Neal v. State

• Citation: 191 Md. App. 297,991 A.2d 159
• Parties: Larry NEAL v. STATE of Maryland.
• Decision Date: 25 March 2010
• Court: Court of Special Appeals of Maryland

991 A.2d 159

191 Md. App. 297

Larry NEAL v. STATE of Maryland.

No. 1118 September Term, 2008.

Court of Special Appeals of Maryland.

March 25, 2010.

COPYRIGHT MATERIAL OMITTED

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

James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: WRIGHT, KEHOE, and J. FREDERICK SHARER (retired, specially assigned), JJ.

KEHOE, Judge.

Larry Neal, appellant, was convicted at a bench trial by the Circuit Court for Baltimore County of possession of cocaine with intent to distribute, in violation of MD.CODE ANN.CRIM. LAW § 5-602(2) (2002); possession of cocaine, in violation of Crim. Law § 5-601; possession of a firearm in relation to a drug trafficking crime, in violation of Crim. Law § 5-621(b)(1); illegal possession of a regulated firearm, in violation of MD.CODE ANN. PUB. SAFETY § 5-133(b) (2003); and possession of marijuana, in violation of Crim. Law § 5-601(c)(2).

Appellant presents two issues for our review, which we have reworded:

I. Did the trial court err in failing to enter judgments of acquittal on charges involving possession of a firearm where there was no evidence that the firearm involved in the crime was operable?

II. Was the evidence sufficient to support a conviction for simple possession and possession with the intent to distribute cocaine?

For the reasons that follow, we shall affirm the judgments below.

FACTS

Evidence at trial established the following pertinent facts.

Around midnight on April 6, 2007, Officer Jefferson Tufts of the Baltimore County Police Department stopped a white Cadillac for driving 48 miles per hour in a posted 35 mile per hour zone near the intersection of Pine Avenue and Dundalk Avenue. Officer Thomas Huesman assisted in the stop. Appellant was the driver and sole occupant of the car. Officer Tufts approached the driver's side of the car and Officer Huesman approached the passenger's side. Appellant appeared "nervous" but produced his driver's license and the registration without incident. Officer Huesman alerted Officer Tufts to two marijuana "blunts" he observed on the front passenger seat. At Officer Tufts' direction, appellant handed the blunts to him.

Officer Tufts then inquired whether appellant had "anything else in the vehicle he needed to know about." Appellant responded in the negative. Next, in the words of Officer Tufts, "I asked appellant to exit the vehicle so that we could conduct a search." Appellant did not comply. Instead, he immediately sped away, followed by both officers in their individual patrol cars. Approximately 50 yards into the pursuit, Officer Tufts saw "something thrown out the window." The chase lasted no more than a mile before appellant lost control of the car and crashed. Appellant exited the car and continued to flee before being caught by Officer Huesman.

Officer Shawn McElfish arrived shortly after appellant was apprehended. He searched for the discarded item in the roadway area as described by Officer Tufts. He found a handgun. It was loaded with a magazine of six rounds, and one round in the chamber. Two sandwich baggies containing a white substance were found in the interior "console" of the car. The contents of the baggies were later identified as being 19.2 grams and .9 grams of cocaine having a street value of approximately $800. No other contraband was recovered from appellant or the car. According to Detective Hinton Sekou, the State's expert in the sale and use of illegal drugs, the amount of cocaine seized was indicative of possession with an intent to distribute rather than personal use.

After appellant's arrest, Detective Sean Moran interviewed him about the gun. Appellant advised that a "friend" owned the car and provided no identifying information about the "friend." Detective Moran recalled asking appellant whether "we needed to investigate other people if other people were responsible for this firearm." Appellant responded that he would not discuss the gun. His reason, according to the detective, was that to do so would be self-incriminating.¹

Appellant testified that the gun and cocaine both belonged to the owner of the car, a friend whom he knew only as "Black." According to appellant, he had spent the evening at a party with friends, including Black. The two left the party together with Black driving the car. Appellant stated that when they arrived at Black's home, Black turned the car over to appellant because Black was not up to taking appellant home.

Appellant claimed that when the traffic stop occurred, he called Black with Officer Tuft's permission in order to locate the car's registration. Appellant testified it was during this call to Black that he learned there was a gun under the front driver's seat. Appellant did not state that Black alerted him to the cocaine in the car. Officer Tufts denied that appellant made a telephone call during the stop. Officer Huesman did not recall that appellant made any calls during the stop.

Appellant admitted to discarding the gun and that Officer Tufts "pointed out I had two blunts." He did not dispute that Officer Tufts questioned him as to any other contraband in the car, that he denied the presence of any, or that he sped away after being advised that the car would be searched. Appellant explained that he "panicked" after learning about the gun and fled only because he knew a prior CDS conviction prohibited his ownership or possession of a firearm. Appellant admitted that the gun recovered by Officer McElfish was the same gun that he threw out of the window. Appellant denied any knowledge of the cocaine, and stated that he learned about the cocaine discovered in the console of the car when at the police station. Appellant called no other witnesses.

At sentencing, the court merged the simple possession conviction into the possession of cocaine with intent to distribute conviction and imposed a 20-year term of incarceration thereon, suspending all but 10 years, to be served without the possibility of parole; imposed a five-year term of incarceration to be served without the possibility of parole for the possession of a firearm in relation to a drug trafficking crime conviction, to be served consecutively to the first sentence of incarceration; and suspended any sentence generally as to the other convictions.

We will provide additional facts as necessary.

DISCUSSION

I. The Firearm Offenses

Appellant was charged with the violation of three gun-related offenses:

• Wearing, carrying and transporting a handgun without a permit in violation of Crim. Law § 4-203;

• Possessing a firearm in relation to a drug trafficking crime in violation of Crim. Law § 5-621(b)(1); and

• Possessing a regulated firearm by a person previously convicted of a disqualifying crime under Pub. Safety § 5-133(b)(1).

At trial, Officer McElfish described the gun that he recovered as being "a .45 caliber Smith Armory handgun." He testified that he "made it safe" by "unloading the weapon" before "packaging it per County policy." There was no affirmative evidence in the record as to the gun's operability. There was no testimony by any witness as to any examination or test firing of the gun. However, appellant did not dispute that the gun was a real gun and loaded when found. Appellant did not question whether the gun was in good condition, and presented no evidence that the gun showed any signs of disrepair or was not otherwise intact.

At the close of all of the evidence, appellant moved for a judgment of acquittal of all the charges against him. Regarding the gun-related offenses, appellant did not dispute that he possessed the gun or had prior disqualifying convictions. Rather, his argument for acquittal was based solely on the assertion, without citation to authority, that each gun-related offense required proof of the gun's operability and that the State had failed to prove operability.

The State responded that appellant was "correct, as to the simple possession of a handgun" under Crim. Law § 4-203 requiring operability, but maintained that a conviction under Pub. Safety § 5-133 and Crim. Law § 5-621(b) did not "require testimony as to the operability." On this point, the State failed to argue that a reasonable fact finder could determine operability from the circumstantial evidence presented in lieu of direct evidence. (e.g. that the gun was loaded and there being no evidence of disrepair). The trial court denied the motion for judgment of acquittal and found appellant not guilty of the handgun offense (Crim. Law 4-203) but guilty of the firearm drug trafficking and regulated firearm offenses.

Before this Court, appellant contends that the evidence was insufficient to support a conviction under Pub. Safety § 5-133(b)(1) and Crim. Law § 5-621(b)(1) because, in his view, both statutes require proof of operability in order to support a conviction:

Under Crim. Law § 5-621(b) and Pub. Safety § 5-133(p) . . ., the State bears the burden of proving that the weapon was operable If the Legislature had intended that the terms "firearm" and "regulated firearm" include inoperable firearms, it knew how to make that intention clear.

Appellant points us to Crim. Law § 4-204, which prohibits the use of a handgun in the commission of a crime "whether . . . the handgun is operable or inoperable at the time of the crime" as an example of a statute that does not require proof of operability. Since neither Pub. Safety § 5-133(b)(1) nor Crim. Law § 5-621(b)(1) contain similar language, he argues that the State is required to prove operability.

The State responds that the governing statutory definitions of a "firearm" (in Crim. Law § 5-621(b)(1)) and "regulated firearm" (in Pub. Safety § 5-101) are clear and unambiguous and that the plain meaning of neither statute imposes a requirement that a firearm be operable. The State also relies upon established case...