Daryl Thomas Johnson, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
DARYL THOMAS JOHNSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 0806-02-3 JUDGE JEAN HARRISON CLEMENTS
AUGUST 26, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Gregory T. Casker for appellant.
Amy Hay Schwab, Assistant Attorney General
(Jerry W. Kilgore, Attorney General; Susan M.
Harris, Assistant Attorney General, on
brief), for appellee.
Daryl Thomas Johnson, Jr., (appellant) was convicted in a
bench trial of possession of cocaine with intent to distribute, in
violation of Code § 18.2-248. On appeal, he contends the trial
court erred (1) in concluding the police's warrantless retrieval
of the rental minivan key from his pocket was lawful, (2) in
determining the rental company manager's consent to search the
minivan during the rental period was valid, (3) in deciding the
rental company manager was not acting as an agent of the
government, and (4) in finding the evidence sufficient to sustain
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
his conviction. For the reasons that follow, we affirm
appellant's conviction.
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 incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
Ace Rental and Leasing Company (Ace Rental) rented a 1997
Dodge minivan to appellant on June 19, 2001, with a return date of
June 25, 2001. According to the rental agreement, the customer
must have a valid operator's license. The agreement further
provided that a customer's providing false or fraudulent
information in procuring the rental agreement would constitute a
breach of the agreement, giving the company the "right to pick up
the vehicle."
On the afternoon of June 21, 2001, Danville City Police
Officer Marcus Alonzo Jones responded to a domestic disturbance
call from Tia Rice, appellant's girlfriend, at 431 West Gay
Street. Upon his arrival at the residence, Jones heard yelling
coming from the basement and, upon going downstairs, saw appellant
"straddling Ms. Rice with his hands around her neck area." Jones
arrested appellant for domestic assault and battery. The officer
took appellant to his patrol car and, in a search incident to the
arrest, found approximately $1,250 in one of appellant's pants
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pockets and approximately $550 in another pants pocket. Jones
also found a key. Officer Jones then placed the money and key
back in appellant's pocket.
Investigator Dennis L. Haley and Officer J.L. Perkins were in
Rice's front yard as Jones searched appellant. Haley was assigned
to the Danville Police Department's drug and narcotics division
and "had had many experiences" with appellant. While working
undercover two weeks earlier, Haley had pulled his car alongside
appellant, who was driving a Chrysler Cyrus and wearing a white
cotton "do-rag" on his head. Haley ran the car's tag and
discovered appellant was driving with a suspended license.
However, since Haley was "doing a different type of operation," he
turned the information over to another officer. On the day in
question, Haley was on an unrelated assignment when he heard
dispatch make a call concerning a domestic disturbance involving a
suspect named "Juicy." Knowing appellant had the nickname
"Juice," Haley drove to the scene.
On seeing the key found in appellant's pocket by Officer
Jones, Investigator Haley, who had recently purchased a Chrysler
vehicle, recognized it as a Chrysler key because it was longer
than usual, had a black rubber cover over the head, and had the
Chrysler emblem imprinted on it. The key was also attached to a
yellow tag that had lines across it, which was consistent with the
key Haley had for his Chrysler vehicle. Investigator Haley looked
around and saw a burgundy Chrysler minivan with temporary tags
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parked in front of 431 West Gay Street. Haley then walked to
Jones's patrol car and asked appellant for permission to search
the minivan. Appellant refused to give consent. Tia Rice told
Haley appellant had driven the minivan to her house. The
investigator called in the minivan's temporary tags and found the
minivan belonged to Ace Rental. He asked dispatch to determine
the lessee's name and the status of appellant's driver's license.
On learning the minivan was leased to the appellant, and
confirming appellant's license was still suspended, Investigator
Haley called Phyllis McCubbins, the leasing manager for Ace
Rental. Haley told McCubbins that appellant had a suspended
operator's license. McCubbins confirmed that appellant's rental
agreement was conditioned on appellant having a valid Virginia
operator's license. She asked Haley to "hold the key and [Ace
Rental] would send someone out to pick [the minivan] up." Haley
asked McCubbins if he could come pick her up and bring her to the
minivan in order to "expedite matters," and McCubbins consented.
Investigator Haley posted Detective Eddie Whitehead to watch
the minivan while he was picking up McCubbins. Whitehead
testified that nobody was in the minivan while Haley was away.
Before leaving to pick up McCubbins, Haley "went back to the
patrol car and got the key [to the minivan] from [appellant]." He
then drove to Ace Rental, picked up McCubbins, gave her the key,
and returned with her to 431 West Gay Street. Upon arriving at
the minivan, McCubbins "repossessed the vehicle" because appellant
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"did not have a valid driver's license." Asked by Haley for
permission to search the vehicle, McCubbins "gave consent to
search." She executed a consent to search form and "handed
[Haley] the key back." After conducting a search of the vehicle,
Haley gave the key back to McCubbins, who drove the minivan back
to Ace Rental.
Inside the minivan, Haley found ten "off-white rocks" of
crack cocaine, wrapped in an Amoco receipt, lodged in a recessed
area of the door handle on the driver's side door. The receipt
pertained to repair work for the same Chrysler Cyrus Haley had
seen appellant driving two weeks before. Haley also found a white
cotton "do-rag" in the minivan of "the same type" he had seen
appellant wearing in the Cyrus two weeks before. Inside the
center console of the minivan, the police found a set of digital
scales with cocaine residue on it. The minivan's glove box
contained a pink copy of Ace Rental's rental agreement for the
minivan, endorsed by appellant. Underneath the agreement was a
Crown Royal bag with more crack cocaine and $1,086 in cash inside.
In total, 87.45 grams of cocaine, having an approximate street
value of "eighty-seven hundred dollars and change," were found in
the minivan. No fingerprints were found.
The trial court denied appellant's motion to suppress the
warrantless retrieval of the minivan key from his pocket and the
cocaine subsequently found in the minivan. The appellant
presented no evidence. The trial court found appellant guilty of
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possession of cocaine with intent to distribute. This appeal
followed.
II. MOTION TO SUPPRESS
On appeal from a trial court's denial of a motion to
suppress, the burden is on the appellant to show that the denial
of the motion constituted reversible error. See Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). In
reviewing such a denial, we consider the evidence in the light
most favorable to the Commonwealth, granting to the Commonwealth
all reasonable inferences fairly deducible from the evidence.
E.g., Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991).
Appellant concedes that Officer Jones's search of his person
incident to his arrest for domestic assault and battery was
lawful. He argues, however, that Investigator Haley's subsequent
search of his person and retrieval of the key from his pocket
necessitated a warrant. This argument is unsupported by any
citation to controlling legal authority that supports appellant's
position. We have repeatedly said that "[w]e do not deem it our
function . . . to ferret-out for ourselves the validity of [such]
claims." Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d
615, 625 n.7 (1988) (en banc). As we stated in Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992),
"[s]tatements unsupported by argument, authority, or citations to
the record do not merit appellate consideration." See also
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Theismann v. Theismann, 22 Va. App. 557, 572, 471 S.E.2d 809, 816,
aff'd en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996) (declining
to address an argument on appeal that was inadequately developed
in appellant's brief). Appellant's claim of trial court error
does not warrant appellate consideration and we, therefore, will
not address it on appeal.
Appellant next contends the rental company manager's consent
to search the minivan during the rental period was contrary to his
expectation of privacy and, thus, invalid. He argues the manager
had no control over the minivan during the rental period and did
not have authority to give police consent to search it. Once he
refused to give consent to search the minivan, appellant argues,
Investigator Haley's contacting the rental company's manager and
initiating the "repossession" of the minivan was a ruse to
circumvent his Fourth Amendment right to a reasonable expectation
of privacy created by the rental agreement. We disagree.
A bailee has standing and may object to a warrantless search
of a vehicle in which he has a temporary possessory interest and
expectation of privacy. Hardy v. Commonwealth, 17 Va. App. 677,
681, 440 S.E.2d 434, 437 (1994). However, "[a] warrantless search
of a motor vehicle without probable cause may nevertheless be
valid as a consent search, provided that the person who consents
has actual authority to do so." Id. The owner's property right
is "'superior' to the bailee's temporary possessory right and
expectations of privacy in the vehicle." Id. (quoting Anderson v.
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United States, 399 F.2d 753, 756 (10th Cir. 1968)). "An owner of
a motor vehicle may consent to a search of the vehicle over a
bailee's objections if, at the time of the consent, the owner 'was
either in possession or entitled to possession' of the vehicle."
Id. (quoting Anderson, 399 F.2d at 756-57).
Although appellant had a possessory interest and, thus, an
expectation of privacy in the minivan by virtue of the rental
agreement with the minivan's owner, Ace Rental, the Commonwealth's
evidence established this interest was conditioned upon appellant
having a valid Virginia operator's license. Investigator Haley
testified that appellant's operator's license was suspended. Upon
being advised by police that appellant did not possess a valid
Virginia operator's license, McCubbins, Ace Rental's manager,
concluded that appellant was in breach of the terms of his rental
agreement and Ace Rental was entitled to reclaim possession of the
minivan. McCubbins repossessed the minivan and consented to the
warrantless search of it by the police. At that point,
appellant's expectation of privacy was subordinate to the owner's
right to reclaim possession of the minivan and his objection to
the search was immaterial. Accordingly, the search of the
minivan was valid "because the owner-bailor of the vehicle
consented to the search." Id.Appellant next argues that McCubbins acted as an agent of the
government and, therefore, her consent to a search of the minivan
was invalid. Like appellant's first argument, this argument is
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also unsupported by any citation to controlling legal authority
that supports appellant's position. Hence, appellant's claim of
trial court error does not warrant appellate consideration and we
will not address it on appeal. Buchanan, 14 Va. App. at 56, 415
S.E.2d at 239; Theismann, 22 Va. App. at 572, 471 S.E.2d at 816.
Accordingly, the trial court did not err in denying
appellant's motion to suppress the evidence.
III. SUFFICIENCY OF THE EVIDENCE
Appellant contends the Commonwealth's evidence was
insufficient to prove he constructively possessed the cocaine
found in the minivan parked on the street. He argues there was no
evidence placing him in the minivan. Alternatively, he asserts
that, even if there was evidence to place him in the minivan at
some time, the mere fact of ownership or occupancy is insufficient
to prove he knowingly or intentionally possessed the cocaine.
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 the
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). "The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from proven
facts are matters solely for the fact finder's determination."
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Crawley v. Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170
(1999).
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character of
the drug and that the accused consciously possessed it." Walton
v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).
"[P]roof of actual possession is not required; proof of
constructive possession will suffice." Id. at 426, 497 S.E.2d at
872.
Constructive possession may be established by "evidence of
acts, statements, or conduct of the accused or other facts or
circumstances which tend to show that the [accused] was aware of
both the presence and the character of the substance and that it
was subject to his dominion and control." Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Occupancy or
ownership of the premises where the illegal drug is found is a
factor that may be considered in deciding whether the accused was
in possession of the illegal drug. See Walton, 255 Va. at 426,
497 S.E.2d at 871. Thus, in resolving the issue of constructive
possession, "the Court must consider 'the totality of the
circumstances disclosed by the evidence.'" Archer v.
Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997)
(quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353
(1979)).
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Circumstantial evidence is "competent and is entitled to as
much weight as direct evidence provided that the circumstantial
evidence is sufficiently convincing to exclude every reasonable
hypothesis except that of guilt." Dowden v. Commonwealth, 260 Va.
459, 468, 536 S.E.2d 437, 441 (2000). "While no single piece of
evidence may be sufficient, the 'combined force of many concurrent
and related circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion.'" Stamper v.
Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)
(quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562,
564 (1919)).
Here, the evidence established that Tia Rice, appellant's
girlfriend, told Investigator Haley that appellant had driven the
minivan to her house. It was parked on the street in front of her
house. When Officer Jones searched appellant, he recovered a key
to the minivan and $1,800 in appellant's pants pockets. No one
else occupied the minivan from the time of appellant's arrest
until the time it was searched. Inside the minivan, in a recessed
area on the driver's side door, Investigator Haley found cocaine
wrapped in a receipt for repair work on the same vehicle Haley had
seen appellant driving two weeks earlier. Haley also found a
"do-rag" of "the same type" appellant had been wearing when he saw
him two weeks earlier. Inside the center console of the minivan,
the police found a set of digital scales with cocaine residue on
it. In the minivan's glove compartment, the police found a copy
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of the vehicle's rental agreement, which was endorsed by
appellant. Underneath that agreement, the police found a Crown
Royal bag with more cocaine and $1,086 inside. In total, the
police found 87.45 grams of cocaine valued at nearly $8,700 in the
minivan.
Viewed in the light most favorable to the Commonwealth, this
evidence, considered in its totality, clearly supports the finding
that appellant knew of the presence and character of the cocaine
and that he intentionally and consciously possessed it. Hence, we
hold that the evidence was sufficient to support appellant's
conviction for possession of cocaine with intent to distribute.
Accordingly, we affirm the conviction.
Affirmed.
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