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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1560 September Term, 1997

IN RE NAHIF A.

Murphy, C.J. Hollander Smith, Marvin H. (retired, specially assigned), JJ.

Opinion by Smith, J.

Filed: September 14, 1998

We shall here affirm the finding of delinquency by the Circuit Court for Frederick County in a proceeding pertaining to appellant, Nahif A. (Nahif). Two juvenile delinquency petitions were filed against Nahif in that court. The first petition, in case number 9091, accused him of distribution of cocaine, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to possess cocaine. The second petition, in case number 9099, accused him of theft, disorderly conduct, and disturbing school activities. The cases were consolidated for a joint adjudicatory hearing. Case number 9099 was heard first. At the close of that case, the trial judge found that Nahif had committed theft as set forth in the first count and had disturbed school activities as set forth in the third count. The court then went on to hear case number 9091. In that case, the court found that Nahif had distributed cocaine as set forth in count one and had conspired to possess cocaine with intent to distribute as set forth in count five.1 The court adjudicated Nahif delinquent as a result of the findings in both cases. At the subsequent disposition hearing, the court committed Nahif "to the care and custody of the Frederick County Department of Juvenile Justice for placement at Fairbridge," a residential treatment facility. In this appeal, Nahif argues, in essence, that:

The court indicated that it would have found that Nahif conspired to distribute cocaine as set forth in count four, but it had inadvertently granted Nahif's motion for judgment of acquittal on count four when it had intended to grant the motion as to possession of cocaine as set forth in count three.

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I. The juvenile court's finding that he conspired to possess cocaine with intent to distribute was inconsistent with the finding that he did not conspire to possess cocaine, and was barred by the prohibition against double jeopardy, II. The evidence was insufficient to support the juvenile court's findings that he disturbed school activities, committed theft, and conspired to possess cocaine with intent to distribute, and III. The juvenile court abused its discretion by permitting the State to reopen its case during closing argument to establish his age. - Case Number 9099 Case number 9099 stemmed from an altercation that occurred at Heather Ridge School, where Nahif was a student. The State presented evidence that Heather Ridge School is an "alternative school" for youngsters who are not "successful in their home schools for any number of reasons." These reasons include, but are not limited to, behavioral problems. The State presented two witnesses: school support counselor Roger Dawson and assistant principal Perry Baker. Dawson testified that Heather Ridge School provided Nahif with a lunch each day. On March 14, 1997, a lunch was taken to him in the particular school room to which he was assigned. Without requesting permission to do so, Nahif took the lunch back to the cafeteria and informed a cafeteria worker that he wanted a different lunch. The cafeteria worker refused to make an exchange. Dawson, who had witnessed the interaction between Nahif and the worker, testified that he also told Nahif that he could not swap the lunches. Nahif nevertheless left his lunch on the counter and took a different lunch. Baker, the assistant principal, was called to the cafeteria. Baker asked Nahif if he had paid for the second lunch. Nahif answered in the negative and explained that the first lunch
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had consisted of a pork sandwich and that it was against his religion to eat pork. Baker informed Nahif that the sandwich was actually made from turkey. He then asked Nahif to accompany him back to his office. Nahif did walk out of the cafeteria and into a hallway but, according to Baker, "there was a lot of disruption" at that point. Nahif "used lots of profanity in the hallway" and was "being loud, so that other students c[ould not] learn." The police were called to the scene but Nahif "continued to disrupt." Baker testified that Nahif "threaten[ed] both the staff and the police officers. Threaten[ed] to kill us." Dawson, who was present throughout the confrontation, confirmed that Nahif "became loud and started cursing," and that he "was not following staff requests." Nahif testified on his own behalf in case number 9099. He explained that he could not eat the lunch he was given because it consisted of pork. Nahif acknowledged that it "wasn't all right" to take the second lunch because "I didn't ask no permission." He added, however, that he did not think he was stealing since he was entitled to a free lunch and he could not eat the lunch he was given. - Case Number 9091 Case number 9091 arose from a controlled drug transaction that occurred at about 8:30 in the evening on March 27, 1997. The state presented three witnesses: two police officers and a police informant. This time, Nahif presented no evidence in his defense. Officer Gregory Stocksdale told the court that he arranged for the informant, Curtis Lee West, to make a controlled buy. The officer searched West, fitted him with a body wire, gave him $40 in marked bills, and instructed him to drive to All Saints' Street in Frederick
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to purchase a controlled dangerous substance. Stocksdale met with West after the buy and recovered two rocks of crack cocaine from him. Curtis Lee West testified that, when he pulled onto All Saints' Street and stopped his car, one person approached the passenger door and one person approached the driver's door. The person on the passenger side, who was later identified as Richard Thomas Spencer, opened the door and threw the drugs in. He then instructed West to give his money to the person at the driver's door. At trial, West identified Nahif as the person to whom he gave the $40. Another police officer, T.A. Duhan, testified that he observed the entire transaction through binoculars. Officer Duhan stated that he saw West's car drive onto All Saints' Street and stop. He saw Spencer approach the passenger side of the car and Nahif approach the driver's side. Officer Duhan testified that he saw Spencer reach his hand into the car and saw West reach toward Spencer's hand. Spencer then gestured toward Nahif, and West handed money to Nahif. The officer radioed for an arrest team to arrest Nahif and Spencer. After the arrest, the $40 in marked bills were recovered from Spencer's person.

I Inconsistent Verdicts and Double Jeopardy Nahif points out that, before it determined that he conspired to possess cocaine with intent to distribute, the trial court granted his motion for judgment of acquittal as to
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conspiracy to possess cocaine. In granting the motion for judgment of acquittal, the trial judge stated that there was no evidence of a conspiracy to possess. In finding later that Nahif had conspired to possess cocaine with intent to distribute, however, the court stated that there was sufficient evidence "with regard to the conspiracy charges as to the distribution and the conspiracy to possess." Nahif argues that these findings were fatally inconsistent. In addition, he argues that the finding that he conspired to possess cocaine with intent to distribute was barred by double jeopardy principles.2 Neither of these arguments was raised in the court below. In fact, in moving for judgment of acquittal at the close of the case, after the trial judge had granted Nahif's motion as to conspiracy to possess cocaine, defense counsel told the court that the evidence "at best leaves us with the conspiracy to possess with intent to distribute." Counsel later reiterated that "the best the Court has, based on the information -- or these charges -- is the conspiracy to possess with intent to distribute." Under the circumstances, neither argument is preserved for appellate review. See Md. Rule 8-131(a); Carbaugh v. State, 294 Md. 323, 327 n.3, 449 A.2d 1153, 1155 n.3 (1982) ("[A] challenge to concurrent sentences on a

Presumably, Nahif is referring to the doctrine of collateral estoppel. "Collateral estoppel is embodied within the Fifth Amendment's guarantee against double jeopardy. . . . The doctrine of collateral estoppel provides that `when a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties . . . .'" State v. Woodson, 338 Md. 322, 331, 658 A.2d 272, 277 (1995) (citations omitted). See Pugh v. State, 271 Md. 701, 707, 319 A.2d 542, 545 (1974) ("Once a trial judge intentionally renders a verdict of `not guilty' on a criminal charge, the prohibition against double jeopardy does not permit him to change his mind"). See, also, the discussion by Judge Wilner for the Court in Janes v. State, __ Md. __, __, ___A.2d ___, ___ (1998)[No. 104, 1997 Term, filed June 26, 1998, slip op. at 11-13]. -5-

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greater offense and on a lesser included offense must be properly raised or it is deemed waived, regardless of the `knowing and intelligent' standard"); Hewitt v. State, 242 Md. 111, 114, 218 A.2d 19, 21 (1966) (double jeopardy argument based on retrial not preserved for appeal since not raised below); Bell v. State, 220 Md. 75, 81, 150 A.2d 908, 912 (1959) (explaining in dicta that an argument that guilty verdicts for larceny and receiving stolen goods were inconsistent might have been waived since it was not raised below); Acquah v. State, 113 Md. App. 29, 42-43, 686 A.2d 690, 697 (1996) (argument that not guilty verdict for conspiracy to bribe was inconsistent with guilty verdict for conspiracy to gain illegal access to personal records by false pretenses, bribery, or theft was not raised below so not preserved); In Re Darnell F., 71 Md. App. 584, 592, 526 A.2d 971, 975 (argument that court's order that juvenile pay restitution violated double jeopardy principles, in that restitution charge had been reinstated after being dismissed by court, not raised below so not preserved), cert. denied, 311 Md. 144, 532 A.2d 1371 (1987); Howell v. State, 56 Md. App. 675, 678-82, 468 A.2d 688, 689-91 (1983) (argument that retrial constituted double jeopardy not raised below so not preserved), cert. denied, 299 Md. 426, 474 A.2d 218, cert. denied, 469 U.S. 1039 (1984). Hence, the issue is not before us. II Sufficiency of the Evidence Nahif next challenges the sufficiency of the evidence to support the findings that he disturbed school activities, committed theft, and conspired to possess cocaine with intent to distribute.
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In In Re Timothy F., 343 Md. 371, 379-80, 681 A.2d 501, 505 (1996), Judge Bell explained for the Court of Appeals: Judging the weight and the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact. . . . When the trier of fact is the trial court, its judgment on the evidence will be set aside only if it is clearly erroneous. . . . Appellate review of the court's judgment on the evidence is limited to determining whether there is a sufficient evidentiary basis for the court's underlying factual findings. In a criminal case, the appropriate inquiry is not whether the reviewing court believes that the evidence established guilt beyond a reasonable doubt, but rather, 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 . . . This same standard of review applies in juvenile delinquency cases. . . . In such cases, the delinquent act, like the criminal act, must be proven beyond a reasonable doubt. Id. at 379-80 (citations omitted; emphasis in original.). See also Md. Code (1974, 1995 Repl. Vol.),

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