Opinion
Nos. 9903019525, IK99-09-0280 — 0291.
Submitted: September 27, 1999.
Decided: December 30, 1999.
Upon Defendant's Motion for Judgment of Acquittal.
DENIED
Dennis Kelleher, Esq., Deputy Attorney General, Department of Justice, Dover, Delaware, for the State of Delaware.
Sandra W. Dean, Esq., Dover, Delaware, for Defendant.
MEMORANDUM OPINION
The defendant, Tyrone Taylor, was convicted at a jury trial of various drug offenses. The charges arose from an undercover police officer's purchase of crack cocaine from the defendant and a subsequent search of the defendant's dwelling in Milford. One of the offenses was Possession with Intent to Manufacture a Narcotic Schedule II Controlled Substance, specifically, cocaine. During the search of Mr. Taylor's residence the police discovered various paraphernalia and ingredients used to convert powder cocaine into crack cocaine. The defendant has filed a post trial motion for judgment of acquittal of this charge, arguing that because the police found only trace amounts of cocaine in his residence when they conducted the search, he cannot be convicted of Possession with Intent to Manufacture Cocaine. He also contends that the jury's verdict was inconsistent because the jury found him not guilty of Possession with Intent to Deliver Cocaine with respect to the same trace amounts. I find that the evidence presented in this case is sufficient to support a conviction for Possession with Intent to Manufacture Cocaine, notwithstanding that the defendant was in possession of only trace amounts on the date of the search. I also find that there is no inconsistency in the jury's verdicts.
On that count, the jury found him guilty of the lesser included offense of Possession of Cocaine.
I. FACTS
The Milford police developed an informant who could identify people in the Milford area who sold drugs. On March 9, 1999, the informant and an undercover police officer went to the home of one such person to see whether that person would sell them drugs. When they found that person not at home, the informant gave the undercover officer the defendant's name. After first calling the defendant on a cell telephone to see if he was at home, the informant and the police officer went to the defendant's residence. Mr. Taylor answered the door and the informant explained that the undercover officer wished to buy cocaine. After a brief conversation, the defendant produced a quantity of crack cocaine, which he sold to the undercover officer for $20.00. On March 19 the undercover officer returned to Taylor's residence alone and again attempted to buy cocaine. This time the defendant refused, saying that he did not want to make the sale unless the informant was also present. On March 25, 1999, the Milford police executed a search warrant for Mr. Taylor's residence and vehicle. During the search of the residence they found marijuana, vials, rolling papers, baggies used for packaging cocaine and marijuana, scales, baking soda, a bowl, and more than $300.00 in cash. They also found trace amounts of cocaine. The vehicle contained a vial with a residue of cocaine, and flakes or chunks of cocaine were on the car seat. Officer Rust of the Milford Police testified that the defendant had been unemployed since October 1998, and had no known source of income. Officer Rodriguez-Diaz testified that while on routine patrol in the defendant's neighborhood, he had observed that adult males would frequently congregate on the sidewalk area in front of the defendant's residence, and that they would disperse when they saw the police car turning the corner to ride down the street.
At the conclusion of the trial on September 24, 1999, the jury found the defendant guilty of Possession with Intent to Manufacture Cocaine, three counts of Possession of Cocaine, two counts of Possession of Marijuana, Maintaining a Dwelling, Possession of Drug Paraphernalia, Delivery of Cocaine, and two counts of Distribution of Cocaine within 1000 feet of School Property. The defendant was found not guilty of Maintaining a Vehicle. Taylor then filed this motion for judgment of acquittal of the Possession with Intent to Manufacture charge.
The defendant's house happened to be within 1000 feet of two different schools.
II. SUFFICIENCY OF THE EVIDENCE
The defendant asserts two grounds in support of his motion for judgment of acquittal. The first is that when the police searched the residence, they found only trace amounts of cocaine; that in order to possess a controlled substance with an intent to manufacture it there must be a sufficient quantity of the substance for manufacturing to take place; that trace amounts of cocaine are insufficient for manufacturing; and that, therefore, the defendant could not have possessed cocaine on that occasion with the intent to manufacture it.
When ruling upon a motion for judgment of acquittal, the trial judge must consider the evidence and all legitimately drawn inferences from the point of view most favorable to the State. The motion is only granted when the court determines that the State has presented insufficient evidence to sustain a verdict of guilty.
Vouras v. State, Del. Supr., 452 A.2d 1165, 1169 (1982).
Super. Ct. Crim. R. 29(a).
The indictment alleges, in substance, that the defendant possessed cocaine with the intent to manufacture it on or about March 25, 1999, which was the date of the search. At trial, Officer Rust described the process for manufacturing crack cocaine. Briefly, it consists of cooking powder cocaine in boiling water, mixing it with baking soda, and allowing it to cool into a solid cake, which is usually then cut into smaller pieces for sale. The defendant's argument is simple and straightforward. Since only trace amounts of cocaine were found in the house on the 25th and since trace amounts are presumably not enough for a manufacturing process, the defendant could not have possessed cocaine on that occasion with an intent to engage in any manufacturing.
The definition of "manufacture" contained in the statute, 16 Del. C. § 4701 (21) is actually quite broad and extends to the ". . . production, preparation, propagation, compounding, conversion or processing of a controlled substance . . . and includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for the individual's own use . . ."
No evidence was introduced at trial concerning what minimum quantity of cocaine is needed to convert powder cocaine into crack cocaine, or otherwise to manufacture cocaine in a manner encompassed within the statute. Presumably there is some minimum amount which one would need to go through a manufacturing process. And presumably trace amounts are not enough. The court makes no specific finding concerning any specific minimum quantity of cocaine which may be needed to conduct a manufacturing process like the one involved here, but the court will accept for purposes of this motion that some minimum amount is needed and that the trace amount of cocaine found in the residence on March 25 was not susceptible of being possessed with the specific intent to manufacture it. Therefore, if the evidence collected on March 25 is viewed in isolation, there may be merit to the defendant's argument.
The evidence, however, should not be viewed in isolation. The jury is entitled to take all of the evidence into account in reaching a verdict on each count. The court should take into account all of the evidence which was presented, and view it in the light most favorable to the State to determine whether the evidence was sufficient. The evidence in this case shows that the informant identified Mr. Taylor as a person who was known to sell drugs. On March 9 when the informant and the undercover officer approached Taylor at his residence he did, in fact, sell crack cocaine to the officer. When the undercover officer returned on the 19th, the defendant did decline to sell to the officer at that time, but the refusal was based on the informant not being there, not a flat refusal. And on the 25th, two weeks after the actual purchase, the defendant was found to be in possession of apparently all of the paraphernalia and ingredients which one would need to manufacture crack cocaine. The presence of trace amounts of white powder on the bowl would further indicate that manufacturing had taken place at some point. From this the jury could conclude that the crack cocaine which the defendant sold on March 9 was cocaine which he had manufactured (prepared) in his house, and that it had initially been possessed with the intent to manufacture it. In other words, based upon the evidence which I have just mentioned plus all of the attendant circumstances, the jury could conclude that the defendant possessed cocaine with the intent to manufacture it at a time approximately in March 1999.
It is not necessary for the State to prove that the possession with intent to manufacture occurred exactly on the 25th day of March. The indictment alleges that the defendant was in possession of cocaine with the intent to manufacture it "on or about" March 25. An allegation that something occurred "on or about" a certain time allows for a reasonable variance that the event occurred before or after the date alleged. The date in an indictment is not material if it is not an element of the offense. This concept was expressed to the jury in the instructions which informed the jury that it could find guilt if it was satisfied that the defendant committed the offense "at or about the date and place stated in the indictment." Thus, the jury need not have pinpointed a specific date. It was sufficient that the jury could conclude beyond a reasonable doubt that the defendant possessed a quantity of cocaine with the requisite intent at a time in reasonable proximity to the March 25 search. The combination of the discovery of manufacturing paraphernalia and ingredients and a trace amount of cocaine, together with the evidence that the defendant had been in possession of a larger amount of cocaine only two weeks before, when considered together with all of the attendant circumstances, was sufficient to allow the jury to make the necessary inferences to find the defendant guilty of Possession with Intent to Manufacture Cocaine.
United States v. Campbell, 732 F.2d 1017 (lst Cir. 1984); Lewis v. Merrill, Ore. Supr., 365 P.2d 1052 (1961); Black's Law Dictionary, 6th Edition, Page 1089.
State v. Husser, Del. Super., No. 90005314, Babiarz, J. (Oct. 12, 1990) (Mem. Op.).
III. INCONSISTENT VERDICTS
The second grounds asserted is that the jury found the defendant not guilty of Possession with Intent to Deliver Cocaine for the same March 25 trace amounts of cocaine found during the search, finding him guilty instead of the lesser included offense of Possession of Cocaine; that the jury must therefore have concluded that the cocaine possessed at the time of the search was for his personal use only, at most; that the definition of "manufacture" specifically excludes the manufacture of drugs for one's personal use; and that, therefore, finding him guilty of Possession with Intent to Manufacture and finding him not guilty of Possession with Intent to Deliver presents inconsistent verdicts.
There was ample evidence that the defendant's manufacturing activities were not limited to his personal use. The direct evidence of sale to an undercover police officer and circumstantial evidence of other sales, such as the $300.00 in the defendant's residence, packaging bags and the like are clearly inconsistent with manufacturing for personal use only.
The fact that the jury did not convict the defendant on the charge of Possession with Intent to Deliver Cocaine does not cast any cloud over the conviction for Possession with Intent to Manufacture. They are separate crimes with separate elements. In connection with the March 9 sale, the jury found the defendant guilty of Delivery of Cocaine and two counts of Distribution of Cocaine within 1000 feet of a School. Having made those findings of guilt, the jury may have decided not to take the March 9 sale into consideration of the March 25 Possession with Intent to Deliver charge. Perhaps the jury just decided to give the defendant a greater benefit of the doubt on the Possession with Intent to Deliver charge. There is nothing in the jury's decision on the Possession with Intent to Deliver charge which would justify setting aside the Possession with Intent to Manufacture charge. The conviction on that charge is supported by the evidence.
Tilden v. State, Del. Supr., 513 A.2d 1302 (1986)
THEREFORE, the defendant's motion for judgment of acquittal is denied .
IT IS SO ORDERED. __________________ Resident Judge
oc: Prothonotary xc: Order Distribution