Ray Anthony Hulett v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 9, 1999
• Docket: 0328984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges Argued at Alexandria, Virginia

RAY ANTHONY HULETT MEMORANDUM OPINION * BY v. Record No. 0328-98-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 9, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA John E. Kloch, Judge

Jonathan D. Westreich for appellant.

Ruth Morken McKeaney, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Ray Anthony Hulett ("appellant") challenges his bench trial

conviction for distribution of a controlled substance under Code

§ 18.2-248. Appellant contends the evidence was insufficient to

prove beyond a reasonable doubt he distributed cocaine. We

disagree and affirm his conviction.

When considering the sufficiency of the evidence on appeal

of a criminal conviction, we consider the evidence in the light

most favorable to the Commonwealth and grant to the evidence all

reasonable inferences fairly deducible therefrom. Brooks v.

Brooks, 15 Va. App. 407, 414, 424 S.E.2d 566, 571 (1992). "An

appellate court must discard all evidence of the accused that

conflicts with that of the Commonwealth and regard as true all

credible evidence favorable to the Commonwealth and all fair

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. inferences reasonably deducible therefrom." Lea v. Commonwealth,

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). The judgment

of a trial court sitting without a jury is entitled to the same

weight as a jury verdict and will not be disturbed on appeal

unless it appears such judgment is plainly wrong or without

evidence to support it. Myrick v. Commonwealth, 13 Va. App. 333,

339, 412 S.E.2d 176, 179 (1991).

I.

FACTUAL BACKGROUND

During the day of August 28, 1997, Officer Diane Gittens was

conducting a surveillance of the premises of 44 East Reed Street,

Alexandria, for drug activity. Using a scope, Gittens observed

two individuals, known as Mr. Hector and Ms. Minor Bay, approach

the fenced yard of 44 East Reed and begin talking with appellant,

who was seated in a chair on the porch of the residence

approximately 15 feet away. Appellant rose from his chair and

approached Hector and Bay. Bay handed appellant an undetermined

amount of cash. After receiving the money, appellant returned to

his chair, sat down, and retrieved from underneath the chair, a

clear sandwich bag containing a white substance Gittens believed

to be cocaine. Appellant took the bag into the residence,

reappeared shortly without the bag, and gave two unpackaged white

rocks to a man named Haley, who was standing in the yard. Haley

approached Hector and Bay and handed one rock to each of them.

- 2 - Hector and Bay left, following separate routes after

receiving the rock-like substances. Hector held his rock in his

right hand and began walking west on the north side of East Reed

Avenue, where he met an unidentified male dressed in a bright

orange T-shirt. As Hector began walking away, Gittens called for

other officers to arrest Hector for possession of a controlled

substance, giving a description of both Hector and the

unidentified individual in the orange T-shirt. Both individuals

continued to walk west on East Reed until they reached its

intersection with Commonwealth Avenue at the end of the block.

At the intersection, they crossed to the south side of East Reed.

The men left Gittens' view "as they cross[ed] over the street."

While in Gittens' sight, Hector held the suspected cocaine

in his right hand down by his side. Gittens, paying particular

attention to Hector's hands, observed nothing to indicate

appellant gave the cocaine to the man in the orange T-shirt or

discarded the cocaine along his route.

After receiving Gittens' call for Hector's arrest, Officers

Neal Sharma and Jesse Harmon first observed Hector and his

companion on the south corner of East Reed Street and

Commonwealth Avenue as the suspects turned south onto

Commonwealth. The distance between the south and north corners

of East Reed and Commonwealth is 25 to 30 feet. Hector was

walking with his hands down by his sides. Riding in an unmarked car, Sharma and Harmon unobservedly

followed Hector a short distance down Commonwealth Avenue until - 3 - he and his companion reached and began to enter an apartment

building. The officers decided to stop the two men before they

could enter the building. As Hector neared the entrance of the

building, Sharma exited the car and approached from behind. As

Sharma identified himself and ordered the two men to stop, Hector

opened the door to his apartment, located immediately inside the

threshold of the building. Hector turned to look at the officer

and, as the door swung open, made a throwing motion into the

apartment.

Until this point, neither Sharma nor Harmon observed Hector

dispose of the contents of his hands. Sharma kept Hector's hands

under surveillance the entire time and did not observe him

exchange anything with his companion. Although Harmon's

attention was partially diverted to operating the police vehicle,

Harmon also did not notice Hector exchange or dispose of anything

in his hands.

The officers subsequently found two rocks of cocaine behind

the front door of Hector's apartment, one packaged and the other

unpackaged. Upon discovery of the drugs, Hector stated "A guy on

Reed Avenue owed me $20 and didn't have it, so he gave me that

shit." At trial, Officer Gittens testified that the unpackaged

rock of cocaine found in the apartment was "similar in all

respects" to the rock appellant distributed to Hector on East

Reed Street, including its size, shape, and color. Police arrested appellant later that day, finding $191 in

cash in his front, right pants pocket and a pager clipped to his - 4 - waistband during a search conducted incident to arrest. Police

did not find illegal substances in appellant's possession.

II.

SUFFICIENCY OF THE EVIDENCE

"[A] successful drug prosecution must establish both the

existence of a proscribed substance and an accused's unlawful

activity with respect to it." Hinton v. Commonwealth, 15 Va.

App. 64, 66, 421 S.E.2d 35, 37 (1992). Here, the existence of a

proscribed substance is not in dispute; police found cocaine in

Hector's apartment. Instead, appellant contends the Commonwealth

failed to prove beyond a reasonable doubt that the unwrapped rock

of cocaine recovered in Hector's apartment was the item appellant

distributed to Hector on the premises of 44 East Reed Street.

Appellant contends the presence of a wrapped rock of cocaine with

the unwrapped rock in Hector's apartment presents an unrefuted,

reasonable hypothesis of innocence, to wit, that Hector acquired

both rocks from someone other than appellant.

"'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.'" Patrick v. Commonwealth, 27 Va. App. 655, 662, 500

S.E.2d 839, 843 (1998) (quoting Coleman v. Commonwealth, 226 Va.

31, 53, 307 S.E.2d 864, 876 (1983)). When relying on

circumstantial evidence, the Commonwealth need only exclude

hypotheses of innocence that flow from the evidence, not those

that flow from the imagination of defense counsel. Id. - 5 - Our holding in Jones v. Commonwealth supports the conclusion

that the Commonwealth's chain of circumstantial evidence is

sufficient to affirm appellant's conviction. 21 Va. App. 435,

464 S.E.2d 558 (1995) (en banc). In Jones, police officers

arranged for an informant to make a controlled drug purchase.

Id. at 438, 464 S.E.2d at 559-60. The police transported the

informant to a meeting point and gave the informant a sum of

money. Id. at 438, 464 S.E.2d at 560. Under police

surveillance, the informant walked to the purchase location, met

the defendant in defendant's car, and subsequently returned to

police with two bags of cocaine. Id. at 438-39, 464 S.E.2d at

560. The police did not have the informant under surveillance at

every moment from the time he received the purchase money until

he returned to police with the cocaine. Id. In fact, the police

lost sight of the informant for several minutes as he walked to

and from the designated purchase location. Id.

Notwithstanding the lapses in police surveillance, we found

the evidence excluded every reasonable hypothesis of innocence

and proved beyond a reasonable doubt the informant purchased

cocaine from the defendant. Id. at 443, 464 S.E.2d at 562. In

so holding, we noted the informant neither had the time nor the

opportunity to obtain drugs from another person during the brief

periods of interrupted surveillance. Id. Further, the only

reasonable conclusion flowing from the evidence supported the

defendant's guilt. As no evidence suggested the informant

purchased the cocaine from a third person, we considered such a - 6 - hypothesis "pure speculation and conjecture." Id.

Given our view of the evidence on appeal and our holding in

Jones, the evidence here is sufficient to conclude beyond a

reasonable doubt that appellant distributed the unwrapped rock of

cocaine found behind the door of Hector's apartment. Officer

Gittens observed appellant hand a white rock to Haley, who then

placed the rock in Hector's right hand. Watching Hector's hands

as he walked away, Gittens never observed Hector make any motion

indicating he passed the rock to another person or disposed of

the rock on the street. While in Gittens' line of sight,

appellant consistently held the rock in his right hand down by

his side.

Although Hector left the officers' line of sight for a few

moments as he crossed a street, there is no evidence to suggest

appellant exchanged or disposed of the rock during that time.

Indeed, when police resumed surveillance, Hector was seen walking

with his hands down by his sides. Neither Officer Sharma nor

Officer Harmon observed Hector exchange or dispose of anything in

his hands. Officer Sharma had Hector under constant

surveillance, observing Hector throw something from his hands

into his apartment only after he became aware of Sharma's

presence.

the front door of Hector's apartment, one packaged and the other

unpackaged. The unpackaged rock was similar in size, shape, and

color to the rock Gittens observed appellant distribute on East - 7 - Reed Street. Moreover, the police also found $191 in cash and a

pager on appellant's person, further evidence of appellant's

association with drug-distribution activities. See Glasco v.

Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998);

White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454

(1997) (en banc).

In sum, the evidence establishes an unbroken chain of

circumstances demonstrating that appellant distributed a rock of

cocaine to Hector, that Hector carried the cocaine on foot to his

apartment, and that Hector threw the cocaine into his apartment

upon the appearance of police officers.

Finally, appellant's assertion that the presence of a

packaged rock of cocaine with the unpackaged rock found in

Hector's apartment supports the hypothesis that Hector acquired

both rocks from someone other than appellant is without merit.

Although the Commonwealth's evidence does not explain how Hector

obtained possession of a second, packaged rock of cocaine, the

evidence clearly establishes appellant distributed an unpackaged

rock to Hector. The evidence further establishes that appellant

retained possession of the rock until throwing it into his

apartment upon the appearance of police. Under these

circumstances, the unexplained presence of additional drugs does

not furnish a reasonable hypothesis of innocence that the

Commonwealth was required to exclude. See Patrick, 27 Va. App.

at 662, 500 S.E.2d at 843.

For the foregoing reasons, we affirm appellant's conviction. - 8 - Affirmed.

- 9 -