Moye v. State

• Citation: 369 Md. 2,796 A.2d 821
• Decision Date: 16 April 2002
• Docket Number: No. 91,91
• Parties: Kevin MOYE v. STATE of Maryland.
• Court: Court of Appeals of Maryland

796 A.2d 821
369 Md. 2

Kevin MOYE
v.
STATE of Maryland

No. 91, Sept. Term, 2001.

Court of Appeals of Maryland.

April 16, 2002.

796 A.2d 822

Nicole M. Zell, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner

Stevel L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BATTAGLIA, J.

In the present matter we are called upon to consider whether a person may be found guilty of possession of a controlled dangerous substance ("CDS") and / or possession of drug paraphernalia in violation of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, §§ 287 and 287A by virtue of having been staying in a house and having been present in the dwelling's basement in which drugs were located inside drawers which were open or partially open. Petitioner, Kevin Moye, argues that the evidence was insufficient to sustain his convictions for possession of marijuana and

796 A.2d 823

cocaine and possession of drug paraphernalia. We agree and therefore shall reverse

I. Facts

In the early morning hours of March 6, 2000, Prince George's County Police received a call that a "cutting"¹ was in progress at 3414 Ricky Avenue in Temple Hills, Maryland. The home was leased by Yolanda and Joseph Bullock, a husband and wife, who rented out the basement to Greg Benson. All of the occupants of the Bullocks's residence were present in the home on March 6th, along with petitioner Kevin Moye, the brother of Yolanda Bullock, who may have been staying in the Bullocks's home.²

When the police arrived at the home, Yolanda Bullock came out of the house to meet them and stated that someone had cut her foot. She was followed by her husband, Joseph Bullock, who was uninjured. Shortly thereafter, Greg Benson came out of the house with cuts on both of his legs and told the police that someone else remained in the home. The police set up a barricade around the home and contacted the Emergency Service Team, a specialty assault weapons team, for support.

The police observed a black male, later identified as Moye, the petitioner, on the first floor of the Bullocks's home moving from windows on the left side of the house to windows at the front of the house. The police used a public announcement system to ask Moye to come out of the house under threat of sending in a K-9 unit. Once the K-9 announcement was made, Officer William R. Silvers, Jr. observed Moye looking through one of the windows at the back of the house on the first floor and then through a window in the back of the basement area. Thereafter, Officer Silvers saw no further movement within the house. Several minutes elapsed before Moye exited the Bullocks's home from a door leading out of the basement area which had been rented to Benson. Moye proceeded to the top of the basement steps on the outside of the home, where the officers arrested him. Officer Robert Black transported Moye to the hospital following his arrest so that he could receive treatment for a cut on his finger.

Following Moye's arrest, Officer Silvers testified that he and Officer Walden went to the back of the house to "make sure there were no other victims, no other suspects or weapons in the house." The officers entered the Bullocks's home through the basement door which had been used by Moye to leave the home. The basement

796 A.2d 824

area, as described by Officer Silvers, consisted of a small hallway opening into a larger living area bounded on one side with a long counter area encasing a sink, kitchen cabinets, and drawers. Three of the drawers were open or partially opened and contained several small baggies of marijuana, a small digital scale betraying white residue, and a dinner plate upon which rested a razor blade and white residue

Officer Silvers noticed a missing ceiling panel above the counter area. When he stood on the counter top to look into the ceiling, he discovered a bag containing marijuana and crack cocaine. No other drugs or paraphernalia were found anywhere else in the house.

The Bullocks, Benson, and Moye were all indicted with charges of possession of cocaine with intent to distribute in violation of Maryland Code (1957, 1996 Rep. Vol., 2001 Supp.), Art. 27, Section 286(a)(1),³ possession of cocaine in violation of Maryland Code (1957, 1996 Rep. Vol.), Art. 27, Section 287,⁴ possession of marijuana with intent to distribute in violation of Maryland Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, Section 286(a)(1), possession of marijuana in violation of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, Section 287, conspiracy to violate the controlled dangerous substances law of Maryland with regard to the cocaine, and possession of drug paraphernalia in violation of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, Section 287A.⁵

796 A.2d 825

On September 27, 2000, trial commenced against both Moye and co-defendant, Greg Benson.⁶ The State conceded that at no time did the police find drugs on the person of Kevin Moye, nor had he been tested for drugs at the time of his arrest. The State presented evidence that the digital scale found in the basement area tested positive for cocaine residue, although no drug testing was conducted on the plate upon which white powder residue was found. The evidence established that there was 0.07 grams of marijuana contained in the small baggies found in the counter drawers and 60.22 grams of marijuana along with 29.82 grams of cocaine in the bag found in the ceiling panel of the basement.

Moye moved for judgment of acquittal⁷ at the close of the State's case, arguing that the decision in Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997), disposed of the issues in the case. Moye asserted that the State had failed to demonstrate that he had exercised dominion or control over the drugs found in the basement of the Bullocks's home and failed to show that he had known that the drugs existed. The trial court granted the motion for judgment of acquittal on the charge of conspiracy to distribute cocaine but denied the motion as to all other charges. Neither Moye nor Benson called any witnesses, and at the close of the case Moye renewed his motion for judgment of acquittal as to all remaining counts. At that juncture, the trial judge granted the motion with regard to the charge for possession with intent to distribute cocaine. The case proceeded to the jury on the charges of possession of cocaine, possession of marijuana, possession

796 A.2d 826

with intent to distribute marijuana, and possession of drug paraphernalia.⁸

The jury returned its verdict on September 28, 2000, finding Moye guilty of possession of cocaine, possession of marijuana, and possession of drug paraphernalia, and not guilty of possession with the intent to distribute marijuana.⁹ On October 23, 2000, the trial court sentenced Moye to four years imprisonment for possession of cocaine concurrent with one year for possession of marijuana, with all but two years suspended and credit for time served and fined him $100.00 for possession of drug paraphernalia.

On January 22, 2001, Moye filed a Motion for Modification and Reduction of Sentence pursuant to Maryland Rule 4-345, arguing inter alia, that "the controlled dangerous substances and paraphernalia recovered in this case were located in a residence where [Moye] had been present but was not a resident," and "[t]hat neither any controlled dangerous substance nor paraphernalia were recovered from [Moye's] person." The trial court denied the motion on July 2, 2001.

Petitioner appealed the final judgment to the Court of Special Appeals, which affirmed his conviction. See Moye v. State, 139 Md.App. 538, 541, 776 A.2d 120, 122 (2001). The Court of Special Appeals held that Moye's "residence at a house in which marijuana and cocaine were found in plain view, combined with his presence in the specific area the drugs were located, was sufficient evidence to support his conviction for possession of those drugs." Id. at 541, 776 A.2d at 122. In reaching its holding, the Court of Special Appeals emphasized that the facts of this case were distinguishable from Taylor v. State, supra, and the cases cited therein, because

796 A.2d 827

those cases involved situations where controlled dangerous substances were located in a closed container or outside of the plain view of the accused. See Moye, Id. at 547-48, 776 A.2d at 125-26.

Moye filed a Petition for Writ of Certiorari with this Court, which we granted, 366 Md. 274, 783 A.2d 653 (2001), to consider the following:

1. Where drugs and paraphernalia were found in open drawers in the basement of a private residence, and the record shows that Petitioner and the lessees of the house live upstairs and that the basement is rented to a fourth individual, is Petitioner's mere presence in the basement sufficient to sustain convictions for possession of CDS and possession of paraphernalia?

2. Did the instruction given fail to inform the jury that it could convict Petitioner of possession of CDS and possession of paraphernalia only if it found, beyond a reasonable doubt, that Petitioner did in fact exercise some dominion or control over the CDS and paraphernalia?

For the reasons set forth below, we reverse the Court of Special Appeals's decision and Moye's conviction on the basis of insufficiency of the evidence. Therefore, we need not and will not address petitioner's second question.

II. Standard of Review

The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336, 337 (1994). We view the evidence in the light most favorable to the prosecution. See id. (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61...