COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
ELMER MILTEER, JR.
MEMORANDUM OPINION * BY
v. Record No. 0939-02-1 JUDGE RICHARD S. BRAY
JUNE 3, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
J. Roger Griffin, Jr. (Chris A. Christie;
Christie, Kantor, Griffin & Smith, P.C., on
brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Elmer Milteer (defendant) was convicted in a bench trial for
violations of Code §§ 59.1-41.3 and 59.1-41.4, proscribed conduct
related to "Records, Tapes and Other Recorded Devices." As a
result of the convictions, the court found defendant in violation
of previously imposed probation and revoked suspension of the
attendant sentence.
On appeal, defendant complains: (1) police arrested him
without probable cause, (2) the trial court erroneously convicted
him of violating both Code § 59.1-41.4 and "the unlawful
possession of cassettes produced in violation of Chapter 3.1,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Title 59.1," and (3) the evidence was insufficient to support the
convictions. Accordingly, defendant further contends the
probation revocation also was in error. We affirm the trial
court.
I.
Defendant first maintains the trial court erroneously
denied his motion to suppress evidence obtained incidental to an
arrest without probable cause. Upon review of a denial of a
motion to suppress, "[w]e view the evidence in a light most
favorable to . . . the prevailing party below, and we grant all
reasonable inferences fairly deducible from that evidence."
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "[W]e are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). "However, we consider de
novo whether those facts implicate the Fourth Amendment and, if
so, whether the officers unlawfully infringed upon an area
protected by the Fourth Amendment." Hughes v. Commonwealth, 31
Va. App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing
McGee, 25 Va. App. at 198, 487 S.E.2d at 261).
The instant record establishes that Norfolk Police
Investigators Steve Stephens and Maurice Joseph, while
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"screen[ing] packages" at a Federal Express facility, observed
two parcels shipped from New York by "Marmadu Balde" to "Guy,"
407 Pretlow Street, Franklin, Virginia. The investigators
recognized the articles as consistent with previously
encountered shipments from "Marmadu Balde" that contained
illegally manufactured compact discs and videotapes and secured
a search warrant for each. Upon opening the boxes, they
discovered one hundred thirteen (113) "counterfeit" compact
discs and ninety (90) "counterfeit" videotapes.
To facilitate a "controlled delivery" of the packages, each
was rewrapped and Investigator Joseph, posing as a Federal
Express employee, proceeded to the designated address, a
"business." Initially unable to deliver the items because the
"person there . . . couldn't pay the shipping charges," Joseph
returned a short time later and found defendant "standing
outside" an automobile in the "parking lot" that served "the
business." Joseph approached defendant, declared, "I have a
delivery," and advised him that delivery charges totaled
$101.40. Without inquiry or hesitation, defendant paid Joseph
$102, accepted the parcels, placed them in the rear of the
vehicle and, after "look[ing] around," drove away.
Police followed and stopped and arrested defendant within a
few blocks. Related searches of defendant and the vehicle
yielded an assortment of counterfeit videotapes and compact
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discs, together with an "Underground Wholesale Price List" for
like articles. Further investigation disclosed defendant was
"involved in the business of selling goods . . . CDs etcetera"
from "the back of his truck."
"As a general rule of constitutional law, an officer
properly may make a warrantless arrest if he has probable cause
to believe the arrestee has committed a crime, and the officer
may search the individual incident to that lawful arrest."
Lovelace v. Commonwealth, 27 Va. App. 575, 582, 500 S.E.2d 267,
271 (1998) (citations omitted). "To establish probable cause,
the Commonwealth must show 'a probability or substantial chance
of criminal activity, not an actual showing' that a crime was
committed." Ford v. City of Newport News, 23 Va. App. 137,
143-44, 474 S.E.2d 848, 851 (1996) (citation omitted). "If an
officer has reason to believe that a person is committing a
felony in his presence by possessing contraband . . . , the
officer has probable cause to arrest the individual without a
warrant." Buck v. Commonwealth, 20 Va. App. 298, 304, 456
S.E.2d 534, 536-37 (1995). In assessing probable cause, "courts
will test what the totality of the circumstances meant to police
officers trained in analyzing the observed conduct for purposes
of crime control." Powell v. Commonwealth, 27 Va. App. 173,
177, 497 S.E.2d 899, 900 (1998) (citation omitted).
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Here, at the instant of arrest, police investigation
confirmed defendant possessed contraband, after personally
paying related delivery charges, accepting the illicit articles
in the parking area that served the delivery address, and
driving away. Such evidence clearly invested police with the
requisite probable cause to believe defendant knowingly
possessed the unlawful recordings.
II.
Defendant next contends the trial court erroneously
convicted him for violations of both Code § 59.1-41.3 and Code
§ 59.1-41.4. He maintains Code § 59.1-41.4 is merely a
"regulatory" statute intended to "allow law enforcement agents
to determine whether recorded materials were lawfully recorded,"
a "mechanism" to aid enforcement of Code § 59.1-41.3. Thus,
defendant reasons that failure to comply with Code § 59.1-41.4
constitutes criminal conduct only when read in conjunction with
Code § 59.1-41.3 1 and, therefore, is not a separate offense.
Defendant's argument ignores a plain reading of the relevant
statutes.
Code § 59.1-41.2, in pertinent part, declares it "unlawful
for any person" to "manufacture, distribute, transport or
wholesale recordings, or cause to be manufactured, distributed,
1
Defendant similarly argued before the trial court that
Code § 59.1-43.3 simply "giv[es] teeth for [59.1-43].2."
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transported or sold as wholesale, or possess for such purposes
any article with the knowledge that the sounds are so
transferred, without the consent of the owner." 2
Code § 59.1-41.3 makes it "unlawful for any person to . . .
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."
(Emphasis added.)
Code § 59.1-41.4 requires that "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."
Thus, when defendant at once possessed recordings
proscribed by Code § 59.1-41.2 and packaged contrary to Code
§ 59.1-41.4, he violated two distinct provisions of Chapter 3.1.
Code § 59.1-41.3 imposes criminal liability upon the sale,
rental or related possessing of a "recorded device . . .
produced, manufactured, distributed or acquired in violation of
any provision of this chapter." (Emphasis added.) Accordingly,
defendant was culpable pursuant to Code § 59.1-41.3 for both
offenses.
2
The instant indictment specifically alleges conduct "in
violation of Chapter 3.1 of Title 59.1 . . . ."
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III.
Lastly, defendant contends the Commonwealth failed to prove
beyond a reasonable doubt that he "was aware [the tapes] . . .
were in violation of the regulations for recorded materials."
Relying upon testimony of the "subtle distinctions" between
lawful and counterfeit packaging and recordings, defendant
insists the evidence did not establish the requisite "knowledge
that his business in any way violated the law."
However, defendant's argument before the trial court
embraced only the contention that "the Commonwealth has . . .
not proven the case that [he] had the intent to distribute or
sell these items." An argument presented before the trial court
does not preserve a different issue for appeal. See Floyd v.
Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978);
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269,
272 (1997). Thus, because defendant only challenged below the
sufficiency of the evidence to prove the intent element of the
offense and not the knowledge component argued today, we decline
to address the issue. See Rule 5A:18. Moreover, the evidence
clearly established defendant, a vendor of "CDs etcetera,"
possessed numerous counterfeit recordings, all unlawfully
labeled and packaged, together with a related "price list," and
readily accepted the subject contraband, circumstances that
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belie innocent possession and negate invocation of the "good
cause" or "ends of justice" exceptions to Rule 5A:18.
Because we find no error in the instant convictions, we
affirm the court's finding that defendant violated the terms of
probation and revocation of the attendant suspended sentence.
Accordingly, we affirm the trial court.
Affirmed.
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