COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole Argued at Richmond, Virginia
DERRICK S. HINES MEMORANDUM OPINION * BY v. Record No. 1086-95-2 JUDGE MARVIN F. COLE OCTOBER 22, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Gary R. Hershner (Morrissey, Hershner & Jacobs, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Derrick S. Hines was convicted in a bench trial of two
counts of possession of heroin with intent to distribute and one
count of possession of a firearm while in possession of heroin.
Hines contends: (1) the trial court erred by admitting into
evidence his post-arrest statement to the police regarding
unrelated offenses; and (2) the evidence is insufficient to
sustain the convictions. We find no error and affirm appellant's
convictions.
On June 24, 1994, members of the Richmond Police Department
executed a search warrant at a house located at 1124 North 31st
Street in Richmond. The officers found 190 glassine bags of
heroin totaling 11.79 grams in an upstairs bedroom, and 30 * Pursuant to Code § 17-116.010 this opinion is not designated for publication. glassine bags of heroin totaling 1.8 grams in a Seven-Up can
found in a window sill in the first floor hallway. The police
found $120 in cash, a handgun, two magazines for the gun, and a
box of ammunition on the mantel in the downstairs bedroom. The
house was locked and contained some furniture, but there was no
electricity, telephone, or clothing in the house, and it was
unoccupied at the time of the search.
A search for fingerprints on the seized items revealed a
palm print on one handgun magazine and four latent fingerprints
on four of the 190 glassine bags of heroin found in the upstairs
bedroom. The fingerprint analysis determined that the palm print
and two of the fingerprints were from appellant. On July 22, 1994, the police executed a search warrant at a
house located at 1114 North 31st Street in Richmond. Although
the front door of the house was locked, the back door was pushed
in and two upstairs windows were open. The police determined
that the house was abandoned. They searched the house and found
310 bags of heroin totaling 12.28 grams, 24.67 grams of cocaine,
and two shotguns. Six latent fingerprints were lifted from the
bags of heroin: one of the prints was from the defendant; two
were from the codefendant, Lillian Thorpe, who lived next door;
and three were unidentified.
Officer M. E. Ambrozy arrested appellant on December 29,
1994, at which time appellant made the following statement: Officer: Do you or have you sold any heroin?
- 2 - Hines: No I haven't.
Officer: Have you had heroin in your possession?
Hines: Yes sir I, I have.
Officer: How much?
Hines: About five bundles.
Officer: When was that?
Hines: A couple of months ago.
Officer: How about in the summer? Hines: I can't really say.
Officer: When was the last time you brought heroin back with you from New York?
Hines: 3-4 months ago.
Officer: How long have you been selling heroin for?
Hines: For as long as I needed some $.
Officer: When did you start moving heroin?
Hines: 3-4 months back.
Officer: How did we get your fingerprint back in the summer?
Hines: I'm not sure.
The first issue is whether Hines' post-arrest statement to
Officer Ambrozy on December 29, 1994 was admissible evidence.
When the Commonwealth attempted to introduce the statement
through the testimony of Officer Schnuup, appellant objected to
its admissibility for the following reason: The statement was taken in December of last
- 3 - year when Mr. Hines was arrested. I don't believe it's relevant. It does not at all refer to the incident on June the 24th and the address 1114 North 31st. It is merely a general statement about his activity with drugs. I think it's more prejudicial than probative in this case. It doesn't relate to this case. [The Commonwealth's Attorney] is going to want it to relate to the case and say it goes toward his intent. However, it does not. Officer Schnuup does not ask him about the date in question. He does not ask him about the house or the drugs found on that date. I just think it's not relative [sic] and it's more prejudicial to Mr. Hines than it is probative to the Commonwealth's case.
Later, when the Commonwealth attempted to introduce the
statement through Officer Ambrozy, appellant objected to its
admissibility as follows: Whether he was in possession at one point in time of heroin is not relevant to whether he was in possession of heroin on June 24th or July 22nd. I think the statement is very prejudicial in that he does admit to selling heroin in the past but it does not put it on those dates in question. Whether he sold heroin every single day of his life in the past is not relevant to whether he possessed it on those dates. The Commonwealth has to prove he was in possession of those drugs on that date. The statement does not go toward that issue in the least bit.
The trial judge admitted the statement in evidence, and the
appellant's objection was noted. He stated that the reason he
admitted the statement was because of its relationship with the
fingerprints found on the drugs.
First, we shall address the question of the relevance of the
post-arrest statement given by appellant to the police. "'Any
- 4 - fact, however remote, that tends to establish the probability or
improbability of a fact in issue is [relevant and] admissible.'"
Wynn v. Commonwealth, 5 Va. App. 283, 291, 362 S.E.2d 193, 198
(1987) (quoting Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d
893, 896 (1983)). [R]elevant evidence is any evidence "which may throw light upon the matter being investigated, and while a single circumstance, standing alone, may appear to be entirely immaterial or irrelevant, it frequently happens that the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion."
Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833
(1990) (en banc) (quoting Peoples v. Commonwealth, 147 Va. 692,
704, 137 S.E. 603, 606 (1927)).
Appellant was tried upon two indictments which alleged that
he possessed heroin with the intent to distribute it. The
Commonwealth was required to prove that he "intentionally and
consciously possessed" the drug, either actually or
constructively, with knowledge of its nature and character,
together with the intent to distribute it. Josephs v.
Commonwealth, 10 Va. App. 87, 99-102, 390 S.E.2d 491, 497-99
(1990) (en banc). Constructive possession may be shown by a
defendant's acts, declarations or conduct which support the
inference that the contraband was "subject to his dominion and
control." Id. Appellant was also tried upon an indictment
charging him with possessing a firearm while in possession of
- 5 - heroin with the intent to distribute.
Appellant contends that his statement implicates him in
other "wholly unrelated" crimes of purchasing and possessing
heroin and transporting it to Virginia three or four months
before his arrest on December 29, 1994. He argues that his prior
drug activity was not proven to have any relation to the heroin
found in June and July in the abandoned houses.
The Commonwealth proved that on June 24, 1994, someone
possessed a stash of heroin at 1124 North 31st Street in Richmond
with intent to distribute it. It also proved that on July 22,
1994, at 1114 North 31st Street in Richmond, only a short
distance from 1124 North 31st Street, someone possessed another
stash of heroin with intent to distribute it. The primary
question is whether the Commonwealth proved that appellant was
the criminal agent in either or both instances. To prove that
appellant was the criminal agent, the Commonwealth relied upon
the evidence that appellant's fingerprints were found upon the
contraband at both locations. The Commonwealth asserts that the
fingerprints found at the scene of the crimes showed that
appellant was there at some time, and together with the post-arrest statement and other evidence in the case, established
that appellant was guilty of possession of heroin with the intent
to distribute on June 24, 1994 and July 22, 1994, the dates the
heroin was seized by the police.
The Supreme Court has recognized that fingerprinting is a
- 6 - certain and scientific method of identification and "actually 'an
unforgeable signature.'" Turner v. Commonwealth, 218 Va. 141,
146, 235 S.E.2d 357, 360 (1977) (citation omitted). In Turner,
the Court stated the following: [W]hile defendant's fingerprint found at the scene of the crime may be sufficient under the circumstances to show defendant was there at some time, nevertheless, in order to show defendant was the criminal agent, such evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. Such "other circumstances . . . need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed." Those attendant circumstances may demonstrate the accused was at the scene of the crime when it was committed. And if such circumstances do so demonstrate, a rational inference arises that the accused was the criminal agent.
Id. at 146-47, 235 S.E.2d at 360 (citations omitted). See also
Ricks v. Commonwealth, 218 Va. 523, 526, 237 S.E.2d 810, 812
(1977); Avent v. Commonwealth, 209 Va. 474, 479-80, 164 S.E.2d 655, 659 (1968); Tyler v. Commonwealth, 22 Va. App. 480, 482, 471
S.E.2d 772, 773 (1996).
The fingerprints were the only direct evidence presented by
the Commonwealth to show that appellant was the criminal agent.
Admittedly, the Commonwealth had to connect the fingerprints with
"other circumstances" to identify him as the criminal agent. To
do this, the Commonwealth presented Hines' post-arrest statement.
- 7 - Hines argued that the facts set forth in the statement were not
connected to the June 24, 1994 and July 22, 1994 offenses. In
the statement, Hines told the police officer that he had begun
"moving" heroin "3-4 months back." From December 29, 1994, this
statement would relate back only to August 29, 1994. The
statement indicated Hines had been selling heroin "for as long as
I needed some [money]." Because the record does not disclose how
long Hines needed money, this statement is not specific as to
dates. Hines said he last brought heroin to Richmond from New
York "3-4 months ago" and possessed "about five bundles . . . a
couple of months ago." Because Hines stated that he last brought
heroin from New York around August 29, 1994, one can reasonably
infer that he had brought heroin to Richmond from New York prior
to August 29, 1994, which places the possession within the time
frame of the two offenses. When asked specifically about his
drug activities "in the summer," Hines replied "I can't really
say." A reasonable interpretation of the statement is that Hines
was speaking in terms of approximations. In any event, the
statement tended to establish the probability or improbability of
the time that Hines had access to and possessed heroin brought
from New York for sale locally. It also established the fact
that Hines knew about heroin and that he possessed it in the
approximate time frame of these offenses. The record also
established that on June 24, 1994, and July 22, 1994, Hines'
fingerprints were on the drugs. This could not have occurred
- 8 - before he possessed it. The issue then is whether this evidence
constitutes "other circumstances" that would tend to connect
Hines as the criminal agent in the crimes committed on June 24,
1994 and July 22, 1994. We find that the statement to the police
is relevant evidence for this purpose. However, several other
factors must be discussed before we can say the statement is
admissible evidence.
Professor Friend states the "Prior Crimes Rule" as follows: "[E]vidence which shows or tends to show the accused guilty of the commission of other offenses at other times is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense similar to that charged; but if such evidence tends to prove any other relevant fact of the offense charged, and is otherwise admissible, it will not be excluded merely because it also shows him to have been guilty of another crime."
Therefore:
"Evidence of other offenses is admitted . . .
if it tends to prove any relevant element of the offense charged."
1 Charles E. Friend, The Law of Evidence in Virginia § 12-14 (4th
ed. 1993) (footnotes omitted). See also Rodriguez v.
Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727 (1995);
Satcher v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 827-28
(1992), cert. denied, 507 U.S. 933 (1993); Wilkins v.
Commonwealth, 18 Va. App. 293, 297-98, 443 S.E.2d 440, 443-44
(1994) (en banc).
- 9 - As previously explained, Hines' statement was admitted to
prove, inter alia, "other circumstances" in connection with the
fingerprints. Significantly, it was not admitted for the purpose
of showing appellant's character or his disposition to commit an
offense similar to that charged.
If the probative value of the evidence outweighs the
prejudicial effect upon the defendant, relevant evidence should
be admitted. If the prejudicial effect exceeds the probative
value, the evidence should be excluded. This determination is
committed to the trial court's discretion and requires the trial
court to conduct a balancing test based on the facts and
circumstances of a particular case. Lewis v. Commonwealth, 8 Va.
App. 574, 579, 383 S.E.2d 736, 740 (1989) (en banc). "[A] trial
court's discretionary ruling will not be disturbed on appeal
absent a clear abuse of discretion." Coe v. Commonwealth, 231
Va. 83, 87, 340 S.E.2d 820, 823 (1986). We find no clear abuse
of discretion here. Accordingly, the trial court properly
admitted in evidence the statement Hines gave to the police.
The second issue challenges the sufficiency of the evidence
to prove the offenses set forth in the indictments. On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.
- 10 - Martin v. Commonwealth, 4 Va. App. 437, 443, 358 S.E.2d 415, 418
(1987). "The weight which should be given to evidence and
whether the testimony of a witness is credible are questions
which the fact finder must decide." Bridgeman v. Commonwealth, 3
Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
In order to convict appellant under the indictments, the
prosecution was required to prove he "'intentionally and
consciously possessed' the drug[s], either actually or
constructively, with knowledge of [their] nature and character,
together with the intent to distribute [them]." Wilkins, 18 Va.
App. at 298, 443 S.E.2d at 444 (citation omitted). Appellant's
intent to distribute the drugs may be "'shown by circumstantial
evidence' which is '"consistent with guilt"' and '"inconsistent"'
with and '"exclude[s] every reasonable hypothesis of
innocence."'" Id. (citations omitted). As previously stated,
appellant does not dispute that the Commonwealth proved that the
crimes described in the indictments were committed. However, he
contends that the Commonwealth did not sufficiently prove that he
was the criminal agent who committed the offenses because no
evidence proved that he possessed or had any connection with the
two stashes of heroin and the guns located in the two abandoned
houses on June 24, 1994 and on July 22, 1994.
This brings us to the crux of the issue before us. Does the
Commonwealth's evidence, tested by rules that are well
established, provide an adequate basis to support the convictions
- 11 - by the trial court finding appellant guilty of two charges of
possession of heroin with intent to distribute and possession of
a firearm while in possession of heroin? We must review the
evidence not as to what action we might have taken, but as to
whether the evidence justified the trial judge, as finder of the
facts and the reasonable inferences drawn therefrom, in finding
appellant guilty. When the evidence leads to the conclusion of
guilt beyond a reasonable doubt, and excludes every reasonable
hypothesis of innocence, it is sufficient to support the judgment
of the trial court. We have already discussed the law relating to fingerprint
evidence and will not repeat it. Suffice it to say that in order
to prove that appellant was the criminal agent, the fingerprint
evidence must be coupled with evidence of "other circumstances"
tending to reasonably exclude the hypothesis that the print or
prints were impressed at a time other than that of the crime.
Such "other circumstances" need not be completely independent of
the fingerprint evidence, however, they must demonstrate that the
accused was at the scene of the crime when it was committed.
In addition to the two abandoned houses at 1124 and 1114
North 31st Street described herein, another house is of
importance in this case. Lillian Thorpe, a codefendant, gave a
statement to the police concerning her involvement with the drugs
at 1124 North 31st Street. The statement was admitted as to her,
but not against Hines. However, other testimony indicated that
- 12 - she lived next door to 1124 North 31st Street. The back door of
Thorpe's house faced the back door of 1124 North 31st Street, and
it is only a few feet across an alleyway between the two
buildings. Two of Thorpe's fingerprints were found upon the
glassine bags of heroin found in 1124 North 31st Street together
with the print of Hines. These connections were facts to be
considered by the fact finder, together with reasonable
inferences deduced therefrom. Hines' December 29, 1994 statement to the police made
several important admissions for the fact finder to consider,
together with inferences that could be drawn therefrom. He
admitted that he had about five "bundles" of heroin in his
possession "a couple of months ago." When asked about the
summer, Hines stated that he "can't say." This denial was
inaccurate because in the next sentence he stated that he brought
heroin back from New York up to four months earlier. Four months
before December 29 was August 29, well within summer. He also
stated that he had been selling heroin "for as long as I needed
some [money]." He stated that he started "moving" heroin "3-4
months back." The fact finder was entitled to disbelieve these
dates because his fingerprints on the heroin in the two houses
dated to June 24, 1994 and July 22, 1994, several months earlier
in time.
The bags of heroin were transparent glassine bags and were
secreted in abandoned houses not frequented by or generally
- 13 - accessible to the general public. Therefore, the evidence does
not permit a reasonable inference that appellant innocently
handled the bags without knowledge of their contents. Moreover,
appellant's admissions that he brought heroin from New York to
Virginia, sold heroin for money, and possessed five "bundles" of
heroin proved that he was familiar with heroin and the manner in
which it is packaged, and that he knowingly possessed and handled
heroin, thereby accounting for his fingerprints on the glassine
bags. Although the evidence did not directly connect appellant
with having been seen or having occupied either of the two
residences, his fingerprints, the statement he made to the
police, the other circumstances in the evidence, and the
reasonable inferences therefrom, proved that he was in the
business of buying and selling heroin during the relevant time
period and that he knowingly possessed the heroin for
distribution at the time and location where the drugs were found.
Although the houses where the heroin was stored were abandoned,
there was no evidence that the houses were open to the public or
frequented by others. Also, there was no evidence that anyone
other than those whose prints were on the heroin, which included
appellant, had possessed and exercised dominion and control over
the heroin in the two houses. There is no other reasonable
explanation in the record to show how appellant's fingerprints
got on the heroin and magazines. Citing Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d
- 14 - 325, 329 (1983), Hines argues that a conviction based upon
circumstantial evidence may be sustained only if the evidence,
when taken as a whole, excludes every reasonable hypothesis of
innocence. The Commonwealth "'must overcome the presumption of
innocence and exclude all reasonable conclusions inconsistent
with that of guilt.'" Higginbotham v. Commonwealth, 216 Va. 349,
353, 218 S.E.2d 534, 537 (1975) (citations omitted). The fact
finder in this case could conclude from Hines' statement that he
was in the business of buying and selling illegal heroin and that
he was engaged in this business as far back as June and July of
1994 because his fingerprints were found on the packaged drugs at
that time. The fact finder could infer that the locations from
which the business was conducted were 1114 and 1124 North 31st
Street, both abandoned residences. Large quantities of heroin
were found in each house packaged in a manner consistent with the
sale and distribution of illegal drugs and inconsistent with
personal use. A handgun, magazine, and ammunition were found in
one house and two shotguns in the other. A large amount of cash
was present. All of these things along with the other
circumstances shown in the record may be considered to support
the finding that a person is engaged in the business of
distributing drugs. See Poindexter v. Commonwealth, 16 Va. App.
730, 735, 432 S.E.2d 527, 530 (1993) (accompanying possession of
a large amount of cash); Burchette v. Commonwealth, 15 Va. App.
432, 437, 425 S.E.2d 81, 84-85 (1992) (accompanying possession of
- 15 - a firearm); Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d
877, 882 (1977) (large amount of packaged drugs). Moreover, the
fingerprints are signatures showing the guilt of appellant.
Hines suggests that his prints may have been placed on the
drugs and handgun at a time other than the time of the crimes.
There is nothing in the record to support this hypothesis. Under
the totality of the circumstances, this is not a reasonable
hypothesis to support his innocence. In Turner, the Supreme Court discussed the Commonwealth's
burden to exclude the hypothesis that fingerprints had been
impressed at a time other than the time of the crime: But the prosecution is not required to affirmatively and conclusively prove to a certainty that the print could not have been made other than at a time when the crime was committed. As we noted in Avent, the fingerprint evidence need be joined only with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was made at some other time than during commission of the crime. And the hypotheses which must be reasonably excluded are those which flow from the evidence itself, and not from the imagination of defendant's counsel . . . . "While a defendant does not have the obligation to testify himself or to offer testimony to explain the presence of his prints, a court cannot supply evidence that is lacking."
218 Va. at 148, 235 S.E.2d at 361 (citations omitted).
With respect to appellant's conviction for possessing a
firearm while in possession of heroin, the evidence proved that
the ammunition magazine that contained appellant's palm print was
located next to a handgun on the same mantel. Because the
- 16 - handgun's magazine was in close proximity to the handgun and fit
the handgun, the evidence of appellant's palm print on the
magazine, together with all the other circumstances of the case,
was sufficient to prove that the handgun was subject to his
dominion and control. Furthermore, although the handgun was not
found in the same part of the house as the heroin, "[t]he
Commonwealth need not prove that [the defendant] had ready access
to either the gun or the [heroin] to establish 'simultaneous
possession.'" Jefferson v. Commonwealth, 14 Va. App. 77, 81, 414
S.E.2d 860, 862 (1992). The handgun was in plain view in the
abandoned house where the heroin was also located, the house was
not easily accessible to the general public, and appellant's palm
print was found on the handgun's magazine. This evidence,
combined with the other evidence linking appellant to the heroin
found in the house, was sufficient to prove that he "knew of the
presence and character" of the gun and of the heroin "and that he
consciously possessed them." Id. Based upon the foregoing, we find that the evidence was
sufficient to prove that appellant constructively possessed the
heroin found in the two houses with the intent to distribute it
and that he possessed the handgun found in the first house while
in possession of heroin.
For these reasons, we affirm appellant's convictions.
Affirmed.
- 17 -