COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia
BILLY FISHER
MEMORANDUM OPINION * BY
v. Record No. 2454-96-3 JUDGE JOHANNA L. FITZPATRICK
JULY 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Diane McQ. Strickland, Judge
John H. Kennett, Jr., for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On June 25, 1996, Billy Fisher (appellant) was convicted in
a jury trial of possession of cocaine with intent to distribute.
On appeal, he contends that the trial court erred in:
(1) admitting a handgun into evidence; (2) failing to instruct
the jury during the guilt or innocence phase of the trial about
the potential range of punishment for the offense charged; and
(3) finding the evidence sufficient to convict. For the
following reasons, we affirm the judgment of the trial court.
I.
During the early morning hours of July 30, 1995, Officer
Edward Murphy (Murphy) of the Salem Police Department was working
undercover for the Virginia Alcoholic Beverage Control Division.
He drove to the Black Angus Club in the City of Roanoke, pulled
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
into the parking lot, and parked his car. He noticed that
appellant, who was driving a truck, followed him into the parking
lot and parked beside the building. There were no passengers in
the truck. Murphy watched as appellant got out of the truck,
placed two orange traffic cones to the right side of the truck,
and ran an extension cord from the building to the truck.
Appellant then walked around the parking lot. He approached
Murphy, who was sitting in his car, and told him that he either
had to depart or go into the club. Murphy testified that at this
point, appellant's demeanor was "calm and casual and sociable."
Soon thereafter, Detective R.E. Chandler (Chandler) and
other officers of the Vice Bureau of the Roanoke City Police
Department arrived at the club and conducted a search of the
truck. Chandler described the truck as "an old refrigerator
truck . . . that appeared to be converted into a camper type or
fishing vehicle, [which] had a lot of fishing equipment in it."
During the search of the vehicle, appellant was "in and out" of
the club, and Murphy observed a change in appellant's demeanor.
He noticed that appellant became "real nervous like talkative,
agi--agitated . . . he seemed to be more talkative. There was a
lot of hyperactivity, just a lot of rambling, you know,
nervousness." Appellant was not present during the entire search
or when the contraband was found.
In the cab of the truck, the police found a "fanny pack"
under the front driver's seat where appellant had been seated.
2
They also discovered appellant's ID and a loaded "small
derringer-type gun" in the fanny pack. Because the back of the
truck could not be entered from the cab, the police forced the
back door open. Inside they located a port-o-john, a shelf or
counter with appliances on it, and a bench seat that had a bed or
couch cushion on top of it. Under the cushion was a hole in the
platform, and hidden inside the hole was a blue nylon bag. In
one of the side pouches of the bag, they seized a black camera
and a blue neckerchief that was wrapped around three small
baggies containing cocaine. Nearby were digital scales and
several plastic baggies. Among the personal items contained in
the back of the truck were fishing equipment, tackle boxes, gas
cans, clothing, sheets, and cooking appliances. The truck and
the personal property were seized by the police. Later, when
appellant arrived at the police station to retrieve his personal
effects, he claimed the camera but did not claim the blue bag.
At trial, the police videotape of the truck's contents was
shown to the jury. Additionally, the jury was shown a photograph
of appellant's personal property, which included the camera.
Other evidence at trial established that two of the baggies
recovered from inside the blue bag contained a total of 10.48
grams of powder cocaine. The third baggie contained a mixture of
cocaine and inositol. Expert testimony established that inositol
is a common cutting agent for street cocaine.
Additional expert testimony addressed the value and the
3
significance of the amount of cocaine recovered from the truck.
The testimony indicated that this quantity of cocaine was
inconsistent with personal use, 1 that the other paraphernalia
(including the scales, the cutting agent, and the baggies) found
in the truck were tools of the drug distribution trade, and that
"a gun is rarely found on a user. It is more ---- it's usually
found on someone that's dealing and used to protect their
profits."
Monica Patterson testified on behalf of appellant. She
agreed that the blue bag belonged to her and that she had used it
to carry her swimming gear. However, she stated that she had not
seen the bag since her relationship with appellant ended
approximately two years earlier. Theodore Alford, Jr. also
testified for appellant. He stated that he frequently went
fishing with appellant and that they used the scales in the back
of the truck to weigh the fish that they caught.
During the trial, the court sua sponte issued a cautionary
instruction to the jury regarding the significance of the
handgun. The court stated as follows:
I would like to give you a cautionary
instruction. One (1) of the exhibits that
was admitted into evidence is a handgun. And
in connection with that exhibit, I would like
to instruct you as follows, the fact that a
person owns a handgun found in his vehicle is
not evidence that the drugs found in his
1
Detective C.L. McCoy testified that the typical quantity of
cocaine for personal use was "about [.25] grams which is a small
amount of powder" and that 10.5 grams of cocaine would provide
approximately "forty, forty-two single dose units."
4
vehicle also belonged to him.
5
II.
Appellant first contends that the only purpose for
introducing the gun found in the truck into evidence was to
prejudice the jury. Additionally, he argues that the
Commonwealth's hypothesis that drug dealers use guns, and that
the gun tended to prove that appellant possessed the cocaine with
intent to distribute, was rejected by this Court in Burchette v.
Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).
"Evidence is relevant if it has any logical tendency,
however slight, to establish a fact at issue in the case."
Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,
678 (1993).
Upon finding that certain evidence is
relevant, the trial court is then required to
employ a balancing test to determine whether
the prejudicial effect of the evidence sought
to be admitted is greater than its probative
value. This responsibility is a matter
submitted to the sound discretion of the
trial court, and will not be disturbed on
appeal absent a clear abuse of discretion.
Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203
(1988). "The relationship between the distribution of controlled
substances . . . and the possession and use of dangerous weapons
is now well recognized." Logan v. Commonwealth, 19 Va. App. 437,
445, 452 S.E.2d 364, 369 (1994) (en banc).
In the instant case, the Commonwealth bore the burden of
proving that appellant had the intent to distribute the cocaine
found in his truck. Accordingly, the fact that he carried a
6
handgun in the truck had legitimate probative value regarding the
element of his intent. The trial court did not abuse its
discretion in admitting this evidence as relevant to an element
of the crime charged.
Additionally, appellant's reliance on Burchette is
misplaced. Burchette rejects the use of such evidence to prove
that the armed person was in knowing possession of the drugs.
Burchette, 15 Va. App. at 437, 425 S.E.2d at 83-84. The evidence
was not introduced for such a purpose in the instant case.
Rather, the gun was introduced as evidence of appellant's intent
to distribute the drugs. The trial court expressly instructed
the jury that they could not consider appellant's possession of
the handgun as knowing possession of cocaine. "'Once a jury is
instructed regarding the use or limitations placed on specific
evidence, they are presumed to follow such instructions.'"
Lawson v. Commonwealth, 13 Va. App. 109, 112, 409 S.E.2d 466, 467
(1991) (quoting Lewis v. Commonwealth, 8 Va. App. 574, 580, 383
S.E.2d 736, 740 (1989) (en banc)). Nothing in the record
indicates that the jury failed to adhere to the instruction
regarding its consideration of the gun. Thus, appellant's
argument is without merit.
III.
Appellant next argues that the trial court erred in failing
to inform the jury at the guilt stage of the trial of the
possible range of punishment for the offense. Appellant failed
7
to raise this argument at trial, and he is procedurally barred
from raising it on appeal. The Court of Appeals will not
consider an argument on appeal that was not presented to the
trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991) (citing Rule 5A:18).
IV.
Lastly, appellant contends that the evidence presented was
insufficient to convict him of possession of cocaine with intent
to distribute. Specifically, he argues that the Commonwealth
failed to prove that, as the owner or occupant of the vehicle in
question, he exercised such dominion and control that he would
necessarily have known of the presence, nature, and character of
the drugs recovered from his vehicle.
"A conviction will be affirmed unless it appears from the
evidence that it is plainly wrong." Jetter v. Commonwealth, 17
Va. App. 745, 746, 440 S.E.2d 633, 633 (1994). "On appeal, we
review 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), and "the burden is on appellant
to show that the evidence failed to support the trial court's
decision." Jetter, 17 Va. App. at 747, 440 S.E.2d at 634.
To establish the offense of possession of cocaine with
intent to distribute, the Commonwealth must prove that appellant
"'intentionally and consciously possessed' the drug, either
8
actually or constructively, with knowledge of its nature and
character, together with the intent to distribute it." Wilkins
v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994)
(en banc) (citing Josephs v. Commonwealth, 10 Va. App. 87,
99-102, 390 S.E.2d 491, 497-99 (1990) (en banc); Code
§ 18.2-248)). Ownership and occupancy of a vehicle alone are
insufficient to prove knowing possession of drugs found in the
vehicle; however,
[o]wnership or occupancy of a vehicle or of
premises where illicit drugs are found is a
circumstance that may be considered together
with other evidence tending to prove that the
owner or occupant constructively possessed
the contraband . . . .
Burchette, 15 Va. App. at 435, 425 S.E.2d at 83.
Viewing the evidence in the light most favorable to the
Commonwealth as the prevailing party, it is clear that appellant
was the sole owner and occupant of the vehicle. Appellant
testified that he used the vehicle as a fishing truck, but he
obviously also used it for other purposes. He was not fishing at
the time of the truck's seizure. The fact that he might at one
time have used the scales in the truck to weigh fish does not
preclude their use as a weighing device for the cocaine
discovered nearby. The evidence further established that the
back of the truck, where the drugs were recovered, was replete
with items of appellant's personal property. The cocaine was
recovered from the same pocket in appellant's bag in which his
camera was found. The digital scales, the plastic baggies, the
9
quantity and value of the cocaine, and the loaded handgun support
the inference that appellant possessed this cocaine with intent
to distribute. Appellant's ownership and control of the vehicle
and the proximity of the drugs and paraphernalia to appellant's
personal property, in addition to the other facts, demonstrate
that appellant constructively possessed the cocaine with the
intent to distribute.
Appellant argues that the holding in Burchette requires
reversal of the case at bar. We disagree. In Burchette, we held
that where the Commonwealth "presented no evidence from which one
reasonably could infer that [appellant] occupied the vehicle or
had exercised dominion over it while the [contraband] was present
in it" and where the Commonwealth "failed to show either when
[appellant] may have used or occupied the vehicle or when or for
how long the drugs or paraphernalia had been in it," then the
evidence did not tend to prove constructive possession.
Burchette, 15 Va. App. at 435-36, 425 S.E.2d at 84. We held that
under such circumstances, the "probability of guilt is
insufficient to warrant a criminal conviction." Id. at 438, 425
S.E.2d at 86.
Unlike Burchette, the facts of the instant case demonstrate
that the Commonwealth proved not only that appellant owned the
truck where the drugs were found, but also that appellant himself
had driven the truck to the Black Angus Club parking lot, and
that he had exercised dominion and control over the truck during
10
the time it stayed in the lot. No evidence was presented to
indicate that anyone other than appellant had control of the
truck. Sole occupancy and dominion and control over the vehicle
at the time in which the drugs are found therein is additional
evidence of knowing possession. See, e.g., Jetter, 17 Va. App.
745, 440 S.E.2d 633. Thus, viewing the evidence in its entirety,
all necessary circumstances proved were consistent with guilt and
inconsistent with innocence, and every reasonable hypothesis of
innocence was excluded. See Garland v. Commonwealth, 225 Va.
182, 184, 300 S.E.2d 783, 784 (1983).
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
11