Michael Tink Lane v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 9, 2022
• Docket: 1363211
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Humphreys, Athey and Callins Argued at Virginia Beach, Virginia

MICHAEL TINK LANE MEMORANDUM OPINION* BY v. Record No. 1363-21-1 JUDGE ROBERT J. HUMPHREYS NOVEMBER 9, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown, Judge

Meghan Shapiro, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.

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

Following a bench trial, the Circuit Court of the City of Chesapeake convicted the appellant,

Michael Tink Lane, of possession of a controlled substance, in violation of Code § 18.2-250,

misdemeanor possession of drug paraphernalia, in violation of Code § 54.1-3466, and felony failure

to appear, in violation of Code § 19.2-128. The circuit court sentenced Lane to a total of ten years

and twelve months’ incarceration, with eight years and twelve months suspended. On appeal, Lane

contends that the evidence was insufficient to sustain his conviction for possession of a controlled

substance and that the circuit court abused its discretion in imposing a sentence totaling ten years

and twelve months.

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

On December 18, 2018, Officer Marquis Sivels observed a maroon Pontiac sedan traveling

with expired registration stickers and four people inside of it. Officer Sivels initiated a traffic stop.

The vehicle dodged in and out of traffic before stopping in a parking lot, at which point its driver,

later identified as Derrick Culpepper, took off running. Officer Sivels chased after Culpepper on

foot, leaving the other occupants of the Pontiac unattended.

Jonathan Vose, a civilian on his lunch break, pulled into the parking lot right behind the

police car with flashing lights. Vose observed Officer Sivels chase after Culpepper, and then turned

his car to face toward the Pontiac. Vose saw the remaining occupants of the Pontiac exit the

vehicle. Alexander Dennos, the driver-side rear passenger and owner of the Pontiac, left the scene,

while the second rear passenger stood by a tree. Vose later testified that after stepping out from the

front passenger seat, Lane saw the police officer was gone and went into the passenger side of the

vehicle and removed a couple of items. According to Vose, Lane threw one item that looked like

tissue on the ground and told the only other passenger who remained at the scene, “Let’s go ahead

and get out of here.” A few seconds later, Vose saw Lane look around, then reach into the

passenger side of the vehicle again and throw another item on the ground before walking across the

street. Vose noticed that when Lane reached into the vehicle the second time, “the tissue had started

to come undone”; then it separated from the item it had been wrapped around as Lane walked away.

When Vose moved closer to the vehicle, he was able to see that the items Lane pulled from the

vehicle were the bottom part of a soda can that had been wrapped in tissue and a syringe.

Two more police cars arrived at the scene, and Officer Sivels returned with Culpepper. On

the ground near the vehicle, Officer Sivels observed the bottom of a soda can that had been cut off

and a hypodermic needle and syringe with liquid inside of it (hereinafter “syringe”). Officer Sivels

also noticed that both items appeared to have heroin residue on them. Officer Jennifer Land

-2- apprehended Lane at the Taco Bell across the street from the scene and brought him back to the

vehicle. Lane then explained to Officer Land that after Officer Sivels initiated the traffic stop,

Culpepper had “handed him the syringe and tin can and told him to throw it out the window.” Lane

admitted to Officer Land that he got out of the vehicle, stood for a second, then went back into the

vehicle and “got the syringe and tin can” and “placed it outside the vehicle before walking away.”

Lane was charged with possession of heroin and possession of drug paraphernalia. Lane did

not appear for his original trial date—he was present at the circuit court on the date of trial,

September 17, 2019, but left the courthouse before his case was called. He was charged with felony

failure to appear and arrested on a capias on January 18, 2020. At the trial, the Commonwealth

introduced testimony from Officers Sivels and Land and Vose, as well as a certificate of analysis

confirming the residue on the soda can bottom was heroin.1

During Lane’s case-in-chief, Dennos testified that he saw Culpepper throw “something” on

Lane’s lap after the Pontiac stopped. Lane testified that Culpepper handed him some “stuff” in a

“clear baggy” to throw out the window, which Lane refused to do. Lane further testified that the

item in the clear plastic baggy was “wrapped up in a bunch of tissue,” that he did not know what

was inside the bag, that he did not look in the bag, and that he did not take anything out of the bag.

Instead, Lane stated that he “picked [the bag] up and laid it by the tree so police officers could find

it” and that he “didn’t want them to find out where [he] was sitting” in the vehicle or get caught with

the bag. He testified, “I figured that it had to be bad. If [the driver] didn’t want it, I didn’t want it

either.” On cross-examination, Lane admitted that he has prior convictions for lying, cheating, or

stealing.

After considering the evidence, noting the totality of the circumstances, the circuit court

convicted Lane on all charges. During sentencing, Lane testified that in 2010 he sustained a

1 The syringe was not tested. -3- traumatic brain injury, causing him to “make bad decisions without thinking of the consequences.”

The circuit court found that Lane had thirty-two felony convictions, seventeen non-traffic

misdemeanors, and eleven probation violations, including some from before 2010. The circuit court

also noted that this was Lane’s eleventh conviction for failure to appear or contempt of court. The

circuit court noted that such a criminal record “would take you to the high end of the guidelines or

outside the guidelines,” but the circuit court stayed within the guidelines. The circuit court

sentenced Lane to five years’ incarceration for possession of heroin, with five years suspended, five

years’ incarceration for felony failure to appear, with three years and six months suspended, and

twelve months’ incarceration for possession of drug paraphernalia, with six months suspended. The

circuit court gave Lane credit for the time he served after his bond was revoked. This appeal

followed.

ANALYSIS

A. Possession of Controlled Substance

Lane challenges the sufficiency of the evidence to prove that he knowingly and

intentionally possessed a controlled substance. “In reviewing a challenge to the sufficiency of the

evidence to support a conviction, ‘the relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Melick v. Commonwealth, 69 Va. App. 122,

144 (2018) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “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)). “This familiar standard gives full play to the

responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence,

-4- and to draw reasonable inferences from basic facts to ultimate facts.” Raspberry v. Commonwealth,

71 Va. App. 19, 29 (2019) (quoting Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017)). “In

conducting our analysis, we are mindful that ‘determining the credibility of the witnesses and the

weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the

ability to hear and see them as they testify.’” Id. (quoting Miller v. Commonwealth, 64 Va. App.

527, 536 (2015)). “Thus, we will affirm the judgment of the trial court unless that judgment is

‘plainly wrong or without evidence to support it.’” Id. (quoting Kelly, 41 Va. App. at 257).

Code § 18.2-250 provides, “[i]t is unlawful for any person knowingly or intentionally to

possess a controlled substance . . . .” Heroin is listed as a Schedule I controlled substance. Code

§ 54.1-3446. “In order to convict a person of illegal drug possession, the Commonwealth must

prove beyond a reasonable doubt that the accused was aware of the presence and character of the

drug and that the accused consciously possessed it.” Yerling v. Commonwealth, 71 Va. App.

527, 532 (2020) (citing Jones v. Commonwealth, 17 Va. App. 572, 574 (1994)). Furthermore,

“‘the Commonwealth must also establish that the defendant intentionally and consciously

possessed the drug with knowledge of its nature and character. That knowledge is an essential

element of the crime.’” Christian v. Commonwealth, 59 Va. App. 603, 608 (2012) (quoting

Young v. Commonwealth, 275 Va. 587, 591 (2008)); see also Young, 275 Va. at 592

(“[P]ossession alone, without more, is insufficient to support an inference of guilty

knowledge[.]”). “Such knowledge may be shown by evidence of the acts, statements or conduct

of the accused.” Young, 275 Va. at 591. “Other circumstantial evidence may also support a

finding of a defendant’s knowledge of the nature and character of the substance in his

possession, such as the drug’s distinctive odor or appearance, or statements or conduct of others

in his presence that would tend to identify it.” Id.

-5- Lane relies on his testimony that Culpepper gave him a “clear baggy” and that he did not

see the contents of the bag, but he placed it outside of the vehicle for police to find. The record,

however, demonstrates that there was sufficient evidence for a rational trier of fact to conclude

that Lane possessed the drug with knowledge of its nature and character. No witness, other than

Lane, claimed that the items were stored in a bag. Even if the cut soda can bottom was in a bag

initially, the testimony of Vose and the officers supports that Lane removed it from the bag

before he placed it on the ground and it was not covered in a way that completely concealed its

distinctive characteristics. Vose observed Lane retrieve the soda can bottom, then wrapped in

tissue, from the inside of the vehicle. Without anyone removing the tissue, it separated from the

soda can bottom while Lane retrieved the syringe from the vehicle and began to walk away from

the scene. When Officer Sivels returned to the scene, he saw the soda can bottom and “knew,

obviously, what it was”—he could tell the can was burnt and appeared to have heroin residue on

the inside. That Lane placed the syringe on the ground with the burnt soda can suggests that he

knew the items belonged together. At the scene, Lane told Officer Land that he “got the syringe

and tin can” and “placed it outside the vehicle before walking away.” Lane’s removal of the soda

can bottom and syringe from the vehicle, considered with his fear of being caught with them,

flight from the scene of the stop, and credibility issues, were sufficient for the circuit court to

conclude that Lane was aware that the soda can bottom contained a controlled substance.

Lane also complains that the circuit court’s finding that he knew the object contained

something “illegal” and “contraband” falls short of a finding that he knew the object contained a

“controlled substance.” We have explained, however, that “[w]hen the illegal nature of the

substance is apparent—as it is here—that circumstance supports a finding of the defendant’s

guilty knowledge of the contraband he possesses.” Christian, 59 Va. App. at 611.

-6- Lane argues that the circuit court made an impermissible “inference upon an inference,”

by first inferring that he knew the items were “contraband” and then inferring that he knew the

contraband was a “controlled substance.” We disagree. “[A]ll facts proved in a case, whether by

direct or circumstantial evidence, ‘may serve as the basis from which further inference of fact

may be drawn.’” Johnson v. Commonwealth, 15 Va. App. 73, 77 (1992) (quoting Chesapeake &

Ohio Ry. Co. v. Ware, 122 Va. 246, 257 (1918)). “[T]he evidence presented must establish a fact

. . . before that fact may serve as a basis for inference.” Id. Here, Lane admitted that he knew

the items he removed from the car were “bad.” The circuit court considered the totality of the

circumstances which support a finding that Lane knew the burnt soda can bottom contained a

controlled substance; it did not rely on inferences “unsupported by the evidence” or that are

“extremely attenuated.” Id.

Notwithstanding his knowledge of the heroin, Lane argues that the circuit court erred by

finding that he intended to possess the heroin because the evidence shows that he removed it

from his possession once it was thrown onto his lap and moved it “to a clearly visible location

for the approaching authorities to find.”2 The circuit court “was at liberty to discount [Lane’s]

self-serving statements as little more than lying to conceal his guilt and could treat such

prevarications as affirmative evidence of guilt.” Sierra v. Commonwealth, 59 Va. App. 770, 784

(2012) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 581 (2010)). Furthermore,

Lane’s own testimony indicates that his motive for moving the heroin was not to assist law

enforcement, but rather because he “didn’t want them to find out where [he] was sitting” or get

2 Lane adds that his physical possession of the items was “momentary and fleeting.” However, “[p]hysical possession giving the defendant ‘immediate and exclusive’ control [of a controlled substance] is sufficient.” Gillis v. Commonwealth, 215 Va. 298, 301-02 (1974). “The duration of the possession is immaterial[.]” Id. at 302. -7- caught with it. The circuit court was not plainly wrong in finding that Lane intended to possess

the heroin when he removed it from the vehicle.

“By finding a defendant guilty . . . the factfinder has found by a process of elimination

that the evidence does not contain a reasonable theory of innocence.” Ray v. Commonwealth, 74

Va. App. 291, 308 (2022) (quoting Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017)).

“The rejection of a hypothesis of innocence ‘is binding on appeal unless plainly wrong . . . .’”

Ervin v. Commonwealth, 57 Va. App. 495, 519 (2011) (en banc) (quoting Archer v.

Commonwealth, 26 Va. App. 1, 13 (1997)). For the foregoing reasons, we will not disturb the

circuit court’s ruling convicting Lane of possession of a controlled substance.

B. Sentencing

Lane argues that the circuit court abused its discretion by sentencing him to a total

sentence of ten years and twelve months for minor criminal conduct because the sentence failed

to account for mitigating factors, including his 2010 traumatic brain injury. “We review the trial

court’s sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011).

“Criminal sentencing decisions are among the most difficult judgment calls trial judges face.”

Du v. Commonwealth, 292 Va. 555, 563 (2016). “Because this task is so difficult, it must rest

heavily on judges closest to the facts of the case—those hearing and seeing the witnesses, taking

into account their verbal and nonverbal communication, and placing all of it in the context of the

entire case.” Id. “A Virginia trial court ‘clearly’ acts within the scope of its sentencing authority

‘when it chooses a point within the permitted statutory range’ at which to fix punishment.” Id. at

564 (quoting Alston v. Commonwealth, 274 Va. 759, 771 (2007)). “Consequently, ‘when a

statute prescribes a maximum imprisonment penalty and the sentence does not exceed that

maximum, the sentence will not be overturned as being an abuse of discretion.’” Id. (quoting

Alston, 274 Va. at 771-72).

-8- The weight to assign to any mitigating factors Lane presented at sentencing was within the

circuit court’s purview. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). Balanced

against Lane’s mitigation evidence were substantial factors in aggravation. The circuit court found

that Lane had a long criminal history, much of which accumulated before his claimed traumatic

brain injury. Moreover, the majority of the active incarceration the circuit court imposed in its

sentence was for Lane’s felony failure to appear—the circuit court noted that Lane’s record includes

numerous failure to appear convictions, dating back to 1988, well before his claimed traumatic brain

injury.

The sentences the circuit court imposed were within the ranges set by the legislature. As

Lane’s sentence did not exceed the maximum penalties set forth by statute, it will not be

overturned as an abuse of discretion. Du, 292 Va. at 564.

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.

-9- Callins, J., concurring in part, dissenting in part.

There is no doubt that Lane physically possessed a cut up tin can that contained heroin

residue. But the conviction can only stand if the Commonwealth proved beyond a reasonable

doubt that Lane was aware he possessed a controlled substance. See Yerling v. Commonwealth,

71 Va. App. 527, 532 (2020). Mindful of the standard of review, I must conclude that, even after

viewing the evidence in the light most favorable to the Commonwealth, no evidence supports the

trial court’s finding that Lane knew the can bottom contained a controlled substance.3 See

Melick v. Commonwealth, 69 Va. App. 122, 144 (2018). Thus, I would reverse and vacate the

conviction for possession of a controlled substance in violation of Code § 18.2-250.

The facts establish that Lane knew he was possessing something illegal when he held the

can bottom wrapped in tissue. Lane admitted that he knew he was holding something “bad” and

that he did not want to get caught with it. A witness saw Lane remove the tissue-wrapped can

bottom and syringe from the car. On those facts, the majority holds that because the illegal

nature of the object was “apparent” to Lane, he must have known that he possessed an object

containing a controlled substance. I disagree because possession of an illegal object and

possession of a controlled substance are not always the same. A person can illegally possess

drug paraphernalia without possessing a controlled substance.

The Commonwealth’s theory of the case relied on establishing that Lane saw and

recognized the drug residue in the can bottom. At trial, the evidence established that the can

bottom was wrapped in a tissue while Lane was holding it and that the tissue around the can

bottom separated from the can only after Lane had placed it on the ground and while he was

3 The liquid in the syringe was never tested to determine whether it was a controlled substance, so the trial court could not have based its finding on the syringe. On appeal, the Commonwealth urges us to find that the liquid in the syringe was a controlled substance. But it is not our role to make factual determinations. See Harris v. Commonwealth, 39 Va. App. 670, 676 (2003). - 10 - retrieving the syringe and walking away from the car. The majority found it notable that, after

the tissue separated from the can, an officer could tell that the can was burnt and contained drug

residue. But the Commonwealth never proved that Lane looked at the can bottom after the tissue

separated from it, and that fact would be necessary to connect the officer’s observations to an

inference that Lane also identified the drug residue. See Case v. Commonwealth, 63 Va. App.

14, 22 (2014) (“The fact finder . . . is entitled to draw inferences from proved facts . . . .”).

Even viewing the evidence in the light most favorable to the Commonwealth, the

evidence does not establish that final link. It does not show, nor tend to show, that Lane knew

the can bottom contained drug residue because the only proven facts established that the can was

wrapped in a tissue the entire time Lane possessed it. The trial court could not have found that

the residue was apparent to Lane based on an officer’s testimony that, once the tissue separated

from the can, the drug residue was “obvious” to the officer.4 And we are not bound by findings

unsupported by the evidence. See Green v. Commonwealth, 72 Va. App. 193, 199 (2020).

Because the Commonwealth did not present other evidence to show that Lane knew the

can bottom contained drug residue, I must conclude that the evidence was insufficient to show

that Lane knowingly possessed a controlled substance in violation of Code § 18.2-250. Without

his knowledge of his possession of a controlled substance, Lane could not intend to possess the

controlled substance, and thus Lane could not have violated Code § 18.2-250. I respectfully

dissent from that portion of the majority’s ruling.

I concur with the majority’s conclusion that Lane’s sentences for his other two charges were

not an abuse of discretion.

4 There is nothing in the record establishing Lane had the knowledge, ability, or expertise to identify a controlled substance. - 11 -