Opinion
No. 1485
11-16-2020
LARRY BENNER v. STATE OF MARYLAND
Circuit Court for Baltimore City
Case No. 119070025
UNREPORTED
Arthur, Gould, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ. Opinion by Woodward, J. * This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Around 3:00 p.m. on January 31, 2019, officers from the Baltimore City Police Department executed a search and seizure warrant at a house located at 3434 Mount Pleasant Avenue in Baltimore City (the "House"). The raid team that executed the warrant rammed down the front door and upon entering saw suspected cocaine and drug packaging materials in plain view throughout the House. Officers then found, and arrested, multiple people in the House, including Larry Benner, appellant. Appellant was indicted in the Circuit Court for Baltimore City on nine counts, including conspiracy to possess cocaine with the intent to distribute. Appellant and his four co-defendants elected a bench trial, after which the circuit court found appellant guilty of conspiracy to possess cocaine with the intent to distribute and not guilty on seven other charges; the State entered a nolle prosequi to the last charge. Appellant was sentenced to five years in prison.
On appeal, appellant presents one question for our review: Was the evidence legally sufficient to permit a rational trier of fact to find the appellant guilty of conspiracy to possess cocaine with an intent to distribute beyond a reasonable doubt? We shall affirm.
I. BACKGROUND
On January 31, 2019, Detective Christopher Lehman of the Baltimore City Police Department obtained and executed a search and seizure warrant for the House after he previously had performed a controlled purchase of narcotics from the House. A raid team consisting of members of the Baltimore City Police Department forced entry into the House by using a Halligan tool on the front door grate and a ram on the interior door. Detective Demario Harris was one of the "hands member[s] on the entry team," meaning that he "put people in cuffs" once he entered the front door. Detective Lehman, along with Detective Mitchell Nolan, were positioned at the rear of the House to ensure that no one inside the House ran out the back. After the House had been safely cleared, Detective Lehman entered the House and observed that "[t]here were bed rails that were wedged between the bottom step of the stairway and the front door to prevent the door from being opened."
Detective Harris and other officers arrested appellant and other individuals in the House as soon as members of the raid team got through the front door. Detective Harris saw suspected cocaine in plain view immediately upon entering the front door. Members of the raid team then began searching and collecting evidence from the House. All of the items of evidence or contraband seized pursuant to the search and seizure warrant were delivered to Detective Harris, who was the submitting officer. As the submitting officer, Detective Harris placed all of the items that he received "in separate bags just so we can know what stuff - where the items came from, and who they came from." Later, Detective Harris packaged the items at the police station for submission to Evidence Control.
The House contained a basement, a first floor with a living room, bathroom, and kitchen, and a second floor. On the first floor, "[o]range-top vials containing white rock-like substances" were found in the "kitchen/living room" and "a black bag containing blue-top[] vials, containing white rock substance" was located "on the couch." A razor with white residue" was recovered on the floor of the "bathroom/living room" with "[l]oose white rock substance, suspected cocaine, recovered right next to the razor on the floor." In the toilet on the first floor, officers found a "[c]lear plastic bag containing a white rock - white powder substance." From the kitchen cabinet, the police seized a clear plastic bag containing a white rock, and "[t]wo plates containing a white rock substance" were recovered from "[o]n top of the cabinets." Also in the kitchen, a "[b]lack scale with white residue" was found on top of the cabinets. The police also recovered a handgun "with thirteen live rounds and magazine" from the House and "[o]ne [gun] magazine with six live rounds" from the couch in the living room.
Scattered across the floor of the basement were four "pink-top[] vials containing white rock substance" and three "orange-top[] vials containing white rock substance." Also on the floor of the basement was "[o]ne pink-top[] vial containing white rock substance." In the ceiling of the basement, officers found seven "orange-top[] vials containing white rock substance . . . and two, pink-top[] vials containing white rock substance." On the basement floor, members of the raid team recovered a handgun with a magazine and six live rounds that had fallen out of the basement ceiling.
In total, officers recovered seventy-three vials of suspected cocaine from the House.
Additionally, there were "various [drug] packaging material[s] found throughout the [H]ouse," including "orange[-]top vials, blue[-]top vials, purple jugs," "pink[-]top vials," and red empty gel caps scattered throughout the main floor and basement. However, no drug paraphernalia, such as pipes, needles, or straws, were recovered from the House. Later in the raid, two individuals approached the rear of the House and said, "[t]hey wanted two."
A bench trial began in the circuit court on August 20, 2019. Detective Lehman was accepted as an "expert in the field of narcotics, narcotics investigation, [and] enforcement in the packaging and distribution of cocaine." Detective Lehman testified that a "stash house or a trap house is a location where drugs and other contraband are kept" and that "[p]araphernalia and packaging are commonly in stash houses because that's where the narcotics are often placed in for distribution." He further opined that the bed rails wedged between the stairwell and door were a "New York stop," a device used "to prevent police or any other person trying to enter the dwelling from gaining access to that dwelling." Detective Lehman also testified that "[w]eapons are commonly used to defend narcotics salesm[e]n against people who rob narcotics salesm[e]n or law enforcement." Detective Lehman concluded that in his experience the recovery of seventy-three vials of suspected cocaine from the House indicated an intent to distribute the controlled dangerous substance.
Dr. Mohammed Majid, a forensic scientist with the Baltimore City Police Department, was qualified as an "expert in the identification of cocaine, Oxycodone, and Buprenorphine." Dr. Majid opined that thirty-one blue-top vials, twenty-five orange-top vials, and a clear plastic baggie from the kitchen cabinet contained cocaine. Dr. Majid also determined that the loose white rock substance found next to the razor was cocaine. Of the items found in the basement, Dr. Majid testified that seven pink-top and ten orange-top vials contained cocaine.
At the conclusion of the trial, the trial court found appellant guilty of conspiracy to possess cocaine with the intent to distribute. In so ruling, the court said, in relevant part:
Thank you. The Court previously commented during these proceedings. I believe it was on Thursday that I believe, quote "That we all know what this is about," possibly a [] stash house or trap house as described by the purported experts in this case. The Court can make reasonable inferences regarding the circumstances and facts in this case. For the record, there is a presumption of innocence regarding all charges as to the Defendants in this case. And I reviewed my notes and the evidence in this case.
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There are facts and circumstances in this case that give this Court a lot of pause, and the Court has to be careful with regard to its findings. But one thing the Court does find that, there as [the prosecutor] has indicated, there has been cocaine found throughout these premises. And the Court will not ignore the fact that drugs were found throughout the house. [The] Court will not ignore the fact that cocaine was found throughout the house, and the Court will not ignore that frankly as a result of 3434 even existing at the time, that there was at least a possible public nuisance there.
Counsel is correct, evidence that the Defendant was on the premises or near something does not prove a crime was committed by that Defendant. However, evidence that the Defendant was present near the scene of the crime coupled with the other evidence may be sufficient to prove guilt, and presence is always an important surrounding circumstance on the issue of liability in this case pursuant to Creighton v. State , 70 Md. 124.
And now, furthermore, with regard to presence, these Defendants were in the company of each other in a confined vicinity at [] 3434 Mount Pleasant Avenue. And at the time that the search and seizure warrant was effected and throughout the premises there was plain view product as indicated at the time of the scene pursuant to Todd v. State. The Court finds that based on the totality of the circumstances and the evidence presented before it, even carrying the presumption of innocence throughout the trial, even mitigating some of this testimony because frankly there were errors made.
I mean, someone testified that there was a bathroom in the basement or a toilet in the basement. Ain't no toilet in the basement. And that might be something that you might remember and/or write down to remember in this case. Someone I think also gave reference to these two people coming to the back door. Look I might have been born at 2:22 in the morning, but it wasn't this past morning. I make a reasonable inference that those persons were there
to try to procure something, something that is sold out of this home.(emphasis added). That same day, appellant was sentenced to five years in prison.
Now, the guns give the Court pause, [Counsel for the State]. Normally, and I believe all - [Counsel for Mr. Horton] has been here longer, been down here since '84. I ain't seen a fingerprint on a gun yet, and I've scores of gun cases. I won't say thousands. But I haven't seen a fingerprint on a gun yet, and there was no DNA presence in this case. Now, [appellant's] keys fit that door, and in some respects he got to eat that, [Counsel for appellant]. But I'm going to carry the presumption of innocence to him since the lady already pled to it.
But this is what the Court finds with regard to the items that were found throughout the house, plenty of cocaine was found throughout that house that would lead a reasonable person in the Court's position to infer that these gentlemen were in agreement to sell that cocaine. So as to the count with regard to conspiracy to possess with intent to distribute cocaine the Court finds Mr. Hall guilty of same, Mr. Biggs guilty of same, Mr. Horton guilty of same, [appellant] guilty of same. The Court will give them the benefit of the doubt o[n] the remaining counts. That's the Court's finding. Thank you.
Appellant filed this timely appeal. We will provide additional facts as necessary to the disposition of this appeal.
II. STANDARD OF REVIEW
In reviewing the sufficiency of the evidence, an appellate court determines 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). "The test is 'not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.'" Painter v. State, 157 Md. App. 1, 11 (2004) (quoting Mora v. State, 123 Md. App. 699, 727 (1998)) (emphasis in original). The appellate court thus must defer to the fact-finder's "opportunity to assess the credibility of witnesses, weigh the evidence, and resolve conflicts in the evidence[.]" Pinkney v. State, 151 Md. App. 311, 329 (2003). "'Circumstantial evidence, moreover, is entirely sufficient to support a conviction, provided that the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused.'" Anderson v. State, 227 Md. App. 329, 346 (2016) (quoting Benton v. State, 224 Md. App. 612, 630 (2015)).
"When the conviction is rendered after a bench trial, we 'review the case on both the law and the evidence.'" State v. Neger, 427 Md. 582, 595 (2012) (quoting Md. Rule 8-131(c)). We "'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.'" Id. (quoting Md. Rule 8-131(c)). "The issue of legal sufficiency is precisely the same under either trial modality. In a court trial just as in a jury trial, the issue is the satisfaction of the burden of production." Chisum v. State, 227 Md. App. 118, 127 (2016). Thus, "[i]n considering the legal sufficiency of the evidence following a non-jury trial, the appellate court must 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.'" Stephens v. State, 198 Md. App. 551, 558 (2011) (quoting State v. Albrecht, 336 Md. 475, 479 (1994)) (emphasis in original).
III. DISCUSSION
A. Sufficiency of the Evidence
Appellant argues that, "in the light most favorable to the State, no rational trier of fact can conclude that the [a]ppellant entered into an agreement with any of his co-defendants to possess cocaine with the intent to distribute [the] same[.]" In support of this contention, appellant asserts that "the State failed to present any direct evidence of [a]ppellant entering into any agreement with anyone." Appellant points to, among other things, a lack of evidence (1) that there were any recorded conversations, text messages, or similar evidence indicating a meeting of the minds to enter a criminal conspiracy, (2) that any contraband or drug paraphernalia was found on appellant, or (3) that appellant "traversed areas of the [House] where the drugs were recovered."
The State responds that the evidence, viewed in a light most favorable to the State, established that appellant and his four co-defendants were occupying the House when the police "discovered a bevy of controlled dangerous substances (primarily individual vials of cocaine), alongside an assortment of drug packaging paraphernalia (such as a scale, plates, and a razor blade all of which were covered in white residue) scattered in plain view throughout common areas of the first floor and basement." The State also points out that, "although the police recovered abundant drug use packaging materials, no drug use paraphernalia was recovered," and that two individuals approached the rear of the property "to try to procure something . . . that is sold out of [the House]." From this evidence, according to the State, a rational fact-finder could reasonably infer that the House was a "stash house—i.e., []a location where drugs and other contraband are kept . . . because that's where the narcotics are often placed in for distribution." Finally, the State cites to the evidence that appellant was one of the only individuals who had keys to operate the deadbolt on the front door" of the House, and that the trial court found that "[appellant's] keys fit that door." The State concludes:
Based on the evidence that [appellant] was in possession of keys capable of controlling access to [the House], and based on the evidence that the [House] was being actively used as a stash house for drugs—including the more than six-dozen individually packaged vials of cocaine—a rational fact-finder could reasonably infer that there had been a meeting of the minds between [appellant] and at least one (if not all) of his co-defendants to possess that cocaine with an intent to distribute the same.
"A criminal conspiracy is 'the combination of two or more persons, who by some concerted action seek to accomplish some unlawful purpose, or some lawful purpose by unlawful means.'" Savage v. State, 212 Md. App. 1, 12 (2013) (quoting Mason v. State, 302 Md. 434, 444 (1985)). "In Maryland, conspiracy remains a common law crime." Mitchell v. State, 363 Md. 130, 145 (2001). "'The essence of a criminal conspiracy is an unlawful agreement.'" Id. (quoting Townes v. State, 314 Md. 71, 75 (1988)). "The State has the burden to prove the agreement or agreements underlying a conspiracy prosecution." Savage, 212 Md. App. at 14. "'The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose or design.'" Bordley v. State, 205 Md. App. 692, 723 (2012) (quoting Townes, 314 Md. at 75). The conspiracy "'is complete when the unlawful agreement is reached,' so that 'no overt act in furtherance of the agreement need be shown.'" Id. "[A] conspiracy may be shown by circumstantial evidence, from which a common design may be inferred[.]" Mitchell, 363 Md. at 145. In Mitchell, the Court of Appeals explained:
[T]he requirement that there must be a meeting of the minds—a unity of purpose and design—means that the parties to a conspiracy, at the very least, must (1) have given sufficient thought to the matter, however briefly or even impulsively, to be able mentally to appreciate or articulate the object of the conspiracy - the objective to be achieved or the act to be committed, and (2) whether informed by words or by gesture, understand that another person also has achieved that conceptualization and agrees to cooperate in the achievement of that objective or the commission of that act. Absent that minimum level of understanding, there cannot be the required unity of purpose and design.Id. at 145-46 (internal citations omitted).
We agree with the State that, when viewed in a light most favorable to the prosecution, the evidence "was legally sufficient to sustain [appellant's] conviction for conspiracy to possess cocaine with intent to distribute." A reasonable finder-of-fact could find that the House was being used as a stash house for storing, packaging, and distributing cocaine, and that appellant was part of a criminal conspiracy to distribute the cocaine found in the House.
1. The House as a Stash House
Here, the evidence supports Detective Lehman's expert opinion that the House was being used as a stash house. Police officers recovered a multitude of illegal drugs and drug packaging materials throughout the House, including seventy-three vials of cocaine; cocaine next to a razor in the "bathroom/living room"; a black scale with white residue and "two plates containing a white rock substance" from "on top of the cabinets"; and "various packaging material found throughout the [H]ouse," including "orange[-]top vials, blue[-]top vials, purple jugs," "pink[-]top vials," and red empty gel caps. Also, two loaded handguns were recovered from the House, and Detective Lehman opined that "[w]eapons are commonly used to defend narcotics salesm[e]n against people who rob narcotics salesm[e]n or law enforcement." Thus a rational fact-finder could conclude that the House was being used to store and package cocaine.
A rational fact-finder could also conclude that the House was being used exclusively for the distribution of cocaine. When entering the House, the police found that bed rails had been wedged between the front door and the staircase, called a "New York stop," to prevent the door from being opened. Detective Lehman testified that the purpose of the New York stop was "to prevent police or any other person trying to enter the dwelling gaining access to that dwelling." Notably, during the search of the House no drug use paraphernalia was discovered. There were no pipes, needles, or straws—nothing "as to use of alleged CDS." Finally, two individuals came to the back of the House during the raid, and the court made "a reasonable inference that those persons [who came to the back of the House during the raid] were there to try to procure something, something that is sold out of this home."
2. Appellant's Involvement in the Conspiracy
When the police executed the search and seizure warrant on the House, they located and arrested appellant and his co-defendants inside the House. The police recovered a set of keys from appellant, which included a house key that the police determined operated the front door of the House. The trial court found that "[Appellant's] keys fit that door, and in some respects he got to eat that." Because appellant was arrested inside the House and at that time possessed a key to the front door, a rational finder-of-fact could infer that appellant was in control of access to the House, and thus involved in the extensive drug activity taking place in the House. Although, as appellant argues, the State did not produce direct evidence of the conspiracy, the circumstantial evidence supports the inference of "a common design" from which the trial court could conclude that appellant was part of a conspiracy. See Mitchell, 363 Md. at 145.
Therefore, we hold that there was sufficient evidence for the trial court to reasonably infer that there was a meeting of the minds between appellant and at least one of his co-defendants to distribute the cocaine that was found in the House.
B. Appellant's Argument Based on Wilson v. State
Appellant argues that his conviction cannot be sustained because under Wilson v. State, 319 Md. 530, 537 (1990), a conviction based solely on circumstantial evidence cannot stand where "the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence," and "there are numerous other reasonable hypotheses of innocence to explain [a]ppellant's presence at [the House]." According to appellant, a fact-finder could reasonably conclude that either appellant was at the House with no knowledge of or involvement in the illegal drug activity, or appellant was at the House to purchase drugs and not to conspire to sell them.
The State counters by pointing to the recent case of Ross v. State, 232 Md. App. 72 (2017), wherein this Court rejected the principle articulated in Wilson as "'a vestigial relic from the common law that is, at best, moribund.'" Id. at 94. The State also cites to Smith v. State, 415 Md. 174 (2010), wherein the Court of Appeals stated that the language of Wilson is not the standard for reviewing the sufficiency of the evidence; rather, it is the standard "set forth in Jackson v. Virginia" that applies to all criminal cases. Smith, 415 Md. at 184. Therefore, according to the State, the two reasonable inferences of innocence postulated by appellant do not factor into the legal sufficiency analysis, because "it was the trial court's exclusive prerogative—as the finder-of-fact in this case—to choose between any conflicting reasonable inferences that might be drawn from the evidence."
In reply, appellant repeats his argument that the principle articulated in Wilson applies to the instant case. Appellant claims that, because "there is no direct evidence of a conspiracy, the Wilson principle applies and the totality of the circumstantial evidence cannot be inconsistent with any reasonable inference of innocence in order for this Court to sustain [a]ppellant's conviction." Appellant is wrong.
Appellant relies upon language in Wilson that states: "[W]e have long held that a conviction upon circumstantial evidence alone is not to be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence." 319 Md. at 537 (emphasis in original). In Smith, 415 Md. at 181-82, the petitioner framed the applicable standard of review based on the aforementioned language of Wilson and similar statements in Jones v. State, 395 Md. 97, 120 (2006); Oken v. State, 327 Md. 628, 663 (1992); and Moye v. State, 369 Md. 2, 13 (2002). The Court of Appeals then emphatically rejected the Wilson language:
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, 374 Md. 527, 534 (2003), that the finder of fact has the "ability to choose among differing inferences that might possibly be made from a factual situation . . . ." That is the fact-finder's role, not that of an appellate court.Smith, 415 Md. at 183-84 (emphasis added) (citations omitted). The Court concluded:
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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, 374 Md. at 557.
Accordingly, the proper standard of review to be applied here is that set forth in Jackson v. Virginia, 443 U.S. 307 (1979), where the U.S. Supreme Court stated that "the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . . 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." Id. at 318-19 (emphasis in original).
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.Id. at 185.
Later, an argument similar to appellant's was made in Martin v. State, 218 Md. App. 1 (2014), and Ross v. State, 232 Md. App. 72 (2017). In Martin, the appellant asserted that "it simply is not the case that [the facts] are inconsistent with every single reasonable theory of his innocence," and then asked this Court to apply the aforementioned principle articulated in Wilson. 218 Md. App. at 34. We declared that the appellant's reliance on Wilson was misplaced, stating:
And, contrary to what [the appellant] claims, circumstantial evidence "need not be such that no possible theory other than guilt can stand." [Hebron v. State, 331 Md. 219, 227 (1993)] (quoting Gilmore, 263 Md. at 293). That is to say, "[i]t is not necessary that the circumstantial evidence exclude every possibility of the defendant's innocence, or produce an absolute certainty in the minds of the jurors." Id. (quoting Gilmore, 263 Md. at 293). Indeed, the Court of Appeals recently noted that, notwithstanding the "reasonable hypothesis of innocence" language in Wilson and succeeding cases, "it is well established" that the standard that [the appellant] "champions" is not "the focus of the standard to be applied when reviewing the sufficiency of the evidence in criminal cases." Smith, 415 Md. at 183.Id. at 35 (emphasis added) (citations omitted).
In Ross, the appellant also argued that "'the circumstantial evidence at trial . . . never ruled out all reasonable hypotheses of [the appellant's] innocence.'" 232 Md. App. at 94. Speaking for this Court, Judge Charles Moylan, Jr. conducted a thorough an incisive review of the Wilson principle, and concluded that in Smith the Court of Appeals effectively declared that Wilson was no longer good law in Maryland. Id. at 98. Judge Moylan wrote:
The message of Smith is clear. Even in a case resting solely on circumstantial evidence, and resting moreover on a single strand of circumstantial evidence, if two inferences reasonably could be drawn, one consistent with guilt and the other consistent with innocence, the choice of which of these inferences to draw is exclusively that of the fact-finding jury and not that of a court assessing the legal sufficiency of the evidence. The State is NOT required to negate the inference of innocent. It is enough that the jury must be persuaded to draw the inference of guilt. As the Court of Appeals stated,
415 Md. at 183, 999 A.2d 986, "the finder of fact has the 'ability' to choose among differing inferences that might possibly be made from a factual situation.' That is fundamentally the fact-finder's role, not that of the appellate court."Id. at 98.
Therefore, with the principle set forth in Wilson and other cases no longer the law in Maryland, appellant's argument based on that principle must fail.
Apparently recognizing the lack of viability for the Wilson principle, appellant in his reply brief returns to his argument that "the evidence presented to the Trial Court was inadequate for any rational trier-of-fact to conclude that [a]ppellant entered into a criminal conspiracy to distribute cocaine." Appellant, however, overlooks the large amount of cocaine and drug packaging materials found throughout the House, the security measures taken to protect the House, the instrumentalities of the packaging process present in the House, the lack of any drug use paraphernalia found in the House, the arrival at the House of two persons apparently seeking to buy illegal drugs, and the discovery of appellant and his co-defendants in the House with appellant possessing a key to the front door of the House. Given such evidence, we conclude that it was reasonable for the trial court to infer that appellant was part of a "'combination of two or more persons, who by some concerted action seek to accomplish some unlawful purpose, or some lawful purpose by unlawful means.'" Savage, 212 Md. App. at 12 (quoting Mason, 302 Md. at 444). Accordingly, we hold that after "viewing the evidence in the light most favorable to the prosecution, [that the trial court] could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 307.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.