Elmer Nathaniel Adams v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 13, 2001
• Docket: 0138003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

ELMER NATHANIEL ADAMS MEMORANDUM OPINION * BY v. Record No. 0138-00-3 JUDGE RUDOLPH BUMGARDNER, III MARCH 13, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY J. Michael Gamble, Judge

(James J. Angel, on brief), for appellant. Appellant submitting on brief.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Elmer Nathaniel Adams of twenty-four

counts of distribution of cocaine, four counts of possession of

a firearm while in possession of cocaine, and one count of

carnal knowledge of an animal. The defendant was indicted for

six offenses of possession of a firearm while in possession of

cocaine with intent to distribute it, but two of the indictments

were dismissed. He contends the evidence was insufficient to

prove any of the four convictions of possession a firearm in

violation of Code § 18.2-308.4. Concluding the evidence was

sufficient in each instance, we affirm.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The defendant contends the evidence was insufficient to

prove he possessed a working firearm at the same time he

possessed cocaine with intent to distribute it. He relies on

the fact that no physical evidence of the firearms or the drugs

was introduced against him, and he argues the lay witnesses'

testimony was insufficient to prove the existence of drugs or a

working firearm.

The Commonwealth must prove that the defendant possessed

cocaine with intent to distribute it while simultaneously

possessing a firearm. The Commonwealth may do this without

introducing either the drug or the firearm. Users and addicts

may testify as to the nature of a drug, and the actual substance

traded need not be admitted into evidence. In Hill v.

Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989) (en banc),

neither the cocaine nor an analysis of it was admitted into

evidence, but circumstantial evidence was sufficient to prove

the nature of the illegal substance transferred. "Users and

addicts, if they have gained a familiarity or experience with a

drug, may identify it. Numerous courts have permitted lay

purchasers of drugs to testify as to the identification of drugs

after previous use has been demonstrated." Id. at 63, 379

S.E.2d at 136 (citations omitted).

In a similar manner, the Commonwealth can prove the

existence of a firearm without offering the tangible object as

evidence. In Taylor v. Commonwealth, 33 Va. App. 735, 738, 536

- 2 - S.E.2d 922, 923 (2000), the circumstances surrounding the

identification of the firearm provided sufficient evidence to

permit an inference that the firearm would function. The

context in which the object appeared gave meaning and definition

to the witness' observation and completed the portrayal of its

nature. No evidence suggested the weapon would not function,

and the context of the events permitted the reasonable inference

that the gun was real, that it functioned.

The four challenged convictions involved transactions

between the defendant and Gloria Adams, Michelle Benjamin,

Angela Haber, and Daniel Russell. "On appeal, 'we review the

evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492

S.E.2d 826, 831 (1997) (citation omitted).

Gloria Adams was the defendant's ex-wife who moved back

into his residence in July 1998. She started using crack

cocaine supplied by the defendant and recounted extensive drug

activity at his residence. Adams testified the defendant

possessed several weapons in the house including two handguns

and some loaded rifles. The defendant kept a gun on his person

at all times, carrying it in the pouch in which he carried his

marijuana, cocaine, and crack cocaine. On January 30, 1999,

after returning from what Adams thought was a cocaine purchase,

- 3 - the defendant placed his gun to her head, and told her "today is

the day."

Michelle Benjamin gave the defendant thousands of dollars

for crack and bartered silver, gold, radios, tools, and sexual

favors for it. She had smoked crack cocaine for five years and

was certain what she bought from the defendant was actually

crack cocaine. Benjamin testified she had observed the

defendant with firearms on several occasions. The

Commonwealth's Attorney asked her, "When he had the guns was it

at the same time he was giving you or somebody else cocaine?"

Benjamin responded, "Yeah. He always carried his gun." The

defendant once went to her house and threatened to kill her, or

a member of her family, if she did not pay the money she owed

him. He had a gun and held the bullet in his hand.

Angela Haber testified she had twice seen the defendant

with a gun. The first time, the defendant was at her house and

pulled out a black gun about "yea long" and laid it down. She

saw the defendant with the gun a second time when he gave her

and Debra Wilburn crack cocaine. On that occasion, she saw the

defendant with large pieces of crack that she estimated were

worth $1,000.

Daniel Russell purchased cocaine from the defendant. One

time, after he concluded a purchase from the defendant, someone

interrupted them. When the person became obnoxious, the

- 4 - defendant pulled out a three-eighty pistol and aimed it at the

person standing only two feet away.

A police officer testified the defendant had threatened to

shoot any policeman who entered his property. Adams

corroborated this prior threat to the police. She also

testified that after his arrest the defendant intended to kill

her and the six witnesses who had agreed to testify against him.

He also intended to "take [out] as many cops as he could" and

then he was going to commit suicide.

The Commonwealth proved the defendant sold crack cocaine

from his home over an eight-month period. A total of thirteen

witnesses recounted a sordid tale of drugs distributed for cash

or sexual favors in an atmosphere of threatened violence.

Throughout that time, the defendant possessed drugs for the

purpose of distributing them, and he possessed firearms at the

same time. Though the police found no drugs or weapons when

executing a search warrant at his residence, they did find

several types of ammunition.

The defendant essentially challenges the credibility of the

Commonwealth's witnesses. He argues they were self-professed

drug users, and several had criminal records. The credibility

of witnesses and the weight accorded their testimony are

determinations within the sole province of the fact finder.

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803

(1979), cert. denied, 444 U.S. 1103 (1980).

- 5 - While the defendant denied he possessed any guns or

weapons, the Commonwealth's evidence directly contradicted that

claim. The jury could infer the defendant's self-serving

statements were false explanations and designed to conceal his

guilt. Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d

865, 867 (1982); Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998).

Concluding the evidence was sufficient to convict on each

charge of possession of a firearm while in possession of cocaine

with the intent to distribute it, we affirm.

Affirmed.

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