COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia
BRIAN HEATH BAREFORD
MEMORANDUM OPINION * BY
v. Record No. 0564-00-2 JUDGE LARRY G. ELDER
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ESSEX COUNTY
Horace A. Revercomb, III, Judge
A. Fleet Dillard, III (Dillard & Katona, on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Brian Heath Bareford (appellant) appeals from his bench
trial convictions for ten felony counts of distributing
marijuana to a juvenile in violation of Code § 18.2-255 and six
misdemeanor counts of distributing marijuana in violation of
Code § 18.2-248.1. On appeal, he contends the trial court
erroneously (1) convicted him of three of the counts of
misdemeanor distribution on insufficient evidence; and (2) held
an ex parte hearing and entered an order altering the sentence
appellant had already begun serving after the order had become
final. We hold the evidence was insufficient to support the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
misdemeanor conviction for distribution to Jerry Sigman because
it failed to prove the distribution occurred in Essex County.
We also hold that the error, if any, resulting from the
allegedly improper ex parte proceedings was harmless and that
the court retained jurisdiction to alter the sentence pronounced
from the bench because no final order had yet been entered.
Therefore, we reverse and dismiss the misdemeanor conviction for
distribution to Jerry Sigman and affirm the other challenged
convictions.
A.
SUFFICIENCY OF THE EVIDENCE
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. See 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. See id. The credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
"[A] successful drug prosecution must establish both the
existence of a proscribed substance and an accused's unlawful
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activity with respect to it." Hinton v. Commonwealth, 15 Va.
App. 64, 66, 421 S.E.2d 35, 37 (1992).
The nature of the illegal substance
transferred need not be proved by direct
evidence but can be demonstrated by
circumstantial evidence. The types of
circumstantial evidence that may be
considered include the following:
"[E]vidence of the physical appearance of
the substance involved in the transaction,
evidence that the substance produced the
expected effects when sampled by someone
familiar with the illicit drug, evidence
that the substance was used in the same
manner as the illicit drug, testimony that a
high price was paid in cash for the
substance, evidence that the transactions
involving the substance were carried on with
secrecy or deviousness, and evidence that
the substance was called by the name of the
illegal narcotic by the defendant or others
in his presence."
Users and addicts, if they have gained
a familiarity or experience with a drug, may
identify it.
Hill v. Commonwealth, 8 Va. App. 60, 63, 379 S.E.2d 134, 136
(1989) (en banc) (quoting United States v. Dolan, 544 F.2d 1219,
1221 (4th Cir. 1976)) (other citations omitted).
We assume without deciding that appellant properly
preserved for appeal his challenge to the sufficiency of the
circumstantial evidence to prove the substance at issue was
marijuana, and we hold the evidence was sufficient to support
his two misdemeanor convictions for distributing marijuana to
Joseph Hayes between September 1 and December 31, 1998 (case
numbers 3793 and 3794).
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Joseph Hayes testified he had smoked marijuana over one
hundred times and that when he did, "[he would] get high." On
two occasions, he purchased marijuana from appellant, paying him
$50 the first time and $25 the second time. The substance he
purchased from appellant also "[got him] high," and he was
"pretty sure" it was marijuana. The only reasonable hypothesis
flowing from Hayes' testimony, viewed in the light most
favorable to the Commonwealth, was that the substance appellant
sold him was, in fact, marijuana. That he did not give a
physical description of the substance was not dispositive, for
the evidence established his familiarity with marijuana and his
belief that the substance was, in fact, marijuana.
Other evidence established that these sales occurred during
the time frame alleged in the indictments, from September 1 to
December 31, 1998. Hayes testified that he purchased marijuana
from appellant twice during the fall of 1998. He confirmed that
at least one of these purchases occurred after school started
but said the other one could have occurred in August 1998 before
school started. However, other evidence established that this
second purchase also must have occurred on or after September 1,
1998. Other witnesses who frequented Sean Peace's house
testified that appellant was not present at the Peace house,
where the transactions occurred, until October 1998 or at least
until after the school year began in September 1998. Thus, the
evidence supported appellant's convictions for these offenses.
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We also reject appellant's claim that the witnesses'
testimony was not worthy of belief because the witnesses had
been promised immunity and admitted to having hazy memories
about the challenged offenses. The fact that the witnesses had
been promised immunity went to the weight to be given the
evidence, as did the testimony of the witnesses that their
memories were hazy. The trial court had the opportunity to
observe the witnesses as they testified and to judge their
demeanor. We cannot say its decision to accept their testimony
was error or that their testimony was insufficient to support
the convictions.
Thus, we affirm appellant's two misdemeanor convictions for
distributing marijuana to Joe Hayes.
We reach a different conclusion as to appellant's
misdemeanor conviction for distributing marijuana to Jerry
Sigman (case number 3779) because the evidence was insufficient
to establish that appellant distributed marijuana to Sigman in
Essex County between February 16 and April 14, 1999. "Except as
otherwise provided by law, the prosecution of a criminal case
shall be had in the county or city in which the offense was
committed." Code § 19.2-244. The Commonwealth may prove venue
with either direct or circumstantial evidence. Green v.
Commonwealth, 32 Va. App. 438, 447, 528 S.E.2d 187, 192 (2000).
In either case, the evidence must be sufficient to present a
"'strong presumption' that the offense was committed within the
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jurisdiction of the court." Pollard v. Commonwealth, 220 Va.
723, 725, 261 S.E.2d 328, 330 (1980) (quoting Keesee v.
Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 810 (1975)).
Here, the evidence established that appellant supplied
marijuana to those present at Peace's house on some occasions
between February 16 and April 14, 1999. However, when Sigman
smoked marijuana at Peace's house during that time, he usually
obtained the marijuana from "the table" and did not see who put
it there. No other witnesses were able to provide an
affirmative link between appellant and the marijuana Sigman
smoked. Because other witnesses admitted to providing marijuana
for use at Peace's house during that time, the evidence was
insufficient to establish that appellant distributed marijuana
to Sigman in Essex County during that time. At best, the
evidence established that appellant distributed marijuana to
Sigman in Newport News, which was insufficient to support his
Essex County conviction for the charged offense. See Code
§ 19.2-244.
Therefore, we reverse and dismiss appellant's misdemeanor
conviction for distributing marijuana to Jerry Sigman.
B.
EX PARTE HEARING AND ENTRY OF AMENDED SENTENCING ORDER
Appellant contends the sentencing order entered following
the February 15, 2000 hearing is void because it was entered
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more than twenty-one days after the December 21, 1999 sentencing
order. We disagree.
Under Rule 1:1, "[a]ll final judgments, orders, and
decrees, irrespective of terms of court, shall remain under the
control of the trial court and subject to be modified, vacated,
or suspended for twenty-one days after the date of entry, and no
longer." In determining the date of entry of a final order, we
note "[a] court speaks only through its orders," Cunningham v.
Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964), and "orders
speak as of the day they were entered," Vick v. Commonwealth,
201 Va. 474, 476, 111 S.E.2d 824, 826 (1960). We "'presume that
the order, as the final pronouncement on the subject, rather
than a transcript that may be flawed by omissions, accurately
reflects what transpired.'" Kern v. Commonwealth, 2 Va. App.
84, 88, 341 S.E.2d 397, 400 (1986) (citation omitted). "In
order to toll the time limitation[] of Rule 1:1 . . . , the
trial judge must issue an order modifying, vacating or
suspending the sentence within twenty-one days of the entry of
sentence." D'Alessandro v. Commonwealth, 15 Va. App. 163, 167,
423 S.E.2d 199, 201 (1992).
On November 16, 1999, the trial court entered an order
indicating it had convicted appellant of eight felonies and
eight misdemeanors. On December 21, 1999, it entered a
sentencing order for those eight felony and eight misdemeanor
convictions. However, at the hearing held that same date, the
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parties and the court agreed that appellant had actually been
convicted of ten felonies and six misdemeanors. Based on that
agreement, the court entered an amended conviction order which
accurately reflected appellant's ten felony and six misdemeanor
convictions, and the court indicated that a corrected sentencing
order would be prepared.
We hold that entry of the amended conviction order, viewed
in conjunction with the original conviction order, made clear
the error in the December 21, 1999 sentencing order and served
to vacate the erroneous sentencing order. Thus, the twenty-one
day limit of Rule 1:1 did not begin to run on December 21, 1999,
and the trial court retained authority over appellant's sentence
until twenty-one days after February 25, 2000, the date of entry
of the corrected sentencing order. Accordingly, the trial court
had jurisdiction to alter the terms of appellant's sentence and
was not bound by its prior statement that it would refer him to
the detention center rather than for active incarceration.
Further, we hold that the ex parte communications between
the trial judge and the Commonwealth's attorney on January 18,
2000 did not constitute reversible error because nothing of
significance occurred on that date and because appellant had a
full and fair opportunity to be heard on those same issues on a
subsequent date. Thus, even assuming the alleged improper
communications had constitutional significance, any error was
"'harmless beyond a reasonable doubt.'" See, e.g., Lavinder v.
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Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc) (quoting Chapman v. California, 386 U.S. 18, 24, 87
S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967)); see id. (noting that
"non-constitutional error is harmless '[w]hen it plainly appears
from the record and the evidence given at the trial that the
parties have had a fair trial on the merits and substantial
justice has been reached'" (quoting Code § 8.01-678)).
The only action the court took on January 18, 2000 was to
enter an order "vacat[ing] its oral ruling on December 21, 1999,
that defendant shall enter the detention center program," and it
entered that order sua sponte without the knowledge of the
Commonwealth's attorney. However, because that ruling was oral
and had not been included in a written order entered by the
court, there was nothing for the trial court to vacate, and that
portion of the January 18, 2000 order had no legal effect. See
Cunningham, 205 Va. at 208, 135 S.E.2d at 773 (noting that a
court speaks only through its orders); Frye v. Commonwealth, 231
Va. 370, 380, 345 S.E.2d 267, 275 (1986) (holding that ex parte
order did not prejudice defendant because its entry was not
required and it had no legal effect). The only other thing
accomplished by the January 18, 2000 order was to schedule a
hearing for February 15, 2000 for consideration of appellant's
eligibility for incarceration at the detention center and entry
of a final sentencing order. Appellant received timely notice
of this hearing. Thereafter, he filed a written motion
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outlining his position that the court was authorized to refer
him to the detention center and was not required to impose a
mandatory minimum sentence which included active incarceration.
He also had ample opportunity at the February 15, 2000 hearing
to argue this position and to offer expert testimony.
Therefore, we conclude that the error, if any, resulting from
the ex parte communication and entry of the ex parte order was
harmless beyond a reasonable doubt.
For these reasons, we reverse and dismiss appellant's
misdemeanor conviction for distribution to Jerry Sigman and
affirm all other challenged convictions.
Affirmed in part,
reversed and
dismissed in part.
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