Othesues Delano Hairston, s/k/a Othersues Delano Hairston v. Commonwealth of Virginia ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Willis
UNPUBLISHED
Argued at Salem, Virginia
OTHESUES DELANO HAIRSTON, S/K/A
OTHERSUES DELANO HAIRSTON
MEMORANDUM OPINION BY *
v. Record No. 1326-11-3 JUDGE JERE M.H. WILLIS, JR.
OCTOBER 9, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
William Edward Cooley for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for
appellee.
On appeal from his conviction in a jury trial of possession of a firearm by a convicted
felon, Othesues Delano Hairston, s/k/a Othersues Delano Hairston contends that the trial court
erred in admitting evidence that illegal drugs were recovered from the vehicle in which he was a
passenger when the charge against him was not drug related. We affirm the judgment of the trial
court.
Background
On September 1, 2010, Deputies Nelson and Owens stopped a vehicle in which Hairston,
a convicted felon, was a passenger. One officer approached the driver and obtained his
information while the other spoke with Hairston. Hairston produced no documentary
identification, but gave the officer his name and social security number.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The officers obtained the driver’s consent to search the car. Nelson asked Hairston to
step out of the vehicle. When the passenger side door opened, Nelson observed a bag of what
appeared to be cocaine at Hairston’s feet. He seized the bag and handed it to Owens. The bag
was found to contain thirty-two rocks of cocaine.
Hairston complained he had hurt himself. He sat back down in the passenger seat and
leaned forward. When Nelson reached for Hairston’s right hand, Hairston “tensed up and
reached for his waistband area and then leaned all the way forward.” Ignoring repeated
commands to give Nelson his hands, Hairston reached down behind his feet. Fearing for his
safety, Nelson pinned Hairston’s head against the dash and told Owens to taze him.
After Hairston was taken into custody, the officers found a pistol in the area where he had
been reaching. They recovered a set of digital scales from the car’s glovebox.
Analysis
Hairston was convicted of possession of a firearm by a convicted felon. He contends the
trial court erred in admitting evidence that drugs were recovered from the car when he was not
charged with a drug-related offense. He argues that this evidence 1 should have been excluded
because its prejudicial impact outweighed its probative value.
“Decisions on the admissibility of evidence lie within the trial court’s sound discretion
and will not be disturbed on appeal absent an abuse of discretion.” Mitchell v. Commonwealth,
25 Va. App. 81, 84, 486 S.E.2d 551, 552 (1997). Evidence is generally admissible if it is both
relevant and material. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d
436, 441 (1987). “This standard, if nothing else, means that the trial judge’s ‘ruling will not be
1
As framed by the assignment of error, the question before us is whether the trial court
erred in “allowing evidence before a jury of the presence of illegal drugs found in a car in which
appellant was a passenger . . . .” Hairston does not assign error to all “drug-related” evidence,
such as the digital scales and the expert testimony related to drug distribution. Accordingly, we
address only whether the presence of cocaine in the car was properly admitted.
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reversed simply because an appellate court disagrees.’” Thomas v. Commonwealth, 44 Va. App.
741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870(2005) (quoting Henry J. Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 754
(1982)).
“Evidence is relevant if it has any logical tendency, however slight, to establish a fact at
issue in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678
(1993). “Only when reasonable jurists could not differ can we say an abuse of discretion has
occurred.” Thomas, 44 Va. App. at 753, 607 S.E.2d at 743.
Here, to prove Hairston had constructive possession of the firearm, the Commonwealth
was required to show he was “‘aware of both the presence and the character of the [firearm] and
that it was subject to his dominion and control.’” Logan v. Commonwealth, 19 Va. App. 437,
444, 452 S.E.2d 364, 368-69 (1994) (en banc) (quoting Powers v. Commonwealth, 227 Va. 474,
476, 316 S.E.2d 739, 740 (1984)). The Commonwealth presented expert testimony that persons
involved in drug distribution frequently carry weapons for protection. The expert testified that
the amount of cocaine found at Hairston’s feet was inconsistent with personal use and that the
packaging of the cocaine and the presence of the digital scales were consistent with cocaine
distribution.
“Many courts have acknowledged the commonsense ‘relationship between the
distribution of controlled substances . . . and the possession and use of dangerous weapons.’”
Thomas, 44 Va. App. at 755, 607 S.E.2d at 744 (quoting Logan, 19 Va. App. at 445, 452 S.E.2d
at 369). “Guns are the ‘tools of the trade’ in the underground drug world.” Id. at 755, 607
S.E.2d at 744-45 (quoting United States v. White, 875 F.2d 427, 433 (4th Cir. 1989)). The
evidence of drugs was therefore probative of whether Hairston knowingly possessed the firearm.
It tended to prove he had a motive to do so. See id. at 756, 607 S.E.2d at 745.
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While Hairston may have been prejudiced by the admission of the drug evidence, that
fact, standing alone, does not compel the conclusion that the trial court abused its discretion. “In
a sense, all ‘evidence tending to prove guilt is prejudicial’ at least from the point of view of the
person standing trial.” Id. at 757, 607 S.E.2d at 746 (quoting Powell v. Commonwealth, 267 Va.
107, 141, 590 S.E.2d 537, 558 (2004)).
“Where a course of criminal conduct is continuous and interwoven,
consisting of a series of related crimes, the perpetrator has no right
to have the evidence ‘sanitized’ so as to deny the jury knowledge
of all but the immediate crime for which he is on trial. The
fact-finder is entitled to all of the relevant and connected facts,
including those which followed the commission of the crime on
trial, as well as those which preceded it; even though they may
show the defendant guilty of other offenses.”
Id. at 757 n.7, 607 S.E.2d at 745 n.7 (quoting Scott v Commonwealth, 228 Va. 519, 526-27, 323
S.E.2d 572, 577 (1984)).
The trial court, in admitting the evidence of drugs, cautioned the jury to consider that
evidence only in determining whether Hairston knowingly and intentionally possessed the
firearm. 2 “[I]t is always to be presumed that the jury followed an explicit cautionary instruction
promptly given, unless the record clearly shows that the jury disregarded it.” Spencer v.
Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990).
We affirm the judgment of the trial court.
Affirmed.
2
The trial court instructed the jury it could “consider the evidence that the defendant
possessed cocaine for distribution only as evidence of the defendant’s intent, motive or the
defendant’s knowledge in connection with the offense for which he is on trial and for no other
purpose.”
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