Timothy F., In re

• Decision Date: 01 September 1995
• Docket Number: No. 67,67
• Citation: 681 A.2d 501,343 Md. 371
• Parties: In re TIMOTHY F. ,
• Court: Maryland Court of Appeals

Page 371

343 Md. 371

681 A.2d 501

In re TIMOTHY F.

No. 67, Sept. Term, 1995.

Court of Appeals of Maryland.

Aug. 28, 1996.

Gina Serra, Assistant Public Defender (Stephen E. Harris, Public Defender; Nancy S. Forster, Assistant Public Defender, on brief), Baltimore, for Petitioner.

Thomas K. Clancy, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

The issue that Timothy F., the petitioner, submits for our resolution is whether the evidence presented to the Circuit Court for Queen Anne's County, sitting as a Juvenile Court, was sufficient to support the finding by that court that he possessed a noncontrolled substance with the intent to distribute it as a controlled dangerous substance. On appeal, in an unreported opinion, the Court of Special Appeals held that it was and, therefore, affirmed the juvenile court's delinquency judgment. Having granted the writ of certiorari at the petitioner's request, we shall reverse.

I.

Armed with information from a student that the petitioner, a sixth grader and, at the time, 12 years old, ¹ was in possession of a controlled dangerous substance (CDS), the assistant principal of Centreville Middle School searched him. That search uncovered a medicine pill bottle containing two pieces and three crumbs of a white substance that looked like crack cocaine. The petitioner said that it was dried "milk chips." Laboratory analysis having confirmed that the substance was not crack cocaine or any other CDS, a delinquency petition was filed charging the petitioner with possession "with intent to distribute a non-controlled substance intended for use or distribution as a controlled dangerous substance."

In addition to the above facts, the State offered testimony at the delinquency hearing that the petitioner said that he got the "milk chips" from Stanley and that he, in turn, gave some of it to Giovanni W. ² Other testimony established that Giovanni, another sixth grader, and Stanley, an eighth grader, were brought to the principal's office at, however, different times. Giovanni had in his possession a brown prescription bottle, containing two or three pieces of the same substance that the petitioner had. He told the principal that it was "soap chips." Stanley's bottle was white. In it, as in the petitioner's and Giovanni's, were several pieces of the same substance. Stanley volunteered that the substance was "fake crack."

The State also presented expert testimony. The State trooper who was called to the school in response to the discovery of the subject non-controlled substances, testified that the recovered substances looked "exactly like" crack cocaine. Another trooper confirmed that assessment, although he acknowledged that he, and anyone who "kn[e]w what crack cocaine is", could tell the difference. That trooper further testified that a piece of crack cocaine identical in size to the piece found in the petitioner's pill bottle would have a street value of $20 and "the crumbs you give away for five or ten dollars." Moreover, he opined that the manner in which the substance was packaged indicated that it was intended for distribution: "a lot of people that carry crack cocaine or any kind of CDS carry it in a container like [the pill bottle the petitioner was carrying], it keeps it from being crushed" and that "every time I see [drug dealers] they're always selling with a container like this." A user does not keep crack in such a container, he asserted, unless he or she is a "user seller." Finally, the State presented evidence, through a trooper who also was one of the instructors of the Drug and Alcohol Resistance Education Program (DARE) course given at the Middle School. He testified that he instructed his students as to the nature and appearance of crack cocaine and how it is packaged for distribution and that he showed them facsimile crack cocaine. He testified further that Timothy and Giovanni had taken the DARE course, and thus were aware of these facts. Although uncertain about Stanley, that witness stated that it was likely that he too had taken the course since it is a mandatory course and Stanley was in the eighth grade.

The defense presented no evidence; however, in closing argument, the petitioner's attorney argued, in conformance with the State's characterization of their activity, that the petitioner and his schoolmates were "play-acting" as drug dealers. He concluded, therefore, that they did not possess the noncontrolled substance with the intent of distributing it for use or distribution as CDS.

In finding the petitioner delinquent, the juvenile court reasoned:

"[T]he statute involved here, 286B, speaks in terms of possession with intent to distribute, and as we know from dealing with controlled dangerous substances, that phrase means whether under all the circumstances it can be reasonably inferred that these people intended to distribute this substance.... So that all that one has to find is that ...--there was an intention to transfer the substance to another person on the representation that it was in fact a controlled dangerous substance ... [W]e have three people, clearly interrelated, who have in their possession, having gotten this from each other, clearly being part or [sic] the same--I think it not overstates it, conspiracy, the same--acting under the same general design, most certainly, having containers which are like containers by all the testimony in which are kept and from which are distributed controlled dangerous substances.... [W]e're not focusing, [however], on the transfers among those people, inter se, we are talking about what was the purpose for which each one of them held a container which looked as if it were--looked exactly like containers from which crack is dispensed.... The conclusion is inescapable that this substance whether in order to tease their friends, whether as a lark, whether to again [sic] pocket money or for whatever reason, the conclusion to me is inescapable that they held this for the purpose as is said in the statute of distributing this, and, again with or without remuneration makes no difference to another person, or whether as a joke ... but the fact that these people were carrying around what they admitted they thought were soap chips or something else as totally innocuous as soap chips, with these very elaborately disguised and packaged as a controlled dangerous substance leads to only one conclusion. Frankly I would be hard put to reach any other conclusion ... I think that the point is that one does not run around and have a substance that one is palming off for fun, for profit, sport or for thrills, as a controlled dangerous substance. That is the--precisely what these three juveniles were doing...."

II.

The statute pursuant to which the petitioner was found delinquent is Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 286B. That section provides, in pertinent part:

(c) It is unlawful for a person to distribute, attempt to distribute, or possess with intent to distribute, any noncontrolled substance intended by that person for use or distribution as a controlled dangerous substance or under circumstances where one reasonably should know that the noncontrolled substance will be used or distributed for use as a controlled dangerous substance.

(Emphasis supplied). The provisions of § 286B(c) are disjunctive.

The petitioner was charged with, and found delinquent with respect to, possession of a noncontrolled substance with the intent to distribute it as a CDS, rather than with possession of that substance "under circumstances where one reasonably should know that the noncontrolled substance will be used or distributed for use as a controlled dangerous substance." This is significant. Under the latter charge, all that need be shown are the circumstances of the possession, from which the trier of fact could infer that the possessor "reasonably should know" that it would be used or distributed as a CDS. Under the former, it is not enough to show the circumstances of the possession; instead, in addition to possession of the noncontrolled substance, the State must prove the purpose for which the accused possessed it. Consequently, in order to be sufficient to support the finding of delinquency in this case, the evidence had to show that the petitioner possessed the noncontrolled substance with two intents: to distribute it and to do so fraudulently for use or distribution as a CDS. Gipe v. State, 55 Md.App. 604, 614, 466 A.2d 40, 46, cert. denied, 298 Md. 243, 469 A.2d 452 (1983).

The State contends that the intent to distribute, as well as the intent to misrepresent a noncontrolled substance as a CDS, may be inferred from the packaging of the substance, the quantity of the substance in the petitioner's possession, and the fact that the petitioner had knowledge, acquired as a participant in the DARE course, regarding the manufacture, marketing and distribution of crack cocaine. In effect, the State is arguing that a juvenile's mere possession of a noncontrolled substance that looks, and is packaged, like a controlled substance gives rise to an inference that the juvenile intended fraudulently to distribute that substance as the CDS that it appears to be. It relies on Gipe.

In that case, the Court of Special Appeals upheld the conviction of a defendant, an adult, on the strength of inferences drawn from the defendant's possession of a noncontrolled substance that looked like amphetamines, a CDS. The court reasoned:

Officer Sheppard had training in the identification of "methaqualudes" (a controlled dangerous substance) and knew how they were ordinarily packaged. Significantly, he testified that the tablets seized were packaged "in the customary manner for the way they are sold on the street in packages ranging from 50 tablets up to 100...