James C. Hirsch v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia
JAMES C. HIRSCH
MEMORANDUM OPINION * BY
v. Record No. 2034-98-1 JUDGE JOSEPH E. BAKER
AUGUST 17, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Stuart A. Saunders for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Hirsch (appellant) appeals from his bench trial
conviction by the Circuit Court of the City of Hampton (trial
court) for possession of cocaine with intent to distribute. He
contends that the evidence was insufficient to support his
conviction and that the trial court erroneously permitted a police
officer to state an opinion on an ultimate issue of fact. Finding
no error, we affirm the judgment of the trial court.
I.
Upon familiar principles, we state the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that on February 18, 1998,
appellant drove Julia Perry's car to the full-service gas
station where Craig Ruhl worked. When Ruhl opened the gas tank
cover on Perry's car to fuel the vehicle, he saw a ball of
cellophane fall from the open cap area to the ground. Believing
the item to be trash, Ruhl picked it up and placed it on a shelf
near one of the gas pumps. After appellant left the station,
Ruhl looked more closely at the item and determined it contained
drugs. He called the police, who came and took possession of
the drugs.
Approximately one hour after his initial visit, appellant
returned to the station with Hamilton Pritchett. Pritchett
falsely claimed to be an undercover policeman and stated that he
was looking for some lost evidence. He told one of Ruhl's
co-workers that the missing item was crack cocaine that was to
be used in a drug bust later that evening. Appellant asked to
speak with Ruhl in private, demanded that Ruhl surrender "it" to
him, and offered to pay $100 for "it." Ruhl denied any
knowledge of what appellant was talking about. Appellant
repeatedly insisted "I need my stuff" and made veiled threats of
harm to Ruhl if he did not return it to appellant.
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Later that same night, appellant telephoned Ruhl and said
that he knew Ruhl had "it." Appellant stated that he wanted
"his shit" and he again threatened Ruhl.
Perry testified that she lent her car to appellant on
February 18, 1998, and she denied placing cocaine in the
vehicle.
The trial court qualified Hampton Police Detective Thurman
Clark as an expert in the field of narcotics. Clark identified
the slang words "stuff" and "shit" used by appellant as terms
commonly used in the drug trade to refer to narcotics. 1 Clark
further testified that the quantity of the cocaine and the
manner in which it was packaged were inconsistent with personal
use. When asked how he had reached that conclusion, Clark
responded:
There's several different things. These
little black bags are actually very small
Ziploc bags that you don't find in the
everyday home, or persons in their everyday
uses don't really have a lot of usage for
the real tiny small Ziploc bags of this
sort. There's twelve individual Ziploc bags
here.
And based on my experience, it looks to
me like there is about twenty dollars' worth
of cocaine in each one of those, which is .2
grams. There's twelve of them there. So
you're looking at approximately two hundred
and forty dollars['] worth of cocaine.
1
Appellant argues that whether drug dealers refer to drugs
as "stuff" or "shit" was not a matter requiring expert
testimony. Appellant did not object to this testimony, however,
and we will not address the issue for the first time on appeal.
See Rule 5A:18.
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I don't find people on the street that
have a cocaine problem to carry at a given
time this amount of cocaine. They'll
normally go out and buy forty, fifty
dollars. Some of them--the small time users
will buy it twenty dollars at a time, but
usually about a fifty dollar rock of cocaine
is about max that they'll buy at a given
time. Then they'll make several trips back
because of the expense of it.
And because of the way it's packaged
here, in the twelve individuals, it looks
like it's ready for sale.
II.
Appellant contends that Clark invaded the province of the
fact finder when he testified that the manner in which the drugs
were packaged was inconsistent with personal use and when he
stated that the drugs looked like they were "ready for sale."
We disagree.
"An expert's testimony is
admissible . . . when experience and
observation in a special calling give the
expert knowledge of a subject beyond that of
persons of common intelligence and ordinary
experience. The scope of such evidence
extends to any subject in respect of which
one may derive special knowledge by
experience, when his knowledge of the matter
in relation to which his opinion is asked is
such, or is so great, that it will probably
aid the trier in the search for the truth."
Nichols v. Commonwealth, 6 Va. App. 426, 431, 369 S.E.2d 218,
220-21 (1988) (holding that a police officer's testimony that
certain notations on a piece of paper were related to drug
trafficking was not within the realm of the average juror and
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was a proper subject of expert testimony) (quoting Neblett v.
Hunter, 207 Va. 335, 339-40, 150 S.E.2d 115, 118 (1966)).
Nevertheless, "the admission of expert testimony upon an
ultimate issue of fact is impermissible because it invades the
function of the fact finder." Hussen v. Commonwealth, 257 Va.
93, 98, 511 S.E.2d 106, 109 (holding, in a rape case, that an
expert did not invade the province of the jury when she
testified that the victim's injuries were not consistent with
consensual sexual intercourse), cert. denied, 119 S. Ct. 1792(1999).
[W]hile an expert witness may be permitted
to express his opinion relative to the
existence or nonexistence of facts not
within common knowledge, he cannot give his
opinion upon the precise or ultimate fact in
issue, which must be left to the jury or the
court trying the case without a jury for
determination.
Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963)
(citations omitted).
In Davis v. Commonwealth, 12 Va. App. 728, 731, 406 S.E.2d
922, 923 (1991), a detective testified that possession of 6.88
ounces of marijuana was "inconsistent with personal use." In
holding that this testimony did not invade the province of the
jury, we explained:
Whether [the defendant] was holding the 6.88
ounces of marijuana with the intent to
distribute was an ultimate issue of fact for
the jury's determination. [The detective's]
testimony addressed the issue of what amount
of this particular controlled substance is
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characteristically held by an individual for
personal use.
Id. at 731-32, 406 S.E.2d at 924. Although recognizing that the
distinction was "a narrow one," we concluded the defendant's
possession of a quantity of marijuana that was inconsistent with
personal use did not necessarily prove he intended to distribute
the substance. Id. at 732, 406 S.E.2d at 924. See Price v.
Commonwealth, 18 Va. App. 760, 766, 446 S.E.2d 642, 646 (1994)
(holding that the trial court did not err when it allowed an
expert in a child abuse case to testify that the victim suffered
from battered child syndrome); Nichols, 6 Va. App. at 432, 369
S.E.2d at 222 (holding that a police officer's testimony that a
paper found in the defendant's home was a record of drug
transactions did not address the ultimate issue of whether the
defendant conspired to distribute cocaine).
In Llamera v. Commonwealth, 243 Va. 262, 414 S.E.2d 597(1992), a detective testified in a jury trial that "the quantity
of cocaine found 'would suggest that the owner of the cocaine
was a person who sold cocaine.'" Id. at 264, 414 S.E.2d at 598.
The Supreme Court held that the detective had expressed an
opinion on an ultimate issue of fact: whether the defendant
"was a person who sold cocaine." Id. at 265, 414 S.E.2d at 599.
The Court further found that this error was not rendered
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harmless by the detective's use of the phrase "would suggest."
Id. 2
We hold that the facts of this case are more analogous to
Davis than to Llamera and that Clark's testimony did not invade
the province of the trier of fact. Clark did not express an
opinion whether appellant intended to sell the drugs but merely
testified, based on his training and experience, on the
significance of the manner in which the drugs were packaged.
The trier of fact was still free to infer from the evidence that
appellant purchased an uncharacteristically large quantity of
cocaine for his own use or that appellant and Pritchett jointly
possessed these drugs. See Davis, 12 Va. App. at 732, 406
S.E.2d at 924. Accordingly, the trial court did not err in
allowing this testimony.
III.
"[P]ossession of a controlled substance may be actual or
constructive." McGee v. Commonwealth, 4 Va. App. 317, 322, 357
S.E.2d 738, 740 (1987).
To support a conviction based upon
constructive possession, "the Commonwealth
must point to 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
2
The detective also testified that the drugs were
"'packaged that way for distribution'" and that "such quantity
[of drugs] was inconsistent with personal use." Llamera, 243
Va. at 264, 414 S.E.2d at 598. The Supreme Court did not
comment as to the admissibility of either of these statements.
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character of the substance and that it was
subject to his dominion and control."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). "The Commonwealth is not required to
prove that there is no possibility that someone else may have
planted, discarded, abandoned or placed the drugs . . . ."
Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883
(1992) (en banc).
"Because direct evidence is often impossible to produce,
intent [to distribute drugs] may be shown by circumstantial
evidence that is consistent with guilt, inconsistent with
innocence, and excludes every reasonable hypothesis of
innocence." Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512
S.E.2d 823, 826 (1999). "The inferences to be drawn from proven
facts, so long as they are reasonable, are within the province of
the trier of fact." Hancock v. Commonwealth, 12 Va. App. 774,
782, 407 S.E.2d 301, 306 (1991).
"The quantity of a controlled substance is a factor which
may indicate the purpose for which it is possessed," Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987),
as is the manner in which it is packaged, see White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc).
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Appellant had exclusive possession of Perry's car when Ruhl
found the crack cocaine in the space between the car's gas tank
cover and the gas cap. One hour after leaving the station,
appellant returned, confronted Ruhl and demanded his "stuff."
Appellant offered to pay Ruhl for "it" and referred to it as
"my" stuff. Appellant made threatening remarks to Ruhl at the
gas station and threatened Ruhl again when he telephoned Ruhl
later that evening. From this evidence, the trial court could
infer beyond a reasonable doubt that appellant was aware of the
nature and character of the drugs that Ruhl found and that the
drugs were subject to appellant's dominion and control.
Moreover, the quantity of the drugs involved and the manner in
which they were packaged sufficiently proved beyond a reasonable
doubt that appellant possessed the cocaine with the intent to
distribute it.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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