Charles Delk v. Commonwealth of Virginia ( 2001 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Clements and Agee
    Argued at Richmond, Virginia
    CHARLES DELK
    MEMORANDUM OPINION * BY
    v.   Record No. 2498-00-2                   JUDGE LARRY G. ELDER
    DECEMBER 27, 2001
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    James B. Wilkinson, Judge
    Gregory W. Franklin, Assistant Public
    Defender (Office of the Public Defender, on
    brief), for appellant.
    Marla Graff Decker, Assistant Attorney
    General (Randolph A. Beales, Attorney
    General, on brief), for appellee.
    Charles Delk (appellant) appeals from his bench trial
    conviction for possession of cocaine with intent to distribute.
    We hold the evidence, viewed in the light most favorable to the
    Commonwealth, provided reasonable suspicion that appellant was
    trespassing and supported a finding that he possessed the
    cocaine found on his person with an intent to distribute it, and
    we affirm the conviction.
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    A.
    MOTION TO SUPPRESS
    On appeal of the denial of a motion to suppress, we view
    the evidence in the light most favorable to the Commonwealth.
    Commonwealth v. Grimstead, 
    12 Va. App. 1066
    , 1067, 
    407 S.E.2d 47
    , 48 (1991).   "[W]e are bound by the trial court's findings of
    historical fact unless 'plainly wrong' or without evidence to
    support them," McGee v. Commonwealth, 
    25 Va. App. 193
    , 198, 
    487 S.E.2d 259
    , 261 (1997) (en banc), but we review de novo the
    trial court's application of defined legal standards such as
    reasonable suspicion to the particular facts of the case, see
    Ornelas v. United States, 
    517 U.S. 690
    , 699, 
    116 S. Ct. 1657
    ,
    1663, 
    134 L. Ed. 2d 911
    (1996).
    In order to justify a Terry stop, an officer must have a
    "reasonable and articulable suspicion of criminal activity on
    the part of the defendant."   Commonwealth v. Holloway, 9 Va.
    App. 11, 15, 
    384 S.E.2d 99
    , 101 (1989).   An officer who develops
    such a reasonable suspicion may stop a person "in order to
    identify him, to question him briefly, or to detain him briefly
    while attempting to obtain additional information" to confirm or
    dispel his suspicions.   Hayes v. Florida, 
    470 U.S. 811
    , 816, 
    105 S. Ct. 1643
    , 1647, 
    84 L. Ed. 2d 705
    (1985).
    An officer may not search a suspect simply because he is
    effecting a Terry stop, see, e.g., Adams v. Williams, 
    407 U.S. 143
    , 146, 
    92 S. Ct. 1921
    , 1923, 
    32 L. Ed. 2d 612
    (1972), but he
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    may do so if he obtains the suspect's consent, see, e.g.,
    Reynolds v. Commonwealth, 
    9 Va. App. 430
    , 439, 
    388 S.E.2d 659
    ,
    665 (1990).    "The mere fact that a person is in custody at the
    time he . . . consents to a search is not sufficient in itself
    to demonstrate a coerced consent to search."      Id.; see Gray v.
    Commonwealth, 
    233 Va. 313
    , 327, 
    356 S.E.2d 157
    , 164 (1987)
    (holding fact that suspect was under arrest and in handcuffs did
    not prevent him from giving valid consent for search of his
    car).    The question whether "a consent to a search was in fact
    'voluntary' or was the product of duress or coercion, express or
    implied, is a question of fact to be determined from the
    totality of all the circumstances."      Schneckloth v. Bustamonte,
    
    412 U.S. 218
    , 227, 
    93 S. Ct. 2041
    , 2048, 
    36 L. Ed. 2d 854
    (1973).    The Commonwealth bears the burden of proving
    voluntariness by a preponderance of the evidence.      See Camden v.
    Commonwealth, 
    17 Va. App. 725
    , 727, 
    441 S.E.2d 38
    , 39 (1994).
    The evidence here, viewed in the light most favorable to
    the Commonwealth, provided Officer LaMonte P. Tucker with
    reasonable suspicion to believe appellant was trespassing, which
    justified Officer Tucker's decision to place appellant under
    investigative detention while he attempted to obtain additional
    information to confirm or dispel his suspicions.     During a
    consensual encounter, appellant told Officer Tucker he was
    visiting his girlfriend, but he merely "pointed in the general
    direction of a building" in which he claimed his girlfriend
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    resided.   Appellant did not identify a specific building or
    provide his girlfriend's address or apartment number when
    requested to do so.   Appellant also said his companion was his
    cousin, but appellant was unable to give his companion's last
    name and then admitted that the companion was not, in fact, his
    cousin.    Appellant's continued inability to justify his presence
    on the premises during the consensual encounter provided Officer
    Tucker with reasonable suspicion to detain appellant briefly in
    order to investigate further.
    In addition, the evidence supported the trial court's
    finding that appellant's consent to the search was voluntary.
    The encounter occurred in broad daylight.   Although it involved
    two uniformed officers, only Officer Tucker approached
    appellant, and neither officer exhibited any other show of
    authority until Officer Tucker told appellant he was placing him
    under investigative detention.    Appellant was "[p]retty calm"
    once detained, and Officer Tucker obtained permission to
    handcuff appellant, telling appellant specifically that he was
    not under arrest.   When appellant said, "[Y]es," to Tucker's
    inquiry about whether he minded if Tucker searched him, Tucker
    inquired again, this time rephrasing his question to determine
    whether appellant's response indicated that Tucker could search
    him or instead indicated that he would mind if Tucker searched
    him.   When Tucker asked appellant two more times, "I can search
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    you?", appellant responded, "[Y]es," making clear to Tucker that
    he consented to be searched.
    Thus, the evidence, viewed in the light most favorable to
    the Commonwealth, supported the trial court's express finding
    that there was "no coercion whatsoever," and we hold the trial
    court's denial of the motion to suppress was not erroneous.
    B.
    SUFFICIENCY OF EVIDENCE TO PROVE INTENT TO DISTRIBUTE
    We examine the evidence in the light most favorable to the
    Commonwealth, granting to its evidence all reasonable inferences
    fairly deducible therefrom.     See, e.g., Higginbotham v.
    Commonwealth, 
    216 Va. 349
    , 352, 
    218 S.E.2d 534
    , 537 (1975).
    Circumstantial evidence is as competent as direct evidence to
    prove the elements of a crime as long as the evidence as a whole
    excludes all reasonable hypotheses of innocence flowing from it.
    See, e.g., Tucker v. Commonwealth, 
    18 Va. App. 141
    , 143, 
    442 S.E.2d 419
    , 420 (1994).    Intent may be proved by circumstantial
    evidence, including the quantity of drugs and cash possessed,
    the method of packaging, and whether appellant himself used
    drugs.     Servis v. Commonwealth, 
    6 Va. App. 507
    , 524, 
    371 S.E.2d 156
    , 165 (1988); Hambury v. Commonwealth, 
    3 Va. App. 435
    , 438,
    
    350 S.E.2d 524
    , 525 (1986).
    Officer David Naoroz, who qualified as an expert in street
    level narcotics packaging and distribution, testified that
    appellant's possession of 1.626 grams of cocaine packaged in
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    twelve individual packages without simultaneous possession of a
    smoking device was inconsistent with personal use because
    someone using that quantity of drugs himself "would usually buy
    that amount [in] a few [big] chunks, not 12 [smaller] chunks"
    and would have a smoking device in his possession.   The evidence
    also established that appellant, who had no job, was found in
    possession of more than two hundred dollars in cash.    Thus, the
    only reasonable hypothesis flowing from the evidence, viewed in
    the light most favorable to the Commonwealth, was that appellant
    possessed the cocaine with the intent to distribute it rather
    than use it himself.
    For these reasons, we hold that the trial court's denial of
    appellant's motion to suppress was not erroneous and that the
    evidence was sufficient to prove appellant intended to
    distribute the crack cocaine found in his possession.
    Therefore, we affirm his conviction.
    Affirmed.
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