State v. Beers

Powers, J., delivered the opinion of the Court. An indictment filed by the grand jury in Baltimore County charged Charles James Beers with 14 counts of violating, on 25 September 1972, the laws relating to controlled dangerous substances. The indictment also charged him with carrying a concealed dangerous and deadly weapon, and with being a rogue and vagabond. A motion by Beers to dismiss counts one, three, five, and seven, because they were duplicitous, was granted by Judge Maguire in the Circuit Court for Baltimore County.

The State appealed. Each of the counts which the court dismissed charged that Beers “ * * * unlawfully did possess a controlled dangerous substance * * * in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute or dispense a controlled dangerous substance * * Each of the four counts charged possession of a different substance. The statute alleged to have been violated is Code, Art. 27, § 286 (a) (1), which reads: ⁴¹ “(a) Except as authorized by this subheading, it shall be unlawful for any person: (1) To manufacture, distribute, or dispense, 1 or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance; * * *.” The State contends that § 286 (a) (1) defines four crimes, by making it unlawful to: 1. Manufacture, or 2.

Distribute, or 3. Dispense, or 4. Possess with intent to manufacture, distribute, or dispense — a controlled dangerous substance. On the other hand, the appellee contends that the subsection defines six separate crimes; that three of them are crimes of possession; and that an indictment which charges all three crimes of possession in the disjunctive rather than in the conjunctive is duplicitous, and bad in substance.

We hold that the possession of a controlled dangerous substance proscribed by § 286 (a) (1) is a single crime, and may be shown by evidence of possession in a quantity and under circumstances sufficient to support an inference of an intent to manufacture, or to distribute, or to dispense, 2 the controlled dangerous substance. Waller v. State, 13 Md. App. 615 , 284 A. 2d 446 (1971), cert. denied, 264 Md. 752 (1972). In Killie v. State, 14 Md. App. 465 , 287 A. 2d 310 (1972), cert. denied, 265 Md. 740 (1972), we said, at 475-76: “The qualifying phrase setting out the additional ⁴² element that the controlled dangerous substance shall be ‘in sufficient quantity to reasonably indicate ... ’ modifies only the act of possessing and not the subsection’s alternatively proscribed acts of manufacturing, distributing, or dispensing.” But holding that the possession made unlawful by the statute is but one crime, and not three crimes, does not answer the question we must decide. That question is: When a statute creates an offense and specifies several different intents, one or more of which must be shown to be present as an element of the offense, and more than one intent is charged, may the several intents be charged in the disjunctive or must they be charged in the conjunctive?

There is no need for us to repeat here the general discussion of duplicity in indictments or other charging documents, fully covered by Chief Judge Orth for this Court in Ayre v. State, 21 Md. App. 61 , 318 A. 2d 828 (1974). We pointed out that the rule, as stated in numerous earlier cases, was expressed in Morrissey v. State, 9 Md. App. 470 , 265 A. 2d 585 (1970), as follows, at 476: “While the rule is that an indictment or information should not charge the commission of two or more substantive offenses in the same count, it is not objectionable to charge in one count several related acts which enter into and constitute one offense, although when separately considered they may be distinct offenses.” These two rules concerning duplicity are clearly stated in Ayre v. State, supra: 1.