Milteer v. Commonwealth

PRESENT: All the Justices

ELMER MILTEER
OPINION BY
v. Record No. 031558 JUSTICE G. STEVEN AGEE
APRIL 23, 2004
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

I. BACKGROUND AND PROCEEDINGS BELOW

On March 28, 2001, Norfolk police officers Steve Stephens

(“Stephens”) and Maurice S. Joseph (“Joseph”) were screening

packages for narcotics at a Federal Express facility in Norfolk,

Virginia. While doing so, the officers noticed two packages

similar in size, shape and labeling to packages determined

through prior investigations to contain unauthorized (commonly

referred to as “pirated”) compact discs (“CDs”) and

videocassettes. The officers opened the packages pursuant to a

search warrant and discovered that they did indeed contain CDs

and videocassettes.1

The packages were addressed to “Guy” at a business address,

407 Pretlow Street, in the City of Franklin, Virginia. In

conjunction with the Franklin police department, Joseph posed as

a Federal Express employee and delivered both packages to that

address. During the first attempt to deliver the packages, no

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Stephens testified that at least one of the videocassettes
was a copy of a movie that opened in theaters the previous
weekend.
one at that address would accept the packages and pay the

charges due upon delivery. Joseph then made a second delivery

attempt and found Elmer Milteer (“Milteer”) standing behind a

vehicle in the parking lot at 407 Pretlow Street talking on a

cellular telephone. Joseph approached Milteer and told him he

had a delivery and the charge was $101.40. Milteer accepted the

packages without comment or examining the contents, but gave

Joseph $102.00 and told him to keep the change.

Stephens and another police officer observed Milteer place

the packages in the back of his vehicle and drive away.

Stephens followed Milteer’s vehicle for several blocks before

police officers in a marked police vehicle stopped Milteer. The

officers arrested Milteer and searched his vehicle where they

recovered the packages Joseph had just delivered to Milteer, but

also found separate boxes containing 183 CDs and 72

videocassettes. In addition to the CDs and videocassettes,

officers discovered receipts for shipments from New York and a

business license from Murfreesboro, North Carolina indicating

Milteer was in the business of selling, inter alia, T-shirts and

CDs. Officers also recovered a business license from Hertford

County, North Carolina and, from Milteer’s wallet, a handwritten

price list titled “the Underground Wholesale Price List.”

After his arrest Milteer told a Franklin police officer

that he sold items from the back of his truck in Franklin and in

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the area of North Carolina where he lived. Milteer denied

knowing it was illegal to sell the CDs and videocassettes for

which he was arrested and offered to help the officers apprehend

the person from New York who shipped the packages. He also

stated that the CDs or videocassettes would be worth $3.00 to

$5.00 each if he were to sell them.

Milteer was the subject of four indictments involving: (1)

violation of Code § 59.1-41.3 by possession for the purpose of

selling videocassettes produced, manufactured, distributed or

acquired in violation of Chapter 3.1 of Title 59.1, (2)

possession of videocassettes whose labels did not reflect the

true names and addresses of their manufacturers, Code § 59.1-

41.4, (3) violation of Code § 59.1-41.3 by possession for the

purpose of selling CDs produced, manufactured, distributed or

acquired in violation of Chapter 3.1 of Title 59.1, and (4)

possession of CDs whose labels did not reflect the true names

and addresses of their manufacturers, Code § 59.1-41.4. None of

the indictments charged a violation of Code § 59.1-41.2 or

mentioned that statute. The two indictments which cited Code

§ 59.1-41.4 made no reference to Code § 59.1-41.3.

At trial the Commonwealth presented testimony from Phillip

Brooks (“Brooks”), an official with the Recording Industry

Association of America. As an expert on music piracy, Brooks

testified that he examined the 113 CDs delivered to Milteer by

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Joseph and concluded all were counterfeit. He also stated that

none of the CDs were labeled with the name and address of the

true manufacturer (i.e. the counterfeiter). In addition, Brooks

examined the 183 other CDs found in Milteer’s vehicle and

determined that all but four of those CDs were counterfeit.

The Commonwealth also presented testimony from Robert W.

Hunter (“Hunter”), an investigator for the Motion Picture

Association of America. Hunter, as an expert in the field of

counterfeit videocassettes, testified that he had examined the

90 videocassettes contained in the package Joseph delivered to

Milteer and all were counterfeit. Furthermore, the

videocassettes were not labeled with the name or address of the

true manufacturer. Hunter also testified that another 72

videocassettes found in Milteer’s vehicle were also counterfeit

and did not contain the true address or name of the

manufacturer.

At the close of the Commonwealth’s case, Milteer moved to

strike the evidence. Although trial counsel’s arguments are

hard to follow at points, he contended there should only be one

charge against Milteer under Code § 59.1-41.3 and Code § 59.1-

41.4 because these statutes were not intended to establish two

separate offenses: “if you say he’s violating .3 then what

statute are you looking at? . . . You’ve got to look at another

statute first . . . I don’t think if your underlying offense is

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.4 you can go up and get .3 also”. Milteer also asserted that

the CDs and videocassettes retrieved from his vehicle should be

consolidated for purposes of prosecution instead of permitting

the Commonwealth to charge possession of the delivered packages

separately from the CDs and videocassettes already in his

vehicle.

After hearing the arguments of counsel, the trial court

struck two of the indictments so Milteer was tried on one

indictment regarding videocassettes under Code § 59.1-41.3 (“the

videocassette charge”) and the other as to CDs under Code

§ 59.1-41.4 (“the CD charge”). The trial court then convicted

Milteer on both indictments by these conviction orders:

(1) The videocassette charge

Elmer Milteer, Jr did unlawfully and feloniously
possess for purpose of selling or renting . . .
VHS video cassettes that have been produced,
manufacture[d], distributed or acquired in
violation of Chapter 3.1 of Title 59.1 of the
1950 Code of Virginia as amended, Virginia Code
Section 59.1-41.3 . . . .

(2) The CD charge

Elmer Milteer, Jr did unlawfully and feloniously
possess . . . compact disc for the purpose of
sale, rental or transfer by any manufacture[r],
. . . without having on its packaging the true
name and address of the manufacturer, Virginia
Code Section 59.1-41.4 . . . .

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 Upon sentencing for the videocassette charge and the CD

charge, Milteer’s existing probation for a prior drug conviction

was revoked.

On appeal to the Court of Appeals of Virginia, Milteer

argued he could not be convicted under both Code § 59.1-41.3 and

Code § 59.1-41.4 because conduct under Code § 59.1-41.4 can only

be a criminal offense when read in conjunction with Code § 59.1-

41.3. The Court of Appeals affirmed both convictions, noting

that the acts charged in the indictments could separately

violate the proscriptions of Code §§ 59.1-41.2 and 59.1-41.4 and

“defendant was culpable pursuant to Code § 59.1-41.3 for both

offenses.” The opinion did not directly address the issue that

Milteer’s indictment and conviction order on the CD charge for

violating Code § 59.1-41.4 made no reference to Code § 59.1-41.3

or any other statute which directly denominates particular

conduct as a crime.

We awarded Milteer this appeal. For the reasons set out

below, the judgment of the Court of Appeals will be affirmed in

part, reversed in part, and the case remanded.

II. ANALYSIS

On appeal to this Court Milteer asserts that he could not

be convicted of violating Code § 59.1-41.3 and separately

violating Code § 59.1-41.4. He also contends the evidence was

insufficient to sustain his convictions and, consequently, that

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it was error to find he violated his probation in effect at the

time of his convictions.

A. Convictions under Code § 59.1-41.3 and Code § 59.1-41.4.

We are mindful that “[p]enal statutes must be ‘strictly

construed against the State’ and . . . ‘cannot be extended by

implication or construction, or be made to embrace cases which

are not within their letter and spirit.’ ” Commonwealth, Dep't

of Motor Vehicles v. Athey, 261 Va. 385, 388, 542 S.E.2d 764,

766 (2001) (quoting Berry v. City of Chesapeake, 209 Va. 525,

526, 165 S.E.2d 291, 292 (1969)). “It is unquestionably true

that before an accused can be convicted of the violation of a

statute, the crime charged must fall within the provisions

thereof. It is also true that where no offense is charged in an

indictment, the appellate court will reverse the judgment of the

trial court.” Xippas v. Commonwealth, 141 Va. 497, 501, 126

S.E. 207, 207 (1925); see also Commonwealth v. Doss, 159 Va.

968, 973-74, 167 S.E. 371, 373 (1933); Smith v. Commonwealth,

160 Va. 943, 946, 169 S.E. 550, 551 (1933).

Code § 59.1-41.3 makes it “unlawful for any person to

knowingly sell, rent, cause to be sold or rented, or possess for

the purpose of selling or renting any recorded device that has

been produced, manufactured, distributed, or acquired in

violation of any provision of this chapter.” Code § 59.1-41.4

mandates that “every recorded device sold, rented or transferred

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or possessed for the purpose of sale, rental or transfer . . .

shall contain on its packaging the true name and address of the

manufacturer.”2

While the possession of recorded devices for sale that do

not have the “true name and address of the manufacturer” may be

contrary to the provisions of Code § 59.1-41.4, the plain text

of Code § 59.1-41.4 contains no provision making such possession

a crime. Under the General Assembly’s writing of Chapter 3.1 of

Title 59.1, it is only through Code § 59.1-41.3 that possession

of prohibited recorded devices contrary to the standard of Code

§ 59.1-41.4 becomes a criminal act. Yet, neither Milteer’s

indictment nor conviction order for the CD charge under Code

§ 59.1-41.4 makes any reference to Code § 59.1-41.3, either

directly or indirectly, by citation or narrative.

2
The full text of Code § 59.1-41.4 reads as
follows:
Ninety days after July 1, 1972, every recorded device
sold, rented or transferred or possessed for the
purpose of sale, rental or transfer by any
manufacturer, distributor, or wholesale or retail
merchant shall contain on its packaging the true name
and address of the manufacturer. The term
"manufacturer" shall not include the manufacturer of
the cartridge or casing itself. The term "recorded
device" means the tangible medium upon which sounds or
images are recorded or otherwise stored, and includes
any phonograph record, disc, wire, tape,
videocassette, film or other medium now known or later
developed on which sounds or images are recorded or
otherwise stored.

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 By contrast, Milteer’s indictment and conviction order on

the videocassette charge recite that he possessed the

videocassettes, which “have been produced, manufactured,

distributed or acquired in violation of Chapter 3.1 of Title

59.1 . . . Virginia Code § 59.1-41.3.” By the reference to

violation of Chapter 3.1, the videocassette charge could bring

within its ambit either or both a violation of Code § 59.1-41.2

for possessing videocassettes of unauthorized recordings or

having a mislabeled videocassette as set out in Code § 59.1-

41.4. As the Court of Appeals correctly noted, either act is

made a crime by virtue of Code § 59.1-41.3, which makes it

unlawful to possess the videocassettes “in violation of any

provision of this chapter.”

Provided the evidence of guilt is sufficient, possession of

the pirated videocassettes as charged against Milteer is a crime

under Code § 59.1-41.3. This is because the videocassette

charge was specifically made by reference to a statute which

makes the charged conduct a crime: Code § 59.1-41.3.

However, the indictment and conviction order for the CD

charge are markedly different. The only act for which Milteer

was charged and convicted in the CD charge was possessing CDs

“without having on its packaging the true name and address of

the manufacturer, Virginia Code Section 59.1-41.4.” Neither the

indictment nor conviction order states Milteer’s act was “in

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violation of Chapter 3.1 of Title 59.1” as set out in the

videocassette charge. Further, there is no direct or indirect

reference in the CD charge to Code § 59.1-41.3, which the

structure of Chapter 3.1 uses as the vehicle to make an act

under § 59.1-41.4 a crime. It is only with the imprimatur of

Code § 59.1-41.3 that the General Assembly deems acts under Code

§ 59.1-41.4 to be criminal acts. The fatal flaw in Milteer’s

conviction on the CD charge is that it was obtained based on a

statute which, by itself, does not criminalize Milteer’s

actions.

If the Commonwealth had charged and convicted Milteer under

Code § 59.1-41.3 on the CD charge by virtue of acts contrary to

Code § 59.1-41.4, then Milteer would have been properly

convicted of acts that the General Assembly has denominated as a

crime. However, the Commonwealth did not do so and ignored the

clear statutory requirements of Chapter 3.1, which do not make

acts under Code § 59.1-41.4, standing alone, a crime.

Accordingly, the trial court was in error convicting

Milteer of the CD charge and should have granted his motion to

strike that indictment. The Court of Appeals erred in affirming

that conviction. Therefore, the Court of Appeals’ judgment

affirming Milteer’s conviction under Code § 59.1-41.4 on the CD

charge will be reversed.

B. Sufficiency of the Evidence.

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 Milteer also asserts that the Commonwealth’s evidence was

insufficient to show he “knew these tapes delivered to him were

not made in compliance with the statutory requirements.” In

view of our disposition of the CD charge above, we only consider

the sufficiency argument with regard to the videocassette

charge.

As an initial matter, the Commonwealth contends that

Milteer’s claim regarding the sufficiency of the evidence was

procedurally defaulted in the trial court. The Commonwealth

asserts that Milteer only alleged that the evidence failed to

prove his intent to sell or distribute the videocassettes, not

that he did not know the videocassettes he possessed were

illegal reproductions. The Court of Appeals agreed with the

Commonwealth and determined that at trial Milteer only argued

the Commonwealth’s failure to prove he “had the intent to

distribute or sell these items.” Milteer v. Commonwealth, Rec.

No. 0939-02-1, slip op. at 7 (June 3, 2003). We disagree with

the Court of Appeals on this point.

The record shows that, in support of his motion to strike,

Milteer argued at trial that “[t]he Commonwealth has not proven

. . . that my client [acted] knowingly or with the intent to

sell or distribute these items.” (Emphasis added). This

argument, based on the alternate grounds of both “knowledge” and

“intent,” is sufficient to preserve the issue for appeal.

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Having determined Milteer’s sufficiency claim is not

procedurally defaulted, we address the merits.

“Applying well-established principles of appellate review,

we will consider the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party below.” Dowden v.

Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).

The evidence presented at trial proved that Milteer

accepted, paid for, and transported two packages known by police

officers to contain pirated CDs and videocassettes. When the

police stopped Milteer they discovered, in addition to the

delivered packages, an additional 183 CDs and 72 videocassettes,

all but four of which were pirated and mislabeled. Milteer had

a price list in his wallet titled “the Underground Wholesale

Price List.”

At trial, Franklin police officer Richard Harvey (“Harvey”)

testified that he had previously seen Milteer selling CDs,

clothing and jewelry from the back of his truck in the City of

Franklin. After his arrest, Milteer admitted to Harvey that he

sold items from the back of his truck throughout Franklin and

the area of North Carolina where he lived. Milteer admitted,

and the “underground” price list found in his wallet reflected,

that the CDs and videocassettes would sell for between $3.00 and

$5.00 – prices significantly lower than those at retail stores.

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 The evidence also showed that some of the videocassettes in

Milteer’s possession were copies of a movie that had opened in

theaters the weekend prior to his arrest. The trial court could

reasonably infer that these videocassettes were therefore

unavailable for purchase at a retail store and therefore

unavailable for sale to the public.

In sum, there was more than sufficient evidence to prove

that Milteer knowingly possessed illegal reproduction

videocassettes for sale. The trial court did not err in finding

the evidence sufficient to convict Milteer of the videocassette

charge.

C. Probation Revocation.

The trial court sentenced Milteer to two years in prison

with one year and six months suspended for each of the two

convictions. At the time he committed the instant offenses

Milteer was on probation with a fifteen year suspended sentence

for sale of cocaine. Upon conviction for the CD and

videocassette charges, the trial court revoked the suspended

sentence and then re-suspended twelve years. Milteer thus

received three years to serve on the prior offense after serving

the new six-month sentences.

Milteer argues on appeal that revocation of his probation

by the trial court should be reversed if his convictions on the

instant charges are reversed by this Court. Although we have

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determined that his conviction under Code § 59.1-41.4 for the CD

charge was improper, his conviction under Code § 59.1-41.3 on

the videocassette charge will be affirmed. However, since it

cannot be determined from the record the extent to which the

trial court’s judgment revoking Milteer’s probation and

previously suspended sentence was based upon the conviction for

the CD charge, we must reverse the probation revocation judgment

and remand to the trial court for consideration in view of our

opinion in this case.

III. CONCLUSION

Code § 59.1-41.4, by its plain language, contains no

provision criminalizing the failure to abide by its labeling

requirements. Acts in contravention of that statute are only

made criminal under the present version of the Code when an

offense is charged through Code § 59.1-41.3. Since Milteer was

charged and convicted on the CD charge solely under Code § 59.1-

41.4, we will reverse his conviction on the CD charge and

dismiss the indictment. We also find the evidence sufficient

that Milteer knowingly possessed illegally reproduced

videocassettes for sale in violation of Code § 59.1-41.3 and we

will affirm his conviction on the videocassette charge.

Finally, in view of our reversal of the CD charge, we will

reverse the trial court’s judgment revoking Milteer’s probation

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and remand the case for a new proceeding on the probation

revocation if the Commonwealth be so advised.

Affirmed in part,
reversed in part,
and remanded.

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