Rich v. State

GARRITY, Judge. Appellants, James Rich and Dana Rich, along with their brother, Harlan Rich, were tried jointly on drug charges in the Circuit Court for Baltimore City, (Mitchell J.). During the jury trial and after mid-trial negotiations with the prosecutor, appellants waived their right to a jury trial and proceeded on an agreed statement of facts. Dana Rich was found guilty of use of a firearm during and in relation to a drug crime, possession of cocaine with intent to distribute, and possession of heroin with intent to distribute.

He was sentenced to five years without parole ¹⁴⁷ for the firearms violation and to five consecutive years on each of the other convictions. James Rich was found guilty of use of a firearm during and in relation to a drug trafficking crime and conspiracy to distribute cocaine. He was sentenced to five years without parole for the firearms violation and a concurrent five years on the conspiracy conviction. Harlan Rich, who elected not to appeal, pleaded guilty to charges of possession with intent to distribute cocaine, conspiracy to distribute cocaine, and possession of a handgun.

He received two concurrent ten year sentences, all but five years suspended, on the possession with intent to distribute cocaine and conspiracy to distribute cocaine charges and a three year concurrent sentence on the handgun violation. We are asked to review whether there was sufficient evidence to convict Dana Rich of possession of cocaine with intent to distribute and to convict James Rich of conspiracy to distribute cocaine. We are further asked to review whether the circumstantial evidence, including the proximity of firearms to the contraband drugs, packaging paraphernalia, and large sums of cash in the rooms adjacent to where appellants were found, was sufficient to show use of the firearms in a drug trafficking crime as opposed to their mere possession for different uses. BACKGROUND On November 3, 1989, Baltimore City police executed a valid search warrant on appellants’ parents’ three story, four bedroom house, at 716 N. Woodington Road.

At the time of the raid, appellants were present, along with five other adults and nine children ranging in age from one to twelve. The first officer in the house found James Rich next to a pit bull in the second floor hallway outside the left rear bedroom and Dana Rich at the doorway of the second floor left front bedroom. ¹⁴⁸ The left front bedroom contained a bed, dresser and closet. Under the mattress in that room police found a 0.22 caliber rifle, two BB rifles, a 0.32 caliber semi-automatic pistol, and an UZI semi-automatic nine millimeter assault weapon. In the pocket of a jacket in the closet of that bedroom was a plastic bag containing 49 ziplock bags of cocaine, 36 glassine bags of heroin bound in a rubber band, a ziplock bag with five small bags of cocaine, and $383.

A triple beam scale was on the floor of the closet under some clothing. On top of the dresser there was a box that contained three ziplock bags of white powdery substance, which was later found not to be a controlled substance but which a police expert testified could be used as a “cutting” agent for cocaine or heroin. Also on top of the dresser, empty glassine bags and ziplock bags were found along with a hand held scale. In a dresser drawer there were four empty holsters and two boxes of assorted ammunition.

At the foot of the bed was a briefcase that contained empty ziplock bags, and the personal mail and papers of Dana Rich. The searching officer detected a strong odor of marijuana emanating from the briefcase. A TDK cassette case on top of a radiator behind the bedboard contained empty glassine bags and ziplock bags, a small spoon, and thirty five ziplock bags with residue in them. A saber sword was found behind the dresser.

The left rear bedroom had a bed, tall chest of drawers, a dresser, and a closet. Between the mattress and the box spring was a fully loaded 0.38 caliber revolver. On the floor of the closet under a heap of male clothing was a sawed-off shotgun and a sawed-off rifle. In a coat pocket in the closet were three marijuana cigarettes and $34.

On the floor next to the bed was a small spoon with residue and bum marks. In the top chest drawer were two bags of marijuana and a plastic bag containing white powder and two smaller ziplock bags containing white powder. The powder was later determined not to be a controlled substance but could be used for “cutting” cocaine according to testimony from a police expert. The top dresser drawer ¹⁴⁹ had a large bag of marijuana, a second drawer had $1075, and a third drawer had $33 and ziplock bags.

A variety of ammunition and a speed loading device for a 0.38 caliber revolver and UZI ammunition were found in the dresser, chest of drawers, and in the closet. In the dresser drawers, police also found personal mail and papers of James and Dana Rich and ammunition for the weapons that were in the room. James Rich proffered that he had lived at that address for at least twenty years, and Dana Rich proffered that he lived at the house at the time of the raid. The doors to both bedrpoms where drugs were found were either unlocked or widé open.

DISCUSSION OF LAW I. Intent To Distribute In essence, we are asked to review whether the circumstantial evidence was sufficient to support the convictions. In a case tried before the court without a jury, the test as to whether the trial court was clearly erroneous in reaching a guilty verdict is whether the admissible evidence adduced at trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved from which he, or she, as the trier of fact, could fairly be convinced beyond a reasonable doubt of the defendant’s guilt of the offense charged. Folk v. State, 11 Md.App. 508, 520 , 275 A.2d 184 (1971). A conviction upon a single strand of circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.

Eiland v. State, 92 Md.App. 56 , 607 A.2d 42 (1992); West v. State, 312 Md. 197, 211-212 , 539 A.2d 231 (1988). Here, however, we shall examine several facets of circumstantial evidence to support sufficiency. To convict for possession with intent to distribute, the State must prove possession of the controlled dangerous substance in sufficient quantities to indicate, under all of ¹⁵⁰ the circumstances, an intent to distribute. Md.Code Ann. art. 27, § 286(a).

Possession can be constructive or joint. Folk, supra 11 Md.App. at 511 , 275 A.2d 184 . Factors to be considered in determining possession are: 1) proximity between the defendant and the contraband; 2) whether the drugs or contraband were within the plain view or otherwise within the knowledge of the defendant; 3) ownership or some possessory right in the premises; and 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual enjoyment of the contraband. Folk, supra, at 514 , 275 A.2d 184 .

We will first analyze the circumstantial evidence against Dana Rich for possession of cocaine and heroin with intent to distribute. Dana Rich was found at the time of the raid in the doorway of the room in which large quantities of cocaine and heroin packaged for multiple distribution were found along with an array of protective weaponry including an UZI semi-automatic assault weapon. In addition, large quantities of cocaine yet to be packaged for distribution were within a few feet of the doorway in which he stood. Thus, he and the contraband were proximate as to location.

Although the drugs were not in plain view, the packaging paraphernalia, including plastic bags, a hand-held scale, and white powdery substance in three bags on top of the dresser available for “cutting” cocaine or heroin, were all in plain view in his room. A reasonable inference can be drawn that it was his room based on the location of his personal mail and papers found in the briefcase at the foot of the bed along with his position in the bedroom doorway at the time of the raid. Once the reasonable inference is drawn that this was Dana Rich’s bedroom, it becomes evident that Dana Rich had knowledge of the drugs, drug packaging paraphernalia, including hand held and triple beam scales, and large number of firearms and ammunition found in his room. Further, appellant proffered that he lived at the raided house.

In sum, we believe that the circumstantial evidence fairly supported a reasonable inference that Dana ¹⁵¹ Rich had knowledge of the cocaine and heroin found in the coat pocket in the closet, and of the guns and drug packaging paraphernalia found in his room. Similarly, these circumstantial facts support his proprietary or possessory interest in the room; in the clothing, including the jacket in his room; and in the house where he resided. The same type of circumstantial evidence supports a fair inference that Dana Rich utilized the drugs, the white powdery “cutting” agent, the glassine bags for heroin, the ziplock bags for cocaine, the large quantities of cocaine and heroin, plastic baggies, the spoon, and hand held and triple beam seales, all found in his room. Thus, he participated in the enjoyment of the contraband.

Appellant did not contest that the quantity of drugs found was sufficient to demonstrate intent to distribute.

II

Conspiracy To Distribute Conspiracy is defined as the combination of two or more persons, who, by some concerted action, seek to accomplish some unlawful purpose, or lawful purpose by unlawful means. Mason v. State, 302 Md. 434, 444 , 488 A.2d 955 (1985); Beard v. State, 42 Md.App. 276, 284-285 , 399 A.2d 1383 , cert. denied, 285 Md. 727 (1979). In Maryland, a conspiracy is complete without the commission of any overt act in furtherance of the conspiracy. Jones v. State, 8 Md.App. 370, 375-381 , 259 A.2d 807 (1969).

As Judge Orth noted in Jones at 377, 259 A.2d 807 , on the sufficiency of evidence necessary to prove conspiracy: Since the common law gist of conspiracy is unlawful combination, no further overt act is required to constitute the crime. Harper v. State, 6 Md.App. 1 [ 249 A.2d 511 (1969)]. Combination results from an agreement. But conspiracy is the combination resulting from the agreement, rather than the mere agreement itself.

However, there must be a meeting of the minds — a unity of design and purpose — to have an agreement, but it is not necessary that a formal agreement be shown. It need not be manifested by any formal words, written or spoken. “It ¹⁵² is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances, although evidence which merely creates suspicion will not be adequate.” Perkins, supra, at p. 530. In Seidman v. state, 230 Md. 305, 322 [ 187 A.2d 109 (1962)], the Court said: “A conspiracy may be shown by circumstantial evidence from which an inference of a common design may be drawn and it is not necessary to demonstrate that the conspirators met and agreed in terms to a design and to pursue it by common means.” In Lawrence v. State, 103 Md. 17, 22 [ 63 A. 96 (1906) ] the Court said: “Concurrence of action on a material point is sufficient to enable a jury to presume concurrence of sentiment, and from this the actual fact of a conspiracy may be inferred.” Circumstantial evidence of a conspiracy is entirely sufficient to support a conviction, provided the circumstances support rational inferences from which any rational trier of fact could conclude beyond any reasonable doubt that the requisite agreement existed. Wiggins v. State, 324 Md. 551, 566 , 597 A.2d 1359 (1991).

A conviction for a crime does not preclude prosecution for conspiracy to commit the same crime. Beard, supra, 42 Md.App. at 284 , 399 A.2d 1383 . Further, overt acts in the commission of a crime are relevant evidence of the existence of a conspiracy. Beard, supra, at 285 , 399 A.2d 1383 .

We will now review the circumstantial evidence that showed that James Rich shared control of drug packaging paraphernalia, cocaine “cutting” agent, and a large sum of cash that evidenced his concurrent sentiment to help distribute the cocaine found in the house. He was found with a pit bull by the police raid team in the hallway outside the unlocked or open door to the left rear room. He admits living in the house for twenty some years. His mail was found in the dresser drawer in this room.

Other drawers in the same dresser contained a large sum of cash, and empty bags of a type used to package cocaine (i.e. zip-lock bags) and bags containing a white ¹⁵³ powder that could be used as a cocaine “cutting” agent, and ammunition for an assortment of powerful firearms including those found in Dana Rich’s room. A reasonable inference could be drawn, based on the proximity of James to the room and the location of his personal mail in the drawers with the contraband, that James Rich utilized the dresser and its drawers and thus jointly controlled the contraband found on and in the dresser. We hold that the circumstantial evidence was sufficient to support a rational inference of James Rich’s concurrent intent to distribute cocaine and enjoy the profits, such that the evidence could convince the trier of fact beyond a reasonable doubt of his guilt.

III

Use Of A Firearm In A Drug Trafficking Crime Md.Code Ann. art. 27, § 281A(b) (1987 Repl. Vol., 1991 Cum.Supp.) provides in pertinent part: (b) Unlawful acts; penalties. — During and in relation to any drug trafficking crime, a person who uses, wears, carries, or transports a firearm is guilty of a separate felony and on conviction shall, in addition to the sentence provided for the drug trafficking crime, be sentenced as follows: (l)(i) For a first offense, for a term of not less than 5 or more than 20 years. (ii) It is mandatory upon the court to impose no less than the minimum sentence of 5 years, no part of which may be suspended and the person may not be eligible for parole except in accordance with the provisions of Article 31B, sec. 11 of the Code ... Section 281A is part of the “Drug Kingpin Act” that was enacted by Chapter 287, Laws of Maryland 1989, effective July 1,1989.

As originally proposed, the Senate and House bills, SB 400 and HB 502, had provided as follows: (B) During and in relation to any drug trafficking crime, a person who uses or possesses a firearm is guilty of a separate felony ... ¹⁵⁴ The briefing document that accompanied the Senate and House bills states, at pp. 11-12: 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. In addition Article 27, § 36B prohibits the “use” of a handgun. In the