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In Re: Timothy F. No. 67, September Term, 1995 [CRIMINAL LAW - SUFFICIENCY OF THE EVIDENCE - THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE PETITIONER POSSESSED A NONCONTROLLED SUBSTANCE WITH THE INTENT TO DISTRIBUTE IT AS A CONTROLLED DANGEROUS SUBSTANCE]

IN THE COURT OF APPEALS OF MARYLAND NO. 67 SEPTEMBER TERM, 1995

___________________________________

IN RE:

TIMOTHY F.

___________________________________ Murphy, C. J. Eldridge Rodowsky Chasanow Karwacki Bell Raker

JJ. ___________________________________ OPINION BY BELL, J. RAKER, J., DISSENTS. ___________________________________

FILED:

August 28, 1996

The issue that Timothy F., the petitioner, submits for our resolution is whether the evidence presented to the Circuit Court for Queen Anne's County, sitting as a Juvenile Court, was

sufficient to support the finding by that court that he possessed a noncontrolled substance with the intent to distribute it as a controlled dangerous substance. On appeal, in an unreported

opinion, the Court of Special Appeals held that it was and, therefore, affirmed the juvenile court's delinquency judgment. Having granted the writ of certiorari at the petitioner's request, we shall reverse. I. Armed with information from a student that the petitioner, a sixth grader and, at the time, 12 years old,1 was in possession of a controlled dangerous substance (CDS), the assistant principal of Centreville Middle School searched him. That search uncovered a

medicine pill bottle containing two pieces and three crumbs of a white substance that looked like crack cocaine. said that it was dried "milk chips." The petitioner

Laboratory analysis having

confirmed that the substance was not crack cocaine or any other CDS, a delinquency petition was filed charging the petitioner with possession "with intent to distribute a non-controlled substance intended for use or distribution as a controlled dangerous

substance."

The petitioner was born on October 5, 1981 and the incident at issue occurred on February 8, 1994. The delinquency petition was filed on March 23, 1994.

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2 In addition to the above facts, the State offered testimony at the delinquency hearing that the petitioner said that he got the "milk chips" from Stanley and that he, in turn, gave some of it to Giovanni W.2 Other testimony established that Giovanni, another

sixth grader, and Stanley, an eighth grader, were brought to the principal's office at, however, different times. Giovanni had in

his possession a brown prescription bottle, containing two or three pieces of the same substance that the petitioner had. principal that it was "soap chips." He told the

Stanley's bottle was white.

In it, as in the petitioner's and Giovanni's, were several pieces of the same substance. "fake crack." The State also presented expert testimony. The State trooper Stanley volunteered that the substance was

who was called to the school in response to the discovery of the subject non-controlled substances, testified that the recovered substances looked "exactly like" crack cocaine. Another trooper

confirmed that assessment, although he acknowledged that he, and anyone who "kn[e]w what crack cocaine is", could tell the

difference.

That trooper further testified that a piece of crack

cocaine identical in size to the piece found in the petitioner's pill bottle would have a street value of $20 and "the crumbs you give away for five or ten dollars." Moreover, he opined that the

The petitioner was tried, jointly, with Stanley T. And Giovanni W. Neither Stanley nor Giovanni, however, is involved in this appeal.

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3 manner in which the substance was packaged indicated that it was intended for distribution: "a lot of people that carry crack cocaine or any kind of CDS carry it in a container like [the pill bottle the petitioner was carrying], it keeps it from being

crushed" and that "every time I see [drug dealers] they're always selling with a container like this." A user does not keep crack in

such a container, he asserted, unless he or she is a "user seller." Finally, the State presented evidence, through a trooper who also was one of the instructors of the Drug and Alcohol Resistance Education Program (DARE) course given at the Middle School. He

testified that he instructed his students as to the nature and appearance of crack cocaine and how it is packaged for distribution and that he showed them facsimile crack cocaine. He testified

further that Timothy and Giovanni had taken the DARE course, and thus were aware of these facts. Although uncertain about Stanley,

that witness stated that it was likely that he too had taken the course since it is a mandatory course and Stanley was in the eighth grade. The defense presented no evidence; however, in closing

argument, the petitioner's attorney argued, in conformance with the State's characterization of their activity, that the petitioner and his schoolmates were "play-acting" as drug dealers. He concluded,

therefore, that they did not possess the noncontrolled substance with the intent of distributing it for use or distribution as CDS. In finding the petitioner delinquent, the juvenile court

4 reasoned: [T]he statute involved here, 286B, speaks in terms of possession with intent to distribute, and as we know from dealing with controlled dangerous substances, that phrase means whether under all the circumstances it can be reasonably inferred that these people intended to distribute this substance.... So that all that one has to find is that ...-- there was an intention to transfer the substance to another person on the representation that it was in fact a controlled dangerous substance...[W]e have three people, clearly interrelated, who have in their possession, having gotten this from each other, clearly being part or [sic] the same-- I think it not overstates it, conspiracy, the same-- acting under the same general design, most certainly, having containers which are like containers by all the testimony in which are kept and from which are distributed controlled dangerous substances.... [W]e're not focusing, [however], on the transfers among those people, inter se, we are talking about what was the purpose for which each one of them held a container which looked as if it were-looked exactly like containers from which crack is dispensed.... The conclusion is inescapable that this substance whether in order to tease their friends, whether as a lark, whether to again [sic] pocket money or for whatever reason, the conclusion to me is inescapable that they held this for the purpose as is said in the statute of distributing this, and, again with or without remuneration makes no difference to another person, or whether as a joke...but the fact that these people were carrying around what they admitted they thought were soap chips or something else as totally innocuous as soap chips, with these very elaborately disguised and packaged as a controlled dangerous substance leads to only one conclusion. Frankly I would be hard put to reach any other conclusion...I think that the point is that one does not run around and have a substance that one is palming off for fun, for profit, sport or for thrills, as a controlled

5 dangerous substance. That is the -- precisely what these three juveniles were doing...." II. The statute pursuant to which the petitioner was found

delinquent is Maryland Code (1957, 1992 Repl. Vol.) Art. 27,

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