Smith v. State

⁶⁷ WOODWARD, J. Appellant, John N. Smith, was tried before a jury in the Circuit Court for Somerset County and convicted of possession with intent to distribute cocaine, possession of cocaine, possession with intent to distribute cocaine within one thousand feet of a school, and wearing and carrying a concealed dangerous and deadly weapon. The court sentenced appellant to twelve years’ incarceration for possession with intent to distribute cocaine, and suspended all but six years. 1 The court then imposed a consecutive three year sentence for possession with intent to distribute cocaine within one thousand feet of a school, and another consecutive three years for wearing and carrying a concealed dangerous and deadly weapon. In his appeal to this Court, appellant presents one question for our review: Was the evidence legally insufficient to support the conviction for possession with intent to distribute a controlled dangerous substance in a school zone? For the reasons set forth herein, we conclude that the evidence was insufficient to support appellant’s conviction for possession with intent to distribute cocaine within one thousand feet of a school.

Accordingly, we shall reverse that conviction. BACKGROUND Because appellant challenges only his conviction for possession with intent to distribute cocaine within one thousand feet of a school, we shall discuss only those facts and proceedings relevant to that charge. On July 19, 2005, at around 3:30 p.m., Somerset County Narcotics Task Force sheriffs executed a search warrant on an apartment in the Somers Cove apartment complex, located in the city of Crisfield. As part of the task force executing the warrant, Sergeant Mike Ward was assigned to cover the back of the apartment.

Upon Sergeant Ward’s approach, he saw a ⁶⁸ number of persons running out of the back door of the apartment. Eventually, Sergeant Ward apprehended appellant. Appellant’s shorts were searched by Corporal Daniel Barnett, another member of the task force, whereupon Corporal Barnett discovered suspected, and later confirmed, crack cocaine in appellant’s right front pocket. At trial Sergeant Ward testified that he had received a certification from the planning and zoning department of Somerset County of the area within one thousand feet of Woodson Middle School.

The certification was in the form of a 2004 aerial map of the neighborhood, with the distance of one thousand feet from Woodson Middle School marked thereon. Sergeant Ward indicated on the map the location of appellant’s arrest, which fell within the one thousand foot area of the school. On recross examination, Sergeant Ward admitted that Woodson Middle School was closed for renovations at the time of appellant’s arrest and that he had “no idea” when the school was scheduled to reopen. At the conclusion of the State’s case, defense counsel moved for judgment of acquittal on the charge of possession with intent to distribute cocaine within one thousand feet of a school, which was denied. 2 Appellant then took the stand in his own defense.

He testified that he had attended Woodson Middle School from sixth through eighth grade and was familiar with the school. Appellant described the school property at the time of the offense as “nothing more than a construction site.” Defense counsel introduced into evidence photographs of the school and its surrounding property taken by appellant and his uncle one week after appellant’s arrest. The photographs showed a high, chain-link fence surrounding the school building, a playground, and portions of the parking lot. Further, the photographs showed that the school’s playing field was marked off by a bright orange fence and contained piles of construction debris.

Appellant testified that at ⁶⁹ the time of trial, thirteen months after the date of the offense, Woodson Middle School was “still under construction.” No rebuttal evidence was offered by the State. At the conclusion of the trial, defense counsel renewed her motion for judgment of acquittal, which the court again denied. After the jury rendered its verdict, the court proceeded immediately to sentencing. Appellant timely noted his appeal on February 21,2006.

Additional facts will be set forth as needed to facilitate our discussion of the issue presented in this appeal. DISCUSSION I Standard of Review We have stated: The standard of review for the sufficiency of 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. In an action tried before a jury, it is the jury’s task, not the court’s, to measure the weight of evidence and to judge the credibility of -witnesses. In performing this role, the jury has the power to decide which testimony to accept and which to reject.

In this regard, it may believe part of a particular witness’s testimony, but disbelieve other parts of that witness’s testimony. Moreover, it is the exclusive function of the jury to draw reasonable inferences from proven facts. Velez v. State, 106 Md.App. 194, 201-202 , 664 A.2d 387 (1995) (internal citations and quotations omitted). Further, as a reviewing court, “[w]e do not re-weigh 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.’ ” State v. Smith, 374 Md. ⁷⁰ 527, 534, 823 A.2d 664 (2003) (quoting White v. State, 363 Md. 150, 162 , 767 A.2d 855 (2001)).

II Sufficiency of the Evidence Appellant maintains that the evidence adduced at trial was legally insufficient to support his conviction for possession with intent to distribute cocaine within one thousand feet of a school, pursuant to Md.Code (2002), § 5-627 of the Criminal Law Article, because the “provisions in the statute clearly imply that it is directed only to facilities that are open for use and where one would expect young people to congregate^] [and that] [a] fenced off construction site is not such a facility.” Appellant argues that section 5-627 is derived from “New Jersey’s school-zone statute” and thus relies heavily on the New Jersey Superior Court case of State v. Tarver, 272 N.J.Super. 414 , 640 A.2d 314 (1994), as well as analogous federal case law. 3 The State responds that the evidence was legally sufficient to support appellant’s conviction because section 5-627 clearly applies to schools, like Woodson Middle School, that are closed for renovations, and thus distinguishes the facts of the instant ⁷¹ case from those in Tarver and other federal cases cited by appellant. Section 5-627 states, in pertinent part: (a) Prohibited. — A person may not manufacture, distribute, dispense, or possess with intent to distribute a controlled dangerous substance in violation of § 5-602 of this subtitle or conspire to commit any of these crimes: (2) in, on, or within 1000 feet of real property owned by or leased to an elementary school, secondary school, or county board and used for elementary and secondary education. (b) Application of subsection (a). — Subsection (a) of this section applies whether or not: (1) school was in session at the time of the crime; or (2) the real property was being used for purposes other than school purposes at the time of the crime.[ 4 ] Section 5-627 is derived, without substantive change, from former Article 27, § 286D. See Md.Code (1957, 1992 Repl.

Vol.), Article 27, § 286D. 5 In Dawson v. State, 329 Md. 275, 278 , 619 A.2d 111 (1993), the Court of Appeals considered whether section 286D violat ⁷² ed the due process provisions of the United States Constitution and the Maryland Declaration of Rights. As part of its analysis, the Court discussed the origin of section 286D and the purpose of the Maryland General Assembly in enacting that statute. Id. at 284-288 , 619 A.2d 111 . Specifically, the Court found that section 286D was “modeled after legislation enacted in New Jersey,” namely, section 2C:35-7 of the New Jersey Statutes Annotated (1992).

Id. at 285 n. 3, 619 A.2d 111 . Further, the Court recognized that 21 U.S.C. § 845a (now 21 U.S.C. § 860 ) 6 was “the federal counterpart of § 286D.” Id. at 287, 619 A.2d 111 ; see also Velez, 106 Md.App. at 209 , 664 A.2d 387 (“Section 286D was derived from a New Jersey statute, N.J.Stat.Ann. § 2C:35-7, which itself was modeled after the federal ‘school yard’ statute, then 21 U.S.C. § 845a and now recodified at 21 U.S.C. § 860 .”). The Dawson Court determined that the purpose underlying section 286D “is the General Assembly’s desire to protect school-age children.” 329 Md. at 284 , 619 A.2d 111 . In particular, by enacting section 286D, the General Assembly intended (1) to “halt the proliferation of drug use among school-age children” by creating a “drug-free zone around school property,” and (2) to “shield children from the direct and indirect effects of drug trading, including observing drug sales and the commission of violent crimes which may accompany drug trading.” Id. at 285 , 619 A.2d 111 .

The Court concluded: “To accomplish these two goals, the General Assembly sought to eliminate all drug dealing near school grounds on a 24-houi’ basis.” Id. ⁷³ The appellant in Dawson argued that section 286D was “too broad” because “it applie[d] to those times when school [wa]s closed and children [we]re unlikely to be present,” and thus did not “substantially further the State’s objective of safeguarding children.” Id. at 286 , 619 A.2d 111 . The Court disagreed, observing that “[t]his argument ignores both the characteristics of school grounds and drug marketplaces, as well as the prophylactic nature of § 286D.” Id. The Court explained: The hours that children frequent the areas surrounding school grounds are not limited to those in which the school is open for classroom instruction. School grounds serve as a location for a variety of school-sponsored extracurricular activities as well as community-sponsored sports and social activities involving children which may take place during evening and weekend hours.

The very nature of the drug trade could warrant a 24-hour prohibition of drug sales within the vicinity of school grounds. The General Assembly chose not just to regulate the business hours of drug marketplaces near school facilities, but to deter their establishment entirely. Once an area is known as a drug market, it may draw prospective drug purchasers or sellers throughout the course of the day. In addition, discarded drug packaging, paraphernalia, or litter from drug sales may remain in an area heavily trafficked by curious children.

A reasonable way for the General Assembly to limit the potential exposure of children to such activities was to convince those engaged in the drug market that the risks associated with conducting business in school areas, regardless of the hour, greatly outweighed their potential profits. If the drug market was removed from the area surrounding school property, it could logically follow that the likelihood of children having exposure to drugs would also decrease. Contrary to [the appellant’s contention, the constitutionality of applying § 286D is not undermined simply because no children were present or because the transaction occurred at a time when school was closed. The General ⁷⁴ Assembly established the “drug-free zones” as a prophylactic device aimed at protecting children on or near school property.

We find that the application of § 286D to all transactions within the 1,000 foot perimeter, regardless of the presence of children, is substantially related to this goal. Considering the likelihood that children may be present in areas surrounding school grounds and the dangerous and unpredictable nature of drug market areas, the General Assembly’s establishment of a 24-hour “drug-free school zone” bore a rational relationship to the achievement of the State’s legitimate goal of protecting children. The constraints of due process “do not require that the means chosen by [the legislature] to deal with a problem score a notable success in every application of the statute.” Id. at 286-87, 619 A.2d 111 (emphasis added) (second alteration in original) (quoting United States v. Agilar, 779 F.2d 123, 125 (2d Cir.1985)). Although the Court of Appeals in Dawson articulated the purpose underlying section 286D and determined its constitutionality, the Court did not address the issue raised in the case sub judice, namely, whether section 5-627 applies when a school is temporarily closed for renovations.

Nor has any Maryland appellate court done so. For a resolution of this issue, we must look to the New Jersey and federal cases that have interpreted the statutes from which section 5-627 is derived. In United States v. Hawkins, 104 F.3d 437, 439 (D.C.Cir. 1997), Hawkins asserted that there was insufficient evidence to support his conviction for violation of 21 U.S.C. § 860 , “because the Government failed to establish that his conduct occurred within 1,000 feet of an operating school.” Specifically, Hawkins claimed that “the Government must show that he possessed or distributed heroin within 1,000 feet of an actual school, not just a school building that is no longer (or not yet) in use as a school.” Id. at 440 . The United States Court of Appeals for the District of Columbia Circuit agreed, stating: ⁷⁵ The Congress is understandably concerned with drug dealing where it might attract children, not with its effect upon abandoned or unfinished school buildings.

Reading the statute as a whole, therefore, we conclude that the Congress intended to subject drug dealers to enhanced punishment only for conduct occurring within 1,000 feet of an operating school (or other listed facility). Id. at 440-41 (emphasis added). 7 In Tarver, 640 A.2d at 320, 322 , the Superior Court of New Jersey, Appellate Division, was confronted with the question of whether there was sufficient evidence to support the appellant’s conviction for violation of section 2C:35-7 when the school was temporarily closed down. At trial, the State’s only witness was Newark Police Officer William Funk, who testified, based on a map of the area, that “Essex County Vocational School or Irvington Tech was within 1,000 feet of the drug sale” in which the appellant was involved. Id. at 317.

On cross-examination, Officer Funk admitted that he did not personally know “what occupied that building as of December 28, 1989,” the date of the appellant’s arrest. Id. at 318. In his defense, the appellant called Marcus Hill, who testified that he had attended Irvington Tech “up until the middle of his senior year in 1989, when it closed down,” and further claimed that Irvington Tech had been closed since June 1989. Id. at 319.

Hill also testified that the school was not in use “for anything” as of December 28, 1989, but did open up around a year later as an elementary school. Id. The State did not rebut Hill’s testimony. The trial court denied the appellant’s motion for judgment of acquittal, stating that there was “ ‘certainly [ ] evidence from which a jury can find that the property was in fact used for a school on December 28, 1989 within the purview of the statute.’ ” Id.

(emphasis omitted). ⁷⁶ On appeal, the Superior