SMITH v. STATE

Dissenting Opinion by GREENE, J., which BELL, C.J. joins.

The majority attempts to distinguish the facts of the present case from Jones v. State, 395 Md. 97, 909 A.2d 650 (2006), on the basis that Jones involved a failure to present evidence on an element of the crime with which the defendant was charged. In Jones, 395 Md. at 118, 909 A.2d at 662-63, the State did not present any evidence to prove breaking, an element of burglary, rather asking the jury to infer a breaking from the State's evidence of the defendant's unauthorized presence in the building. In the majority's view of the present case, the State's evidence that Smith was aware of the marijuana blunt and that the blunt was on a table, within his reach, presented sufficient evidence to satisfy the elements of possession. I disagree. In my view, the State failed to present any indicia of Smith's dominion or control over the blunt, which is a separate and distinct factual question from whether Smith knew that the blunt contained marijuana. We have previously rejected the notion that one's mere presence in the area of contraband, without more, is sufficient evidence to sustain a conviction for possession. See, e.g., Moye v. State, 369 Md. 2, 17-24, 796 A.2d 821, 830-34 (2002). Thus, our holding in Jones, 395 Md. at 120, 909 A.2d at 662-63 clearly applies to the facts of this case, and this Court should hold that Smith's knowledge of and proximity to the presence of marijuana is insufficient to sustain a conviction for possession of marijuana, in the absence of any indicia of his direct or indirect dominion or control over the marijuana.

Md. Code (2002, 2009 Supp.), § 5-101(u) of the Criminal Law Article defines possession or to "[p]ossess" as "exercise [of] actual or constructive dominion or control over a thing by one or more persons." In accord with our precedent, "control [means], 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, ie., that [the accused] exercised some restraining or direct influence over it.'" State v. Suddith, 379 Md. 425, 432, 842 A.2d 716, 720 (2004) (citations omitted).

It is undoubtedly true that one cannot exercise dominion or control over contraband without knowledge of its presence. See Taylor v. State, 346 Md. 452, 463, 697 A.2d 462, 468 (1997). To establish a prima facie case, the State cannot prove that the accused had possession of contraband without proving that the accused also had "[k]nowledge of the presence of [the] object." Taylor, 346 Md. at 460, 697 A.2d at 466 (quoting Dawkins v. State, 313 Md. 638, 649, 547 A.2d 1041, 1046 (1988)). The majority in the present case, however, engages in a flawed analysis by focusing on whether Smith was aware of the presence of contraband, then allowing Smith's mere presence in close proximity to the contraband to serve as a substitute for the requisite element of dominion or control over the contraband. Mere knowledge of the presence of contraband is not a substitute for participation in the use and enjoyment of that substance anymore than it is evidence of participation, and it is likewise insufficient to demonstrate a restraining or direct influence over the substance. Moreover, it is well settled non-constitutional law in Maryland that one's mere presence at the scene of a crime without more is insufficient evidence of one's participation in a crime. See, e.g., Pope v. State, 284 Md. 309, 331-33, 396 A.2d 1054, 1067-68 (1979).

The State must prove that Smith had a restraining or direct influence over the contraband in some way. For example, our decision in Moye, 369 Md. at 17-24, 796 A.2d at 830-34, considered both Moye's knowledge of the presence of drugs and whether he exercised restraining or direct influence over the contraband through a right of ownership or possession of the property where the contraband was recovered. Moye further demonstrates that evidence of mere presence in the home is insufficient to establish either knowledge of the contraband or a possessory interest in the area where officers found contraband. Further, our decision in White v. State, 363 Md. 150, 164-67, 767 A.2d 855, 863-64 (2001), noted both that White was not aware of cocaine stowed in a box of pots and pans in a vehicle in which he was a passenger and that White had "limited access and no possessory interest in the vehicle," thus demonstrating his lack of dominion and control over the cocaine. (Emphasis added.)

In my view, knowledge of the presence of contraband and indicia of a restraining or direct influence are separate and distinct elements of the crime of possession. Evidence to establish one element does not necessarily establish the other. For example, in Garrison v. State, 272 Md. 123, 141-42, 321 A.2d 767, 776-77 (1974), we reversed Garrison's conviction when the State proved that Garrison had a possessory interest in the apartment where contraband was recovered without proving that she had knowledge of the presence of contraband. Although the contraband was in an area that was within the scope of Garrison's control, there was no evidence that she knew about the contraband. Id. Thus, Garrison confirms that knowledge or awareness of the presence of contraband is the required mental state or mens rea for the crime of possession. See also Taylor, 346 Md. at 460, 697 A.2d at 466-68. The majority, however, chooses to turn our settled jurisprudence on its head by adopting a principle that, in effect, allows the required mens rea, i.e. knowledge or awareness of the illicit substance, for the crime of possession, to serve as a substitute for, or evidence of, the element of dominion and control in possession cases.

Furthermore, the majority's reliance on State v. Smith, 374 Md. 527, 557-59, 823 A.2d 664, 682-83 (2003), is misplaced. In Smith, this Court held that the State presented sufficient evidence to convict Smith of knowingly transporting a handgun. Id. The State did not present any evidence directly connecting Smith to the gun, which was in the backseat of the vehicle he was driving, but presented evidence that Smith had a possessory interest in the vehicle. Smith, 374 Md. at 550, 823 A.2d at 677-78. We held that "[a] rational fact-finder may infer that, generally, an owner/driver of a vehicle has knowledge of the contents of that vehicle," thus supporting an inference that Smith knowingly transported the handgun. Smith, 374 Md. at 559, 823 A.2d at 683. Although I generally agree with our statement in Smith, 374 Md. at 534, 823 A.2d at 668 cited by the majority, that the finder of fact has the "ability to choose among differing inferences that might possibly be made from a factual situation," the fact finder may not draw any inferences if no facts are presented. In the present case, the State did not present any facts, direct or circumstantial, demonstrating indicia of Smith's dominion or control over the marijuana blunt. Accordingly, our holding in Jones, 395 Md. at 120, 909 A.2d at 662-63, in which we held it was pure speculation to determine that there had been a breaking when the State presented no direct or circumstantial evidence of a breaking, applies to the facts of this case.

The majority also relies on our holding in Suddith, 379 Md. at 446-47, 842 A.2d at 728-29, that a jury reasonably inferred that the occupant of a stolen vehicle from which contraband was recovered possessed the contraband. Assuming arguendo that Suddith was correctly decided, the facts of Suddith differ significantly from the facts of the present case. In Suddith, 379 Md. at 427-28, 842 A.2d at 717-18 the defendant was in a stolen vehicle that contained a large quantity of contraband, which included paraphernalia used in manufacturing and dispensing drugs as well as the drugs themselves. This Court held that the quantity of drugs found within the vehicle permitted an inference that the defendant was aware of the presence of drugs in the vehicle. Suddith, 379 Md. at 444-45, 842 A.2d at 727-28. Further, and more importantly, the combination of the stolen vehicle, the large quantity of drugs, the paraphernalia used for manufacturing and dispensing drugs, and items found on the defendant's person permitted an inference that the defendant had dominion or control over the drugs as part of a common criminal enterprise with the other passengers in the vehicle. See id. In short, the Court reasoned that Suddith's presence in the vehicle with the drugs was not innocent; rather, it was the product of his participation in a criminal enterprise with the other passengers. See Suddith, 379 Md. at 445 n. 7, 842 A.2d at 727 n. 7.

Unfortunately, the majority, in the present case, takes a step beyond Suddith, and, in my view, seems to favor speculation and conjecture over evidence and facts. In the present case, there is no evidence to suggest that Smith was participating in any sort of common criminal enterprise while he was sitting at the table, nor was there any evidence suggesting that his presence at 1932 Lanvale Street had any nefarious purpose. Further, the State did not present any evidence, other than Smith's presence at the table, that Smith was engaging in the mutual use and enjoyment of the marijuana in question. From Smith's presence within arm's length of a burning marijuana blunt, with nothing more, the jury was asked to infer that the defendant exercised restraining or direct influence over the blunt. This inference is nothing but conjecture based on "strong suspicion or mere probability." Bible v. State, 411 Md. 138, 157, 982 A.2d 348, 359 (2009) (quoting Taylor, 346 Md. at 458, 697 A.2d at 465). Not only is this holding in opposition to our decisions in Moye, 369 Md. at 17-24, 796 A.2d at 830-34, and White, 363 Md. at 166-67, 767 A.2d at 863-64, where mere presence in an apartment or a car was held insufficient to establish a possessory interest in these locations, it also defies a common sense understanding of what constitutes dominion or control over an object.

The majority's holding relies heavily on the fact that the marijuana blunt was within Smith's reach and thus accessible to him. Employing that logic, the contraband was within the reach of everyone in the area from where the blunt was retrieved, including the police officers on the scene. The majority's holding would make the officers on the scene subject to prosecution for possession of a controlled dangerous substance. By allowing mere presence within arm's length of an object, without more, to permit an inference of restraining or direct influence over the object goes against all basic notions of courtesy and how polite societies function. Ordinarily people are taught from a tender age, just because an object is within one's grasp does not mean, without more, that the object belongs to that person or that the person has the right to possess that object. This is particularly true when the person in question is a visitor in another's home, as Smith apparently was in this case. Without evidence that Smith mutually used or enjoyed the marijuana with the other individuals at the table, or some other evidence that Smith exercised restraining or direct influence over the marijuana, inferring possession merely from his proximity to the marijuana is nothing but conjecture.

Because there is no evidence of Smith's mutual use or enjoyment of the marijuana with the other individuals at the table, the majority's holding would permit the trier of fact to infer his dominion or control over the marijuana from his presence at the scene of the alleged crime. It is well settled that one's presence at a crime scene, without some evidence of participation, aid, counsel, or encouragement of the crime, is insufficient to sustain a conviction. Pope, 284 Md. at 331-33, 396 A.2d at 1067-68. The majority distinguishes our holding in Pope from the present case on the basis that in the present case, "[Smith] was not convicted as a principal in the second degree." This is an obscure distinction. Regardless of whether the accused is charged with committing the offense as a principal, as in all misdemeanors such as the present case, or as a principal in the second degree, as may be the case when the alleged crime is a felony, the State must prove that the accused took some action demonstrating his or her participation in the crime. See State v. Williams, 397 Md. 172, 197, 916 A.2d 294, 309 (2007) (holding that a defendant may be convicted of misdemeanors or felonies arising out of a criminal enterprise that he embraced and actively aided). Without some action, there cannot be a completed crime, even if the accused has the required mens rea for the offense. To prove that the accused was a principal in the second degree, the State must present evidence, direct or circumstantial, that the accused "participate[d] in the commission of the felony by aiding, commanding, counseling or encouraging the actual perpetrator." Pope, 284 Md. at 331, 396 A.2d at 1067 (citing R. PERKINS, CRIMINAL LAW 658-59 (2d ed. 1969) (footnote omitted)). Similarly, to prove that the accused possessed a controlled dangerous substance, the State must present evidence that the accused took some action demonstrating his dominion or control over the contraband. Moye, 369 Md. at 17-24, 796 A.2d at 830-34; White, 363 Md. at 164-67, 767 A.2d at 863-64.

In Pope, 284 Md. at 331-32, 396 A.2d at 1068 (citations omitted), we held that there was insufficient evidence to sustain a conviction when the State failed to present any evidence that Pope "manifested by acts, words, signs, motions, or any conduct which . . . evince[d] a design to encourage, incite, or approve of the crime" other than her presence when the crime was committed. What the present case has in common with Pope, and where it is distinguishable from Williams, 397 Md. at 195, 916 A.2d at 309, and Suddith, 379 Md. at 444-45, 842 A.2d at 727-28, is that in this case, the State failed to present any evidence that Smith participated in the mutual enjoyment of the marijuana blunt, or otherwise participated in any sort of criminal activity or criminal enterprise. Thus, pursuant to our holding in Pope, 284 Md. at 331-33, 396 A.2d at 1067-68, the evidence presented against Smith is insufficient, as a matter of law, to convict him.

I disagree with the majority's assertion that, if this Court requires evidence of dominion or control beyond presence and proximity to the contraband, a defendant "may not be convicted of possession unless the [marijuana] blunt was found in his hand (or in his biological system perhaps) or he confessed to the police that he possessed marijuana." This is no more than a strawman argument. There are any number of ways that the State could demonstrate, through circumstantial evidence, that a defendant had restraining or direct influence over the marijuana, provided the evidence is available. For example, the prosecution could present evidence of a defendant's mutual use or enjoyment of the marijuana; forensic evidence connecting the defendant to the marijuana blunt; evidence that the defendant possessed objects related to marijuana consumption, such as rolling papers or a pipe; evidence that a defendant was actually under the influence of marijuana at the time of the alleged possession (rather than the use of innuendo or guesswork); or evidence that the defendant had a possessory interest in the premises where the drugs were found. In short, the State must present some evidence that the defendant took some action which demonstrated his restraining or direct influence over the marijuana. Mere presence, even with knowledge that the blunt contained marijuana, will not suffice for evidence of action or participation in the crime of possession.

Although, in the immortal words of Mr. Mackey, "[d]rugs are bad," the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs. It is unreasonable to infer from Smith's proximity to others who are or may have been using marijuana that Smith possessed marijuana on the basis of his association. Thus, because the State has not presented any indicia of Smith's restraining or direct influence over the marijuana blunt, I would reverse the judgment of the Court of Special Appeals.

Chief Judge BELL joins this dissent.