dissenting:
As the majority opinion indicates, there was evidence at trial disclosing that Stephen Leach, together with his brother Michael, resided at the Erdman Avenue apartment at the time of the crime. Indeed, Stephen listed the apartment as his residence address with the Department of Motor Vehicles and with his employer. He was in possession of a key to the apartment which he was observed to use on several occasions at the time of the crime. When arrested, Stephen told the police that he resided at the Erdman Avenue apartment and he made a similar disclosure to the District Court Commissioner. There was evidence that shortly before the crime Stephen and his brother were photographed inside the apartment with a third party who was holding a cache of PCP adulterated flakes. To be sure, there was other evidence that the telephone and gas and electric bills were listed in Michael’s name. And there was testimony from a friend of Stephen that, at the time of the crime, Stephen lived at an apartment approximately one and one-half miles from the Erdman Avenue apartment.
The incriminating evidence of illegal drug and narcotic paraphernalia involvement was found in the apartment’s single bedroom and in the kitchen. The single bed in the bedroom was described as a large one. There was no evidence, one way or the other, as to whether Stephen or Michael slept in the bed. The trial judge declined to "assume” that the brothers were sleeping in the same bed. While he said that Michael was "the occupant, possessor of the apartment,” he did not conclude, as the majority seems to indicate, that Stephen did not also reside at the premises. To the contrary, the trial judge, as trier of fact, found that
"[biased on the evidence in the case, primarily the evidence of Mr. Stephen Leach’s access to the apart*599ment, the fact he had the key to the apartment, the fact he had at one point the motorcycle registered at the apartment, the fact that he gave this apartment as his address at the time of the arrest, I believe there is sufficient evidence to justify a . .. finding of guilty of ... possession of Phencyclindine, and, in addition, I find that this evidence is buttressed by the ... photograph in evidence bearing the date December, 1979 . . .
Notwithstanding this evidence, and the inferences reasonably to be drawn therefrom, the majority, in reversing, concludes as a matter of law that the evidence was legally insufficient to prove that Stephen exercised actual or constructive dominion or control over the illegal narcotics and narcotic paraphernalia in the sense that he exercised some restraining or directing influence over these items.
In so holding, the Court has lost sight of the first principle of appellate review of nonjury criminal cases. Maryland Rule 886 provides:
"When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”
We have said time and again that in reviewing a criminal case that has been tried by the court, sitting without a jury, the question before us is not whether we might have reached a different conclusion from that of the trial court, but whether the trial court had before it sufficient evidence upon which it could fairly be convinced beyond a reasonable doubt of the defendant’s guilt of the offense charged. Proof of guilt beyond all doubt has never been required; the difference in degree of proof is ordinarily for the trier of fact. See, e.g., Tasco v. State, 223 Md. 503, 165 A.2d 456 (1960); Cooper v. State, 220 Md. 183, 152 A.2d 120 (1959). In view of the facts, *600as disclosed by the record, I think that the evidence that Stephen lived with his brother in an apartment saturated with illegal narcotics and narcotic paraphernalia was legally sufficient, in the circumstances, to support the trial judge’s conclusion that Stephen, as well as Michael, was guilty of the offenses charged.