Rich v. State

205 Md.App. 227

44 A.3d 1063

Mark Terrill RICH

v.STATE of Maryland.

No. 2339, Sept. Term, 2009.

Court of Special Appeals of Maryland.

May 31, 2012.

Allison M. Sayers (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

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

Panel: MATRICCIANI, WATTS, IRMA S. RAKER, (Retired, specially assigned), JJ.

RAKER, J.

Mark Terrill Rich, appellant, challenges the sufficiency of the evidence to support his convictions in the Circuit Court for Caroline County for the offenses of possession with intent to distribute cocaine, resisting arrest, and second-degree escape. We shall hold that the evidence was insufficient to support the judgments of conviction for possession with attempt to distribute cocaine and resisting arrest, and shall reverse in part. As to the offense of second-degree escape, we shall hold that the evidence was sufficient to sustain that judgment of conviction, and shall affirm in part.

I.

Appellant was charged in a criminal information in the Circuit Court for Caroline County with the following eight counts: (1) possession of a controlled dangerous substance, cocaine, with intent to distribute; (2) possession of cocaine; (3) escape in the second degree; (4) possession of marijuana; (5) conspiracy to possess marijuana; (6) resisting or interfering with arrest; (7) disorderly conduct; and (8) failure to obey a lawful and reasonable order of a law enforcement officer. He proceeded to trial before a jury, which convicted him of possession with intent to distribute cocaine, possession of cocaine, possession of marijuana, resisting arrest, and second-degree escape.

The facts in the instant case are not in controversy; the parties differ only as to their legal significance. On February 20, 2009, at approximately 11:00 p.m., Corporal Eric Peterson of the Caroline County Sheriff's Department was on drug patrol as a K–9 officer, accompanied in his patrol car by a drug-detecting dog. He stopped the vehicle in which appellant was a passenger for an inoperative right taillight. Jennifer Smith, appellant's girlfriend, was driving the car. Ms. Smith and appellant got out of the car. Ms. Smith consented to a search of her person, and no drugs were found. Appellant consented to a search of his person, but when the officer removed appellant's hat from his head a bag of marijuana fell into the officer's hand. At that moment, appellant “took off on foot and tried to flee and elude the scene.” The officer apprehended appellant about ten to twelve feet from Ms. Smith's vehicle, tackling him to the ground. Corporal Peterson told appellant he was under arrest, placed his hands behind his back, and handcuffed him. The officer then picked appellant up from the ground and led him to the back of Ms. Smith's car. Two additional police patrol cars had since arrived. When Corporal Peterson bent down to pick up the marijuana from the ground, appellant ran off again, this time in the direction of a residence to the right of the stopped cars. Corporal Peterson again tackled appellant to the right of the house and convinced appellant not to run anymore. Appellant admitted then that the marijuana was his and stated that Ms. Smith did not know he had it.

Corporal Peterson searched the car and appellant and found no other controlled dangerous substances. He checked the area around the house with a flashlight but not with the dog. Two to three days later, Corporal Peterson received a phone call and, as a result, returned to the area of the arrest. He met with Patricia Blunt, a resident of the home near which Corporal Peterson tackled appellant after his second flight. Ms. Blunt gave the officer several small bags containing crack cocaine. She said she found them in the flowerbed near her home where she runs a daycare service. At trial, Ms. Blunt testified that she had been working in her garden three days before appellant's arrest and did not see the cocaine at that time. She also testified that she did not believe anyone else had been in the area around her flowerbed between the night appellant was arrested and the day she found the bags.

At trial, when asked by the prosecutor about any trouble the officer may have had when appellant was handcuffed and arrested, Corporal Peterson stated: “No real trouble. I mean anytime you try to handcuff somebody behind their back usually there's a bit of a defensive motion, but he wasn't offensive in nature or anything like that.”

Two other officers testified for the State. Corporal Leonard Nichols, a Maryland State Police officer, assigned to the Caroline County Drug Task Force, was present at Corporal Peterson's stop and arrest of appellant. Corporal Nichols testified that he searched appellant's cell phone and he saw a couple of text messages that stated “hey mister I need a 20” and “I need a 20.” Sergeant Ronald Crouch, also of the State Police and assigned to the Caroline County Drug Task Force, was qualified as an expert in the illegal drug trade and testified that the text messages on appellant's phone were “consistent with a user texting a dealer attempting to set up a purchase of $20 worth of crack cocaine.” He testified that frequently drug dealers hide small bags of drugs in their mouths. Appellant testified at trial and admitted to possession of the marijuana but denied that he possessed any crack cocaine that evening.

Appellant moved for judgment of acquittal on all counts, and the following colloquy occurred:

“[DEFENSE COUNSEL]: As to Count Six, resist and interfere with arrest. As to the interfere with arrest, that portion of it is interfering with the arrest of another. As to the resisting arrest itself, basically the testimony of the officer was that he wasn't offensive, he was a little defensive, kind of went dead and it was hard to get him handcuffed. I believe there is case law and I can look it up and it's in the case law behind the statute, basically going limp so it's harder to arrest somebody does not equal resisting arrest, Your Honor. I don't think in the best light there's a resisting arrest in this case.”

THE COURT: You don't think fleeing is a resistance to the arrest?

[DEFENSE COUNSEL]: I guess I would go there, that would probably be covered by the second degree escape charge, Your Honor, the fleeing portion of it. This is the actual arrest portion. That's the argument I would be making.

THE COURT: What do you say, [prosecutor]?

[PROSECUTOR]: Your Honor, on the contrary, the second degree escape comes into play once an individual's actually been placed into custody. Physically laid hands, has been arrested, is in the control of law enforcement, which Mr. Rich was when he was tackled to the ground in the road. He was then placed in handcuffs, in between cars. It's that second flight that is the second degree escape. That first flight, Your Honor, I agree with the Court consists, is consistent with a resisting of arrest.

[DEFENSE COUNSEL]: I would counter, rebut that by saying he wasn't placed under arrest until the end of that first flee, is when the officer testified he placed him under arrest so that first flee by the officer's testimony wouldn't count.

THE COURT: I have him, let's see. The first fleeing was not, he was not placed under arrest. He was then arrested and the second time he ran off he, he had, yeah, that was after he had been arrested. Well, I think I'll let it go to the jury on resisting arrest. Motion is denied as to Count Six.”

The court heard argument from counsel as well regarding the possession with intent to distribute cocaine and denied the motion. As to the charges of second-degree escape and possession of cocaine and marijuana, there was no additional argument, and the court permitted the charges to go to the jury. The court did, however, dismiss the conspiracy, disorderly conduct, and failure to obey charges.

In the State's closing argument to the jury, the State made clear that the conduct it was relying on to support the charge of resisting arrest was not appellant's second flight, that is, after he was handcuffed, but instead was appellant's first flight, when his marijuana was discovered and he ran from the officer, along with appellant's failure to cooperate with the officer when he attempted to place the handcuffs on him. For the escape charge, the State relied on appellant's flight after he was formally arrested and handcuffed.

The jury convicted appellant. The circuit court sentenced appellant on the distribution charge to a term of incarceration of twelve years, with all but six years suspended; on the cocaine possession charge, to a concurrent, four-year term; on the escape charge, to a consecutive two-year term; on the marijuana possession charge, to a concurrent one-year term; and on the resisting arrest charge, to a concurrent, three-year term. The court further ordered three years of supervised probation following release.

This timely appeal followed.

II.

Before this Court, appellant argues that the evidence was insufficient to support the offenses of possession with intent to distribute cocaine, escape in the second degree, and resisting arrest.¹ The test for sufficiency of the evidence is well-settled: Whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Coleman, 423 Md. 666, 672, 33 A.3d 468 (2011). We address first the possession with intent to distribute crack cocaine.

Appellant asserts that in order to convict him of possession of cocaine with intent to distribute, the State must prove beyond a reasonable doubt that he was aware of the presence of the cocaine and that he exercised dominion and control over the substance, either actual or constructive. Here, the only...