On November 1, 1996, Pamela Reed entered a Wal-Mart store in Hendricks County, Indiana. She grabbed a Rubbermaid tote off the shelf and placed it in her shopping cart. Reed then continued through the store and placed several items in the tote, including a computer printer, ink jet labels, computer software packages, and some toy cars. She then left the store with roughly $500 worth of merchandise without paying.

         Reed was detained in the parking lot and taken back into the store. She claimed that she believed that she had paid for the items and did not understand why she was being detained. Reed stated that she had a letter in the car from her doctor that would excuse the theft. She then claimed that she was feeling ill and an ambulance was called that transported her to the hospital. Reed subsequently was charged with theft and filed a motion to dismiss the charges.

                Reed’s primary-care physician, Dr. Roger Collicott, wrote a letter stating that on the day of the theft, she suffered from a transient ischemic attack (TIA). The trial court, in considering Reed’s motion, heard evidence from Dr. Brian Teel, a clinical psychologist, who testified that TIA, commonly known as “small stroke,” involves a constriction of blood vessels and a decreased pulse rate that causes a person to lose oxygen to the brain. Teel further testified that a patient suffering from this syndrome might be “totally unaware of [her] surroundings and yet repeatedly going through common tasks that we’ve done a hundred times, a thousand times,” enabling her to complete tasks “without the awareness of what [she’s] doing.” Dr. Collicott’s assistant testified that when Reed appeared at the doctor’s office following the theft, she seemed “far off” and “confused” and left without making a return appointment.

                Reed reportedly left work early on the day prior to the theft due to a headache, and the following day she submitted a report that was full of errors. The trial court did not permit this evidence to be presented to the jury and instructed the jurors to disregard the testimony of witnesses who testified that Reed was confused and disoriented on the day of the theft. The appellate court remanded the case for a new trial and called the trial court’s attention to the fact that evidence of TIA was relevant in determining the voluntariness of Pamela Reed’s criminal conduct.

         Did Reed voluntarily steal the merchandise from the store? See Reed v. State, 693 N.E.2d 988 (Ind. App. 1998).

        Reed v. State, 693 N.E.2d 988 (Ind. App. 1998). A crime requires a voluntary act that is a “conscious choice.” The defendant was entitled to present expert witnesses who would have testified that a patient suffering from TIA might be “totally unaware of [her] surroundings and yet repeatedly go through the common tasks that we’ve done a thousand times, enabling her to work through the tasks by without the awareness of what [she’s] doing.” As a result, TIA is relevant to determine whether Reed “voluntarily committed theft.” The impact of TIA is similar to automatism or sleep walking.

         The defendant Raymond Moore was arrested for possession with the intent to sell heroin and of the illegal importation of a controlled substance. He was arrested in a hotel room as he was sitting in a chair adjacent to a bed where the police found 1,854.5 milligrams of a mixture containing heroin and another pile of 1,824 milligrams of a heroin mixture on a mirror. The police also found gelatin capsules, some of which were partially filled with the heroin mixture, and a firearm. Moore had fifty capsules in his possession. He apparently had been an addict for roughly twenty-five years and claimed that he was in the room to purchase heroin for his own use.

         Moore’s conviction was affirmed on appeal. Judge J. Skelly Wright, in dissent, argued that the trial court had improperly refused to instruct the jury that an addict who, “by reason of his use of drugs lacks the substantial capacity to confirm his conduct to the requirements of the law may not be held criminally responsible for mere possession of drugs for his own use.” Judge Wright argued that “no matter how the addict came to be addicted, once he has reached that stage he clearly is sick, and a bare desire for vengeance cannot justify his treatment as a criminal.” Judge Wright also argued that holding Moore criminally liable for drug possession was contrary to the federal interest in treating and rehabilitating narcotics addicts.

         How would you rule in this case? See United States v. Moore, 486 F.2d 1139 (D.C. Cir. 1973).

         United States v. Moore, 486 F.2d 1139 (D.C. Cir. 1973). An addict may not be punished for his or her “craving” (status). In this case, however, Moore is convicted of giving into this craving and committing the criminal act of narcotics possession. This is not cruel and unusual punishment. Moore initially made a voluntary choice to begin using drugs, which led to his addiction. He then made a choice each day to permit his craving to overwhelm his moral boundaries and pursued his or her addiction. The court observed that extending Moore’s legal argument would mean that individuals could claim that their addiction caused them to commit robbery to support their narcotics habit. Punishment advances the interests in deterrence, isolation and treatment. The District Court expressed doubts whether Moore was a “non-trafficking” addict given the significant amount of drugs in the room. 

         Walker drove an automobile owned by his passenger Darlene Ables. They approached a Quonset hut filled with stolen property that Faulkner County, Arkansas, law enforcement had placed under surveillance. Walker and Ables allegedly had missed the turn to Ables’s mother’s home. An officer stopped the auto at roughly 1:30 a.m. A search of Ables revealed a clear plastic bag containing methamphetamine residue. A canine search led to the seizure of a pair of work gloves under the driver’s seat. Tinfoil wrapped around methamphetamine was discovered in one of the gloves. The police reported that Walker was cooperative throughout the investigation. He was convicted in an Arkansas court of the possession of a controlled substance and possession of drug paraphernalia (tinfoil).

         Constructive possession requires that the defendant establish beyond a reasonable doubt that the defendant exercised care, control, and management over contraband and knew that the material was contraband. Constructive possession need not be established by actual possession and may be established by circumstantial evidence. Joint occupancy of a home or vehicle alone is not sufficient to establish constructive possession. Arkansas courts consider whether the contraband was in the open or within the defendant’s personal effects, whether the contraband was on the same side of the automobile as the defendant, whether the defendant was owner of the car or exercised dominion or control over the automobile, and whether the defendant acted in a suspicious fashion.

         Would you affirm or reverse Walker’s convictions? One of the appellate court judges noted that Walker had previous narcotics convictions; would this fact make a difference in your decision? See Walker v. State, 72 S.W.3d 517 (Ark. App. 2002).

State v. Walker, 72 S.W.3d 517 (Ark.App. 2002).

         The cases are legion concerning constructive possession and joint possession of controlled substances. It is well settled that it is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000) (citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Constructive possession requires the State to prove beyond a reasonable doubt that 1) the defendant exercised care, control, and management over the contraband, and 2) the accused knew the matter possessed was contraband. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factors linking the accused to the drugs:

         Other factors to be considered in cases involving automobiles occupied by more than one person are: 1) whether the contraband is in plain view; 2) whether the contraband is found with the accused's personal effects; 3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; 4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and, 5) whether the accused acted suspiciously before or during the arrest. Although factors three and four were present in this case, neither of these factors established that appellant had knowledge of the presence of the contraband without resorting to speculation or conjecture. Each of the remaining Mings factors (plain view, whether the contraband is  found in the accused's personal effects, and suspicious acts of accused) indicate that the accused had direct knowledge of the presence of the contraband.
    While the Mings factors offer guidance for our court in analyzing constructive possession cases, the mere presence of some of these enumerated factors does not relieve our obligation to determine whether a nexus between the accused and the contraband has been established. The link between the accused and the drugs must be sufficient to raise a reasonable inference of knowledge of the contraband. In Boston, we reversed a conviction where the contraband was found in a suitcase in the trunk of appellant's car where it could not be shown that he had knowledge of the contents of the suitcase. Similarly, in Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999), we affirmed a conviction where (although none of  the five Mings factors were apparent) the strong odor of burning marijuana was sufficient to establish that the appellant had knowledge of the drug, and concluded that it is the knowledge of the existence of the contraband that provides substantial evidence of constructive possession. Id.
     Knowledge of the presence of the contraband is a well-established element of constructive possession which has been developed better in premises cases than automobile cases. In Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998), we reversed a conviction based on constructive possession where joint occupancy of a house was at issue. After analyzing the evidence the State offered, which allegedly linked appellant to the drugs, we found it to "fall short of demonstrating the degree of connection to the contraband or knowledge of its presence." 
    In the case at bar, appellant was in Darlene Ables's car, and methamphetamine was found on her person and not on appellant. Additionally, the officer testified that appellant was cooperative and did not act suspiciously. The State offered only two links between appellant and the contraband: 1) that the glove was found on appellant's side of the vehicle; and 2) that appellant was the driver of the automobile. Neither of these raise a reasonable inference that appellant had knowledge of the presence of the contraband. Therefore, there was no substantial evidence to support a finding of constructive possession, and we reverse appellant's convictions and dismiss the charges against him.

Dissent

         It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Possession of drugs can be proved by constructive possession. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factor linking the accused to the drugs:

              Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest. I agree with the majority that in the present case, only factors three and four are present. However, there is no set number of factors that are required to be present in order to link a defendant to the contraband. Furthermore, this list of factors to be considered is not an exhaustive one. In addition to the five factors listed above, our supreme court has also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle, and the improbable nature of the accused's explanation for his journey. In this case, appellant and Ables drove up to a Quonset hut that was filled with stolen merchandise at 1:30 in the morning. Appellant's stated reason for being in Mount Vernon was that he was going to Ables's mother's house to spend the night and to help start a garden and clean the yard. He said that when he missed the driveway, Ables told him to go on up to the Quonset hut because she knew some girl that was there and she wanted to see if she was home. Appellant said that he could not understand why Ables would tell the police that they were at the Quonset hut to see Dan because they had heard someone had been arrested. Appellant, who admitted that he had previous felony drug convictions, testified that he told Ables that she needed to clean her car out because he knew that she had been "convicted of crystal meth." He denied knowing that the gloves were in the car and said that when he got in the car, it appeared to have been picked up. However, decisions regarding the credibility of witnesses are for the trier of fact, and the trier of fact is not required to believe any witness's testimony, especially the testimony of the accused since he is the person most interested in the outcome of the trial. 

         Joyce Lillian Pope was convicted of child abuse “while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, three months years old.” Pope’s sister, Angela Lancaster, following church drove Melissa Norris to her grandparents home where Melissa along with her son Demiko was living. Melissa refused to enter the house, claiming for no apparent reason that the house was on fire. Melissa while at church at times was in a manic mood and loudly declared that she was God. Melissa would almost immediately revert to her normal self without commenting on her personality transformation. Pope agreed to take Melissa and the child into her home for the night. Pope and Angela bought food and diapers for the baby because Melissa had no money. Pope cleaned and dried the baby and asked Melissa about a bad rash on the baby. Melissa slept in Pope's bedroom. While Pope kept the baby with her in the living room, telling Melissa: "[Y]ou can go to sleep . . . I'll be up, I'll just stay up, I'll watch the baby. . . ." She later explained: "And I don't know why it was just a funny feeling that I had, you know, and ever since the baby was there I just kept it close to me for some reason." Pope fed the baby and prepared a bed for him in a dresser drawer. She stayed with the baby to care for him during the night because he was spitting up his food.

            The next morning, Pope fed Demiko. Melissa’s mood shifted throughout the day. At one moment she proclaimed that she was God and at other moments resumed her normal personality. In those periods in which Melissa thought she was God, Pope assumed the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God. . . . I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." Saturday evening Melissa again proclaimed that she was God. Pope was afraid Melissa would harm the baby and told Melissa: "I'll just take the baby in [the living room] . . . I'll watch it, I'll get up and feed it . . . I don't mind." The next morning, Sunday Pope prepared the baby's bottle and fed him. Melissa when she awoke “stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. …Loudly exhorting Satan to leave the premises.” Pope hurried her own young children out of the house.             
       Melissa eventually calmed down and prepared to go to church. She got a tub of water to bathe the baby. The Court of Appeals recounted the following:            

         Then, from her suddenly changed voice and appearance, [Pope] knew Melissa had changed again to God. Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. ….In her religious frenzy of apparent exorcism, Melissa poked the child's vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag."

              Continuing to talk and stomp, Melissa began to squeeze the baby. Then, holding the child by the neck with one hand, she took him into the bathroom, acting like she did not know that Pope was present. When she first started this abuse, Melissa, in her "God voice," called Pope and asked her: "Didn't I give you eyes to see?" Pope noticed that Melissa's finger nails were "real long," and she said to Melissa: "[H]ow do you handle a baby with such long nails," but Pope did nothing. She admitted that she knew at some point that Melissa was hurting the baby and was "fearful, amazed and shocked at the 'unbelievable' and 'horrible' thing that was happening."
     Melissa's frenzy diminished. Angela came to the house to take them to church. Pope did not tell Angela what happened: "I could not get it out." Angela asked her what was wrong, and Pope said: "[I]t's Melissa, the baby. . . ." Is Pope legally liable for the death of Demiko Lee Norris? See Pope v. State, 396 A.2d 1054 (Md. Ct.App. 1979).

Pope v. State

396 A.2d 1054 (Md. Ct. App. 1979)

Orth, J.

         Joyce Lillian Pope was found guilty by the court in the Circuit Court for Montgomery County under the 3rd and 5th counts of a nine count indictment. The 3rd count charged child abuse, presenting that "on or about April 11, 1976, while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, a minor child under the age of eighteen years [she] did unlawfully and feloniously cause abuse of said minor child in violation of Article 27, Section 35A of the Annotated Code of Maryland. . . ." The 5th count charged misprision of felony under the common law, alleging that on the same date she "did unlawfully and willfully conceal and fail to disclose a felony to wit: the murder of Demiko Lee Norris committed by Melissa Vera Norris on April 11, 1976, having actual knowledge of the commission of the felony and the identity of the felon, with the intent to obstruct and hinder the due course of justice and to cause the felon to escape unpunished. . . ."

       On direct appeal the Court of Special Appeals reversed the judgment entered on the child abuse conviction and affirmed the judgment entered on the misprision of felony conviction.  We granted Pope's petition and the State's cross-petition for a writ of certiorari. …We remand to that court with direction to remand to the Circuit Court for Montgomery County for the entry of a judgment of acquittal on the third count and dismissal of the fifth count.
       The evidence adduced at the trial established that Demiko Lee Norris, three months old, died as a result of physical injuries inflicted by his mother, Melissa Vera Norris. The abuse by the mother occurred over a period of several hours on a Sunday morning at Pope's home and in Pope's presence. Pope's involvement in the events leading to the child's abuse and death began on the preceding Friday evening when she and Melissa, with the child, were driven home by Pope's sister, Angela Lancaster, from a service held at the Christian Tabernacle Church. When they arrived at Melissa's grandparents' home, where Melissa was living, Melissa refused to enter the house, claiming that it was on fire, although in fact it was not. During the evening, Melissa had sporadically indicated mental distress. "She would at times seem caught up in a religious frenzy with a wild look about her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions." Pope agreed to take Melissa and the child into her home for the night because she did not want to put them "out on the street," and Angela would not let them stay in her home. Melissa had no money and Pope and Angela bought food and diapers for the baby. That evening Pope cleaned and dried the baby and inquired of Melissa about a bad rash he had. Melissa slept in Pope's bedroom. Pope kept the baby with her in the living room, telling Melissa: "[Y]ou can go to sleep . . . I'll be up, I'll just stay up, I'll watch the baby. . . ." She explained in her testimony: "And I don't know why it was just, just a funny feeling that I had, you know, and ever since the baby was there I just kept it close to me for some reason." Pope fed the baby and fixed a bed for it in a dresser drawer. She stayed with the baby to care for him during the night because he was spitting up. She could not sleep while Melissa was there.
     The next morning, awakened by the crying of the child, Pope fed him. Throughout the day Melissa "changed back and forth." When Melissa was "herself" she took care of her child. When Melissa thought she was God, Pope undertook the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God. . . . I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." At a baby shower Saturday evening at the home of Pope's mother, Melissa again reverted to being God, looking wild, speaking loudly, preaching and giving orders. Melissa and the baby returned to Pope's home. Melissa put the child in bed with her, but Pope thought it better that the child not remain there. She was afraid Melissa would roll over and "smother it to death." She told Melissa: "I'll just take the baby in [the living room] . . . I'll watch it, I'll get up and feed it . . . I don't mind." The next morning, Sunday, at about 4:30 o'clock, Pope prepared the baby's bottle and fed him. When Melissa got up, Pope suggested that she go back to bed. Melissa behaved normally for awhile. Then her "episodes of 'changing to God' became more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of [Pope's] son, and fearful that by breaking in Melissa would frighten him, [Pope] unfastened the door to permit entry. Loudly exhorting Satan to leave the premises, Melissa 'anointed' [Pope's] son with oil, placing some of the oil in the child's mouth. She subsequently repeated the process with [Pope's] daughter. When dressed, [Pope's] children left the house expeditiously, lingering only long enough to embrace their mother."
     During a lucid period, Melissa prepared to go to church. She got a tub of water to bathe the baby. What next occurred is graphically described in the opinion of the Court of Special Appeals:

               "Then, from her suddenly changed voice and appearance, [Pope] knew Melissa had changed again to 'God.' Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable. In her religious frenzy of apparent exorcism, Melissa poked the child's vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag."

               Continuing to talk and stomp, Melissa began to squeeze the baby. Then, holding the child by the neck with one hand, she took him into the bathroom, acting like she did not know that Pope was present. When she first started this abuse, Melissa, in her "God voice," called Pope and asked her: "Didn't I give you eyes to see?" Pope noticed that Melissa's finger nails were "real long," and she said to Melissa: "[H]ow do you   handle a baby with such long nails," but Pope did nothing. She admitted that she knew at some point that Melissa was hurting the baby and was "fearful, amazed and shocked at the 'unbelievable' and 'horrible' thing that was happening."
     Melissa's frenzy diminished. Angela came to the house to take them to church. Pope did not tell Angela what happened—"I could not get it out." Angela asked her what was wrong, and Pope said: "[I]t's Melissa, the baby. . . ." She locked the door at Angela's direction so Angela's children would stay in the yard with Pope's children. Angela wrapped the child in a towel, raised him over her head and prayed.
      Pope, Melissa and Angela left with the child to go to church. At Melissa's request they stopped by her grandfather's house, arriving about 2:00 p.m. Pope told him the child was dead, but he did not believe her because all three were acting so strangely. He refused to take or look at the baby. The three women with the child went to Bel Pre Health Center, picked up another member of the Christian Tabernacle congregation, telling her that "God has a job for you to do," and proceeded to the church. En route, they passed several hospitals, police stations and rescue squads. At the church, the child was given to, or taken by the Reverend Leon Hart, who handed him to Mother Dorothy King for her prayers. She discovered that the baby's body was cool and sent for ambulance assistance. Police and rescue personnel arrived and determined that the child was dead. There was expert medical testimony that the child had died sometime during the period of fifteen minutes to several hours after it was injured. The medical expert expressed no opinion as to whether the child could have been successfully treated if the injury had been reported sooner.
     The police questioned Melissa in Pope's presence. Pope did not contradict Melissa's denial of abusing the child. In fact, Pope, in response to inquiry by the police, said that the baby did not fall, and told them that she had not seen Melissa strike the baby. She explained this untruth in subsequent statements to the police: "[I]t was her body in the flesh, but it wasn't her, because it was something else."
     Pope, Melissa and Angela attended the evening service at the church. Melissa  reverted to God during the service and Reverend Hart restrained her and attempted to convince her that she was not Jesus Christ. Melissa refused to go to her grandfather's home and returned home with Pope. The next morning Pope was again interviewed at the police station and wrote a full explanation of what had happened. She later made an oral statement which was recorded.  . . .
      Under the present state of our law, a person has no legal obligation to care for or look after the welfare of a stranger, adult or child.

         "Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself. . . . A moral duty to take affirmative action is not enough to impose a legal duty to do so." W. LaFave & A. Scott, Criminal Law 183 (1972).

         The legal position is that "the need of one and the opportunity of another to be of assistance are not alone sufficient to give rise to a legal duty to take positive action." Ordinarily, a person may stand by with impunity and watch another being murdered, raped, robbed, assaulted or otherwise unlawfully harmed. "He need not shout a warning to a blind man headed for a precipice or to an absentminded one walking into a gunpowder room with a lighted candle in hand. He need not pull a neighbor's baby out of a pool of water or rescue an unconscious person stretched across the railroad tracks, though the baby is drowning, or the whistle of an approaching train is heard in the distance." The General Assembly has enacted two "Good Samaritan" statutes which afford protection to one who assists another in certain circumstances. Those statutes, however, impose no requirement that assistance be rendered.
        The trial court found Pope guilty of the crime of child abuse as a principal in the first degree. . . . [a] principal in the first degree is the one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent.
     As did the Court of Special Appeals, we find evidentiary insufficiency with respect to the conviction of Pope of child abuse … as a principal in the first degree… so that the judgment of the trial court on the evidence was clearly erroneous. We, therefore, affirm the judgment of the Court of Special Appeals. We explain why we find that the evidence was legally insufficient.

 Principal in the First Degree

As we have indicated, a person may be convicted of the felony of child abuse created by Section 35A as a principal in the first degree upon evidence legally sufficient to establish that the person

(1) was

(a) the parent of, or
(b) the adoptive parent of, or
(c) in loco parentis to, or
(d) responsible for the supervision of

a minor child under the age of eighteen years,

AND

(2) caused, by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of

(a) physical injury or injuries sustained by the child as the result of
i) cruel or inhumane treatment, or
ii) malicious act or acts by such person,
or
(b) any act or acts by such person involving sexual molestation or exploitation whether or not physical injuries were sustained.

Pope's lack of any attempt to prevent the numerous acts of abuse committed by the mother over a relatively protracted period and her failure to seek medical assistance for the child, although the need therefore was obviously compelling and urgent, could constitute a cause for the further progression and worsening of the injuries which led to the child's death. In such circumstances, Pope's omissions constituted in themselves cruel and inhumane treatment within the meaning of the statute. It follows that Pope would be guilty of child abuse if her status brought her within the class of persons specified by the statute. It being clear that she was neither the child's parent nor adoptive parent, and there being no evidence sufficient to support a finding that she had "the permanent or temporary care or custody" of the child …so as to be in loco parentis to the child, the sole question is whether she had "responsibility for the supervision of" the child in the circumstances. If she had such responsibility the evidence was legally sufficient to find her guilty of child abuse as a principal in the first degree.

     The State would have us translate compassion and concern, acts of kindness and care, performance of maternal functions, and general help and aid with respect to the child into responsibility for the supervision of the child. The crux of its argument is that although Pope was not under any obligation to assume responsibility for the supervision of the child at the outset, "once she undertook to house, feed, and care for [the mother and child], she did accept the responsibility and came within the coverage of the statute." But the mother was always present. Pope had no right to usurp the role of the mother even to the extent of responsibility for the child's supervision. We are in full accord with the view of the Court of Special Appeals that it could not "in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child's supervision and protection even while the child is in the very arms of its mother." It would be most incongruous that acts of hospitality and kindness, made out of common decency and prompted by sincere concern for the well-being of a mother and her child, subjected the Good Samaritan to criminal prosecution for abusing the very child he sought to look after. And it would be especially ironic were such criminal prosecution to be predicated upon an obligation to take affirmative action with regard to abuse of the child by its mother, when such obligation arises solely from those acts of hospitality and kindness.

          The evidence does not show why Pope did not intervene when the mother abused the child or why she did not, at least, timely seek medical assistance, when it was obvious that the child was seriously injured. Whether her lack of action was from fear or religious fervor or some other reason is not clearly indicated. As the Court of Special Appeals correctly stated "[Pope's] testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference." The court observed that when Pope's sister arrived shortly after the acts of abuse and the mother's frenzy had diminished, Pope did not tell her sister what had occurred, although she claimed that she tried to but could not do so. But Pope's conduct, during and after the acts of abuse, must be evaluated with regard for the rule that although she may have had a strong moral obligation to help the child, she was under no legal obligation to do so unless she then had responsibility for the supervision of the child as contemplated by the child abuse statute. She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation. In the circumstances, the mother's acquiescence in Pope's conduct was not a grant of responsibility to Pope for the supervision of the child, nor was Pope's conduct an acceptance of such responsibility. "[Pope's] concern for the child [did] not convert to legal responsibility nor parental prerogatives." We hold that the evidence was not sufficient in law to prove that Pope fell within that class of persons to whom the child abuse statute applies. Thus it is that the judgment of the trial court that she was a principal in the first degree in the commission of the crime of child abuse was clearly erroneous and must be set aside.

      The mental or emotional state of the mother, whereby at times she held herself out as God, does not change the result. We see no basis in the statute for an interpretation that a person "has" responsibility for the supervision of a child, if that person believes or may have reason to believe that a parent is not capable of caring for the child. There is no right to make such a subjective judgment in order to divest parents of their rights and obligations with respect to their minor children, and therefore, no obligation to do so.

 
       We assume, arguendo, that misprision of felony was a crime under the common law of England, and that it became the law of this State pursuant to Art. 5 of the Declaration of Rights. The question is whether it is to be deemed an indictable offense in Maryland today. In determining the question, we look first to what misprision of felony is. According to Blackstone, the crime at common law consisted merely in the "concealment of a felony which a man knows, but never assented to; for if he assented this makes him either principal or accessory."

               The American experience paralleled that of England; the common law offense was simply not used. The status of the crime in the United States was summed up in Glazebrook, "No court in the United States has been prepared to adopt the English doctrine in its simplicity, and hold that a mere failure to disclose knowledge of a felony is itself an offence:
          In exercising our duty to determine whether a common law crime presently exists in this State, mere non-use is not sufficient, as we have indicated, to conclude that the offense has become obsolete. But non-use, we believe, is not without significance. When an offense has lain virtually dormant for over two hundred years, it is difficult to argue that the preservation of society and the maintenance of law and order demand recognition of it.). Perkins points out:

         "The notion that misprision is needed, to prevent one who knows about another's felony from intentionally misleading investigating officers, is unfounded. If, when being questioned by officers who are investigating a felony, one who knows the facts intentionally misleads the officers by false statements and thereby 'covers up' for the felon, he thereby makes himself an accessory to that felony after the fact. If he impedes the investigation by falsely saying he does not know about it, or by refusing to talk, he should be held to be guilty of obstructing justice. There is a wide difference between a mere failure to hunt up an officer and tell about a felony, on the one hand, and a refusal to cooperate with an investigating officer, on the other." R. Perkins, Criminal Law 517 (2d ed. 1969).

              Even more relevant, however, to a consideration of whether a common law crime is applicable as compatible with our local circumstances and situation and our general codes of law and jurisprudence is the nature of the crime. The reason for the failure of common law misprision of felony to survive in the United States was well expressed by Chief Justice Marshall over a hundred and fifty years ago in Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-576 (1822) and thereafter noted by many commentators, text book authors and other authorities:

         "It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."

         In England, according to Glazebrook in his critical consideration of Sykes v. Director of Public Prosecutions, the Criminal Law Commissioners in their Fifth Report in 1840 repeated and elaborated this criticism and observed:

         "'The necessity of making such disclosures extends perhaps with greater force to the knowledge of a meditated crime, the perpetration of which may, by means of such disclosure, be prevented, than it does to the knowledge of one already committed.'"

        Misprision of felony at common law is an impractically wide crime, a long-standing criticism which remains unanswered in Sykes. It has an undesirable and indiscriminating width:

         "The real harshness lies in the fact that the duty to disclose arises when a person acquires knowledge of an offence, and this he may do quite involuntarily. A says to B: 'Did you know that X stole a book from the library last week?' adding appropriate circumstantial details; or X says to B: 'I stole some money yesterday; will you help me to repay it?' B is a friend of X; he wished to know nothing of X's misdeeds; and yet he is to be a criminal if he does not betray him. It is, furthermore, particularly difficult to defend a law which indiscriminately adds to the injuries of the victim of a crime the penalties of the criminal law should he or she wish to forgive and forget."

Misprision differs from almost all other common law offenses of omission:

         "[T]he duty to act arises not because of the willing assumption of responsibility, the occupation of an office, or the ownership of property, but because of the mere possession of certain knowledge—knowledge possessed accidentally and undesired—knowledge which may indeed have been acquired through some malevolent person."

               We observe that common law misprision is not only beset with practical defects but may implicate constitutional privileges. To sustain the Fifth Amendment right against self-incrimination, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer . . . might be dangerous because injurious disclosure might result." The privilege extends not only to information that would itself support a conviction, but "likewise embraces those which would furnish a link in the chain of evidence to prosecute the claimant. . . ." We note also that it has been suggested that the federal misprision statute may involve the right of privacy. In United States v. Worcester, 190 F. Supp. 548, 566 (D. Mass. 1961), Judge Wyzanski, discussing the federal statute, said:

         "To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that 'as far as possible privacy should be respected.' There is 'a strong reluctance on the part of judges and legislators to sanction invasion of privacy in the detection of crime.' There is 'a general sentiment that the right to privacy is something to be put in balance against the enforcement of the law.' Sir Patrick Devlin, The Enforcement of Morals, p. 19."

               We are persuaded, finding no sound reason not to be, that their lordships' definition of the offense and the composition of its elements properly reflected the crime as it existed at common law. We are satisfied, considering its origin, the impractical and indiscriminate width of its scope, its other obvious deficiencies, and its long non-use, that it is not now compatible with our local circumstances and situation and our general code of laws and jurisprudence. Maintenance of law and order does not demand its application, and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it. If the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and, hopefully, with adequate safeguards. We believe that the common law offense is not acceptable by today's standards, and we are not free to usurp the power of the General Assembly by attempting to fashion one that would be. We hold that misprision of felony is not a chargeable offense in Maryland.

     We have reversed Pope's conviction of the felony of child abuse because the evidence was insufficient to sustain the verdict. She may not be tried again for that crime. As we have held that the crime of misprision of felony does not now exist in Maryland, Pope may not, of course, be retried on a charge of that crime.

         Jackson was arrested outside a restaurant, intoxicated and in possession of a bottle of rum. Jackson had been arrested approximately 390 times, primarily for alcohol-related offenses. The State of Virginia obtained an “interdiction” order prohibiting Jackson from possessing “any alcoholic beverage” or “being drunk in public.” Jackson, since the interdiction order, testified that he had received sentences ranging from sixty days to seven months and had not remained out of jail for any period longer than a month. Jackson explained that “although he knows that it is illegal for him to drink, he cannot stop drinking.” The trial court denied the motion to dismiss, convicted Jackson of possession of alcohol by an interdicted person, and imposed a ninety-day jail term.
Jackson also contended that punishing a violation of an interdiction order as a misdemeanor constitutes “excessive” punishment for his offense.

Code § 4.1-322 states, in pertinent part:

         No person who has been interdicted … shall possess any alcoholic beverages …nor be drunk in public … Any interdicted person found to be in violation of this section shall be guilty of a Class 1 misdemeanor. See Jackson v. Commonwealth, 603 S.E. S.E.2d 122 (Va. 2004).

Jackson v. Commonwealth,       603 S.E.2d 122 (Va. 2004)

Opinion By: Willis, J.

Issue

On appeal from his conviction of possession of alcohol by an interdicted person, in violation of Code § 4.1-322, James Edward Jackson contends (1) that Code § 4.1-322 violates the Eighth Amendment by imposing criminal punishment for the status of being an alcoholic; (2) that the constitutionality of Code § 4.1-322 is predicated on outdated medical knowledge; (3) that incarceration for violation of Code § 4.1-322 offends the Eighth Amendment by imposing a criminal punishment disproportionate to the severity of the offense; and (4) that Code § 4.1-322 violates the Equal Protection Clause of the Fourteenth Amendment by treating homeless alcoholics disparately.          

Facts

On November 22, 1994, pursuant to Code § 4.1-333, a circuit court declared Jackson an habitual drunk and entered an order of interdiction. On May 30, 2003, the police found Jackson outside a restaurant, intoxicated and in possession of a bottle of rum. Jackson testified that he had been arrested approximately 390 times, primarily for alcohol-related offenses. He stated that since the interdiction order, he had received sentences ranging from sixty days to seven months and had not remained out of jail for any period longer than a month. He testified that although he knows that it is illegal for him to drink, he cannot stop drinking. He presented to the trial court six "articles" he had obtained from the Internet about alcoholism. These were lodged with the court and made part of the record. He moved to dismiss the charge based on the four grounds he raises on appeal. The trial court denied the motion to dismiss, convicted Jackson of possession of alcohol by an interdicted person, and imposed a ninety-day jail term.

Reasoning

Jackson first contends that Code § 4.1-322 offends the Eighth Amendment by punishing the status of being an alcoholic. He relies on Robinson v. California, 370 U.S. 660 (1962). In Robinson, the United States Supreme Court held that a statute making it criminally punishable to be a person addicted to narcotics imposed cruel and unusual punishment and violated the Eighth Amendment. The Court noted that the defined crime was the mere status of being addicted to drugs and that the statute required no illegal act or conduct for the imposition of punishment. However, in Powell v. Texas, 392 U.S. 514, (1968), the Supreme Court held constitutional a statute that punished appearing drunk in public, despite evidence of Powell's alcoholism. The Powell Court rejected the argument that public drunkenness was symptomatic of alcoholism and that Robinson forbade imposition of criminal sanctions on chronic alcoholics for public drunkenness. The Powell Court held that appellant was convicted, not for being a chronic alcoholic, but for being drunk in public on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community.

              Applying Powell, Fisher v. Coleman, 486 F. Supp. 311 (W. D. Va. 1979), aff'd, 639 F.2d 191 (4th Cir. 1981), held that the federal interdiction statute, prohibiting an habitual drunkard from purchasing alcohol, did not violate the Eighth Amendment proscription against cruel and unusual punishment. The Court held that the statute "cannot be said to violate the prohibition of the Eighth Amendment when applied to an alcoholic, since the statute makes criminal specific behavior which the state has a legitimate interest in regulating."
 

   Code § 4.1-322 states, in pertinent part:

         No person who has been interdicted pursuant to § 4.1-333 or § 4.1-334 shall possess any alcoholic beverages …nor be drunk in public in violation of Code § 18.2-388. Any interdicted person found to be in violation of this section shall be guilty of a Class 1 misdemeanor.

    Code § 4.1-322 imposes no criminal sanction for the status of being an alcoholic. It forbids specific behavior: possession of alcohol and public drunkenness by interdicted persons. Therefore, in accord with Powell and Fisher, we hold that Code § 4.1-322 does not violate the Eighth Amendment by punishing status or by imposing cruel and unusual punishment.
    Jackson argues that reliance on Powell and Fisher is misguided because those cases were founded on outdated medical knowledge about the "disease" of alcoholism. He asserts that current medical knowledge concerning alcoholism regards the "disease" as one involving a lack of control and volition. The record does not support this contention. Although Jackson included with his motion a series of articles he obtained from the Internet, it is unclear whether these articles were admitted into evidence or were considered by the trial court. However, they were lodged with the court, and are part of the record. Nevertheless, nothing in the record establishes the authoritative value of the articles or the qualifications of their authors. One article is a newspaper report of events taking place in the Illinois court system. The record contains no expert testimony concerning whether Jackson is an alcoholic or what the "disease" of alcoholism involves. "An appellate court must dispose of the case upon the record and cannot base its decision upon appellant's petition or brief, or statements of counsel in open court. We may act only upon facts contained in the record." We do not have before us a record adequate to permit the determinations Jackson challenges us to make. We cannot, in this case and on this record, decide whether the constitutionality of the statute is based on outdated medical knowledge. Furthermore, suggestions for changes in societal views on the causes and effects of alcoholism and their impact on the laws of this state should be addressed to the legislature.
      Jackson next asserts that incarcerating habitual drunks and exposing them to the penalties of a Class 1 misdemeanor is disproportionate to the severity of the crime, thus offending the Eighth Amendment. Code § 4.1-333 allows a circuit court to interdict an "habitual drunk." "The habitual drunkard encompasses one who, like [appellant], is admittedly in the continual habit of being intoxicated from alcohol." "The states are vested with broad police powers in regard to the regulation of the sale and consumption of alcohol to protect the health, safety, and welfare of its citizens." The Virginia legislature has determined that an habitual drunk who cannot conform his behavior to appropriate societal norms should be forbidden to possess alcohol or to appear in public while intoxicated under penalty of a misdemeanor conviction and up to twelve months in jail and/or a $ 2,500 fine. Jackson received a ninety-day jail sentence. He concedes that he has been arrested, primarily for alcohol-related offenses, 390 times.
     "The Eighth Amendment, which forbids cruel and unusual punishment, contains a 'narrow proportionality principle' that 'applies to noncapital sentences. '" The United States Supreme Court "' has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. But '[o] utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. '" "Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution 'does not mandate adoption of any one penological theory. '"    
     Assuming without deciding that a misdemeanor conviction and ninety-day sentence merits proportional analysis, given Jackson's long history of arrests and continued failure to abide by the interdiction order, we cannot say that his sentence was "grossly disproportionate" to the crime he committed. The legislature has deemed it appropriate to impose greater sanctions on the interdicted drunk's repetitive offenses than are prescribed for simple public drunkenness. We do not consider the possibility of a twelve-month sentence disproportionate to the offense when the offender, as here, has been arrested 390 times, has served numerous incarcerations, and has once again been found in a public place, intoxicated and in possession of alcoholic beverages. “Trial and appellate courts "do not sit as a 'super legislature' to second-guess" legislative choices concerning penological policy and sentencing ranges. That Virginia sanctions these offenders more harshly than other states, as Jackson claims, is of little persuasive value. "Our Constitution 'is made for people of fundamentally differing views. “Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some States will always bear the distinction of treating particular offenders more severely than any other State."                
     We hold that neither the sentence imposed on Jackson nor the possible range of punishment violates the Eighth Amendment protections against excessive and disproportionate penalties.
    Finally, Jackson contends that Code § 4.1-322 violates the Equal Protection Clause of the Fourteenth Amendment by treating homeless alcoholics disparately.

             This Court has been reluctant to declare legislative acts unconstitutional, and will do so only when the infirmity is clear, palpable, and practically free from doubt. We accord every legislative act a presumption of constitutionality. Accordingly, we will uphold statutory classifications if they bear some rational relationship to a legitimate legislative interest or purpose. We have said that classification ordinarily will be upheld "if any state of facts can be reasonably conceived that would support it." But where the statute creates a "suspect classification" (e. g. race, sex, or religion) or where it affects a fundamental constitutional right, the presumption of constitutionality fades, and the "strict scrutiny" test, rather than the more relaxed "rational relationship" test applies.

              We do not address whether homeless alcoholics comprise a "suspect" or "non-suspect" class. The record fails to establish that Jackson is a member of the class. No expert testified that Jackson is an alcoholic by medical standards. He provided some articles of uncertain authority and weight, testified that he could not control his consumption of alcohol, and recounted his extensive criminal history of arrests due to alcohol-related offenses. The trial court made no finding that Jackson is an alcoholic. Further, the record is devoid of any evidence that Jackson is homeless. The warrant of arrest states an address for him, and the statement of facts contains no finding that he is homeless. The only suggestion that he is homeless comes from assertions of counsel. We do not consider assertions that are not supported by the record.

    Because the record does not establish that he is a homeless alcoholic, Jackson lacks standing to challenge the constitutionality of the statute based on this alleged classification. "As a general rule, where a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face, that is, as applied to a third person in a hypothetical situation." The judgment of the trial court is affirmed.