Opinion
Record No. 0558-98-1
AUGUST 3, 1999
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Robert P. Frank, Judge
Timothy S. Fisher (Overman Cowardin, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Bray and Senior Judge Overton
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
Ricky Arnez Christian (defendant) was convicted in a bench trial for possession of cocaine with intent to distribute, a violation of Code § 18.2-248, and related firearm offenses. On appeal, he complains that the trial court erroneously refused to suppress evidence seized during an illegal detention and, additionally, that the evidence was insufficient to establish the requisite intent to distribute the offending drugs. We disagree and affirm the convictions.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the appeal.
On appellate review of a denial of a motion to suppress or a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the prevailing party below, the Commonwealth in this instance, granting "all reasonable inferences fairly deducible from that evidence."Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). To prevail, defendant must establish reversible error.
On the evening of October 4, 1996, officers of the Newport News Police Department were conducting a "drug reverse [sting] operation in Fairfield Apartments," prompted by "a lot of complaints in reference to drug sales in that area." Officer W.L. Stokes acted as "security for two female officers [in plain clothes] who . . . were making sales of imitation cocaine to people who walked up or drove up in the area." The officers were equipped with hidden communication devices and, following each transaction, notified an "apprehension team," gathered in the "office area" of a laundromat located in a nearby apartment building, to arrest the purchaser. The office was "just inside the [foyer] doorway" and shared the building with several apartments. Apprehension team officer T.G. Lecroy was assigned "to prevent anyone from getting hurt."
At approximately 10:15 p.m., Officer Stokes observed defendant, holding a gun, walking directly to the building housing the apprehension team and apartments. Using the communication link, he immediately advised the officers that defendant was approaching with "a gun in his hand." Alerted by Stokes' message, Officer Lecroy observed defendant "come through the door, saw a gun, took the gun from him[,]" and escorted him into the "office area," "off the hallway." Once inside, Officer Lecroy immediately recognized defendant as an individual "previously convicted of a felony," and arrested him for possession of the firearm. A search incidental to the arrest produced a plastic bag containing 2.3 grams of cocaine, a pager, and $935. "Th[e] currency was broken into nine $100 bundles and . . . the $35 was just loose in his pocket."
After advising defendant of his Miranda rights, Officer Lecroy "asked . . . how much cocaine he had started with," and defendant answered, "a large eight-ball," an eighth of an ounce of cocaine (3.5 grams). Upon further inquiry, defendant further stated that he had obtained the cocaine from "Wooten," a man known to Lecroy as a cocaine dealer.
At trial, Officer M.L. Davenport was qualified as an expert on "drug matters" and testified that "an eighth of an ounce of cocaine, a pager, nine hundred and thirty-five dollars in currency, and a weapon would . . . be considered inconsistent with personal use of a drug." He explained that a "pager is used by persons in the drug trade as a means of communication," "weapons are used as a means of protect[ion]," and "[t]here's usually large amounts of money which is generally drug proceeds." "[P]ackaging [money] in hundred dollar increments is consistent with . . . distribution [because] [i]t's easier to count the money."
Defendant testified that, on the day of his arrest, he cashed a paycheck for "seven hundred and some dollars, . . . asked the teller not to give [him] any hundred dollar bills and as few fifties as possible, . . . [and] arranged [his] money." Defendant added that he had five hundred dollars with him prior to receiving the check proceeds. He admitted purchasing "about an eight-ball" of cocaine for $65, intending to "smoke it" and smoked "some" in his wife's car, leaving "the stem behind" when he proceeded to the apartment building.
I.
Defendant first argues that he was illegally seized by Officer Lecroy, requiring suppression of all evidence thereafter obtained by police.
"Ultimate questions of reasonable suspicion and probable cause to make a warrantless . . . seizure involve issues of both law and fact and are reviewed de novo on appeal." Glasco v. Commonwealth, 26 Va. App. 763, 770-71, 497 S.E.2d 150, 153 (1998) (citation and internal quotations omitted). "In performing such analysis, we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted).
In Terry v. Ohio, the United States Supreme Court reasoned that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S. 1, 22 (1968). Such "[i]nvestigative stops must be based on articulable facts supporting a reasonable suspicion that, based on the totality of circumstances, the suspect detained has committed or is about to commit a crime." Ford v. Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805 (1998) (citations omitted).
Thus,
[t]he Fourth Amendment does not require a policeman . . . to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46 (1972) (citations omitted).
" 'Whether a seizure is reasonable is determined by balancing an individual's right to be free from arbitrary government intrusions against society's countervailing interest in preventing or detecting crime and in protecting its law enforcement officers.' " Welshman v. Commonwealth, 28 Va. App. 20, 29, 502 S.E.2d 122, 126-27 (1998) (en banc) (citations omitted). "Reasonableness is judged from the perspective of a reasonable officer on the scene allowing for the need of split-second decisions and without regard to the officer's intent or motivation." Scott v. Commonwealth, 20 Va. App. 725, 727, 460 S.E.2d 610, 612 (1995) (citation omitted).
In addition to the particularized conduct of a suspect, this Court has acknowledged that "presence in a high crime area" is a factor which may be considered in assessing justification for an investigatory stop. Brown v. Commonwealth, 15 Va. App. 232, 234 n. 1, 421 S.E.2d 911, 912 n. 1 (1992); see, e.g., Welshman, 28 Va. App. at 32, 502 S.E.2d at 128. Also, the relationship between the distribution of controlled substances and the possession and use of dangerous weapons is "well recognized."Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc).
Here, defendant was observed by police displaying a gun, in an area notorious for "drug sales," during an undercover reverse sting involving numerous police officers, some unarmed, an environment which invited unlawful conduct and fraught with danger. With weapon in hand, defendant entered the area and proceeded to the apartment building occupied both by police and residents. Such circumstances provided a basis for reasonable suspicion that criminal activity was afoot and supported a brief investigatory detention to ascertain defendant's intentions.
Further, "as the United States Supreme Court has held, the absence of probable cause or reasonable suspicion of criminal activity does not necessarily render a detention unlawful."Welshman, 28 Va. App. at 30, 502 S.E.2d at 127. The threat to both police and the public presented by an armed individual under the instant circumstances demanded an immediate investigation. See Scott, 20 Va. App. at 728, 460 S.E.2d at 612; see also State v. Franklin, 704 P.2d 666, 669-70 (Wash.App. 1985). Thus, Lecroy's brief detention of defendant was warranted for the protection of the police and public alike.
After initiating the investigative stop, Lecroy properly seized the weapon "to neutralize the threat of physical harm."Terry, 392 U.S. at 24. When, during the course of such detention, he discovered that defendant was involved in illegal activity, Lecroy acted within his authority to arrest defendant and conduct the disputed search. See id. at 31.
II.
Defendant next contends that the evidence was insufficient to prove an intention to distribute the cocaine in his possession, rather than possession for personal use.
The credibility of a witness, the weight accorded testimony, and the inferences drawn from proven facts are matters to be determined by the fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). "Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence." Lovelace v. Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d 267, 272 (1998). "Whether a hypothesis of innocence is reasonable is a question of fact and a finding by the trial court is binding on appeal unless plainly wrong." Id. at 586, 500 S.E.2d at 273 (citations omitted).
"[F]or a defendant to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his intention to distribute that substance." Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). "Because direct proof of intent [to distribute drugs] is often impossible, it must be shown by circumstantial evidence."Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). Such evidence may include the possession of large sums of money, pagers, and firearms, "regularly recognized as factors indicating an intent to distribute." Glasco, 26 Va. App. at 775, 497 S.E.2d at 156 (citations omitted).
Here, Officer Lecroy discovered 2.3 grams of cocaine, together with a pager, $935, "broken down into nine $100 bundles," and a firearm on defendant's person, all circumstances inconsistent with personal use of the drug. Moreover, defendant possessed no paraphernalia necessary to the consumption of cocaine. Although defendant testified that he possessed the cocaine for personal use and attributed the cash to wages, "[t]he trial court was entitled to disbelieve [defendant's] explanation and conclude that he lied to conceal his guilt." Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512 S.E.2d 823, 827 (1999) (citation omitted). Such evidence sufficiently established that defendant possessed the cocaine with the requisite intent to distribute.
Accordingly, we affirm the convictions.
Affirmed.
I.
"[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22 (1968). "The controlling principle here is that an investigative stop, amounting to a fourth amendment seizure, must be 'supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.' " United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982) (citing Reid v. Georgia, 448 U.S. 438, 440 (1980)).
The police officers had no reasonable or articulable suspicion that Ricky Christian was engaged in criminal activity. Officer Lecroy gave the following reason for detaining Christian:
The reason that I did what I did, was because part of my job that evening was to prevent anyone from getting hurt, and to apprehend suspects who may have purchased illegal narcotics.
When we have undercover officers out in the parking lot which are conducting sales of illegal drugs, imitation illegal drugs, my concern is for their safety along with anyone else that I may be working with if I — and any other people who may be in the area.
When I heard that a man had a gun in the middle of a high drug area which — which we wouldn't have been there if it wasn't a high drug area, then I'm going to take it from him and find out what his purpose is for being there.
The officer testified, however, that Christian did not purchase any drugs and was not suspected of drug activity. The officer had no indication that Christian was or had been engaged in criminal activity. It is not illegal in Virginia to carry a gun if one is lawfully permitted to do so and so long as the gun is not held in a reckless or threatening manner. See Code § 18.2-56.1 and Code § 18.2-282.
Christian lived in one of the apartments in the building where he was arrested. When Christian entered the building, he had not approached the officers who were selling the imitation cocaine. He was not going toward them, and he posed no threat to them. Furthermore, no evidence proved that Christian was going to the laundry room or posed a threat to the officers who were waiting in the laundry room. Those officers were out of sight of persons who may have been using the apartment's entrance and lobby. Officer Lecroy left the laundry room to confront Christian.
The only facts upon which to base the seizure of Christian were that he was carrying a weapon in public. However, carrying an openly displayed firearm in public is not criminal behavior in Virginia. If a person is to transport a firearm from his automobile to his residence, the firearm must be openly displayed. Cf. Code § 18.2-308 (prohibiting generally the carrying of concealed weapons). The record contains no indication that Christian was "brandishing" a firearm in violation of Code § 18.2-282(A). In a state that permits ownership and open display of firearms, the mere fact that a person may be armed does not provide a reason to suspect that the person is violating the law.
For these reasons, I would hold that the trial judge erred in refusing to suppress the evidence.
II.
Although the evidence was sufficient to prove possession of cocaine, it was insufficient to establish an intent to distribute beyond a reasonable doubt. Therefore, I dissent.
"Possession with intent to distribute is a crime which requires 'an act coupled with a specific intent.' "Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc) (citation omitted). "It is elementary that where, as here, an indictment charges an offense which consists of an act combined with a particular intent, proof of the intent is essential to conviction." Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). The Commonwealth must prove specific intent, an element of the charged offense, beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 358, 363 (1970). Thus, "[e]xistence of the intent . . . cannot be based upon surmise or speculation." Patterson, 215 Va. at 699, 213 S.E.2d at 753.
When the Commonwealth's evidence "is wholly circumstantial, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.' " Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "Where inferences are relied upon to establish guilt, they must point to guilt so clearly that any other conclusion would be inconsistent therewith." Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E. 471, 473 (1938).
The principle is well established in Virginia that a relatively small quantity of cocaine warrants the inference that an accused possessed it for personal use. See Dukes, 227 Va. at 122-23, 313 S.E.2d at 383-84. The police seized only 2.3 grams of cocaine from Christian's person. No other evidence indicated an intent to distribute. "The mode of packaging [of the cocaine] and the way the [package was] hidden are as consistent with possession for personal use as they are with intent to distribute." Id. at 123, 313 S.E.2d at 384. The cocaine was not divided into individual and separate packages.
Moreover, Christian made no statements and committed no acts that proved he intended to distribute the cocaine. Christian had entered the building where he lived when the officer seized him. The police officer testified that Christian said he purchased an "eight-ball." The Commonwealth's own evidence established that an "eight-ball" was approximately 3.5 grams and that Christian was "missing" only a little over a gram of cocaine if he began with an "eight-ball." In addition, the Commonwealth's own expert testified that it would not be possible to obtain $900 from the sale of a little over a gram of cocaine. Thus, only through speculation could we conclude that a connection exists between Christian's money and his intention regarding the cocaine. Likewise, proof that Christian possessed a pager, a very common device in our society, does not establish any intent regarding the cocaine. "[C]ircumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty." Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977).
For these reasons, I would also hold that the evidence failed to prove beyond a reasonable doubt that Christian possessed the cocaine with the intent to distribute.