Daryl Thomas Johnson, Jr v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 26, 2003
• Docket: 0806023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements Argued at Salem, Virginia

DARYL THOMAS JOHNSON, JR. MEMORANDUM OPINION * BY v. Record No. 0806-02-3 JUDGE JEAN HARRISON CLEMENTS AUGUST 26, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Jr., Judge

Gregory T. Casker for appellant.

Amy Hay Schwab, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Susan M. Harris, Assistant Attorney General, on brief), for appellee.

Daryl Thomas Johnson, Jr., (appellant) was convicted in a

bench trial of possession of cocaine with intent to distribute, in

violation of Code § 18.2-248. On appeal, he contends the trial

court erred (1) in concluding the police's warrantless retrieval

of the rental minivan key from his pocket was lawful, (2) in

determining the rental company manager's consent to search the

minivan during the rental period was valid, (3) in deciding the

rental company manager was not acting as an agent of the

government, and (4) in finding the evidence sufficient to sustain

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. his conviction. For the reasons that follow, we affirm

appellant's conviction.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as are necessary to the parties' understanding of the

disposition of this appeal.

I. BACKGROUND

Ace Rental and Leasing Company (Ace Rental) rented a 1997

Dodge minivan to appellant on June 19, 2001, with a return date of

June 25, 2001. According to the rental agreement, the customer

must have a valid operator's license. The agreement further

provided that a customer's providing false or fraudulent

information in procuring the rental agreement would constitute a

breach of the agreement, giving the company the "right to pick up

the vehicle."

On the afternoon of June 21, 2001, Danville City Police

Officer Marcus Alonzo Jones responded to a domestic disturbance

call from Tia Rice, appellant's girlfriend, at 431 West Gay

Street. Upon his arrival at the residence, Jones heard yelling

coming from the basement and, upon going downstairs, saw appellant

"straddling Ms. Rice with his hands around her neck area." Jones

arrested appellant for domestic assault and battery. The officer

took appellant to his patrol car and, in a search incident to the

arrest, found approximately $1,250 in one of appellant's pants

- 2 - pockets and approximately $550 in another pants pocket. Jones

also found a key. Officer Jones then placed the money and key

back in appellant's pocket.

Investigator Dennis L. Haley and Officer J.L. Perkins were in

Rice's front yard as Jones searched appellant. Haley was assigned

to the Danville Police Department's drug and narcotics division

and "had had many experiences" with appellant. While working

undercover two weeks earlier, Haley had pulled his car alongside

appellant, who was driving a Chrysler Cyrus and wearing a white

cotton "do-rag" on his head. Haley ran the car's tag and

discovered appellant was driving with a suspended license.

However, since Haley was "doing a different type of operation," he

turned the information over to another officer. On the day in

question, Haley was on an unrelated assignment when he heard

dispatch make a call concerning a domestic disturbance involving a

suspect named "Juicy." Knowing appellant had the nickname

"Juice," Haley drove to the scene.

On seeing the key found in appellant's pocket by Officer

Jones, Investigator Haley, who had recently purchased a Chrysler

vehicle, recognized it as a Chrysler key because it was longer

than usual, had a black rubber cover over the head, and had the

Chrysler emblem imprinted on it. The key was also attached to a

yellow tag that had lines across it, which was consistent with the

key Haley had for his Chrysler vehicle. Investigator Haley looked

around and saw a burgundy Chrysler minivan with temporary tags

- 3 - parked in front of 431 West Gay Street. Haley then walked to

Jones's patrol car and asked appellant for permission to search

the minivan. Appellant refused to give consent. Tia Rice told

Haley appellant had driven the minivan to her house. The

investigator called in the minivan's temporary tags and found the

minivan belonged to Ace Rental. He asked dispatch to determine

the lessee's name and the status of appellant's driver's license.

On learning the minivan was leased to the appellant, and

confirming appellant's license was still suspended, Investigator

Haley called Phyllis McCubbins, the leasing manager for Ace

Rental. Haley told McCubbins that appellant had a suspended

operator's license. McCubbins confirmed that appellant's rental

agreement was conditioned on appellant having a valid Virginia

operator's license. She asked Haley to "hold the key and [Ace

Rental] would send someone out to pick [the minivan] up." Haley

asked McCubbins if he could come pick her up and bring her to the

minivan in order to "expedite matters," and McCubbins consented.

Investigator Haley posted Detective Eddie Whitehead to watch

the minivan while he was picking up McCubbins. Whitehead

testified that nobody was in the minivan while Haley was away.

Before leaving to pick up McCubbins, Haley "went back to the

patrol car and got the key [to the minivan] from [appellant]." He

then drove to Ace Rental, picked up McCubbins, gave her the key,

and returned with her to 431 West Gay Street. Upon arriving at

the minivan, McCubbins "repossessed the vehicle" because appellant

- 4 - "did not have a valid driver's license." Asked by Haley for

permission to search the vehicle, McCubbins "gave consent to

search." She executed a consent to search form and "handed

[Haley] the key back." After conducting a search of the vehicle,

Haley gave the key back to McCubbins, who drove the minivan back

to Ace Rental.

Inside the minivan, Haley found ten "off-white rocks" of

crack cocaine, wrapped in an Amoco receipt, lodged in a recessed

area of the door handle on the driver's side door. The receipt

pertained to repair work for the same Chrysler Cyrus Haley had

seen appellant driving two weeks before. Haley also found a white

cotton "do-rag" in the minivan of "the same type" he had seen

appellant wearing in the Cyrus two weeks before. Inside the

center console of the minivan, the police found a set of digital

scales with cocaine residue on it. The minivan's glove box

contained a pink copy of Ace Rental's rental agreement for the

minivan, endorsed by appellant. Underneath the agreement was a

Crown Royal bag with more crack cocaine and $1,086 in cash inside.

In total, 87.45 grams of cocaine, having an approximate street

value of "eighty-seven hundred dollars and change," were found in

the minivan. No fingerprints were found.

The trial court denied appellant's motion to suppress the

warrantless retrieval of the minivan key from his pocket and the

cocaine subsequently found in the minivan. The appellant

presented no evidence. The trial court found appellant guilty of

- 5 - possession of cocaine with intent to distribute. This appeal

followed.

II. MOTION TO SUPPRESS

On appeal from a trial court's denial of a motion to

suppress, the burden is on the appellant to show that the denial

of the motion constituted reversible error. See Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). In

reviewing such a denial, we consider the evidence in the light

most favorable to the Commonwealth, granting to the Commonwealth

all reasonable inferences fairly deducible from the evidence.

E.g., Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991).

Appellant concedes that Officer Jones's search of his person

incident to his arrest for domestic assault and battery was

lawful. He argues, however, that Investigator Haley's subsequent

search of his person and retrieval of the key from his pocket

necessitated a warrant. This argument is unsupported by any

citation to controlling legal authority that supports appellant's

position. We have repeatedly said that "[w]e do not deem it our

function . . . to ferret-out for ourselves the validity of [such]

claims." Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d

615, 625 n.7 (1988) (en banc). As we stated in Buchanan v.

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992),

"[s]tatements unsupported by argument, authority, or citations to

the record do not merit appellate consideration." See also

- 6 - Theismann v. Theismann, 22 Va. App. 557, 572, 471 S.E.2d 809, 816,

aff'd en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996) (declining

to address an argument on appeal that was inadequately developed

in appellant's brief). Appellant's claim of trial court error

does not warrant appellate consideration and we, therefore, will

not address it on appeal.

Appellant next contends the rental company manager's consent

to search the minivan during the rental period was contrary to his

expectation of privacy and, thus, invalid. He argues the manager

had no control over the minivan during the rental period and did

not have authority to give police consent to search it. Once he

refused to give consent to search the minivan, appellant argues,

Investigator Haley's contacting the rental company's manager and

initiating the "repossession" of the minivan was a ruse to

circumvent his Fourth Amendment right to a reasonable expectation

of privacy created by the rental agreement. We disagree.

A bailee has standing and may object to a warrantless search

of a vehicle in which he has a temporary possessory interest and

expectation of privacy. Hardy v. Commonwealth, 17 Va. App. 677,

681, 440 S.E.2d 434, 437 (1994). However, "[a] warrantless search

of a motor vehicle without probable cause may nevertheless be

valid as a consent search, provided that the person who consents

has actual authority to do so." Id. The owner's property right

is "'superior' to the bailee's temporary possessory right and

expectations of privacy in the vehicle." Id. (quoting Anderson v.

- 7 - United States, 399 F.2d 753, 756 (10th Cir. 1968)). "An owner of

a motor vehicle may consent to a search of the vehicle over a

bailee's objections if, at the time of the consent, the owner 'was

either in possession or entitled to possession' of the vehicle."

Id. (quoting Anderson, 399 F.2d at 756-57).

Although appellant had a possessory interest and, thus, an

expectation of privacy in the minivan by virtue of the rental

agreement with the minivan's owner, Ace Rental, the Commonwealth's

evidence established this interest was conditioned upon appellant

having a valid Virginia operator's license. Investigator Haley

testified that appellant's operator's license was suspended. Upon

being advised by police that appellant did not possess a valid

Virginia operator's license, McCubbins, Ace Rental's manager,

concluded that appellant was in breach of the terms of his rental

agreement and Ace Rental was entitled to reclaim possession of the

minivan. McCubbins repossessed the minivan and consented to the

warrantless search of it by the police. At that point,

appellant's expectation of privacy was subordinate to the owner's

right to reclaim possession of the minivan and his objection to

the search was immaterial. Accordingly, the search of the

minivan was valid "because the owner-bailor of the vehicle

consented to the search." Id.

Appellant next argues that McCubbins acted as an agent of the

government and, therefore, her consent to a search of the minivan

was invalid. Like appellant's first argument, this argument is

- 8 - also unsupported by any citation to controlling legal authority

that supports appellant's position. Hence, appellant's claim of

trial court error does not warrant appellate consideration and we

will not address it on appeal. Buchanan, 14 Va. App. at 56, 415

S.E.2d at 239; Theismann, 22 Va. App. at 572, 471 S.E.2d at 816.

Accordingly, the trial court did not err in denying

appellant's motion to suppress the evidence.

III. SUFFICIENCY OF THE EVIDENCE

Appellant contends the Commonwealth's evidence was

insufficient to prove he constructively possessed the cocaine

found in the minivan parked on the street. He argues there was no

evidence placing him in the minivan. Alternatively, he asserts

that, even if there was evidence to place him in the minivan at

some time, the mere fact of ownership or occupancy is insufficient

to prove he knowingly or intentionally possessed the cocaine.

When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997). We will not disturb the

conviction unless it is plainly wrong or unsupported by the

evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985). "The 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."

- 9 - Crawley v. Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170

(1999).

"In order to convict a person of illegal possession of an

illicit drug, 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." Walton

v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).

"[P]roof of actual possession is not required; proof of

constructive possession will suffice." Id. at 426, 497 S.E.2d at

872.

Constructive possession may be established by "evidence of

acts, statements, or conduct of the accused or other facts or

circumstances which tend to show that the [accused] was aware of

both the presence and the character of the substance and that it

was subject to his dominion and control." Powers v. Commonwealth,

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Occupancy or

ownership of the premises where the illegal drug is found is a

factor that may be considered in deciding whether the accused was

in possession of the illegal drug. See Walton, 255 Va. at 426,

497 S.E.2d at 871. Thus, in resolving the issue of constructive

possession, "the Court must consider 'the totality of the

circumstances disclosed by the evidence.'" Archer v.

Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997)

(quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353

(1979)).

- 10 - Circumstantial evidence is "competent and is entitled to as

much weight as direct evidence provided that the circumstantial

evidence is sufficiently convincing to exclude every reasonable

hypothesis except that of guilt." Dowden v. Commonwealth, 260 Va.

459, 468, 536 S.E.2d 437, 441 (2000). "While no single piece of

evidence may be sufficient, the 'combined force of many concurrent

and related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.'" Stamper v.

Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)

(quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562,

564 (1919)).

Here, the evidence established that Tia Rice, appellant's

girlfriend, told Investigator Haley that appellant had driven the

minivan to her house. It was parked on the street in front of her

house. When Officer Jones searched appellant, he recovered a key

to the minivan and $1,800 in appellant's pants pockets. No one

else occupied the minivan from the time of appellant's arrest

until the time it was searched. Inside the minivan, in a recessed

area on the driver's side door, Investigator Haley found cocaine

wrapped in a receipt for repair work on the same vehicle Haley had

seen appellant driving two weeks earlier. Haley also found a

"do-rag" of "the same type" appellant had been wearing when he saw

him two weeks earlier. Inside the center console of the minivan,

the police found a set of digital scales with cocaine residue on

it. In the minivan's glove compartment, the police found a copy

- 11 - of the vehicle's rental agreement, which was endorsed by

appellant. Underneath that agreement, the police found a Crown

Royal bag with more cocaine and $1,086 inside. In total, the

police found 87.45 grams of cocaine valued at nearly $8,700 in the

minivan.

Viewed in the light most favorable to the Commonwealth, this

evidence, considered in its totality, clearly supports the finding

that appellant knew of the presence and character of the cocaine

and that he intentionally and consciously possessed it. Hence, we

hold that the evidence was sufficient to support appellant's

conviction for possession of cocaine with intent to distribute.

Accordingly, we affirm the conviction.

Affirmed.

- 12 -