Trisha Dawn Arnold v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
TRISHA DAWN ARNOLD
MEMORANDUM OPINION * BY
v. Record No. 2929-00-2 JUDGE JEAN HARRISON CLEMENTS
MARCH 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Mark A. Murphy (Mark A. Murphy & Associates,
on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Trisha Dawn Arnold was convicted in a bench trial of being an
accessory before the fact to possession of cocaine with intent to
distribute, in violation of Code §§ 18.2-248 and 18.2-18 . On
appeal, she contends (1) the evidence was not sufficient to
sustain the conviction and (2) the trial court erred in admitting
into evidence an unsigned, undated handwritten note found in the
home she shared with the principal, Thomas Payne. Finding the
evidence insufficient to convict Arnold, we reverse her conviction
and dismiss the indictment.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and other incidents
of the proceedings as necessary to the parties' understanding of
the disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We will not disturb a conviction
unless it is plainly wrong or unsupported by the evidence.
Sutphin v Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898
(1985).
Our Supreme Court has consistently defined an "accessory" as
"'one not present at the commission of the offense, but who is in
some way concerned therein, either before or after, as [a]
contriver, instigator or adviser, or as a receiver or protector of
the perpetrator.'" McGhee v. Commonwealth, 221 Va. 422, 425, 270
S.E.2d 729, 731 (1980) (alteration in original) (quoting Tolley v.
Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555 (1975)).
Thus, for Arnold to be convicted as an accessory before the fact
to possession of cocaine with intent to distribute, the
Commonwealth had to prove beyond a reasonable doubt (1) that the
crime of possession of cocaine with intent to distribute was
committed, (2) that Arnold was absent at the commission of the
- 2 -
crime, and (3) "that, before the commission of the crime, [Arnold]
was 'in some way concerned therein . . . as [a] contriver,
instigator or advisor.'" Id. at 425-26, 270 S.E.2d at 731
(quoting Tolley, 216 Va. at 348, 218 S.E.2d at 555).
The evidence presented in this case established that,
commencing at approximately 8:30 p.m. on June 1, 2000, Detective
Lynch conducted surveillance of the residence of Payne and Arnold.
During the approximately one-and-a-half-hour-long surveillance,
Lynch observed Payne outside the house working on a motorcycle and
"racing it up and down the street." On three separate occasions,
a vehicle pulled up in front of the house. Each time, Payne
talked to the occupant of the vehicle, entered the residence,
reemerged a short time later, and exchanged with the occupant of
the vehicle "a small item for another small item." The driver
then drove off. Each incident lasted "no more than a minute or
two." Lynch could not identify the items exchanged by Payne and
the occupants of the vehicles. At one point during the
surveillance, Lynch saw Arnold standing at the front door of the
residence but could not say whether it was when any of the
exchanges involving Payne occurred.
Following the surveillance, Lynch and two other detectives
entered the house and executed a search warrant at 10:19 p.m. The
detectives discovered that Arnold was the only one at home. The
detectives explained to Arnold that they were there because they
"knew there were drugs being sold out of the home." Arnold told
- 3 -
the detectives that she and Payne had been "boyfriend and
girlfriend" for two years and that they had been living in the
house where the search warrant was executed for two months. She
also volunteered that "Payne kept cocaine in the flour canister in
the kitchen." The detectives found cocaine in a canister on the
kitchen counter. They also found two thousand dollars in plain
view on a television stand in the living room, a scale "commonly
used to weigh illegal controlled substances" on the kitchen
counter, plastic sandwich bags in a kitchen cabinet, a bag of
cocaine inside a hole in the wall of a shed attached to the house,
nine hundred fifty-seven dollars in a hole in a lamp in the master
bedroom, a shoulder holster, rifle, and bullets in a downstairs
closet, ammunition for .22 and .25 caliber weapons in the master
bedroom closet, and an unsigned, undated handwritten note in a
dresser drawer in the master bedroom that read, in part, "I hate
the fact that [Thomas] sells . . . ."
The Commonwealth indicted and tried Arnold for having been in
possession of cocaine on June 1, 2000, with the intent to
distribute it. However, the trial court, finding that the
evidence was insufficient to convict Arnold of that charge,
convicted her instead of having been an accessory before the fact
to possession of cocaine with intent to distribute.
The Commonwealth's evidence upon which Arnold's conviction
was based spanned the period of time on June 1, 2000, between the
beginning of Detective Lynch's surveillance and the completion of
- 4 -
the detectives' execution of the search warrant. Detective Lynch
saw Arnold in the residence during his surveillance, and the
detectives found Arnold in the residence when they entered the
house and executed the search warrant. Consequently, we find that
the Commonwealth's evidence, even when viewed in the light most
favorable to the Commonwealth, failed to prove beyond a reasonable
doubt that Arnold was absent during the commission of the crime,
as required to convict her as an accessory before the fact. Thus,
we hold that the evidence presented at trial was insufficient, as
a matter of law, to sustain Arnold's conviction.
Accordingly, we reverse Arnold's conviction and dismiss the
indictment. 1
Reversed and dismissed.
1
Because we reverse Arnold's conviction on the basis of
insufficient evidence, we do not address her second assignment
of error.
- 5 -