Taylor v. State

926 A.2d 805

175 Md. App. 153

William TAYLOR a/k/a Tavon Getrightson v. STATE of Maryland.

No. 1185, September Term 2005.

Court of Special Appeals of Maryland.

June 28, 2007.

Luba Shur (Williams & Connolly, LLP on the brief), Washington, DC, and (Nancy C. Forster, Public Defender on the brief), of Baltimore, for appellant.

Jeremy M. McCoy (J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before SALMON, ADKINS and BARBERA, JJ.

ADKINS, J.

Md.Code (2002, 2006 Cum.Supp.), section 5-608 of the Criminal Law Article (Crim.) establishes mandatory minimum sentences for second, third, and fourth drug crimes. This cross-appeal by the State requires us to decide whether a repeat drug offender, who was convicted on the same day of two predicate drug felonies, but was not sentenced as a second offender under section 5-608(b) and has not served 180 days of his sentences for those crimes, may be sentenced on a subsequent conviction under the mandatory minimum 10-year sentence enhancement for second offenses. In the circumstances presented here, we hold that a subsequent offender who has not served the requisite 180 days on his second drug crime conviction to qualify for the 25 year minimum sentence for third offenses, but who has not previously been sentenced to the 10-year mandatory minimum sentence for second offenses, should be sentenced as a subsequent offender under Crim. section 5-608(b).

FACTS AND LEGAL PROCEEDINGS

Baltimore City Police Officer Brian Shutt testified that on the afternoon of November 9, 2004, he and Officer Anthony Maggio were passengers in an unmarked police car driven by Officer Frank Nellis. They were traveling in an area known for frequent drug trafficking when they observed pedestrians scattering as they approached. Shutt got out of the car and found a "covert" hiding place where he could observe the area. Maggio and Nellis left the area and waited for Shutt in the vehicle.

Shutt testified as an expert in the field of observation, detection, identification, and packaging of street level narcotics. From a distance of approximately 40 feet, Shutt used binoculars to see what he believed was "an illegal narcotics transaction." He observed a black female approach one of the males, speak with him and then hand him money. That male then spoke with appellant William Taylor (aka Tavon Getrightson), who responded by jogging down Curley Street and then

up some steps of a vacant house. He reached down. He pulled out a plastic bag and from what I could see, I couldn't tell exactly what was in the plastic bag but it was the size and shape . . . that's consistent with illegal narcotics that are sold in that area, either in gel capsules or in small vials. He reached into the bag and pulled his hand out. He put the bag down, back to where he got it. He came back to where this female was waiting and he handed her whatever he took out of the bag.... It was small, the item was . . . larger than a tee; it was smaller than a cigarette and it could be cupped in [Taylor's] hand and he gave it to this female like this and the female left the area in a very hurried manner.

Officer Shutt then called his partners to pick him up. By the time they arrived, Taylor was the only person still in the vicinity of the transaction. Officer Nellis retrieved the bag that Taylor handled, from behind the steps of the vacant house. Subsequent chemical analysis indicated that the bag contained 22 gel capsules of heroin and 44 glass vials of cocaine. Taylor was arrested at the scene.

A jury in the Circuit Court for Baltimore City convicted Taylor of two counts of possession and two counts of possession with intent to distribute controlled substances. After merging the possession offenses into the distribution offenses, the court sentenced Taylor to concurrent terms of 12 years for each conviction, but declined to impose the enhanced mandatory penalties for either second or third offenders under Crim. section 5-608.

Taylor raises one question in his appeal:

I. Was the evidence sufficient to support the convictions?

The State raises the following question in its cross-appeal:

II. Did the sentencing court err in not imposing a mandatory enhanced sentence for second offenders under section 5-608(b)?

We find sufficient evidence for the convictions. We shall remand for re-sentencing, however, because the trial court erroneously believed that the ten-year second offender sentencing enhancement under Crim. section 5-608(b) could not be imposed on Taylor.

DISCUSSION

I. Sufficiency Of Evidence

Taylor argues that the evidence was insufficient to convict him on any charge. He offers three reasons that "Shutt's testimony is neither credible nor sufficient to establish that Mr. Taylor possessed drugs, whether with the intent to distribute them or otherwise." We find none of these persuasive.

As a threshold matter, we agree with the State that Taylor failed to preserve his sufficiency challenge for appellate review. In moving for a judgment of acquittal at the close of the State's case, Taylor's counsel stated as grounds for the motion: "I don't believe the State has satisfied its burden of ... providing sufficient evidence to go any further than this." After resting Taylor's case, defense counsel simply "[r]enewed my motion."

In moving for a judgment of acquittal, "[t] he defendant [must] state with particularity all reasons why the motion should be granted." Md. Rule 4-324(a). Moreover, under Maryland rules and precedent, "review of a claim of insufficiency is available only for the reasons given by appellant in his motion for judgment of acquittal." Whiting v. State, 160 Md.App. 285, 308, 863 A.2d 1017 (2004), aff'd on other grounds, 389 Md. 334, 885 A.2d 785 (2005). When no reasons are given in support of the acquittal motion, this Court has nothing to review. Having failed to challenge the State's evidence on the particularized grounds he now asserts in this appeal, Taylor did not preserve his challenge to the sufficiency of that evidence.

Even if he had done so, we would not reverse the convictions.¹ See, e.g., Rivers v. State, 393 Md. 569, 580, 903 A.2d 908 (2006) (court's task in reviewing sufficiency of evidence is to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt). As Chief Judge Joseph F. Murphy, Jr. explained for this Court in Archie v. State, 161 Md.App. 226, 244-45, 867 A.2d 1120, cert. denied, 387 Md. 462, 875 A.2d 767 (2005),

[i]n order to "possess" a controlled dangerous substance, a person must "exercise actual or constructive dominion or control over [the substance]." Possession need not be immediate and direct but may be constructive. Knowledge of the presence and illicit nature of narcotics may be proven by inferences from the circumstances as a whole. The fact that drugs were not found on the person of the defendant does not prevent the inference that the defendant had possession and control of those drugs. The following factors are relevant to the issue of whether the evidence was sufficient to show that appellant possessed the drugs in question:

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

See also State v. Suddith, 379 Md. 425, 432, 842 A.2d 716 (2004)("the mere fact that the contraband is not found on the defendant's person does not necessarily preclude an inference by the trier of fact that the defendant had possession of the contraband"); Veney v. State, 130 Md.App. 135, 144, 744 A.2d 1094 (drugs found in "close proximity" to the defendant, when accompanied by evidence that the defendant was aware of them and had access to them, can provide a sufficient connection to support an inference of possession), cert. denied, 358 Md. 610, 751 A.2d 472 (2000).

Taylor's threshold challenge to Officer Shutt's credibility rests on his assertion that Officer Shutt "was so far removed from the key events he claims to have observed that he relied on binoculars . . . part of the time" and "could not see the currency that Mr. Taylor received" or what Taylor gave to the unidentified black female. Neither the 40 feet between Shutt and the transaction he observed, nor Shutt's use of binoculars so undermined the credibility of the officer's testimony that it must fail as a matter of law. Cf., e.g., McCoy v. State, 118 Md.App. 535, 537-38, 703 A.2d 237 (1997)(testimony by officer who observed drug transaction through binoculars from 75 ft. away was sufficient to convict), cert. denied, 349 Md. 235, 707 A.2d 1329 (1998); Garrison v. State, 88 Md.App. 475, 477, 594 A.2d 1264 (1991)(evidence that officer observed drug transaction from 45 feet away was sufficient to convict), cert. denied, 325 Md. 249, 600 A.2d 418 (1992).

Nor is reversal required simply because Taylor does not live in the house used in the transaction. Here, possession of the contraband reasonably may be inferred from evidence that an officer trained as an expert in street level drug transactions observed Taylor access and store drugs behind exterior steps to a vacant row-house, precisely where police presently recovered such drugs. The jury could reasonably conclude from this evidence that Taylor was using this location to conceal contraband between drug sales, even if he had no "possessory" connection to that property.

Taylor's next complaint, about lack of "physical evidence linking Mr. Taylor to any controlled substances," is similarly without merit. Possession may be established on the basis of eyewitness testimony such as...