[Copyrighted Material Omitted]
For Appellant: Allison P. Brasseaux, Paul B. DeWolfe, Public Defender on the brief, Baltimore, MD.
For Appellee: Todd W. Hesel, Douglas F. Gansler, Attorney General on the brief, Baltimore, MD.
Berger, Arthur, Kenney, James A., III, (Retired, Specially Assigned) JJ. Opinion by Kenney, J.
[221 Md.App. 105] Kenney, J.
Appellant, Coryea Dominique Webster, was charged in the Circuit Court for Frederick County with possession with intent to distribute cocaine, possession of cocaine, possession of marijuana, possession of MDMA, possession of drug paraphernalia, possession of a rifle by a person with a disqualifying offense, possession of a firearm in connection with a drug trafficking offense, and allowing a minor access to a firearm. Tried by a jury and convicted on all counts, appellant was sentenced to twenty years for possession with intent to distribute cocaine; a consecutive twenty years, with all but five years suspended, for possession of a firearm in connection with a drug trafficking offense; a consecutive fifteen years, all suspended, for illegal possession of a rifle; a consecutive four years, all suspended for possession of BZP; and, a consecutive one year, all suspended, for possession of marijuana. Appellant timely appealed and presents the following questions for our review:
1. Did the trial court abuse its discretion when it permitted the State to introduce into evidence a notebook, when its probative value was outweighed by its potential for unfair prejudice?
2. Did the trial court err and abuse its discretion when it permitted an officer to testify that Mr. Webster's nickname was " Yeah-O" and that " Yeah-O" means cocaine in Spanish?
3. Did the trial court err when it permitted the State, over objection, to amend Count 5 of the indictment from possession of MDMA to possession of BZP?
[221 Md.App. 106] 4. Was the sentence imposed for possession of marijuana illegal?
5. Must Mr. Webster's sentences for possession of a rifle by a person with a disqualifying conviction and possession of a firearm in connection with a drug trafficking offense be merged, where they were based on the possession of a single firearm?
For the following reasons, we shall reverse appellant's conviction for possession of BZP. We also shall vacate appellant's sentence for possession of marijuana and remand for resentencing on that count. Otherwise, the judgments shall be affirmed.
At approximately 2:30 p.m. on April 27, 2012, members of the Maryland State Police responded to an address in Frederick as a result of appellant's failure to appear in court. After knocking on the apartment door and receiving no response, the police obtained a key for the apartment, made entry, and discovered appellant back in the rear bedroom with his two-year-old child. At no point during the entry did appellant make his presence known to the police.
When they made entry into the apartment, police recovered a loaded rifle inside a closet near the front door of the residence. After securing that weapon, the
police then obtained a search warrant. Police then recovered ammunition, drugs, and drug paraphernalia throughout the apartment.
Trooper First Class Jason Stevens, of the Maryland State Police, offered further details during trial. The rifle recovered from the closet was a Hi-Point nine millimeter semiautomatic rifle. Recovered from the medicine cabinet in the bathroom were 28 small bags of suspected cocaine, a small amount of marijuana, and a suspected half pill of Ecstasy. A razor blade and a digital scale with suspected cocaine residue were recovered from a dresser in the bedroom. In the kitchen, police recovered hundreds of baggies that the trooper testified were consistent with packaging materials for controlled [221 Md.App. 107] dangerous substances. Hundreds of rounds of ammunition were recovered from two plastic bags found underneath a television in the apartment.
In addition, a Frederick County Detention Center identification card with appellant's picture was located on a nearby nightstand in the bedroom, as were two notebooks. Trooper Stevens testified, without objection, that one of the notebooks contained a list labeled " fiens,"  and that, " [a] fiend is a drug addict and many times people involved in distribution of controlled dangerous substances will use a fiend to drive them around to pick up packages and normally the fiend is paid either through cash, or, um, more commonly in drugs."
As for the items recovered from the medicine cabinet, the parties stipulated that: the tablet was .2 grams of benzylpiperazine (BZP), a schedule one drug; the plant material was .5 grams of marijuana; and, the total gross weight of the 28 bags of cocaine was 9.1 grams. Senior Trooper Austin Fogle, who was accepted as an expert, testified that the cocaine recovered from the apartment was consistent with possession with the intent to distribute. The parties also stipulated that the rifle was an operable nine-millimeter Luger caliber Hi-Point semiautomatic rifle, and that appellant had two prior convictions of second-degree assault which prohibited him from possessing a rifle.
After the State rested, the defense called Kathleen Bedel, who resided at the apartment in question. She confirmed that appellant had stayed with her the week before the arrest, but not the day before. On April 27, 2012, she called appellant early in the morning and asked him to babysit their son. Bedel was unaware of any cocaine being in her apartment and of the rifle in the closet. She testified that appellant's older brother sometimes stayed in her apartment. He, however, [221 Md.App. 108] had moved out of the apartment about a month prior to this incident. She also testified that the lock to her apartment was broken and, on three prior occasions, she had found evidence indicating that someone had been in her apartment. According to Bedel, her apartment door could be opened with a credit card and appellant knew he could access her residence in that manner. She confirmed that, at times, appellant slept over with her in the master bedroom and that he kept clothing at the apartment.
Appellant testified on his own behalf that he was in the apartment at the time the police arrived, but he claimed that he did not have any knowledge of the contraband recovered from the apartment. He
also denied that his nickname was Yeah-O and that the notebook admitted into evidence belonged to him. He did agree that boxer shorts found in the master bedroom most likely belonged to him. He kept clothes in the apartment and had been in an " on and off" relationship with Bedel for three years. He also testified that he had been unemployed for the last year and did not have any fixed address.
We shall include additional detail in the following discussion.
Appellant first contends the court erred in admitting a notebook because its probative value was greatly outweighed by its potential for unfair prejudice. The State responds that the grounds asserted on appeal are different from those that were raised at trial and that the argument is without merit in any event. We agree with the State.
Prior to trial, the court granted a motion in limine to preclude any testimony concerning gang-related activity after defense counsel noted that one of the two notebooks recovered mentioned rules for the East Side Bounty Hunters, a subset of the Bloods gang. Thereafter, when Trooper Stevens was asked about the contents of the notebooks, the court sustained [221 Md.App. 109] an objection when the officer replied that there were rules for that gang in one of the notebooks. Subsequently, the State offered to admit the other notebook, identified as State's Exhibit 9 at trial. Defense counsel objected on the grounds that " [i]t has a lot of gang stuff." The court reviewed the notebook being proffered and the following ensued:
THE COURT: It, it almost looks like rap poems to me. Obviously there's some pictures and some drawings.
[PROSECUTOR]: Mmm-hmm. There's testimony --
THE COURT: There's a picture of a gun.
[PROSECUTOR]: There's --
THE COURT: Like a drawing of a gun. Some drawings. Face with a -- there's a gun, there's a face with a tongue sticking out. (Unclear - one word) . . . (unclear - one word), looks like a grocery list.
THE COURT: Wipes, bottle, milk, (unclear - one word) cups, (unclear - one word) drinks. Katie, emails, another picture of a gun and a face, an address, (unclear - one word), some math, one gram plus one gram. Some more math. Pictures. Looks like another, phone numbers, another picture of a gun, picture of a shirt, and I don't know, some pictures of some writing with some flames coming out of it.
[DEFENSE COUNSEL]: And there's a, there's a second one and I just, and these are the copies they gave me, but --
THE COURT: Well, this is the one, what's this marked? Has it got a sticker on it --
[DEFENSE COUNSEL]: Nine --
[PROSECUTOR]: This is nine --
[DEFENSE COUNSEL]: That's nine.
THE COURT: Are you objecting to nine?
[DEFENSE COUNSEL]: Yes because I think the books may contain information or, or the witness may speculate that and interpret some of the information as being gang-related or something like that.
[221 Md.App. 110] [PROSECUTOR]: Actually the purpose of this book is for drug-related
activity. Your Honor pointed out the grams.
THE COURT: Yeah.
[PROSECUTOR]: The word fiends was also in there --
THE COURT: Yes, I did see --
[PROSECUTOR]: -- which was testified to previously --
THE COURT: Yeah.
[PROSECUTOR]: The list with the names and the phone numbers.
THE COURT: Right.
[PROSECUTOR]: This is the evidence of that. I believe this is --
THE COURT: Okay, I --
[PROSECUTOR]: -- extremely probative.
The court then overruled the objection to State's Exhibit 9 as follows:
THE COURT: I, um, I've reviewed Exhibit Number 9 and stated for the record some of the things that I was seeing in it. I do believe it is relevant as to drug activity and I don't see anything that to this Court, this looks like some poems and luminati [sic], some poems and things and rap type poems and pictures, phone numbers, grocery list, emails. Nothing to this Court that is overtly gang-related. Nevertheless I don't think the, there's anything about any prejudicial information in here. There's fiends under a bunch of phone and then above phone numbers, several, looks like seven --
[PROSECUTOR]: Appear to be phone numbers --
THE COURT: -- phone numbers. So I don't find that prejudicial value outweighs the probative value. I'm overruling the objection, allow you --
[DEFENSE COUNSEL]: Okay, thank you, Your Honor --
[221 Md.App. 111] THE COURT: -- to submit it. You're ...