226 A.3d 895
Md. Ct. Spec. App.2020Background
- Malik Maurice Moseley was tried and convicted by a jury in Anne Arundel County for unlawful possession of ammunition (misdemeanor) and sentenced to one year.
- Police responded to two fatal drug overdoses at 5 Pebble Drive on June 12–13, 2018; Moseley was observed outside on June 12 and twice admitted he "lived" at that address, but was in police custody elsewhere when the warrant/ search occurred.
- A search warrant executed ~2:00 a.m. on June 14 uncovered multiple items of contraband: most drugs/paraphernalia in the kitchen and front bedroom; amphetamine and scales in a nightstand drawer by the bed in the back bedroom.
- Eight .40 caliber cartridges in a closed/partially obscured box were found on a cluttered dresser in the back bedroom (and a separate box of 52 cartridges high on a kitchen shelf); no firearm was recovered.
- There was no direct evidence that Moseley ever possessed, handled, or contemporaneously observed the ammunition; the State relied solely on circumstantial proof of constructive possession.
- On appeal Moseley argued (1) insufficiency of evidence to support ammunition possession, (2) prosecutorial misstatement about constructive possession, and (3) trial judge’s failure to give a supplemental instruction; only the first issue was preserved and reached the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of evidence for unlawful possession of ammunition | State: constructive-possession inference from Moseley living at 5 Pebble Dr, mail in bedroom, ammunition on dresser in that bedroom | Moseley: no contemporaneous proximity, no clear view/knowledge, no possessory control, no mutual use; only circumstantial gaps | Reversed — evidence legally insufficient under Folk factors and controlling caselaw (temporal disconnect, obscured box, no gun, no possessory right) |
| Prosecutorial misstatement about constructive possession in closing | State: prosecutor’s characterization supported reasonable inferences | Moseley: prosecutor misstated law (not preserved by timely objection) | Not considered on appeal for non-preservation |
| Failure to give supplemental jury instruction after questions | State: no reversible error | Moseley: jury needed clarification (not preserved) | Not considered on appeal for non-preservation |
Key Cases Cited
- Henson v. State, 236 Md. 518 (1964) (residence may permit an inference of constructive possession but does not alone prove dominion/control)
- Garrison v. State, 272 Md. 123 (1974) (conviction requires proof of dominion or control, not merely presence)
- Folk v. State, 11 Md. App. 508 (1971) (articulated primary factors for joint/constructive possession: proximity, view/knowledge, ownership/possessory right, mutual use)
- Dawkins v. State, 313 Md. 638 (1988) (knowledge of contraband is prerequisite to constructive possession; knowledge may be inferred from circumstances)
- Suddith v. State, 379 Md. 425 (2004) (knowledge may be proven by inferences from totality of circumstantial evidence)
- Taylor v. State, 346 Md. 452 (1997) (presence in a room where contraband was used is insufficient without evidence of dominion/control)
- White v. State, 363 Md. 150 (2001) (proximity without possessory right or control is insufficient to establish constructive possession)
- Moye v. State, 369 Md. 2 (2002) (conviction cannot rest on proof amounting to strong suspicion or mere probability; lack of possessory right undermines constructive-possession inference)