COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia
TROY EUGENE BRAXTON
MEMORANDUM OPINION * BY
v. Record No. 2006-96-3 JUDGE ROSEMARIE ANNUNZIATA
JULY 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Elizabeth P. Murtagh, Assistant Public
Defender, for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a jury trial, appellant, Troy Eugene Braxton, was
convicted of possession of cocaine with intent to distribute. On
appeal, he contends that the trial court erred in refusing to
suppress evidence obtained following his warrantless arrest and
that the evidence is insufficient to support his conviction. We
disagree and affirm his conviction.
I.
A confidential informant told Investigator Dance that
appellant was engaged in felonious activity. The informant
identified himself to Dance, and Dance, who knew the informant,
considered the informant to be reliable. The informant had
provided Dance previous information which had proven reliable and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
led to a conviction in another case. Dance testified that the
informant was familiar with crack cocaine.
The informant told Dance that he had seen appellant possess
crack cocaine within the preceeding fifteen minutes. The
informant identified appellant by name and told Dance that
appellant was riding in a cream-colored, Gray Top Cab, number
seven, driven by Frank Morris, in the Old Forest Road area of
Lynchburg. Dance conveyed this information to Officer Hollyfield
and directed Hollyfield to stop the cab and arrest appellant.
Because the cab was on the move, Dance determined that he had no
time to obtain an arrest warrant, which, he testified, would take
about an hour.
Within minutes of receiving Dance's report, Hollyfield
spotted the cab Dance had described at an intersection on Old
Forest Road. Hollyfield stopped the cab and, as he approached
it, identified appellant in the back seat. Hollyfield opened the
cab's rear door and grabbed appellant by the arm as he ordered
him to exit the cab. Appellant resisted, but with the help of
another officer, Hollyfield pulled appellant from the cab,
arresting him for possession of cocaine. In the course of
removing appellant from the cab, Hollyfield observed a white
object fall from appellant's person to the floorboard directly
below. The object was recovered and later proved to contain
10.84 grams of cocaine.
The officers transported appellant to the station house
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where he executed a waiver of his Miranda rights. Appellant then
told Dance that the crack had come from an individual known as
"Shorty," for whom appellant "had been selling . . . for a little
while." Appellant stated that he had paid for the cocaine and
that "Shorty" did not "front" him the cocaine. When Dance asked
how much appellant was selling "at the time," appellant
responded, "[Y]ou know how much I'm selling, Dance."
Testifying as an expert witness, Dance stated that a gram of
crack was worth $150 to $175 and that 10.84 grams of crack was
worth over $1,500. He testified that crack is typically sold in
$10, $20, and $40 rocks and that he had never known a crack user
to buy in bulk. Dance testified that a user would typically get
fifteen "hits" or dosages from a single gram.
Testifying in his defense, appellant admitted that he
possessed the cocaine. He maintained, however, that he had
purchased the crack for his own personal use and did not intend
to sell it. Appellant denied telling Dance that he sold drugs
for Shorty. He also testified that a gram of crack is worth
about $30 and that a user would get only two or three hits per
gram. Finally, appellant testified that he would have smoked the
entire amount of crack that evening. On rebuttal, Dance
testified that in his experience he had never known anyone who
could smoke over ten grams of crack at once.
II. MOTION TO SUPPRESS
There is no dispute that Hollyfield arrested appellant
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without a warrant when he stopped the cab and removed him from
it. The issue is whether the arrest was supported by probable
cause. The arrest was lawful if Hollyfield had probable cause to
believe that a felony had been or was being committed by
appellant. See McKoy v. Commonwealth, 212 Va. 224, 225, 183
S.E.2d 153, 155 (1971). "`[T]he test of constitutional validity
is whether at the moment of arrest the arresting officer had
knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed.'"
DePriest v. Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d
540, 542 (1987), cert. denied, 488 U.S. 985 (1988) (quoting
Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250
(1970)).
"[W]hen an officer receives from a known reliable informant
a report that a felony is being committed that is so detailed as
to raise an inference either of personal observation or of
acquisition of the information in a reliable way then the officer
has probable cause to arrest." McKoy, 212 Va. at 227, 183 S.E.2d
at 156. Generally, the two elements of particular significance
in cases involving informant information are: (1) the reliability
of the informant him or herself; and (2) the inherent reliability
of the informant's information as determined by the nature and
detail of the circumstances described and any independent
corroboration of those circumstances. See id.; Illinois v.
Gates, 462 U.S. 213, 233-35, 241-43 (1983).
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In the present case, appellant does not dispute that the
informant, previously known to Dance, was himself reliable. See
McKoy, 212 Va. at 226, 183 S.E.2d at 155; Wright v. Commonwealth,
222 Va. 188, 191, 278 S.E.2d 849, 852 (1981). Cf. Hardy v.
Commonwealth, 11 Va. App. 433, 434, 399 S.E.2d 27, 28 (1990)
(information received from anonymous, unknown source); Carter v.
Commonwealth, 9 Va. App. 310, 313, 387 S.E.2d 505, 507 (1990)
(reliability of unnamed informant not established). Indeed,
Dance's unrefuted testimony established the informant's
reliability. See Huff v. Commonwealth, 213 Va. 710, 714-15, 194
S.E.2d 690, 694 (1973).
Furthermore, the informant's description was replete with
detail. See McKoy, 212 Va. at 226, 183 S.E.2d at 156. The
description identified appellant by name and placed him in a
particular cab, identified by color, cab company, number and
driver, on a particular street, at a particular time. The
information further described the felonious activity appellant
was alleged to have been committing; viz., possessing cocaine.
Cf. Motley v. Commonwealth, 17 Va. App. 439, 441, 437 S.E.2d 232,
233 (1993) (where the police radio dispatch advised officer to be
on the lookout for an individual fitting the defendant's
description but gave no explanation as to why that individual was
sought). As the Supreme Court found in McKoy, the detail in the
informant's description here "could scarcely [have been] gleaned
except by personal observation." See McKoy, 212 Va. at 226, 183
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S.E.2d at 156. Finally, before he arrested appellant, Hollyfield
was able to confirm much of the informant's information; viz.,
that appellant occupied the cream-colored, Gray Top cab, number
seven.
In short, the detailed information provided by a known and
reliable informant and significantly corroborated by Hollyfield
provided Hollyfield probable cause to arrest appellant. 1
II.
Appellant admits possession of the cocaine but contends that
the evidence is insufficient to establish that he intended to
distribute it.
Where the sufficiency of the evidence is
challenged on appeal, that evidence must be
construed in the light most favorable to the
Commonwealth, giving it all reasonable
inferences fairly deducible therefrom. In so
doing, we must discard the evidence of the
accused in conflict with that of the
Commonwealth, and regard as true all the
credible evidence favorable to the
Commonwealth and all fair inferences that may
be drawn therefrom.
Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165
(1988) (citations omitted). The jury's verdict will not be set
aside unless it appears that it is plainly wrong or without
evidence to support it. Code § 8.01-680; Traverso v.
1
The fact that Dance received the information from the
informant and conveyed it to Hollyfield who actually made the
arrest is not material. See White v. Commonwealth, 24 Va. App.
234, 240, 481 S.E.2d 486, 489 (1997) (citing United States v.
Laughman, 618 F.2d 1067, 1072 (4th Cir.), cert. denied, 447 U.S.
925 (1980)).
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Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
"It is fundamental that `the credibility of witnesses and the
weight accorded their testimony are matters solely for the fact
finder who has the opportunity of seeing and hearing the
witnesses.'" Collins v. Commonwealth, 13 Va. App. 177, 179, 409
S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230
Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)). Where the trier of
fact finds a defendant's testimony to be incredible, it is
entitled to infer that the defendant lied to conceal his guilt.
See Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987) (en banc).
Appellant contends that his statements to Dance cannot
support his conviction. He contends that his statements referred
only to past activities and therefore had no bearing on the
present case. We disagree. Appellant clearly spoke in the
present tense when he stated, "[Y]ou know how much I'm selling,
Dance." Moreover, to the extent appellant's statement that he
"had been selling [drugs for Shorty] for a little while," could
be construed as representing only past transactions, it could be
reasonably inferred that appellant also intended to sell the
cocaine he possessed.
Appellant's further contention that his statements cannot
support his conviction because they were uncorroborated is not
supported in the record. Even assuming appellant's statements
had to be corroborated, they were. Dance's expert testimony
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concerning the quantity of cocaine appellant possessed and the
nature of local drug transactions created a reasonable inference
that the cocaine appellant purchased was not intended for
personal use. Furthermore, appellant denied he told Dance he had
been selling for Shorty. This conflict in the testimony raised a
credibility question that the jury resolved against appellant,
and, from that determination, the jury was entitled to infer that
appellant was lying to conceal his guilt. In sum, the evidence
was sufficient to support appellant's conviction for possession
with intent to distribute.
The decision of the trial court is accordingly affirmed.
Affirmed.
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