In Re Melvin M.

ALPERT, J. The Circuit Court for Charles County, sitting as a juvenile court, found Melvin M., appellant, involved in the delinquent act of theft of property (automobile) worth $500 or more. See Md.Code (2002), Crim. Law Art. § 7-104(c), (g). The court found appellant not involved on a charge of fleeing and eluding a police officer.

Appellant was subsequently placed on probation under the supervision of the Department of Juvenile Services and ordered to pay $100 in court costs. Appellant asks a single question on appeal: Was there sufficient evidence of possession of the stolen automobile to sustain his conviction for theft? For the following reasons, we shall reverse the judgment. FACTS At appellant’s trial, two witnesses testified for the State: Margaret Eads, the owner of the stolen vehicle, and Trooper Thomas Scott of the Maryland State Police.

Appellant presented no testimonial evidence. Viewing the evidence in the light most favorable to the State, the following was established. Around 9:00 a.m. on July 12, 2008, Ms. Eads parked her 1994 four-door Geo Prism at a friend’s house in the Georgetown area of Washington, D.C. She left the keys in the car and the windows rolled down. She explained that the car was old, and although valuable to her, she did not believe it was valuable to anyone else.

Around 5:00 p.m., she returned to where she had left her car; it was gone. The parties stipu ⁴⁸⁰ lated that the car was worth more than $500, and Ms. Eads had not given anyone permission to use it. Around 11:00 p.m. that same day, Trooper Scott was in his police car on routine patrol when he observed the Geo Prism make a left turn on a red arrow at the intersection of Mattawoman Drive and Route 301 North in Charles County. When the trooper attempted to stop the vehicle, the vehicle initially slowed down and pulled into the right lane but then pulled back into the lane of traffic and accelerated away.

The trooper gave chase. During the chase, the vehicle attempted to turn from Northbound 301 onto Cedarville Road. As it did so, the vehicle hit a curb and flipped over onto its roof, landing in the parking lot of the corner 7-Eleven store. Coincidently, several officers from the Prince George’s County Police Department were sitting in a police car in the parking lot of the 7-Eleven when the accident occurred.

When Trooper Scott drove his car into the parking lot, an estimated twenty to thirty seconds after he saw the vehicle start to flip over, he observed appellant and a Prince George’s County police officer standing twenty to thirty feet from the vehicle. Trooper Scott parked his car and walked to where the driver of the Geo Prism was being arrested, near another convenience store across Route 301. Additionally, the trooper learned that a passenger was arrested behind the 7-Eleven. When the trooper approached the appellant, he told him that he was not driving the vehicle but was a passenger. 1 Appellant also said that he knew the vehicle was stolen.

Although the trooper testified that all of the occupants had “fled” the car, when asked on cross-examination why he thought appellant had fled, he testified that he based his conclusion on the fact that all the occupants were either arrested or stopped away from the vehicle. ⁴⁸¹ The three occupants suffered minor injuries and were taken to a hospital. A subsequent search of the vehicle revealed that the vehicle’s keys were in the ignition — the ignition was not “popped.” The vehicle was totaled. After hearing the evidence and counsels’ arguments, the master found appellant involved in theft but not involved in fleeing and eluding. Appellant filed exceptions, but the juvenile court agreed with the master.

The court explained that although there was no evidence that appellant took the vehicle, it found appellant involved in theft based on the inference regarding the unexplained possession of recently stolen goods. DISCUSSION Appellant argues that his theft conviction must be reversed. He argues that although he knew that the car was stolen, the evidence was insufficient to prove that he, a mere passenger in the car, was in possession of the vehicle. We agree and so shall reverse his conviction. 2 Our review in a juvenile delinquency case is “limited to 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.” In re Heather B., 369 Md. 257, 270 , 799 A.2d 397 (2002) (quotation marks and citations omitted). “Judging the weight of evidence and the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact.” In re Timothy F., 343 Md. 371, 379 , 681 A.2d 501 (1996) (citations ⁴⁸² omitted). “When the trier of fact is the trial court, its judgment on the evidence will be set aside only if it is clearly erroneous.” Id. at 379-80 , 681 A.2d 501 .

(citations omitted). As with direct evidence, circumstantial evidence will sustain a conviction when all the facts taken together do not require that the fact-finder resort to speculation or mere conjecture. See Moye v. State, 369 Md. 2, 13 , 796 A.2d 821 (2002) (“A conviction based solely on circumstantial evidence should be sustained only where ‘the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.’ ”) (quoting Wilson v. State, 319 Md. 530, 537 , 573 A.2d 831 (1990)). See also Taylor v. State, 346 Md. 452, 458 , 697 A.2d 462 (1997) (“[W]hen the evidence equally supports two versions of events, and a finding of guilt requires speculation as to which of the two versions is correct, a conviction cannot be sustained.”) (citations omitted). “Where it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the trier of fact could have made other inferences from the evidence or even refused to draw any inference, but whether the inference it did make was supported by the evidence.” State v. Suddith, 379 Md. 425, 447 , 842 A.2d 716 (2004) (quotation marks, brackets, and citation omitted).

Section 7-104(c) of the Maryland Consolidated Theft Statute provides: A person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen, if the person: (i) intends to deprive the owner of the property; (ii) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (iii) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property. ⁴⁸³ (Emphasis added). If the property is worth $500 or more, the crime is a felony subject to imprisonment not to exceed 15 years and/or a fíne not to exceed $25,000. Crim. Law § 7-104(g). “We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief[.]” Burns v. State, 149 Md.App. 526, 552 , 817 A.2d 885 (2003) (quotation marks, citation, and emphasis omitted).

In sum, possession is an element of the crime of theft and a requirement for application of the above inference. The question before us then is whether there was sufficient evidence of possession to warrant application of the inference and sustain the conviction for theft. We hold that there was not. Possession may be actual or constructive, exclusive or joint.

Taylor, 346 Md. at 458 , 697 A.2d 462 . While the theft statute does not define possession, the dangerous substances section does. Section 5-101(u), Crim. Law Art., defines “possess” as “to exercise actual or constructive dominion or control over a thing by one or more persons.” “Control” of a 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 (quotation marks and citations omitted).

In the dangerous substance context, we have listed the following factors as relevant to determine possession: 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. Larocca v. State, 164 Md.App. 460, 473 , 883 A.2d 986 (quoting Folk v. State, 11 Md.App. 508, 518 , 275 A.2d 184 (1971)), cert, denied, 390 Md. 285 , 888 A.2d 342 (2005). ⁴⁸⁴ In Burns, supra, we noted the “[sjhifting notions of possession in different contexts[.J” Burns, 149 Md.App. at 551 , 817 A.2d 885 . In that case, Earl Burns was one of three occupants — the right, rear-seat passenger — in a vehicle stopped by the police. Id. at 530 , 817 A.2d 885 .

The police recovered from the car, among other things, a loaded stolen handgun under the front passenger seat. Id. Burns was convicted of, among other things, illegal possession of a regulated firearm by a convicted felon and theft of the handgun. Burns appealed raising the sufficiency of the evidence to sustain his convictions.

We affirmed his possession conviction but reversed his theft conviction. In the context of determining whether there was sufficient possession to support his convictions for possession of a handgun and theft of a handgun, we stated: What is illustrated by the present contention is that the notion of possession in the context of one type or category of criminal behavior cannot too glibly or easily be equated with possession in the different context of another type or category of crime. All possessions are not the same, and some possessions are more logically potent than others. With respect to crimes involving such things as narcotics or guns, for instance, the focus of the law is essentially on forbidden and dangerous behavior.

The possessory crimes in those areas deliberately cast a broad net, ensnaring even peripheral participants who may be only joint possessors for an hour or two. The focus is on the conduct of the moment, and the possession may carry no deeper implications. With respect to crimes against property, by contrast, the focus is on the item of property, and the concept of possession, either as a crime in its own right or as an evidentiary predicate for another larceny-related crime, casts a much tighter net with a narrower mesh. Particularly as an evidentiary predicate for scienter, possession generally contemplates something more by way of continuing and exclusive exercise of dominion and control over property than is required to show that a defendant was merely a participant ⁴⁸⁵ or joint possessor in some variety of prohibited, but possibly short-lived, behavior.

Id. at 551 , 817 A.2d 885 . We further stated: There may, of course, be factual scenarios in which joint possessors of stolen property may both, or all, be in such firm and continuing control of the property as to support an inference of mutual guilt even with respect to crimes against property. Frequently, however, the joint possession, albeit enough to convict of a crime involving forbidden behavior, does not establish enough of a connection to convict of a property crime. As a matter of law, it cannot be said that joint possession of a stolen item either is or is not an adequate predicate from which to infer that a particular joint possessor was the thief of the item or had knowledge of the theft.

There is no uniform answer. The adequacy of the predicate, as a pure matter of fact, will depend upon the random and ad hoc circumstances of each particular instance of joint possession. Id. at 553 , 817 A.2d 885 . See also Smith v. State, 415 Md. 174 , 999 A.2d 986 (2010) (discussing the parameters of joint possession in the context of controlled dangerous substance laws).

The Maryland appellate courts have not addressed the question before us, whether a mere passenger in a car that he knows is stolen may be convicted of the