COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
ANTONIE CARUTH JONES, SOMETIMES KNOWN AS
ANTOINE CARUTH JONES
OPINION BY
v. Record No. 1893-95-1 JUDGE RICHARD S. BRAY
SEPTEMBER 3, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
George M. Rogers, III, for appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Antoine Caruth Jones (defendant) was convicted in a bench
trial for possession of cocaine with the intent to distribute.
Defendant complains on appeal that the trial court erroneously
admitted evidence resulting from an unlawful search and
challenges the sufficiency of the evidence to prove the requisite
knowledge and intent to distribute the offending drugs. Finding
no error, we affirm the conviction.
On December 14, 1994, Newport News police executed a search
1
warrant for an apartment occupied by Linda Williams. The
warrant sought evidence pertaining to a robbery and murder
unrelated to the instant offense, including "a handgun,
ammunition, gold ring . . ., cellular telephone and gold chain."
When police entered the residence, defendant, then a visitor
seated in the "living room," and Ms. Williams were the only
1
The validity of the warrant is not at issue.
persons present. While several officers searched "upstairs,"
Detective V. D. Williams and another officer "maintained visual
observation" of defendant and Ms. Williams "downstairs."
Shortly after the search commenced, defendant asked
Detective Williams for permission to leave the apartment.
Because defendant "didn't have anything to do with the search
warrant . . .," the detective agreed and defendant proceeded
toward the door. It was a "cold day," and Ms. Williams reminded
defendant, clad only in "pants and shirt," "Don't forget your
jacket." Defendant then "turned around . . ., picked up [a]
jacket" which was "laying across the back portion of a chair"
located in the "center of the living room," and exited the
apartment. Detective Williams quickly realized that the jacket,
which was on the chair when the officers entered the residence,
had not yet been searched and stopped defendant "five steps"
beyond the threshold of the apartment. Defendant was holding the
jacket in his hand, and the detective, after explaining the need
to search it, "obtained" the jacket from him.
As Detective Williams began to search, defendant became
"very fidgety" and "started towards the jacket," prompting the
detective to "take a couple of steps back." Inside the left
pocket, Detective Williams discovered "two tubes" containing
crack cocaine concealed within a "black glove," but no
paraphernalia with which to ingest the drug. A subsequent search
of defendant's person incidental to arrest revealed $454 in a
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trouser pocket. Newport News Detective Richard Gaddis testified,
without objection, as an "expert in reference to drugs and their
sale and possession." He noted that the cocaine was "cut" into
"50 to 75 rocks," which "normally sold on the street
individually, . . . [at] about 40 bucks a piece," having an
aggregate weight of "approximately 25 grams" and total value of
$2,500 to $3,000. Gaddis opined that this quantity of "cut
rocks" was inconsistent with the possession of crack cocaine for
personal use.
Defendant testified that he had visited with Ms. Williams
for only a "couple of minutes" prior to the arrival of the
police. He admitted ownership of the jacket, but denied
knowledge of the cocaine, claiming the jacket had been in the
residence for several days. Defendant, then unemployed,
explained that the cash was his "mother's rent money," which,
though due on the "first of the month," remained in his
possession on December 14 because "she trusts me." At the
conclusion of defendant's testimony, the trial court commented
that it "just doesn't believe" defendant, that he "had no
credibility."
SUPPRESSION OF EVIDENCE
Upon appeal from a trial court's refusal to suppress
evidence, we must review the record in the light most favorable
to the prevailing party, the Commonwealth in this instance,
granting to it all reasonable inferences fairly deducible
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therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991); Reynolds v. Commonwealth, 9 Va. App.
430, 436, 388 S.E.2d 659, 663 (1990). The findings of the court
will not be disturbed unless "plainly wrong," Grimstead, 12 Va.
App. at 1067, 407 S.E.2d at 48, and the burden is upon the
appellant to show that the disputed ruling constituted reversible
error. Reynolds, 9 Va. App. at 436, 388 S.E.2d at 663.
It is uncontroverted that the jacket was resting on a chair
located in the living room when the police entered the apartment,
and defendant conceded that it was subject to search under
authority of the warrant. Nevertheless, relying upon Lett v.
Commonwealth, 7 Va. App. 191, 372 S.E.2d 195 (1988), he contends
that, once police permitted him to take possession of the jacket
and remove it from the premises, "there was no probable cause to
search" the garment. 2 However, defendant's argument overlooks
evidence that Detective Williams authorized defendant to leave
the apartment before defendant claimed or obtained possession of
the jacket. Defendant's attention was first directed to the
jacket by Ms. Williams after the detective had acceded to his
request. Within moments thereafter, Detective Williams recalled
that the jacket had not been searched and stopped defendant, then
only a few steps beyond the apartment door, for that purpose.
2
In Lett, the accused was in actual possession of a
pocketbook upon the arrival of police to execute a search warrant
and successfully challenged its search pursuant to the warrant or
otherwise. See Terry v. Ohio, 392 U.S. 1 (1967).
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Defendant's implicit assertion that the authority of the
search warrant dissipated with his exit from the apartment is
without merit. It is well established that "[a] lawful search of
premises described in a warrant 'extends to the entire area in
which the object[s] of the search may be found . . . .'" Kearney
v. Commonwealth, 4 Va. App. 202, 205, 355 S.E.2d 897, 899 (1987)
(quoting United States v. Ross, 456 U.S. 798, 820-21 (1982)).
"'[A] search may be as extensive as reasonably required to locate
the items described in the warrant.'" Id. (citation omitted).
"A warrant to search a [premises] would support a search of every
part of the [premises] that might contain the object of the
search." Ross, 456 U.S. at 821. Moreover, "a warrant to search
. . . carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted."
Michigan v. Summers, 452 U.S. 692, 705 (1981). Thus, once the
police have initiated a search pursuant to a warrant, persons may
not subvert its lawful purposes by removing articles properly
within its scope.
Here, in executing the search warrant of Ms. Williams'
residence, the police were directed to a handgun, ammunition, a
gold ring, a cellular telephone, and a gold chain. The jacket in
issue was initially "bereft of any external indicia of
ownership," clearly a "plausible repository" for those items
sought by the police and, concededly, subject to search while it
remained within the apartment. See United States v. Gray, 814
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F.2d 49, 51 (1987). Under such circumstances, it would be absurd
to later exclude the jacket from the embrace of the warrant
simply because defendant was inadvertently allowed to carry it a
few feet beyond the entryway.
Accordingly, we find that a search of defendant's jacket was
within the ambit of the warrant, and the trial court properly
admitted the attendant evidence.
SUFFICIENCY OF EVIDENCE
Defendant further contends that the evidence is insufficient
to support his conviction. Under familiar principles of
appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a
trial court, sitting without a jury, is entitled to the same
weight as a jury verdict and will be disturbed only if plainly
wrong or without evidence to support it. Id. "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." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986).
Defendant's conviction required the Commonwealth to prove
that he "'intentionally and consciously possessed' the drug,
either actually or constructively, with knowledge of its nature
and character, together with the intent to distribute it."
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Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440,
444 (1994) (quoting Josephs v. Commonwealth, 10 Va. App. 87,
99-102, 390 S.E.2d 491, 497-99 (1990) (en banc)). "Because
direct proof of [the] intent [to distribute] is often impossible,
it must be shown by circumstantial evidence." 3 Servis v.
Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).
Circumstances relevant to proof of an intent to distribute
include the "quantity of drugs and cash possessed, the method of
packaging, and whether [defendant] himself used drugs."
Poindexter v. Commonwealth, 16 Va. App. 730, 735, 432 S.E.2d 527,
530 (1993).
When the police initially entered the apartment, the jacket
was draped over a living room chair. Although defendant was
dressed only in "pants and a shirt" and it was "cold outside," he
clearly intended to leave without his jacket. Once reminded of
the jacket, however, defendant acknowledged ownership and took
possession of it. When confronted by the detective, he became
"fidgety" and moved toward the jacket during the search. From
such evidence, the trial court properly inferred that defendant
entered the residence wearing the jacket and removed and placed
it on the chair. Later, the police entered the premises and
defendant, aware of the presence and nature of the contraband
3
"Circumstantial evidence . . . is evidence of facts or
circumstances not in issue from which facts or circumstances in
issue may be inferred." Charles E. Friend, The Law of Evidence
in Virginia, § 12-1 (4th ed. 1993).
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concealed within, attempted to disassociate himself from it. The
record further established that the "cut" and quantity of cocaine
were inconsistent with personal use, and no evidence suggested
that defendant was a cocaine user. Moreover, the cash discovered
on defendant's person and his untruthfulness to both police and
the court were indicative of guilt.
Thus, sufficient evidence in the record supports the finding
that defendant consciously possessed the cocaine, aware of its
nature and character, together with the requisite intent to
distribute.
Accordingly, we affirm the conviction.
Affirmed.
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