In Re Ondrel M.

WOODWARD, Judge. On July 21, 2005, in a Juvenile Petition filed in the Circuit Court for Anne Arundel County, sitting as a juvenile court, appellant, Ondrel M., was charged with possessing a controlled dangerous substance, namely, marijuana, which if he were an adult, would violate Maryland Code (2002, 2006 Supp.), § 5-601 of the Criminal Law Article. 1 In an adjudica ²²⁷ tory hearing held before a master on September 21, 2005, appellant was found to have committed the delinquent act 2 of possessing marijuana and was adjudged at disposition to be a child in need of guidance, treatment, or rehabilitation. 3 After an exceptions hearing on December 12, 2005, the circuit court affirmed the master’s findings, conclusions, and disposition. Thereafter, appellant filed this timely appeal and presents this Court with the following questions: 1. Did the trial court err in finding that the evidence was sufficient to sustain a finding that [appellant] was in possession of marijuana? 2.

Did the trial court err in allowing a police officer to testify, based on his training, knowledge, and experience as a police officer, that he detected an odor of marijuana? For the reasons set forth herein, we affirm the judgment of the circuit court. BACKGROUND Appellant’s delinquency adjudication and disposition arose from a high speed chase that ended at approximately 1:00 a.m. on May 16, 2005, when the four-door maroon Mercury Mystique in which appellant was riding was finally stopped on Route 2 in Anne Arundel County. At the adjudicatory hear ²²⁸ ing, held on September 21, 2005, the sole witness was Anne Arundel County police officer Brett Tawes. 4 According to Officer Tawes, there were four occupants in the car, and appellant was the front seat passenger.

When Officer Tawes, along with other officers, finally stopped the car after the chase, the driver continued to accelerate up a hill, pushing two police cars with his car. Because the driver failed to stop and all of the occupants “were not opening the windows[,]” the officers had to “take out all of the windows of the vehicle” in order to reach into the car and turn off the ignition. Upon approaching the vehicle, Officer Tawes smelled an odor of marijuana emanating from inside. Officer Tawes testified that in his training at the police academy and in his work in the field as a police officer, he had been exposed previously to the smell of burning marijuana and therefore could recognize its smell. 5 He then described the smell as he approached the car as “a burning type of weed ... not a smell of tobacco smoke[,]” that he “thought it would be marijuana.” All four occupants were removed from the vehicle and detained while a search was conducted.

The search revealed a green leafy substance, later identified as marijuana, in the middle of a crumpled one-quarter or one-half sheet of newspaper lying behind the driver’s seat on the floor. 6 The police ²²⁹ also discovered two pellet guns, one under the driver’s seat and the other under the front passenger seat where appellant was sitting. No drugs were found on appellant’s person. On cross-examination, Officer Tawes stated that “[t]here was trash everywhere in the car.” The pursuit and subsequent stop of the car caused damage to a total of five police cars. 7 At the close of the State’s case, appellant made a motion for judgment of acquittal, which the master denied. The master determined that appellant had been in possession of marijuana and thus was guilty of a delinquent act.

Thereafter, at the disposition hearing, the master found appellant to be a child in need of guidance, treatment, or rehabilitation. The master ordered appellant to spend the rest of the day in lock-up and suspended any further commitment in favor of probation until October 31,2005. 8 ²³⁰ On September 29, 2005, appellant filed a notice of exceptions to the findings and conclusions of the master at the adjudicatory hearing. On December 12, 2005, a hearing on the exceptions was held, and in an Order dated the same day, the circuit court denied the exceptions and affirmed the decision of the master. Appellant filed a timely Notice of Appeal on December 29, 2005.

DISCUSSION I Sufficiency of the Evidence A Standard of Review The standard of review of the sufficiency of the evidence is well established. In State v. Smith, 374 Md. 527, 533-34 , 823 A.2d 664 (2003), the Court of Appeals stated: The standard for appellate review of evidentiary sufficiency is 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. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder. We give due regard to the [fact finder’s] findings off acts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.

We do not reweigh the evidence, but we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt. A valid conviction may be based solely on circumstantial evidence. The same standard applies to all criminal cases, including those resting upon circumstantial evidence, since, generally, proof of guilt based in whole or in part on evidence is no different from proof of guilt based on direct eyewitness accounts. ²³¹ (Alteration in original) (citations omitted) (internal quotations omitted). “This same standard of review applies in juvenile delinquency cases. In such cases, the delinquent act, like the criminal act, must be proven beyond a reasonable doubt.” In re Timothy F., 343 Md. 371, 380 , 681 A.2d 501 (1996) (citation omitted).

Further, we are cognizant of the principle that [a] trial court fact-finder, i.e., judge or jury, possesses the ability to “choose among differing inferences that might possibly be made from a factual situation” and this Court must give deference to all reasonable inferences the fact-finder draws, regardless of whether we would have chosen a different reasonable inference. State v. Suddith, 379 Md. 425, 430 , 842 A.2d 716 (2004) (quoting Smith, 374 Md. at 534 , 823 A.2d 664 ). B Appellant argues that the evidence was insufficient to sustain the master’s finding that he committed the delinquent act of possessing marijuana because “[t]he State’s case failed to establish that [appellant] knew of the presence of the marijuana in rear of the vehicle or that he exercised actual or constructive control over the marijuana[]” based on “[t]he mere fact that [] [he] was present in the vehicle[.]” In particular, appellant points to the fact that only a very small quantity of marijuana was found “in the middle of a crumpled up piece of newspaper, located on the floor, behind the driver’s seat, in a vehicle that had garbage located throughout it.” The State maintains that “[t]he evidence was sufficient to [appellant’s] possession of the marijuana found in the vehicle” in which appellant was a passenger. In particular, the State asserts: [T]he occupants [of the car] were aware that the police were chasing them, the marijuana was in easy reach of [appellant], and it is reasonable to infer that the occupants of the ²³² car knew that if they were stopped, the odor or marijuana would alert an officer to the presence of the drugs.

In rendering her findings at the hearing, the master stated: What we have here is a situation that I think is probably closer to the [State v. Suddith] case where a passenger in the vehicle claimed not to have any knowledge of marijuana after a vehicle — I believe that one was a stolen vehicle and a pursuit and a crash and stuff comes spilling out of the vehicle. And as I recall, nothing in particular was found on that individual, but there was sufficient evidence, based on material that was in there and the fact that they were in the vehicle. We are not talking about a locked box in the tru[n]k of the. The officer’s testimony may be convenient as to smelling marijuana, but it is certainly not rebutted.

So, it gives some indication that all state there was knowledge, if not [ ] indeed some degree of participation, as some of the cases say, in the mutual enjoyment of the contraband. So, the smell gives rise to at least an indication of knowledge. He is in the vehicle. There is CDS in the back ... to his left in the passenger side.

That, the drugs, the smell of marijuana, indicate to me that, again, knowledge of the material in the vehicle; in proximity to the material. The material was not locked away and not secreted in any particular form. It was held, yes, but I think it is enough. Section 5-101(u) of the Criminal Law Article of the Maryland Code defines possession as “exercising] actual or constructive dominion or control over a thing by one or more persons.” “Dominion or control” over a controlled dangerous substance within the meaning of the statute requires the accused to have “‘exercised some restraining or directing influence over it.’ ” State v. Leach, 296 Md. 591, 596 , 463 A.2d 872 (1983)(quoting Garrison v. State, 272 Md. 123, 142 , 321 A.2d 767 (1974)).

An accused also must have “knowledge” of the contraband. That is, the accused “must know of both the presence and the general character or illicit nature of the ²³³ substance.” Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988). “[S]uch knowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” Id. Further, “[i]t 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.” Suddith, 379 Md. at 432 , 842 A.2d 716 . However, “ ‘[c]ircumstantial evidence which merely arouses suspicion or leaves room for conjecture is obviously insufficient.

It must do more than raise the possibility or even the probability of guilt. [I]t must ... afford the basis for an inference of guilt beyond a reasonable doubt.’ ” Taylor v. State, 346 Md. 452, 458 , 697 A.2d 462 (1997) (alterations in original) (quoting 1 UNDERHILL, CRIMINAL EVIDENCE § 17, at 29 (6th ed. 1973)). In our recent case of Larocca v. State, 164 Md.App. 460, 473 , 883 A.2d 986 , cert. denied, 390 Md. 285 , 888 A.2d 342 (2005), we stated that the following factors are relevant to determining the issue of possession: 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge 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. We find Larocca to be the most factually apposite case to the case sub judice. In Larocca , two undercover police officers were in a high drug area conducting a “trash pull.” Id. at 466 , 883 A.2d 986 .

One of the officers observed the appellant exit and then re-enter a Honda Civic, and upon the appellant’s re-entry into the vehicle, smelled burning marijuana. Id. The officer did not see the appellant carrying or holding anything when the appellant exited and reentered the vehicle, and could not see inside the vehicle because its windows were tinted and the rear window was covered with snow. Id.

According to the testimony of the two other passengers in the, a marijuana ²³⁴ blunt was being smoked and passed between those two passengers in the vehicle, neither of whom was the appellant. Id. The officer witnessing the above events told the other officer what he had seen and smelled. Id.

They then requested a uniformed colleague to pull over the car, and it took that uniformed officer about three to five minutes to make the traffic stop. Id. at 466-67 , 883 A.2d 986 . Upon the request of the two undercover officers, the three persons inside the vehicle rolled down the windows, and there was an “odor of burnt marijuana coming from inside the car.” Id. at 467 , 883 A.2d 986 . The appellant was seated in the front passenger seat and a search of his person revealed no drugs or paraphernalia.

Id. at 465, 467 , 883 A.2d 986 . A subsequent search of the car revealed a white, “opaque” plastic bag containing five individually wrapped baggies of located on the floor underneath the appellant’s seat “near the edge of the seat, in the area immediately behind and next to where the appellant’s legs had been when he was seated.” Id. at 467-68 , 883 A.2d 986 . None of the car’s occupants claimed ownership of the white bag of marijuana at the time of the stop. Id. at 468 , 883 A.2d 986 .

The appellant was arrested and charged with possession of marijuana with intent to distribute and possession of marijuana. Id. The circuit court found the appellant guilty of both counts. Id. at 471 , 883 A.2d 986 .

On appeal, the appellant claimed that the evidence was legally insufficient to support his conviction for possession with intent distribute, maintaining that his mere proximity to the drugs was not enough to support a finding that he knew that illicit drugs were present in the car. Id. In considering the factors of proximity and knowledge, this Court pointed out that “the white bag was not concealed or hidden, or in another room of a house. It was located immediately underneath the appellant’s seat in a small car, in arm’s reach, where it was readily accessible to him but not to other occupants of the vehicle.” Id. at 476 , 883 A.2d 986 .

We then stated that “the white bag was not personal to someone other than the appellant, to a particular occupant of the car, or to anyone!,]” and ²³⁵ thus it was not “[t]he kind of evidence that ... negated any reasonable inference of knowledge and possession....” Id. We reiterated the principle that “[l]ine of sight or plain view evidence is not essential to show knowledge of the presence of contraband, however. When an object is out of sight, it is not necessarily ‘out of mind.’ ” Id. at 478-79 , 883 A.2d 986 . Regarding the evidence of the appellant’s mutual use and enjoyment of the drugs, we opined: There was direct evidence that marijuana was being smoked in a communal fashion in the passenger compartment of the small vehicle, with the windows rolled up. .... [I]t is common knowledge that people use marijuana by sharing a single cigarette and inhaling the smoke from the cigarette and the ambient smoke.

A fact-finder reasonably could credit that part of the evidence showing that the marijuana blunt was being smoked and shared inside the Honda, discredit the testimony that the appellant merely watched as that happened, and conclude that the appellant was sharing in the blunt as well. Even if the blunt were not passed to the appellant, however, the evidence showed that he was participating in its use baby sitting in the closed, small space and breathing marijuana smoke. Certainly, he knew by his senses of sight and smell that marijuana was in the car and was being used. Larocca, 164 Md.App. at 479-80 , 883 A.2d 986 (emphasis added) (footnote omitted).

Furthermore, we considered, as an additional relevant factor, evidence tending to show that the vehicle occupants were likely to be involved in a drug-related common enterprise. We said: In State v. Suddith ... the Court of Appeals held that the observation in [Maryland v. Pringle, 540 U.S. 366 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003)], that car occupants are likely to be involved in a common enterprise, is relevant to a sufficiency of the evidence assessment. Although the Pringle case addresses probable cause, it nevertheless establishes generally the reasonableness, and hence permissibility, of an inference that people who know each other and are traveling ²³⁶ in a car in circumstances indicating drug using or selling activity are operating together, and thus are sharing knowledge of the essentials of their operation. Id. at 481 , 883 A.2d 986 (citations omitted).

Applying this factor to the facts in Larocca , we stated: Here, the circumstances permitted an inference that the three occupants in the Honda were engaged in a marijuana-focused common enterprise. They knew each other; were together in a small car; the driver was making a stop for one of the passengers (the appellant), in a neighborhood where illegal drugs were a serious enough problem to have undercover officers assigned to a trash pulling detail; there was communal marijuana smoking inside the car; the driver had rolling papers; and the back seat passenger had marijuana on his person. Id. Upon consideration of all of the factors relevant to determining the issue of possession, we concluded: These facts, pertaining to immediate and primary proximity, knowledge based on location and accessibility, the absence of a personal link between the contraband and a particular person, mutual use and enjoyment of contraband, and common, viewed in combination, permitted a inference that the appellant knew of the presence of the bag of marijuana, and its illicit character, and exercised dominion and control over it.

Thus, a reasonable fact-finder could infer, from the circumstantial evidence presented here, that the appellant was in possession of the white bag of marijuana. Id. at 482 , 883 A.2d 986 . Based on our opinion in Larocca , and viewing the evidence in light most favorable to the State, we conclude that the evidence the case sub judice was sufficient for the trier of fact to conclude that appellant was in possession of marijuana beyond a doubt. First, as to the proximity factor, the marijuana in the crumpled newspaper was found on the floor directly behind ²³⁷ the driver’s seat, which was within appellant’s easy reach.

While the drugs were closer to the appellant in Larocca by being immediately underneath his seat, the marijuana here was still readily accessible to appellant. Moreover, like Larocca , none of the occupants claimed any possessory interest in the marijuana contained in the newspaper at the time of the stop. Second, regarding the knowledge of the contraband, the drugs in the instant case were not hidden from appellant’s view as was the bag of drugs in Larocca . Here, the newspaper containing the was in plain view on the floor behind the driver’s seat.

Although Officer Tawes testified that there was trash throughout the vehicle, he did not testify that the trash covered or otherwise obscured appellant’s view of the newspaper. Moreover, the odor of emanating from the vehicle, as well as appellant’s apparent refusal to roll down his window when the police were attempting to stop the car, permitted the fact-finder to infer that appellant knew of the marijuana’s presence in the vehicle. Third, as in Larocca , appellant in the case sub judice did not have ownership or some possessory right in the vehicle in which the contraband was found. Fourth, concerning evidence of mutual use and of the drugs, the testimony of Officer Tawes that he smelled the odor of marijuana upon approach of the car supports an inference that appellant was engaged in mutual use and enjoyment of.

As we stated in Larocca : “Certainly, [the appellant] knew by his senses of sight and smell that marijuana was in the car and was being used.” Id. at 479-480 , 883 A.2d 986 . At oral argument, appellant’s counsel correctly observed that in Larocca there was direct evidence