Neal v. State

KEHOE, Judge. Larry Neal, appellant, was convicted at a bench trial by the Circuit Court for Baltimore County of possession of cocaine with intent to distribute, in violation of Md.Code Ann.Crim. Law § 5-602(2) (2002); possession of cocaine, in violation of Grim. Law § 5-601; possession of a firearm in relation to a drug trafficking crime, in violation of Crim.

Law § 5 — 621(b)(1); ³⁰² illegal possession of a regulated firearm, in violation of Md. Code Ann. Pub. Safety § 5-133(b) (2003); and possession of marijuana, in violation of Crim. Law § 5-601(c)(2). Appellant presents two issues for our review, which we have reworded: I. Did the trial court err in failing to enter judgments of acquittal on charges involving possession of a firearm where there was no evidence that the firearm involved in the crime was operable?

II

Was the evidence sufficient to support a conviction for simple possession and possession with the intent to distribute cocaine? For the reasons that follow, we shall affirm the judgments below. FACTS Evidence at trial established the following pertinent facts. Around midnight on April 6, 2007, Officer Jefferson Tufts of the Baltimore County Police Department stopped a white Cadillac for driving 48 miles per hour in a posted 35 mile per hour zone near the intersection of Pine Avenue and Dundalk Avenue.

Officer Thomas Huesman assisted in the stop. Appellant was the driver and sole occupant of the car. Officer Tufts approached the driver’s side of the car and Officer Huesman approached the passenger’s side. Appellant appeared “nervous” but produced his driver’s license and the registration without incident.

Officer Huesman alerted Officer Tufts to two marijuana “blunts” he observed on the front passenger seat. At Officer Tufts’ direction, appellant handed the blunts to him. Officer Tufts then inquired whether appellant had “anything else in the vehicle [he] needed to know about.” Appellant responded in the negative. Next, in the words of Officer Tufts, “I asked [appellant] to exit the vehicle so that we could [conduct a] search.” Appellant did not comply.

Instead, he immediately sped away, followed by both officers in their ³⁰³ individual patrol cars. Approximately 50 yards into the pursuit, Officer Tufts saw “something [thrown] out the window.” The chase lasted no more than a mile before appellant lost control of the car and crashed. Appellant exited the car and continued to flee before being caught by Officer Huesman. Officer Shawn McElfish arrived shortly after appellant was apprehended.

He searched for the discarded item in the roadway area as described by Officer Tufts. He found a handgun. It was loaded with a magazine of six rounds, and one round in the chamber. Two sandwich baggies containing a white substance were found in the interior “console” of the car.

The contents of the baggies were later identified as being 19.2 grams and .9 grams of cocaine having a street value of approximately $800. No other contraband was recovered from appellant or the car. According to Detective Hinton Sekou, the State’s expert in the sale and use of illegal drugs, the amount of cocaine seized was indicative of possession with an intent to distribute rather than personal use. After appellant’s arrest, Detective Sean Moran interviewed him about the gun.

Appellant advised that a “friend” owned the car and provided no identifying information about the “friend.” Detective Moran recalled asking appellant whether “we needed to investigate other people if other people were responsible for this firearm.” Appellant responded that he would not discuss the gun. His reason, according to the detective, was that to do so would be self-incriminating. 1 Appellant testified that the gun and cocaine both belonged to the owner of the car, a friend whom he knew only as “Black.” According to appellant, he had spent the evening at a party with friends, including Black. The two left the party together with Black driving the car. Appellant stated that when they arrived at Black’s home, Black turned the car over to appellant because Black was not up to taking appellant home. ³⁰⁴ Appellant claimed that when the traffic stop occurred, he called Black with Officer Tuft’s permission in order to locate the car’s registration.

Appellant testified it was during this call to Black that he learned there was a gun under the front driver’s seat. Appellant did not state that Black alerted him to the cocaine in the car. Officer Tufts denied that appellant made a telephone call during the stop. Officer Huesman did not recall that appellant made any calls during the stop.

Appellant admitted to discarding the gun and that Officer Tufts “pointed out I had two blunts.” He did not dispute that Officer Tufts questioned him as to any other contraband in the car, that he denied the presence of any, or that he sped away after being advised that the car would be searched. Appellant explained that he “panicked” after learning about the gun and fled only because he knew a prior CDS conviction prohibited his ownership or possession of a firearm. Appellant admitted that the gun recovered by Officer McElfish was the same gun that he threw out of the window. Appellant denied any knowledge of the cocaine, and stated that he learned about the cocaine discovered in the console of the car when at the police station.

Appellant called no other witnesses. At sentencing, the court merged the simple possession conviction into the possession of cocaine with intent to distribute conviction and imposed a 20-year term of incarceration thereon, suspending all but 10 years, to be served without the possibility of parole; imposed a five-year term of incarceration to be served without the possibility of parole for the possession of a firearm in relation to a drug trafficking crime conviction, to be served consecutively to the first sentence of incarceration; and suspended any sentence generally as to the other convictions. We will provide additional facts as necessary. DISCUSSION I. The Firearm Offenses Appellant was charged with the violation of three gun-related offenses: ³⁰⁵ • Wearing, carrying and transporting a handgun without a permit in violation of Crim.

Law § 4-203; • Possessing a firearm in relation to a drug trafficking crime in violation of Crim. Law § 5 — 621(b)(1); and • Possessing a regulated firearm by a person previously convicted of a disqualifying crime under Pub. Safety § 5-133(b)(1). At trial, Officer McElfish described the gun that he recovered as being “a .45 caliber Smith Armory handgun.” He testified that he “made it safe” by “unloading the weapon” before “packaging] it per County policy.” There was no affirmative evidence in the record as to the gun’s operability.

There was no testimony by any witness as to any examination or test firing of the gun. However, appellant did not dispute that the gun was a real gun and loaded when found. Appellant did not question whether the gun was in good condition, and presented no evidence that the gun showed any signs of disrepair or was not otherwise intact. At the close of all of the evidence, appellant moved for a judgment of acquittal of all the charges against him.

Regarding the gun-related offenses, appellant did not dispute that he possessed the gun or had prior disqualifying convictions. Rather, his argument for acquittal was based solely on the assertion, without citation to authority, that each gun-related offense required proof of the gun’s operability and that the State had failed to prove operability. The State responded that appellant was “correct, [as to] the simple possession of a handgun” under Crim. Law § 4-203 requiring operability, but maintained that a conviction under Pub.

Safety § 5-133 and Crim. Law § 5-621(b) did not “require testimony as to the operability.” On this point, the State failed to argue that a reasonable fact finder could determine operability from the circumstantial evidence presented in lieu of direct evidence, (e.g. that the gun was loaded and there being no evidence of disrepair). The trial court denied the motion for judgment of acquittal and found appellant not guilty of the handgun offense (Crim. Law 4-203) but ³⁰⁶ guilty of the firearm drug trafficking and regulated firearm offenses.

Before this Court, appellant contends that the evidence was insufficient to support a conviction under Pub. Safety § 5-133(b)(1) and Crim. Law § 5-621(b)(l) because, in his view, both statutes require proof of operability in order to support a conviction: [U]nder [Crim. Law] § 5-621(b) and [Pub.

Safety] § 5-133(p) ..., the State bears the burden of proving that the weapon was operable If the Legislature had intended that the terms “firearm” and “regulated firearm” include inoperable firearms, it knew how to make that intention clear. Appellant points us to Crim. Law § 4-204, which prohibits the use of a handgun in the commission of a crime “whether ... the handgun is operable or inoperable at the time of the crime” as an example of a statute that does not require proof of operability. Since neither Pub.

Safety § 5 — 133(b)(1) nor Crim. Law § 5-621(b)(l) contain similar language, he argues that the State is required to prove operability. The State responds that the governing statutory definitions of a “firearm” (in Crim. Law § 5 — 621(b)(1)) and “regulated firearm” (in Pub.

Safety § 5-101) are clear and unambiguous and that the plain meaning of neither statute imposes a requirement that a firearm be operable. The State also relies upon established case law defining a firearm as, among other things, a weapon “designed to expel, or may readily be converted to expel” a projectile. The State reasons that “[i]t obviously follows that a weapon that requires conversion to expel” does not suggest a requirement of present operability. We review a trial court’s construction and interpretation of a statute de novo.

We affirm the denial of a motion for acquittal unless we determine that no rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. See Gray v. State, 388 Md. 366, 374-75 , 879 A.2d 1064 (2005); State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)). ³⁰⁷ A. Unlawful Possession of a Regulated Firearm (Pub. Safety § 5-133(b)). Appellant’s first argument is that the State was required to prove operability of the .45 handgun in order to convict him of violating Pub.

Safety § 5-133(b)(l). That statute reads in pertinent part: § 5-133. Restrictions on possession of regulated firearms. (b) Possession of regulated firearm prohibited. — A person may not possess a regulated firearm if the person: (1) has been convicted of a disqualifying crime---- The term “regulated firearm” is not defined in § 5-133 but rather in three subsections of Pub.

Safety § 5-101. As in Hicks v. State, 189 Md.App. 112, 134-35 , 984 A.2d 246 (2009), “we will set them out in reverse order”: (p) Regulated firearm,. — “Regulated firearm” means: (1) a handgun; or (2) a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon: [list of assault weapons omitted]. (n) Handgun.— (1) “Handgun” means a firearm with a barrel less than 16 inches in length. (2) “Handgun” includes a signal, starter, and blank pistols.

(h) Firearm.— (1) “Firearm” means: (i) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or (ii) the frame or receiver of such a weapon. (2) “Firearm” includes a starter gun. ³⁰⁸ The resolution of appellant’s contentions as to his Pub. Safety § 5-133 conviction is controlled by two recent companion decisions of this Court: Moore v. State, 189 Md.App. 90, 110 , 983 A.2d 583 (2009) and Hicks, 189 Md.App. at 139 , 984 A.2d 246 . After reviewing pertinent legislative history and surveying authority from other jurisdictions, we concluded in each case that “in order to obtain a conviction under Pub.

Safety § 5-133, the State need not prove that the firearm in question was operable.” Hicks, 189 Md.App. at 139 , 984 A.2d 246 ; see also Moore, 189 Md.App. at 110 , 983 A.2d 583 . 2 In effect, we held that the design and construction of a weapon, rather than the state of its operability at the time of the crime, determines whether a weapon is or is not a “firearm” for the purposes of § 5-101 and § 5-133 of the Public Safety Article. Appellant does not contest that the .45 Smith Armory automatic handgun was a “regulated firearm,” nor does he contest that he had previously been convicted of a “qualifying crime,” the other statutory predicates for a finding of guilt. Therefore, his conviction for violating Pub. Safety § 5-133(b)(1) will stand.

B. Possession of a Firearm in Relation to a Drag Trafficking Crime (Crim. Law § 5-621). Appellant challenges his conviction for violating Crim. Law § 5-621(b)(l).

The statute reads, in pertinent part, as follows: § 5-621. Use of weapon as separate crime. * * * * (b) Prohibited. — During and in relation to a drug trafficking crime, a person may not: (1) possess a firearm under sufficient circumstances to constitute a nexus to the drug trafficking crime.... Like Pub. Safety § 5-133, Crim.

Law § 5-621 does not define “firearm.” However, the succeeding section of the Code does. Crim. Law § 5-622 makes it unlawful for a ³⁰⁹ person previously convicted of a CDS felony under Title 5 of the Criminal Law Article to possess, own, carry, or transport a firearm. Specifically, § 5-622 provides: (a) “Firearm” defined. — In this section, “firearm” includes: (1) a handgun, antique firearm, rifle, shotgun, short-barreled shotgun, and short-barreled rifle, as those words are defined in § 4-201 of this article; [3] (2) a machine gun, as defined in § 4-401 of this article; and (3) a regulated firearm, as defined in § 5-101 of the Public Safety Article.

(Emphasis added.) Appellant’s argument is based on the premise that the definition of “firearm” contained in § 5-622 should be applicable to the term “firearm” as it is used in § 5-621. Then, focusing solely upon Crim. Law § 5-622(a)’s cross-reference to Crim. Law § 4-201, appellant reasons that: (1) since there “was no evidence that [the weapon in appellant’s possession] was one of the types of Springfield Armory firearms” listed in Pub.

Safety § 5 — 101(p)(2); then (2) the firearm in this case would have to qualify as a “handgun” under Crim. Law § 4-201; (3) since operability is required to sustain a conviction under Crim. Law § 4-203 (which incorporates § 4-201’s definition of handgun); then (4) the same requirement should be imputed to a prosecution under Crim. Law § 5 — 621(b)(1).

We agree with appellant’s initial premise but not his subsequent logic. Although the predecessors to Crim. Law §§ 5-621 and 5-622 were enacted at a different time than the predecessor to Pub. Safety § 5-133, their respective legislative histories lead us to conclude that they share common purposes and policies and should be read in conjunction. ³¹⁰ Crim.

Law §§ 5-621 and 5-622. Crim. Law § 5-621’s predecessor, Art. 27 § 281 A(b), was enacted as part of the Drug Kingpin Act and codified under the sub-heading “Health — Controlled Dangerous Substances.” See 1989 Md. Laws 2412 -13. “The major objective” of the Drug Kingpin Act was “to reduce the supply of drugs in Maryland by establishing harsher penalties for drug dealers and by decreasing the profitability of participation in a drug trafficking crime.” Briefing Document and Synopsis of the Drug Enforcement-Drug Kingpin Act Senate [Bill] 400/ House Bill 502. See also Harris v. State, 331 Md. 137, 150 , 626 A.2d 946 (1993); Johnson v. State, 154 Md.App. 286, 305 , 839 A.2d 769 (2003).

This same briefing document states in pertinent part: The use of firearms in connection with drug trafficking crimes is an everyday occurrence____ [T]he combination of dealing drugs and possessing a firearm has become too commonplace. The Use or Possession of a Firearm Component. This component recognizes that firearms readily available and that those involved in drug trafficking crimes are quite willing to use those weapons to resolve disputes with their rivals or their customers.

III

Use of a Firearm in a Drug Trafficking Crime 1. Why is it necessary to establish that use or possession of a firearm be a separate offense when Article 27, § 36B, already makes it unlawful to use a handgun in the commission of a felony or crime of violence? The current statute is restricted to handguns. The proposed bill would include all firearms.

Many drug dealers are using automatic weapons, assault rifles and other firearms that may not fall within the current definition of a handgun---- The language in this bill prohibits anyone to “use or possess” a firearm during and in relation to a drug trafficking crime. It would affect an individual who carries ³¹¹ a handgun while dealing drugs, even though he does not use it. (Emphasis added.) In 1991, the General Assembly amended Article 27’s “Health — Controlled Dangerous Substances” subtitle by adding former Art. 27 § 291A, the statutory predecessor to Crim. Law § 5-622. 1991 Md. Laws 3385 -86.

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