Anthony v. State

• Decision Date: 01 September 1996
• Docket Number: No. 1621,1621
• Citation: 699 A.2d 505,117 Md.App. 119
• Parties: Kami Lee ANTHONY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 119

117 Md.App. 119

699 A.2d 505

Kami Lee ANTHONY v. STATE of Maryland.

No. 1621, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 4, 1997.

Claudia Cortese, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Attorney General, Baltimore, and David Weston Gregory, State's Attorney for Queen Anne's County, Centreville, on the brief), for Appellee.

Submitted before HARRELL and EYLER, JJ., and JOHN J. GARRITY, Judge (retired), Specially Assigned.

EYLER, Judge.

Kami Lee Anthony, the appellant, was convicted by a jury in the Circuit Court for Queen Anne's County (John W. Sause, Jr., J.) of conspiracy to distribute cocaine. Appellant was sentenced to a term of fifteen years' incarceration for the conviction. Two questions are presented on appeal:

I. Was the evidence sufficient to support appellant's conviction of conspiracy to distribute cocaine?

II. Did the trial court improperly consider appellant's probations before judgment in sentencing appellant?

We hold that the evidence was sufficient to support appellant's conviction for conspiracy to distribute cocaine and we affirm the judgment of the trial court. We further hold that the trial court did not improperly consider appellant's probations before judgment in determining her sentence.

FACTS

At approximately 6:30 p.m. on June 15, 1995, Trooper First Class Keith Elzey, a member of the Maryland State Police Drug Enforcement Division, was working in an undercover capacity investigating drug activity in Grasonville, Queen Anne's County. He pulled his unmarked vehicle up to the house at 200 Schoolhouse Lane, the residence of a man known as Bosley and his girlfriend, Tanya. A woman, whom Trooper Elzey identified at trial as appellant, approached him and asked if he was "looking for Bosley." When the trooper replied that he was, she told him that Bosley was asleep, and asked him "how much" he wanted. Trooper Elzey understood her to be asking how much crack cocaine he wanted. Trooper Elzey responded that it was "okay," and asked her what was "going on." Appellant told him that Bosley was "all out," which Elzey understood to mean all out of crack cocaine. Trooper Elzey then asked about Tanya. Appellant told him that Tanya had "gone to get a hit." Appellant offered to take the trooper somewhere, he believed to get some crack cocaine, but he declined. Appellant then told him to come back and "do some partying," which he understood to mean "smoke crack cocaine."

Trooper Elzey left, but returned to the house a short time later. At that time, he saw appellant and Tanya in the front yard. He stopped his vehicle. Trooper Elzey, Tanya, and appellant had a conversation about crack cocaine ¹, after which Trooper Elzey and Tanya left together in the trooper's car. Trooper Elzey subsequently dropped Tanya off at a different location. ²

The trooper returned to Schoolhouse Lane at approximately 7:45 p.m. He saw appellant and another woman ³ at the When they were back on Route 18, appellant handed Trooper Elzey the suspected crack cocaine. Trooper Elzey told her that he had to go and instructed her to leave the car. At that time, appellant "started yelling, screaming, cussing, saying that she wasn't going anywhere until we did some partying." The unidentified woman, who to that point had not said anything, got out of the car and told appellant to do the same. Appellant "kept on cussing, and saying she wasn't going anyplace until we lit up, lit up, smoked the crack." Trooper Elzey again told appellant to get out of the car, but "[s]he just said not until we party and smoke some crack." Eventually, after half a minute to a minute, appellant exited the car and walked away.

                Senior Center on Route 18, near Schoolhouse Lane, and heard appellant call to him.  When he pulled over, appellant asked whether Tanya had "taken care" of him.  He replied that Tanya had given him "a few crumbs," meaning some crack cocaine.  Appellant then told Trooper Elzey, "[T]hat is the way she is, just a crack-head."   She then told the trooper, "Come on, I'll get something."   Appellant, Trooper Elzey, and the other woman got into the trooper's car and appellant told the trooper to drive to Cemetery Road.  While they were on that road, appellant yelled, "There he is," and told Trooper Elzey to stop.  The trooper did so.  Appellant asked Trooper Elzey for money.  The trooper gave appellant $20, and told her to get him "twenty."   Appellant then exited the vehicle and approached Paul Richardson, a man from whom the trooper had previously bought crack cocaine.  After appellant and Richardson conversed, Richardson handed appellant a substance and appellant handed him the $20.  Appellant returned to the car and got in.  Trooper Elzey and the two women left the area
                

DISCUSSION

I.

Appellant was originally charged with possession of cocaine, possession of cocaine with intent to distribute, and conspiracy to distribute cocaine. Pursuant to Maryland Code, Courts & Judicial Proceedings Article, § 10-1003(a)(1), appellant demanded that the technician who tested the substance be present to testify at trial. The State failed to comply with that demand. ⁴ As a result, the trial court refused to admit into evidence the substance that appellant had given to Trooper Elzey. He also refused to admit testimony by the trooper as to what the substance appeared to be.

After the State rested its case, appellant moved for a judgment of acquittal. The following is relevant:

[DEFENSE COUNSEL]: May I be heard, Your Honor, at the bench.

(At the bench)

Basis for my motion--

THE COURT: The conspiracy count is right there on the evidence.

[DEFENSE COUNSEL]: You still have to have the drug to show there was a conspiracy.

THE COURT: Ever tried a murder case, no body there[?]

[DEFENSE COUNSEL]: Your Honor, proof of the body. There's got to be proof.

THE COURT: They are all scheduled, cocaine. Not that they did it. That they conspired to do it. That is all.

The trial court denied appellant's motion on all counts. After the defense rested, appellant renewed her motion. The trial court ultimately granted appellant's motion for judgment on the counts of possession of cocaine and possession with intent to distribute cocaine, but denied the motion as to the count for conspiracy to distribute cocaine. Appellant now contends that the State was required to prove that the substance distributed by appellant was, in fact, cocaine and that, absent such proof, the evidence was insufficient to sustain her conviction for conspiracy to distribute cocaine.

In a criminal action, when a jury is the trier of fact, appellate review of sufficiency of evidence is available only when the defendant moves for judgment of acquittal at the close of all the evidence and argues precisely the ways in which the evidence is lacking. Brummell v. State, 112 Md.App. 426, 428, 685 A.2d 835 (1996); Garrison v. State, 88 Md.App. 475, 478, 594 A.2d 1264, cert. denied, 325 Md. 249, 600 A.2d 418 (1991); Maryland Rule 4-324(a). The issue of sufficiency of the evidence is not preserved when appellant's motion for judgment of acquittal is on a ground different than that set forth on appeal. Graham v. State, 325 Md. 398, 416, 601 A.2d 131 (1992); Pugh v. State, 103 Md.App. 624, 650-51, 654 A.2d 888, cert. denied, 339 Md. 355, 663 A.2d 73 (1995); Maryland Rule 4-324(a).

In the present case, appellant argued at trial that the State was required to produce the cocaine she distributed to Trooper Elzey in order to establish that she had committed the offenses charged. This was not a correct statement of law. The nature of the substance distributed to the trooper could have been proved by other, sufficient evidence. One 1979 Cadillac Seville v. State, 68 Md.App. 467, 471-2, 513 A.2d 927 (1986) (admission by owner of vehicle that substances found in the vehicle were marijuana and cocaine was sufficient evidence upon which to base forfeiture of the vehicle). See also Best v. State, 79 Md.App. 241, 255, 556 A.2d 701 (1989) (recognizing that identity of a substance as cocaine may be proved by circumstantial evidence).

In her brief, appellant broadens her argument, contending not that the State had to produce the cocaine itself, but that it had to prove that the substance was cocaine. Even if we give appellant the benefit of the doubt and interpret her argument at trial to encompass this argument, she will not prevail.

Appellant was convicted of conspiracy to distribute cocaine. The crime of conspiracy is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown. Townes v. State, 314 Md. 71, 75, 548 A.2d 832 (1988). A criminal conspiracy consists of the combination of two or more persons to accomplish some unlawful purpose or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.

Accordingly, it was only necessary that the State prove the agreement to distribute cocaine, not that the substance distributed was actually cocaine.

Thus, in United States v. Murray, 527 F.2d 401, 412 (5th Cir.1976), the Fifth Circuit Court of Appeals explained:

The important element of a conspiracy charge is the agreement. If [two of the appellants] conspired and agreed to distribute heroin, it matters not that later what the government agents actually received was a non-narcotic substance.

Accordingly, in United States v. Dunbar, 590 F.2d 1340 (5th Cir.1979), the Court affirmed appellant's conviction for conspiracy to possess with intent to distribute methaqualone tablets, despite the fact that the substance turned out to be diazepam. The Court held that the evidence showed an agreement to distribute methaqualone; the true identity of the substance was immaterial. Similarly, in United States v. Senatore, 509 F.Supp. 1108 (E.D.Pa., 1981), the United...