COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
DERRICK GRIER
OPINION BY
v. Record No. 0421-00-1 JUDGE RICHARD S. BRAY
MAY 29, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Derrick Grier (defendant) was convicted in a bench trial for
possession of heroin with the intent to distribute, possession of
a firearm while in possession of the heroin, and possession of a
firearm by a convicted felon. On appeal, defendant contends the
conviction for heroin possession was based upon an indictment that
did not set forth a crime and was, therefore, void. He also
challenges the sufficiency of the evidence to prove the two
firearm offenses. Finding no error, we affirm the convictions.
In accordance with well established principles, we consider
the evidence most favorably to the Commonwealth, the prevailing
party below. Boney v. Commonwealth, 29 Va. App. 795, 798, 514
S.E.2d 810, 811 (1999).
I.
Portsmouth Police Officer P.J. Grover, while conducting a
"spotting operation" in the 1700 block of Chestnut Street,
observed a black Oldsmobile "pull into the area" and "stop[] in
the road." A woman was operating the vehicle and a man, later
identified as defendant, occupied the front passenger seat.
Aided by binoculars, Grover watched two men approach the
passenger window of the car and exchange cash for a "small
item. . . . Then a . . . female pulled up in a small vehicle[,]
. . . got out[,] . . . yelled in the direction of the black
Oldsmobile, 'I didn't think there was any dope out here,'" and
purchased a "small item" at the "driver's side" of the vehicle.
After witnessing several similar transactions, including the
purchase of a "capsule" at the "driver's window," which Grover
"could see" and "suspected to be . . . heroin," Grover summoned
a "take-down" team of officers. While awaiting arrival of the
team, Grover observed another cash for "capsule" transaction at
the passenger window.
Portsmouth Police Sergeant B.K. Abdul-Ali, accompanied by
Officer James Lewis, responded to Grover's radio message and
"fell in behind" the Oldsmobile as the vehicle "pulled out."
Abdul-Ali "activated emergency equipment on the police car" and,
"[a]s the vehicle . . . began to stop," noticed defendant, still
in the front passenger seat, "lean[] forward and [sit] back real
fast." Abdul-Ali and Lewis approached the car, opened the
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passenger door, "had [defendant] step out . . . [and] patted him
down for weapons." Abdul-Ali then "reached down in the front of
the [passenger] seat area," beneath "where defendant was
sitting" when he "leaned forward," and discovered a plastic bag
containing 44 capsules of heroin, "on top of" a 9mm
semi-automatic handgun, the offending drugs and weapon.
Defendant was arraigned in the trial court on a three-count
indictment, Count 1 of which alleged he "did knowingly and
intentionally possess an imitation controlled substance
represented to be Heroin, a controlled substance listed in
Schedule I of the Drug Control Act. An Unclassified felony, in
violation of 18.2-248 . . . ." 1 Immediately following
arraignment and conclusion of the pretrial colloquy between
defendant and the court, the prosecutor advised the court that
the indictment referenced "an imitation controlled substance,"
although "[t]his is possession with intent to distribute a
controlled substance case, not . . . an imitation controlled
substance." The court, noting the indictment correctly recited
"the code section," inquired of defendant's counsel if "that
create[d] any problem[,]" and he responded, "No." The court
then ordered Count 1 of the indictment "amend[ed] . . . to
1
The caption of the indictment referenced three subject
offenses: "POSSESSION OF A CONTROLLED SUBSTANCE WITH THE INTENT
TO DISTRIBUTE," "POSSESSION OF A FIREARM WHILE IN POSSESSION
WITH THE INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE," and
"POSSESSION OF A FIREARM BY A CONVICTED FELON."
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delete the word 'imitation,'" provided "there is no objection
and no difficulty." Neither defendant nor his counsel voiced
objection and, later, at the suggestion of the court, both
joined the prosecutor and initialed the amended language on the
face of the indictment.
Trial proceeded and defendant was convicted of the subject
offenses, all without any objection by defendant or his counsel
with respect to the indictment.
II.
On appeal, however, defendant first complains that Count 1
of the original indictment did "not state an offense" and,
therefore, was "invalid" and not properly subject to amendment.
Accordingly, defendant contends the attendant conviction is void
and subject to challenge "for the first time on appeal."
Article I, Section 8, of the Constitution of Virginia,
requires, inter alia, "[t]hat in criminal prosecutions a man
hath a right to demand the cause and nature of his accusation
. . . ." 2 However, "'[w]hile the Constitution guarantees every
man [such] right . . ., it does not prescribe the manner'" of
compliance, and the legislature may satisfy the constitutional
imperative by presentment, information, indictment or "'any
other manner.'" Forester v. Commonwealth, 210 Va. 764, 766, 173
2
Defendant does not assert infringement on his right "to be
informed of the nature and cause of the accusation" guaranteed
by the Sixth Amendment to the United States Constitution or a
denial of due process.
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S.E.2d 851, 853 (1970) (citation omitted). Significantly, "'the
right guaranteed by the Constitution is the right to demand the
cause and nature of [the] accusation. . . . It is a right [an
accused] may waive if he chooses, and which he will be held to
have waived unless he asserts it.'" Id. (emphasis added).
In compliance with the mandate of Article I, Section 8,
Code § 19.2-217 provides, in pertinent part, that "no person
shall be put upon trial for any felony, unless an indictment or
presentment shall have first been found or made by a grand jury
. . . ." See Code § 19.2-216 (defining "indictment" and
"presentment"). Code §§ 19.2-220, -221, and Rule 3A:6 specify
the format and contents of an indictment, including the
requisite "'notice of the nature and character of the
accusations against'" an accused. Sims v. Commonwealth, 28 Va.
App. 611, 619, 507 S.E.2d 648, 652 (1998) (citation omitted).
However, "'[t]here is no constitutional requirement in Virginia
that felony prosecutions be by indictment. The [indictment]
requirement is only statutory and may [also] be waived.'"
Forester, 210 Va. at 766, 173 S.E.2d at 853 (citation omitted)
(emphasis added); see Code §§ 19.2-217, -227; see also Triplett
v. Commonwealth, 212 Va. 649, 651, 186 S.E.2d 16, 17 (1972)
("requirement for indictment is not jurisdictional and
constitutionally imposed but . . . only statutory and
procedural").
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Thus, with the constitutional guarantee of a particularized
accusation and the legislative and judicial responses subject to
waiver, "it seems clear that [an accused's] constitutional
rights are not violated by requiring that if he questions the
validity of an indictment that . . . he shall do so before he
goes to trial on a plea of not guilty and is convicted."
Forester, 210 Va. at 766, 173 S.E.2d at 853 (citation omitted).
Accordingly, the failure "to question the form or validity of
the indictment, or any defect or omission therein, before the
verdict," constitutes a waiver "to be more fully advised of 'the
cause and nature of [the] accusation.'" McDougal v.
Commonwealth, 212 Va. 547, 549, 186 S.E.2d 18, 20 (1972); accord
Washington v. Commonwealth, 216 Va. 185, 192, 217 S.E.2d 815,
822 (1975); Forester, 210 Va. at 767, 173 S.E.2d at 854.
Integrating the constitutional and statutory rights of an
accused to be informed of the criminal conduct alleged and the
attendant doctrines of waiver, Code § 19.2-227, the statute of
jeofails, provides that "[j]udgment in any criminal case shall
not be arrested or reversed upon any exception or objection made
after a verdict to the indictment or accusation, unless it be so
defective as to be in violation of the Constitution."
Similarly, Rule 3A:9 requires, inter alia, that "(b) [d]efenses
and objections based on defects in the institution of the
prosecution or the written charge upon which the accused is to
be tried, other than that it fails to . . . charge an offense,
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must be raised by motion made . . . (c) . . . at least 7 days
before the day fixed for trial." However, in deference to the
constitutional prerequisite of notice, the Rule, like the
statute of jeofails, preserves the right of an accused to
challenge "the failure of the written charge . . . to state an
offense . . . at any time during . . . the proceeding." Rule
3A:9(b) (emphasis added).
Thus, by statute, Rule of Court, and case law, the
constitutional right of an accused "to demand the cause and
nature of his accusation" is well established. However, failure
to timely assert such protection constitutes a waiver both of
exception or objection to any constitutional and procedural
infirmities.
The Constitution gives to the accused the
right to demand the cause and nature of his
accusation, and this right cannot be taken
away from him, but there is no inhibition on
the legislature to fix a stage of the
procedure beyond which he cannot go in the
assertion of his constitutional right. He
must be given a full and fair opportunity of
asserting his right, but after this has been
afforded him and he has failed to avail
himself of it, he cannot complain.
Flanary v. Commonwealth, 133 Va. 665, 667-68, 112 S.E. 604, 604
(1922).
Here, the issue is not the absence of an indictment but,
rather, failure of the original instrument to set forth a crime.
However, defendant neither timely asserted his right to demand a
proper allegation, by objection or otherwise, nor protested
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amendment of the indictment correcting the deficiency. To the
contrary, with the court, the Commonwealth and defendant all
fully aware of the precise offense contemplated by the
indictment, defendant acknowledged, in open court, that the
original indictment presented no "problem" and joined in an
amendment correctly charging the crime. Now, after suffering
conviction, defendant, for the first time on appeal, challenges
the procedural course followed by the trial court with his
acquiescence and complicity.
Under such circumstances, defendant clearly waived
objection to the original indictment with respect to the "cause
and nature" of the accusation, together with any complaint
related to the procedure employed by the court in curing such
deficiency, by amendment or otherwise. Moreover, "'having
agreed upon the action taken by the trial court, [defendant]
should not be allowed to assume an inconsistent position[,]
. . . to approbate and reprobate . . . .'" Manns v.
Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 615
(1992) (citation omitted).
Defendant's reliance upon Wilder v. Commonwealth, 217 Va.
145, 225 S.E.2d 411 (1976), for a contrary result is misplaced.
In Wilder, the original indictment "stated no offense" and the
accused moved to quash prior to trial, asserting both his
constitutional and statutory rights to a properly framed
accusation. Id. at 146, 225 S.E.2d at 412-13. After denying
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the motion, the trial court amended the defective indictment,
despite Wilder's further objection. The Supreme Court of
Virginia reversed, reasoning that the court was without
authority to dispense with the properly asserted fundamental
rights of the accused by amendment of a constitutionally flawed
indictment. In contrast, defendant here urged the trial court
to indulge a compromise of such safeguards and did not complain
of the implications until after conviction. 3
III.
Defendant next challenges the sufficiency of the evidence
to prove possession of the firearm, the gravamen of the two
remaining offenses. Defendant acknowledges the "facts prove
. . . he was near the handgun," but maintains "they do not prove
he possessed it."
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom."
Clarke v. Commonwealth, 32 Va. App. 286, 300, 527 S.E.2d 484, 491
(2000) (citation omitted). "The judgment of a trial court sitting
3
Recently, in Powell v. Commonwealth, the Supreme Court of
Virginia reversed a conviction resulting from an indictment
amended, over objection of the accused, "materially chang[ing]
the nature of the offense originally charged." 261 Va. 512,
535, 544 S.E.2d 679, 692 (2001). Again, timely assertion by the
accused of constitutional and statutory rights distinguishes
Powell from the instant record.
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without a jury is entitled to the same weight as a jury verdict
and will not be set aside unless it appears from the evidence that
the judgment is plainly wrong or without evidence to support it."
Greene v. Commonwealth, 17 Va. App. 606, 607-08, 440 S.E.2d 138,
139 (1994). "The weight which should be given to evidence and
whether the testimony of a witness is credible are questions which
the fact finder must decide." Id.
The principles that govern constructive possession of
illegal drugs also apply to constructive possession of a
firearm. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427
S.E.2d 219, 220-21 (1993). Thus, the possession necessary to
support a conviction for the possession of a firearm may be
actual or constructive. Logan v. Commonwealth, 19 Va. App. 437,
444, 452 S.E.2d 364, 368 (1994) (en banc). Constructive
possession may be established by "evidence of acts, statements,
or conduct of the accused or other facts or circumstances which
tend to show that the defendant was aware of both the presence
and the character of the [weapon] and that it was subject to his
dominion and control." Id. at 444, 452 S.E.2d at 368-69
(citation omitted). "Possession . . . need not always be
exclusive. The defendant may share it with one or more persons"
and "[t]he duration of possession is immaterial." Gillis v.
Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974).
Occupancy of a vehicle where contraband is found is a
circumstance that may be considered, together with other
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evidence, to prove that the occupant exercised dominion and
control over the offending article. Burchette v. Commonwealth,
15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992) (citation
omitted).
When "a conviction is based on circumstantial evidence,
'all necessary circumstances proved must be consistent with
guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.'" Garland v. Commonwealth,
225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (citation omitted).
However, "'[t]he Commonwealth is not required to prove that
there is no possibility that someone else may have planted,
discarded, abandoned, or placed the [firearm,] drugs or
paraphernalia where they were found near an accused.'"
Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420,
422 (1994) (citation omitted). Whether a hypothesis of
innocence is reasonable is a question of fact, Cantrell v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988),
and a finding by the trial court is binding on appeal unless
plainly wrong. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
Here, the operator of a vehicle and defendant, the sole
passenger, were observed by police exchanging capsules and
unidentified "small items" from the window of the car for cash.
As police stopped the vehicle, within minutes of a transaction,
defendant furtively "leaned forward and . . . back real fast."
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Searching the vehicle, police discovered a plastic bag
containing numerous capsules of heroin, resting atop a handgun,
directly beneath the seat occupied by defendant. Both the
weapon and capsules were within easy reach of defendant as he
distributed the illicit drugs. Such evidence clearly supports a
finding that defendant, a convicted felon, exercised dominion
and control over both the bag of capsules and firearm, together
with knowledge of the nature and character of each, while
engaging in repeated drug sales from the vehicle. 4
Accordingly, we affirm the trial court.
Affirmed.
4
Because we do not find Count I of the subject indictment
void, we decline to consider defendant's subsidiary argument
that the related conviction for the simultaneous possession of a
firearm and drugs must be reversed. Defendant's status as a
convicted felon is not in issue.
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