Veney v. State

EYLER, Judge. Appellant, Eric Veney, was convicted by a jury sitting in the Circuit Court for Baltimore City of possession with intent to distribute cocaine, possession of cocaine, possession with intent to distribute heroin, and possession of heroin. He was sentenced to concurrent terms of ten years, to be served without the possibility of parole, for each of the possession with intent to distribute convictions. The remaining convictions were merged.

Appellant noted a timely appeal and presents the following questions for our review: ¹⁴⁰ I. Was the evidence sufficient to support appellant’s convictions for possession with intent to distribute?

II

Did the trial court impose an illegal sentence? FACTS On the morning of August 1, 1997, Baltimore City Police Officer Mark Holmen and his partner, Kurt Roepke, were on uniformed bicycle patrol. At approximately 10:00 a.m., the officers were in the 1900 block of Castle Street when Officer Holmen observed a group of about five people in the backyard area of the 2000 block of Cliftwood, which faces Castle Street. At trial, the officer described it as “a high drug area.” The individuals he saw were yelling “Five-O,” which he explained was “a street term used to notify the criminal element that the police are in the area.” As the officers traveled down the street, Officer Holmen observed twenty-five to thirty individuals “scattering” and “[dispersing.” When Officer Holmen looked down the street, he observed a man, later identified as appellant, standing in front of 1909 North Castle Street and holding a plastic bag that contained a white substance.

The officer estimated that he was thirty feet from appellant at that time. Officer Holmen pointed out appellant to Officer Roepke, and the officers proceeded toward him. As the officers approached appellant, he got on his hands and knees and reached into the basement window, which was missing the glass, of the vacant house located at 1909 North Castle Street. When the officers were only several feet from appellant, Officer Holmen observed that appellant’s left hand was inside the basement window of the vacant house.

Officer Roepke, who testified as an expert in narcotics enforcement investigation, stated that he observed appellant “put his hand on the corner and then reach[ ] both hands through the window.” The officer further stated that the vacant house was full of trash and debris and that he saw appellant pull up a carpet and place a plastic bag underneath it. From underneath the carpet, Officer Roepke recovered a ¹⁴¹ plastic bag containing two green-topped vials of a white rock-like substance that the officers suspected was cocaine. Officer Roepke then checked where appellant had placed his hand “up in the window sill” at the corner and recovered a bag that contained forty-three gel capsules and fifty red-topped vials. Subsequent laboratory analysis determined that the gel capsules contained heroin and that the green-topped and red-topped vials contained cocaine.

Officer Roepke further testified that the different colors on the vial tops could indicate a different seller or different tester. He explained that, on the first of the month, when individuals receive their paychecks, distributors may give out a small sample of their product. The officer further stated that the quantities of forty-three gel capsules and fifty-two vials were consistent with distribution and not personal use. In the defense case, Angela Proctor testified that she was with appellant on the morning in question.

According to Ms. Proctor, she was standing with appellant when the police rode by two times on their bikes. On the third trip, the police stopped, got off their bikes, and looked in the window at 1909 Castle Street. One of the officers then approached appellant and escorted him up the street. An officer pulled the bags out of the window and appellant was arrested.

Ms. Proctor testified that she had not seen appellant go to the window. DISCUSSION I. Appellant first contends that the evidence was insufficient to sustain his convictions for possession with intent to distribute, as the State failed to establish that he was aware of the second bag of drugs that contained forty-three gel capsules of heroin and fifty red-topped vials of cocaine. He stresses that Officer Roepke did not see him in possession of that bag, that the area is known for a high concentration of drugs, that the vacant house was full of trash and debris, and that the drugs were not in plain view. Appellant also relies on Officer Roepke’s testimony that different sellers use different colored ¹⁴² vials and emphasizes that, although the officers observed him in possession of the baggie containing two green-topped vials, the second bag contained red-topped vials.

Appellant concedes his possession of the two green-topped vials of cocaine but claims there was no evidence that he was attempting to sell or distribute them because the officers did not observe him engaging in any hand-to-hand transactions and no money, pager, or tally sheets were found on his person when he was arrested. At the close of the State’s case, defense counsel moved for judgment of acquittal, stating only: “We’ll make a motion on all counts, Your Honor, and submit.” At the close of all the evidence, defense counsel again moved for judgment and stated: “We would renew the motion and submit.” No argument was presented in support of the motion; therefore, the sufficiency of the evidence is not properly before us. See Johnson v. State, 90 Md.App. 638, 649 , 602 A.2d 255 (1992) (citing Brooks v. State, 68 Md.App. 604, 611 , 515 A.2d 225 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987)) (“a motion which merely asserts that evidence is insufficient to support a conviction, without specifying the deficiency, does not comply with Rule 4-324, and thus does not preserve the issue of sufficiency for appellate review”); Parker v. State, 72 Md.App. 610, 615 , 531 A.2d 1313 (1987) (“[Mjoving for judgment of acquittal on the grounds of insufficiency of the evidence, without argument, does not preserve the issue for appellate review.”). Nonetheless, we briefly address appellant’s contentions.

The standard for our review of the sufficiency of the 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. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); Wilson v. State, 319 Md. 530, 535 , 573 A.2d 831 (1990). The jury, as the trier of fact, may “ ‘draw reasonable inferences from basic facts to ultimate facts.’ ” Barnhard v. State, 86 Md.App. 518, 532 , 587 A.2d 561 ¹⁴³ (1991), aff'd, 325 Md. 602 , 602 A.2d 701 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)). Weighing the credibility of the witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.

See Binnie v. State, 321 Md. 572, 580 , 583 A.2d 1037 (1991). In performing its fact finding role, the jury is free to accept the evidence that it believes and reject that which it does not. See Muir v. State, 64 Md.App. 648, 654 , 498 A.2d 666 (1985), aff'd, 308 Md. 208 , 517 A.2d 1105 (1986). “In this regard, it may believe one witness’s testimony, but disbelieve another witness’s testimony.” Shand v. State, 103 Md. App. 465, 489 , 653 A.2d 1000 (1995), aff'd on other grounds, 341 Md. 661 , 672 A.2d 630 (1996); see also Snyder v. State, 104 Md.App. 533, 549-50 , 657 A.2d 342 , cert. denied, 340 Md. 216 , 665 A.2d 1058 (1995) (stating that a jury resolves conflicts in evidence and evaluates witness’s credibility). To support a conviction for a possessory offense, the “ ‘evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited ... drug in the sense contemplated by the statute, i.e., that [the accused] exercised some restraining or directing influence over it.’” State v. Leach, 296 Md. 591, 595-96 , 463 A.2d 872 (1983) (quoting Garrison v. State, 272 Md. 123, 142 , 321 A.2d 767 (1974)). “The accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance.

Of course, such knowledge can be proven by circumstantial evidence and by inferences drawn therefrom.” Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988). The following factors may be considered in determining whether appellant possessed the second bag of drugs: “1) proximity between the defendant and the contraband; 2) the fact that the contraband was within the plain view or otherwise within the knowledge of the defendant; 3) ownership or some possessory right in the premises or automobile in which the contraband is found; and 4) the presence of circumstances from which a reasonable inference could be ¹⁴⁴ drawn that the defendant was participating with others in the mutual enjoyment of the contraband.” Kostelec v. State, 112 Md.App. 656, 672, 685 A.2d 1222 (1996), vacated on other grounds, 348 Md. 230 , 703 A.2d 160 (1997) (quoting Rich v. State, 93 Md.App. 142, 150 , 611 A.2d 1034 (1992), vacated and remanded on other grounds, 331 Md. 195 , 627 A.2d 537 (1993) (citing Folk v. State, 11 Md.App. 508, 514 , 275 A.2d 184 (1971))). In the present case, the officers observed appellant in close proximity to the second bag of drugs. Officer Roepke testified that he recovered the second bag from the area where appellant had placed his hand at the corner of the window sill.

This evidence sufficiently connected appellant to the second bag of drugs. In addition, although the vials in the bag that the officers observed in appellant’s hand and that they found in the second bag had different colored tops, Officer Roepke testified that the color change may indicate a different tester as distributors give out samples of their product. It was adequately demonstrated that appellant was aware of the second bag of drugs and that the quantity of drugs recovered was consistent with distribution and not personal use; therefore, the evidence was sufficient to sustain appellant’s convictions for possession with intent to distribute cocaine and heroin. See Hippler v. State, 83 Md.App. 325, 338 , 574 A.2d 348 , cert. denied, 321 Md. 67 , 580 A.2d 1077 (1990) (quoting Salzman v. State, 49 Md.App. 25, 55 , 430 A.2d 847 , cert. denied, 291 Md. 781 (1981)) (“[ijntent to distribute controlled dangerous substances is ‘seldom proved directly, but is more often found by drawing inferences from facts proved which reasonably indicate under all the circumstances the existence of the required intent.’ Likewise, an intent to distribute may be indicated by the very quantity of narcotics possessed.”) II.

Appellant next claims that the trial court erred in imposing sentences of ten years without the possibility of parole under ¹⁴⁵ Md.Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Art. 27, § 286(c), for each of the possession with intent to distribute convictions. Appellant was convicted of violating a controlled dangerous substance law in 1991. Appellant contends that under Thomas v. State, 104 Md.App. 461 , 656 A.2d 799 (1995), he could be sentenced to an enhanced penalty for his second conviction only and, thus, only one 10-year non-parolable sentence could be imposed. The State claims that imposition of an enhanced sentence for each of the possession with intent to distribute convictions is permissible under the dictates of Whack v. State, 338 Md. 665 , 659 A.2d 1347 (1995), and that Thomas is factually distinguishable from appellant’s case.

Although appellant did not object to thfe sentence imposed, we may reach this question as an enhanced penalty imposed improperly is an illegal sentence. See Bowman v. State, 314 Md. 725, 727, 738 , 552 A.2d 1303 (1989) (erroneous mandatory sentence that fails for a lack of proof of prior conviction is illegal); Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985) (“when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court”); see also Butler v. State, 46 Md.App. 317, 322 , 416 A.2d 773 , cert. denied, 288 Md. 743 (1980) (finding that although appellant did not object to proof at sentencing or findings of trial court that he fell within ambit of § 643B(c), “manifest injustice would result if we do not review the issue”). Appellant was sentenced under Md.Code (1957, 1996 Repl. Vol., 1999 Cum.Supp.), Art. 27, § 286(c) 1 , which provides in relevant part: (c) Sentencing. — (1) A person who is convicted under subsection (b)(l)[ 2 ] or subsection (b)(2)[3] of this section, or of ¹⁴⁶ conspiracy to violate subsection (b)(1) or (b)(2) of this section shall be sentenced to imprisonment for not less than 10 years and subject to a fine not exceeding $100,000 if the person previously has been convicted: (i) Under subsection (b)(1) or subsection (b)(2) of this section; (ii) Of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section; or (iii) Of an offense under the laws of another state, the District of Columbia, or the United States that would be a violation of subsection(b)(l) or subsection (b)(2) of this section if committed in this State.

(2) The prison sentence of a person sentenced under subsection (b)(1) or subsection (b)(2) of this section, or of conspiracy to violate subsection (b)(1) or subsection (b)(2) of this section or any combination of these offenses, as a second offender may not be suspended to less than 10 years, and the person may be paroled during that period only in accordance with § 4-305 of the Correctional Services Article. The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent. Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994); Comptroller v. Jameson, 332 Md. 723, 732 , 633 A.2d 93 (1993). “The starting point in statutory interpretation is with an examination of the language of the statute. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204 (1994) (citations omitted).

Stated another way, “[w]hen the words of the ¹⁴⁷ statute are clear and unambiguous, we need not go further.” State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731 (1993). “Language can be regarded as ambiguous in two different respects: 1) it may be intrinsically unclear ...; or 2) its intrinsic meaning may be fairly clear, but its application to a particular object or circumstance may be uncertain.” Town & Country v. Comcast Cablevision, 70 Md.App. 272, 280 , 520 A.2d 1129 , cert. denied, 310 Md. 2 , 526 A.2d 954 (1987). “That a term may be free from ambiguity when used in one context but of doubtful application in another context is well settled.” Tucker v. Fireman’s Ins. Co., 308 Md. 69, 74 , 517 A.2d 730 (1986). Section 286(c)(1) requires imposition of a sentence of not less than 10 years upon a person “convicted” under subsection (b)(1) or (b)(2) or for conspiracy to violate those subsections if the person has the required predicate conviction. Dropping down to subsection (c)(2), we are informed that the 10-year sentence may not be suspended and that it is, in essence, without parole. 4 Subsection (c)(2) begins with the words, “The sentence of a person.... ” The “sentence” is singular even though it may apply to “any combination” of the applicable “offenses.” In common everyday language, “sentence” may refer to a sentence imposed on a single count or the number of years to be served when all sentences are totaled.

Furthermore, the enhanced penalty applies only to a “second offender.” The phrase is not defined, and we are left to question whether it covers only the second conviction or all convictions arising from a course of conduct that happens to be the defendant’s second criminal episode involving the relevant drug charges. Accordingly, we must conclude that the statute, as applied to the circumstances before us, is unclear and ambiguous. ¹⁴⁸ “If a statute is clouded by ambiguity or obscurity, ... we must consider ‘not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment,’ in our attempt to discern the construction that will best further the legislative objectives or goals.” Gargliano v. State, 334 Md. 428, 436 , 639 A.2d 675 (1994) (quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75 , 517 A.2d 730 (1986)). In addition, “courts must read all parts of a statute together, with a view toward harmonizing the various parts and avoiding both inconsistencies and senseless results that could not reasonably have been intended by the Legislature.” Barr v. State, 101 Md.App. 681, 687 , 647 A.2d 1293 (1994); see also Williams v. State, 329 Md. 1, 15-16 , 616 A.2d 1275 (1992) (stating that the court must discern “legislative intent from the entire statutory scheme, as opposed to scrutinizing parts of a statute in isolation”); Calhoun v. State, 46 Md.App. 478, 488 , 418 A.2d 1241 (1980), aff'd, 290 Md. 1 , 425 A.2d 1361 (1981) (“internal consistency between the various provisions of a statute must be maintained, and subsections must, therefore, be interpreted in the context of the entire statutory scheme”).

Section 286(c) must also be considered in light of the construction the appellate courts of this State “have previously given to similarly worded enhanced penalty statutes, as ‘statutes that deal with the same subject matter, share a common purpose, and form part of the same system are in pari materia and must be construed harmoniously in order to give full effect to each enactment.’ ” Gargliano, 334 Md. at 436 , 639 A.2d 675 (quoting State v. Loscomb, 291 Md. 424, 432 , 435 A.2d 764 (1981)). Finally, § 286(c) is “a highly penal statute [and] must be ‘strictly construed so that only punishment contemplated by the language of the statute is meted out.’ ” Gargliano,