Alexander L. Manuel v. State of Maryland, No. 1495, Sept. Term 2019. Opinion by 

Arthur, J.

CRIMINAL LAW—POSSESSION OF A CONTROLLED DANGEROUS 

SUBSTANCE

To obtain a conviction for distribution of a controlled dangerous substance under § 5-602 

of the Criminal Law Article of the Maryland Code, the State must prove that the 

defendant had actual or construction possession of a controlled dangerous substance. To 

satisfy the possession element, the State must prove that the defendant had knowledge of 

both the presence and the general character or illicit nature of the substance. The State is 

not required to prove that the defendant knew exactly which illicit substance or 

substances the defendant possessed. 

In this case, the evidence was sufficient to support a conviction for distribution of 

fentanyl, where the evidence demonstrated that the defendant sold a mixture of heroin 

and fentanyl and that the defendant knew that the substance was a controlled dangerous 

substance. Although the court erred by failing to instruct the jury that the State was 

required to prove that the defendant knew of the general character or illicit nature of the 

substance, the error was harmless because the uncontested and overwhelming evidence 

showed that the defendant knew that he possessed a controlled dangerous substance.
Circuit Court for Harford County

Case No. C-12-CR-18-000210

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1495

September Term, 2019

______________________________________

ALEXANDER L. MANUEL

v.

STATE OF MARYLAND

______________________________________

Arthur,

Wells,

Woodward, Patrick L.

 (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Arthur, J.

______________________________________

Filed: September 2, 2021
A Harford County jury convicted appellant Alexander L. Manuel of two counts of 

distribution of heroin and two counts of distribution of fentanyl. The circuit court had 

previously granted his motion for judgment of acquittal on a charge of knowingly 

distributing a mixture containing heroin and fentanyl. 

The court sentenced Manuel to an aggregate term of 50 years of incarceration.

Manuel appeals his convictions, presenting the following questions, which we 

have reordered:

1. Is the evidence sufficient to sustain Mr. Manuel’s convictions for 

distribution of fentanyl? 

2. Where the defendant was charged with distribution of heroin and 

fentanyl, did the lower court err in failing to instruct the jury, as 

requested, as to the scienter required to establish the distribution of 

those substances?

We shall affirm the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

A grand jury indicted Manuel on two counts of distribution of heroin and two 

counts of distribution of fentanyl in violation of Maryland Code (2002, 2012 Repl. Vol., 

2018 Supp.), § 5-602 of the Criminal Law Article (“Crim. Law”). The grand jury also

indicted Manuel on two counts of “knowingly” distributing a mixture containing heroin 

and fentanyl in violation of Crim. Law § 5-608.1. 

At trial, the defense did not challenge the evidence that Manuel distributed heroin. 

Instead, it focused on the lack of evidence that Manuel knowingly distributed fentanyl. 

In his opening statement, defense counsel told the jury that the defense was “not 

going to dispute much” of the evidence, which he said was “pretty strong for the State.” 
2

Defense counsel conceded that Manuel had conversations and meetings with an

undercover detective, but pointed out that they had discussed heroin, not fentanyl. 

Defense counsel added that Manuel never knowingly possessed or distributed fentanyl, 

which he explained was similar in appearance to heroin. In conclusion, defense counsel 

stated, “We’re very confident that you will find Mr. Manuel not guilty of distributing the 

fentanyl.” 

Detective Ryan Nelson, who was assigned to the Harford County Narcotics Task 

Force and worked on the undercover investigation of Manuel, testified that he contacted 

Manuel by telephone and made arrangements to purchase $150 worth of heroin. On

April 5, 2018, Detective Nelson met Manuel at a convenience store to complete the 

transaction, which was recorded on covert audiovisual equipment. The recordings of the 

transactions between Manuel and Detective Nelson were admitted into evidence without 

objection and were played for the jury. 

Detective Brian Wyszga was involved in the undercover investigation and was 

assigned to conduct surveillance of Manuel before the transaction on April 5, 2018. 

Detective Wyszga followed Manuel as Manuel left his place of employment in the 

passenger seat of a car. The car stopped at a house. Manuel went into the house for less 

than two minutes and returned to the car, which proceeded to the convenience store, 

where the transaction took place. Detective Wyszga observed as Manuel walked over to 

the driver’s side window of Detective Nelson’s car, made contact with him, and departed 

in less than a minute, which Detective Wyszga stated was “a common activity consistent 

with a drug transaction[.]” 
3

Upon receiving the package from Manuel, Detective Nelson confronted Manuel

about the quantity, saying that it appeared to be “light.” Manuel responded that he would 

“double it the next time” to make up for the shortage. The package contained a white, 

rock-like substance that was later tested and found to contain cocaine, heroin, and 

fentanyl. 

On April 10, 2018, Detective Nelson arranged a second controlled purchase of 

$150 worth of heroin from Manuel. That transaction was also recorded. Manuel handed 

Detective Nelson a package that consisted of three items: a clear plastic bag containing a 

white powder that was later tested and found to contain heroin and fentanyl; and two 

small plastic bags containing a brownish substance that were found to contain fentanyl

alone. 

Detective Nelson, who had been involved in approximately 100 undercover 

narcotics investigations, stated that “[i]t is just known on the street” that fentanyl is added 

to heroin to make it more potent. He testified that, during one of the transactions, Manuel 

said that “this was not his normal product[,]” which Detective Nelson interpreted to mean 

that “it might be stronger” than the normal product. 

On cross-examination, Detective Nelson agreed that not every street product 

contains fentanyl, and he confirmed that he asked Manuel only for heroin. Detective 

Nelson acknowledged that it is visually difficult to distinguish heroin from fentanyl.

Senior Trooper John Stevens of the Maryland State Police testified that he had

nine years of experience in narcotics investigations and had been involved in over 500 

drug cases. He explained that it is “more common than not to have heroin adulterated 
4

with fentanyl now because fentanyl is a lot less expensive” (apparently than heroin).

“[W]hen someone orders heroin,” he said, “a lot of times that is a generic term for 

fentanyl since a lot of people who are buying drugs are not versed in the difference.” He 

added that heroin and fentanyl were “interchangeable term[s].” 

At the close of the State’s case, defense counsel moved for judgment of acquittal 

on all counts, asserting that the State had not met its burden of proving that Manuel knew

that the substance he sold to Detective Nelson contained fentanyl. Defense counsel’s 

argument did not address the merits of the motion for judgment of acquittal on the two 

counts concerning the distribution of heroin. 

The court granted the motion for judgment of acquittal on the counts for 

knowingly distributing a mixture containing heroin and fentanyl, finding that the State 

had presented no evidence that showed that Manuel knew that the substance he was 

distributing contained fentanyl. The court denied the motion on the counts for 

distribution of heroin and the counts for distribution of fentanyl. 

The defense rested without presenting any evidence. Defense counsel renewed the 

motion for judgment of acquittal after the defense rested. The court denied the motion, 

again.

In discussing jury instructions with the court, defense counsel argued that, 

although Manuel had been acquitted of the charges of knowingly distributing a mixture 

containing heroin and fentanyl in violation of Crim. Law § 5-608.1, the jury should be 

instructed that knowledge is an element of the crime of distribution of fentanyl in 

violation of Crim. Law § 5-602. The court declined to give the requested instruction, 
5

reasoning that Manuel was no longer subject to the penalty in § 5-608.1 for knowingly 

distributing fentanyl. 

Defense counsel then requested that the court include a “general intent”

instruction, stating, “any criminal offense requires mens rea[;] it requires intent[.]” The 

court concluded that the instruction was not warranted because it was not included in the 

pattern jury instruction for distribution of a controlled dangerous substance. 

In accordance with the pattern jury instructions, the court charged the jury as 

follows:

The Defendant is charged with two counts of the crime of distribution of 

heroin, which is a controlled dangerous substance. In order to convict the 

Defendant, the State must prove that the Defendant sold, exchanged, 

transferred or gave away heroin, and that the substance was heroin.

The Defendant is charged with two counts of the crime of distribution of 

fentanyl, which is a controlled dangerous substance. In order to convict the 

Defendant, the State must prove that the Defendant sold, exchanged, 

transferred or gave away fentanyl, and that the substance was fentanyl.[1]

1 The Maryland pattern jury instruction for distribution of a controlled dangerous 

substance states:

The defendant is charged with the crime of distribution of (controlled 

dangerous substance), which is a controlled dangerous substance. In order to 

convict the defendant, the State must prove:

(1) that the defendant sold, exchanged, transferred, or gave away (controlled 

dangerous substance); and

(2) that the substance was (controlled dangerous substance). 

MPJI-Cr. 4:24.2.
6

After the court instructed the jury, the court asked counsel, “[I]s there any reason 

that you need to approach on the jury instructions?” Defense counsel responded, “No.” 

In closing argument, defense counsel appeared to concede that Manuel was guilty 

of distribution of heroin, but argued that the State had not met its burden of proving that 

Manuel distributed fentanyl:

. . . [W]e were very candid in the opening [statement]. We told you that 

there was a video. We told you that there were transactions on the video. 

We tried to focus your attention on the issues at stake, and that is the 

fentanyl issue in particular. 

. . . [W]e heard several of the State’s witnesses tell you that fentanyl and [ 

] heroin is a common mixture. Well, I think pretty much the exact words 

from Detective Nelson was that it is more likely than not that a package on 

the street contains some fentanyl. Well, ladies and gentlemen, more likely 

than not is not proof beyond a reasonable doubt. . . .

I believe [O]fficer Stevens said mostly or most of the packages on 

the street contain fentanyl. Again, that is not proof beyond a reasonable 

doubt. . . . 

So, again hold the State to their burden. If they are going to charge 

Mr. Manuel with distribution of fentanyl, make them prove it is fentanyl. . . 

. Heroin was bargained for, not fentanyl.

I would ask you to review all the evidence carefully. Don’t 

automatically find Mr. Manuel guilty. Discuss it first. I’m confident that 

you will find Mr. Manuel not guilty of the fentanyl. 

During jury deliberations, the court received a note from the jury, and the 

following colloquy ensued: 

THE COURT: We spoke in chambers. We have a note from the 

jury. It says, Does it matter that the Defendant was aware of what 

drugs were in the bag, a/k/a does intent matter?
7

We have had some discussions and I have proposed to respond that 

the elements of the charged offenses are outlined in the jury 

instructions. 

Mr. Lewis, any objection to that? 

[PROSECUTOR]: No objection by the State. 

THE COURT: Mr. Janowich? 

[DEFENSE COUNSEL]: Your Honor, I would simply answer in the 

affirmative, yes, it does matter and intent does matter as I requested 

the jury instruction. So, I would respectfully differ. 

THE COURT: I understand. Of course, I have denied your request 

that that language be included in the jury instructions. So, I’m not 

going to change it at this point. I will say the elements of the 

charged offenses are outlined in the jury instructions[.] 

Within 20 minutes after the court responded to the jury’s note, the jury reached a 

verdict, finding Manuel guilty of two counts of distribution of heroin and two counts

distribution of fentanyl. This appeal followed. 

DISCUSSION

I. Sufficiency of the Evidence

Manuel contends that the evidence at trial was insufficient to sustain his 

convictions for distributing fentanyl. We disagree. 

When addressing a sufficiency challenge to a criminal conviction, this Court asks 

“‘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.’” McClurkin v. State, 222 Md. App. 461, 486 (2015) (quoting Jackson 

v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). “In applying that standard, 
8

we give ‘due regard to the [fact-finder’s] findings of facts, its resolution of conflicting 

evidence, and, significantly, its opportunity to observe and assess the credibility of 

witnesses.’” McClurkin v. State, 222 Md. App. at 486 (quoting Harrison v. State, 382 

Md. 477, 488 (2004)). On appeal, we will not “retry the case” or “re-weigh the 

credibility of witnesses or attempt to resolve any conflicts in the evidence.” Smith v. 

State, 415 Md. 174, 185 (2010). Consequently, the dispositive issue is not “whether the 

evidence should have or probably would have persuaded the majority of fact finders but 

only whether it possibly could have persuaded any rational fact finder.” Fraidin v. State, 

85 Md. App. 231, 241 (1991) (emphasis in original); accord Stanley v. State, 248 Md. 

App. 539, 564-65 (2020).

Manuel contends that the evidence was insufficient to sustain his convictions for 

distribution of fentanyl because there was no evidence that he knew that the substance he 

was distributing contained fentanyl. The State responds that it was not required to prove 

that Manuel knew, specifically, that the heroin was mixed with fentanyl, but only that he 

had knowledge of the “general character or illicit nature” of the substance. The State 

contends that even if Manuel did not know that the substance contained fentanyl, he 

knew that he possessed an illicit substance; therefore, the knowledge element was 

satisfied. 

Manuel was convicted of distribution of a controlled dangerous substance, but not 

with possession of it. Nevertheless, “[i]t is not possible, under [Maryland’s controlled 

dangerous substances laws] to ‘distribute’ a controlled dangerous substance in violation 

of [Crim. Law] § 5-602 unless the distributor has actual or constructive possession 
9

(dominion or control) of the substance.” Anderson v. State, 385 Md. 123, 132-33 (2005). 

“Thus, possession of the substance distributed is necessarily an element of the 

distribution.” Id.

One of the elements of the crime of possession of a controlled dangerous 

substance, and therefore also an element of distribution, is that the defendant had 

knowledge of “both the presence and the general character or illicit nature of the 

substance.” Dawkins v. State, 313 Md. 638, 651 (1988). See also Smith v. State, 415 Md.

at 187 (stating that “[i]nherent in the element of exercising dominion and control is the 

requirement that the defendant knew that the substance was a [controlled dangerous 

substance]”). “[S]uch knowledge may be proven by circumstantial evidence and by 

inferences drawn therefrom.” Dawkins, 313 Md. at 651. 

Manuel argues that he could not be found guilty of distribution of fentanyl unless 

the State established that he knew that he was distributing fentanyl. We know of no

Maryland case addressing an argument that, to obtain a conviction for distribution of a 

controlled dangerous substance, the State must prove that the defendants were aware of 

the specific substance that they distributed. We find guidance, however, in the decisions 

of other state and federal appellate courts. 

In United States v. Gonzalez, 700 F.2d 196, 199 (5th Cir. 1983), the defendant was 

charged with possession of heroin with intent to distribute (and related crimes) after the 

authorities found a large quantity of heroin in a car that he had been driving. The jury 

sent a note, inquiring whether “it constitute[s] possession . . . if [the defendant] knew 

there was contraband in the car but did not know it was heroin.” Id. at 200. In response, 
10

the court instructed the jury that it could convict the defendant for possession of heroin if 

it found that the defendant “knew that there was some controlled substance in the car, 

whether or not he knew it was actually heroin or some other drug or narcotic[.]” Id. The 

Fifth Circuit held that the supplemental instruction was an accurate statement of the law. 

Id. at 201. The court explained that, “[c]ontrary to [the defendant’s] argument, the 

government is not required to prove that a defendant knew the exact nature of the 

substance with which he was dealing; it is sufficient that he was aware that he possessed 

some controlled substance.” Id. at 200.

More recently, the Supreme Court interpreted the federal Controlled Substance 

Act, “which makes it ‘unlawful for any person knowingly or intentionally ... to 

manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or 

dispense, a controlled substance.’” McFadden v. United States, 576 U.S. 186, 191 (2015)

(quoting 18 U.S.C. § 841(a)(1)). Although the statute expressly contains a knowledge 

requirement, the Court held that that “requirement may be met by showing that the 

defendant knew he possessed a substance listed on the schedules, even if he did not know 

which substance it was.” Id. at 192; accord United States v. Colston, 4 F.4th 1179 (11th 

Cir. 2001).

Other federal appellate courts have reached similar conclusions. See United States 

v. Jefferson, 791 F.3d 1013, 1015 (9th Cir. 2015) (holding that, in a prosecution for 

knowingly importing or exporting a controlled substance in violation of 18 U.S.C. § 960, 

“[t]he government is not required to prove that the defendant knew the type or quantity of 

the controlled substance he imported to obtain a conviction”); United States v. Lopez-
11

Martinez, 725 F.2d 471, 474 (9th Cir. 1984) (stating that “‘a defendant who has 

knowledge that he possesses a controlled substance may have the state of mind necessary 

for conviction even if he does not know which controlled substance he possesses’”) 

(quoting United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976)); see also United 

States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (stating that a defendant who

deliberately chooses not to learn what the substance was “so he could assert his ignorance 

if he was discovered with the substance in his possession,” is “chargeable with 

knowledge”).

In State v. Stefani, 132 P.3d 455 (Idaho Ct. App. 2005), the Court of Appeals of 

Idaho held that, in a prosecution for possession of a controlled dangerous substance, the 

prosecution “need only prove the defendant’s knowledge that he had a controlled 

substance in his possession and need not prove that the defendant was aware of the 

precise type of controlled substance.” Id. at 461. The court reasoned that: 

The purpose of the intent element in the definition of a possession offense 

is to separate innocent, accidental, or inadvertent conduct from criminal 

behavior. Requiring knowledge of the specific type of controlled substance 

would not further this policy, for an individual’s mistake as to which 

controlled substance he possessed does not negate criminal intent. . . . 

[W]hether he thinks those drugs are methamphetamine or cocaine or heroin, 

he knows that he is engaged in conduct prohibited by our laws. An 

individual ought not to escape punishment for possessing an illegal 

substance merely because he mistakenly believed (or claims to have 

believed) that it was a different illegal substance.

Id.

2

2

In addition to some of the federal cases cited above, the Idaho court relied on 

Commonwealth v. Rodriguez, 614 N.E.2d 649, 653 (Mass. 1993); State v. Edwards, 607 

A.2d 1312, 1313 (N.J. App. Div.1992); State v. Engen, 993 P.2d 161, 171 (Or. App. 
12

We concur with this reasoning. Consequently we hold that, to prove the element 

of possession in a prosecution for distribution of a controlled dangerous substance, 

pursuant to § 5-602 of the Criminal Law Article, the State is not required to prove that the 

defendants knew exactly which illegal substance they possessed. The element of 

knowledge is satisfied when the evidence demonstrates that the defendants are aware of 

the “general character or illicit nature of the substance.” Dawkins, 313 Md. at 651. 

With that in mind, we conclude that the evidence at trial was sufficient to support 

a finding that Manuel knew of the general character or illicit nature of the substance. 

Indeed, by not challenging the sufficiency of evidence to convict him of distribution of 

heroin, Manuel has essentially conceded that point. Whether he was aware that fentanyl 

was present along with the heroin is immaterial. The evidence was sufficient to prove 

that he knew that what he sold to Detective Nelson was a controlled dangerous 

substance.

3

II. Scienter Instruction

1999), superseded by statute as stated in Rudnitskyy v. State, 464 P.2d 471, 478-79 (Or. 

App. 2020); State v. Nunez-Martinez, 951 P.2d 823, 825 (Wash. App. 1998); and State v. 

Sartin, 546 N.W.2d 449, 452 (Wis. 1996).

3 By contrast, to prove that Manuel “knowingly” distributed fentanyl in violation 

of Crim. Law § 5-608.1, the State was required to show that Manuel knew that he was 

distributing fentanyl, and not just any illicit substance. Notably, when a defendant is 

found guilty of violating § 5-608.1, a court must impose an additional sentence of 10 

years, which must run consecutively to any other sentence that the court imposes. Crim. 

Law § 5-608.1(b)-(c).
13

Manuel contends that we must reverse his convictions for distribution of heroin 

and distribution of fentanyl because the court erred in failing to instruct the jury that he 

could not be found guilty of distributing a controlled dangerous substance absent 

knowledge of the presence and illicit character of the substance. The State responds that 

the court properly gave the pattern jury instruction on distribution of a controlled 

dangerous substance. Alternatively, the State maintains that any error in failing to 

instruct the jury on scienter was harmless because the evidence at trial clearly 

demonstrated that Manuel was aware that he was distributing a controlled dangerous 

substance.4

As an initial matter, we note that Manuel did not object to the instructions given to 

the jury at the close of the evidence. Accordingly, the scope of our review is limited to 

the court’s response to the note from the jury. See Md. Rule 4-325(e) (2019) (stating that 

“[n]o party may assign as error the giving or the failure to give an instruction unless the 

party objects on the record promptly after the court instructs the jury, stating distinctly 

the matter to which the party objects and the grounds of the objection[]”);5 Watts v. State, 

457 Md. 419, 427 (2018) (stating that, “‘[u]nless the attorney preserves the point by 

4 The State argues that Manuel failed to preserve his challenge to the convictions 

for distribution of heroin in violation of § 5-602, because he did not argue at trial that 

knowledge was an element of that offense, but only of distribution of fentanyl in 

violation of § 5-602. As the omitted instruction would have applied to both distribution 

of heroin and distribution of fentanyl in violation of § 5-602, we shall consider his 

argument notwithstanding the potential problem with preservation. 

5 As of July 1, 2021, former Rule 4-325(e) became Rule 4-325(f). The current rule 

is substantively identical to the former rule. 
14

proper objection after the charge, or has somehow made it crystal clear that there is an 

ongoing objection to the failure of the court to give the requested instruction, the 

objection may be lost[]’”) (quoting Sims v. State, 319 Md. 540, 549 (1990)).

Maryland Rule 4-325(c) provides that “[t]he court may, and at the request of any 

party shall, instruct the jury as to the applicable law and the extent to which the 

instructions are binding.” “Normally, jury instructions are given ‘at the conclusion of all 

the evidence and before closing arguments,’ but the court ‘may supplement them at a 

later time when appropriate.’” Sweeney v. State, 242 Md. App. 160, 173 (2019) (quoting 

Md. Rule 4-325(a)).

“Supplemental instructions are often triggered by a jury question.” Id. “The 

decision of whether to provide a supplemental instruction, including an instruction given 

in response to a question from the jury, is within the discretion of the trial court and will 

not be disturbed on appeal absent a clear abuse of discretion.” Jones v. State, 240 Md. 

App. 26, 40 (2019). 

“[N]ot all jury questions require an answer—it may also be appropriate for the 

trial judge simply to tell the jury to rely on the instructions given prior to closing 

arguments.” Sweeney v. State, 242 Md. App. at 173. But, “[w]hen a jury question 

involves an issue central to the case, ‘a trial court must respond . . . in a way that clarifies 

the confusion evidenced by the query.’” Id. (quoting State v. Baby, 404 Md. 220, 263

(2008)). 

“A requested jury instruction, general or supplemental, must be given when the 

following three requirements are satisfied: first, it must be a correct statement of the law; 
15

second, the instruction must apply to the facts of the case; and third, it must not be ‘fairly 

covered elsewhere’ in the jury instructions[.]” Sweeney v. State, 242 Md. App. at 173-74

(emphasis in original) (citing Dickey v. State, 404 Md. 187, 197-98 (2008)). Applying 

that three-part test, we conclude that the trial court erred in not giving the jury a 

supplemental instruction to the effect that the State must prove that Manuel knew of the 

general character or illicit nature of the substance before Manuel could be found guilty of 

distribution of a controlled dangerous substance. 

First, the supplemental instruction was a correct statement of the law: as explained 

earlier in this opinion, distribution entails possession, and possession entails knowledge 

of the general character or illicit nature of the substance. Therefore, that knowledge is an 

element of distribution of a controlled dangerous substance. 

Second, the requested instruction was applicable to the facts of the case: the State 

charged Manuel with distribution of a controlled dangerous substance. 

Third and finally, the requested instruction on scienter was not fairly covered 

elsewhere in the instructions. If the State had charged Manuel with both possession and 

distribution of a controlled dangerous substance, the court would certainly have 

instructed the jury on the elements of possession, including the requirement “that the 

defendant knew the general character or illicit nature of the substance[.]”6 The jury did 

not receive that instruction because the State did not charge Manuel with possession.

6 See MPJI-Cr 4:24 (Narcotics and Controlled Dangerous Substance – Possession), 

which provides:
16

As all three of the requirements in Sweeney were satisfied, we conclude that the 

court erred in not instructing the jury on the element of knowledge where the defendant 

was charged with distribution of a controlled dangerous substance.

7

 

Nonetheless, Manuel is not entitled to an automatic reversal of his convictions. 

Rather, we must reverse the judgments only if we are unable “‘to declare a belief, beyond 

a reasonable doubt, that the error in no way influenced the verdict.’” Taylor v. State, 473

Md. 205, ___, 249 A.3d 810, 828 (2021) (quoting Dorsey v. State, 276 Md. 638, 659

(1976)). 

Where the error involves the omission of an element of an offense from a jury 

instruction, the reviewing court must ask “whether the record contains evidence that

could rationally lead to a contrary finding with respect to the omitted element.” 

In order to convict the defendant of possession of (controlled dangerous 

substance), the State must prove:

(1) that the defendant knowingly possessed the substance;

(2) that the defendant knew the general character or illicit nature of the 

substance; and

(3) that the substance was (controlled dangerous substance). 

7

In concluding that the court was required to supplement the pattern jury 

instruction for distribution of a controlled dangerous substance, we do not mean to 

suggest “a departure from the appellate policy of general adherence to the Maryland 

Criminal Pattern Jury Instructions.” Rajnic v. State, 106 Md. App. 286, 291 n.1 (1995). 

Our holding is limited to cases in which the State charges the defendant with distribution 

of a controlled dangerous substance; the jury instructions do not otherwise cover the 

elements of possession (for example, because the State did not charge the defendant with 

possession of a controlled dangerous substance); and the instruction is either requested or 

becomes necessary to clarify confusion expressed by the jury on an issue central to the 

case. 
17

Nottingham v. State, 227 Md. App. 592, 611 (2016) (quoting Neder v. United States, 527 

U.S. 1, 19 (1999)). “If, in answering that question, ‘a reviewing court concludes beyond 

a reasonable doubt that the omitted element was uncontested and supported by 

overwhelming evidence, such that the jury verdict would have been the same absent the 

error, the erroneous instruction is properly found to be harmless.’” Id. (quoting Neder v. 

United States, 527 U.S. at 17). 

The State cites Heckstall v. State, 120 Md. App. 621 (1998), in support of its 

assertion that the instructional error was harmless. In that case, the police observed the 

defendant and another person engaging in what appeared to be several drug transactions:

In each transaction, [the defendant] was approached by one or more 

individuals, followed by a brief conversation and an exchange of cash. 

[The defendant] would then enter the housing complex and return moments 

later with an object that appeared to be heroin. After receiving the object, 

the individual who had approached and exchanged cash with [the 

defendant] would depart. 

Id. at 624 n.2. 

The defendant was convicted of possession of heroin and conspiracy to distribute 

heroin. Id.

On appeal, this Court held that the trial court erred in giving a supplemental jury 

instruction on possession that omitted language concerning the State’s obligation to prove 

that the defendant had knowledge of the illicit character of the substance. Id. at 628. The 

error was, however, harmless, because it was “inconceivable that the jury, after 

considering the evidence before it, could have come to any other conclusion than that [the 
18

defendant] was aware of the ‘general character and illicit nature’ of the substance being 

sold.” Id. at 629.

Here, Manuel’s knowledge of the illicit nature of the substance being sold was 

supported by uncontested evidence. Indeed, the defense implicitly conceded that Manuel 

sold heroin to Detective Nelson. As stated earlier in this opinion, the State was not 

required to prove that Manuel knew which specific substance or substances he was 

distributing, but only that he was aware of their general character or illicit nature. 

Consequently, the only conclusion the jury could have reached was that Manuel knew 

that he possessed a controlled dangerous substance. In these circumstances, we have no 

difficulty in declaring our belief, beyond a reasonable doubt, that the instructional error 

had no influence on the verdict and, thus, that it was harmless.

JUDGMENTS OF THE CIRCUIT COURT 

FOR HARFORD COUNTY AFFIRMED. 

COSTS TO BE PAID BY APPELLANT.