Green v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia

TOMMY GREEN
OPINION BY
v. Record No. 2815-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 9, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge

Michael A. Jagels (James O. Broccoletti;
Zoby & Broccoletti, on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Tommy Green (appellant) was convicted in a bench trial of

misdemeanor possession of marijuana, in violation of Code

§ 18.2-250.1, possession of cocaine, in violation of Code

§ 18.2-250, 1 and transporting cocaine with the intent to

distribute, in violation of Code § 18.2-248.01. On appeal, he

contends the trial court erred: (1) in denying his motion to

1
Appellant was initially charged with possession with intent
to distribute marijuana, in violation of Code § 18.2-248.1, and
possession with intent to distribute cocaine, in violation of Code
§ 18.2-248. The trial court granted appellant's motion to strike
the evidence of intent to distribute on these two charges and
convicted appellant of misdemeanor possession of marijuana and
simple possession of cocaine. However, the sentencing orders
contain clerical errors indicating that appellant was convicted of
"PWID Marijuana (M) (§ 18.2-248.1)" and "PWID Cocaine (F)
(§ 18.2-248)."
suppress; and (2) in finding that venue for the transportation

of cocaine charge was proper in the City of Suffolk. For the

following reasons, we affirm the trial court's denial of the

motion to suppress and reverse and remand the conviction for

transporting cocaine with the intent to distribute.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on October 1, 1996,

Detective Robert Vasquez (Vasquez) of the Newport News Police

Department intercepted a package in Newport News, Virginia. At

the time, Vasquez was working with the DEA's drug task force at

a United Parcel Service (UPS) facility in Newport News when he

saw a partially opened package. The package appeared to contain

green vegetables, had been shipped from New York, New York, and

was addressed to "Mrs. J. Jenkins" at "2832 East Washington

Street" in the City of Suffolk.

Vasquez removed the package from the shipping line and

placed it in a line with ten other boxes. A drug detection dog

was brought in to determine whether drugs were present. During

the procedure, the dog alerted on the package in question.

Based on this information, Vasquez obtained a search warrant for

- 2 -
the package, opened it and found 211.6 grams of cocaine and 59

grams of marijuana in a brown paper bag underneath some "collard

greens" and "green beans."

As a result of the search, Vasquez contacted the City of

Suffolk Police Department and executed a controlled delivery of

the package to the Suffolk address listed. Prior to executing

the delivery, police removed all of the cocaine and marijuana

except for one gram of each substance.

The residence at the address listed on the package was a

single story duplex that was one building, but it contained two

street numbers on the front of the building, "2832" on the left

and "2834" on the right. At the time of delivery, Vasquez,

wearing a UPS uniform, approached the chain link fence

surrounding the building. After the agent rang the doorbell,

which was affixed to the chain link fence, appellant exited from

2834 and came to the gate. Vasquez told appellant that he had

"a package for 2832 for Mrs. J. Jenkins." Appellant stated,

"Well, that's me." Vasquez said, "Well, you need to sign for

the box." Appellant exited the gate and signed for the package.

The agent gave the box to appellant, who re-entered the 2834

side of the residence.

As the delivery occurred, Investigator Gary Parker (Parker)

was at the magistrate's office with a substantially prepared

search warrant and affidavit. Parker, awaiting verification of

the delivery, was on a cellular phone with Officer T.M.

- 3 -
Davenport, who was at the scene. Davenport reported that

appellant exited 2834, received the package and re-entered the

2834 residence. Parker made a handwritten addition of this

information at the end of the typed search warrant affidavit.

The officer initialed the handwritten addition to the affidavit

and the magistrate issued the search warrant for "2832 EAST

WASHINGTON ST. SUFFOLK, VA. A GREY SINGLE STORY DUPLEX WITH

WHITE TRIM, ENCLOSED WITH A CHAIN LINK FENCE. WHEN FACING THE

RESIDENCE IT IS TO THE FAR LEFT." The warrant did not mention

the 2834 side of the duplex because the officer failed to insert

the information into the warrant as he had in the attached

affidavit. However, Parker testified that he believed the

warrant authorized the search of "2832 East Washington Street

and 2834 East Washington Street," both located within the single

story duplex.

Approximately two minutes after appellant took possession

of the package, police officers began to enter the 2834

residence. At that moment, appellant exited 2832 carrying the

package and was apprehended by the police. Upon his arrest,

police found a UPS "customer counter shipping record" in

appellant's right rear pocket. That document, dated September

30, 1996, constituted a receipt given by UPS to the individual

who originally shipped the package at the UPS counter in New

York. That document showed that the package had been shipped at

the next day air travel rate, indicating that the package was

- 4 -
shipped from New York on September 30, 1996 and was to be

delivered in Suffolk, Virginia the following day.

During the search of the 2832 premises, police recovered

from a hole in the floorboard the suspected one gram of cocaine

and one gram of marijuana. The police also saw loose

vegetables, similar to the ones contained in the package when it

was initially seized by Vasquez at the Newport News UPS

facility. In a search of the 2834 residence, police recovered

numerous partially smoked marijuana cigarettes, a clear plastic

bag containing marijuana, and rolling papers. Appellant

admitted that after he accepted the package from Vasquez and

re-entered the 2834 residence through the front door, he then

entered the 2832 residence through the back door. When the

police apprehended appellant exiting 2832, he was the only

individual present in that residence.

In his pretrial motion to suppress, appellant argued that

the evidence seized from the 2834 residence was inadmissible

because the face of the warrant did not authorize the police to

search that side of the duplex. The trial court denied

appellant's motion, stating that the warrant was properly issued

for 2832 and, based upon the information in the affidavit

attached to the warrant, the officers had a good faith basis to

search 2834.

At the conclusion of the Commonwealth's case, appellant

moved to strike the transportation charge, contending that venue

- 5 -
was improper in the City of Suffolk. The package that was

delivered to the Suffolk address contained less than one ounce

of suspected cocaine. Appellant conceded that the

transportation charge could be tried in Newport News where the

police seized the entire 211 grams. However, he argued the

evidence was insufficient to prove that he transported the

statutorily required amount into the City of Suffolk. The trial

court denied the motion, stating the following:

The transportation undoubtedly occurred
beyond any shade of a doubt. Two hundred
eleven grams is some eight ounces, is
certainly more than four ounces,
substantially more than one ounce of
cocaine. It was transported in the State of
Virginia. In commerce as to Newport News
and then also it was brought from Newport
News to Suffolk by the police. The issues
are whether Mr. Green was involved in that
transporting.

Mr. Green willingly received the
package that was addressed to the address
where he held himself out to reside. There
is evidence that he used, in the case that
he used both addresses, 2834 as well as
2832. He held himself out to reside in both
of the addresses. He was there. He was the
only person there. He willingly accepted
the box, without any question, as to the
point of delivery, as to the return address
shown on the box. Not only that, but I
think most tellingly, he was in possession
of the customer counter shipping record
which originated at the point of shipping in
New York City. . . .

Appellant was convicted of misdemeanor possession of marijuana,

in violation of Code § 18.2-250.1, possession of cocaine, in

- 6 -
violation of Code § 18.2-250, and transporting cocaine with the

intent to distribute, in violation of Code § 18.2-248.01.

II. SEARCH WARRANT

"In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731 (1980)). In the instant case, appellant does

not challenge the validity of the search warrant for the

premises located at 2832 East Washington Street. However, he

argues the search of the 2834 residence was invalid because the

warrant specified only "2832" and the good faith exception did

not apply.

Assuming, without deciding, that the search of 2834 East

Washington Street was improper, any error was harmless because

the evidence seized from the 2832 residence was sufficient to

convict appellant of the two possession offenses. "When a trial

court admits evidence in violation of the United States

Constitution, the court's error is a constitutional one."

Williams v. Commonwealth, 30 Va. App. 378, 383, 517 S.E.2d 246,

249 (1999) (citing Jenkins v. Commonwealth, 254 Va. 333, 336,

492 S.E.2d 131, 132 (1997)). "[B]efore a federal constitutional

error can be held harmless, the court must be able to declare a

- 7 -
belief that it was harmless beyond a reasonable doubt." Id.

(internal quotations and citations omitted). "We decide whether

the erroneous admission of evidence was sufficiently prejudicial

to require reversal on the basis of our own reading of the

record and on what seems to us to have been the probable impact

on the fact finder." Id. at 384, 517 S.E.2d at 249 (internal

quotations and citations omitted).

Based upon our review of the record, we conclude that any

erroneous admission of the evidence seized from the 2834

residence was harmless beyond a reasonable doubt because the

"record contains 'overwhelming' evidence of guilt." Scott v.

Commonwealth, 25 Va. App. 36, 42, 486 S.E.2d 120, 123 (1997).

Here, one gram of cocaine and one gram of marijuana were placed

back into the package after the police discovered the narcotics

in Newport News. At the controlled delivery in Suffolk,

appellant received the box containing the contraband. It was

later discovered in the hidden floor compartment at 2832 East

Washington Street. The trial court ruled that there was no

infirmity in the search warrant as to the 2832 residence, and

appellant does not challenge that finding on appeal. The

substances recovered from 2832 were sufficient to support his

convictions for possession of marijuana, in violation of Code

§ 18.2-250.1, and possession of cocaine, in violation of Code

§ 18.2-250. Accordingly, any error was harmless beyond a

reasonable doubt.

- 8 -
 III. VENUE

Appellant next contends that venue on the transportation

offense was improper because no evidence established that the

crime was committed in the City of Suffolk. Although he

concedes that "a charge of this nature could lie maybe in

Newport News," where Vasquez intercepted the suspected

narcotics, he argues that the trial court in the City of Suffolk

lacked jurisdiction over the transportation charge. 2 Because the

Commonwealth failed to prove, as a requirement of venue, that he

"transported . . . one ounce or more of cocaine" into the City

of Suffolk, or that he "committed an act in Suffolk that put

into motion the transportation from New York," appellant

concludes that venue was improper and the conviction should be

dismissed.

In response, the Commonwealth contends that venue is proper

in the jurisdiction where any part of the offense was committed

or, as applied to Code § 18.2-248.01, in any jurisdiction where

it can be shown that the drugs passed. See Seke v.

2
Appellant's argument that the evidence failed to prove
that the alleged transportation offense occurred in the City of
Suffolk "raises an issue of venue and does not constitute an
allegation that the circuit court lacked jurisdiction, or
inherent power, to decide this case." Tribuzi v. Commonwealth,
25 Va. App. 289, 294 n.1, 487 S.E.2d 870, 873 n.1 (1997); see
also Southern Sand & Gravel Co. v. Massaponax Sand & Gravel
Corp., 145 Va. 317, 328, 133 S.E. 812, 815 (1926) ("That the
action is tried in a county other than that declared by statute
the proper county for its trial does not go to the jurisdiction,
and does not invalidate the judgment.").

- 9 -
Commonwealth, 24 Va. App. 318, 324-25, 482 S.E.2d 88, 90-91

(1997). Because the evidence established that appellant

"transported" 211 grams of cocaine into Virginia and appellant

intended to receive the shipment in the City of Suffolk, the

Commonwealth concludes that venue was proper. We disagree with

the Commonwealth and reverse the transportation conviction.

"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. Venue is reviewed to

determine "whether the evidence, when viewed in the light most

favorable to the Commonwealth, is sufficient to support the

[trial court's] venue findings." Cheng v. Commonwealth, 240 Va.

26, 36, 393 S.E.2d 599, 604 (1990). The Commonwealth may prove

venue by either direct or circumstantial evidence. In either

case, the evidence must be sufficient to present a "'strong

presumption' that the offense was committed within the

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)).

Code § 18.2-248.01, the statute under which appellant was

convicted, provides in part:

[I]t is unlawful for any person to transport
by any means one ounce or more of cocaine,
coca leaves or any salt, compound,
derivative or preparation thereof as
described in Schedule II of the Drug Control
Act or any other Schedule I or II controlled
substance or five or more pounds of

- 10 -
 marijuana into the Commonwealth with intent
to sell or distribute such substance.

(Emphasis added). Under this section, the Commonwealth is not

required to prove that the intended destination is Virginia.

See Seke, 24 Va. App. at 324, 482 S.E.2d at 91. "Instead, a

violation of Code § 18.2-248.01 is proved when a person enters

the Commonwealth while transporting any of the illegal

substances set forth in the statute." Id. "Thus, a violation

of Code § 18.2-248.01 occurs the moment a person transporting

illegal substances penetrates the borders of the Commonwealth."

Id. at 325, 482 S.E.2d at 91.

However, proof that appellant violated the statute does not

remove the requirement of bringing the case in the proper venue.

Venue is proper in the city or county where the offense

occurred, see Code § 19.2-244, and "the burden is on the

Commonwealth to prove venue by evidence which is either direct

or circumstantial." Pollard, 220 Va. at 725, 261 S.E.2d at 330.

In the instant case, the evidence does not support the

trial court's determination that venue for the charge of

transporting cocaine lay in the City of Suffolk. As appellant

has conceded, venue would have been proper in the City of

Newport News. 3 The evidence proved that the package containing

the cocaine was placed into transit in New York City. Although

3
On the record, we cannot say whether venue would have been
proper in any other jurisdiction.

- 11 -
the intended destination was "2832 East Washington Street" in

the City of Suffolk, the police intercepted the package in

Newport News. At that time, the police removed all but one gram

of cocaine and one gram of marijuana and transported the package

to the City of Suffolk for a controlled delivery to appellant.

Under Code § 18.2-248.01, venue is appropriate in any

jurisdiction where the required elements of the offense have

been established. Here, viewed in the light most favorable to

the Commonwealth, the evidence established that "one ounce or

more of cocaine" was brought "into the Commonwealth." Code

§ 18.2-248.01. Additionally, the evidence established that

appellant had mailed the drugs from New York to himself with the

intended destination of Suffolk, Virginia. This satisfied the

"transport by any means" element of Code § 18.2-248.01.

However, the requisite amount of narcotics was not satisfied in

the City of Suffolk where substantially less than "one ounce

. . . of cocaine" was delivered. Thus, venue properly existed

in each jurisdiction through which "one ounce or more of

cocaine" was transported, but not in those jurisdictions where

less than the required amount was transported. Because no

evidence established that the completed transportation of "one

ounce of more of cocaine" occurred in the City of Suffolk, we

conclude that venue on the transportation charge was improper in

that jurisdiction.

- 12 -
 Contrary to the Commonwealth's argument, the fact that

appellant intended to transport the cocaine to an address in the

City of Suffolk does not make venue proper there. As we

recognized in Seke, "[a] violation of [Code § 18.2-248.01] does

not depend upon the transporter's intended final destination."

24 Va. App. at 325, 482 S.E.2d at 91. Additionally, even if

appellant believed the package that was delivered by Vasquez

contained the entire 211 grams of cocaine, this cannot supply

the quantity of drugs needed to fulfill the statutory

requirements of Code § 18.2-248.01 and establish that a

completed crime occurred in the City of Suffolk. Cf. Owusu v.

Commonwealth, 11 Va. App. 671, 673, 401 S.E.2d 431, 432 (1991)

(mere fact that an officer investigated a crime cannot support

the inference that the crime occurred within the officer's

jurisdiction).

For the foregoing reasons, we affirm appellant's

convictions for possession of marijuana, in violation of Code

§ 18.2-250.1, and possession of cocaine, in violation of Code

§ 18.2-250. However, we reverse appellant's conviction for

transporting cocaine with the intent to distribute, in violation

of Code § 18.2-248.01, because we find that the Commonwealth did

not meet its burden to establish venue in the City of Suffolk.

"Proof of venue . . . is not regarded as material, so far as the

merits of the prosecution are concerned, and so the allegation

of venue is not part of the crime." Randall v. Commonwealth,

- 13 -
183 Va. 182, 187, 31 S.E.2d 571, 573 (1944); see Pollard, 220

Va. at 726, 261 S.E.2d at 330; Davis v. Commonwealth, 14 Va.

App. 709, 714, 419 S.E.2d 285, 288 (1992). Thus, we reverse and

remand for retrial in a proper venue if the Commonwealth be so

advised.

Affirmed, in part,
reversed and remanded,
in part.

- 14 -