Moye v. State

⁵ BATTAGLIA, J. In the present matter we are called upon to consider whether a person may be found guilty of possession of a controlled dangerous substance (“CDS”) and / or possession of drug paraphernalia in violation of Maryland Code (1957, 1996 Repl.Vol), Art. 27, §§ 287 and 287A by virtue of having been staying in a house and having been present in the dwelling’s basement in which drugs were located inside drawers which were open or partially open. Petitioner, Kevin Moye, argues that the evidence was insufficient to sustain his convictions for possession of marijuana and cocaine and possession of drug paraphernalia. We agree and therefore shall reverse. I. Facts In the early morning hours of March 6, 2000, Prince George’s County Police received a call that a “cutting” 1 was in progress at 3414 Ricky Avenue in Temple Hills, Maryland.

The home was leased by Yolanda and Joseph Bullock, a husband and wife, who rented out the basement to Greg Benson. All of the occupants of the Bullocks’s residence were present in the home on March 6th, along with petitioner Kevin Moye, the brother of Yolanda Bullock, who may have been staying in the Bullocks’s home. 2 ⁶ When the police arrived at the home, Yolanda Bullock came out of the house to meet them and stated that someone had cut her foot. She was followed by her husband, Joseph Bullock, who was uninjured. Shortly thereafter, Greg Benson came out of the house with cuts on both of his legs and told the police that someone else remained in the home.

The police set up a barricade around the home and contacted the Emergency Service Team, a specialty assault weapons team, for support. The police observed a black male, later identified as Moye, the petitioner, on the first floor of the Bullocks’s home moving from windows on the left side of the house to windows at the front of the house. The police used a public announcement system to ask Moye to come out of the house under threat of sending in a K-9 unit. Once the K-9 announcement was made, Officer William R. Silvers, Jr. observed Moye looking through one of the windows at the back of the house on the first floor and then through a window in the back of the basement area.

Thereafter, Officer Silvers saw no further movement within the house. Several minutes elapsed before Moye exited the Bullocks’s home from a door leading out of the basement area which had been rented to Benson. Moye proceeded to the top of the basement steps on the outside of the home, where the officers arrested him. Officer Robert Black transported Moye to the hospital following his arrest so that he could receive treatment for a cut on his finger.

Following Moye’s arrest, Officer Silvers testified that he and Officer Walden went to the back of the house to “make sure there were no other victims, no other suspects or weapons in the house.” The officers entered the Bullocks’s home through the basement door which had been used by Moye to leave the home. The basement area, as described by Officer Silvers, consisted of a small hallway opening into a larger living area bounded on one side with a long counter area encasing a sink, kitchen cabinets, and drawers. Three of the ⁷ drawers were open or partially opened and contained several small baggies of marijuana, a small digital scale betraying white residue, and a dinner plate upon which rested a razor blade and white residue. Officer Silvers noticed a missing ceiling panel above the counter area.

When he stood on the counter top to look into the ceiling, he discovered a bag containing marijuana and crack cocaine. No other drugs or paraphernalia were found anywhere else in the house. The Bullocks, Benson, and Moye were all indicted with charges of possession of cocaine with intent to distribute in violation of Maryland Code (1957, 1996 Rep. VoL, 2001 Supp.), Art. 27, Section 286(a)(1), 3 possession of cocaine in violation of Maryland Code (1957, 1996 Rep.

VoL), Art. 27, Section 287, 4 possession of marijuana with intent to distribute in violation of Maryland Code (1957, 1996 RepLVol., 2001 Supp.), Art. 27, ⁸ Section 286(a)(1), possession of marijuana in violation of Maryland Code (1957,1996 Repl.Vol.), Art. 27, Section 287, conspiracy to violate the controlled dangerous substances law of Maryland with regard to the cocaine, and possession of drug paraphernalia in violation of Maryland Code (1957, 1996 Repl. VoL), Art. 27, Section 287A. 5 ⁹ On September 27, 2000, trial commenced against both Moye and co-defendant, Greg Benson. 6 The State conceded that at no time did the police find drugs on the person of Kevin Moye, nor had he been tested for drugs at the time of his arrest. The State presented evidence that the digital scale found in the basement area tested positive for cocaine residue, although no drug testing was conducted on the plate upon which white powder residue was found. The evidence established that there was 0.07 grams of marijuana contained in the small baggies found in the counter drawers and 60.22 grams of marijuana along with 29.82 grams of cocaine in the bag found in the ceiling panel of the basement.

Moye moved for judgment of acquittal 7 at the close of the State’s case, arguing that the decision in Taylor v. State, 346 Md. 452 , 697 A.2d 462 (1997), disposed of the issues in the case. Moye asserted that the State had failed to demonstrate that he had exercised dominion or control over the drugs found in the basement of the Bullocks’s home and failed to show that he had known that the drugs existed. The trial court granted the motion for judgment of acquittal on the charge of conspiracy to distribute cocaine but denied the ¹⁰ motion as to all other charges. Neither Moye nor Benson called any witnesses, and at the close of the case Moye renewed his motion for judgment of acquittal as to all remaining counts.

At that juncture, the trial judge granted the motion with regard to the charge for possession with intent to distribute cocaine. The case proceeded to the jury on the charges of possession of cocaine, possession of marijuana, possession with intent to distribute marijuana, and possession of drug paraphernalia. 8 The jury returned its verdict on September 28, 2000, finding Moye guilty of possession of cocaine, possession of marijuana, and possession of drug paraphernalia, and not guilty of posses ¹¹ sion with the intent to distribute marijuana. 9 On October 23, 2000, the trial court sentenced Moye to four years imprisonment for possession of cocaine concurrent with one year for possession of marijuana, with all but two years suspended and credit for time served and fined him $100.00 for possession of drug paraphernalia. On January 22, 2001, Moye filed a Motion for Modification and Reduction of Sentence pursuant to Maryland Rule 4-345, arguing inter alia, that “the controlled dangerous substances and paraphernalia recovered in this case were located in a residence where [Moye] had been present but was not a resident,” and “[t]hat neither any controlled dangerous substance nor paraphernalia were recovered from [Moye’s] person.” The trial court denied the motion on July 2, 2001. Petitioner appealed the final judgment to the Court of Special Appeals, which affirmed his conviction.

See Moye v. State, 139 Md.App. 538, 541 , 776 A.2d 120, 122 (2001). The Court of Special Appeals held that Moye’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.” Id. at 541 , 776 A.2d at 122 . In reaching its holding, the Court of Special Appeals emphasized that the facts of this case were distinguishable from Taylor v. State, supra, and the cases cited therein, because those cases involved situations where controlled dangerous substances were located in a closed container or outside of the plain view of the accused. See Moye, Id. at 547-48, 776 A.2d at 125-26 .

Moye filed a Petition for Writ of Certiorari with this Court, which we granted, 366 Md. 274 , 783 A.2d 653 (2001), to consider the following: ¹² 1. Where drugs and paraphernalia were found in open drawers in the basement of a private residence, and the record shows that Petitioner and the lessees of the house live upstairs and that the basement is rented to a fourth individual, is Petitioner’s mere presence in the basement sufficient to sustain convictions for possession of CDS and possession of paraphernalia? 2. Did the instruction given fail to inform the jury that it could convict Petitioner of possession of CDS and possession of paraphernalia only if it found, beyond a reasonable doubt, that Petitioner did in fact exercise some dominion or control over the CDS and paraphernalia? For the reasons set forth below, we reverse the Court of Special Appeals’s decision and Moye’s conviction on the basis of insufficiency of the evidence.

Therefore, we need not and will not address petitioner’s second question.

II

Standard of Review The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336, 337 (1994). We view the evidence in the light most favorable to the prosecution. See id.

(citing Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979) and Branch v. State, 305 Md. 177, 182-83 , 502 A.2d 496, 498 (1986)). We give “due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675, 685 (1997), cert. denied, 522 U.S. 1151 , 118 S.Ct. 1173 , 140 L.Ed.2d 182 (1998) (quoting Albrecht, 336 Md. at 478 , 649 A.2d at 337 ). Although our analysis does not involve a re-weighing of the evidence, we must determine whether the jury’s verdict was supported by either direct or circumstantial evidence by which any rational trier of fact could find Moye guilty beyond a reasonable doubt of the ¹³ various possession charges. See White v. State, 363 Md. 150, 162 , 767 A.2d 855, 862 (2001); Garrison v. State, 272 Md. 123, 128 , 321 A.2d 767, 770 (1974).

The State’s case against Moye for possession of a controlled dangerous substance and possession of paraphernalia depended on circumstantial evidence of joint and constructive possession of the contraband. While a valid conviction may be based solely on circumstantial evidence, it cannot be sustained “on proof amounting only to strong suspicion or mere probability.” White, 363 Md. at 163 , 767 A.2d at 862 (explaining that “[circumstantial evidence which merely arouses suspicion or leaves room for conjecture is obviously insufficient”) (quoting Taylor, 346 Md. at 458 , 697 A.2d at 465 )(internal quotations omitted). A conviction based solely on circumstantial evidence should be sustained only where “the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” Wilson v. State, 319 Md. 530, 537 , 573 A.2d 831, 834 (1990); West v. State, 312 Md. 197, 211-12 , 539 A.2d 231, 238 (1988).

III

Discussion Moye was convicted of possession of cocaine and marijuana in violation of Art. 27, Section 287, and possession of drug paraphernalia in violation of Art. 27, Section 287A. The Maryland Controlled Dangerous Substances Act, Maryland Code (1957, 1996 RepLVol.) Art. 27, §§ 276-304 defines possession as “the exercise of actual or constructive dominion or control over a thing by one or more persons.” Md.Code, Art. 27, § 277(s). We have further defined “control” of CDS as exercising a “restraining or directing influence oyer” the item allegedly possessed. See Garrison, 272 Md. at 142 , 321 A.2d at 777 .

For the State to prove that Moye had control over the drugs or paraphernalia, 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 accused] exercised some restraining or direct influence over it.” See McDonald, 347 Md. at 474 , 701 A.2d at 686 (quoting ¹⁴ State v. Leach, 296 Md. 591, 596 , 463 A.2d 872, 874 (1983))(in-ternal quotations omitted). The State did not need to show that Moye exercised sole possession of the drugs and paraphernalia. Rather, a person may have actual or constructive possession of the CDS, and the possession may be either exclusive or joint in nature. See Taylor, 346 Md. at 458 , 697 A.2d at 465 ; see also Henderson v. State, 13 Md.App. 384, 392 , 283 A.2d 418, 422 (1971).

Here, the State advanced the theory that Moye and co-defendant Benson had joint and constructive possession of the marijuana, cocaine, and paraphernalia found in the basement. ' Knowledge is an essential element of crimes of possession of CDS under Section 287 or 287A. For, as we explained in Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988): an individual ordinarily would not be deemed to exercise “dominion or control” over an object about which he is unaware. Knowledge of the presence of an object is normally a prerequisite to exercising dominion and control. Id. at 649 , 547 A.2d at 1046 (explaining that although the Maryland statute is silent with regard to a knowledge or scienter requirement, the statutory scheme as a whole “indicates an intention on the part of the General Assembly to require scienter as an element of the § 287 offenses”).

Therefore, in order to be found guilty of a violation of § 287 or § 287A, the accused “must know of both the presence and the general character or illicit nature of the substance ... such knowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” Id. at 651, 547 A.2d at 1047 . Thus, we must determine whether the State established beyond a reasonable doubt that Moye exercised a knowing dominion or control over the drugs and paraphernalia for which he has been convicted of possessing. We believe that our decisions in Taylor v. State, supra, Garrison v. State, supra, McDonald v. State, supra, and White v. State, supra, direct the resolution of the case. In ¹⁵ Taylor , police officers responded to a complaint about a possible controlled dangerous substances violation at a beach motel. 346 Md. at 454-55 , 697 A.2d at 463 .

The occupants admitted the officers to the room and permitted the police to search their belongings. Id. at 455 , 697 A.2d at 463-64 . When the officers entered the room, Taylor was lying on the floor, either asleep or pretending to be asleep. Id. at 455 , 697 A.2d at 464 .

One of the other occupants of the room, Chris Myers, took a baggie of marijuana out of his own carrying bag and informed the officers that it was his marijuana, as well as directing the officers to another of his bags which also contained a baggie of marijuana. Id. at 455-56 , 697 A.2d at 464 . Although the officer testified that he smelled a strong odor of marijuana in the room, he did not observe anyone smoking it, no marijuana was visible upon entry into the room, and the ashtrays were all clean. Id. at 456 , 697 A.2d at 464 .

We reversed Taylor’s conviction for possession of marijuana and paraphernalia, some of the same charges facing Moye, stating: under the facts of this case, any finding that he was in possession of the marijuana could be based on no more than speculation or conjecture. The State conceded at trial that no marijuana or paraphernalia was found on [Taylor] or in his personal belongings, nor did the officers observe [Taylor] or any of the other occupants of the hotel room smoking marijuana. Viewing the evidence in the light most favorable to the State, [the officer’s] testimony established only that Taylor was present in a room where marijuana had been smoked recently, that he was aware that it had been smoked, and that Taylor was in proximity to contraband that was concealed in a container belonging to another. The record is clear that [Taylor] was not in exclusive possession of the premises, and that the contraband was secreted in a hidden place not otherwise shown to be within [Taylor’s] control.

Accordingly, a rational inference cannot be drawn that he possessed the controlled dangerous substance. ¹⁶ Id. at 459 , 697 A.2d at 465-66 . We explained that “mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or property on which it is found, is insufficient to support a finding of possession.” Id. at 460 , 697 A.2d at 466 (quoting Murray v. United States, 403 F.2d 694, 696 (9th Cir.1969)). In our analysis in Taylor , we discussed Garrison v. State, supra, in which we also reversed a conviction for possession with intent to distribute heroin based on insufficient evidence to establish a prima facie case of possession of a controlled dangerous substance in violation of Maryland Code (1957, 1971 Repl.Vol.) Art. 27, Section 286(a)(1). Id. at 461-62, 697 A.2d at 466-67 .

With regard to whether Garrison knew the drugs were on the premises, we noted that the heroin was seized from a bathroom where Garrison’s husband was attempting to dispose of the drugs, while Garrison was lying in bed in another room. See, Garrison, 272 Md. at 126 , 321 A.2d at 769 . Under such circumstances we concluded that, “[t]he seized heroin was not in the plain view of [Garrison], nor was there a juxtaposition between her (in the front bedroom) and the contraband being jettisoned by her husband in the bathroom.” Id. at 131 , 321 A.2d at 771 . Although Garrison had a possessory interest in the house, she was not the sole occupant of the home at the time the drugs were found.

See id. Therefore, we reasoned, “[t]he appellant and her husband may well have jointly participated in the distribution of heroin, but on this record there was no substantive evidence offered which showed directly or supported a rational inference that she had ‘the exercise of (either) actual or constructive dominion or control’ — solely or jointly with her husband — over the 173 glassine bags of heroin seized while being discarded by her spouse.” Id. at 142 , 321 A.2d at 777 . In analyzing whether there had been “mutual use and enjoyment of the contraband,” we noted that although Garrison had needle marks which were approximately two weeks old, there were no fresh marks upon her body or other evidence indicating recent use. Id. at 127 , 321 A.2d at 769, 771 . ¹⁷ Subsequent to our decision in Taylor , we had another occasion to determine whether the evidence was sufficient to establish a prima facie case of possession of CDS.

In McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675, 685 (1997), McDonald was convicted of possession of marijuana with the intent to distribute and possession of marijuana. Id. at 474 , 701 A.2d at 686 . McDonald personally had signed for delivery of a United Parcel Service (UPS) package which contained eighteen pounds of marijuana. Id.

When the police executed a search warrant for McDonald’s home half an hour after the package was delivered, they found McDonald standing over the UPS package with the drugs exposed. Id. at 474-75 , 701 A.2d at 686 . In applying the reasoning of Taylor and Dawkins , we concluded that the evidence was sufficient to support McDonald’s conviction. Id. at 475, 701 A.2d at 686 .

In our most recent case analyzing the rudiments of possession we were called upon to determine whether the passenger in a car was in possession of CDS found in its trunk. See White, 363 Md. at 153 , 767 A.2d at 857 . During the search of the trunk, the police found a box full of pots and pans which had concealed within it a separate package of 194 grams of cocaine. Id. at 157 , 767 A.2d at 859 .

Similar to Moye’s predicament, the State’s case against White rested solely on circumstantial evidence that White had joint and constructive possession of the cocaine found in the co-defendant’s trunk. Id. at 162 , 767 A.2d at 862 . Ultimately, we reversed White’s conviction, finding that even if we assumed the evidence in the record was sufficient to establish beyond a reasonable doubt that White had knowledge that the drugs were in the trunk of the car, there was insufficient evidence to establish that he exercised dominion and control over them. Id. at 165 , 767 A.2d at 863 .

In applying the logic espoused in Taylor and its progeny to the facts of the case sub judice, we 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 Bullocks’s basement. Similar to the defendant in Taylor , ¹⁸ Moye did not have any ownership or possessory right in the premises where the drugs and paraphernalia were found. Joseph Bullock testified at trial that he and his wife, Yolanda, leased their home and that the couple rented out the basement to Greg Benson, who had been residing there for several months prior to March 6, 2000. He further testified that at the time of the incident, Moye was “living” in the house with him and his wife. 10 No evidence was adduced at trial as to how long Moye had been staying at the Bullocks’s home.

On this record, therefore, we cannot conclude that Moye had any ownership or possessory right to or in the Bullocks’s home. 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 testimony 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