State v. Simpson

McAULIFFE, Judge. Warren I. Simpson was convicted in the Circuit Court for Baltimore City of two counts of possession of a controlled dangerous substance. One count involved possession of heroin, and the other involved possession of cocaine. The evidence was sufficient to prove beyond a reasonable doubt that Simpson possessed one of the two substances.

It was not sufficient to prove which one. The State contends that the gravamen of the offense it charged is possession of a controlled dangerous substance — any controlled dangerous substance — and that it has proved that offense. It con ¹⁹⁶ cedes that under the circumstances, both convictions cannot stand. The State suggests that we randomly select one of the two counts to affirm, and treat the other as merged.

Simpson concedes, for purposes of argument, that the State could have secured a single conviction by charging him differently. He argues, however, that because the State elected to bring two separate charges, and because the evidence is insufficient to prove either, he must be acquitted. Simpson is correct. The facts are these.

Undercover police officers were observing activities in an area known for drug dealing. They observed Simpson make a “buy” from James Carr. Simpson gave Carr money and Carr gave Simpson “an item” that Carr obtained from a brown paper bag. As Simpson began to leave, the police converged on the scene.

One of the officers arrested Carr and recovered the brown paper bag and its remaining contents. Others chased Simpson. When Simpson was caught, he no longer had the “item,” and he was not in possession of any controlled dangerous substance. The brown paper bag contained eighteen glassine bags of heroin and ten capsules of cocaine.

Simpson was charged in an eight count information. Counts two and four, which were the only counts submitted to the jury, each charged a violation of Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 287. In pertinent part, the second count charged that Simpson “unlawfully did possess a certain controlled dangerous substance of Schedule # 1, to wit: heroin — ” The fourth count charged that Simpson “unlawfully did possess a certain controlled dangerous substance of Schedule # 2, to wit: cocaine____” The jury convicted Simpson on both counts, and the trial judge imposed concurrent sentences of two years imprisonment. Simpson appealed, and the Court of Special Appeals reversed both convictions, finding the evidence insufficient to prove either charge as laid.

Simpson v. State, 77 ¹⁹⁷ McLApp. 184, 549 A.2d 1145 (1988). We granted the State’s petition for certiorari. Article 27, § 287(a) provides that it is unlawful for any person: To possess or administer to another any controlled dangerous substance, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice. This section is part of the Maryland Controlled Dangerous Substances Act, which we discussed in Cunningham v. State, 318 Md. 182 , 567 A.2d 126 (1989), filed today.

We held in Cunningham that the intent of the General Assembly was to permit separate convictions for each controlled dangerous substance unlawfully possessed, even in the case of simultaneous possession of more than one substance. The question in this case, therefore, is not whether separate convictions were possible, but whether the evidence was sufficient to support either or both. If each charge is viewed separately, and if proof of the possession of the particular substance alleged in the charging document is treated as an essential element of the offense, it is clear that the State’s evidence is insufficient. As the Court of Special Appeals pointed out, a reasonable person might have found by inference that Simpson possessed either heroin or cocaine, but could not have found which of them he possessed, or that he possessed both.

The State concedes that the