Melanie Sue Odell v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 10, 2022
• Docket: 0744214
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, AtLee and Senior Judge Clements UNPUBLISHED

Argued at Fredericksburg, Virginia

MELANIE SUE ODELL MEMORANDUM OPINION * BY v. Record No. 0744-21-4 JUDGE RICHARD Y. ATLEE, JR. MAY 10, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Judith L. Wheat, Judge

Helen Randolph, Assistant Public Defender (Elsa B. Ohman, Assistant Public Defender, on brief), for appellant.

Mason D. Williams, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

A jury convicted appellant Melanie Sue Odell of possession of LSD, in violation of Code

§ 18.2-250, and possession with intent to distribute cocaine, second or subsequent offense, in

violation of Code § 18.2-248. Odell challenges the sufficiency of the evidence, arguing the

evidence did not prove that she possessed either the LSD or the cocaine. She also contends the

evidence was insufficient to prove she had the intent to distribute. For the following reasons, we

affirm her convictions.

I. 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 at trial.” Gerald v. Commonwealth,

295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). In doing so,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. we discard any conflicting evidence and regard as true all credible evidence favorable to the

Commonwealth, including all inferences that may reasonably be drawn from that evidence. Id. at

473.

On January 18, 2018, officers from the Arlington County Police Department followed

Odell’s vehicle as part of an investigation. While following her, officers observed Odell make

several stops and interact with different individuals. They watched Odell park her car, get out of the

vehicle with a male passenger, and enter a residence. Odell had been in the residence for several

minutes when another vehicle arrived and parked in the middle of the street. Odell came out of the

residence and got into the second vehicle. After thirty to forty-five seconds, she hugged the driver,

got out, and went back into the residence. The second vehicle left and was stopped by other patrol

units; officers discovered $600 in one of the driver’s pockets and a total of $2,200. Approximately

five minutes after the other vehicle left, Odell and her passenger got in her vehicle and drove away.

Odell was the only female who entered her vehicle while it was under surveillance.

When officers stopped Odell’s vehicle, she was in the driver’s seat, and her male passenger

was in the front passenger seat. Officers arrested Odell and, during a search of her person, found “a

clear vial with a purple top that had a tiny bit of white residue inside” in her pants pocket. Officers

found a purse on the vehicle’s floor behind the center console, and it contained Odell’s Virginia

Identification Card and two credit cards, each with Odell’s name on them. Inside the purse, officers

found a Crown Royal bag that contained a digital scale and red and purple glassine baggies. There

was also an Arizona beverage can with a false top inside the purse. When the officers unscrewed

the false top, they discovered two separate substances inside the can, which they suspected were

cocaine and LSD. Subsequent laboratory analysis determined that the substances were indeed 13.87

grams of cocaine and 2.10 grams of LSD.

-2- According to the Commonwealth’s expert in street-level narcotics, fourteen grams of

cocaine was inconsistent with personal use because users typically buy a gram at a time, or at most

three and a half grams at once. The expert also testified that glassine baggies like the ones found in

the Crown Royal bag are typically used to package narcotics. The presence of the digital scale and

new baggies provided further evidence that the possession of cocaine was inconsistent with personal

use. According to the expert, bulk pricing for fourteen grams of cocaine in the Washington, D.C.

area was between $700 and $1,000.

At the close of the Commonwealth’s evidence, Odell moved to strike both charges. Odell

specifically noted that she was “not disputing what the expert testified to about the amount being

inconsistent with personal use.” Instead, she “focus[ed] on the element of possession,” arguing that

the Commonwealth had failed to prove she knowingly and intentionally possessed the drugs. Odell

argued that mere proximity to the drugs was not enough to establish her possession. The circuit

court denied the motion.

Odell then presented her case. Arlington Police Officer Fitzgerald testified that a male was

seated in the front passenger seat of Odell’s vehicle during the stop. When searching the passenger

side of the vehicle, Officer Fitzgerald found a Monster Energy drink can with a false lid that

revealed a hidden container inside. The Monster Energy can contained suspected marijuana and

suspected cocaine.

Odell renewed her motion to strike after the close of all the evidence, arguing that the

Commonwealth failed to establish that she possessed the drugs. The circuit court denied the

motion, finding that there were sufficient facts for the case to go to the jury. The jury convicted

Odell of possession of LSD and possession of cocaine with the intent to distribute. This appeal

follows.

-3- II. ANALYSIS

A. Intent to Distribute

Odell first argues that the circuit court erred in denying her motion to strike the possession

with intent to distribute charge because the Commonwealth failed to prove that she had the requisite

intent to distribute. That argument is not preserved for review.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “In order to preserve an

issue for appeal, ‘an objection must be timely made and the grounds stated with specificity.’”

McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v. Commonwealth,

2 Va. App. 619, 621 (1986)). “Not just any objection will do. It must be both specific and

timely—so that the trial judge would know the particular point being made in time to do

something about it.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v.

Commonwealth, 58 Va. App. 351, 356 (2011)).

Odell specifically stated in her initial motion to strike that “the element that is going to be

subject to this argument . . . would be the possession part.” Odell explained that she was “not

disputing what the expert testified to about the amount being inconsistent with personal use.

Instead, [she] want[ed] to focus on the element of possession.” In her renewed motion to strike,

Odell again argued only that the evidence failed to prove that she possessed the drugs, stating that

“[n]othing has been proven to show that [Odell] had any sort of dominion or control,” over the

items. Odell did not argue that the intent to distribute element had not been proved.1 Therefore,

1 Relying on Pitchford v. Commonwealth, No. 1582-01-1 (Va. Ct. App. Sept. 24, 2002), Odell argues that simply making the motion to strike and renewed motion to strike on both charges was sufficient to put the circuit court on notice that she was challenging the sufficiency of the evidence on both the possession element and the intent to distribute element. Pitchford does not stand for that proposition. In Pitchford, the appellant was charged with possession of -4- Odell did not preserve this issue.2 Accordingly, Rule 5A:18 bars our consideration of this argument

on appeal.

B. Constructive Possession

Odell argues that the circuit court erred in denying her motion to strike because the

Commonwealth failed to prove that she constructively possessed the drugs found in the purse.

Odell contends that the evidence demonstrated only that she was in proximity to the drugs, which is

not sufficient to prove constructive possession.

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

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

it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting

Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “[T]he relevant question is whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth,

278 Va. 190, 193 (2009)).

cocaine and charges involving possession of a firearm. Both the cocaine and the firearm were discovered in the same residence, and the Commonwealth had to prove that the appellant constructively possessed both items. The appellant’s argument that he did not have access to the house where the items were found was the same for both items, even if he focused primarily on the firearm. The trial court made clear that it considered and ruled on the argument for both the firearm and the cocaine. Thus, this Court considered the issue of constructive possession properly preserved for both charges. Here, intent to distribute and constructive possession are not the same argument or issue. Odell expressly stated that she was not disputing the intent to distribute evidence and that she was only arguing on the possession element. Moreover, our published case law makes clear that “[m]aking one specific argument on an issue does not preserve a separate legal point on the same issue for review.” Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc). Therefore, only the constructive possession issue is preserved for appeal.

2Odell does not invoke the good cause or ends of justice exceptions to Rule 5A:18, and the Court will not apply the exceptions sua sponte. Edwards, 41 Va. App. at 761. -5- Possession of drugs “may be actual or constructive.” Hall v. Commonwealth, 69

Va. App. 437, 448 (2018). “Constructive possession may be established by ‘evidence of acts,

statements, or conduct of the accused or other facts or circumstances which tend to show that the

defendant was aware of both the presence and the character of the substance and that it was

subject to [her] dominion and control.’” Id. (quoting Logan v. Commonwealth, 19 Va. App. 437,

444 (1994) (en banc)).

“Mere proximity to a controlled drug is not sufficient to establish dominion and control.”

Yerling v. Commonwealth, 71 Va. App. 527, 532 (2020) (quoting Drew v. Commonwealth, 230

Va. 471, 473 (1986)). In addition, “ownership or occupancy alone is insufficient to prove

knowing possession of drugs located on the premises or in a vehicle.” Burchette v.

Commonwealth, 15 Va. App. 432, 435 (1992). Nevertheless, these factors are probative of

possession and “may be considered in deciding whether an accused possessed the drug.”

Yerling, 71 Va. App. at 532. “[C]ircumstantial evidence is competent and is entitled to as much

weight as direct evidence provided that the circumstantial evidence is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt.” Pijor v. Commonwealth, 294 Va. 502,

512 (2017) (alteration in original) (quoting Dowden v. Commonwealth, 260 Va. 459, 468

(2000)). “While no single piece of evidence may be sufficient, the combined force of many

concurrent and related circumstances . . . may lead a reasonable mind irresistibly to a

conclusion.” Id. at 512-13 (alteration in original) (quoting Muhammad v. Commonwealth, 269

Va. 451, 479 (2005)).

Here, Odell occupied the car in which the drugs were found. Odell had been driving the

vehicle for five hours that day. The drugs were found in a purse on the floor behind the center

console, within reach of Odell in the driver’s seat. Although a male passenger was in the

vehicle, no other woman entered or exited the vehicle, and nothing connected the male passenger

-6- to the purse. See Hargraves v. Commonwealth, 37 Va. App. 299, 314 (2002) (holding that a

drawer used exclusively by the defendant for his personal belongings is evidence he exercised

dominion and control over its contents). The contents connected only Odell to the purse in

which the drugs were found; it contained Odell’s Virginia Identification Card and two credit

cards with her name on them.

Finally, it is well established that cocaine and other drugs are “commodit[ies] of

significant value, unlikely to be abandoned or carelessly left in an area.” Ervin v.

Commonwealth, 57 Va. App. 495, 517 (2011). Odell’s purse contained a substantial amount of

drugs and distribution paraphernalia, and the total value of the cocaine alone was between $700

and $1,000. The factfinder was permitted to infer that another person would not abandon those

items in Odell’s purse.

The combined force of the above circumstances supports the conclusion that Odell

constructively possessed the drugs found in her purse. Thus, the evidence was competent, not

inherently incredible, and sufficient to sustain Odell’s convictions. The circuit court’s judgment is

therefore affirmed.

Affirmed.

-7-