Sayers v. State

1

NAKEERE ANTHONY SAYERS v. STATE OF MARYLAND

No. 1735-2022

Court of Special Appeals of Maryland

August 30, 2023

UNREPORTED ^[*]

IN THE APPELLATE COURT OF MARYLAND ^[**]

Circuit Court for Cecil County Case No. C-07-CR-20-000433

Arthur, Albright, Raker, Irma S. (Senior Judge, Specially Assigned)

OPINION

Raker J.

A jury in the Circuit Court for Cecil County, convicted Nakeere Sayers, appellant, of one count of possession with intent to distribute fentanyl, one count of possession of fentanyl, two counts of possession of a firearm in relation to a drug trafficking crime, two counts of illegal possession of a regulated firearm, one count of illegal possession of ammunition, and one count of wearing, carrying, or transporting a handgun. The court imposed separate sentences on all convictions except for the conviction of possession of fentanyl, which was merged into the conviction of possession with intent to distribute fentanyl.

In this appeal, Sayers presents three questions, which we have rephrased for clarity:

1. Did the sentencing court err in imposing separate sentences on appellant's two convictions for possession of a firearm in relation to a drug trafficking crime?

2. Did the trial court abuse its discretion in permitting a police detective to testify that appellant's mother had the same name as the individual who had purchased one of the firearms that appellant had allegedly possessed?

3. Was the evidence sufficient to sustain appellant's firearms-related convictions?

As to question one, the State concedes error, and we agree. As a result, we shall hold that the sentencing court erred in imposing separate sentences on the two convictions and we shall vacate the judgment of conviction and sentence on count 13. As to question two, we shall hold that the trial court did not abuse its discretion in admitting the disputed testimony. As to question three, we shall hold that appellant's sufficiency of the evidence argument was not preserved for our review and that, even if preserved, the evidence was sufficient to sustain the convictions.

I.

Appellant was indicted by the Grand Jury for Cecil County of one count of possession with intent to distribute heroin (Count 1), one count of possession with intent to distribute fentanyl (Count 2), one count of possession with intent to distribute a heroin-fentanyl mix (Count 3), one count of possession of heroin (Count 4), one count of possession of fentanyl (Count 5), two counts of conspiracy to distribute heroin (Counts 6 and 7), two counts of conspiracy to distribute fentanyl (Counts 8 and 9), two counts of conspiracy to distribute a heroin-fentanyl mix (Counts 10 and 11), two counts of possession of a firearm in relation to a drug trafficking crime (Counts 12 and 13), one count of possession of a regulated firearm by a person previously convicted of a crime of violence (Count 14), one count of possession of a regulated firearm by a person previously convicted of a disqualifying crime (Count 15), one count of illegal possession of ammunition (Count 16), and two counts of wearing, carrying, or transporting a handgun (Count 18).

The State entered a nolle prosequi as to Counts 1, 3, 4, 6, 7, 10, 11, and 18. The court granted judgments of acquittal as to Counts 8 and 9. Appellant was convicted on all other counts. On Count 2 (possession with intent to distribute fentanyl), the court sentenced appellant to a term of incarceration of 10 years, all but five years suspended. On Count 12 (possession of a firearm in relation to a drug trafficking crime), the court imposed a term of incarceration of 10 years, all but five years suspended, to run consecutive to Count 2. On Count 13 (possession of a firearm in relation to a drug trafficking crime), the court imposed a term of incarceration of 10 years, all but five years suspended, concurrent with the sentence on Count 12. On Count 14 (illegal possession of a regulated firearm), the court imposed a term of 10 years' incarceration, all but five years suspended, consecutive to the sentences on Counts 2 and 12. On Count 15 (illegal possession of a regulated firearm), the court imposed a term of incarceration of five years, concurrent to Count 2. On Count 16 (illegal possession of ammunition), the court imposed a term of incarceration of 1 year, concurrent to Count 2. On Count 17 (wearing, carrying, or transporting a handgun), the court imposed a term of incarceration of three years. The court merged Count 5 (possession of fentanyl) into Count 2 for sentencing purposes.

In the afternoon hours of May 11, 2020, Elkton Police Detectives Dennis Lasassa and Thomas Saulsbury responded to a call at a residence located at 122 Huntsman Drive. Upon arriving at that location, Detective Lasassa observed a large group outside of the residence, including appellant. As the detectives approached the group, appellant ran, and the detectives gave chase. Eventually, the detectives lost sight of appellant. Approximately 45 minutes later, Detective Saulsbury observed appellant coming out of a nearby residence. Appellant was arrested, and, in a search incident to arrest, the police seized a small amount of marijuana, 18 bags of heroin-fentynl mix, and $338.00 in cash. Upon searching the surrounding area, Detective Saulsbury found a small backpack in the backyard of a nearby home. The backpack contained two firearms, ammunition, and a mixture of heroin and fentanyl. Appellant was charged with 18 counts related to the drugs found on his person and the firearms, ammunition, and drugs found in the small backpack.

At trial, the State entered two backpacks into evidence. One was a large black backpack seized from appellant's person when he was arrested. The second was the small backpack recovered by Detective Saulsbury. The large backpack contained clothing, a box of condoms, trash, and mail addressed to appellant. The small backpack contained two firearms (a Ruger and a Beretta), 11 rounds of ammunition, and heroin-fentanyl mix. Detective Lasassa testified that, at approximately 3:00 p.m. on the day in question, he observed appellant standing in front of 122 Huntsman Drive when the detectives initially approached the residence. Three photographs, introduced by the State, depicted the detective's observations as he approached appellant. One of the photographs showed appellant standing on the sidewalk outside of 122 Hunstman Drive. Detective Lasassa testified that appellant can be seen in the photograph carrying "a small backpack." Another photograph showed appellant as he was running away from the scene. The third depicted appellant, once again, carrying "a small backpack."

Detective Saulsbury testified that he observed appellant standing in front of 122 Huntsman Drive at approximately 3:00 p.m. on the day in question. After viewing the three photographs that had previously been admitted into evidence, Detective Saulsbury confirmed that the photographs were an accurate depiction of what he observed upon arriving at 122 Huntsman Drive. Like Detective Lasassa, Detective Saulsbury testified that, in one of the pictures, appellant can be seen wearing "a smaller backpack that's sitting lower on his body" and that, in another photograph, appellant can be seen wearing "a small backpack, that's also sitting lower on his body." Detective Saulsbury testified that appellant fled the scene shortly thereafter.

Detective Saulsbury stated that, approximately 30-40 minutes later, he observed appellant exiting a nearby residence located at 103 Cow Lane. He testified that, at the time, appellant was carrying "a backpack and some bags." The State introduced into evidence another picture, which Detective Saulsbury testified was an accurate depiction of appellant after he exited 103 Cow Lane on the day in question. The detective described appellant in the picture carrying "a different backpack than what was on his back before." Appellant was arrested, and the backpack he was carrying, the larger backpack, was seized.

After appellant was arrested, Detective Saulsbury walked into the backyard of a nearby residence located at 19 Hollingsworth Manor. At trial, he testified that he went to that location to locate "a backpack" and that he found "the backpack" behind a shed between the fence and the backyard. Upon opening the backpack, the detective discovered a Baretta firearm, a Luger firearm, ammunition, and a heroin-fentanyl mix. Detective Saulsbury testified that 19 Hollingsworth Manor was "less than a block away" from 103 Cow Lane, the residence appellant was observed exiting just prior to his arrest.

The State introduced into evidence the backpack that Detective Saulsbury found in the backyard at 19 Hollingsworth Manor, and the detective testified that the backpack looked "very similar" to the backpack that appellant had been seen wearing at 122 Huntsman Drive. Detective Saulsbury testified that he believed that the backpack he had recovered from 19 Hollingsworth Manor was the same backpack that appellant had been carrying prior to his flight from 122 Huntsman Drive, although he added that he "couldn't be a hundred percent sure that it was the same backpack."

James Keay, a special agent for the Bureau of Alcohol, Tobacco and Firearms and Explosives, testified that in June 2020, he ran a trace on one of the firearms found in the backpack discovered by Detective Saulsbury at 19 Hollingsworth Manor. Agent Keay testified that the Ruger semi-automatic pistol inside the backpack had been purchased in

February 2020 by a Sharon Marie Young, who lived in South Carolina. Elkton Police Detective Ronald Odom testified that appellant's mother's name was Sharon Marie Young. At the conclusion of the evidence, defense counsel moved for judgment of acquittal as to Counts 12 and...