I think it may have been two stools with a box or a board or something on top of it. On top of there were two additional revolvers. You could see that there is a small closet just to the right of the table.

The two persons that had been detained are to the middle of the table, I guess, more or less in the floor just a matter of feet from the table. * * * The kitchen wasn’t that big. It may have been 10 feet. 12 feet at the most in length and then probably 8 feet, it may have been 8 by 10 total, the entire kitchen. ❖ * * In the closet, it was a partially open closet. Upon looking in that closet, there was a sawed-off shotgun ... determined to be a 16 gauge. ⁵⁴⁷ * * * On top of the kitchen stove that was there, there was some U.S. currency there, two cell phones and several small bags with like letter symbols, yellow symbols on it that each contained what I believed to be marijuana. That package was taken and sent to the Maryland State Police lab for analysis.

There was also on the kitchen table a box with some dice it in [sic], some plastic bags, sandwich bags, a scale, a small digital scale. On that scale as well as a razor blade, you could see white trace amounts of a substance. To me through my initial observations, I believed it to be cocaine residue. There was a small trash can sitting behind the kitchen table.

The entire top of that was filled with partial plastic bags. What we run into in investigating drugs [sic] crimes, that persons often used [sic] the sandwich bags, reason why is it doesn’t raise any eyebrows, but they take and pack the substance that they are selling via cocaine, marijuana, what have you, down to the corners of the bags, tie them and they cut it, and that’s how they distribute whatever they are selling at the time. * * * [T]hey take the stuff and open [the bag], and stuff it in it, and then whatever they are selling as a product, the packaging gets sent down to the corners of the bag, and then that way, it [sic] can seal it off and tie it easier, and what you have left is just a partial bag, the top half of the bag with both corners gone. There was several of those bags on the immediate top of the trash can in the kitchen. At the scene, appellant gave Trooper Moore his date of birth.

At the detention center, appellant again provided the same information. 4 At the scene, Moore asked Handy “if he ⁵⁴⁸ wanted to speak ...,” and appellant responded that “he didn’t know shit and didn’t have anything to say.” 5 Trooper Moore testified that “five plastic baggies” were seized from the stove. Based on laboratory analysis, the five plastic bags contained 6.3 grams of marijuana. The digital scale and razor blade recovered from the kitchen table both “contained trace amounts of cocaine.” From the kitchen closet, the police recovered a Winchester .16 gauge shotgun, which was “loaded with single rounds.” The two weapons retrieved from the stools included a Ruger Model .22 revolver and a Smith and Wesson .357 Magnum. According to Moore, the Ruger “was loaded with six live .22 caliber rounds in it,” and the Smith and Wesson was “loaded with six rounds of live ammunition.” The weapons seized from the kitchen table included a Ruger Super Blackhawk .44 Magnum revolver and a Berreta semiautomatic .22 caliber handgun.

The Ruger Super Blackhawk “was loaded with six rounds of .44 Magnum ammo.” Moore testified that it appeared that, through the use of a “metal object,” someone “actually gouged the metal numerous times in an attempt to deface the serial number.” The Berreta was loaded “with one in the chamber as well as five additional rounds and the magazine in the weapon.” It, too, appeared to have been “scraped and scratched as if someone had attempted to remove off the serial number from the weapon.” However, the police were able to discern the serial numbers on both the Ruger and the Berreta. 6 In reviewing a sketch of the first floor of the house, which was “not to scale,” Moore confirmed that it was “a fair representation of the layout of the home.” According to ⁵⁴⁹ Moore, the living room was the “same width” as the kitchen and “[m]aybe 14 feet or so long, 16 feet tops.” Describing the sketch of the premises, Moore stated: “It contains where the table was placed inside of the kitchen, where that shelf, the two stools are put together and acted as a shelf where the two handguns were recovered from ... the kitchen. The closet, where the stove and refrigerator or [sic] were positioned in there....” 7 The State also presented five photographs to the jury. According to Moore, one photograph “depicts the top of the trash bag ... found in the kitchen with all the plastic baggies, partial baggies sitting on top of it.” With respect to a third photograph, Moore stated: “This is a picture of the top of the stove as we found it that day to the right-hand corner, bottom right corner of the stove, you see that’s the marijuana, suspected marijuana, that was located there.” Referring to the next photograph, Moore testified: “This is a picture of the small stand or the two stools that were placed together that were located to the left of the kitchen table in which two of the revolvers were recovered from. This is as they were found....

The stand is right there. That’s the ⁵⁵⁰ kitchen table [next to it], and that’s the stand as soon as you come in [through the hallway entrance].” As to the final photograph, Trooper Moore said: “This is a picture of the kitchen table. It depicts the revolver on the left-hand side of the table. The semiautomatic, we actually unloaded to make it safe.... ” The following testimony is pertinent with respect to the alleged drug operation: [THE PROSECUTOR]: Trooper Moore, can you explain the significance of the packaging of the marijuana as it relates to personal consumption versus someone dealing drugs? [TROOPER MOORE]: Combined with the scales, plastic baggies and stuff that were there, the marijuana was broken down into individual amounts as you have found it there.

It wasn’t any kind of bulk matter. It was sold in what is commonly sold as 10 or 20 dollar bags, depending on who the seller is. They were readily accessible. It was pretty apparent that they were probably there for whoever the next customer may be to come up to purchase the marijuana. [THE PROSECUTOR]: Can you explain or describe to the jury the significance of the scales and how that relates to your thought regarding personal consumption? [TROOPER MOORE]: Normal persons that are going to use, be it smoke marijuana, ingest some type of cocaine or other substance, they normally don’t weigh it ...

Scales, what we find are permanently used to reweigh and help package additional quantities ... [THE PROSECUTOR]: The packaging devices or the remainder of the bags that were located in the trash, explain the significance of those as it relates to the individual who would be using drugs versus an individual who would be selling them. [TROOPER MOORE]: Persons that want to buy or us e the drug, they normally buy it already packaged. It’s already in that little knot I described earlier or that small ⁵⁵¹ plastic bag. They normally don’t have the need to break it down into small baggies and cut it up, and upon looking at those baggies, there were several baggies there. There were probably 20 to 30 baggies that were in that trash can that had been cut or been manufactured or changed to what I recognized to be consistent with a person involved in the drug trade or distribution of drugs. 8 [THE PROSECUTOR]: Can you explain to the jury whether individuals work together in a drug dealing business or is it solely a sole proprietorship? [TROOPER MOORE]: No sir.

Now days, [sic] everybody tries to find a partner, some kind of team player, if you will, to work with. [THE PROSECUTOR]: Can you think of any legitimate reason why a user of controlled dangerous substances would have the remnants of those baggies that you saw at this residence? [TROOPER MOORE]: No, sir. According to Trooper Moore, “the majority of drug dealers” in the county “arm themselves for fear ... of other drug dealers” robbing them. The following exchange is noteworthy: [THE PROSECUTOR]: What again, as an expert, what is the significance of those firearms coupled with the drugs and the circumstances within that house? [ 9 ] ⁵⁵² [TROOPER MOORE]: The persons in this house had either been robbed or were anticipating being robbed by someone. There is no doubt in my mind that they had armed themselves just for that purpose.

They were either attempting to or going to retaliate against somebody or something was out there that we didn’t know about, about some of, be it turf war, drug war, something going on. I mean, that’s very unusual to find that amount of guns. They were open to everybody in the house. Anybody in the house could have been armed at any given second.

The people in the kitchen were just a matter of feet from all the guns. The people in the living live [sic] room could get to them in five or six short steps. Those guns were placed so that anybody in that residence could have access to them. [THE PROSECUTOR]: Is there any significance regarding the location of the marijuana, its proximity to an entry or exit of a residence? [TROOPER MOORE]: During the controlled purchases which we made that day, given the information we received leading up to that day, was that the side door, the kitchen area is where the dealing went as well as where the guns were, so it made common sense to us, perfect sense, that once we went in, that was there because that’s the sales room more or less. That’s where they conduct their business..

That’s where they are prepared to defend themselves or what have you with the guns, and it is easy access for the drugs that they have there. They can come in here, they get it here, a short business, and they are gone. [THE PROSECUTOR]: In your training and experience, if these firearms were being possessed for the protection of the property, just the residence, itself, is there any reason why those firearms would be loaded and left out in the fashion that they were? ⁵⁵³ [TROOPER MOORE]: No, sir. [THE PROSECUTOR]: What does that indicate to you? [TROOPER MOORE]: That they were there primarily for the drug dealers for the dealing that was going on to protect their profit or to fend off or do what they had to do to help their drug business. [THE PROSECUTOR]: To your knowledge, was there anything within that residence that prohibited or prevented Mr. Handy from having access to those firearms? [TROOPER MOORE]: As I said, anybody in that living room, in that kitchen were just a few steps away from any of those guns. (Emphasis added.) On cross-examination, Trooper Moore conceded that, prior to the night of the raid, the police “hadn’t actually sat and conducted any kind of lengthy surveillance” of the house, although they had “heard information about it.” He identified Latonya Smith as the tenant and sole adult who resided at the residence, along with her two small children, who were present during the raid. 10 Moore was not sure whether appellant lived at the house. A man referred to as “Mr. Brown” was also present.

When Brown tried to run through the front door of the house as the police made their entry, Moore tackled him. Brown “had some drugs on him.” Defense counsel questioned Moore about some of the contraband admitted into evidence. With respect to the scale, Trooper Moore stated that it was a “[h]igh precision pocket balance,” which could be used for purposes other than to weigh drugs. Moore confirmed that the marijuana seized by the police weighed “about six grams,” and that each of the “little bags” weighed “about a gram,” which “would represent 5, 10, to $20.” The trace amounts of cocaine were too small for the police to weigh.

Moore also acknowledged that the guns confiscated from the kitchen were “not illegal in and of ⁵⁵⁴ themselves.” Although the police attempted to obtain fingerprints from the weapons, the lab technician found “[n]one of any evidentiary value.” On redirect, Trooper Moore clarified that although the weapons seized at the house were generally legal, it was illegal for a person under 21 years of age to possess them. He also explained that it is not uncommon for an individual participating in a drug operation not to have any currency. He stated: “Normally, one person will sell, distribute or carry, and another person will be the money man. That way if they get caught, they don’t all get caught with one pile, and they lose all of it.” At the close of the State’s case, the defense moved for judgment of acquittal.

As to the marijuana, the defense argued: We move for judgment of acquittal because there has been no testimony that my client possessed the marijuana, that he knew the marijuana was on the table, that he exercised any dominion and control over the marijuana ... It’s not his house. The defense made similar arguments with respect to possession of the sandwich baggies, scale, and razor blade. The prosecutor responded: Your Honor, there are several factors in determining possession and certainly the knowledge element, unless there is an admission, you are never going to know exactly what a person is thinking, so you have to infer intent or the thought process through the totality of the circumstances.

And given the location of the marijuana, given the location of other contraband which would support knowledge of all the contraband within the residence, certainly the contraband located in the kitchen which is what we are talking about here, that would support his knowledge, and I believe that in the light most favorable to the State, there is ample evidence of joint constructive possession with the other occupants within the house. ⁵⁵⁵ The court denied the motion, based on “the proximity and the other surrounding circumstances.... ” As to the drug trafficking charges, defense counsel then argued: I move for judgment of acquittal each [sic] of those counts for the same reasons, and that is the State has failed to prove that there was a nexus between the guns on the tables and the opinion testimony by the officer that he thought a drug trafficking crime had occurred. That the State did not sufficiently prove that any drug trafficking crime occurred, except that there were drugs present where some firearms were present. Further, there was no testimony that these were regulated firearms which I think is a necessary element. And there has been no argument, or there has been no testimony, I would submit, that my client possessed or used those drugs[ 11 ] in relation to any drug — or participated in any drug trafficking crime.

The State responded: ‘Your Honor, it’s a matter of law. And included in the instruction submitted to the Court that the handgun is a regulated firearm. Handguns have been introduced into evidence.” The court denied the motion, stating: “There is a sufficient nexus at this point that a rationale [sic] trier or fact could find the essential elements of those charges.” Regarding the charges of underage possession of a regulated firearm, counsel for the defense moved for judgment of acquittal “for the same reason,” and further asserted that the State “failed to prove [appellant] is under the age of 21.” Finally, the defense moved for judgment of acquittal as to the charge of altering a serial number on a firearm on the ground that the State had failed to prove that appellant possessed the firearm in question. The court reserved ruling on the underage possession charges and denied the motion with respect to ⁵⁵⁶ the alteration of a serial number charge, noting that “if the jury can find possession ... there is a presumption he is the one who obliterated it.” Thereafter, the defense called Handy as its only witness.

Handy confirmed that he gave his birth date (October 22, 1986) to the police when they asked for it. Appellant testified that he lived with his mother at 648 West Main Street in Salisbury, and confirmed that he was in Salisbury on the night of February 7, 2005. He described the course of events as follows: I was coming from my house on February 7th, and my friend, Gary Simpson, was at the store, I was coming from down the street because I just got finished eating with my mom, and he asked me, did I want to go to 115 and deliver a video game?[ 12 ] And I told him, yes. So he said we had to go to his house first.

So we went to his house. I had to go get my jacket because it was cold outside. So then his mother told him to be back after he gets done delivering the game. So we go there.

He delivers the game, and he was chit-chatting a little bit and just as we was about to leave, the police came in. Handy claimed that he arrived at the house in question “[l]ike two to three minutes” before the police entered. According to Handy, he had never been at that house before, although he knew who lived there. He recalled that he was in the living room when the police arrived, while Gary was in the kitchen.

When asked to describe what happened when the police entered, he responded: “They came in, and they came in with guns and stuff, and I didn’t know what was going on. They said, get down on the ground, so that’s what I did. Then the officer that was arresting me, he grabbed me up, threw me into the kitchen and then hit me in the face. Then he put me under arrest.” Appellant had no guns, ammunition, drugs, ⁵⁵⁷ or drug paraphernalia on his person.

Indeed, he claimed that the first time he saw the guns was “when [he] went in there,” and he denied knowing that there were guns on the kitchen table or elsewhere. Handy also denied that the marijuana or any of the other contraband belonged to him. In particular, appellant denied any knowledge of the razor blade and the scale on the kitchen table, and claimed that he was not aware that “any of those guns or drugs or paraphernalia were in the kitchen.” He responded in the negative when asked if he had “even gone in the kitchen before the police officers pushed [him] in the kitchen ...” Further, he stated that he did not smoke any marijuana while he was at the house, and that nobody had smoked it in his presence. When asked whether anybody tried to speak with him after his arrest, Handy said: “I’m not sure which one of the officers it was, but he asked me if we was to do a fingerprint on any of these guns, would my fingerprints be on them, and I told him no.” On cross-examination, appellant reiterated that Latonya Smith lived at the house.

Appellant was not sure what time he arrived at the residence, but he had left his own house “around 7:30.” From his house, Handy went to a store called “Sandi’s One Stop,” to “get something to drink,” and unexpectedly encountered Gary. It took him “like a minute, minute or two” to get to the store, and he was at the store “[f]or a minute” before he left with Gary to go to Gary’s house. According to appellant, it took the pair “[a]bout five minutes” to get to Gary’s, and they only stayed at Gary’s house for “one to two minutes.” Appellant recalled that he entered Smith’s house through the front door, and there were “just a whole lot of people” at the house. He saw Ms. Smith, but he did not recognize any of the other people who were there.

The following exchange is pertinent: [PROSECUTOR]: When you — so it is your testimony this afternoon that you didn’t run into the kitchen? [APPELLANT]: No, sir. ⁵⁵⁸ [PROSECUTOR]: So Detective Tilghman who testified this morning, he’s lying?[ 13 ] [APPELLANT]: I didn’t run at him when the police came in. They came in there. They was like, get down on the ground. I didn’t do nothing but get on the ground.

I never ran at them. [PROSECUTOR]: So Detective Tilghman is lying? [APPELLANT]: Yes, sir. In rebuttal, the State recalled Trooper Moore. He stated that, during his surveillance of the residence, he was positioned “[m]aybe 45 to 50 yards away” from the house, and “both doors” were visible. He was certain that nobody had entered the front door during his watch; the police informant had entered through the side door of the house.

Moore testified: From my vantage points [sic] in watching it, you could see anybody that came up and down the street as well as passed by in front of the residence. The driveway leading up to the right side of the residence where the side door was, you could see portions of the front yard just to the opposite side of the front porch, the front porch, itself, the front door as well as the side door. You could see anybody that came in and out. I actually observed — there is [sic] cat or it turned out to be a cat, I thought it was some kind of rat, skunk.

It was fairly close. Everything was visible. Lighting wasn’t bad, wasn’t an issue. You could have see [sic] anybody that came or went from that residence in and around that yard.

On cross-examination, Moore confirmed that “it was dark that night,” but “[i]t was well lit enough” so that he was able to see the cat. He also confirmed that, at the time, he had been “trying to coordinate with [the other officers] the execution of the search warrant.” At the close of evidence, counsel for the defense renewed the motion for judgment of acquittal. The court again denied ⁵⁵⁹ the motion. As noted, appellant was convicted of numerous offenses.

The court held a sentencing hearing on July 1, 2005, at which the State argued, in part: Your Honor, I have had the occasion to run Mr. Handy’s juvenile history ... these would be his first adult convictions. However, Mr. Handy does have two commitments on his record. He has an extremely lengthy history of contact with the juvenile justice system---- And obviously the State doesn’t need to belabor the point that guns and drugs are about as bad a combination as you can get in this county or any other place in this state. Mr. Handy is exposed under the firearm and drug trafficking crimes to five years without parole under four counts.

And while the legislature has provided or has not excluded the possibility of running those times concurrent with one another, I don’t know that that is necessarily the appropriate course. I do know that, however, whatever you sentence, the maximum on those counts would be 20 years. You have to impose the minimum mandatory of five and that five is without parole ... Defense counsel provided the court with information as to the sentences imposed on four others charged in the incident.

Only one received a sentence as large as six years. The court observed that appellant’s juvenile record was “horrendous, including 20 prior offenses in the juvenile system including six assaults, three thefts, one robbery, one unauthorized use of a motor vehicle, the others being disorderly conduct and malicious destruction, two commitments.” Thereafter, the court imposed a total sentence of fifteen years. 14 We shall include additional facts in our discussion. ⁵⁶⁰ DISCUSSION I. Appellant argues that the evidence presented at trial was insufficient to sustain his convictions, because it faded to show that he “exercised any dominion or control over the contraband.” As Handy notes, of the eight adults found in the house at the time of the police raid, Ms. Smith was the only person who actually lived at the premises. He adds: “There was no evidence, whatsoever, that Appellant ever slept there or even spent more than ‘about and hour’ in that house,” and “no evidence tied him to anything at all in the house____” Handy continues: Assuming, arguendo, that Appellant was not asleep at that time, there was no evidence that Appellant was smoking marijuana, much less that he exercised dominion or control over, the baggies of marijuana, the firearms, or the paraphernalia. Mere presence when others are smoking marijuana, does not make a person guilty of possession.

Handy adds that no marijuana or contraband, including “paraphernalia, weapons, drugs, firearms, rolling papers, razor blades, ammunition, or any ‘significant amount of money,’” were found on his person. Moreover, he notes that “[t]he police found no fingerprints ‘of any evidentiary value’ on any of the firearms,” he “made no incriminating statements,” and ⁵⁶¹ “the police never even suggested that he appeared to be under the influence of marijuana.” Appellant elaborates: It is not enough, that an individual was in close proximity to contraband so that he could have exercised dominion or control over it. For example, a guest at a party where marijuana is being smoked by others is not guilty of possession of marijuana, if he is offered a puff but, not wishing to partake, declines the offer. Even though the guest was in close proximity to the contraband and knew of its presence, he is not guilty of possession, because he did not exercise any dominion or control over it.

(Emphasis in brief.) Analyzing the factors set forth in Folk v. State, 11 Md.App. 508, 518 , 275 A.2d 184 (1971), discussed infra, the State maintains that “three of the four determining factors are present” in this case. First, the State points out that “Handy was in very close proximity to the contraband” when the police raided the residence. Moreover, it notes that the firearms were “in plain sight on the kitchen table” at the time of the arrest; the “digital scale, empty plastic sandwich bags, and a razor” were also visible; and the other contraband seized by the police was also easily accessible and in the “same ‘very small’ room as Handy.” In the State’s view, the fact that the guns, drugs, and paraphernalia were in “plain sight” supports the conclusion that appellant “had knowledge of the contraband.” In addition, the State argues that the circumstances of Handy’s presence support “a reasonable inference that he was involved in the use of marijuana and the handguns.” In this regard, it points out that “when the police entered the kitchen, Handy ran toward the entry team and attempted to get past them, presumably to leave through the door the team entered.” The standard of review for the sufficiency of evidence is well settled. We must 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.” Jackson v. ⁵⁶² Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

See Moye v. State, 369 Md. 2, 12 , 796 A.2d 821 (2002); White v. State, 363 Md. 150, 162 , 767 A.2d 855 (2001); State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994). But, “it is not the function of the appellate court to undertake a review of the record that would amount to a retrial of the case.” State v. Pagotto, 361 Md. 528, 533 , 762 A.2d 97 (2000). Nor is it the function of the appellate court to determine the credibility of witnesses or the weight of the evidence. Jones v. State, 343 Md. 448, 465 , 682 A.2d 248 (1996); McCoy v. State, 118 Md.App. 535, 537 , 703 A.2d 237 (1997), cert. denied, 349 Md. 235 , 707 A.2d 1329 (1998).

Of import here, the same standard applies to all criminal cases, including those resting upon circumstantial evidence. Jensen v. State, 127 Md.App. 103, 117-120 , 732 A.2d 319 , cert. denied, 356 Md. 178 , 738 A.2d 855 (1999). “[C]ircumstantial evidence alone is ‘sufficient to support a conviction, provided the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused.’ ” Painter v. State, 157 Md.App. 1, 11 , 848 A.2d 692 (2004) (citation omitted). Accord Hebron v. State, 331 Md. 219, 226 , 627 A.2d 1029 (1993); Wilson v. State, 319 Md. 530, 536-37 , 573 A.2d 831 (1990); Hall v. State, 119 Md.App. 377, 393 , 705 A.2d 50 (1998). As the Court said in Mangum v. State, 342 Md. 392, 400 , 676 A.2d 80 (1996), “ ‘[cjircumstantial evidence is as persuasive as direct evidence.

With each, triers of fact must use their experience with people and events to weigh probabilities.’ ” (Citation omitted.) See Hebron, 331 Md. at 226 , 627 A.2d 1029 ; Wagner v. State, 160 Md.App. 531 , 560 n. 22, 864 A.2d 1037 (2005); Allen v. State, 158 Md.App. 194, 249 , 857 A.2d 101 (2004), aff'd, 387 Md. 389 , 875 A.2d 724 (2005); Hagez v. State, 110 Md.App. 194, 204 , 676 A.2d 992 (1996). Conversely, “a conviction upon circumstantial evidence alone will not be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” Hebron, 331 Md. at 224 , 627 A.2d 1029 . See Wilson, 319 Md. ⁵⁶³ at 537, 573 A.2d 831 ; West v. State, 312 Md. 197, 211-12 , 539 A.2d 231 (1988). Appellant was found guilty, inter alia, of violating C.L. § 5-602 (Count 2), which makes it unlawful to “possess a controlled dangerous substance in sufficient quantity ... to indicate ... an intent to ... distribute[.]” In addition, he was found guilty of four violations of C.L. § 5-621(b)(l), which proscribes the possession of “a firearm under sufficient circumstances to constitute a nexus to” a “drug trafficking crime” (Counts 9,11, 12, and 13).

The State has the burden to prove that the accused had actual or constructive possession and control of the contraband. See Taylor v. State, 346 Md. 452, 458-59 , 697 A.2d 462 (1997). “Possess” under § 5-101(u) of the Criminal Law Article “means to exercise actual or constructive dominion or control over a thing by one or more persons.” “ ‘Control’ of a controlled dangerous substance has been defined as the exercise of a ‘restraining or directing influence over’ the thing allegedly possessed.” Taylor, 346 Md. at 457 , 697 A.2d 462 ; see McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675 (1997). Contraband need not be found on a defendant’s person in order to establish possession. State v. Suddith, 379 Md. 425, 432 , 842 A.2d 716 (2004).

To prove possession of contraband, whether actual or constructive, joint or individual, the State must prove, beyond a reasonable doubt, that the accused knew “of both the presence and the general character or illicit nature of the substance.” Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988). Thus, “[a]n individual’s knowledge of the contraband is a key element in finding that individual guilty of possessing it ...” Suddith, 379 Md. at 432 , 842 A.2d 716 . Indeed, knowledge of the presence of an object is generally a prerequisite to the exercise of dominion and control. Dawkins, 313 Md. at 649 , 547 A.2d 1041 .

Knowledge “may be proven by circumstantial evidence and by inferences drawn therefrom.” Id. at 651 , 547 A.2d 1041 . See White, 363 Md. at 161 , 767 A.2d 855 . ⁵⁶⁴ We turn to review the case law that is pertinent to our analysis. In Folk v. State, supra, 11 Md.App. 508 , 275 A.2d 184 , the Court discussed constructive possession of contraband. We observed that four factors formed “[t]he common thread” of the cases sustaining convictions based on a theory of joint possession, id at 518, 275 A.2d 184 : 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 4) 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.

Although most of the cases applying the Folk factors concern constructive possession of illegal drugs and drug paraphernalia, this Court has employed the same analysis in cases involving constructive possession of other contraband. See, e.g., McIntyre v. State, 168 Md.App. 504, 521-22 , 897 A.2d 296 (2006) (applying the factors to possession of child pornography); Samuels v. State, 54 Md.App. 486, 495 , 459 A.2d 213 (1983) (applying the analysis to possession of stolen goods). In McDonald v. State, 141 Md.App. 371 , 785 A.2d 836 (2001), we addressed the issue of constructive possession of a handgun. Quoting Price v. State, 111 Md.App. 487, 499 , 681 A.2d 1206 (1996), 15 we recognized that “ ‘the proximity between the ⁵⁶⁵ defendant and the contraband and the fact that the contraband was within the view ... of the defendant’ ” were among the “several factors” relevant to the analysis.

McDonald, 141 Md.App. at 380 , 785 A.2d 836 . In McDonald, the weapon was found on the floor of the car in which the defendant was riding, and the defendant was “the only person in the back seat of the car.” Id. He was also “the person closest to the weapon.” Id. Moreover, the police officer saw the defendant “reaching down to place something on the floorboard,” and observed “the butt of a handgun sticking out between appellant’s feet.” Id.

We regarded the evidence as sufficient to support a finding that the defendant constructively possessed the handgun, and that he “put it on the floor in an attempt to hide it from the police.” Id. at 380, 785 A.2d 836 . See also State v. Smith, 374 Md. 527, 550 , 823 A.2d 664 (2003)(holding the evidence was sufficient to support a finding that the lessee driver of a vehicle had knowingly transported a handgun recovered from the trunk of the vehicle in question). Cook v. State, 84 Md.App. 122 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991), a case concerning the constructive possession of narcotics, is particularly analogous to the case sub judice. On appeal, Martin Cook and William Darby challenged the sufficiency of the evidence to support their convictions for possession of cocaine with intent to distribute and conspiracy to distribute cocaine.

Id, at 126, 578 A.2d 283 . Applying the Folk factors as to constructive possession, this Court said: Significantly, in the case sub judice, three of the above elements are present. When the police executed the raid, they found appellants within several feet of a table laden with cocaine and packaging paraphernalia. The cocaine and accompanying paraphernalia were not secreted away, and ⁵⁶⁶ one could not conclude, by any stretch of the imagination, that appellants were unaware of its presence.

The house was one from which the police had observed a man exit on several occasions to conduct drug transactions. The house was sparsely furnished and was without electricity. This evidence, in the expert opinion of Officer Trogdon, indicated that the house was being used as a base for a drag operation in which the appellants played a role. Therefore, despite the lack of proof that appellants had a proprietary or possessory interest in the house, the evidence was sufficient to permit the jury to conclude that appellants exercised joint and constructive possession of the cocaine.

Id. at 134-35, 578 A.2d 283 (emphasis added). See also Suddith, 379 Md. at 443 , 842 A.2d 716 (finding the evidence sufficient to sustain the passenger’s convictions for possession of drugs and drug paraphernalia found “strewn throughout” the inside of a stolen vehicle); In re Ondrel M., 173 Md.App. 223, 236 , 918 A.2d 543 (2007) (holding the evidence sufficient to support a finding that the juvenile, a front seat passenger of a vehicle occupied by four persons, was in possession of marijuana recovered from a crumpled piece of newspaper behind the driver’s seat); Larocca v. State, 164 Md.App. 460, 482 , 883 A.2d 986 (holding the evidence sufficient to support a finding that the defendant, a front seat passenger of a vehicle occupied by three individuals, was in constructive possession of marijuana found in white bag directly under the defendant’s seat), cert. denied, 390 Md. 285 , 888 A.2d 342 (2005); Archie v. State, 161 Md.App. 226, 247 , 867 A.2d 1120 (holding the evidence was sufficient to support a finding that the defendant possessed contraband found in the kitchen of a residence where the defendant was found in the nearby bathroom attempting to dispose of contraband down the toilet), cert. denied, 387 Md. 462 , 875 A.2d 767 (2005). Moye, 369 Md. at 24 , 796 A.2d 821 , in which the Court concluded the evidence was insufficient to sustain the defendant’s drug possession convictions, is noteworthy by way of comparison. The police in that case responded to a report that someone had been attacked with a knife.

Id. at 5 , 796 ⁵⁶⁷ A.2d 821. Several people were in the residence when the officers arrived, including a couple who leased the house, a man who rented the basement, and the defendant. Id. According to the testimony, the defendant had been living with the couple, but it was unclear how long he had stayed there.

Id. at 18, 796 A.2d 821 . The couple and the basement tenant exited the residence shortly after the police arrived. Id. at 6 , 796 A.2d 821 . From the outside, the police observed the defendant moving around the first floor of the house.

They later saw him looking out of a -window in the basement. Shortly thereafter, the defendant was arrested as he exited from a door leading out of the basement. Id. When the police entered the basement, they found three “open or partially opened drawers” that contained several small baggies of marijuana, a small digital scale with white residue, and a dinner plate with a razor blade and white residue on its surface.

Id. at 7 , 796 A.2d 821 . No drugs or paraphernalia were found on the defendant’s person, however. Id. at 9 , 796 A.2d 821 . In reversing Moye’s drug convictions, the Court of Appeals said, id. at 17-18 , 796 A.2d 821 : [W]e are left with nothing but speculation as to Moye’s knowledge or exercise of dominion or control over the drugs and paraphernalia found in the [couple’s] basement.

Similar to the defendant in Taylor , Moye did not have any ownership or possessory right in the premises where the drugs and paraphernalia were found ... No evidence was adduced at trial as to how long Moye had been staying at the [couple’s] home. On this record, therefore, we cannot conclude that Moye had any ownership or possessory right to or in the [couple’s] home. As to the proximity factor, the Court said, id. at 18, 796 A.2d 821 : There is also nothing in the record establishing Moye’s proximity to the drugs during the time he was in the basement.

The evidence failed to establish where Moye was located in the basement in relation to the substances in question and the duration of his sojourn. The trial testimo ⁵⁶⁸ ny established that one of the officers observed Moye looking out of a window at the back of the basement shortly before he exited the house. The record does not indicate where the window at the back of the basement was in relation to the drugs and paraphernalia found in the counter drawers. The photographs entered in evidence at trial, however, show that the window above the counter area where the drugs were found was covered completely with cardboard, which would have made it impossible for the police to have observed Moye through that vantage point.

Moreover, the Court determined that it was “impossible” to discern whether, “during the time [the defendant] traveled into the basement from the first floor of the home prior to exiting through the basement door, he had, in fact, stood over the drawers in the counter and had the ‘plain view’ vantage point urged by the State.” Id. at 20 , 796 A.2d 821 . The Court reasoned, id.: [T]here were no facts established at trial as to whether Moye was present in the room with the drugs for any given amount of time other than to say that he left [the couple’s] home through the basement door. The State offered no evidence to suggest any relationship between [the basement tenant] and Moye which would have established that Moye frequented the basement ... or that he was aware of what items were stored in the drawers of the counter area. Thus, we are confronted with a situation where a person has been convicted of possessing controlled dangerous substances and yet we cannot gauge whether he even knew the contraband was in the basement and controlled or exercised dominion over the CDS.

We also conclude that based on the evidence in this record, no reasonable inference could be drawn that Moye was participating with others in the mutual enjoyment of the contraband. There is no evidence concerning whether Moye [or the other occupants] were observed using drugs on the night in question. Although the facts may lead a trier of fact to believe that sememe may have been using