Dwayne Ottis Dalton v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Ortiz, Chaney and Senior Judge Haley
Argued at Richmond, Virginia
DWAYNE OTTIS DALTON
MEMORANDUM OPINION* BY
v. Record No. 0154-22-2 JUDGE JAMES W. HALEY, JR.
MAY 16, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Kimberley S. White, Judge1
Rick Boyer (Integrity Law Firm, PLLC, on brief), for appellant.
William K. Hamilton, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Dwayne Ottis Dalton appeals his convictions, following a bench trial, for possession of a
Schedule I or II controlled substance, possession of ten or more forged bank notes with intent to
utter or employ as true, and forgery of bank notes, in violation of Code §§ 18.2-250, 18.2-173, and
18.2-170.2 Dalton asserts that the evidence was insufficient to support his convictions because it is
“incredible.” For the following reasons, we disagree and affirm the convictions.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
*
This opinion is not designated for publication. See Code § 17.1-413.
1
The Honorable Kimberley S. White presided over the proceedings below. Now a
member of this Court, Judge White took no part in this decision.
2
Dalton pleaded guilty to driving on a suspended license in violation of Code § 46.2-301
and does not contest this conviction on appeal.
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
So viewed, on February 7, 2020, Halifax County Sheriff’s Deputy Giles Jones was
driving on Highway 58 when he witnessed a Jeep swerve and almost hit another vehicle. Deputy
Jones activated his lights and siren and initiated a traffic stop. The Jeep, driven by Dalton, pulled
into a motel parking lot. When Deputy Jones asked for Dalton’s license, Dalton stated he was
unable to find his wallet. When asked to provide his name and social security number, Dalton
misspelled his own name and provided an incorrect social security number.
After running Dalton’s information and failing to find him in the Virginia database,
Deputy Jones re-approached the vehicle. Dalton then gave Deputy Jones the correct spelling of
his name and his accurate social security number. With this information, Deputy Jones learned
that Dalton’s license was suspended. Because Dalton appeared nervous and provided inaccurate
information, Deputy Jones requested backup units. South Boston Police Officer Trevor
Richardson and another officer responded.
Upon backup arrival, Deputy Jones deployed his K-9 around the vehicle. The K-9 alerted
at the Jeep’s back passenger door. Dalton and his girlfriend were removed from the vehicle and
patted down. While patting Dalton down, Deputy Jones found a lighter and a baggie of what
appeared to be methamphetamine in Dalton’s right front pocket. Testing confirmed that the
baggie contained 0.4333 gram of methamphetamine. Deputy Jones also found what appeared to
be a sex toy in Dalton’s front left pocket.
Deputy Jones and the South Boston officers began to search Dalton’s vehicle, while
Dalton smoked cigarettes. Deputy Jones found Dalton’s wallet in the center console. Dalton’s
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license and what was later determined to be a counterfeit five-dollar bill were found within the
wallet. On the back seat, Officer Richardson found a box of linen paper and paper cutting
instruments. Within the box, officers found some of the linen paper with U.S. currency printed
on it in several different denominations. Other pieces of linen paper within the box had
“printouts that had already been cut out.”
U.S. Secret Service Special Agent Matthew Miranda reviewed all the paper currency
collected. Special Agent Miranda determined that all the currency found in the box of linen
paper was non-genuine because the bills did not contain any security features found in U.S.
currency. Additionally, Special Agent Miranda determined that one of the five-dollar bills in
Dalton’s wallet was non-genuine. The five-dollar bill contained no security features and had the
same serial number as the bills found in the box. Special Agent Miranda noted that you “would
never see two identical serial numbers within the same machine” at the Federal Reserve.
In the trunk of the vehicle officers found two luggage bags. One of the luggage bags
contained women’s clothing, and Dalton’s girlfriend claimed ownership of it. The second
luggage bag contained men’s clothing, several thumb drives, and a cut straw with residue.
Deputy Jones testified that in his training and experience as a K-9 officer a cut straw with residue
is indicative of narcotics use. The thumb drives contained images of Dalton.
When asked about the methamphetamine found in his front pocket, Dalton stated that the
sweatpants were not his and that he was unaware of the methamphetamine’s presence. The
police arrested Dalton. Before transporting him to the magistrate’s office, Deputy Jones asked
Dalton when he last used narcotics and if he needed medical attention. Deputy Jones noted that
Dalton was sweating profusely even though it was cold outside, and he was concerned for Dalton’s
safety. Dalton denied that he used illicit narcotics. While at the magistrate’s office, Dalton stated
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that if he had known about the methamphetamine, he would have eaten it. When asked about the
counterfeit currency, Dalton stated that “he rather not talk about that.”
Dalton testified in his own defense. He admitted that he was a convicted felon and that he
had been convicted of perjury. He stated that after work on February 7 he drove to Halifax to help
his girlfriend move items. After moving items, he took a shower at his girlfriend’s mother’s home
where he borrowed a pair of sweatpants. He and his girlfriend then drove to a motel where she had
made reservations. Just before arriving at the motel, Deputy Jones pulled him over. He denied
knowledge of the methamphetamine in his pocket and of the counterfeit currency in the back seat of
the Jeep or in his wallet. He also asserted that the luggage in the trunk stayed in the Jeep all the time
and he was not aware that there were any clothes in the bag.
He testified that his Jeep “wasn’t [his] everyday thing” and he “mainly [drives his] Ford
truck.” He asserted that in 2019 he loaned his Jeep to a friend, Phillip Hedgepath. During that
period the Jeep was impounded, and Dalton took Hedgepath to the impound lot to recover the
vehicle. Months after loaning Hedgepath the Jeep, Dalton learned that Hedgepath had been
convicted of uttering a false note. Additionally, Hedgepath had worked for Dalton’s construction
and antique restoration business. Consequently, Dalton often paid Hedgepath in cash. Dalton
would also loan Hedgepath money, and Hedgepath would repay Dalton in cash. Dalton stated that
he was unaware the box of linen paper was on the back seat of the Jeep.
On cross-examination, Dalton admitted that there was clothing in the luggage in the
Jeep’s trunk. When asked why he wore someone else’s pants when he had his own clothing in
his luggage, Dalton stated that he did not “even remember what all – if [the luggage] had
clothing in it or not.” When asked if he was carrying a sex toy in his pocket, Dalton stated he
“guessed that’s what it was.” He admitted while at the magistrate’s office he complained about the
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officers tearing up his Jeep and he stated that it was “all [he’s] got.” Dalton, however, could not
remember what he meant by that statement.
Dalton called Ronnie Shelton who testified that about two years prior he had seen
Hedgepath driving Dalton’s Jeep. Originally, Shelton thought it was Dalton driving because he saw
Dalton in that Jeep “[a]ll of the time . . . [and] was with him when he got it.” In rebuttal, the
Commonwealth recalled Deputy Jones and played Deputy Jones’s body worn camera from the
magistrate’s office for the court.3
The trial court convicted Dalton of all the charges and sentenced him to twelve months and
thirty days of active incarceration. Dalton appeals.
ANALYSIS
Dalton asserts that no reasonable fact finder could conclude that he was guilty beyond a
reasonable doubt. He argues that the Commonwealth’s case was inherently incredible.
Furthermore, he asserts that the trial court arbitrarily disregarded his unimpeached testimony. He
testified that after moving items for his girlfriend, he borrowed sweatpants to wear and did not know
the pants contained methamphetamine. Additionally, Dalton testified that he loaned his Jeep to
Philip Hedgepeth, who had previously been convicted of uttering forged notes, and that his primary
vehicle was his work truck. Consequently, he was unaware of the box of counterfeit currency and
production materials in the back seat of the Jeep. Furthermore, he frequently received U.S. paper
currency from Hedgepeth and believed that during one of these exchanges he unknowingly received
a counterfeit bill from Hedgepeth. Finally, he argues, the Commonwealth failed to present evidence
that he attempted to pass a counterfeit bill.
3
The body worn camera footage was never entered into evidence as an exhibit. The
transcript does not provide any details concerning what the footage shows beyond that the video
was played and the trial court’s findings of fact.
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I. Reasonable Hypothesis of Innocence and Witness Credibility
“Under the governing standard, ‘we review factfinding with the highest degree of
appellate deference.’” Commonwealth v. Barney, __ Va. __, __ (Mar. 16, 2023) (quoting
Bowman v. Commonwealth, 290 Va. 492, 496 (2015)). “[T]he credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn from proven facts are matters
solely for the fact finder’s determination.” Meade v. Commonwealth, 74 Va. App. 796, 805-06
(2022) (quoting Crawley v. Commonwealth, 29 Va. App. 372, 375 (1999)). Moreover, “[t]he
conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only
when we find that the witness’ testimony was ‘inherently incredible, or so contrary to human
experience as to render it unworthy of belief.’” Ashby v. Commonwealth, 33 Va. App. 540, 548
(2000) (quoting Fisher v. Commonwealth, 228 Va. 296, 299 (1984)). “Such deference stems, in
part, from the trial court’s ‘opportunity to observe the testimony and the demeanor of the
witnesses.’” Meade, 74 Va. App. at 805 (quoting Lopez v. Commonwealth, 73 Va. App. 70, 81
(2021)).
“This deferential principle applies not only to ‘matters of witness credibility’ but also to
the factfinder’s ‘interpretation of all of the evidence, including video evidence’ presented at
trial.” Barney, __ Va. at __ (quoting Meade, 74 Va. App. at 806). “The factfinder ‘views video
and other evidence to determine what it believes happened; we, on appellate review, view video
evidence not to determine what we think happened, but for the limited purpose of determining
whether any rational factfinder could have viewed it as the [factfinder] did.’” Id. at __ (alteration
in original) (quoting Meade, 74 Va. App. at 806).
“[M]erely because [a] defendant’s theory of the case differs from that taken by the
Commonwealth does not mean that every reasonable hypothesis consistent with his innocence
has not been excluded. What weight should be given evidence is a matter for the [factfinder] to
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decide.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (second and third alterations
in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)). “By finding [a]
defendant guilty, therefore, the factfinder ‘has found by a process of elimination that the
evidence does not contain a reasonable theory of innocence.’” Id. (alteration in original)
(quoting Haskins, 44 Va. App. at 9). “While a factfinder may not arbitrarily disregard a
reasonable doubt, whether ‘the hypothesis of innocence is reasonable is itself a “question of
fact,” subject to deferential appellate review.’” Burton v. Commonwealth, 58 Va. App. 274,
285-86 (2011) (quoting Clanton v. Commonwealth, 53 Va. App. 561, 572-73 (2009) (en banc)).
Here, the record establishes that the trial court considered but rejected Dalton’s
hypothesis of innocence. The trial court specifically found that Dalton was incredible. Dalton was
initially evasive. He told Deputy Jones he could not find his wallet, even though the police easily
found it in the center console, a place, the trial court observed, people normally keep a wallet.
Further, Dalton misspelled his name and gave a close but incorrect social security number to Deputy
Jones. It was only when confronted with his lie that Dalton provided his true identifying
information.
Although it was a cold February evening, Dalton was sweating so profusely that Deputy
Jones was concerned for Dalton’s health and safety, suspecting Dalton was under the influence of
drugs, despite Dalton’s denials. The pat-down search revealed that Dalton possessed
methamphetamine in his pocket along with a lighter. The court found that these items—the
methamphetamine and the lighter—were “fairly bulky, something that certainly one would know
was in their pocket.” Additionally, Dalton was a smoker, who was smoking cigarettes during the
search. Although Dalton claimed that the sweatpants were not his and that he was unaware of the
methamphetamine in them, a reasonable fact finder could conclude that Dalton was aware of what
was in his pocket with his lighter. A reasonable fact finder may also conclude that Dalton likely did
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not borrow sweatpants when he had a suitcase of his own clothes readily available. Under either
theory, it is reasonable for the fact finder to reject Dalton’s theory.
Officers found a box of linen paper and cutting instruments in the back seat of the vehicle in
plain view. The box contained linen paper with U.S. currency printed on it in several different
denominations. Several pieces of linen paper within the box had denominations that had been
cut out. In the trunk of the vehicle officers found a luggage bag containing men’s clothing and a
thumb drive with images of Dalton. Within the luggage, officers found a cut straw with residue
indicative of illicit narcotics ingestion. Although Dalton denied using drugs, he told Deputy Jones
at the magistrate’s office that if he had known about the drugs in his pocket, he would have
consumed it.
Finally, the trial court found that Dalton’s credibility was undermined by his own witness’s
testimony. Dalton testified that he had loaned his Jeep to Hedgepath in 2019. Defense witness
Shelton affirmed that he saw Hedgepath with Dalton’s Jeep in 2019. When asked why Shelton
believed it was Dalton’s Jeep, Shelton stated he thought it was Dalton because Dalton drove that
Jeep “all the time” and Shelton had, in fact, been with Dalton when he bought the Jeep.
The court reasoned that even if Dalton had loaned the Jeep to Hedgepath in 2019, the box
and paper cutting implements were in plain view for several months and would have been noticed
by Dalton. The court found it incredible that Dalton was not aware of the box or the cutting
implements in a vehicle that, according to his witness, he used all the time. Further one of the
five-dollar bills in Dalton’s wallet had the same serial number as one of the bills in the box. Special
Agent Miranda testified that identical serial numbers are not within the same machine at the Federal
Reserve. The court determined that Shelton’s testimony affected the credibility of all of Dalton’s
testimony and found Dalton to be incredible.
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“The rejection of a hypothesis of innocence ‘is binding on appeal unless plainly wrong.’”
Ervin v. Commonwealth, 57 Va. App. 495, 519 (2011) (en banc) (quoting Archer v.
Commonwealth, 26 Va. App. 1, 13 (1997)). Considering the totality of the evidence, the trial
court did not err in rejecting Dalton’s hypothesis of innocence. We will not reverse the trial
court’s decision on appeal.
II. Sufficiency of the Evidence
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
When conducting a sufficiency review on appeal, we do not “distinguish between direct
and circumstantial evidence” because the fact finder “is entitled to consider all of the evidence,
without distinction, in reaching its determination.” Commonwealth v. Moseley, 293 Va. 455, 463
(2017) (citation omitted). “Indeed, in some cases circumstantial evidence may be the only type
of evidence which can possibly be produced.” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
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(quoting Stamper v. Commonwealth, 220 Va. 260, 272 (1979)). “A circumstantial fact is
admitted on the basis of an inference when the inference is a probable explanation of another fact
and a more probable and natural one than other explanations, if any.” Barney, __ Va. at __
(quoting Toler v. Commonwealth, 188 Va. 774, 780 (1949)). “Circumstantial evidence must
prove guilt beyond a reasonable doubt but not ‘beyond all doubt.’” Id. at __.
A. Possession of Methamphetamine
“It is unlawful for any person knowingly or intentionally to possess a controlled
substance.” Code § 18.2-250. “In order to convict a person of illegal drug possession, the
Commonwealth must prove beyond a reasonable doubt that the accused was aware of the
presence and character of the drug and that the accused consciously possessed it.” Yerling v.
Commonwealth, 71 Va. App. 527, 532 (2020) (citing Jones v. Commonwealth, 17 Va. App. 572,
574 (1994)). Possession of contraband “may be actual or constructive.” Hall v. Commonwealth,
69 Va. App. 437, 448 (2018).
Here, the evidence, viewed in the light most favorable to the Commonwealth, establishes
that Dalton had 0.4333 gram of methamphetamine in his pocket. The trial court determined that
the items found in the pocket—the bag of methamphetamine and a lighter—were “fairly bulky”
and thus were “something that certainly one would know was in their pocket.” Furthermore, the
trial court noted that Dalton was a smoker, who was smoking during the search of the Jeep, and
the police found the lighter in the same pocket as the illicit narcotics. Additionally, the police
found a cut straw in Dalton’s luggage. In Deputy Jones’s experience, a cut straw is used to
consume illicit narcotics. A reasonable fact finder could conclude that Dalton was aware of the
presence and character of the methamphetamine found in his pocket. We will not disturb the
trial court’s findings on appeal.
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B. Forgery of Bank Notes and Uttering Forged Notes
If any person forge any coin, note or bill current by law or
usage in this Commonwealth . . . or utter, or attempt to employ as
true, or sell, exchange, or deliver, or offer to sell, exchange, or
deliver, or receive on sale, exchange, or delivery, with intent to
utter or employ, or to have the same uttered or employed as true,
any such false, forged, or base coin, note or bill, knowing it to be
so, he shall be guilty of a Class 4 felony.
Code § 18.2-170.
If any person have in his possession forged bank notes . . .
knowing the same to be forged or base, with the intent to utter or
employ the same as true, or to sell, exchange, or deliver them, so
as to enable any other person to utter or employ them as true, he
shall, if the number of such notes or coins in his possession at the
same time, be ten or more, be guilty of a Class 6 felony.
Code § 18.2-173.
Here, the evidence established that a box and paper cutting instruments were in plain
view on the back seat. The box contained linen paper with printed counterfeit bills and linen
paper where counterfeit currency had been cut out. Deputy Jones found a counterfeit five-dollar
bill with the same serial number as bills in the box of linen paper in Dalton’s wallet. A
reasonable fact finder could conclude that Dalton printed counterfeit currency onto the linen
paper and excised that currency with the intent to utter it as genuine U.S. currency. Because
there is sufficient evidence in the record to support the trial court’s factual findings, we will not
reverse them on appeal.
CONCLUSION
In sum, the Commonwealth’s evidence was competent, was not inherently incredible, and
was sufficient to prove beyond a reasonable doubt that Dalton was guilty of possession of
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methamphetamine, employing a forged note, and forging a note. Accordingly, we affirm the trial
court’s decision.
Affirmed.
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