David Samuel Lewis v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued at Richmond, Virginia
DAVID SAMUEL LEWIS
MEMORANDUM OPINION * BY
v. Record No. 0617-08-1 JUDGE D. ARTHUR KELSEY
MARCH 10, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Mark S. Davis, Judge
Jessica M Bulos, Assistant Appellate Defender (Office of the
Appellate Defender, on brief), for appellant.
John W. Blanton, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
The trial court convicted David Samuel Lewis of possession of heroin in violation of
Code § 18.2-250. On appeal, Lewis challenges the sufficiency of the evidence used to convict
him. Finding the evidence sufficient, we affirm.
A police officer received a call one night from a reliable informant stating that an older
man wearing bedroom slippers, blue jeans, a gray T-shirt, and and a blue “doo” rag was “in
possession of a quantity of heroin” outside a public housing complex in Portsmouth. The officer
arrived at the scene five minutes later and arrested the man, later identified as Lewis. During a
search incident to arrest, the officer found a bag containing eleven clear capsules of suspected
heroin in Lewis’s pants pocket. The officer said to Lewis, “you’ve been cooperative with me.
I’m not going to charge you with PWID. I’m going to charge you with possession.” Lewis
replied, “Thanks, man. I’m just a user.” Later testing confirmed the clear capsules contained
heroin. The trial court found Lewis guilty of possession of heroin.
*
Pursuant to Code § 17.1-413 this opinion is not designated for publication.
Lewis argues on appeal that the evidence was insufficient to support his conviction. We
disagree. While “bare possession, without more” does not prove Lewis’s guilt, Young v.
Commonwealth, 275 Va. 587, 592, 659 S.E.2d 308, 311 (2008), far more than bare possession
exists here. After the officer pulled the bag of heroin out of Lewis’s pocket, Lewis did not
respond in disbelief or surprise. Nor did he offer any denials. Instead, Lewis described himself
as a “user” and expressed gratitude that the officer did not mistake him to be a dealer. 1 In
addition, the informant knew Lewis was in possession of heroin at a precise time and a particular
place. 2 Unless someone surreptitiously planted the heroin on Lewis, a hypothesis unsupported
by any evidence, the fact that the informant knew Lewis possessed heroin suggested Lewis did as
well.
Taken together, the circumstances of this case — actual possession, the “user” admission,
and the informant’s knowledge — provide ample evidence of Lewis’s guilt. We thus affirm
Lewis’s conviction for possession of heroin.
Affirmed.
1
See, e.g., Woodson v. Commonwealth, 245 Va. 401, 406, 429 S.E.2d 27, 30 (1993)
(finding defendant’s statements that he was an “addict” and that “it is in my right front pocket”
provided “ample justification for a finding of his knowing and intentional possession”).
2
The prosecutor presented the evidence of the informant’s statements during the
Commonwealth’s case-in-chief without any qualification as to the purpose for which it was
being offered. On appeal, Lewis concedes he did not make a contemporaneous objection to this
evidence or seek a ruling limiting it to some purpose unrelated to Lewis’s guilt. Lewis’s counsel
cursorily raised the issue after the close of the evidence; but any objection at that stage was
untimely. A criminal defendant may not use a sufficiency challenge as a platform to “raise for
the first time a question of admissibility of evidence.” Woodson v. Commonwealth, 211 Va.
285, 288, 176 S.E.2d 818, 821 (1970); see also Poole v. Commonwealth, 211 Va. 258, 260, 176
S.E.2d 821, 823 (1970); Gregory v. Commonwealth, 46 Va. App. 683, 696 n.9, 621 S.E.2d 162,
169 n.9 (2005); McCary v. Commonwealth, 36 Va. App. 27, 40, 548 S.E.2d 239, 245 (2001).
-2-