COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Beales and Decker Argued at Salem, Virginia PUBLISHED
TINA LASHA HALL, A/K/A TINA LASHA WALLER OPINION BY v. Record No. 1751-17-3 JUDGE RANDOLPH A. BEALES NOVEMBER 6, 2018 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Stacey W. Moreau, Judge
Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Following the execution of a search warrant, Tina Lasha Hall, a/k/a Tina Lasha Waller
(“appellant”) was indicted for four felonies, including possession of a firearm by a convicted
felon and possession of a firearm while possessing cocaine with the intent to distribute.
Appellant moved to sever the charge for possession of a firearm by a felon from the other
charges in the indictment. After she prevailed on a motion to strike at the first trial on the other
charges, she moved to dismiss the charge of possession of a firearm by a convicted felon,
arguing that it violated the principle of collateral estoppel and double jeopardy. The trial court
denied appellant’s motion, and she was ultimately convicted. On appeal, appellant contends the
trial court erred in denying her motion to dismiss based on “collateral estoppel pursuant to the Double Jeopardy Clause of the Fifth Amendment”1 and in finding the evidence sufficient to find
her guilty of possession of a firearm by a convicted felon.
I. BACKGROUND
Relevant Procedural History
On February 16, 2016, appellant was indicted for possession of cocaine with intent to
distribute, third or subsequent offense; possession of marijuana with intent to distribute;
possession of a firearm while possessing cocaine with intent to distribute; and possession of a
firearm after having been convicted of a felony. On May 5, 2016, appellant moved to sever the
charge of possession of a firearm by a convicted felon from the other charges, and the trial court
granted the motion. On January 18, 2017, appellant was tried for the other charges.2 At the
conclusion of the Commonwealth’s case-in-chief, the trial court granted appellant’s motion to
strike the charges.
On January 23, 2017, appellant filed a motion to dismiss the charge of possession of a
firearm by a convicted felon based on collateral estoppel and double jeopardy. The trial court
denied the motion to dismiss and proceeded to trial. At a bench trial on August 10, 2017, the
trial court found appellant guilty of possession of a firearm by a convicted felon. She was
sentenced to four years of incarceration with two years suspended and 18 months of supervised
probation.
1 Appellant does not argue that her trial for possession of a firearm by a convicted felon also violated the similar double jeopardy prohibition in Article I, Section 8 of the Virginia Constitution. 2 On July 11, 2016, the Commonwealth moved to nolle prosequi the charge of possession of marijuana with the intent to distribute. -2- Evidence Presented at Appellant’s Trial for Possession of a Firearm by a Convicted Felon
On the morning of October 30, 2015, at approximately 8:30 a.m., police officers from the
Pittsylvania County Sheriff’s Office executed a search warrant on the residence of Ronnie Stone
at 1105 Cody Road in Pittsylvania County.
Earlier that morning, approximately an hour before the search warrant was executed,
Investigator Robert Worsham with the Pittsylvania County Sheriff’s Office conducted
surveillance of the address. From his location in the woods, he witnessed one person – appellant
– leave the residence and get into a vehicle. Approximately one week prior to the execution of
the search warrant, another officer, Corporal James Davis, knocked on the door of the residence.
Appellant answered and, when Corporal Davis inquired about possibly purchasing a vehicle
outside of the residence, appellant told him that he would have to wait for Stone to return home.
During the execution of the search warrant on October 30th, in one of the bedrooms of
the residence, the officers located an AK-47 between the bed and the nightstand. They found
live ammunition in the firearm and another ammunition magazine in the drawer of the
nightstand. Appellant’s and Stone’s young child was lying in that bed when the police arrived.
On a dresser in the bedroom, the officers located a tin decorated with sunflowers. The
child’s insurance card was found on top of the tin and five one-hundred-dollar bills were found
inside. The officers found a bottle of medicine bearing the child’s name on the dresser. They
also located two prescription bottles from CVS prescribed to appellant in that same bedroom.
Underneath the bed, the officers found an empty box for a firearm.3 They also located
two pieces of mail addressed to appellant. The address on one of the pieces of mail was on
Thompson Store Road in Vernon Hill, Virginia. In a shoe box under the bed, the officers found
3 At trial, Corporal Davis testified that he did not know if the box was the box for the firearm that the officers located between the bed and the nightstand. -3- certificates of title for four vehicles – each naming appellant as the vehicle’s owner. The address
listed for appellant on the certificates was on Marysville Road in Altavista, Virginia.
The police seized fifteen vehicles at the residence. In one of the vehicles at the residence,
a Honda Odyssey, the police found a repair bill for the vehicle bearing appellant’s name.
Appellant’s address on the bill was listed as 1105 Cody Road – the address of the residence
being searched. Lieutenant Gerald Ford ran a Q-VIN4 for appellant and found that she had
several vehicles registered in her name. For every vehicle listed on the report, appellant’s
address was also listed as 1105 Cody Road. At appellant’s trial, the Commonwealth introduced
the answer appellant submitted in a forfeiture proceeding on the seized vehicles. In that
document, appellant claimed ownership of seven of the vehicles seized at the residence.
After the warrant was executed, the police directed Stone to call appellant, and
Investigator Colbert asked her to return to the residence. When she arrived, she was interviewed
by Major Nicholson. Major Nicholson testified that he asked appellant about the firearm and
that she told him Stone’s father had given the gun to Stone for his protection approximately two
months earlier. Major Nicholson also testified that appellant admitted to him that she was a
convicted felon. A copy of appellant’s prior convictions was entered into evidence without
objection.
After the Commonwealth rested, appellant’s cousin, Keisha Waller, testified that
appellant lived with appellant’s mother at the Thompson Store Road address and that she had
never seen appellant with a firearm.
Appellant testified in her own defense. She claimed that she was at Stone’s residence at
about 6:00 a.m. that morning to drop off their child. She did not deny “using that address” but
4 Lieutenant Ford testified that a “Q-VIN essentially runs a person’s information to see what vehicles are registered in that person’s name.” -4- claimed that she did not reside there. She testified that Stone’s father had bought a gun about
two months prior, but she denied saying anything to Major Nicholson about Stone’s father giving
it to Stone. She also denied knowing that there was a firearm in the residence. Appellant
testified that the mail and other documents belonging to her were probably in the residence as a
result of her “just like randomly leaving, leaving things there . . . .” She further testified that she
did not know how the certificates of title to her vehicles got under the bed at Stone’s residence,
and she denied that she was taking the medication found in the bedroom at that time.
At the conclusion of the trial, the trial court found appellant guilty of possession of a
firearm by a convicted felon.
II. ANALYSIS
A. Collateral Estoppel
Although appellant moved to have the charges against her severed, appellant contends
that her conviction for possession of a firearm by a convicted felon violates the collateral
estoppel principle encompassed in the Fifth Amendment’s guarantee against double jeopardy.
Specifically, she argues that because she prevailed on her motion to strike on the charge of
possession of a firearm while possessing cocaine with the intent to distribute at the first trial, the
issue of whether she possessed the firearm had already been litigated, and collateral estoppel
principles should have precluded the Commonwealth from proceeding with the trial on
possession of a firearm by a convicted felon.
“Whether there has been a double jeopardy violation presents a question of law requiring
a de novo review.” Fullwood v. Commonwealth, 279 Va. 531, 539, 689 S.E.2d 742, 747 (2010).
The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V. “This guarantee recognizes the
vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice -5- system would invite if prosecutors could treat trials as dress rehearsals until they secure the
convictions they seek.” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018). However, “the Clause
was not written or originally understood to pose ‘an insuperable obstacle to the administration of
justice’ in cases where ‘there is no semblance of [these] type[s] of oppressive practices.’” Id.
(quoting Wade v. Hunter, 336 U.S. 684, 688-89 (1949)). Collateral estoppel “is embodied in the
Fifth Amendment guarantee against double jeopardy.” Ashe v. Swenson, 397 U.S. 436, 445
(1970). “It means simply that when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated between the same parties in any
future lawsuit.” Id. at 443. “Collateral estoppel, as applied in criminal proceedings, becomes
applicable only when the defendant’s prior acquittal necessarily resolved a factual issue that the
Commonwealth seeks to litigate again in a subsequent proceeding.” Commonwealth v. Leonard,
294 Va. 233, 239, 805 S.E.2d 245, 249 (2017).
In Currier, 138 S. Ct. 2144, the United States Supreme Court was presented with an issue
virtually identical to the one in the case at bar. In that case, in order to prevent the introduction
of evidence of his prior convictions, defendant Michael Currier and the Commonwealth agreed
that the trial court should sever the charges of burglary and larceny from his charge of possession
of a firearm by a convicted felon. Id. at 2148. The trial court granted the request, and Currier
was acquitted by a jury on the burglary and larceny charges. Id. Before the second trial on the
firearm charge, Currier argued that the collateral estoppel component of double jeopardy should
prohibit the government from trying him on the charge of possession of a firearm by a convicted
felon. Id. at 2149. The trial court rejected the arguments, and Currier was ultimately convicted
on the firearm charge. Id. Appellant appealed his conviction, which was affirmed by this Court
and then also affirmed by the Virginia Supreme Court. Currier v. Commonwealth, 65 Va. App.
605, 779 S.E.2d 834 (2015), aff’d, 292 Va. 737, 798 S.E.2d 164 (2016). -6- The United States Supreme Court also affirmed the conviction, holding that no collateral
estoppel violation existed because Currier had agreed to have two separate trials on the charges
against him. The Supreme Court reasoned that, in cases where the defendant agrees to two trials
to avoid the introduction of prejudicial but probative evidence, “the defendant wins a potential
benefit and experiences none of the prosecutorial ‘oppression’ the Double Jeopardy Clause exists
to prevent.” Currier, 138 S. Ct. at 2151. Therefore, “a defendant’s consent dispels any specter
of double jeopardy abuse that holding two trials might otherwise present.” Id. See also
Campbell v. Commonwealth, 69 Va. App. 217, 230, 817 S.E.2d 663, 669-70 (2018) (holding
defendant’s trial on the charge of possession with the intent to distribute – after being found
guilty of manufacturing at an earlier trial – was not barred by constitutional double jeopardy
principles where the defendant had requested a continuance on that charge).
In the case before us, appellant requested that the charges be severed to prevent the
Commonwealth from introducing evidence of her prior convictions at her trial for possessing a
firearm while possessing cocaine with the intent to distribute. Because appellant agreed to the
severance, we do not need to further analyze whether the appellant’s trial for possession of a
firearm by a convicted felon would have required the parties to relitigate an issue of ultimate fact
decided in the first trial. The “‘Double Jeopardy Clause, which guards against Government
oppression, does not relieve a defendant from the consequences of [a] voluntary choice’ like
that.” Currier, 138 S. Ct. at 2151 (quoting United States v. Scott, 437 U.S. 82, 99 (1978)).
Therefore, given the Supreme Court’s decision in Currier, appellant’s conviction at the second
trial for possession of a firearm by a convicted felon certainly did not offend the Double
Jeopardy Clause.
Appellant contends that we should distinguish this case from Currier because, unlike the
defendant in Currier, who was acquitted by a jury in his first trial, appellant’s first trial ended -7- when she prevailed on a motion to strike. Thus, according to appellant, “the evidence was even
less sufficient in the first case for [appellant] than it was in the first case in Currier.” We
disagree with appellant that this difference renders Currier inapplicable. Regardless of the
manner by which appellant prevailed at the first trial, appellant’s agreement to the two trials
removed any concerns of any possible prosecutorial overreaching or governmental oppression
that would be central to a challenge under the Double Jeopardy Clause. Therefore, the trial court
did not err in denying appellant’s motion to dismiss.5
B. Sufficiency of the Evidence for Appellant’s Conviction
Appellant also contends that the evidence was insufficient to prove that she possessed the
firearm found in the bedroom. When considering the sufficiency of the evidence on appeal, “a
reviewing court does not ‘ask itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588
S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing
the evidence in the light most favorable to the Commonwealth, as we must since it was the
prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555,
574 (2004), “[w]e must instead ask whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588
S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447
(2003) (en banc)). “This familiar standard gives full play to the responsibility of the trier of fact
5 Appellant also argues that the trial court erred for failing to take “into account the whole case including evidence, pleadings, and arguments” in determining whether collateral estoppel applied to preclude the Commonwealth from prosecuting her in the second trial. Appellant argues that the trial court only listened to her counsel’s argument on the motion to strike in the first trial, instead of reviewing the record from the entire proceeding. However, the trial court did not need to undertake a collateral estoppel analysis to determine the issues litigated in the first trial because appellant’s request to have the charges in the indictment severed precluded her from arguing a double jeopardy violation. Therefore, we find no error. -8- fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
Possession of a firearm may be actual or constructive. “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 his dominion and control.’” Logan v.
Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) (en banc) (quoting
Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1989)).
The circumstantial evidence presented at trial showed that, although appellant denied
living in the residence, she was a regular occupant of the home. “A person’s ownership or
occupancy of premises on which the subject item is found, proximity to the item, and statements
or conduct concerning the location of the item are probative factors to be considered in
determining whether the totality of the circumstances supports a finding of possession.” Wright
v. Commonwealth, 53 Va. App. 266, 274, 670 S.E.2d 772, 775-76 (2009). Appellant was at the
residence by herself a week prior to the search warrant’s execution when Corporal Davis stopped
by to inquire about a vehicle. Investigator Worsham also saw her there in the early morning – at
around 7:30 a.m. – on the day the search warrant was executed. Furthermore, appellant kept
possessions – including the seven vehicles that she claimed were hers in the forfeiture action – at
the residence. She did not deny “using that address,” and she apparently reported it as her
address to DMV and to an automobile repair shop because the documents from both DMV and
the repair shop showed it as her address.
Substantial evidence also suggested that appellant was an occupant of the bedroom where
the firearm was found in plain view. Appellant’s child was found in the bed, and his medications
were found on the dresser in that bedroom approximately an hour after appellant was seen -9- leaving the residence. The logical inference from this fact is that appellant was in the room with
her child that morning and she, therefore, would have had access to the gun just before she left
that morning. Medication prescribed to appellant was found in that bedroom, and her mail was
found under the bed. The police also recovered certificates of title to vehicles owned by
appellant in a shoebox under the bed. The certificates were not haphazardly lying on the floor
under the bed; they had been placed in a shoebox, suggesting that appellant purposely filed and
stored them there.
In addition to the evidence connecting appellant to the room where the firearm was
located in plain view, the trial court concluded that appellant was aware of the presence and
character of the gun in the residence because of her statements to Major Nicholson. Appellant
told Nicholson that the gun the officers recovered belonged to Stone – and that Stone’s father
had given it to him two months earlier.6 Although at trial appellant denied making these
statements to Major Nicholson and denied knowing that the firearm was in the residence or that
it belonged to Stone, the trial judge was permitted to reject her testimony and accept that of
Nicholson. Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998)
(“In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving
testimony of the accused and to conclude that the accused is lying to conceal his guilt.”). Based
on the totality of the circumstances, we certainly cannot say that no rational factfinder could have
convicted appellant of possession of a firearm by a convicted felon.
6 Stone’s ownership and possession of the firearm would not preclude appellant from also possessing the firearm. See Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154, 157 (2009) (“Possession and not ownership is the vital issue. Possession may be joint or several. Two or more persons may be in possession where each has the power of control and intends to exercise control jointly.” (quoting Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953))). - 10 - III. CONCLUSION
In short, the trial court did not err in denying appellant’s motion to dismiss the indictment
for possession of a firearm by a convicted felon because appellant agreed to have the charges
against her severed. Appellant’s voluntary decision to request that the charges be severed
benefited appellant because it kept the Commonwealth from introducing evidence of earlier
felony convictions in the first trial. Since the severance was at her election, as the United States
Supreme Court held in Currier v. Virginia, she was not subject to any prosecutorial overreaching
or abuse that the Double Jeopardy Clause was intended to prevent. Therefore, the trial court did
not err in refusing to dismiss the indictment for possession of a firearm by a convicted felon.
In addition, the evidence was sufficient for a rational factfinder to convict appellant of
possession of a firearm by a convicted felon. Although appellant claimed not to live at the
residence where the firearm was found, she kept multiple vehicles at the address, she reported
the address to the DMV, and she was alone at the residence a week before the search warrant
was executed – and was also there very early in the morning on the day it was executed.
Appellant also kept numerous personal items in the bedroom where the firearm was found in
plain view, including mail, medication, and numerous vehicle certificates of title organized in a
shoebox under the bed. Her small child was also found in that bed that was next to the firearm –
shortly after she left the residence that morning. Given all of these circumstances, we certainly
cannot say that no rational factfinder could have found appellant guilty of possession of a firearm
by a convicted felon.
For all of these reasons, we affirm appellant’s conviction for possession of a firearm after
having been convicted of a felony.
Affirmed.
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