Ricky Lamont Jones v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia
RICKY LAMONT JONES
OPINION BY
v. Record No. 0832-93-2 JUDGE SAM W. COLEMAN III
DECEMBER 19, 1995
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
David P. Baugh for appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Ricky Lamont Jones was convicted in a jury trial of
distribution of cocaine, a second or subsequent offense in
violation of Code § 18.2-248(C). A panel of this Court reversed
the conviction on the ground that the evidence was insufficient
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to prove Jones possessed the cocaine. See Jones v.
1
Prior to oral argument before the panel, the defendant filed
a motion to dismiss the conviction on the ground that the
predicate conviction used to enhance the punishment pursuant to
Code § 18.2-248(C) had been reversed after the petition for appeal
was filed. See Jones v. Commonwealth, 18 Va. App. 329, 443 S.E.2d
820 (1994). In his brief for the en banc rehearing, the defendant
also raised as an additional issue the reversal of the predicate
conviction during the pendency of the appeal. However, other than
stating the question, the defendant does not present an argument
or cite authority in support of his contention that an appellate
court may take notice of the status of a predicate offense when
that status changes during the pendency of the appeal. See
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992) (holding that appeals court not required to decide an issue
not discussed or developed on brief).
Nevertheless, we hold that we cannot address this question
Commonwealth, 19 Va. App. 393, 397, 451 S.E.2d 695, 697 (1994).
We granted the Commonwealth's petition for rehearing en banc and
upon rehearing we affirm the conviction.
The questions presented on appeal are (1) whether a
conviction for an offense that was committed subsequent to the
charged offense can be used to enhance punishment under Code
§ 18.2-248(C), (2) whether the trial court erred by permitting
the police informant, who allegedly purchased cocaine from the
defendant, to testify that he could not remember anything about
the controlled buy, and (3) whether the evidence is sufficient to
support the conviction.
I. FACTS
On June 14, 1991, Special Agent Barrett
arranged for confidential informant Floyd
Langhorne to purchase two ounces of cocaine.
At about 3:00 p.m., while accompanied by
Officer Reed, Barrett frisked Langhorne,
drove him to an unspecified location west of
the McDonald's Restaurant at 501 West Broad
Street that was to be the site of the
purchase, and gave him $2,500 with which to
make the purchase. Langhorne returned to the
police vehicle at 3:20 p.m. with two plastic
bags of cocaine. Special Agent Barrett gave
the cocaine to Special Agent Blanton, and
appellant stipulated to the chain of custody
of the cocaine from that point forward.
Detectives Pence and Milhalcoe monitored
because it was not presented in the defendant's petition for
appeal and no appeal was granted on the issue. Rule 5A:12(C);
Goodwin v. Commonwealth, 11 Va. App. 363, 364 n.1, 398 S.E.2d 690,
690-91 n.1 (1990). Defects in a criminal conviction that occur
after an appeal has been granted and which may render the
convict's detention unlawful, must be raised other than by direct
appeal. See Code § 8.01-654(A); McClenny v. Murray, 246 Va. 132,
134, 431 S.E.2d 330, 330-31 (1993).
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Langhorne's activities in and around the
McDonald's parking lot. From the top of a
nearby building, Pence saw Langhorne walk
through an alley and into the McDonald's
parking lot. There, Langhorne met up with
appellant, and the two walked to a car, which
they entered. Two minutes later, Langhorne
got out of the car, appellant drove away, and
Langhorne walked back toward where Barrett
and Reed were waiting. Pence photographed
these events. From a car in a nearby parking
lot, Detective Milhalcoe saw appellant drive
alone in a car into the McDonald's parking
lot. Although Milhalcoe saw Langhorne and
appellant meet in the parking lot, he
testified that they walked "momentarily" out
of his sight. When they were out of his
sight at the front of the restaurant, he
could not see whether Langhorne went into the
restaurant or met other persons. He also
testified that other restaurant patrons were
in the area. Appellant and Langhorne
reappeared and entered appellant's car.
Langhorne got out of the car after a "short
time," appellant drove away, and Langhorne
walked back toward where Barrett and Reed
"were supposed to be."
Neither Pence nor Milhalcoe testified that
they actually saw Langhorne rejoin Barrett
and Reed at their vehicle, and the evidence
failed to show that the line of sight of
Pence or Milhalcoe overlapped the line of
sight of Barrett or Reed. Thus, the evidence
fails to prove that Langhorne was under
police surveillance at all times.
Jones, 19 Va. App. at 394-95, 451 S.E.2d at 695-96.
II.
SECOND OR SUBSEQUENT CONVICTION
Code § 18.2-248(C) provides, in pertinent part, that upon a
first conviction for distributing a Schedule II controlled
substance a person shall be imprisoned for not less than five nor
more than forty years, but that "[u]pon a second or subsequent
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conviction of such a violation" a person may be sentenced to
imprisonment for life or any period not less than five years.
The defendant argues that a conviction for an offense committed
subsequent to the charged offense does not qualify as "a second
or subsequent conviction" under the statute.
The defendant concedes that a panel of this Court has
decided this issue adversely to his position, see Mason v.
Commonwealth, 16 Va. App. 260, 430 S.E.2d 543 (1993), but he
argues that the Court, sitting en banc, should overrule the
panel's decision in Mason. We decline to do so, and we uphold
the decision in Mason that "[Code § 18.2-248(C)] contains no
provision that, in order for the enhanced penalty provision to
obtain, the defendant must have been convicted of the first
offense before committing the second offense." Id. at 262, 430
S.E.2d at 543.
III.
ADMISSIBILITY OF INFORMANT'S TESTIMONY
Outside the presence of the jury, the Commonwealth called
Floyd Langhorne as a witness. Langhorne claimed he had been ill,
and he denied having any recollection of the events for which the
defendant was on trial. Over the defendant's objection that
Langhorne's testimony was irrelevant and prejudicial, the trial
court permitted Langhorne to testify that he had sustained head
injuries and could not remember any of the events surrounding his
purported drug purchase from the defendant. Langhorne also
testified that he could not identify himself as one of the people
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shown in a photograph that had been taken of his encounter with
the defendant near the McDonald's restaurant.
The Commonwealth proved that Langhorne was a confidential
police informant who made a controlled drug purchase for the
police. Thus, according to the Commonwealth's evidence, he was a
material witness. He was the only witness for the Commonwealth
who participated in the transaction and who presumably had
personal knowledge of the particulars of the drug purchase. See
Bland v. City of Richmond, 190 Va. 42, 46, 55 S.E.2d 289, 291
(1949). Therefore, Langhorne's testimony that he had sustained
head injuries and could not remember the events of the day in
question was relevant to explain the absence of evidence from a
material witness, thereby avoiding the presumption that
Langhorne's testimony would have been adverse to the
Commonwealth. See Russell v. Commonwealth, 216 Va. 833, 835-36,
223 S.E.2d 877, 878-79 (1976); Bland, 190 Va. at 46, 55 S.E.2d at
291. Accordingly, the trial court did not err by permitting
Langhorne to testify that he did not recall the events.
IV.
SUFFICIENCY OF EVIDENCE
We reject the Commonwealth's contention that the defendant
is procedurally barred by Rule 5A:18 from raising the question of
whether the evidence is sufficient to prove beyond a reasonable
doubt that the cocaine the officers obtained from Langhorne came
from the defendant. Although the panel stated "that the issues
of sufficiency of the evidence and chain of custody are
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inextricably linked," Jones, 19 Va. App. at 397, 451 S.E.2d at
697, the panel did not hold that by objecting to the
admissibility of the drugs into evidence on the ground of
insufficient proof of the chain of custody, the defendant thereby
raised the issue of whether the evidence is sufficient to sustain
the conviction. The panel held, and we agree, that the motion
"to set aside the verdict as contrary to the law and the evidence
. . . [based on] the chain of custody issue, in particular," id.,
required that the trial judge decide whether the evidence was
sufficient to prove beyond a reasonable doubt that the cocaine
the officers received from Langhorne had been purchased from the
defendant. See Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73,
75 (1960) ("While a motion to strike is an appropriate way of
testing the sufficiency of relevant evidence to sustain an
adverse verdict . . . [i]t has long been the practice in this
jurisdiction to test the sufficiency of such evidence by a motion
to set aside the verdict"); McGee v. Commonwealth, 4 Va. App.
317, 321, 357 S.E.2d 738, 740 (1987).
We hold that the evidence is sufficient to prove beyond a
reasonable doubt that Langhorne purchased from the defendant the
cocaine he turned over to Special Agent Barrett. Admittedly,
without Langhorne's testimony, the evidence proving that the
cocaine came from the defendant is purely circumstantial.
However, "[c]ircumstantial evidence alone is sufficient to
sustain a conviction." Johnson v. Commonwealth, 2 Va. App. 598,
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604-05, 347 S.E.2d 163, 167 (1986). When circumstantial evidence
is relied upon "[t]here must be an unbroken chain of
circumstances ``proving the guilt of the accused to the exclusion
of any other rational hypothesis and to a moral certainty.'"
Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737
(1971) (quoting Brown v. Commonwealth, 211 Va. 252, 255, 176
S.E.2d 813, 815 (1970)). However, "the theory of innocence must
flow from the evidence, and not from the ruminations of defense
counsel." Mullis v. Commonwealth, 3 Va. App. 564, 574, 351
S.E.2d 919, 925 (1987).
"When the sufficiency of the evidence is challenged on
appeal, it is well established that we must view the evidence in
the light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. The conviction
will be disturbed only if plainly wrong or without evidence to
support it." Jones v. Commonwealth, 13 Va. App. 566, 572, 414
S.E.2d 193, 196 (1992).
The circumstantial evidence in this case points unerringly
to the fact that Ricky Lamont Jones was the person who sold
cocaine to Floyd Langhorne. Special Agent Barrett arranged for
Langhorne to make a controlled drug buy. Barrett, accompanied by
Officer Reed, frisked Langhorne to verify that he did not already
possess drugs. Barrett then transported Langhorne to a location
west of the designated site where the purchase was to take place,
and gave Langhorne $2,500. A short time after Langhorne left
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Agent Barrett and Officer Reed on foot, Officer Pence observed
Langhorne arrive at the designated site, meet the defendant, and
enter the defendant's car along with the defendant.
Officer Pence then observed Langhorne exit the car and walk
back toward the place where Barrett and Reed were waiting.
Officer Milhalcoe also monitored Langhorne's activities in and
around the designated purchase site, and, although he momentarily
lost sight of Langhorne, like Officer Pence, he observed
Langhorne meet with the defendant, enter the defendant's car, and
then walk back toward the place where Barrett and Reed "were
supposed to be."
Although the evidence does not show that the line of sight
of Pence or Milhalcoe overlapped the line of sight of Barrett or
Reed, it does show that Langhorne left Barrett and Reed walking
in the direction of the designated purchase site. When Langhorne
arrived at the purchase site a few minutes later, he met with the
defendant, walked back in the direction where Barrett and Reed
were waiting, and possessed cocaine when he returned to Barrett
and Reed. Although Officer Milhalcoe momentarily lost sight of
Langhorne, Officer Pence had Langhorne under surveillance the
entire time Langhorne was in and around the McDonald's parking
lot. Thus, the evidence shows that Langhorne could not have
obtained the cocaine from a source other than the defendant.
Moreover, the evidence shows that Langhorne had neither the
time nor the opportunity to purchase the drugs while en route to
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the designated site and then back to Barrett and Reed. Both
Pence and Milhalcoe observed Langhorne walk back toward the place
where Barrett and Reed were waiting after meeting with the
defendant. To suggest that Langhorne obtained the drugs from
another person along the route between the designated purchase
site and the location where Barrett and Reed were waiting is pure
speculation and conjecture. The only reasonable conclusion that
flows from the evidence is that Langhorne purchased the cocaine
from Ricky Lamont Jones. Thus, the evidence excludes every
reasonable hypothesis of innocence and proves beyond a reasonable
doubt that the defendant sold cocaine to Langhorne.
The panel found the facts in Gordon to be analogous and
controlling. We find that the facts in this case are
distinguishable from those in Gordon and that the holding in
Gordon is, therefore, not controlling. In Gordon, a police
officer pursued a fleeing suspect and observed the suspect
carrying a manila envelope. The officer momentarily lost sight
of the suspect. When the suspect reappeared, he was no longer
carrying the envelope. After apprehending the suspect, the
officer conducted a brief search of the surrounding area but
could not find the envelope. Some minutes later, another police
officer found a manila envelope in front of some doctors' offices
located on a busy street the suspect had travelled while
attempting to flee. The envelope contained drug paraphernalia
with traces of heroin. While it was probable that the envelope
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the officer found near the busy public street was the same one
the suspect had carried, the evidence did not prove this fact.
No evidence indicated that the envelope Gordon possessed was the
same one found containing the drug paraphernalia. Gordon, 212
Va. at 299-301, 183 S.E.2d at 736-37.
In the present case, the evidence proves that Langhorne,
before meeting with Jones, did not possess any drugs and had
$2,500 in currency. After meeting with Jones for the purpose of
purchasing drugs, he no longer had the $2,500, but possessed two
ounces of cocaine. The fact that the officers did not have
Langhorne under surveillance the entire time he was away from
Agent Barrett and Officer Reed does not establish a reasonable
hypothesis that someone other than Jones was the source of the
cocaine. Thus, the circumstantial evidence establishes that
Langhorne obtained drugs from Jones and an unbroken chain of
possession of the cocaine from Jones to Langhorne to Barrett.
Accordingly, we find the evidence sufficient and affirm the
conviction.
Affirmed.
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Elder, J., with whom Benton, J., joins, dissenting.
I respectfully dissent from the majority opinion for the
reasons stated in the panel decision, Jones v. Commonwealth, 19
Va. App. 393, 451 S.E.2d 695 (1994). I would hold that the
evidence was insufficient and reverse and dismiss the conviction.
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