Elmer Nathaniel Adams v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
ELMER NATHANIEL ADAMS
MEMORANDUM OPINION * BY
v. Record No. 0138-00-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Michael Gamble, Judge
(James J. Angel, on brief), for appellant.
Appellant submitting on brief.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Elmer Nathaniel Adams of twenty-four
counts of distribution of cocaine, four counts of possession of
a firearm while in possession of cocaine, and one count of
carnal knowledge of an animal. The defendant was indicted for
six offenses of possession of a firearm while in possession of
cocaine with intent to distribute it, but two of the indictments
were dismissed. He contends the evidence was insufficient to
prove any of the four convictions of possession a firearm in
violation of Code § 18.2-308.4. Concluding the evidence was
sufficient in each instance, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The defendant contends the evidence was insufficient to
prove he possessed a working firearm at the same time he
possessed cocaine with intent to distribute it. He relies on
the fact that no physical evidence of the firearms or the drugs
was introduced against him, and he argues the lay witnesses'
testimony was insufficient to prove the existence of drugs or a
working firearm.
The Commonwealth must prove that the defendant possessed
cocaine with intent to distribute it while simultaneously
possessing a firearm. The Commonwealth may do this without
introducing either the drug or the firearm. Users and addicts
may testify as to the nature of a drug, and the actual substance
traded need not be admitted into evidence. In Hill v.
Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989) (en banc),
neither the cocaine nor an analysis of it was admitted into
evidence, but circumstantial evidence was sufficient to prove
the nature of the illegal substance transferred. "Users and
addicts, if they have gained a familiarity or experience with a
drug, may identify it. Numerous courts have permitted lay
purchasers of drugs to testify as to the identification of drugs
after previous use has been demonstrated." Id. at 63, 379
S.E.2d at 136 (citations omitted).
In a similar manner, the Commonwealth can prove the
existence of a firearm without offering the tangible object as
evidence. In Taylor v. Commonwealth, 33 Va. App. 735, 738, 536
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S.E.2d 922, 923 (2000), the circumstances surrounding the
identification of the firearm provided sufficient evidence to
permit an inference that the firearm would function. The
context in which the object appeared gave meaning and definition
to the witness' observation and completed the portrayal of its
nature. No evidence suggested the weapon would not function,
and the context of the events permitted the reasonable inference
that the gun was real, that it functioned.
The four challenged convictions involved transactions
between the defendant and Gloria Adams, Michelle Benjamin,
Angela Haber, and Daniel Russell. "On appeal, 'we review the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492
S.E.2d 826, 831 (1997) (citation omitted).
Gloria Adams was the defendant's ex-wife who moved back
into his residence in July 1998. She started using crack
cocaine supplied by the defendant and recounted extensive drug
activity at his residence. Adams testified the defendant
possessed several weapons in the house including two handguns
and some loaded rifles. The defendant kept a gun on his person
at all times, carrying it in the pouch in which he carried his
marijuana, cocaine, and crack cocaine. On January 30, 1999,
after returning from what Adams thought was a cocaine purchase,
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the defendant placed his gun to her head, and told her "today is
the day."
Michelle Benjamin gave the defendant thousands of dollars
for crack and bartered silver, gold, radios, tools, and sexual
favors for it. She had smoked crack cocaine for five years and
was certain what she bought from the defendant was actually
crack cocaine. Benjamin testified she had observed the
defendant with firearms on several occasions. The
Commonwealth's Attorney asked her, "When he had the guns was it
at the same time he was giving you or somebody else cocaine?"
Benjamin responded, "Yeah. He always carried his gun." The
defendant once went to her house and threatened to kill her, or
a member of her family, if she did not pay the money she owed
him. He had a gun and held the bullet in his hand.
Angela Haber testified she had twice seen the defendant
with a gun. The first time, the defendant was at her house and
pulled out a black gun about "yea long" and laid it down. She
saw the defendant with the gun a second time when he gave her
and Debra Wilburn crack cocaine. On that occasion, she saw the
defendant with large pieces of crack that she estimated were
worth $1,000.
Daniel Russell purchased cocaine from the defendant. One
time, after he concluded a purchase from the defendant, someone
interrupted them. When the person became obnoxious, the
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defendant pulled out a three-eighty pistol and aimed it at the
person standing only two feet away.
A police officer testified the defendant had threatened to
shoot any policeman who entered his property. Adams
corroborated this prior threat to the police. She also
testified that after his arrest the defendant intended to kill
her and the six witnesses who had agreed to testify against him.
He also intended to "take [out] as many cops as he could" and
then he was going to commit suicide.
The Commonwealth proved the defendant sold crack cocaine
from his home over an eight-month period. A total of thirteen
witnesses recounted a sordid tale of drugs distributed for cash
or sexual favors in an atmosphere of threatened violence.
Throughout that time, the defendant possessed drugs for the
purpose of distributing them, and he possessed firearms at the
same time. Though the police found no drugs or weapons when
executing a search warrant at his residence, they did find
several types of ammunition.
The defendant essentially challenges the credibility of the
Commonwealth's witnesses. He argues they were self-professed
drug users, and several had criminal records. The credibility
of witnesses and the weight accorded their testimony are
determinations within the sole province of the fact finder.
Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803
(1979), cert. denied, 444 U.S. 1103 (1980).
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While the defendant denied he possessed any guns or
weapons, the Commonwealth's evidence directly contradicted that
claim. The jury could infer the defendant's self-serving
statements were false explanations and designed to conceal his
guilt. Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d
865, 867 (1982); Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998).
Concluding the evidence was sufficient to convict on each
charge of possession of a firearm while in possession of cocaine
with the intent to distribute it, we affirm.
Affirmed.
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