Moye v. State

ADKINS, Judge. In this case we examine the circumstances under which a person may be considered to have exercised actual or constructive dominion or control over an illegal drug sufficient to support a conviction for possession of that drug. We hold that appellant’s residence at a house in which marijuana and cocaine were found in plain view, combined with his presence in the specific area the drugs were located, was sufficient evidence to support his conviction for possession of those drugs. In doing so, we distinguish these circumstances from those present in the seminal case of Taylor v. State, 346 Md. 452 , 697 A.2d 462 (1997).

On March 6, 2000, officers of the Prince George’s County Police Department responded to an alleged “cutting” at a home located at 3414 Ricky Lane. During a search of those premises, the police discovered cocaine, marijuana, and drug paraphernalia. Kevin Moye, appellant, was convicted by a jury in the Circuit Court for Prince George’s County of possession of marijuana, possession of cocaine, and possession of paraphernalia. As in the trial court, appellant asserts that the contraband discovered by the police did not belong to him.

On appeal, he presents three questions for our review: I. Whether the evidence was sufficient to support appellant’s convictions.

II

Whether the trial court erred by refusing to instruct the jury on the legal definition of control, an essential element of possession. ⁵⁴² III. Whether the trial court erred by failing to limit the jury’s consideration of evidence that appellant was guilty of a “cutting.” Finding no error, we shall affirm the judgments of the circuit court. FACTS AND LEGAL PROCEEDINGS In the early morning hours of March 6, 2000, Prince George’s County Police Officer Robert Black responded to a call to 3414 Ricky Lane. Black testified that he was responding to a reported “cutting.” When he arrived at the scene, he observed Joseph and Yolanda Bullock, the owners of the home, exiting the residence.

Shortly thereafter, Gregory Benson, a tenant who rented the basement of the home from the Bullocks, exited. Black observed cuts on both Yolanda Bullock and Benson. Both the Bullocks and Benson informed Black that appellant was still in the residence. At this point, a number of police officers and a K-9 unit surrounded the home and the officers tried repeatedly to contact appellant.

During this time, police officers observed appellant inside the home, looking out several windows. The police detected appellant’s movement inside the house “first upstairs on the side window and ... also downstairs in the cellar basement area where the curtains [were] angling in the back part of the basement.” Approximately forty minutes after the police arrived, appellant exited the home through a basement door and was arrested. Appellant had a cut on his finger, appeared “a little disoriented,” and was “sweating profusely.” Officer William Silvers also responded to the scene. After appellant was arrested, Silvers entered the home to “make sure there were no other victims, no other suspects or weapons in the house.” Silvers entered the home through the basement door from which appellant exited.

Once inside the basement, Silvers saw “several opened drawers” that contained “individual bags of marijuana in a plastic bag tied at the top, [and] a lot of packaged material.” . He also observed, in ⁵⁴³ different open drawers, a scale, and a dinner plate with a razor blade. He observed a white residue substance on the scale, which was later identified as cocaine. The dinner plate also had “white residue on it,” but there was no evidence as to whether the substance was cocaine.

While searching the basement, Silvers observed a missing ceiling tile. Upon seeing this, Silvers testified that he “for [his safety] and the safety of other officers that were in that house, ... [he] immediately went up and looked in the ceiling to make sure there were no suspects hiding in the ceiling, at which time [he] observed a large bag with leafy green substance.” The bag contained marijuana and cocaine. Silvers further testified that a “burnt homemade cigarette which smelled of marijuana” was recovered from the basement. After receiving Joseph Bullock’s consent to search the rest of the house, Silvers conducted that search and discovered a knife in an upstairs bedroom.

Appellant, Benson, and the Bullocks were charged with drug offenses. Benson and appellant were jointly tried. The cases against the Bullocks never went to trial. Yolanda Bullock pled guilty to possession of marijuana and the case against Joseph Bullock was placed on the STET docket.

At appellant’s trial, Joseph Bullock testified that Benson had rented the basement from him and his wife since 1999, and that appellant lived at the residence as well. After the evidence was received, appellant and Benson moved for judgments of acquittal. The court dismissed the conspiracy charge against both defendants and the possession with intent to distribute cocaine charge against appellant. The jury subsequently returned guilty verdicts against appellant for possession of marijuana, cocaine, and paraphernalia, and acquitted him on the charge of possession with intent to distribute marijuana. 1 This appeal followed. ⁵⁴⁴ DISCUSSION Appellant presents three reasons why he believes his conviction should be overturned.

First, relying on the Court of Appeals’ decision in Taylor, supra, he contends that the evidence was insufficient to establish that he possessed the controlled substances in question. Second, he asserts that the trial court erred by “refusing to instruct the jury on the legal definition of control, an essential element of possession.” Lastly, he argues that the court erred by failing to limit the jury’s consideration that appellant was involved in a “cutting.” We shall address each issue in turn. I. Sufficiency Of The Evidence Appellant contends that “no reasonable jury could have found beyond a reasonable doubt that [appellant] ‘possessed’ the marijuana, cocaine, or drug paraphernalia in question.” He argues that “at most” the evidence establishes that he “(1) was in proximity to illegal drugs and paraphernalia”; (2) “was present in a room where marijuana had been smoked by someone at some unknown time in the past; and (3) that [he] may have had knowledge of the marijuana and paraphernalia that were found by the police in open drawers.” The standard for our review of the sufficiency of the evidence 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.” Bloodsworth v. State, 307 Md. 164, 167 , 512 A.2d 1056 (1986). The standard applies to all criminal cases, including those resting upon circumstantial evidence, see Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (1991), cert. denied, 503 U.S. 1007 , 112 S.Ct. 1765 , 118 L.Ed.2d 427 (1992), because, generally, there is no difference between guilt based in whole or in part on circumstantial evidence and guilt based on direct evidence.

See Mangum v. State, 342 Md. 392, 398 , 676 A.2d 80 (1996). “[C]onviction upon circumstantial ⁵⁴⁵ evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” West v. State, 312 Md. 197, 211-12 , 539 A.2d 231 (1988). Appellant was convicted under Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 287, which prohibits possession of marijuana, cocaine, and drug paraphernalia. Possession is defined as “the exercise of actual or constructive dominion or control over a thing by one or more persons.” Art. 27, § 277(s). In order to sustain a conviction for possession, the “evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited ... drug in the sense contemplated by the statute, i.e., that [the defendant] exercised some restraining or directing influence over it.” Garrison v. State, 272 Md. 123, 142 , 321 A.2d 767 (1974). 2 “The duration of the possession is not material, neither is it necessary to prove ownership by title.” Cook v. State, 84 Md.App. 122, 134 , 578 A.2d 283 (1990), cert. denied, 321 Md. 502 , 583 A.2d 276 (1991).

Knowledge, however, is an essential element of “possession.” The Court of Appeals has explained that “knowledge” is an element of [conviction under section 287]. The accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance. Of course, such knowledge may be proven by circumstantial evidence and by inferences drawn therefrom. Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988).

Appellant chiefly relies on the Court of Appeals decision in Taylor for the proposition that his mere presence in the house with contraband is not, in and of itself, sufficient to establish possession. See Taylor, 346 Md. at 460 , 697 A.2d 462 . In Taylor , the defendant was convicted for possession of marijuana. The evidence at trial established that the police found Taylor in a motel room with four other individuals.

When the ⁵⁴⁶ police entered, Taylor was sleeping, or pretending to sleep, on the floor. The police did not observe anyone using marijuana, but there were “clouds” of marijuana smoke in the room. Upon questioning, one of the occupants of the room voluntarily surrendered marijuana to the police that was contained in two separate travel bags, neither of which belonged to Taylor. Based on this evidence, the trial court found Taylor guilty of possession of marijuana because “the circumstances were sufficient to draw a reasonable inference that [Taylor] was participating with others in the mutual enjoyment of the contraband.” Id. at 456 , 697 A.2d 462 .

The Court of Appeals disagreed. The Court recognized that Taylor “was not in exclusive possession of the premises, and that the contraband was secreted in a hidden place not otherwise known to be within [Taylor’s] control.” On this record, it held that Taylor’s “mere proximity” to the contraband was insufficient to establish knowledge or possession. Id. at 460 , 697 A.2d 462 . In sum, the evidence presented in this case was insufficient to establish that Taylor was in possession of the marijuana seized from [the] carrying bags.

Taylor’s presence in a room in which marijuana had been smoked, and his awareness that marijuana had been smoked, cannot permit a rational trier of fact to infer that Taylor exercised a restraining or directing influence over marijuana that was concealed in personal carrying bags of another occupant of the room. Id. at 463 , 697 A.2d 462 . We do not consider Taylor controlling in the instant case. As recognized by the Taylor Court, “convictions for possession cannot stand when the evidence does not establish, nor provides any reasonable inferences to establish, that the accused exercised dominion or control over the contraband.” Id. at 461 , 697 A.2d 462 .

In Taylor , the evidence was insufficient because the drugs were located in a closed bag and “his mere proximity to the contraband found concealed in a travel bag and his presence in a room containing marijuana smoke were ⁵⁴⁷ insufficient to convict him.” Id. at 463 , 697 A.2d 462 . As we shall discuss, infra, in the instant case, appellant resided at the premises where the marijuana and cocaine were in plain view. An examination of the cases relied on in Taylor supports our view that the Taylor holding was not intended to encompass the facts of this case. In Taylor , the Court of Appeals reviewed the cases in which Maryland appellate courts have found that the evidence was insufficient to support a conviction for possession of a controlled dangerous substance.

In each of the cases addressed by Taylor , the controlled substance was in a closed container or outside of the plain view of the accused. Garrison, supra, and State v. Leach, 296 Md. 591 , 463 A.2d 872 (1983), were the two Court of Appeals cases relied upon in Taylor . In Garrison , the defendant’s husband had possession of 173 glassine bags of heroin and was in the process of discarding the heroin in the toilet. The heroin was not in the plain view of the defendant, who was found in bed, in a bedroom not adjacent to the toilet where the drug was discarded.

Garrison, 272 Md. at 126 , 321 A.2d 767 . In Leach , the defendant, with his brother, had “joint dominion and control ... over the entire apartment and over everything contained anywhere in it.” Leach, 296 Md. at 596 , 463 A.2d 872 . While executing a valid search warrant, the police found phencyclidine (PCP) in a closed container in a bedroom closet. The Court held that this evidence was insufficient to support the defendant’s conviction, because “fe]ven though [the defendant] had ready access to the apartment, it cannot be reasonably inferred that he exercised restraining or directing influence over PCP in a closed container on the bedroom dresser or over paraphernalia in the bedroom closet.” Id.

(emphasis added) Taylor also discussed several decisions of this Court, but in none of these were the illegal substances out in the open or in the plain view of the accused. See, e.g., Tucker v. State, 19 Md.App. 39, 45 , 308 A.2d 696 (1973) (holding evidence insufficient to establish defendant had physical or constructive pos ⁵⁴⁸ session when the drugs that were discovered in a hotel room that he shared with a co-defendant were secreted and out of plain view); Barksdale v. State, 15 Md.App. 469, 475 , 291 A.2d 495 (1972) (evidence insufficient to support conviction when defendant was merely present in an apartment in which a woman’s purse and a cigarette case containing heroin were found); Puckett v. State, 13 Md.App. 584, 587-88 , 284 A.2d 252 (1971) (holding evidence of marijuana plants on premises defendant owned with his wife insufficient where marijuana plants were grown in an “uncultivated” area and there was a “total absence of evidence of [the defendant’s] involvement”); Haley v. State, 7 Md.App. 18, 33-34 , 253 A.2d 424 (1969) (holding evidence insufficient to support conviction when none of the defendants had any proprietary interest nor previous association with the premises and there was no evidence of how long the defendants had been on the premises prior to the arrival of the police); Wimberly v. State, 7 Md.App. 302, 308 , 254 A.2d 711 (1969) (holding evidence insufficient for conviction for possession of controlled dangerous substances when the drugs were not found on the person of or in the same room as the defendant, but were only found on other persons on the premises). In this case, unlike Taylor and the cases it relied on, both marijuana and cocaine were in the open and were not concealed. 3 The marijuana was in an open drawer, as was the dinner plate with the white powdery residue, and a razor blade on top of the plate. A nearby open drawer held scales with the cocaine residue.

Significantly, Bullock’s testimony established that appellant resided at the house. Although appellant’s bedroom was not in the basement where the drugs were located, there was free access between the upstairs and the ⁵⁴⁹ basement. Moreover, the police observed appellant in the basement of the residence where the cocaine and marijuana were discovered. Appellant’s residence in the premises and his presence in the room where the plain view contraband was discovered allows