Elmer Milteer, Jr v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 3, 2003
• Docket: 0939021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Frank and Senior Judge Bray Argued at Chesapeake, Virginia

ELMER MILTEER, JR. MEMORANDUM OPINION * BY v. Record No. 0939-02-1 JUDGE RICHARD S. BRAY JUNE 3, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY Westbrook J. Parker, Judge

J. Roger Griffin, Jr. (Chris A. Christie; Christie, Kantor, Griffin & Smith, P.C., on brief), for appellant.

John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Elmer Milteer (defendant) was convicted in a bench trial for

violations of Code §§ 59.1-41.3 and 59.1-41.4, proscribed conduct

related to "Records, Tapes and Other Recorded Devices." As a

result of the convictions, the court found defendant in violation

of previously imposed probation and revoked suspension of the

attendant sentence.

On appeal, defendant complains: (1) police arrested him

without probable cause, (2) the trial court erroneously convicted

him of violating both Code § 59.1-41.4 and "the unlawful

possession of cassettes produced in violation of Chapter 3.1,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Title 59.1," and (3) the evidence was insufficient to support the

convictions. Accordingly, defendant further contends the

probation revocation also was in error. We affirm the trial

court.

I.

Defendant first maintains the trial court erroneously

denied his motion to suppress evidence obtained incidental to an

arrest without probable cause. Upon review of a denial of a

motion to suppress, "[w]e view the evidence in a light most

favorable to . . . the prevailing party below, and we grant all

reasonable inferences fairly deducible from that evidence."

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991). "[W]e are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United

States, 517 U.S. 690, 699 (1996)). "However, we consider de

novo whether those facts implicate the Fourth Amendment and, if

so, whether the officers unlawfully infringed upon an area

protected by the Fourth Amendment." Hughes v. Commonwealth, 31

Va. App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing

McGee, 25 Va. App. at 198, 487 S.E.2d at 261).

The instant record establishes that Norfolk Police

Investigators Steve Stephens and Maurice Joseph, while

- 2 - "screen[ing] packages" at a Federal Express facility, observed

two parcels shipped from New York by "Marmadu Balde" to "Guy,"

407 Pretlow Street, Franklin, Virginia. The investigators

recognized the articles as consistent with previously

encountered shipments from "Marmadu Balde" that contained

illegally manufactured compact discs and videotapes and secured

a search warrant for each. Upon opening the boxes, they

discovered one hundred thirteen (113) "counterfeit" compact

discs and ninety (90) "counterfeit" videotapes.

To facilitate a "controlled delivery" of the packages, each

was rewrapped and Investigator Joseph, posing as a Federal

Express employee, proceeded to the designated address, a

"business." Initially unable to deliver the items because the

"person there . . . couldn't pay the shipping charges," Joseph

returned a short time later and found defendant "standing

outside" an automobile in the "parking lot" that served "the

business." Joseph approached defendant, declared, "I have a

delivery," and advised him that delivery charges totaled

$101.40. Without inquiry or hesitation, defendant paid Joseph

$102, accepted the parcels, placed them in the rear of the

vehicle and, after "look[ing] around," drove away.

Police followed and stopped and arrested defendant within a

few blocks. Related searches of defendant and the vehicle

yielded an assortment of counterfeit videotapes and compact

- 3 - discs, together with an "Underground Wholesale Price List" for

like articles. Further investigation disclosed defendant was

"involved in the business of selling goods . . . CDs etcetera"

from "the back of his truck."

"As a general rule of constitutional law, an officer

properly may make a warrantless arrest if he has probable cause

to believe the arrestee has committed a crime, and the officer

may search the individual incident to that lawful arrest."

Lovelace v. Commonwealth, 27 Va. App. 575, 582, 500 S.E.2d 267,

271 (1998) (citations omitted). "To establish probable cause,

the Commonwealth must show 'a probability or substantial chance

of criminal activity, not an actual showing' that a crime was

committed." Ford v. City of Newport News, 23 Va. App. 137,

143-44, 474 S.E.2d 848, 851 (1996) (citation omitted). "If an

officer has reason to believe that a person is committing a

felony in his presence by possessing contraband . . . , the

officer has probable cause to arrest the individual without a

warrant." Buck v. Commonwealth, 20 Va. App. 298, 304, 456

S.E.2d 534, 536-37 (1995). In assessing probable cause, "courts

will test what the totality of the circumstances meant to police

officers trained in analyzing the observed conduct for purposes

of crime control." Powell v. Commonwealth, 27 Va. App. 173,

177, 497 S.E.2d 899, 900 (1998) (citation omitted).

- 4 - Here, at the instant of arrest, police investigation

confirmed defendant possessed contraband, after personally

paying related delivery charges, accepting the illicit articles

in the parking area that served the delivery address, and

driving away. Such evidence clearly invested police with the

requisite probable cause to believe defendant knowingly

possessed the unlawful recordings.

II.

Defendant next contends the trial court erroneously

convicted him for violations of both Code § 59.1-41.3 and Code

§ 59.1-41.4. He maintains Code § 59.1-41.4 is merely a

"regulatory" statute intended to "allow law enforcement agents

to determine whether recorded materials were lawfully recorded,"

a "mechanism" to aid enforcement of Code § 59.1-41.3. Thus,

defendant reasons that failure to comply with Code § 59.1-41.4

constitutes criminal conduct only when read in conjunction with

Code § 59.1-41.3 1 and, therefore, is not a separate offense.

Defendant's argument ignores a plain reading of the relevant

statutes.

Code § 59.1-41.2, in pertinent part, declares it "unlawful

for any person" to "manufacture, distribute, transport or

wholesale recordings, or cause to be manufactured, distributed,

1 Defendant similarly argued before the trial court that Code § 59.1-43.3 simply "giv[es] teeth for [59.1-43].2."

- 5 - transported or sold as wholesale, or possess for such purposes

any article with the knowledge that the sounds are so

transferred, without the consent of the owner." 2

Code § 59.1-41.3 makes it "unlawful for any person to . . .

possess for the purpose of selling or renting any recorded

device that has been produced, manufactured, distributed, or

acquired in violation of any provision of this chapter."

(Emphasis added.)

Code § 59.1-41.4 requires that "every recorded device sold,

rented or transferred or possessed for the purpose of sale,

rental or transfer by any manufacturer, distributor, or

wholesale or retail merchant shall contain on its packaging the

true name and address of the manufacturer."

Thus, when defendant at once possessed recordings

proscribed by Code § 59.1-41.2 and packaged contrary to Code

§ 59.1-41.4, he violated two distinct provisions of Chapter 3.1.

Code § 59.1-41.3 imposes criminal liability upon the sale,

rental or related possessing of a "recorded device . . .

produced, manufactured, distributed or acquired in violation of

any provision of this chapter." (Emphasis added.) Accordingly,

defendant was culpable pursuant to Code § 59.1-41.3 for both

offenses.

2 The instant indictment specifically alleges conduct "in violation of Chapter 3.1 of Title 59.1 . . . ."

- 6 - III.

Lastly, defendant contends the Commonwealth failed to prove

beyond a reasonable doubt that he "was aware [the tapes] . . .

were in violation of the regulations for recorded materials."

Relying upon testimony of the "subtle distinctions" between

lawful and counterfeit packaging and recordings, defendant

insists the evidence did not establish the requisite "knowledge

that his business in any way violated the law."

However, defendant's argument before the trial court

embraced only the contention that "the Commonwealth has . . .

not proven the case that [he] had the intent to distribute or

sell these items." An argument presented before the trial court

does not preserve a different issue for appeal. See Floyd v.

Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978);

Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269,

272 (1997). Thus, because defendant only challenged below the

sufficiency of the evidence to prove the intent element of the

offense and not the knowledge component argued today, we decline

to address the issue. See Rule 5A:18. Moreover, the evidence

clearly established defendant, a vendor of "CDs etcetera,"

possessed numerous counterfeit recordings, all unlawfully

labeled and packaged, together with a related "price list," and

readily accepted the subject contraband, circumstances that

- 7 - belie innocent possession and negate invocation of the "good

cause" or "ends of justice" exceptions to Rule 5A:18.

Because we find no error in the instant convictions, we

affirm the court's finding that defendant violated the terms of

probation and revocation of the attendant suspended sentence.

Accordingly, we affirm the trial court.

Affirmed.

- 8 -