Jerrod Sherrell Jackson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 17, 2003
• Docket: 0628023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements Argued at Salem, Virginia and by teleconference

JERROD SHERRELL JACKSON, A/K/A JEROME JACKSON MEMORANDUM OPINION * BY v. Record No. 0628-02-3 JUDGE JEAN HARRISON CLEMENTS JUNE 17, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG William W. Sweeney, Judge Designate

Andrew W. Childress, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Jerrod Sherrell Jackson was convicted in a bench trial of

assault and battery against a law enforcement officer, in

violation of Code § 18.2-57(C), possession of cocaine with intent

to distribute, in violation of Code § 18.2-248, and possession of

marijuana, in violation of Code § 18.2-250.1. 1 On appeal, Jackson

contends the trial court erred (1) in denying his motion to

suppress the evidence offered against him that was obtained by the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jackson was also convicted of assuming another name, in violation of Code § 18.2-504.1. He does not challenge this conviction on appeal. police in violation of his Fourth Amendment rights and (2) in

finding the evidence sufficient to prove he intended to distribute

the cocaine in his possession. Finding no error, we affirm the

convictions.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as are necessary to the parties' understanding of the

disposition of this appeal.

I. BACKGROUND

Under familiar principles of appellate review, we view the

evidence and all reasonable inferences fairly deducible from

that evidence in the light most favorable to the Commonwealth,

the party that prevailed below. See Dowden v. Commonwealth, 260

Va. 459, 461, 536 S.E.2d 437, 438 (2000); Weathers v.

Commonwealth, 32 Va. App. 652, 656, 529 S.E.2d 847, 849 (2000).

So viewed, the evidence presented in this case establishes

that, at approximately 11:50 p.m. on April 26, 2001, Lynchburg

City Police Officer Tom Childress received a "LYN-COM" police

dispatch alerting him to a report from Greenfield Security

regarding the location of a man for whom there was an

outstanding capias. LYN-COM confirmed that a capias for failure

to appear at a criminal proceeding was outstanding for the

person named by Greenfield Security. Childress testified he

could not remember the name of the wanted man, but the

- 2 - description he received from dispatch was of a black male, with

a stocky build, wearing dark clothes and a black stocking cap,

who had left the area served by Greenfield Security in the

backseat of a green Allied taxi, identified as cab number

eleven. According to dispatch, the taxi was "headed toward the

area of 2202 Memorial Avenue."

Responding to the area where the taxi was reportedly

headed, Officer Childress proceeded in his marked police car up

Stuart Street toward the intersection of Memorial Avenue and

Stuart Street. As he approached the intersection, Childress

observed a green Allied taxi sitting under a streetlight at the

intersection, approximately three houses away from 2202 Memorial

Avenue. He saw two people in the taxi, the driver and a black

male in the backseat. When the officer's headlights illuminated

the taxi's interior, Childress saw that the passenger had a

stocky build and was wearing dark clothing and a black stocking

cap. Childress saw the passenger look in the direction of 2202

Memorial Avenue, where two marked police cars were parked, and

then look directly at Childress. At that point, the taxi

proceeded down Stuart Street past Childress's vehicle and away

from 2202 Memorial Avenue. The driver of the taxi, who was

called as a witness for Jackson, testified that the taxi was

Allied cab number eleven.

Officer Childress turned his vehicle around and followed

the taxi. After going approximately three blocks, the taxi

- 3 - pulled into the parking lot of the Family Dollar store.

Childress pulled his vehicle into the lot and parked behind the

taxi. A second police officer pulled his vehicle into the

parking lot and parked beside the taxi.

Officer Childress got out of his vehicle, approached the

taxi, and informed the driver that he was checking information

that there was an outstanding warrant for the passenger and that

he would need to ascertain the passenger's identity. Childress

then approached the passenger, later identified as Jackson,

informed him of the report he had received from LYN-COM, and

asked him if he had any identification. Jackson told Childress

he did not have any identification on him. The officer then

asked Jackson to get out of the taxi, and Jackson complied.

When asked for his name and date of birth, Jackson told the

officer his name was Jerome Saunders and his date of birth was

February 26, 1972. Childress then asked Jackson his age, and

Jackson responded that he was twenty-six years old. Immediately

recognizing that Jackson's stated age was inconsistent with the

year of his birth, Childress informed Jackson that, while not

under arrest, he was no longer free to leave and would be

handcuffed until the police could verify his identity.

However, when the other officer present attempted to

handcuff him, Jackson spun loose, punched Officer Childress in

the face, and attempted to flee. Jackson was subsequently

subdued, placed under arrest for assaulting Childress, and

- 4 - searched incident to that arrest. On his person, the officers

found $140 in twenty-dollar bills, a bag containing 8.3 grams of

a green leafy material later determined to be marijuana, and a

second bag containing 1.871 grams of a white substance later

determined to be cocaine. No smoking device was found on his

person.

Later, at the magistrate's office with Jackson, Officer

Childress learned that Jackson was not the person identified by

Greenfield Security and dispatch as having an outstanding

capias.

At trial, Investigator Davidson was qualified as an expert

in narcotics trafficking. He testified that the cocaine found

on Jackson's person was packaged in a way typically used for

distribution, was "almost ten times" the amount of cocaine a

typical user of cocaine would possess, and had a "street value"

of approximately $250. Davidson also testified that a user

would typically have a pipe or papers to smoke the cocaine. He

added that cocaine was typically sold in twenty-dollar "rock

increments" and that those who purchased cocaine typically used

twenty-dollar bills to pay for it.

Jackson testified he used cocaine but was not a dealer. He

further testified he had "so much" cocaine on him that night

because he had just won $290 in the lottery and had used some of

his winnings to buy cocaine and marijuana for his personal use.

He did not have anything on him with which to smoke the drugs,

- 5 - he testified, because the police "pulled [him] over" before he

had the chance to get any "papers."

II. MOTION TO SUPPRESS

Jackson contends the police lacked a reasonable suspicion

that he was wanted on an outstanding capias. He claims his

actions and the informant's vague and general description did

not provide Officer Childress with sufficient information to

justify the investigatory detention. Therefore, Jackson argues,

his initial detention was unlawful and all evidence resulting

from that unlawful seizure was obtained in violation of his

Fourth Amendment rights and should have been suppressed. Thus,

Jackson concludes, the trial court erred in not suppressing the

evidence offered against him. 2

The Commonwealth concedes that Jackson was effectively

seized when he was informed that the police intended to compare

his identity to that of a particular person for whom a capias

had been confirmed. The Commonwealth contends, however, that

the information provided to Officer Childress by dispatch and

his observations of Jackson's actions after receiving that

information clearly justified a brief investigatory detention to

check Jackson's identity. Jackson's further detention, the

Commonwealth continues, was also justified when he gave the

2 At oral argument, Jackson waived the other suppression-related arguments included in his appellate brief. Accordingly, we do not address those arguments here.

- 6 - police obviously false information regarding his age and date of

birth. Thus, the Commonwealth concludes, the investigatory

stop, Jackson's ensuing arrest, and the seizure of the marijuana

and cocaine were proper. We agree with the Commonwealth.

When a motion to suppress is reviewed on appeal, we examine

the records of both the suppression hearing and the trial to

determine whether the evidence was lawfully seized. DePriest v.

Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542 (1987).

"In reviewing a trial court's denial of a motion to suppress,

'[t]he burden is upon [the defendant] to show that the ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (alterations in original) (quoting Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

"'Ultimate questions of reasonable suspicion and probable cause

to make a warrantless search' involve questions of both law and

fact and are reviewed de novo on appeal." Id. (quoting Ornelas

v. United States, 517 U.S. 690, 691 (1991)). However, "we are

bound by the trial court's findings of historical fact unless

'plainly wrong' or without evidence to support them and we give

due weight to the inferences drawn from those facts by resident

judges and local law enforcement officers." Id. at 198, 487

S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).

- 7 - Under well-established Fourth Amendment principles, "[t]he

police can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by

articulable facts that criminal activity 'may be afoot.'"

United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.

Ohio, 392 U.S. 1, 30 (1968)). An investigatory stop under Terry

"is a lawful stop designed to permit an officer with reasonable

suspicion of criminal activity to quickly confirm or dispel that

suspicion." Davis v. Commonwealth, 35 Va. App. 533, 539, 546

S.E.2d 252, 255 (2001) (citing Illinois v. Wardlow, 528 U.S.

119, 126 (2000)). "Actual proof that criminal activity is afoot

is not necessary; the record need only show that it may be

afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425

S.E.2d 77, 79 (1992). However, the justification for the

investigatory stop "must be based on something more than the

officer's 'inchoate and unparticularized suspicion or "hunch."'"

Ramey v. Commonwealth, 35 Va. App. 624, 629, 547 S.E.2d 519, 522

(2001) (quoting Terry, 392 U.S. at 27).

In determining whether a police officer had a reasonable

suspicion justifying an investigatory stop, "the courts must

consider 'the totality of the circumstances—the whole picture.'"

Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406

(1994) (quoting Sokolow, 490 U.S. at 8). We are further

mindful, in making that determination, that the police officer

may "view the circumstances confronting him in light of his

- 8 - training and experience, and he may consider any suspicious

conduct of the suspected person." James v. Commonwealth, 22

Va. App. 740, 745, 473 S.E.2d 90, 92 (1996).

Here, the record establishes that Officer Childress

received a report from dispatch that there was an outstanding

capias for a man who was the backseat passenger in a green

Allied taxi, identified as cab number eleven, heading for "the

area of 2202 Memorial Avenue." The man was described as a black

male, with a stocky build, wearing dark clothes and a black

stocking cap. Upon arriving, shortly after receiving the

dispatch, in the vicinity of 2202 Memorial Avenue, Childress

observed Jackson, a stocky black male, wearing dark clothes and

a black stocking cap in the backseat of a green Allied taxi,

identified as cab number eleven, located approximately three

houses away from 2202 Memorial Avenue. Childress saw Jackson

look in the direction of 2202 Memorial Avenue, where marked

police vehicles were parked. The officer then saw Jackson look

back at him. At that point, the taxi drove away from the

location.

Based on the totality of these circumstances, we conclude

that Officer Childress had a reasonable, articulable suspicion

that Jackson was the man who was wanted on the outstanding

capias. Not only did Jackson's physical characteristics and

clothing match the description provided by dispatch, Childress

observed Jackson in the vicinity of the address provided by

- 9 - dispatch in the backseat of a taxi matching the description

provided by dispatch. Childress's suspicion that Jackson was

the wanted man was further buttressed by Jackson's observable

interest in the indicated address and his leaving the area

immediately upon noticing Childress's approach.

Officer Childress's initial detention of Jackson was

therefore reasonable to allow the officer to confirm or dispel

his suspicion by checking Jackson's identity. Accordingly, that

brief investigatory detention was not in violation of Jackson's

Fourth Amendment rights.

Thereafter, when Jackson gave the officer obviously false

identifying information, Officer Childress was justified in

detaining him further while attempting to obtain additional

information. Once Jackson struck Childress in the face, the

officer had probable cause to arrest Jackson. Incident to that

arrest, the officers could properly conduct the search that

resulted in the discovery of the marijuana and cocaine on

Jackson's person. Hence, the trial court did not err in denying

Jackson's motion to suppress.

III. SUFFICIENCY OF THE EVIDENCE

Jackson next contends the evidence was insufficient to

prove he intended to distribute the cocaine in his possession.

We disagree.

When the sufficiency of the evidence is challenged on

appeal, we review the evidence "in the light most favorable to

- 10 - the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.

248, 250, 356 S.E.2d 443, 444 (1987). "In doing so, we must

discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may

be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335,

349, 494 S.E.2d 859, 866 (1998). We are further mindful that

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." Crawley v.

Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).

We will not disturb the conviction unless it is plainly wrong or

unsupported by the evidence. Sutphin v. Commonwealth, 1

Va. App. 241, 243, 337 S.E.2d 897, 898 (1985).

"Where an offense consists of an act combined with a

particular intent, proof of the intent is essential to the

conviction." Servis v. Commonwealth, 6 Va. App. 507, 524, 371

S.E.2d 156, 165 (1988). "Because direct proof of intent [to

distribute drugs] is often impossible, it must be shown by

circumstantial evidence." Id. "Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt." Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

- 11 - "However, the Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant." Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

"Whether an alternate hypothesis of innocence is reasonable is a

question of fact and, therefore, is binding on appeal unless

plainly wrong." Archer v. Commonwealth, 26 Va. App. 1, 12-13,

492 S.E.2d 826, 832 (1997).

Factors that may indicate the defendant intended to

distribute the illegal drugs in his possession include the

"[p]ossession of a quantity [of drugs] greater than that

ordinarily possessed for one's personal use," Iglesias v.

Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en

banc), "[t]he method of packaging of the controlled substance,"

Servis, 6 Va. App. at 524, 371 S.E.2d at 165, the quantity and

denomination of the cash possessed, see Welshman v.

Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998),

and "the absence of any paraphernalia suggestive of personal

use," id.

Here, the record contains ample evidence that Jackson

intended to distribute the cocaine in his possession. Jackson

possessed 1.871 grams of cocaine, consisting of three separate

rocks in three separate bags. He also had $140 in twenty-dollar

bills on his person. In addition, he had no smoking device on

his person. The Commonwealth's narcotics expert, Investigator

- 12 - Davidson, testified that the typical cocaine user purchased

cocaine in twenty-dollar "rock increments" and paid with

twenty-dollar bills. Davidson further testified that the

cocaine found on Jackson's person had a "street value" of

approximately $250 and was packaged in a manner typically used

for distribution. It was also, according to Davidson, nearly

ten times the amount of cocaine a typical user of cocaine would

possess. Davidson also testified that a mere user would

typically have a pipe or papers on him to smoke the cocaine.

Although Jackson testified at trial that he had just won

the lottery, had purchased the cocaine in his possession for

personal use, and had not had the chance before being detained

by the police to procure papers with which to smoke the cocaine,

the trial court was entitled, in assessing Jackson's credibility

and determining the weight to accord his testimony, to conclude

that he had given false testimony regarding his intended use of

the cocaine and that he had done so to conceal his guilt. See

Christian v. Commonwealth, 33 Va. App. 704, 716, 536 S.E.2d 477,

483 (2000) (en banc); Welch v. Commonwealth, 15 Va. App. 518,

525, 425 S.E.2d 101, 106 (1992).

We conclude, therefore, that the evidence presented by the

Commonwealth was sufficient to prove beyond a reasonable doubt

- 13 - that Jackson possessed the cocaine with the requisite intent to

distribute it.

Accordingly we affirm Jackson's convictions.

Affirmed.

- 14 -