Luis Christian Rivera v. State of Maryland
No. 116, September Term, 2019
Court of Special Appeals of Maryland
October 6, 2020
Opinion by Eyler, James R., J.
Luis Christian Rivera v. State of Maryland, No. 116, September Term, 2019. Opinion by Eyler, James R., J.
CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — CONTEMPORANEOUS OBJECTION RULE —
CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — SUFFICIENCY OF THE EVIDENCE —
CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — MATTERS NOT IN EVIDENCE: A claim that a trial court has considered matters not in evidence is distinguishable from a claim of evidentiary insufficiency. Historically, the purpose of
CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — MATTERS NOT IN EVIDENCE: Because Rivera did not object to the trial court‘s references, in its pronouncement of the verdict, to facts not in evidence, his claim of error was not preserved for appellate review.
REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 116
September Term, 2019
LUIS CHRISTIAN RIVERA v. STATE OF MARYLAND
*Meredith, Graeff, Eyler, James R. (Senior Judge, Specially Assigned), JJ.
Opinion by Eyler, James R., J.
Filed: October 6, 2020
*Meredith, J., now retired, participated in the conference of this case while an active member of the Court; after being recalled pursuant to
Appellant, Luis Christian Rivera, was convicted by the Circuit Court for Cecil County, after a bench trial, of the manufacture of crack cocaine, possession of crack cocaine, possession of heroin, possession of Suboxone,1 and possession of paraphernalia (specifically, a digital scale). The court thereafter sentenced appellant to a term of twelve years’ imprisonment,2 prompting this appeal, in which he raises two issues which we have rephrased slightly:
- Whether the trial court erred in basing its verdict on information outside the evidence; and
- Whether the evidence was sufficient to prove beyond a reasonable doubt that appellant possessed the drugs and paraphernalia in the apartment.
With respect to the first issue, the State contends that it was not preserved for appellate review because appellant did not object when the court delivered its verdict. With respect to the second issue, the State contends that the evidence is legally sufficient.
We hold that the first issue was unpreserved. We also conclude that the evidence was legally sufficient to sustain the convictions, and therefore, we affirm the judgments.
BACKGROUND
A single witness testified at appellant‘s bench trial: Maryland State Trooper Michael Dowling. According to Trooper Dowling, he, along with “seven [or] eight”
other law enforcement officers, executed a no-knock search warrant at an Elkton apartment after confirming that a controlled purchase of crack cocaine had occurred there. When they entered, the officers observed that the apartment contained a common area as well as two bedrooms and a bathroom. Appellant and a sixteen-year-old girl were in one bedroom, and an “adult male” and an “adult female” were in the other. Although Trooper Dowling was “unsure” whether
The officers recovered $778 in United States currency, in a wallet, which was on a television stand in appellant‘s bedroom. Appellant acknowledged that the currency belonged to him but maintained that it “came from his music proceeds.” On that same television stand, officers recovered mail that was addressed to appellant at the residence where the search warrant was executed. “[A]long with the wallet” was a “suboxone sublingual strip.” Three additional strips were found “underneath [appellant‘s] bed in a bag with other CDS.” Appellant did not have a prescription for the Suboxone strips.
In addition to the Suboxone strips, the “clear bag” found beneath appellant‘s bed contained eighteen smaller “bags of blue wax folds containing” heroin and a “bag of [crack] cocaine.” A bag of marijuana was found on a “futon in plain view right beside the bed[.]” In a microwave oven in appellant‘s bedroom, police officers found a Pyrex “measuring cup containing white residue,” which was determined to be crack cocaine. On top of the microwave were “two measuring cups,” a spoon, and baking soda, which, according to Trooper Dowling, were used to manufacture crack cocaine.
In addition to the aforementioned physical evidence seized from appellant‘s bedroom, to which Trooper Dowling testified, two digital scales also were recovered. Although Trooper Dowling was never asked about them, and he did not mention them during his testimony, a forensic laboratory report, prepared by a Maryland State Police forensic scientist, was admitted into evidence. That report noted that two scales had been submitted along with the other physical evidence seized from appellant‘s bedroom. Trooper Dowling testified that all the physical evidence seized had been recovered from appellant‘s bedroom.
After Trooper Dowling finished testifying, the State rested. After the defense moved for judgment of acquittal, and the court denied its motion as to all counts except Count 1 (possession of crack cocaine with intent to distribute), the defense called the juvenile girl as a witness. Because the court was concerned that she might have grounds, under the Fifth Amendment, to refuse to testify, the court recessed so that it could appoint counsel to represent her. She ultimately exercised her right not to testify. Nine days after trial had commenced, the court rendered its verdict:
THE COURT: All right. Well, with regard to the testimony -- and again, we‘re looking at constructive possession here -- you know, the factors that the Court looks at, the proximity of the defendant and the contraband. And again, based on the testimony of Trooper Dowling, he executed a search warrant at 859 East Old Philadelphia Road on January 30th of 2018, and found Mr. Rivera in the second bedroom undressed in bed.
And then from there he described what was seized. Underneath the mattress they found two bundles of suspected heroin, and this is all from the same bedroom. On top of the microwave was a digital scale. On the TV stand was currency in the amount of $778. They found documents, mail, other items with the defendant‘s name. Another digital scale.
They found measuring cups containing white residue, spoons, baking soda and plastic bags. Suboxone strips were found under the mattress. No prescription was found. And again, a bag of cocaine and marijuana were underneath the bed.
There was crack cocaine found inside the microwave in that Pyrex cup. And then based -- and he gave testimony with regard to how you make crack cocaine and what items are used and how it‘s made using the microwave.
So again, based on -- and I recall the officer testifying that, again, a lot of these items, obviously not the items found underneath the mattress, but the other items found on the nightstand and on the TV stand were all in plain view.
Again, if you take that in light of the fact that the defendant was there, he was sleeping, there was mail and items with his identification on it in that residence.
So based on the Court‘s consideration of all of these factors and the testimony of Trooper Dowling, the Court is convinced beyond a reasonable doubt that the defendant is guilty of Counts 2 through 6.
(Emphasis added.) The matters in bold font were not in evidence. Appellant did not object. After the court imposed sentence, this timely appeal followed.
DISCUSSION
I.
Appellant claims that the circuit court‘s judgments must be reversed because, in its verdict, the court relied, in part, upon facts not in evidence; therefore, the court clearly erred. The State does not address the merits of this claim, instead countering that it was not preserved for our review because no objection was lodged below.
We have not located a reported Maryland appellate opinion in which the holding is on point. The precise issue before us is whether, after a bench trial, assuming the evidence is legally sufficient to sustain the convictions, a defendant has to object when the court, in its verdict, relies on matters not in evidence.
Ordinarily, an objection or other appropriate action is required to preserve an issue for appellate review. See
(c) Action Tried Without a Jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
To provide context to interpret
by analogy to the constitutional provision, it was repeatedly held by the Court of Appeals that it would not pass on the legal sufficiency of the evidence to convict where the case was tried by the court sitting as a jury.
Id. (citations omitted).
In 1949, the General Assembly enacted an amendment to
Lotharp v. State, 231 Md. 239, 240 (1963) (per curiam). That remains true today. Starr v. State, 405 Md. 293, 302 (2008) (citing Lotharp).
Meanwhile, the Court of Appeals adopted the General Rules of Practice and Procedure (“G.R.P.P.“), effective January 1, 1950. Williams, 5 Md. App. at 453. Rule 7(c) of Part Four, relating to Criminal Rules, thereafter provided, in the case of bench trials:
When a criminal charge has been so tried by the Court [i.e., sitting without a jury], an appeal may be taken as provided by law. Upon appeal the Court of Appeals may review upon both the law and the evidence to determine whether in law the evidence is sufficient to sustain the conviction, but the verdict of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.
(Emphasis added.)
As of 1957, a similar rule appeared as Rule 886 a:
When an action has been tried by the lower court without a jury, this Court [i.e., the Court of Appeals] will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.
It has always been true, and remains so today, that there is no preservation requirement for sufficiency claims in cases tried without a jury. As the Williams Court observed, in interpreting a rule substantially similar to
the issue [of sufficiency] comes before us in a case tried by the lower court sitting as a jury in a different posture than when the case is tried by a jury. In a non-jury case Rule 1086 specifically provides that we shall review the case upon the evidence (as well as the law) and we must determine whether the lower court was clearly wrong on the evidence in finding a verdict of guilty. In a jury case if the lower court finds upon motion for judgment of acquittal that the evidence is sufficient in law to justify a conviction, it denies the motion, and permits the evidence to go to the jury. On appeal we determine whether the denial of the motion was proper. It is because of this difference in the posture of the issue of the sufficiency of the evidence that we may entertain the issue on appeal in a jury case only upon the denial by the lower court of a motion for judgment of acquittal but we must entertain the issue in a non-jury case when presented on appeal even in the absence of a motion for judgment of acquittal below.
Williams, 5 Md. App. at 455-56 (footnotes omitted) (emphasis added).
More recently, shortly after the 1984 Rules re-codification, the Court of Appeals, in Ennis v. State, 306 Md. 579 (1986), explained the policy rationale underlying the differential treatment of sufficiency claims in bench trials versus jury trials. Ennis had been convicted by a jury of arson. Id. at 581. At trial, she had made a motion for judgment of acquittal at the close of the State‘s case, presented evidence on her own behalf, and then failed to renew her previous motion. Id. at 582-83. On appeal, she
claimed that the evidence had been insufficient, but we declined to consider the claim, holding that review was barred by Art. 27, § 5938 and
Ennis sought review in the Court of Appeals, claiming that the differential treatment of sufficiency claims in jury trials as compared with bench trials denied her due process and equal protection of the law. In rejecting Ennis‘s challenge and affirming the judgment, the Court of Appeals explained:
A moment‘s reflection makes it evident that an undeniable purpose of Rules 886 and 1086 is to preclude the possibility that an arbitrary conviction will be entered by a single judge where
the evidence sustaining the defendant‘s conviction is insufficient at law. The basic demands of due process and fundamental equity mandate that appellate review of such cases be provided.
In deciding the preservation issue in this case, we must bear in mind that appellate review of sufficiency has evolved since G.R.P.P. Rule 7(c) was first adopted. A question such as the one we are now facing was unlikely to arise during the first few decades after promulgation of the rule. It was not until the decision of the Supreme Court in Burks v. United States, 437 U.S. 1, 18 (1978),9 that an appellate holding of evidentiary insufficiency barred a retrial of a criminal case. Prior to Burks, an appellate holding that
the evidence was insufficient to sustain a conviction did not preclude a retrial in all cases. See Gray v. State, 254 Md. 385, 388 (1969) (observing that, “[s]ince this Court has had the power to review the sufficiency of the evidence it has done so in a number of cases, and when it has reversed for insufficiency its course has not been uniform“), cert. denied, 397 U.S. 944 (1970); id. at 393 (concluding that “the practice of remanding for a new trial after reversal for insufficiency of the evidence rather than remanding for entry of a judgment of acquittal, is permissible“).10 Gray collected cases in which the Court of Appeals had remanded for new trials after concluding that the evidence was insufficient to sustain the convictions, id. at 388 n.1, and correctly noted, without citation, that this Court had “followed the same course.” Id. at 388.11
Thus, a claim that a trial court had considered matters not in evidence in rendering a verdict, prior to Burks, would have been subsumed within review of evidentiary sufficiency. See, e.g., Corbett v. State, 4 Md. App. 269, 274 (1968) (in reversing for insufficient evidence because the trial court had relied upon matters not in evidence, the Court observed that it was “possible that the same determination would have been
reached on the other evidence, but we cannot thus place ourselves in the position of the trial judge and ignore what he said“).
More recently, in the context of a sentencing hearing, the Court of Appeals addressed the scope of appellate review under
We draw the following conclusions: From its origins up to the present day, it appears that the purpose of
sufficiency of the evidence without requiring either an objection or a motion for judgment of acquittal below. Ennis, 306 Md. at 596; Duppins v. State, 17 Md. App. 464, 466-67 (1973). The Court of Appeals strongly suggested in Bryant, however, that it would reject attempts to expand the scope of review under
II.
Considering only the evidence that was admitted, we next determine whether it was sufficient to sustain the verdict. We apply the now-familiar standard, articulated in Jackson v. Virginia, 443 U.S. 307 (1979), which requires us to determine “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.” Id. at 319 (citation omitted).
Appellant contends that the evidence was insufficient to prove that he possessed any of the contraband seized from his dwelling. “‘Possess’ means to exercise actual or constructive dominion or control over a thing by one or more persons.”
2012 Repl. Vol. 2017 Supp.),
Specifically, in determining whether evidence is sufficient that a defendant
The evidence was that the following was seized from the bedroom in which appellant was located: Suboxone strips, one of which was in appellant‘s wallet; a baggie containing cocaine; a baggie containing a white powder residue; 18 baggies containing heroin; a bag containing marijuana which was in plain view on a futon; two digital scales containing white powder residue; and measuring cups and baking soda, some of which was in plain view.
There is ample evidence of appellant‘s proximity to all the contraband. Much of it was found underneath his bed, and all of it was found in his bedroom. One of the Suboxone strips was found in his wallet, along with cash, which he admitted to possessing. All the contraband was either in plain view or accessible to appellant.15 That there was no testimony establishing precisely where the scales were found is of no moment; it is enough that there was evidence that they were found in appellant‘s bedroom, since, under the circumstances (that is, that other related contraband, used to manufacture crack cocaine, was found in plain view), the fact finder could infer that the scales belonged to appellant. The third factor is not particularly relevant here; we note only that its absence cannot be dispositive, or else a defendant could never be found to possess drugs that he was not consuming. Finally, there is evidence of the fourth factor, namely, the envelope addressed to appellant at the residence where the contraband was found.16
We conclude that the evidence was sufficient to sustain the convictions of all the possessory offenses.17
Notes
Id. at 85 (footnote omitted).A SID (State Identification) number is a unique number directly linked to an individual‘s fingerprints. Because of that link, no two persons should have the same SID number; nor, if the proper procedures are followed, should a person ever have more than one SID number.