Jeffrey Lynn Coffey v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
JEFFREY LYNN COFFEY
MEMORANDUM OPINION * BY
v. Record No. 2912-01-3 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 28, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Frank A. Mika for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court convicted Jeffrey Lynn Coffey of possession
of methamphetamine and possession of a firearm while in
possession of drugs. He contends the magistrate lacked probable
cause to issue the search warrant for his residence. He also
maintains the evidence was insufficient to prove he possessed
methamphetamine. Finding no error, we affirm.
When reviewing the denial of a motion to suppress, we
consider evidence in the light most favorable to the
Commonwealth. Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731 (1980). Augusta County deputies accompanied
Waynesboro police officers to execute an arrest warrant and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
search warrant. The city warrant charged felony embezzlement
and authorized a search of the defendant's home, which was in
the county.
During a search incident to the arrest, the officers
discovered a vial of marijuana on the defendant's person. The
defendant consented to a search of his house for drugs and told
the officers his safe contained additional marijuana. On top of
the safe the officers found a vial of marijuana and a baggie
with an off-white powder that they later determined to be .38
grams of methamphetamine. Inside the safe the officers found
more marijuana. The defendant admitted the marijuana and safe
were his, but denied possessing the methamphetamine.
The defendant contends the affidavit for the search warrant
was insufficient because it did not establish the informer's
reliability or show why evidence of the embezzlement would be
found in his residence. The zone vice-president for Cmart
convenience stores, who was responsible for investigating
embezzlements, investigated the loss of $15,000 from the
Waynesboro store that the defendant managed. He determined
several recorded bank deposits had never been made and the
defendant had under-reported gas sales and had altered the
store's books. The defendant's job included verifying the
accuracy of store receipts. The company's investigator reported
his findings to Waynesboro police. A police investigator
corroborated the report by interviewing other store employees,
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and then prepared an affidavit recounting the facts developed by
the store and the police. A magistrate issued a felony arrest
warrant charging embezzlement and a search warrant for the
defendant's residence.
In determining whether an affidavit is sufficient to
support the issuance of a search warrant, we look to the
totality of circumstances and give "great deference . . . to the
magistrate's finding of probable cause." Derr v. Commonwealth,
242 Va. 413, 421, 410 S.E.2d 662, 666 (1991). Our role is to
"ensure that the magistrate had a substantial basis for . . .
conclud[ing] that probable cause existed." Illinois v. Gates,
462 U.S. 213, 238-39 (1983) (internal quotations and citations
omitted).
We conclude the affidavit provided ample basis for the
magistrate to find probable cause that the defendant committed
embezzlement and that a search of his residence would uncover
evidence of that offense. The source of the information was the
company vice-president responsible for investigating
embezzlements. The investigating police officer corroborated
the company's investigation. The magistrate could reasonably
believe the investigator's information and could reasonably
infer that the defendant would have evidence of the embezzlement
at his home.
The search was lawful for two additional reasons. The
officer's reliance on the search warrant came within the good
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faith exception to the exclusionary rule. Polston v.
Commonwealth, 255 Va. 500, 504, 498 S.E.2d 924, 926 (1998).
Finally, the officers were lawfully present in the defendant's
house while executing an arrest warrant issued on probable
cause. They discovered marijuana on the defendant's person and
obtained his consent to search his residence for other drugs.
The defendant contends the evidence was insufficient to
prove possession of methamphetamine. The Commonwealth must show
the defendant was aware of both the presence and character of
the drug and that it was subject to his dominion and control.
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986).
The defendant owned the house. He kept a locked safe in
the closet of his master bedroom. He kept his guns in a gun
cabinet and the keys to the cabinet in that room. He knew the
combination to the safe and opened it for the police. He told
the police he kept additional marijuana in the safe, and they
found marijuana inside the safe. They also found it on top of
the safe along with methamphetamine. The trial court had
photographs of the room when assessing the testimony about the
defendant's relationship with the master bedroom.
The defendant's proximity to the drug and ownership of the
premises are circumstances to consider in determining whether he
exercised dominion and control over the drug and "necessarily
knows of the presence, nature and character of a substance that
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is found there." Burchette v. Commonwealth, 15 Va. App. 432,
435, 425 S.E.2d 81, 83 (1992). In addition, "possession need
not be exclusive." Josephs v. Commonwealth, 10 Va. App. 87, 99,
390 S.E.2d 491, 497 (1990). The facts and circumstances of this
case support a reasonable inference that the defendant knew of
the presence and character of the methamphetamine and exercised
dominion and control over it.
The defendant argued his nephew had been sleeping in the
master bedroom while renovating the adjoining bathroom. He
suggested that the methamphetamine might belong to the nephew
because he was high when the officers arrived. The inferences
drawn from proven facts are factual matters to be determined by
the fact finder, and the trial court rejected that inference.
Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826,
832 (1997). "An hypothesis of innocence must arise from the
evidence rather than from the imagination of defense counsel."
Goins v. Commonwealth, 251 Va. 442, 467, 470 S.E.2d 114, 130
(1996). The trial court also rejected the defendant's testimony
that he did not own the methamphetamine. Black v. Commonwealth,
222 Va. 838, 842, 284 S.E.2d 608, 610 (1981); Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
Accordingly, we affirm the conviction.
Affirmed.
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