COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys Argued at Richmond, Virginia
SEAN CHRISTOPHER BOEHRINGER MEMORANDUM OPINION * BY v. Record No. 1219-01-2 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 12, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
William P. Irwin, V (Bowen, Bryant, Champlin & Carr, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Sean Christopher Boehringer was convicted by a jury of
possession of cocaine, in violation of Code § 18.2-250, and
possession of a firearm while in possession of cocaine, in
violation of Code § 18.2-308.4. The jury fixed his sentences at
thirty days and five years in prison, respectively, which the
trial court imposed. Boehringer appeals from the decision of
the court, contending 1) the court erroneously denied his
request to question members of the jury panel about the range of
punishment applicable in his case, and 2) the evidence was not
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. sufficient to establish guilt beyond a reasonable doubt. We
find no error and affirm.
I.
Background
On December 28, 2000, Officers Steve Durham and Brian
Hixson patrolled the Midlothian Village Apartments in an
unmarked police car. The apartments are in a high-crime,
high-drug area. The management had posted a "no trespassing"
sign, which they asked the Richmond police to enforce.
At about 3:25 p.m., the officers saw a blue minivan drive
into the complex. As they drove through the complex, Officer
Durham saw two men on the stairs between the second and third
floor landings of one of the buildings. When the men noticed
Officer Durham, they started towards the third floor. The
officers exited their vehicle and followed them. Officer Durham
climbed the rear stairs of the building, and Officer Hixson
climbed the front stairs. Durham saw Robert Rodriguez knocking
on an apartment door and Boehringer in the stairwell at the
front of the building, a few steps below the top of the stairs.
Boehringer kneeled and moved his right hand as though he were
placing an item on one of the steps.
Officer Hixson arrived at the top of the stairs and asked
Boehringer what he was doing on the property. Boehringer
responded that he was looking for "Paul," but could not provide
- 2 - a last name, address, or apartment location for "Paul." Hixson
arrested him for trespassing.
Officer Durham directed Officer Hixson to the area where
Boehringer had made the hand motion. Hixson recovered a folded
dollar bill wrapped around a substance he believed to be crack
cocaine. The item was later determined to be cocaine. Hixson
led Boehringer to the bottom of the stairs and read him his
Miranda rights. Upon searching him incident to his arrest,
Hixson found a set of keys in Boehringer's pants pocket.
After Officer Hixson found a Plymouth key in Boehringer's
pocket, he asked Boehringer if the Plymouth van he had observed
earlier belonged to him. The defendant did not respond.
Officer Hixson asked if the keys fit the van. Boehringer said,
"Maybe." Hixson then asked if Boehringer had anything of value
in the van. He responded, "Yeah, I have some tools in there.
Can you lock it up?"
When Officer Hixson approached the van, through the window,
he saw a crushed aluminum can, which he believed had been
manipulated into a cocaine smoking device. He also observed ash
and residue on the top of the can. Based on his observations,
Officer Hixson decided to search the van for other contraband.
First, he verified that the keys found in Boehringer's pocket
fit the door lock and the vehicle's ignition. While searching,
he found a gray plastic tarp under a camouflage jacket. He
opened the tarp and found a twelve-gauge pistol-grip shotgun
- 3 - with the barrel removed from the stock. He also found an
assault rifle wrapped in a jacket, as well as a thirty-round
magazine with ammunition for the rifle.
Officer Hixson took Boehringer to the station for
processing. On the way, Boehringer asked, "What did you find in
the van? Just the can?" Hixson responded, "Yes. And you know
what else I found?" In response, the defendant nodded. The
defendant later told Hixson the van belonged to his girlfriend.
II.
Analysis
A. Informing Jury of Sentencing Ranges
Boehringer contends that the trial court erred by
prohibiting questions to the jury panel during voir dire about
the mandatory minimum penalty for possession of a firearm while
in possession of cocaine. 1 He reasons that the jury's
determination of guilt in a bifurcated trial could be improperly
effected by their uninformed beliefs about the sentence that
could be imposed. The issue Boehringer raises is controlled by
the decision of the Virginia Supreme Court in Commonwealth v.
Hill, 264 Va. 315, 568 S.E.2d 673 (2002).
1 Defendant also presents the question that the jury should have been informed of the sentencing range for possession of cocaine. However, because he does not support this contention with argument or authority, we do not address it. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
- 4 - In Hill, the Court held:
[I]n a non-capital case, neither the defendant nor the Commonwealth has a constitutional or statutory right to question a jury panel about the range of punishment that may be imposed upon the defendant. Questions about the range of punishment are not relevant to any of the factors prescribed in Code § 8.01-358, those factors being relationship to the parties, interest in the cause, the formation of any opinions about the cause or bias, or prejudice therein. [Such] questions . . . will only result in speculation by jury panel members.
Hill, 264 Va. at 319, 568 S.E.2d at 676. We, accordingly, find
the trial court did not err in prohibiting questions relating to
punishment during voir dire.
B. Sufficiency of the Evidence
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). The appellate
court must, therefore, "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" from the credible evidence.
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998). The credibility of the witnesses and the weight of
the evidence are matters to be determined solely by the trier of
- 5 - fact. See Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382
S.E.2d 258, 259 (1989). Furthermore, the findings of the trial
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys Argued at Richmond, Virginia
SEAN CHRISTOPHER BOEHRINGER MEMORANDUM OPINION * BY v. Record No. 1219-01-2 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 12, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
William P. Irwin, V (Bowen, Bryant, Champlin & Carr, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Sean Christopher Boehringer was convicted by a jury of
possession of cocaine, in violation of Code § 18.2-250, and
possession of a firearm while in possession of cocaine, in
violation of Code § 18.2-308.4. The jury fixed his sentences at
thirty days and five years in prison, respectively, which the
trial court imposed. Boehringer appeals from the decision of
the court, contending 1) the court erroneously denied his
request to question members of the jury panel about the range of
punishment applicable in his case, and 2) the evidence was not
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. sufficient to establish guilt beyond a reasonable doubt. We
find no error and affirm.
I.
Background
On December 28, 2000, Officers Steve Durham and Brian
Hixson patrolled the Midlothian Village Apartments in an
unmarked police car. The apartments are in a high-crime,
high-drug area. The management had posted a "no trespassing"
sign, which they asked the Richmond police to enforce.
At about 3:25 p.m., the officers saw a blue minivan drive
into the complex. As they drove through the complex, Officer
Durham saw two men on the stairs between the second and third
floor landings of one of the buildings. When the men noticed
Officer Durham, they started towards the third floor. The
officers exited their vehicle and followed them. Officer Durham
climbed the rear stairs of the building, and Officer Hixson
climbed the front stairs. Durham saw Robert Rodriguez knocking
on an apartment door and Boehringer in the stairwell at the
front of the building, a few steps below the top of the stairs.
Boehringer kneeled and moved his right hand as though he were
placing an item on one of the steps.
Officer Hixson arrived at the top of the stairs and asked
Boehringer what he was doing on the property. Boehringer
responded that he was looking for "Paul," but could not provide
- 2 - a last name, address, or apartment location for "Paul." Hixson
arrested him for trespassing.
Officer Durham directed Officer Hixson to the area where
Boehringer had made the hand motion. Hixson recovered a folded
dollar bill wrapped around a substance he believed to be crack
cocaine. The item was later determined to be cocaine. Hixson
led Boehringer to the bottom of the stairs and read him his
Miranda rights. Upon searching him incident to his arrest,
Hixson found a set of keys in Boehringer's pants pocket.
After Officer Hixson found a Plymouth key in Boehringer's
pocket, he asked Boehringer if the Plymouth van he had observed
earlier belonged to him. The defendant did not respond.
Officer Hixson asked if the keys fit the van. Boehringer said,
"Maybe." Hixson then asked if Boehringer had anything of value
in the van. He responded, "Yeah, I have some tools in there.
Can you lock it up?"
When Officer Hixson approached the van, through the window,
he saw a crushed aluminum can, which he believed had been
manipulated into a cocaine smoking device. He also observed ash
and residue on the top of the can. Based on his observations,
Officer Hixson decided to search the van for other contraband.
First, he verified that the keys found in Boehringer's pocket
fit the door lock and the vehicle's ignition. While searching,
he found a gray plastic tarp under a camouflage jacket. He
opened the tarp and found a twelve-gauge pistol-grip shotgun
- 3 - with the barrel removed from the stock. He also found an
assault rifle wrapped in a jacket, as well as a thirty-round
magazine with ammunition for the rifle.
Officer Hixson took Boehringer to the station for
processing. On the way, Boehringer asked, "What did you find in
the van? Just the can?" Hixson responded, "Yes. And you know
what else I found?" In response, the defendant nodded. The
defendant later told Hixson the van belonged to his girlfriend.
II.
Analysis
A. Informing Jury of Sentencing Ranges
Boehringer contends that the trial court erred by
prohibiting questions to the jury panel during voir dire about
the mandatory minimum penalty for possession of a firearm while
in possession of cocaine. 1 He reasons that the jury's
determination of guilt in a bifurcated trial could be improperly
effected by their uninformed beliefs about the sentence that
could be imposed. The issue Boehringer raises is controlled by
the decision of the Virginia Supreme Court in Commonwealth v.
Hill, 264 Va. 315, 568 S.E.2d 673 (2002).
1 Defendant also presents the question that the jury should have been informed of the sentencing range for possession of cocaine. However, because he does not support this contention with argument or authority, we do not address it. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
- 4 - In Hill, the Court held:
[I]n a non-capital case, neither the defendant nor the Commonwealth has a constitutional or statutory right to question a jury panel about the range of punishment that may be imposed upon the defendant. Questions about the range of punishment are not relevant to any of the factors prescribed in Code § 8.01-358, those factors being relationship to the parties, interest in the cause, the formation of any opinions about the cause or bias, or prejudice therein. [Such] questions . . . will only result in speculation by jury panel members.
Hill, 264 Va. at 319, 568 S.E.2d at 676. We, accordingly, find
the trial court did not err in prohibiting questions relating to
punishment during voir dire.
B. Sufficiency of the Evidence
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). The appellate
court must, therefore, "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" from the credible evidence.
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998). The credibility of the witnesses and the weight of
the evidence are matters to be determined solely by the trier of
- 5 - fact. See Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382
S.E.2d 258, 259 (1989). Furthermore, the findings of the trial
court will not be disturbed unless plainly wrong or without
evidence to support them. See McGee v. Commonwealth, 25 Va.
App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).
Constructive possession of contraband 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 [contraband] and that it was subject to his dominion and control.
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citation omitted); see also Andrews v.
Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).
Furthermore,
occupancy of a vehicle . . . where [contraband is] found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle or on the premises in order to prove that the owner or occupant constructively possessed the contraband . . . . [P]roof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of property or of a vehicle, the person necessarily knows of the presence, nature and character of [the contraband] that is found there.
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83 (1992) (citation omitted); see also Grier v. Commonwealth, 35
- 6 - Va. App. 560, 570, 546 S.E.2d 743, 747 (2001) (citation
omitted).
"Circumstantial evidence of possession is sufficient to
support a conviction provided it excludes every reasonable
hypothesis of innocence." Spivey v. Commonwealth, 23 Va. App.
715, 724, 479 S.E.2d 543, 548 (1997). Moreover, "[t]he
Commonwealth is not required to prove that there is no
possibility that someone else may have planted, discarded,
abandoned, or placed the [contraband in the location in
question]." Brown v. Commonwealth, 15 Va. App. 1, 10, 421
S.E.2d 877, 883 (1992).
In this case, Boehringer's proximity and relationship to
the contraband, his occupancy of a vehicle in which drug
paraphernalia and firearms were found, his conduct when pursued
and then questioned by the police, and his demonstrated guilty
knowledge when questioned about the firearms in his vehicle
concur in establishing his guilt beyond a reasonable doubt.
When the officers first observed Boehringer, he distanced
himself from them. When they approached him, Boehringer knelt
and discarded an item on the step where he was located, which
subsequently was found to be cocaine wrapped in a dollar bill.
When questioned about his presence at the apartment complex,
Boehringer lied about his reasons for being there. When Officer
Hixson asked if the keys from Boehringer's pocket fit the
Plymouth van, Boehringer responded, less than candidly, "Maybe."
- 7 - Finally, Boehringer's affirmative nod in response to Officer
Hixson's comment,"you know what else I found [in the van],"
supports the inference that he was aware the firearms were in
the van. "[T]he combined force of [these] concurrent and
related circumstances . . . lead[s] a reasonable mind
inescapably to [the] conclusion [that Boehringer possessed the
cocaine and firearms]." Shurbaji v. Commonwealth, 18 Va. App.
415, 423, 444 S.E.2d 549, 553 (1994) (internal quotation and
citation omitted); see also Glasco v. Commonwealth, 26 Va. App.
763, 774, 497 S.E.2d 150, 155 (1998) (holding that appellate
court reviewing the sufficiency of the evidence of a defendant's
awareness of the presence and character of a controlled
substance and his dominion over it must consider the totality of
the circumstances). For the foregoing reasons, the convictions
are affirmed.
Affirmed.
- 8 -