Craig Rodney Lewis v. Commonwealth of Virginia ( 2012 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Frank and Huff
    UNPUBLISHED
    Argued at Chesapeake, Virginia
    CRAIG RODNEY LEWIS
    MEMORANDUM OPINION * BY
    v.     Record No. 0478-12-1                                     JUDGE LARRY G. ELDER
    DECEMBER 18, 2012
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
    C. Peter Tench, Judge
    Andrew J. Adams, Deputy Public Defender (Office of the Public
    Defender, on brief), for appellant.
    Steven A. Witmer, Senior Assistant Attorney General (Kenneth T.
    Cuccinelli, II, Attorney General, on brief), for appellee.
    Craig Rodney Lewis (appellant) appeals his two convictions for possession of a cellular
    phone by a prisoner, in violation of Code § 18.2-431.1. On appeal, he argues that the trial court
    erred by finding he was a prisoner within the meaning of the statute and that the evidence was
    sufficient to support his convictions. We hold that Code § 18.2-431.1’s prohibition on
    unauthorized cell phones encompasses incarcerated persons in both state and local correctional
    facilities. Further, we find the evidence was sufficient to support appellant’s convictions.
    Therefore, we affirm.
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    I.
    ANALYSIS
    A. Statutory Interpretation
    Appellant contends that he was not a “prisoner” within the scope of Code § 18.2-431.1
    because he was held at a “city farm,” 1 not a “prison.” Appellant reasons that any ambiguous
    language must be interpreted strictly against the Commonwealth. The Commonwealth responds
    that appellant’s interpretation of the statute is absurd, unsupported by authority, and “would
    frustrate the purpose of the statute.”
    We review the trial court’s interpretation of the statute de novo. See Harris v.
    Commonwealth, 
    274 Va. 409
    , 413, 
    650 S.E.2d 89
    , 91 (2007). “The primary objective of
    statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v.
    Zamani, 
    256 Va. 391
    , 395, 
    507 S.E.2d 608
    , 609 (1998). Thus, we construe a statute “with
    reference to its subject matter, the object sought to be attained, and the legislative purpose in
    enacting it; the provisions should receive a construction that will render it harmonious with that
    purpose rather than one which will defeat it.” Esteban v. Commonwealth, 
    266 Va. 605
    , 609, 
    587 S.E.2d 523
    , 526 (2003).
    “When the language of a statute is unambiguous, we are bound by
    the plain meaning of that language. Furthermore, we must give
    effect to the legislature’s intention as expressed by the language
    used unless a literal interpretation of the language would result in a
    manifest absurdity. If a statute is subject to more than one
    1
    The governing body of any county or city may . . . establish
    and maintain a farm where any person convicted and sentenced to
    confinement in the jail of such county or city, or sentenced to a
    state correctional institution, may be confined and required to do
    such work as may be assigned him during the term of his sentence.
    Code § 53.1-96.
    -2-
    interpretation, we must apply the interpretation that will carry out
    the legislative intent behind the statute.”
    Kozmina v. Commonwealth, 
    281 Va. 347
    , 349-50, 
    706 S.E.2d 860
    , 862 (2011) (quoting Conyers
    v. Martial Arts World of Richmond, Inc., 
    273 Va. 96
    , 104, 
    639 S.E.2d 174
    , 178 (2007)).
    “Additionally, ‘[t]he plain, obvious, and rational meaning of a statute is to be preferred over any
    curious, narrow, or strained construction.’” 
    Id. at 350,
    706 S.E.2d at 862 (quoting Meeks v.
    Commonwealth, 
    274 Va. 798
    , 802, 
    651 S.E.2d 637
    , 639 (2007)).
    “‘[I]t is a cardinal principle of law that penal statutes are to be construed strictly against
    the [Commonwealth]’ and ‘cannot be extended by implication, or be made to include cases
    which are not within the letter and spirit of the statute.’” Auer v. Commonwealth, 
    46 Va. App. 637
    , 647-48, 
    621 S.E.2d 140
    , 145 (2005) (quoting Wade v. Commonwealth, 
    202 Va. 117
    , 122,
    
    116 S.E.2d 99
    , 103 (1960)). However, “we will not apply ‘an unreasonably restrictive
    interpretation of the statute’ that would subvert the legislative intent expressed therein.”
    Armstrong v. Commonwealth, 
    263 Va. 573
    , 581, 
    562 S.E.2d 139
    , 144 (2002) (quoting Ansell v.
    Commonwealth, 
    219 Va. 759
    , 761, 
    250 S.E.2d 760
    , 761 (1979)).
    Code § 18.2-431.1(B) provides: “It shall be unlawful for an incarcerated prisoner
    without authorization to possess a cellular telephone during the period of his incarceration.”
    Neither the particular code section nor the chapter of which it is a part provides a definition for
    the term “prisoner.” However, “[t]he Code of Virginia constitutes a single body of law, and
    other sections can be looked to where the same phraseology is employed.” King v.
    Commonwealth, 
    2 Va. App. 708
    , 710, 
    347 S.E.2d 530
    , 531 (1986). With this principle in mind,
    we turn to other code sections that define prisoner-related offenses.
    Code § 53.1-95, pertaining to county and city jail farms, refers to persons in the care and
    custody of such facilities as “prisoners.” Code § 53.1-203 prohibits “a prisoner in a state, local
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    or community correctional facility or in the custody of an employee thereof to” commit certain
    acts, including escape. See also Simmons v. Commonwealth, 
    16 Va. App. 621
    , 623, 
    431 S.E.2d 335
    , 336 (1993) (holding that the term “a prisoner in a . . . correctional facility” refers to the
    status of the individual, not to the particular circumstances surrounding the person at the time of
    the offense). Code § 18.2-473 proscribes aiding the escape of a “prisoner in any jail or prison or
    held in custody.” Code § 18.2-473.1 forbids unauthorized communication “with any prisoner
    confined within a state or local correctional facility.” Code §§ 18.2-474 and 18.2-474.1 prohibit
    delivery of certain items “to any prisoner confined under authority of the Commonwealth of
    Virginia, or of any political subdivision thereof.”
    In these code sections, the legislature used the term “prisoner” to encompass inmates in
    state as well as local correctional facilities. The legislature clearly employed the term “prisoner”
    in this broad sense in Code § 18.2-431.1 as well, despite the lack of specific language explaining
    its scope. Therefore, we hold that Code § 18.2-431.1’s prohibition on unauthorized cell phones
    encompasses incarcerated persons in both state and local correctional facilities.
    Appellant argues that the code itself distinguishes between “prisons” and “jails” or “city
    farms.” See, e.g., Code §§ 18.2-10, -11, 53.1-96. We decline to reach this issue because it is
    peripheral to the issue in this case: “prison” and “prisoner” are two different words. Despite the
    similarities between the two, the legislature may have used the terms differently.
    B. Sufficiency of the Evidence
    Appellant argues that the trial court erred by finding beyond a reasonable doubt that he
    was in possession of the cellular phones. He contends that the trial court failed to recognize the
    reasonable hypotheses of innocence that another inmate put the mobile phone on his mattress in
    the first instance of alleged possession and that a cell mate hid the phone in his mattress in the
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    second instance. The Commonwealth responds that the evidence was sufficient to prove that
    appellant had knowledge of the presence of both phones and exercised control over them.
    “[W]hen we consider the sufficiency of the evidence we do not consider each piece of
    evidence in isolation. Instead, we review the totality of the evidence to determine whether it was
    sufficient to prove an offense.” Bowling v. Commonwealth, 
    51 Va. App. 102
    , 107, 
    654 S.E.2d 354
    , 356 (2007). “‘The judgment of the trial court is presumed to be correct and will be reversed
    only upon a showing that it is plainly wrong or without evidence to support it.’” Nelson v.
    Commonwealth, 
    281 Va. 212
    , 215, 
    702 S.E.2d 815
    , 816 (2011) (quoting Maxwell v.
    Commonwealth, 
    275 Va. 437
    , 442, 
    657 S.E.2d 499
    , 502 (2008)). Thus, our review is limited to
    the narrow issue of whether “‘any rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt.’” Goble v. Commonwealth, 
    57 Va. App. 137
    , 153, 
    698 S.E.2d 931
    , 939 (2010) (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2786, 
    61 L. Ed. 2d 560
    , 570 (1979)). When the sufficiency of the evidence is challenged on appeal, we
    view the evidence and all reasonable inferences fairly deducible therefrom in the light most
    favorable to the party prevailing below. Haskins v. Commonwealth, 
    31 Va. App. 145
    , 149-50,
    
    521 S.E.2d 777
    , 779 (1999).
    At trial, Robert Carr, a correctional officer at Newport News Adult Corrections testified
    on behalf of the Commonwealth. He testified regarding two incidences involving appellant.
    First, based on an anonymous tip, Carr approached appellant and asked him for the cellular
    phone. Appellant handed Carr a mobile phone.
    Two days later, Carr searched appellant’s bunk and found a cellular phone hidden inside
    the mattress. When Carr approached, appellant was sleeping on top of his mattress. Carr
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    explained that the phone was placed inside a rip on the underside of the mattress. He could tell
    an object was inside the mattress simply by touching the outside of the mattress.
    Appellant did not have permission to possess a cellular phone during his incarceration.
    He shared his cell with eleven other inmates.
    The following principle is well-established:
    “To support a conviction based upon constructive possession . . .
    ‘the Commonwealth must point to evidence of acts, statements, or
    conduct of the accused or other facts or circumstances which tend
    to show that the defendant was aware of both the presence and
    character of the [contraband] and that it was subject to his
    dominion and control.’”
    McMillan v. Commonwealth, 
    277 Va. 11
    , 19, 
    671 S.E.2d 396
    , 399-400 (2009) (quoting Drew v.
    Commonwealth, 
    230 Va. 471
    , 473, 
    338 S.E.2d 844
    , 845 (1986)). “‘[P]ossession need not always
    be exclusive. The defendant may share it with one or more.’” Smallwood v. Commonwealth,
    
    278 Va. 625
    , 630, 
    688 S.E.2d 154
    , 156 (2009) (quoting Ritter v. Commonwealth, 
    210 Va. 732
    ,
    741, 
    173 S.E.2d 799
    , 806 (1970)). Although mere proximity to the contraband is insufficient to
    establish possession, it is a factor that may be considered in determining whether a defendant
    possessed the contraband. See Brown v. Commonwealth, 
    15 Va. App. 1
    , 9, 
    421 S.E.2d 877
    , 882
    (1992) (en banc). Ownership or occupancy of the premises on which the contraband was found
    is likewise a circumstance probative of possession. Rawls v. Commonwealth, 
    272 Va. 334
    , 350,
    
    634 S.E.2d 697
    , 705 (2006).
    In sum, in resolving this issue, the Court must consider “the totality of the circumstances
    disclosed by the evidence.” Womack v. Commonwealth, 
    220 Va. 5
    , 8, 
    255 S.E.2d 351
    , 353
    (1979). In regard to the first conviction, appellant handed the phone to Carr. In this instance,
    appellant had actual possession of the phone. This evidence was sufficient for the trial court to
    find that appellant possessed the phone.
    -6-
    In regard to the second conviction, circumstantial evidence of constructive possession is
    sufficient to support a conviction, provided “‘it exclude[s] every reasonable hypothesis of
    innocence.’” Hamilton v. Commonwealth, 
    16 Va. App. 751
    , 755, 
    433 S.E.2d 27
    , 29 (1993)
    (quoting Boothe v. Commonwealth, 
    4 Va. App. 484
    , 492, 
    358 S.E.2d 740
    , 745 (1987)).
    However, “[t]he Commonwealth need only exclude reasonable hypotheses of innocence that
    flow from the evidence, not those that spring from the imagination of the defendant.” 
    Id. at 755,
    433 S.E.2d at 29. Whether an alternative hypothesis of innocence is reasonable is a question of
    fact, see Cantrell v. Commonwealth, 
    7 Va. App. 269
    , 290, 
    373 S.E.2d 328
    , 339 (1988), and,
    therefore, is binding on appeal unless plainly wrong, see Martin v. Commonwealth, 
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987).
    The evidence that the appellant was lying on the cot moments before Carr searched the
    cell and that the phone could be easily felt from the outside of the mattress supports the trial
    court’s finding that appellant constructively possessed the phone. The totality of the
    circumstances were sufficient to prove appellant’s possession.
    II.
    We hold that Code § 18.2-431.1 applies to prisoners of local as well as state correctional
    facilities. Further, the evidence was sufficient to support appellant’s convictions. For these
    reasons, we affirm.
    Affirmed.
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