Veney v. State

• Decision Date: 02 February 2000
• Docket Number: No. 6977,6977
• Citation: 130 Md. App. 135,744 A.2d 1094
• Parties: Eric VENEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

744 A.2d 1094

130 Md. App. 135

Eric VENEY v. STATE of Maryland.

No. 6977, Sept. Term, 1998.

Court of Special Appeals of Maryland.

February 2, 2000.

Gina M. Serra, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney

General and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before EYLER, SONNER, and PAUL E. ALPERT (Ret., specially assigned), JJ.

EYLER, J.

Appellant, Eric Veney, was convicted by a jury sitting in the Circuit Court for Baltimore City of possession with intent to distribute cocaine, possession of cocaine, possession with intent to distribute heroin, and possession of heroin. He was sentenced to concurrent terms of ten years, to be served without the possibility of parole, for each of the possession with intent to distribute convictions. The remaining convictions were merged. Appellant noted a timely appeal and presents the following questions for our review:

I. Was the evidence sufficient to support appellant's convictions for possession with intent to distribute?

II. Did the trial court impose an illegal sentence?

FACTS

On the morning of August 1, 1997, Baltimore City Police Officer Mark Holmen and his partner, Kurt Roepke, were on uniformed bicycle patrol. At approximately 10:00 a.m., the officers were in the 1900 block of Castle Street when Officer Holmen observed a group of about five people in the backyard area of the 2000 block of Cliftwood, which faces Castle Street. At trial, the officer described it as "a high drug area." The individuals he saw were yelling "Five-O," which he explained was "a street term used to notify the criminal element that the police are in the area." As the officers traveled down the street, Officer Holmen observed twenty-five to thirty individuals "scattering" and "[d]ispersing."

When Officer Holmen looked down the street, he observed a man, later identified as appellant, standing in front of 1909 North Castle Street and holding a plastic bag that contained a white substance. The officer estimated that he was thirty feet from appellant at that time. Officer Holmen pointed out appellant to Officer Roepke, and the officers proceeded toward him. As the officers approached appellant, he got on his hands and knees and reached into the basement window, which was missing the glass, of the vacant house located at 1909 North Castle Street. When the officers were only several feet from appellant, Officer Holmen observed that appellant's left hand was inside the basement window of the vacant house.

Officer Roepke, who testified as an expert in narcotics enforcement investigation, stated that he observed appellant "put his hand on the corner and then reach[ ] both hands through the window." The officer further stated that the vacant house was full of trash and debris and that he saw appellant pull up a carpet and place a plastic bag underneath it. From underneath the carpet, Officer Roepke recovered a plastic bag containing two green-topped vials of a white rock-like substance that the officers suspected was cocaine. Officer Roepke then checked where appellant had placed his hand "up in the window sill" at the corner and recovered a bag that contained forty-three gel capsules and fifty red-topped vials. Subsequent laboratory analysis determined that the gel capsules contained heroin and that the green-topped and red-topped vials contained cocaine.

Officer Roepke further testified that the different colors on the vial tops could indicate a different seller or different tester. He explained that, on the first of the month, when individuals receive their paychecks, distributors may give out a small sample of their product. The officer further stated that the quantities of forty-three gel capsules and fifty-two vials were consistent with distribution and not personal use. In the defense case, Angela Proctor testified that she was with appellant on the morning in question. According to Ms. Proctor, she was standing with appellant when the police rode by two times on their bikes. On the third trip, the police stopped, got off their bikes, and looked in the window at 1909 Castle Street. One of the officers then approached appellant and escorted him up the street. An officer pulled the bags out of the window and appellant was arrested. Ms. Proctor testified that she had not seen appellant go to the window.

DISCUSSION

I.

Appellant first contends that the evidence was insufficient to sustain his convictions for possession with intent to distribute, as the State failed to establish that he was aware of the second bag of drugs that contained forty-three gel capsules of heroin and fifty red-topped vials of cocaine. He stresses that Officer Roepke did not see him in possession of that bag, that the area is known for a high concentration of drugs, that the vacant house was full of trash and debris, and that the drugs were not in plain view. Appellant also relies on Officer Roepke's testimony that different sellers use different colored vials and emphasizes that, although the officers observed him in possession of the baggie containing two green-topped vials, the second bag contained red-topped vials. Appellant concedes his possession of the two green-topped vials of cocaine but claims there was no evidence that he was attempting to sell or distribute them because the officers did not observe him engaging in any hand-to-hand transactions and no money, pager, or tally sheets were found on his person when he was arrested.

At the close of the State's case, defense counsel moved for judgment of acquittal, stating only: "We'll make a motion on all counts, Your Honor, and submit." At the close of all the evidence, defense counsel again moved for judgment and stated: "We would renew the motion and submit." No argument was presented in support of the motion; therefore, the sufficiency of the evidence is not properly before us. See Johnson v. State, 90 Md. App. 638, 649, 602 A.2d 255 (1992)

(citing Brooks v. State, 68 Md.App. 604, 611, 515 A.2d 225 (1986),

cert. denied, 308 Md. 382, 519 A.2d 1283 (1987)) ("a motion which merely asserts that evidence is insufficient to support a conviction, without specifying the deficiency, does not comply with Rule 4-324, and thus does not preserve the issue of sufficiency for appellate review"); Parker v. State, 72 Md.App. 610, 615, 531 A.2d 1313 (1987) ("[M]oving for judgment of acquittal on the grounds of insufficiency of the evidence, without argument, does not preserve the issue for appellate review."). Nonetheless, we briefly address appellant's contentions.

The standard for our review of the sufficiency of the evidence 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

; Wilson v. State, 319 Md. 530, 535, 573 A.2d 831 (1990). The jury, as the trier of fact, may "`draw reasonable inferences from basic facts to ultimate facts.'" Barnhard v. State, 86 Md. App. 518, 532, 587 A.2d 561 (1991),

aff'd,

325 Md. 602, 602 A.2d 701 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Weighing the credibility of the witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder. See Binnie v. State, 321 Md. 572, 580, 583 A.2d 1037 (1991). In performing its fact finding role, the jury is free to accept the evidence that it believes and reject that which it does not. See Muir v. State, 64 Md.App. 648, 654, 498 A.2d 666 (1985),

aff'd,

308 Md. 208, 517 A.2d 1105 (1986). "In this regard, it may believe one witness's testimony, but disbelieve another witness's testimony." Shand v. State, 103 Md.App. 465, 489, 653 A.2d 1000 (1995),

aff'd on other grounds,

341 Md. 661, 672 A.2d 630 (1996); see also Snyder v. State, 104 Md. App. 533, 549-50, 657 A.2d 342, cert. denied, 340 Md. 216, 665 A.2d 1058 (1995) (stating that a jury resolves conflicts in evidence and evaluates witness's credibility).

To support a conviction for a possessory offense, the "`evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited... drug in the sense contemplated by the statute, i.e., that [the accused] exercised some restraining or directing influence over it.'" State v. Leach, 296 Md. 591, 595-96, 463 A.2d 872 (1983) (quoting Garrison v. State, 272 Md. 123, 142, 321 A.2d 767 (1974)). "The accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance. Of course, such knowledge can be proven by circumstantial evidence and by inferences drawn therefrom." Dawkins v. State, 313 Md. 638, 651, 547 A.2d 1041 (1988).

The following factors may be considered in determining whether appellant possessed the second bag of drugs:

"1) proximity between the defendant and the contraband; 2) the fact that the contraband was within the plain view or otherwise within the knowledge of the defendant; 3) ownership or some possessory right in the premises or automobile in which the contraband is found; and 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual enjoyment of the contraband."

Kostelec v. State, 112 Md.App. 656, 672, 685 A.2d 1222 (1996), vacated on other grounds, 348 Md. 230, 703 A.2d 160 (1997)

(quoting Rich v. State, 93 Md.App. 142, 150, 611 A.2d 1034 (1992),

vacated and remanded on other grounds, 331 Md. 195, 627 A.2d 537 (1993) (citing Folk v. State, 11 Md.App. 508, 514, 275 A.2d 184 (1971))).

In the present case, the officers observed appellant in close proximity to the...