Lead Opinion
Reminiscent of a scene from a Cheech & Chong movie,
I. The Facts (and Nothing but the Facts)
The facts in this case are not in dispute. On 29 November 2006, as a result of his observations of the dwelling (and goings-on in and around the dwelling) at 1932 Lanvale Street in Baltimore City, Detective David Shields of the Baltimore City Police Department, obtained a search warrant for the
Upon entering the residence, the police were “immediately engulfed with a heavy cloud of marijuana filtering all through the first floor.” Sergeant Fesser described the marijuana smoke as a “haze.” The police conducted a sweep through the house to secure it. They ascertained that there were approximately 12-14 people present in the house.
When the police entered the middle room,
The police gathered all the occupants into the front room where they read the suspects their Miranda rights.
Detective Shields arrested the individuals whom he believed to be in possession of the marijuana, including Petitioner and Sterling, who was the “official” tenant at 1932 Lanvale Street.
Sterling was the only witness called by the defense. She testified that she returned home from work on 6 December 2006 at approximately 7:10 P.M. She saw Petitioner in the dining room wearing a jacket. She testified that he was at her house that evening to purchase an apparently custom shirt from her son. When she entered the home, she observed Petitioner standing behind her son, watching him “put the finishing touches on the shirt.” She also testified that she saw a chair with a black leather jacket on the back of it. At that time, according to Sterling, no one, including Petitioner, was smoking marijuana. She went upstairs to her bedroom and remained there until the police arrived. She did not smell the marijuana smoke until the police brought her downstairs.
Smith renewed his motion for judgment of acquittal at the conclusion of the defense’s case-in-chief. He argued to the trial court that the State did not establish that he had knowledge of the contents of the jacket or that he exercised dominion or control over the blunt in the ashtray. The State countered that there was sufficient evidence that Smith was in constructive possession of both the marijuana in the jacket and the blunt. Although the relevant portion of the trial transcript is missing from the record, presumably the trial court denied the defense motion because the case went to the jury.
After deliberating for a day, the jury returned a guilty verdict to the single charge of possession of marijuana. The
Petitioner filed a timely appeal to the Court of Special Appeals. In his brief to the intermediate appellate court, he argued that the evidence was insufficient to sustain the conviction of possession of marijuana.
We granted Smith’s petition for a writ of certiorari,
Is proof of presence in a house where marijuana is being smoked sufficient to sustain a conviction for possession of marijuana?
For the reasons set forth below, we shall affirm the judgment of the Court of Special Appeals and hold that the evidence was sufficient, as to the blunt, to sustain Smith’s conviction.
II. Standard of Review
Petitioner frames the applicable standard of review based on selected language found in Jones v. State,
In Jones, the defendant was convicted of second degree burglary. Id. at 101,
In Dukes, the Court of Special Appeals endorsed the following test be applied when reviewing the sufficiency of the evidence:
“where from the facts most favorable to the [party with the burden of proof] the nonexistence of the fact to be inferred is just as probable as its existence (or more probable than its existence), the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be permitted to draw it.”
Id. at 47-48,
Petitioner’s highlighted language in these cases notwithstanding, it is well established that the standard that Smith champions is not the focus of the standard to be applied when reviewing the sufficiency of the evidence in criminal cases. We stated in State v. Smith,
We do not second-guess the jury’s determination where there are competing rational inferences available. We give deference “in that regard to the inferences that a fact-finder may draw.” Smith,
*184 [n]othing forbids a jury, or a judge, from logically inferring intent from proven facts, so long as it is satisfied that the state has proved that intent beyond a reasonable doubt. An essential function of the fact finder is to discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses.
Id. at 884-35 (citations omitted). We need not decide whether the jury could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence. Smith,
Accordingly, the proper standard of review to be applied here is that set forth in Jackson v. Virginia,
It is not our role to retry the case. Allen,
That standard applies to all criminal cases, regardless of whether the conviction rests upon direct evidence, a mixture of direct and circumstantial, or circumstantial evidence alone. Smith,
“ ‘Circumstantial evidence may support a conviction if the circumstances, taken together, do not require the trier of fact to resort to speculation or conjecture, but circumstantial evidence which merely arouses suspicion or leaves room for conjecture is obviously insufficient.... It must ... afford the basis for an inference of guilt beyond a reasonable doubt.’ ” Taylor,
III. Analysis
A.
Petitioner contends that the State adduced insufficient evidence to sustain his conviction of possession of marijuana. He argues that proof of his mere presence in a house where marijuana was being smoked was insufficient to sustain his conviction. He does not dispute the evidence admitted during the trial, and even conceded at oral argument before us that he was in reach of the burning blunt and could have reached to grasp it, but argues that we should not permit the fact-finder to infer that he possessed any marijuana. With regard to the marijuana blunt, he does not dispute that there was sufficient evidence to establish that he had knowledge of the presence of the marijuana, but rather that the evidence was insufficient to establish that he exercised actual or constructive dominion and control over the blunt. As to the packets of marijuana discovered in the jacket, he contends that his proximity alone to the jacket is insufficient to establish that he was in possession of the marijuana in its pocket or, indeed, that he had knowledge of the marijuana hidden there from plain view.
The State counters that it was reasonable, considering the totality of the circumstances, for the jury to infer that Petitioner was in possession of the marijuana in the blunt. Considering his proximity to the blunt, the fact that it was visible to him from his seat at the table, and the overwhelming smell of the marijuana smoke, a rational fact-finder could infer reasonably that he was engaging in the mutual use and enjoyment of the marijuana, and exercised dominion and control over the marijuana.
As to the marijuana in the jacket, the State points to the same facts that support possession of the blunt to support its theory that Petitioner possessed the marijuana in the jacket.
B.
Petitioner was convicted of possession of marijuana in violation of § 5-601(a)(l) of the Criminal Law article. Section 5-601(a)(l) prohibits the “possession] [of] ... a controlled dangerous substance.... ” Marijuana is included in the schedule of CDS. § 5-402(d)(l)(vii). The Legislature defined “possess” to mean “to exercise actual or constructive dominion or control over a thing by one or more persons.” § 5-101(u). The possession may be “actual or constructive ... and the possession may be either exclusive or joint in nature.” Moye,
Inherent in the element of exercising dominion and control is the requirement that the defendant knew that the substance was a CDS. Id.; Moye,
Applying the rationale in Pope to his situation, Petitioner contends that there is no direct evidence that he used or possessed marijuana. Therefore, his argument continues, he can be guilty only if there was evidence that he did something beyond simply being present and aware that a crime was committed by someone else. We do not see it that way. Petitioner was not convicted as a principal in the second degree. Although there was no direct evidence linking physically Petitioner to the marijuana, the jury was permitted to make inferences based upon the circumstantial evidence presented at trial. Moreover, under the statute, a person may be convicted if they are in constructive possession of marijuana. Under Petitioner’s neat, tidy, and clean theory, he may not be
Taylor v. State, relied on by both parties, is, perhaps, the most factually similar Maryland case to the present case and provides the framework for our analysis. Taylor was lying on the floor of a hotel room in Ocean City, Maryland, with his head turned away from the door (apparently asleep or feigning sleep) when police officers entered the hotel room that Taylor and several other individuals rented.
We held that, viewed in the light most favorable to the State, the evidence established only that “Taylor was present in a room where marijuana had been smoked recently, that he was aware that it had been smoked, and that Taylor was in proximity to contraband that was concealed in a container belonging to another.” Id. at 459,
In Taylor, we discussed Garrison v. State,
We reversed her conviction because, although Garrison was a lessee and resident of the apartment, there was insufficient evidence that she was in possession of the heroin. Id. at 130-31,
Similarly, in Leach, the evidence before the trial court showed that Leach: had access to a one bedroom apartment leased by his brother, Michael; registered a motor vehicle at that address; and gave an employer that address, but was not
Following Taylor; we decided White v. State,
In Moye, we applied our holding in Taylor. As in the present case, the State’s case against Moye rested solely on circumstantial evidence. Id. at 17,
We applied the reasoning employed in Taylor to hold that the evidence allowed for “nothing but speculation as to Moye’s knowledge or exercise of dominion or control over the drugs and paraphernalia found in the Bullock’s basement.” Id. at 17,
Finally, we concluded that “no reasonable inference could be drawn that Moye was participating with others in the mutual enjoyment of the contraband.” Id. at 20,
In State v. Suddith,
Suddith argued to this Court “that the jury could have done nothing but speculate as to whether he knew of the drugs in the car due to the lack of testimony regarding [Suddith’s] location in the car, the location of the contraband prior to the crash and the circumstances surrounding the drug paraphernalia’s suspected use, ie., when, where, and by whom.” Id. at 433,
We also distinguished Suddith from White, where the drugs in the latter case were secreted in a sealed box and there was nothing to indicate that White had any connection or access to the locked trunk or sealed container hiding the drugs. Id. at 438,
We also concluded that a reasonable inference could be drawn, from the location of the drugs, that all occupants of the vehicle had access to the drugs, thus distinguishing the case from Taylor. In Taylor, the trier of fact “had to speculate whether Taylor had control over the drugs located in a closed personal carrying bag of another in a hotel room.” Id. at 441,
Johnson v. State,
The court determined also that it was reasonable to infer from the circumstances that Johnson exercised dominion and control of the gear shift area of the vehicle, even though he was not the driver. Id. at 200,
Petitioner here also relies on two out-of-state cases in support of his argument that there was insufficient evidence to convict him of possession of marijuana. They are Reser v. State,
The Oklahoma Court of Criminal Appeals held that the evidence was insufficient to support Reser’s conviction for possession of marijuana. The court stated that “[i]t cannot be inferred from merely being present in a place where marihuana is found that the defendant had knowledge of its presence and had dominion and control.[
We distinguish Reser easily from the present case. Reser was not on the premises when the police conducted the search of the apartment. The only evidence linking Reser to the marijuana was his possessory interest in the apartment. Petitioner was not merely present in a place were marijuana was found, but was within arm’s reach of a lit blunt and in a room engulfed in marijuana smoke.
Petitioner embraces Rhyne v. State for the proposition that mere presence at the scene of an offense, or even knowledge of an offense, is not sufficient evidence to sustain a conviction for possession of drugs. In Rhyne, the police executed a search warrant for a residence for which Rhyne was the lessee, but no longer lived there. Id. at 600-01. Two other individuals lived there, although Rhyne continued to share some of the expenses of the house and left some of his belongings there. Id. Upon arrival at the residence, the police observed an individual (not Rhyne) running into a bedroom. Id. at 600. The police pursued and discovered that he had a weapon. Id. Rhyne was seated in the living room when the officers arrived. Id. The police arrested Rhyne. Id. He was
The Texas Court of Criminal Appeals opined that “[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.” Id. at 601. The court determined that there were no such “independent facts and circumstances” present to link Rhyne to the heroin seized from behind the shingle. Id. “The mere presence of a defendant at the scene of an offense or even knowledge of an offense does not make one a party to joint possession. Further, the fact that a defendant has rented the premises upon which narcotics are found, if also occupied by others, is not usually sufficient in and of itself to justify a finding of joint possession.” Id. (citations omitted). Thus, the court held that the evidence was insufficient to support Rhyne’s conviction. Id. The court found relevant, among other factors, that the heroin was not in plain view, but was recovered outside of the house. Id. Additionally, there was no indication in the court’s opinion that drug use was taking place in front of Rhyne or anywhere in the house.
Rhyne also is distinguishable readily from the present case as a matter of law. Texas law provided that a conviction may not be based upon circumstantial evidence alone “if the circumstances do not exclude every other reasonable hypothesis except that of the defendant’s guilt.” Id. As discussed supra, although this Court, in the past, may have included statements to similar effect in a few of its opinions, that does not stand as a bar to a fact-finder drawing reasonable inferences from circumstantial evidence.
Our review of the law of CDS possession in Maryland reveals that possession is determined by examining the facts and circumstances of each case. In sum, we have found several factors to be relevant in the determination of whether an individual was in possession of the CDS, including, the defendant’s proximity to the drugs, Suddith,
We hold that the circumstantial evidence upon which the State’s case against Smith rested was sufficient to find, beyond a reasonable doubt, that he was in possession of the blunt.
We are able to distinguish readily the cases discussed supra. Primarily, in Taylor1, White, Garrison, and Leach, there was no contraband in plain sight. In Taylor, the police discovered the contraband only after searching containers belonging to other individuals present in the room. In White, the drugs were contained in a sealed box inside a locked trunk. There was no basis upon which to impute knowledge to Taylor or White. Similarly, unlike in Garrison, where there was no contraband in the same room as the defendant, the marijuana in the present case was combusting literally under Petitioner’s nose. In Leach, the defendant may have had access to the apartment where the drugs were found, but the drugs were found in a closed container and paraphernalia was found in a closet. Here, Petitioner sat within arm’s reach of a lit blunt.
Similar to Suddith, in the present case there was no question whether drugs were in plain view of Petitioner. It is clear that Petitioner had knowledge of the marijuana in the blunt. He did not challenge that fact at trial. If this Court could accept that the jury in Suddith could infer that Suddith exercised dominion or control over the drugs and paraphernalia found scattered throughout the interior of the overturned vehicle, it certainly is rational for the jury to infer in the present case that Petitioner exercised dominion or control over the known marijuana (packaged for immediate consumption and in fact being consumed) sitting in front of him.
In Moye, it was unclear how close Moye was to the contraband and whether it was visible to Moye. Here, not only was the marijuana in the lit blunt in arm’s reach and plain sight, but it was rational to conclude that at least one or more persons had been smoking it. In Taylor, the fact-finder had to speculate to reach the conclusion that Taylor possessed the marijuana. No such speculation is required here.'
In conclusion, Petitioner was in close proximity to the known marijuana in the blunt, the lit and partially-consumed marijuana blunt was in Petitioner’s view, the blunt was accessible easily to him, and it was reasonable to infer from the circumstances that he was engaging in the mutual use and enjoyment of the marijuana. “These inferences are the very type of inferences that juries are charged with making—to make findings of fact based on the evidentiary facts and their common sense reasoning.” Suddith,
BELL, C.J. and GREENE, J., dissent.
Notes
. For those not familiar with them, Richard "Cheech” Marin and Tommy Chong (Cheech and Chong) are a comedy duo whose recreational drug ("stoner”) humor became popular in the 1970s with the release of several comedy albums, and which led to a string of movies, beginning with "Up in Smoke” in 1978, that portrayed recreational drug use in nonthreatening situations. Although the team broke up in 1987, they reunited solidly in 2008 and continue to tour and make movies and television appearances to the present day.
. “Blunt” is a popular term for a marijuana cigar. A police witness testified that to create a blunt the smoker obtains a legitimate cigar, removes the tobacco, and substitutes marijuana for the tobacco. The smoker then rolls the wrapper and the marijuana back into the shape of a cigar and lights up.
. All statutory references hereafter will be to the Criminal Law Article.
. Detective Shields and Sergeant Kevin Fesser, both of the Baltimore City Police Department, testified at trial on behalf of the State.
. The address is referred to in the record as 1932 Lanvale Street and 1932 Landvale Street. We shall refer to it as 1932 Lanvale Street.
. Detective Shields did not observe Petitioner enter or exit 1932 Lanvale Street on November 29.
. This room is also referred to in the record as the dining room.
. See Miranda v. Arizona,
. It appears from the record that the State entered the charges against Sterling as nolle prosequi.
. Section 5-601(a)(l) provides:
(a) In general.—Except as otherwise provided in this title, a person may not:
(1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice....
. The trial court stated that this was a "close question.”
. In the Court of Special Appeals, Petitioner argued also that the trial court erred in permitting the prosecution to question Sterling about an allegation that the police arrested Petitioner for using marijuana in her residence. The intermediate appellate court held that defense counsel did not preserve the issue for appellant review because he failed to object at trial. Petitioner did not petition us for review of this issue.
. "Marihuana” is an alternate spelling of "marijuana.” Webster's Collegiate Dictionary 727 (9th ed. 1989).
. We do not consider whether the evidence as to the packets of marijuana found in the jacket on the chair next to where Smith sat was sufficient, separate from the evidence as to the blunt, to convict him of possession. The lily need not be gilded further. Were it meaningful to the outcome, we would have found that evidence insufficient because no reasonable inferences could be drawn that such was the source of the marijuana in the blunt or that Smith knew of the existence of the packets on the jacket pocket, hidden from plain view as they were.
Dissenting Opinion
Dissenting Opinion by GREENE, J., which BELL, C.J. joins.
The majority attempts to distinguish the facts of the present case from Jones v. State,
Md. Code (2002, 2009 Supp.), § 5-101(u) of the Criminal Law Article defines possession or to “[p]ossess” as “exercise [of] actual or constructive dominion or control over a thing by one or more persons.” In accord with our precedent, “control [means], the ‘evidence must show directly or support a ration
It is undoubtedly true that one cannot exercise dominion or control over contraband without knowledge of its presence. See Taylor v. State,
The State must prove that Smith had a restraining or direct influence over the contraband in some way.
In my view, knowledge of the presence of contraband and indicia of a restraining or direct influence are separate and distinct elements of the crime of possession. Evidence to establish one element does not necessarily establish the other. For example, in Garrison v. State,
Furthermore, the majority’s reliance on State v. Smith,
Unfortunately, the majority, in the present case, takes a step beyond Suddith, and, in my view, seems to favor speculation and conjecture over evidence and facts. In the present
The majority’s holding relies heavily on the fact that the marijuana blunt was within Smith’s reach and thus accessible to him. Employing that logic, the contraband was within the reach of everyone in the area from where the blunt was retrieved, including the police officers on the scene. The majority’s holding would make the officers on the scene subject to prosecution for possession of a controlled dangerous substance. By allowing mere presence within arm’s length of an object, without more, to permit an inference of restraining or direct influence over the object goes against all basic notions of courtesy and how polite societies function. Ordinarily people are taught from a tender age, just because an object is within one’s grasp does not mean, without more, that the object belongs to that person or that the person has the right to possess that object. This is particularly true when the person in question is a visitor in another’s home, as Smith apparently was in this case. Without evidence that Smith mutually used or enjoyed the marijuana with the other individ
Because there is no evidence of Smith’s mutual use or enjoyment of the marijuana with the other individuals at the table, the majority’s holding would permit the trier of fact to infer his dominion or control over the marijuana from his presence at the scene of the alleged crime. It is well settled that one’s presence at a crime scene, without some evidence of participation, aid, counsel, or encouragement of the crime, is insufficient to sustain a conviction. Pope,
In Pope,
I disagree with the majority’s assertion that, if this Court requires evidence of dominion or control beyond presence and proximity to the contraband, a defendant “may not be convicted of possession unless the [marijuana] blunt was found in his hand (or in his biological system perhaps) or he confessed to the police that he possessed marijuana.” This is no more than a strawman argument. There are any number of ways that the State could demonstrate, through circumstantial evidence, that a defendant had restraining or direct influence over the
Although, in the immortal words of Mr. Mackey, “fdjrugs are bad,” the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs.
Chief Judge BELL joins this dissent.
. In its focus on the Court’s analysis of the defendant’s knowledge or awareness of the presence of contraband in Moye v. State,
. In State v. Smith,
[PJossession and control standards of simple possession cases, even in joint possession and control situations, are not necessary elements (although they may be relevant facts) in respect to the offense of transporting. The issue in the case sub judice is not who possessed or owned, or even controlled the handgun, but whether respondent was knowingly transporting the handgun.
Thus, because the crime alleged in Smith required proof of fewer elements than the crime of possession, which is the charge in the present case, the facts of Smith are not relevant to the outcome of this case.
. I am particularly astounded by the majority's suggestion that State v. Suddith,
. We explained the distinction between participation as a principal in the first degree and a principal in the second degree in State v. Williams,
This Court has established that the common law doctrine of accessoryship is applicable to felonies only.... We explained that “[a] principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent.” To the contrary, a principal in the second degree “is one who is guilty of [a] felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive”.... These differences, however, are not applicable to misdemeanors because, in Maryland, the principles of accessoryship apply only to felonies; as to misdemeanors, all participants in a crime are considered principals.
Id. (citations omitted).
. Mr. Mackey is a recurring character on the popular animated sitcom South Park, which began airing on the Comedy Central network in 1997. He is the school counselor at the elementary school featured on the show. He lectured his fourth grade charges about the dangers of marijuana in Episode 204, "Ike’s Wee Wee,” which originally aired on May 27, 1998:
You boys need to listen up, m'kay, what I’m talking about might save your lile someday.... Drugs are bad. You shouldn't do drugs. If you do them, you’re bad, because drugs are bad. It's a bad thing to do drugs, so don’t be bad by doing drugs, m'kay, fhat'd be bad.
South Park Archives, http://southpark.wikia.com/wiki/Ike’s_Wee_Wee (last visited June 11, 2010).