Hetmeyer v. Commonwealth

448 S.E.2d 894, 19 Va. App. 103, 1994 Va. App. LEXIS 607

• Court: Court of Appeals of Virginia
• Decided: October 4, 1994
• Docket: Record No. 2315-92-1
• Status: Published

Opinions

Opinion

BRAY, J.

Gregory Orson Hetmeyer (defendant) was convicted by a jury of possession of cocaine and heroin with the intent to distribute. On appeal, he complains that the trial court erroneously admitted evidence of a dog’s response to currency discovered in defendant’s motel room and challenges the sufficiency of the evidence to support the convictions. We find no error and affirm the convictions.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). The jury’s verdict will not be disturbed unless plainly wrong or without evidence to support it. Id. 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. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

Similarly, in reviewing a trial court’s ruling on a suppression motion, we consider the evidence in the “light most favorable to . . . the prevailing party below,” the Commonwealth in this instance, and the decision of the trial judge will be disturbed only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). The record before us includes evidence adduced at both the trial and any suppression hearings. DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488 U.S. 985 (1988). To prevail on appeal, the defendant must “show . . . that the denial of [his] motion . . . constitute^] reversible error.” Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993).

While investigating illicit drug activity in the City of Virginia Beach, Detective Neal Thompson undertook surveillance of a local motel room. For several hours, no one was observed in or about the room, and Thompson, accompanied by Detective John Tosloskie and Thomas Sochor, an agent with the Immigration Service, decided to approach and knock at the door. In response, the closed curtains adjoining the door of the room “parted,” defendant “looked out,” and Thompson displayed his badge and identified himself as a police officer. “[H]olding the curtain open,” defendant moved his hand rapidly “from the dead bolt to the handle . . . as if he was having a problem with the locks.” Meanwhile, Thompson noticed two males “inside the motel room just running back and forth” and “around . . . one of the beds.”

After several minutes, defendant opened the door and admitted the officers. Defendant acknowledged that he had engaged the room and produced identification which indicated that he resided in a neighboring city. Detective Thompson advised the three occupants that he was conducting a narcotics investigation, and each agreed to a search of the room.

On the “first bed,” Thompson found a “bright yellow” AM/ FM cassette player with seven “individual little plastic bags” and two “large chunks” of crack cocaine and ten “packets” of heroin hidden in its battery compartment. Without objection, Thompson, an “expert in the area of narcotics investigation distribution,” testified that the cocaine was packaged in a manner and quantity indicative of distribution “on the street” and opined that the “large chunks of crack cocaine” were “not really something you’d try to sell on the street. It’s just too much.”¹ Thompson also noted that he had never seen anyone possess more than “[o]ne or two” packets of heroin “for themselves.”

A suitcase was also resting on the bed and contained property belonging to all three men and a “bundle” of $2900. The money was separated into two $1,000 lots and one $900 lot and tightly bound with rubber bands. According to Thompson, this packaging was consistent with the “usual” practice of drug dealers. The suitcase also contained a “razor knife[,] which drug dealers use to cut up big chunks [of cocaine] . . . into smaller little rocks for sale,” and an A.C. “adaptor” compatible with the cassette player. In addition, a “set of hand scales” and three digital pagers, all items Thompson related to drug distribution, were discovered in the room.

During questioning by Thompson, defendant described the suitcase as “mine,” “everybody’s,” a “community type” bag and claimed “some property” found in the case, including approximately $1500 of the cash which he attributed to “savings.” Defendant also claimed one of the pagers but denied knowledge of the drugs, stating that the cassette player was owned by “a guy[]” “not in the room,” although he was unable to recall the man’s name.

Thompson retained possession of the cash and, upon arrival at police headquarters, arranged with Officer George Ball, a “narcotics dog handler,” to provide a “drug dog ... to come up ... to run on the money.” Detective Tosloskie agreed to assist in this procedure and Thompson passed him the “bundle.” Tosloskie, as instructed by Ball, obtained five new interdepartmental envelopes, “stuffed paper towels in four envelopes,” placed the money in the fifth, and “laid them [all] in the hallway.” Ball then entered the hall with his dog, Doc, who, after walking past “at least three of the envelopes[,] . . . immediately upon reaching the envelope with the money in it[,] . . . attacked it with his paws and . . . teeth.”

Prior to trial, defendant moved the court to suppress the evidence of Doc’s reaction at the currency “lineup.” During the attendant hearing, Ball, an officer in the police K-9 Unit for over 24 years, testified that Doc was a “narcotics dog,” certified by the Virginia State Police following extensive joint training with Ball in 1988 and recertified annually thereafter in the detection of cocaine, heroin, marijuana, and “derivative” odors. Additionally, Doc was trained monthly by Ball in the aromatic search of “various items” under .diverse circumstances, and the two had investigated “over 447 cases” together. Ball could recall only a single “false alert” in the dog’s history, and Doc had established a detection accuracy of ninety-five to ninety-eight percent.

Ball estimated that the “majority” of his actual investigations with Doc during recent years involved the examination of currency for suspect odors, or “currency runs.” In such instances, Ball, as here, instructs persons assisting in the “run” to fill “at least four . . . envelopes” with “anything” to “make it look like it’s U.S. currency” and a fifth envelope with the “contaminated currency.” The envelopes are then placed “in the middle of the floor either in a line or a checkerboard pattern,” and Doc is released in a “find mode.” If he detects a targeted scent, Doc makes “a hit” and will “tear at the package.”

Ball and Doc have been recognized as “expert witness [es] in narcotics detection” by both state and federal courts, including courts of this Commonwealth. Without objection, Ball was offered and accepted by the trial court as an “expert in the area of dog handling and as a [sic] interpreter of his dog, Doc.”

During argument in support of his motion to suppress, defendant complained that the reliability of the currency “lineup” was compromised because the “control” envelopes did not contain substances with odors like those commonly “used in making ... cocaine”² and that evidence of the dog’s response would “unduly prejudice” him. The trial judge concluded, however, that these considerations “go[] to the weight of the evidence, not as to [its] admissibility,” and overruled defendant’s motion.

THE DOG

“It is well settled in Virginia that the opinion of an expert witness is admissible ‘where the jury, ... is confronted with issues’ that ‘cannot be determined intelligently merely from the deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and practical experience ... .’” Schooler v. Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992) (quoting Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56 (1979)). The “expert’s testimony is admissible not only when scientific knowledge is required, but when experience and observation in a special calling give the expert knowledge of a subject beyond . . . common intelligence and ordinary experience.” Hubbard v. Commonwealth, 12 Va. App. 250, 254, 403 S.E.2d 708, 710 (1991), aff'd, 243 Va. 1, 413 S.E.2d 875 (1992) (quoting Neblett, Adm’r v. Hunter, 207 Va. 335, 339, 150 S.E.2d 115, 118 (1966)). Manifestly, a jury of lay persons required the assistance of an expert to properly interpret and give appropriate probative value to Doc’s behavior in this instance.

It is equally “well established that the admissibility of expert testimony is within the sound discretion of the trial court, and that court’s decision will not be disturbed absent an abuse of discretion.” Patterson v. Commonwealth, 3 Va. App. 1, 11, 348 S.E.2d 285, 291 (1986). See also Toro v. City of Norfolk, 14 Va. App. 244, 252, 416 S.E.2d 29, 33 (1992). A challenge to an “expert’s . . . methods and determinations . . . , even by other experts, does not render inadmissible expert opinion based on those . . . methods and computations” but goes to the “weight of the evidence,” raising “factual questions to be determined by the jury.” Hubbard, 12 Va. App. at 255, 403 S.E.2d at 710.

A dog’s response to particular stimuli and the interpretations of such response by an expert was approved by the Supreme Court as substantive evidence against an accused in Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982).. There, as here, the witness qualified before the court as an expert in the “handling, and ‘reading’ ” of dogs trained in the identification and detection of specific odors. Id. at 226, 294 S.E.2d at 889. He testified that the dog was exposed to Epperly’s scent and subsequently led investigators along a “circuitous route” from the victim’s abandoned vehicle to the door of Epperly’s home. Id. at 226-27, 294 S.E.2d at 889. The Supreme Court reasoned that such

evidence is admissible in a criminal case after a proper foundation has been laid to show that the handler was qualified to work with the dog and to interpret its responses, that the dog was a sufficiently trained and proven tracker of human scent, that the dog was placed on the trail where circumstances indicated that the guilty party had been, and that the trail had not become so stale or contaminated as to be beyond the dog’s tracking capabilities.

Id. at 233, 294 S.E.2d at 893. The Court noted that “[t]he factors of staleness and contamination of the trail” were proper considerations for the jury “in connection with the weight to be given [the expert’s] testimony.”³ Id.", see also Price v. Commonwealth, 18 Va. App. 760, 764, 446 S.E.2d 642, 645 (1994).

Just as the dog’s “alert” on Epperly’s scent and the related pursuit of it to his residence were admissible as substantive evidence in that prosecution, we hold that expert testimony with respect to a dog’s reaction to the odor of narcotics is admissible when supported by a proper foundation. Such foundation must establish the appropriate training and reliability of the dog in the detection of specific drugs by odor and the witness handler’s expertise in interpreting the dog’s behavior, together with circumstances conducive to a dependable scent identification by the animal and a credible evaluation of its related behavior.

Here, Officer Ball was qualified, without objection, as an expert in handling Doc and interpretation of his reactions. Evidence regarding Doc’s certification, recertification, training regime, and near-perfect past performance was clearly sufficient to demonstrate the dog’s high degree of reliability. Tosloskie and Thompson, the only two officers to handle the money after its seizure and prior to the “lineup,” testified that the currency in issue did not come into contact with narcotics prior to Doc’s “alert,” and the evidence was uncontroverted that the “currency run” was conducted in accordance with procedures proven to produce accurate responses from the dog. Under such circumstances, the trial judge correctly ruled that defendant’s challenges to the protocols of the “lineup” went “to the weight of the evidence, not as to [its] admissibility,” and were appropriate factual considerations for the jury. Therefore, evidence of Doc’s reaction to the currency and Ball’s related interpretation was properly admitted into evidence.

However, even if otherwise admissible, defendant argues that the prejudicial effect of such evidence outweighed its probative value. This contention is also without merit.

Evidence that tends to establish a fact at issue is relevant and material and, therefore, admissible, if its probative value is not outweighed by any prejudicial effect. . . . Once evidence is determined to be relevant and material, “[t]he responsibility for balancing . . . probative value and prejudice rests in the sound discretion of the trial court,” and its decision “will not be disturbed on appeal in the absence of a clear abuse.”

Wilkins v. Commonwealth, 18 Va. App. 293, 297-98, 443 S.E.2d 440, 443 (1994) (en banc) (citations omitted). Evidence of Doc’s reaction to the currency permitted an inference that the money, portions of which belonged to defendant, had been in contact with the offending drugs. It thus connected defendant to the contraband and tended to establish his constructive possession of it, a fundamental element of the crimes in issue. The proof was, therefore, relevant, material, and highly probative and properly admitted into evidence by the court.⁴

SUFFICIENCY OF THE EVIDENCE

Lastly, defendant contends that the evidence is insufficient to support his convictions. In order to convict defendant under the indictments, the prosecution was required to prove that 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.” Wilkins, 18 Va. App. at 298, 443 S.E.2d at 444 (citation omitted). “Constructive possession may be shown by defendant’s acts, declarations or conduct which support the inference that the contraband was ‘subject to his dominion or control,’ ” id. (citation omitted), and need not be exclusive. Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 806 (1970); Wymer v. Commonwealth, 12 Va. App. 294, 300, 403 S.E.2d 702, 706 (1991). Defendant’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.’ ” Wilkins, 18 Va. App. at 298, 443 S.E.2d at 444 (citation omitted).

Here, defendant deliberately delayed admitting the police officers to the motel room while other occupants were scurrying about inside. The ensuing investigation disclosed that defendant, a local resident, had engaged the room. Narcotics were discovered secreted in an AM/FM cassette player, packaged, and in quantities consistent with distribution. Near the player, a single suitcase contained an adaptor for the cassette player and property claimed by defendant, including a large sum of cash, bundled as customary in the drug trade and emitting an odor of illicit drugs. Additionally, paraphernalia commonly utilized in drug distribution was found in the room.

Although none of these circumstances, standing alone, would have sufficiently proved that defendant possessed the drugs, the facts combined to support the finding that the narcotics discovered were subject to defendant’s informed “dominion and control.” See Hardy v. Commonwealth, 17 Va. App. 677, 682-83, 440 S.E.2d 434, 437 (1994); Johnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502, 504 (1991); Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc). Further, this evidence sufficiently established that defendant constructively possessed the narcotics with the intent to distribute them. See Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988); Monroe v. Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987); Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525 (1986).

Accordingly, we affirm the judgment of the trial court.

Affirmed.

Baker, J., concurred.

1 Thompson valued the packaged cocaine at $50 for each of the numerous rocks in the seven bags and $1400 for the two “chunks.”

2 Additional circumstances suggesting unreliability of the Ball/Doc evidence discussed in the dissent were not argued by defendant at trial, on brief, or orally before this Court.

3 Though apparently not an issue on appeal, there was also evidence in Epperly before the jury that the dog had identified the scent of the accused on one of six towels spread on the floor of an auditorium. Epperly, 224 Va. at 227, 294 S.E.2d at 889.

4 “ ‘[T]he court . . . is . . . always balancing the probative value of the evidence against the disadvantages (delay, confusion, prejudice, surprise, etc.) which may attend its admission. Each decision is made in light of the individual circumstances of the case, and the same evidence might well be admitted in one case and excluded in another because the balance struck between the factors is different in the two instances.’ ” Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987) (citation omitted).