Antonio Lamont Mozelle v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
ANTONIO LAMONT MOZELLE
MEMORANDUM OPINION * BY
v. Record No. 2277-00-1 JUDGE ROBERT J. HUMPHREYS
OCTOBER 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Andrew Kolp, Assistant Public Defender
(Dianne G. Ringer, Senior Assistant Public
Defender, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Antonio Lamont Mozelle appeals his conviction, after a
bench trial, for possession of cocaine with intent to
distribute. Mozelle argues that the trial court erred in
admitting a fingerprint card after a sheriff's deputy testified
she could not recall the date on which she took the fingerprint
impressions. Mozelle also contends that the evidence was
insufficient to sustain the conviction.
On July 21, 1998, Detective B.J. Karpowski, III, of the
Portsmouth Police Department, received a telephone call from an
unknown informant stating that "Tony Mozelle was at 2915 Shady
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Lane cutting up a bunch of cocaine in that house." Karpowski
knew Mozelle. He and other detectives immediately went to 2915
Shady Lane. When they arrived, they observed Mozelle "standing
out front with some other individuals around his car." The
owner of the house, Mozelle's uncle, gave the detectives
permission to search the house.
After entering the house and informing the occupants of the
reason for the search, one of the individuals in the house
directed the detectives to "look around outside on the ground."
Based on this information, Karpowski and another detective went
outside and began looking on the ground, next to a tree across
the street at another house, 2914 Shady Lane. Karpowski found a
Herr's Sour Cream and Onion potato chip bag "concealed at the
base of the tree." Inside the bag was a baggie containing crack
cocaine.
Karpowski picked up the bag with his "thumb and forefinger"
and walked out into the street where Mozelle was standing.
Karposwki asked Mozelle and his companions if "anyone knew whose
bag of chips it was." When no one would claim ownership,
Karpowski asked Mozelle, "Have you been eating any chips out
there today?" Mozelle replied "No, sir," and Karpowski again
stated, "You haven't been eating any Herr's sour cream and onion
potato chips?" Mozelle said, "No, sir. I haven't had any chips
at all." Karpowski stated, "So you haven't handled this bag at
all and there is no reason whatsoever for your fingerprints to
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be on this bag; right?" Mozelle then replied, "Man, I ain't had
no chips. I ain't never touched that bag, and my fingerprints
ain't on that bag." The officers then left the scene, taking
the potato chip bag and cocaine.
Upon arriving at the police station, Karpowski gave the
potato chip bag and the bag of cocaine to Detective P.J. Grover
who packaged the items and later sent them to the forensic unit
for analysis. Members of the forensic unit tested the substance
found in the bag, which tested positive for cocaine. 1 They also
examined the potato chip bag for fingerprints and found three
sets of latent prints on the bag. Print number one was a
positive match with a fingerprint card that had been taken of
"Antonio Lamont Mozelle" on June 29, 1998. 2
On August 11, 1998, Karpowski secured a warrant for
Mozelle's arrest for possession with intent to distribute
cocaine. The next day, he responded back to the area of 2914
Shady Lane in an unmarked car, and found Mozelle standing in the
roadway. Karpowski advised Mozelle that he was not under arrest
and again asked Mozelle if he had touched the "[potato chip]
bag." Mozelle stated, "I'm telling you I ain't never touched
1
An expert testified at trial that the cocaine contained in
the bag had an approximate street value of $1,500.
2
The other two fingerprints were insufficient for
comparison, and/or contained insufficient ridge detail to either
confirm or eliminate a potential match to Mozelle's fingerprint
card.
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that bag." Karpowski then left and called for a marked unit to
arrest Mozelle.
During trial, Deputy Sheriff Angela Clifton identified
Mozelle, testified that she took Mozelle's prints on June 29,
1998, and stated that he had signed the fingerprint card. The
fingerprint card was admitted into evidence without objection.
When asked on cross-examination if she could identify Mozelle
after two years, Clifton stated, "I have seen him come in the
jail. I can't say that I remember fingerprinting him on June
29, 1998, but I know who Antonio Mozelle is." When asked, "Now,
on June 29, 1998, do you recognize this man as someone you took
fingerprints from?" Clifton responded, "I can't do that from
two years ago."
Mozelle objected to subsequent testimony from an expert in
latent fingerprint identification to the effect that the
fingerprint found on the potato chip bag matched the June 29,
1998 fingerprint card. Mozelle argued, based upon Crawley v.
Commonwealth, 29 Va. App. 372, 512 S.E.2d 169 (1999), that
Clifton's testimony was insufficient to establish he was the
individual whose prints appeared on the fingerprint card. The
trial court overruled the objection. At the close of the
Commonwealth's case, Mozelle moved to strike alleging that the
evidence was insufficient to convict based on the quantity of
the drug, as well as the failure of identification through the
fingerprint evidence. Mozelle argued that the fingerprint
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evidence standing alone was insufficient to support the charge
and that there was no evidence Mozelle touched or possessed the
inner bag containing the cocaine. Mozelle also argued again
that Clifton's testimony was insufficient to establish that
Mozelle was the individual who had submitted the fingerprints
found on the June 29, 1998 fingerprint card.
The trial court denied Mozelle's motion, finding Clifton
had stated "on that particular date that she remembers seeing
him, but from the card and the name and the person who had to
sign it, she also said she knows this man." The trial court
stated, "You can't go back that many years and say that I know
for a fact that he is the one that I took those prints from, but
in taking everything into consideration and the fact that she
said she knows him by the name, because she's seen him back and
forth in jail," her testimony was sufficient to establish that
Mozelle was the individual whose prints were on the June 29,
1998 fingerprint card. The trial court then convicted Mozelle
as charged.
On appeal, Mozelle argues that the trial court erred in
overruling his objection concerning the testimony pertaining to
the fingerprint match. Mozelle does not, as the Commonwealth
contends, contest the admissibility of the fingerprint card. In
addition, Mozelle argues that the trial court erred in
overruling his motion to strike as there was insufficient
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evidence to prove he constructively possessed the plastic bag
and the cocaine contained within the potato chip bag.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth as
the party prevailing below, granting to it all reasonable
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The judgment of a trial court, sitting without a jury, is
entitled to the same weight as a jury verdict and will be
disturbed only if plainly wrong or without evidence to support
it. See id.
Mozelle correctly points out that in Crawley we held, where
the Commonwealth proved only that the defendant's name was
similar to that found on two police fingerprint cards and that
the gender, race and height listed on the cards matched those of
the perpetrator and the person seen fleeing the scene of the
crime, the Commonwealth failed to establish identification of
the defendant beyond a reasonable doubt. Crawley, 29 Va. App.
at 379, 512 S.E.2d at 172-73. As we noted in Crawley, the
Supreme Court has held that "'[w]hen the Commonwealth relies
solely upon fingerprint evidence to identify a criminal agent,
it bears the burden of excluding every reasonable hypothesis of
innocence . . . .'" Id. at 378, 512 S.E.2d at 172 (quoting
Tyler v. Commonwealth, 254 Va. 162, 166, 487 S.E.2d 221, 223
(1997)).
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Here, Clifton specifically identified Mozelle, and
testified she took the prints on the card from Mozelle on the
date indicated on the card. She also testified that Mozelle had
signed the card. Viewing the circumstantial evidence of
identity in the light most favorable to the Commonwealth, as we
must, we hold that it was sufficient to support the
determination of the trial court and to exclude all reasonable
hypotheses of the contributor of the fingerprints on the card as
being anyone other than appellant.
Further, we find the evidence sufficient to support the
trial court's determination that Mozelle constructively
possessed the drugs found inside the potato chip bag. Indeed,
to be convicted of possession, the evidence must show that
Mozelle was "aware of the presence and character of the
controlled substance." Wright v. Commonwealth, 2 Va. App. 743,
748, 348 S.E.2d 9, 13 (1986). "Further, he may be deemed to
have constructive possession of the substance if it was subject
to his dominion and control." Id.
Based upon the evidence presented, the trial court could
infer, beyond a reasonable doubt, that Mozelle was aware of the
presence and character of the drugs and that they were subject
to his dominion and control. The evidence proved that Mozelle's
prints were on the potato chip bag, which contained the drugs.
No prints belonging to any other individual were confirmed to
have been found on the bag. Moreover, as described by Detective
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Karpowski, the bag was found "concealed" at the base of the
tree, only a short distance from Mozelle. See Glasco v.
Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999) (noting that mere
proximity to drugs is insufficient to establish possession,
although it is a circumstance which may be probative in
determining whether an accused possessed such drugs). Finally,
Mozelle emphatically denied, on more than one occasion, that he
had eaten potato chips from the bag, or that he had ever touched
the bag. See Lilly v. Commonwealth, 258 Va. 548, 556, 523
S.E.2d 208, 212 (1999) ("False statements by a defendant may be
probative of guilt.").
This evidence provided sufficient "other circumstances"
which excluded any "reasonable" hypotheses of innocence. See
Turner v. Commonwealth, 218 Va. 141, 146-47, 235 S.E.2d 357, 360
(1977); see also Clagett v. Commonwealth, 252 Va. 79, 93, 472
S.E.2d 263, 271 (1996) ("A defendant's hypothesis negating the
Commonwealth's theory of the case must be supported by some
evidence in the record and may not arise from the imagination of
the defendant or his counsel alone.").
For these reasons, we affirm the decision of the trial
court.
Affirmed.
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