In re Ondrel M.

• Decision Date: 12 March 2007
• Docket Number: No. 2898 Sept. Term, 2005.,2898 Sept. Term, 2005.
• Parties: In re ONDREL M.
• Court: Court of Special Appeals of Maryland

918 A.2d 543

173 Md. App. 223

In re ONDREL M.

No. 2898 Sept. Term, 2005.

Court of Special Appeals of Maryland.

March 12, 2007.

Julia C. Schiller (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.

Gary E. O'Connor (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: KRAUSER, WOODWARD, and WILLIAM W. WENNER (Retired, Specially Assigned), JJ.

WOODWARD, Judge.

On July 21, 2005, in a Juvenile Petition filed in the Circuit Court for Anne Arundel County, sitting as a juvenile court, appellant, Ondrel M., was charged with possessing a controlled dangerous substance, namely, marijuana, which if he were an adult, would violate Maryland Code (2002, 2006 Supp.), § 5-601 of the Criminal Law Article.¹ In an adjudicatory hearing held before a master on September 21, 2005, appellant was found to have committed the delinquent act² of possessing marijuana and was adjudged at disposition to be a child in need of guidance, treatment, or rehabilitation.³ After an exceptions hearing on December 12, 2005, the circuit court affirmed the master's findings, conclusions, and disposition. Thereafter, appellant filed this timely appeal and presents this Court with the following questions:

1. Did the trial court err in finding that the evidence was sufficient to sustain a finding that [appellant] was in possession of marijuana?

2. Did the trial court err in allowing a police officer to testify, based on his training, knowledge, and experience as a police officer, that he detected an odor of marijuana?

For the reasons set forth herein, we affirm the judgment of the circuit court.

BACKGROUND

Appellant's delinquency adjudication and disposition arose from a high speed chase that ended at approximately 1:00 a.m. on May 16, 2005, when the four-door maroon Mercury Mystique in which appellant was riding was finally stopped on Route 2 in Anne Arundel County. At the adjudicatory hearing, held on September 21, 2005, the sole witness was Anne Arundel County police officer Brett Tawes.⁴ According to Officer Tawes, there were four occupants in the car, and appellant was the front seat passenger. When Officer Tawes, along with other officers, finally stopped the car after the chase, the driver continued to accelerate up a hill, pushing two police cars with his car. Because the driver failed to stop and all of the occupants "were not opening the windows[,]" the officers had to "take out all of the windows of the vehicle" in order to reach into the car and turn off the ignition.

Upon approaching the vehicle, Officer Tawes smelled an odor of marijuana emanating from inside. Officer Tawes testified that in his training at the police academy and in his work in the field as a police officer, he had been exposed previously to the smell of burning marijuana and therefore could recognize its smell.⁵ He then described the smell as he approached the car as "a burning type of weed . . . not a smell of tobacco smoke[,]" that he "thought it would be marijuana." All four occupants were removed from the vehicle and detained while a search was conducted. The search revealed a green leafy substance, later identified as marijuana, in the middle of a crumpled one-quarter or one-half sheet of newspaper lying behind the driver's seat on the floor.⁶ The police also discovered two pellet guns, one under the driver's seat and the other under the front passenger seat where appellant was sitting. No drugs were found on appellant's person. On cross-examination, Officer Tawes stated that "[t]here was trash everywhere in the car." The pursuit and subsequent stop of the car caused damage to a total of five police cars.⁷

At the close of the State's case, appellant made a motion for judgment of acquittal, which the master denied. The master determined that appellant had been in possession of marijuana and thus was guilty of a delinquent act. Thereafter, at the disposition hearing, the master found appellant to be a child in need of guidance, treatment, or rehabilitation. The master ordered appellant to spend the rest of the day in lock-up and suspended any further commitment in favor of probation until October 31, 2005.⁸

On September 29, 2005, appellant filed a notice of exceptions to the findings and conclusions of the master at the adjudicatory hearing. On December 12, 2005, a hearing on the exceptions was held, and in an Order dated the same day, the circuit court denied the exceptions and affirmed the decision of the master. Appellant filed a timely Notice of Appeal on December 29, 2005.

DISCUSSION

I Sufficiency of the Evidence

A Standard of Review

The standard of review of the sufficiency of the evidence is well established. In State v. Smith, 374 Md. 527, 533-34, 823 A.2d 664 (2003), the Court of Appeals stated:

The standard for appellate review of evidentiary sufficiency 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. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder. We give due regard to the [fact finder's] findings off acts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses. We do not reweigh the evidence, but we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant's guilt of the offenses charged beyond a reasonable doubt. A valid conviction may be based solely on circumstantial evidence. The same standard applies to all criminal cases, including those resting upon circumstantial evidence, since, generally, proof of guilt based in whole or in part on evidence is no different from proof of guilt based on direct eyewitness accounts.

(Alteration in original) (citations omitted) (internal quotations omitted).

"This same standard of review applies in juvenile delinquency cases. In such cases, the delinquent act, like the criminal act, must be proven beyond a reasonable doubt." In re Timothy F., 343 Md. 371, 380, 681 A.2d 501 (1996) (citation omitted). Further, we are cognizant of the principle that

[a] trial court fact-finder, i.e., judge or jury, possesses the ability to "choose among differing inferences that might possibly be made from a factual situation" and this Court must give deference to all reasonable inferences the fact-finder draws, regardless of whether we would have chosen a different reasonable inference.

State v. Suddith, 379 Md. 425, 430, 842 A.2d 716 (2004) (quoting Smith, 374 Md. at 534, 823 A.2d 664).

B

Appellant argues that the evidence was insufficient to sustain the master's finding that he committed the delinquent act of possessing marijuana because "[t]he State's case failed to establish that [appellant] knew of the presence of the marijuana in rear of the vehicle or that he exercised actual or constructive control over the marijuana[]" based on "[t]he mere fact that [] [he] was present in the vehicle[.]" In particular, appellant points to the fact that only a very small quantity of marijuana was found "in the middle of a crumpled up piece of newspaper, located on the floor, behind the driver's seat, in a vehicle that had garbage located throughout it."

The State maintains that "[t]he evidence was sufficient to [appellant's] possession of the marijuana found in the vehicle" in which appellant was a passenger. In particular, the State asserts:

[T]he occupants [of the car] were aware that the police were chasing them, the marijuana was in easy reach of [appellant], and it is reasonable to infer that the occupants of the car knew that if they were stopped, the odor or marijuana would alert an officer to the presence of the drugs.

In rendering her findings at the hearing, the master stated:

What we have here is a situation that I think is probably closer to the [State v. Suddith] case where a passenger in the vehicle claimed not to have any knowledge of marijuana after a vehicle — I believe that one was a stolen vehicle and a pursuit and a crash and stuff comes spilling out of the vehicle.

And as I recall, nothing in particular was found on that individual, but there was sufficient evidence, based on material that was in there and the fact that they were in the vehicle. We are not talking about a locked box in the tru[n]k of the.

The officer's testimony may be convenient as to smelling marijuana, but it is certainly not rebutted. So, it gives some indication that all state there was knowledge, if not [] indeed some degree of participation, as some of the cases say, in the mutual enjoyment of the contraband.

So, the smell gives rise to at least an indication of knowledge. He is in the vehicle. There is CDS in the back . . . to his left in the passenger side. That, the drugs, the smell of marijuana, indicate to me that, again, knowledge of the material in the vehicle; in proximity to the material.

The material was not locked away and not secreted in any particular form. It was held, yes, but I think it is enough.

Section 5-101(u) of the Criminal Law Article of the Maryland Code defines possession as "exercis[ing] actual or constructive dominion or control over a thing by one or more persons." "Dominion or control" over a controlled dangerous substance within the meaning of the statute requires the accused to have "`exercised some restraining or directing influence over it.'" State v. Leach, 296 Md. 591, 596, 463 A.2d 872 (1983)(quoting Garrison v. State, 272 Md. 123, 142, 321 A.2d 767(1974)). An accused also must have "knowledge" of the contraband. That is, the accused "must know of both the presence and the general character or illicit nature of the substance." Dawkins v.State, 313 Md. 638, 651, 547 A.2d 1041 (1988). "[S]uch knowledge may be proven by circumstantial...