Jered Cody Pope, s/k/a Jared Cody Pope v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 14, 2022
• Docket: 0654212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Annunziata, Frank and Petty UNPUBLISHED

JERED CODY POPE, S/K/A JARED CODY POPE MEMORANDUM OPINION* v. Record No. 0654-21-2 PER CURIAM JUNE 14, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY Kimberley S. White, Judge

(John C. Marsden, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant Attorney General, on brief), for appellee.

Counsel for Jered Cody Pope, s/k/a Jared Cody Pope filed a brief on his behalf accompanied

by a motion for leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744

(1967). Initially, Pope filed a pro se supplement to his counsel’s Anders brief with additional

assignments of error. Pope has since moved this Court to withdraw his supplemental pleading and,

instead, relies upon his counsel’s brief. After examining the briefs and record in this case, we affirm

the trial court’s judgment. We unanimously hold that oral argument is unnecessary because “the

appeal is wholly without merit.” See Code § 17.1-403(ii)(a); Rule 5A:27(a).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,

73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).

On August 8, 2019, Charlotte County Sheriff’s Deputy R. Kolich and Farmville Police

Officer B. Paulette utilized a confidential informant, R. Routt, Jr., to execute a controlled buy of

methamphetamine from appellant. Appellant and Routt had been “real good friends” for a couple of

years. Prior to the buy, Kolich and Paulette met with Routt at a designated meeting site, searched

his person, and provided him with an audio transmitter and $400. Routt then departed the meeting

site with undercover Special Agent M. Robertson. Robertson drove Routt to appellant’s house in an

unmarked police vehicle. Kolich and Paulette followed, monitoring the transaction in real time.

When they arrived at appellant’s house, Routt exited the vehicle, approached appellant, purchased

methamphetamine, and returned to the vehicle. Robertson then drove Routt back to the meeting

place, where Routt turned over plastic bags that contained seven grams of methamphetamine. The

officers searched Routt again, he did not have any contraband, and he no longer had $400. The

drug transaction was captured on video, which depicted appellant weighing out methamphetamine

and placing it in a bag.1

On August 19, 2019, Kolich again utilized Routt to execute a controlled purchase of

methamphetamine from appellant. Kolich and Special Agent J. Lacks met Routt and Routt’s uncle

Jamie2 at a predetermined location, where Lacks searched Routt, Jamie, and Jamie’s car. Kolich

1 At the conclusion of the February 10, 2021 trial, appellant changed his not guilty plea to guilty for distributing methamphetamine to Routt on August 8, 2019. He does not challenge that conviction on appeal. 2 Routt’s uncle Jamie was paid $70 to drive Routt, who did not have a driver’s license, to the controlled buy. Jamie was not working off pending charges. -2- provided Routt with an audio transmitter and $400. Jamie then drove Routt to appellant’s residence

where the controlled purchase was expected to take place. Kolich and Lacks followed them and

were “listening to the audio wire.” Appellant was not home. Routt spoke with an unknown male at

appellant’s house for about eight minutes, before finding out that appellant was at a different

location. Kolich noted that they were discussing drugs, but nothing about the conversation

suggested that they engaged in a drug transaction, and Routt denied purchasing any drugs at that

time.3 Routt returned to Jamie’s vehicle, and they made their way to appellant’s location—the

home of another drug user. Kolich conceded that the audio captured the voices of other people who

were present at the house, but he testified that Routt did not interact with anyone except appellant.

The drug buy took place in Jamie’s vehicle. Appellant gave Routt a black bag and a scale. Routt

told appellant he would pay $400 “for a quarter.” Routt removed a baggie containing

methamphetamine from the black bag, weighed out seven grams on the scale, and then returned the

black bag and the scale to appellant. Routt gave appellant $400.

Back at the meeting location, Routt gave Kolich the methamphetamine. As before, the

officers searched Routt, Jamie, and Jamie’s vehicle upon their return. They did not find any

contraband, and Routt no longer had any of the buy money.

At the time of trial, Routt had committed, but not been charged with, felony offenses related

to drugs and a weapon, and he was on felony probation. Routt testified that he was not promised

anything from the Commonwealth in exchange for his testimony, but he was “looking to receive

whatever benefit” he could get from it. Routt understood that if he did not testify truthfully, he

could “get the most.” Routt also admitted that he was under the influence of methamphetamine

when he conducted the controlled buys, but he was not intoxicated to the extent that it affected his

3 Jamie testified at trial that Routt did not conduct a transaction at appellant’s house. -3- recollection. Finally, Routt admitted that he used a smart phone to record the transactions and knew

“how not to reveal something on the camera if [he] didn’t want it to be seen.”

Appellant testified at the February 10, 2021 bench trial.4 He admitted to selling drugs to

Routt on prior occasions, including on August 8, and he admitted to being present at the August 19

drug transaction. However, he denied selling drugs to Routt on August 19, 2019, and, instead,

testified that he wanted to purchase marijuana from Routt.

On October 11, 2019, Kolich utilized a different confidential informant, A. Robertson, to

conduct a controlled buy from appellant. Robertson had pending charges for possessing

methamphetamine and was hoping to get as much credit as she could “to get out of trouble.” Kolich

met Robertson at a designated meeting location and searched her pockets, her shoes, her socks, and

her pocketbook to ensure she did not have any contraband. Agent Lacks searched her car. Kolich

provided Robertson with video equipment, an audio transmitter, and $100. Robertson then drove to

appellant’s house, where she exited the vehicle and entered the residence. Appellant was not

present, but she spoke with a man there by the name of Eddie. Robertson and Eddie spoke for about

thirty minutes, and Kolich listened to their conversation. They did not discuss anything that

sounded “narcotics related,” and there was no talk about money exchanging hands.5 Robertson

called appellant to find out where he was, and he told her to come to a different location. Robertson

left appellant’s house and started to drive to his location. Kolich and Lacks followed her for a while

until she got lost. Robertson drove around for approximately an hour, but she maintained contact

with the officers by cell phone. Eventually, Robertson arrived at her destination and appellant

4 The trial took place on two separate dates. Appellant was tried on February 10, 2021, for the August 8 and August 19 dates of offense, and he was tried on March 17, 2021, for the October 11 date of offense. Judge Kimberley S. White presided over both trials. Appellant did not testify at the second trial. 5 Robertson denied at trial that she purchased drugs from Eddie. -4- entered her vehicle. They drove to an apartment complex in Keysville where appellant got out of

the car, entered the apartment complex, and then returned with a gram of methamphetamine.

Appellant gave Robertson the drugs in exchange for $90. Robertson then dropped appellant off

behind a nearby store and returned to the meeting location. Kolich and Lacks followed her, noting

that she did not stop anywhere along the way. Back at the meeting site, Robertson gave the

narcotics and $10 to Kolich. The officers then searched Robertson, and her car, and found no

contraband.

The trial court found appellant guilty of all three offenses. This appeal followed.

ANALYSIS

Appellant argues that the evidence was insufficient to prove he distributed

methamphetamine to Routt on August 19 and to Robertson on October 11, because Routt and

Robertson, the main sources of the evidence against him, were not credible. In support of his

assertion, appellant stresses that both informants expected consideration for their testimony, that

both informants had an opportunity to buy drugs from another source on each date of offense, that

both informants were knowledgeable about how to conceal their actions on the videorecording, and

that Robertson was not properly searched. He concludes “no rational trier of fact could have

believed them and concluded that [appellant] was guilty.” We disagree.

“On review of the sufficiency of the evidence, ‘the judgment of the trial court is presumed

correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’”

Ingram v. Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va.

450, 460 (2018)). “[W]e consider the evidence presented at trial in the light most favorable to the

Commonwealth, the prevailing party below.” Vay v. Commonwealth, 67 Va. App. 236, 242 (2017)

(quoting Smallwood v. Commonwealth, 278 Va. 625, 629 (2009)). “This principle requires us to

‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true

-5- all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.’” Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015) (quoting Parks v.

Commonwealth, 221 Va. 492, 498 (1980)). “If there is evidentiary support for the conviction, ‘the

reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from

the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth, 69 Va. App.

149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).

Additionally, witness credibility “is within the exclusive province of the [fact finder], which

has the unique opportunity to observe the demeanor of the witnesses as they testify.” Dalton v.

Commonwealth, 64 Va. App. 512, 525 (2015) (quoting Lea v. Commonwealth, 16 Va. App. 300,

304 (1993)). “When the law says that it is for triers of the facts to judge the credibility of a witness,

the issue is not a matter of degree.” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011)

(quoting Swanson v. Commonwealth, 8 Va. App. 376, 379 (1989)). “[T]he trier of fact is free to

believe or disbelieve, in whole or in part, the testimony of any witness.” Rams v. Commonwealth,

70 Va. App. 12, 38 (2019) (quoting Carosi v. Commonwealth, 280 Va. 545, 554-55 (2010)). “[I]f

reasonably fairminded men may differ as to the conclusions of fact to be drawn from the evidence,

or if the conclusion is dependent upon the weight to be given the testimony, in all such cases the

verdict of the [fact finder] is final and conclusive and cannot be disturbed” on appeal. Shumate v.

Mitchell, 296 Va. 532, 550 (2018) (quoting Gilliam v. Immel, 293 Va. 18, 24 (2017)).

The evidence presented at trial sufficiently supported the convictions. Indeed, appellant

admitted that he gave seven grams of methamphetamine to Routt on August 8, 2019, in exchange

for $400, and he conceded that he regularly sold Routt drugs. On August 19, 2019, Routt purchased

another seven grams of methamphetamine in exchange for $400, the same quantity of drugs for the

same amount of money as on August 8. The exchange was captured on video and audio transmitter.

Although appellant’s face was not caught on tape, he admitted that he was present during the

-6- transaction. Officers searched Routt, Jamie, and Jamie’s car before and after the drug transaction

and found no contraband. Also, after the transaction, Routt no longer had $400. These facts

provided sufficient evidence upon which the trial court could conclude that appellant distributed

methamphetamine to Routt on August 19.

With respect to the October 11 transaction, Robertson testified that appellant entered her car

and Robertson drove him to an apartment complex, where he secured a gram of methamphetamine

and sold it to her for $90. The transaction was caught on video and, although appellant’s face is not

clear, Kolich recognized his voice. Officers searched Robertson and her car before and after the

transaction and found no contraband. After the transaction, Robertson had only $10 of the $100

given her by police. Robertson’s testimony, together with the video surveillance and the audio

transmitter, sufficiently proved that appellant distributed methamphetamine to Robertson on

October 11.

We are not persuaded by appellant’s assertion that Routt and Robertson were not credible.

The Commonwealth informed the trial court that Routt and Robertson were working for the police

to assist with pending, or possible criminal charges, and that they would get credit for their

testimony. The trial court was also apprised of their respective criminal histories. Noting that

almost every case involving a confidential informant raises “credibility issues,” the trial court

resolved those credibility issues in favor of the Commonwealth. “When ‘credibility issues have

been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be

disturbed on appeal unless plainly wrong.’” Towler, 59 Va. App. at 291 (quoting Corvin v.

Commonwealth, 13 Va. App. 296, 299 (1991)). “[T]his Court must accept ‘the trial court’s

determination of the credibility of witness testimony unless, as a matter of law, the testimony is

inherently incredible.’” Lambert v. Commonwealth, 70 Va. App. 740, 759 (2019) (quoting Nobrega

v. Commonwealth, 271 Va. 508, 518 (2006)). “[T]his Court cannot say a witness’ testimony is

-7- inherently incredible unless it is ‘so contrary to human experience as to render it unworthy of

belief.’” Id. (quoting Johnson v. Commonwealth, 58 Va. App. 303, 315 (2011)). The mere fact that

Routt and Robertson were seeking to assist themselves in their own respective criminal cases does

not, as appellant suggests, render their testimony inherently incredible or so contrary to human

experience as to render it unworthy of belief. The trial court was aware they expected to gain

something from their testimony and still believed them. We do not disturb the trial court’s ruling on

appeal.

Equally unavailing are appellant’s assertions that Routt and Robertson might have

purchased the drugs from someone else, that Robertson was not properly searched, and that the

informants misused the video equipment. The record does not support these contentions. Routt

spoke with someone for eight minutes at appellant’s house and, while the two discussed drugs, there

was no indication they engaged in a drug transaction. In fact, the person Routt spoke with

complained because his drugs were stolen, and Routt still had $400 when he purchased the

methamphetamine from appellant shortly thereafter. Robertson spoke with Eddie for thirty minutes

at appellant’s house, but they did not discuss drugs and there was no exchange of money.

Robertson still had $100 for her controlled purchase. Both informants kept in contact with the

officers, who were monitoring them in real time. Moreover, the record shows that Robertson was

properly searched. In fact, Lacks testified that he searched her pockets, her socks and shoes, the

outside of her clothes, her pocketbook, and her car, and found no contraband. Finally, the record

fails to prove that Routt or Robertson deliberately misused the video and audio transmitter.

In sum, the totality of the evidence supports the trial court’s finding that appellant sold

methamphetamine to Routt on August 19 and to Robertson on October 11, 2019. It was within the

trial court’s discretion to rule on the credibility of the witnesses and to draw conclusions from the

proven facts. The convictions will stand.

-8- CONCLUSION

We affirm the trial court’s judgment and grant the motion for leave to withdraw. See

Anders, 386 U.S. at 744. This Court’s records shall reflect that Jered Cody Pope, s/k/a Jared

Cody Pope is now proceeding without the assistance of counsel in this matter and is representing

himself on any further proceedings or appeal.

Affirmed.

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