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Case Number: No. 116
Judge: James R. Eyler
Court: IN THE COURT OF SPECIAL APPEALS OF MARYLAND
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Description: Elkton, Maryland - Criminal Defense Attorney, manufacture of crack cocaine, possession of crack cocaine, possession of heroin, possession of Suboxone,and possession of paraphernalia
A single witness testified at appellant’s bench trial: Maryland State Trooper
Michael Dowling. According to Trooper Dowling, he, along with “seven [or] eight”
1 According to the testimony, Suboxone is a controlled substance used in opiate
2 The court sentenced appellant to twelve years’ imprisonment for manufacture of
crack cocaine, merged the conviction for simple possession of the same drug, and
suspended the sentence on the remaining convictions.
other law enforcement officers, executed a no-knock search warrant at an Elkton
apartment after confirming that a controlled purchase of crack cocaine had occurred
there. When they entered, the officers observed that the apartment contained a common
area as well as two bedrooms and a bathroom. Appellant and a sixteen-year-old girl were
in one bedroom, and an “adult male” and an “adult female” were in the other. Although
Trooper Dowling was “unsure” whether the other couple “were sleeping or not,” he
testified that appellant and the juvenile were awake.
The officers recovered $778 in United States currency, in a wallet, which was on
a television stand in appellant’s bedroom. Appellant acknowledged that the currency
belonged to him but maintained that it “came from his music proceeds.” On that same
television stand, officers recovered mail that was addressed to appellant at the residence
where the search warrant was executed. “[A]long with the wallet” was a “suboxone
sublingual strip.” Three additional strips were found “underneath [appellant’s] bed in a
bag with other CDS.” Appellant did not have a prescription for the Suboxone strips.
In addition to the Suboxone strips, the “clear bag” found beneath appellant’s bed
contained eighteen smaller “bags of blue wax folds containing” heroin and a “bag of
[crack] cocaine.” A bag of marijuana was found on a “futon in plain view right beside
the bed[.]” In a microwave oven in appellant’s bedroom, police officers found a Pyrex
“measuring cup containing white residue,” which was determined to be crack cocaine.
On top of the microwave were “two measuring cups,” a spoon, and baking soda, which,
according to Trooper Dowling, were used to manufacture crack cocaine.
In addition to the aforementioned physical evidence seized from appellant’s
bedroom, to which Trooper Dowling testified, two digital scales also were recovered.
Although Trooper Dowling was never asked about them, and he did not mention them
during his testimony, a forensic laboratory report, prepared by a Maryland State Police
forensic scientist, was admitted into evidence. That report noted that two scales had been
submitted along with the other physical evidence seized from appellant’s bedroom.
Trooper Dowling testified that all the physical evidence seized had been recovered from
After Trooper Dowling finished testifying, the State rested. After the defense
moved for judgment of acquittal, and the court denied its motion as to all counts except
Count 1 (possession of crack cocaine with intent to distribute), the defense called the
juvenile girl as a witness. Because the court was concerned that she might have grounds,
under the Fifth Amendment, to refuse to testify, the court recessed so that it could appoint
counsel to represent her. She ultimately exercised her right not to testify. Nine days after
trial had commenced, the court rendered its verdict:
THE COURT: All right. Well, with regard to the testimony -- and
again, we’re looking at constructive possession here -- you know, the
factors that the Court looks at, the proximity of the defendant and the
contraband. And again, based on the testimony of Trooper Dowling, he
executed a search warrant at 859 East Old Philadelphia Road on January
30th of 2018, and found Mr. Rivera in the second bedroom undressed in
And then from there he described what was seized. Underneath the
mattress they found two bundles of suspected heroin, and this is all from
the same bedroom. On top of the microwave was a digital scale. On the
TV stand was currency in the amount of $778. They found documents,
mail, other items with the defendant’s name. Another digital scale.
They found measuring cups containing white residue, spoons,
baking soda and plastic bags. Suboxone strips were found under the
mattress. No prescription was found. And again, a bag of cocaine and
marijuana were underneath the bed. There was crack cocaine found inside
the microwave in that Pyrex cup.
And then based -- and he gave testimony with regard to how you
make crack cocaine and what items are used and how it’s made using the
So again, based on -- and I recall the officer testifying that, again, a
lot of these items, obviously not the items found underneath the mattress,
but the other items found on the nightstand and on the TV stand were all in
Again, if you take that in light of the fact that the defendant was
there, he was sleeping, there was mail and items with his identification on
it in that residence.
So based on the Court’s consideration of all of these factors and the
testimony of Trooper Dowling, the Court is convinced beyond a reasonable
doubt that the defendant is guilty of Counts 2 through 6.
(Emphasis added.) The matters in bold font were not in evidence. Appellant did not
object. After the court imposed sentence, this timely appeal followed.
Appellant claims that the circuit court’s judgments must be reversed because, in its
verdict, the court relied, in part, upon facts not in evidence; therefore, the court clearly
erred. The State does not address the merits of this claim, instead countering that it was
not preserved for our review because no objection was lodged below.
We have not located a reported Maryland appellate opinion in which the holding is
on point. The precise issue before us is whether, after a bench trial, assuming the
evidence is legally sufficient to sustain the convictions, a defendant has to object when
the court, in its verdict, relies on matters not in evidence.
Ordinarily, an objection or other appropriate action is required to preserve an issue
for appellate review. See Md. Rule 4-323(c); Bryant v. State, 436 Md. 653, 669 (2014).
The preservation issue before us is governed by Md. Rule 8-131(c). It provides:
(c) Action Tried Without a Jury. When an action has been tried without
a jury, the appellate court will review the case on both the law and the
evidence. It will not set aside the judgment of the trial court on the
evidence unless clearly erroneous, and will give due regard to the
opportunity of the trial court to judge the credibility of the witnesses.
To provide context to interpret Rule 8-131(c), we briefly set out the history of
appellate review of evidentiary sufficiency. Prior to 1950, appellate review of
evidentiary sufficiency in Maryland criminal cases was not permitted. Williams v. State,
5 Md. App. 450, 453 (1968) (citations omitted), cert. denied sub nom. McClelland v.
State, 252 Md. 731 (1969), cert. denied sub nom. McClelland v. State, 252 Md. 731, cert.
denied, 252 Md. 734. In the case of jury trials, such review was deemed to be barred by
Article XV, section 5,3 of the Constitution of Maryland, which then provided: “In the
trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.” Id.
(footnote omitted) (citations omitted). As for bench trials,
3 Article XV, section 5, was later re-codified as the first paragraph of Article 23 of
the Maryland Declaration of Rights. It is the same constitutional provision that was the
subject of Unger v. State, 427 Md. 383 (2012), and its progeny. Prior to the decision of
the Court of Appeals in Stevenson v. State, 289 Md. 167 (1980), that provision was
interpreted quite literally, with only two court-created exceptions: whether a statute
enacted by Congress or the General Assembly was constitutional; and whether evidence
was admissible. Unger, 427 Md. at 412.
by analogy to the constitutional provision, it was repeatedly held by the
Court of Appeals that it would not pass on the legal sufficiency of the
evidence to convict where the case was tried by the court sitting as a jury.
Id. (citations omitted).
In 1949, the General Assembly enacted an amendment to Article XV, section 5,
expressly permitting a court to rule on the sufficiency of the evidence in a criminal case
tried by a jury.4
1949 Md. Laws, ch. 407. That amendment was ratified by the electorate
in 1950 and became effective December 1, 1950, upon gubernatorial proclamation.
Williams, 5 Md. App. at 454 n.7. At the same time, the General Assembly enacted an
enabling statute, contingent on the passage of the constitutional amendment, providing
for demurrers in criminal trials, the antecedent to what is now a motion for judgment of
1949 Md. Laws, ch. 596, § 655A. Subsequently, the Court of Appeals held
that in a criminal case tried by a jury, appellate review of evidentiary sufficiency is
predicated upon a trial court’s denial of a motion for judgment of acquittal.6
4 As amended, the constitutional provision stated (and still states): “In the trial of
all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the
Court may pass upon the sufficiency of the evidence to sustain a conviction.”
5 The modern-day version of that statute is Criminal Procedure Article, § 6-104.
The Court of Appeals has adopted Rule 4-324, which implements the statutory provision.
6 Every version of the enabling statute has contained language expressly providing
for appeal upon denial of a defendant’s motion for judgment of acquittal (or, in the case
of the original statute, his request for a jury instruction). See Md. Code (2001, 2018
Repl. Vol.), Criminal Procedure Article (“CP”), § 6-104(b)(2); Md. Code (1957, 1967
Repl. Vol., 1968 Cum. Supp.), Art. 27, § 593; Md. Code (1957, 1963 Cum. Supp.), Art.
27, § 593; Md. Code (1957), Art. 27, § 593; Md. Code (1951), Art. 27, § 700.
Lotharp v. State, 231 Md. 239, 240 (1963) (per curiam). That remains true today. Starr
v. State, 405 Md. 293, 302 (2008) (citing Lotharp).
Meanwhile, the Court of Appeals adopted the General Rules of Practice and
Procedure (“G.R.P.P.”), effective January 1, 1950. Williams, 5 Md. App. at 453. Rule
7(c) of Part Four, relating to Criminal Rules, thereafter provided, in the case of bench
When a criminal charge has been so tried by the Court [i.e., sitting
without a jury], an appeal may be taken as provided by law. Upon appeal
the Court of Appeals may review upon both the law and the evidence
to determine whether in law the evidence is sufficient to sustain the
conviction, but the verdict of the trial court shall not be set aside on the
evidence, unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the witnesses.
As of 1957, a similar rule appeared as Rule 886 a:
When an action has been tried by the lower court without a jury, this
Court [i.e., the Court of Appeals] will review the case upon both the law
and the evidence, but the judgment of the lower court will not be set aside
on the evidence unless clearly erroneous and due regard will be given to the
opportunity of the lower court to judge the credibility of the witnesses.
The principal difference between G.R.P.P. Rule 7(c) and Rule 886 a was that the latter
applied to appeals from bench trials generally, both in criminal and civil cases. Thus,
Rule 886 a no longer contained express references to criminal cases or to the sufficiency
of the evidence. As applicable to criminal cases tried without a jury, there is no
indication that any substantive change was intended. And, as can readily be seen by
comparison of Rule 886 a and modern-day Rule 8-131(c), there has been essentially no
change in the rule since 1957.
It has always been true, and remains so today, that there is no preservation
requirement for sufficiency claims in cases tried without a jury. As the Williams Court
observed, in interpreting a rule substantially similar to Rule 8-131(c),7
the issue [of sufficiency] comes before us in a case tried by the lower court
sitting as a jury in a different posture than when the case is tried by a jury.
In a non-jury case Rule 1086 specifically provides that we shall review the
case upon the evidence (as well as the law) and we must determine whether
the lower court was clearly wrong on the evidence in finding a verdict of
guilty. In a jury case if the lower court finds upon motion for judgment of
acquittal that the evidence is sufficient in law to justify a conviction, it
denies the motion, and permits the evidence to go to the jury. On appeal
we determine whether the denial of the motion was proper. It is because of
this difference in the posture of the issue of the sufficiency of the
evidence that we may entertain the issue on appeal in a jury case only
upon the denial by the lower court of a motion for judgment of
acquittal but we must entertain the issue in a non-jury case when
presented on appeal even in the absence of a motion for judgment of
Williams, 5 Md. App. at 455-56 (footnotes omitted) (emphasis added).
More recently, shortly after the 1984 Rules re-codification, the Court of Appeals,
in Ennis v. State, 306 Md. 579 (1986), explained the policy rationale underlying the
differential treatment of sufficiency claims in bench trials versus jury trials. Ennis had
been convicted by a jury of arson. Id. at 581. At trial, she had made a motion for
judgment of acquittal at the close of the State’s case, presented evidence on her own
behalf, and then failed to renew her previous motion. Id. at 582-83. On appeal, she
7 At the time Williams was decided, separate rules, Rule 886 a (applicable in the
Court of Appeals) and Rule 1086 (applicable in this Court), governed review of cases
tried by a court sitting without a jury. Those rules otherwise were substantively identical,
and both rules are substantially similar to modern-day Rule 8-131(c).
claimed that the evidence had been insufficient, but we declined to consider the claim,
holding that review was barred by Art. 27, § 5938
and Rule 4-324. Ennis, 306 Md. at
Ennis sought review in the Court of Appeals, claiming that the differential
treatment of sufficiency claims in jury trials as compared with bench trials denied her due
process and equal protection of the law. In rejecting Ennis’s challenge and affirming the
judgment, the Court of Appeals explained:
A moment’s reflection makes it evident that an undeniable purpose
of Rules 886 and 1086 is to preclude the possibility that an arbitrary
conviction will be entered by a single judge where the evidence sustaining
the defendant’s conviction is insufficient at law. The basic demands of due
process and fundamental equity mandate that appellate review of such cases
Id. at 596.
In deciding the preservation issue in this case, we must bear in mind that appellate
review of sufficiency has evolved since G.R.P.P. Rule 7(c) was first adopted. A question
such as the one we are now facing was unlikely to arise during the first few decades after
promulgation of the rule. It was not until the decision of the Supreme Court in Burks v.
United States, 437 U.S. 1, 18 (1978),9
that an appellate holding of evidentiary
insufficiency barred a retrial of a criminal case. Prior to Burks, an appellate holding that
8 The current version of this statute is Maryland Code (2001, 2018 Repl. Vol.),
Criminal Procedure Article, § 6-104.
In Burks, the Supreme Court held that the Double Jeopardy Clause “precludes a
second trial once [an appellate] court has found the evidence legally insufficient[.]”
Burks, 437 U.S. at 18.
the evidence was insufficient to sustain a conviction did not preclude a retrial in all cases.
See Gray v. State, 254 Md. 385, 388 (1969) (observing that, “[s]ince this Court has had
the power to review the sufficiency of the evidence it has done so in a number of cases,
and when it has reversed for insufficiency its course has not been uniform”), cert. denied,
397 U.S. 944 (1970); id. at 393 (concluding that “the practice of remanding for a new
trial after reversal for insufficiency of the evidence rather than remanding for entry of a
judgment of acquittal, is permissible”).10
Gray collected cases in which the Court of
Appeals had remanded for new trials after concluding that the evidence was insufficient
to sustain the convictions, id. at 388 n.1, and correctly noted, without citation, that this
Court had “followed the same course.” Id. at 388.11
Thus, a claim that a trial court had considered matters not in evidence in rendering
a verdict, prior to Burks, would have been subsumed within review of evidentiary
sufficiency. See, e.g., Corbett v. State, 4 Md. App. 269, 274 (1968) (in reversing for
insufficient evidence because the trial court had relied upon matters not in evidence, the
Court observed that it was “possible that the same determination would have been
10 In Gray, the Court of Appeals applied the now-obsolete rule that, “if the record
before the Court of Special Appeals indicates that additional probative evidence of guilt
can be adduced by the State at another trial necessitated by the insufficiency of the
evidence, a new trial should be awarded after a reversal if the interests of justice appear
to require it,” but that, “[i]f the record indicates that no additional probative evidence can
be so adduced, the entry of a judgment of acquittal should be directed.” Gray, 254 Md. at
11 See, e.g., Duppins v. State, 17 Md. App. 464 (1973) (reversing judgment for
insufficient evidence and remanding for new trial); Nichols v. State, 5 Md. App. 340
(1968) (same); Corbett v. State, 4 Md. App. 269 (1968) (same).
reached on the other evidence, but we cannot thus place ourselves in the position of the
trial judge and ignore what he said”).
More recently, in the context of a sentencing hearing, the Court of Appeals
addressed the scope of appellate review under Rule 8-131(c) in Bryant v. State, supra,
436 Md. 653. Bryant had been sentenced, as a repeat offender, to an enhanced sentence
for distribution of cocaine and conspiracy to distribute cocaine. Id. at 656-57. On
appeal, he claimed that the State had failed to prove that he had been the person who had
committed two predicate offenses because there were discrepancies in dates of birth and
SID numbers12 in the evidence introduced by the State. Id. at 672-73. Although Bryant
had not raised this claim during the sentencing hearing, he contended that he was entitled
to review under Rule 8-131(c). The Court of Appeals rejected that contention, declaring
that “Rule 8-131(c) neither expressly nor implicitly provides an exception to our general
preservation rules or the contemporaneous objection rule.” Id. at 669.
We draw the following conclusions: From its origins up to the present day, it
appears that the purpose of Rule 8-131(c), as applied to appellate review of verdicts
rendered in criminal cases tried without a jury, always has been to allow review of
12 “SID number” stands for State Identification number. In State v. Dett, 391 Md.
81 (2006), the Court of Appeals explained how a SID is used:
A SID (State Identification) number is a unique number directly linked to
an individual’s fingerprints. Because of that link, no two persons should
have the same SID number; nor, if the proper procedures are followed,
should a person ever have more than one SID number.
Id. at 85 (footnote omitted).
sufficiency of the evidence without requiring either an objection or a motion for
judgment of acquittal below. Ennis, 306 Md. at 596; Duppins v. State, 17 Md. App. 464,
466-67 (1973). The Court of Appeals strongly suggested in Bryant, however, that it
would reject attempts to expand the scope of review under Rule 8-131(c) beyond its
historical role. Bryant, 436 Md. at 669. We shall take this suggestion and hold that the
contemporaneous objection rule applies to a claim that a trial court relied upon matters
not in evidence in rendering a verdict in a bench trial.13
Because appellant made no such
objection below, his claim was not preserved for our review.
Considering only the evidence that was admitted, we next determine whether it
was sufficient to sustain the verdict. We apply the now-familiar standard, articulated in
Jackson v. Virginia, 443 U.S. 307 (1979), which requires us to determine “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.” Id.
at 319 (citation omitted).
Appellant contends that the evidence was insufficient to prove that he possessed
any of the contraband seized from his dwelling. “‘Possess’ means to exercise actual or
constructive dominion or control over a thing by one or more persons.” Md. Code (2002,
13 Massey v. State, 173 Md. App. 94 (2007), does not require a different
conclusion. Although the opinion in that case reflects no objection by the defendant, the
issue of preservation was apparently not raised. It was only in that context, then, that we
addressed Massey’s claim that the court had considered matters not in evidence
separately from his claim of evidentiary insufficiency.
2012 Repl. Vol. 2017 Supp.), Criminal Law Article, § 5-101(v). Knowledge is “an
element of the offenses of possession of a controlled dangerous substance and possession
of controlled paraphernalia” under the Maryland Controlled Dangerous Substances Act,
Title 5 of the Criminal Law Article. Dawkins v. State, 313 Md. 638, 639-40, 651 (1988).
Specifically, in determining whether evidence is sufficient that a defendant
knowingly possessed contraband, we consider the following factors: (1) “the defendant’s
proximity to the drugs”; (2) “whether the drugs were in plain view of and/or accessible to
the defendant”; (3) whether there were “indicia of mutual use and enjoyment of the
drugs”; and (4) “whether the defendant has an ownership or possessory interest in the
location where the police discovered the drugs.” State v. Gutierrez, 446 Md. 221, 234
(2016) (citation and quotation omitted).14
The evidence was that the following was seized from the bedroom in which
appellant was located: Suboxone strips, one of which was in appellant’s wallet; a baggie
containing cocaine; a baggie containing a white powder residue; 18 baggies containing
heroin; a bag containing marijuana which was in plain view on a futon; two digital scales
containing white powder residue; and measuring cups and baking soda, some of which
was in plain view.
14 These factors sometimes are called the Folk factors, after the decision in our
Court by Judge Moylan, Folk v. State, 11 Md. App. 508, 518 (1971), which first
articulated them. Although Folk was decided prior to Dawkins, those factors are entirely
consistent with Dawkins and are still applied today. The key point is whether we may
infer, from all the circumstances, that an accused knowingly possessed the contraband at
There is ample evidence of appellant’s proximity to all the contraband. Much of it
was found underneath his bed, and all of it was found in his bedroom. One of the
Suboxone strips was found in his wallet, along with cash, which he admitted to
possessing. All the contraband was either in plain view or accessible to appellant.15
there was no testimony establishing precisely where the scales were found is of no
moment; it is enough that there was evidence that they were found in appellant’s
bedroom, since, under the circumstances (that is, that other related contraband, used to
manufacture crack cocaine, was found in plain view), the fact finder could infer that the
scales belonged to appellant. The third factor is not particularly relevant here; we note
only that its absence cannot be dispositive, or else a defendant could never be found to
possess drugs that he was not consuming. Finally, there is evidence of the fourth factor,
namely, the envelope addressed to appellant at the residence where the contraband was
Outcome: We conclude that the evidence was sufficient to sustain the convictions of all the