Neil Wayne Hounshell, s/k/a Neil Wayne Hounshell, II v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia
NEIL WAYNE HOUNSHELL, S/K/A
NEIL WAYNE HOUNSHELL, II
MEMORANDUM OPINION * BY
v. Record No. 2558-09-2 JUDGE ROBERT P. FRANK
NOVEMBER 9, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
James F. D’Alton, Jr., Judge
(Amanda Nicole Mann; Law Offices of David L. Cloninger, on
brief), for appellant. Appellant submitting on brief.
Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Neil Wayne Hounshell, s/k/a Neil Wayne Hounshell, II, appellant, was convicted, in a bench
trial, of possession with the intent to distribute Methadone, in violation of Code § 18.2-248,
possession with the intent to distribute Diazepam, in violation of Code § 18.2-248, and two counts
of attempt to deliver to a prisoner a controlled substance, in violation of Code § 18.2-474.1. On
appeal, appellant challenges the sufficiency of the evidence for all four charges. For the reasons
stated, we find no error and affirm the judgment of the trial court.
BACKGROUND
On January 16, 2009, appellant reported to the Petersburg jail annex to serve his sentence on
weekends. Upon arrival, he was strip searched to insure he had no contraband on his person.
Before the search, appellant voluntarily turned over his medications to a sergeant at the jail, but he
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
denied having any contraband in his possession. Deputy Robert Eroh, who conducted the search,
found a baggie in appellant’s underwear. The baggie contained tobacco products and some blue and
white pills. Seven Diazepam pills and one Methadone hydrochloride pill were recovered.
When confronted with the pills at the time they were found, appellant said he needed them
because of a prior military injury. Appellant produced no prescriptions for these pills.
Several days later, 1 appellant told Sergeant C.H. Hill that he brought the pills into the jail
annex because he had spoken with a friend who had previously been incarcerated in the annex. The
friend told appellant that if he brought “stuff” in for other inmates, time in the jail would “go a lot
easier.” At trial, the sergeant indicated appellant would have been placed in isolation and would not
have had contact with other inmates.
Appellant admitted at trial he had no prescriptions for the pills found in his underwear. He
did have prescriptions for Suboxone, Lunesta, and Carbamazepine. Appellant testified he takes
these medications to help him sleep and to prevent him from going through withdrawal from pain
medication. As to the pills found in his underwear, appellant explained he brought them to the jail
from his home because he was running late to report to jail and could not get to the pharmacy. The
pills belonged to his wife, who took similar medications. He stated he only took the quantity
needed for his weekend incarceration.
Appellant explained he did not turn in these medications when he arrived at the jail and that
he did conceal them because, on a prior occasion, the jail personnel did not administer the
medications to him. Further, appellant denied any intention of distributing those drugs because he
needed them for himself. He also denied telling Sergeant Hill that if he brought drugs into the jail,
he would have an easier confinement. However, he did admit he understood jail procedure
regarding turning in medications and tobacco products, and he chose to violate those rules.
1
Sergeant Hill’s written notes were dated March 7, 2009.
-2-
The trial court rejected appellant’s trial testimony, found the Commonwealth’s evidence
sufficient to prove appellant’s guilt, and convicted appellant of the four offenses.
This appeal follows.
ANALYSIS
On appeal, appellant contends the evidence was insufficient to prove he intended to
distribute the drugs in the jail annex. 2
‘“On review of a challenge to the sufficiency of the evidence, we view the evidence in the
light most favorable to the Commonwealth, the prevailing party, and grant to it all reasonable
inferences fairly deducible therefrom.’” Hagy v. Commonwealth, 35 Va. App. 152, 157, 543
S.E.2d 614, 616 (2001) (quoting Robertson v. Commonwealth, 31 Va. App. 814, 820, 525
S.E.2d 640, 643 (2000)). In considering such an appeal, we presume the judgment of the trial court
to be correct and reverse only if the trial court’s decision is plainly wrong or without evidence to
support it. Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002).
Further, we will not “substitute our judgment for that of the trier of fact, even were our
opinion to differ.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
“Instead, 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
“This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Id.
“[T]he credibility of witnesses and the weight to be accorded their testimony are
questions for the fact finder, and ‘[w]hen the sufficiency of the evidence is attacked, the
2
Appellant conceded at trial and on appeal that he possessed the drugs in question.
-3-
judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict.’”
Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991) (quoting Evans v.
Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)).
Under Code § 18.2-248(A), “it shall be unlawful for any person to manufacture, sell, give,
distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or
an imitation controlled substance.” See also Christian v. Commonwealth, 33 Va. App. 704, 716,
536 S.E.2d 477, 483 (2000) (en banc) (holding that a person violates Code § 18.2-248(A) when
he possesses “the controlled substance contemporaneously with his intention to distribute that
substance”). Proof of an accused’s “specific intent” to distribute a controlled substance is necessary
to sustain a conviction under Code § 18.2-248. See Servis v. Commonwealth, 6 Va. App. 507, 524,
371 S.E.2d 156, 165 (1988) (holding that where an offense consists of an act combined with a
particular intent, proof of the intent is essential to the conviction).
Intent is the purpose formed in a person’s mind which may, and often must, be inferred
from the facts and circumstances in a particular case. Ridley v. Commonwealth, 219 Va. 834,
836, 252 S.E.2d 313, 314 (1979). The state of mind of an accused may be shown by his acts and
conduct. Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974).
Essentially, appellant’s intent argument applies equally to all four offenses. Code
§ 18.2-474.1, in pertinent part, prohibits any person to willfully deliver, or attempt to deliver to any
confined prisoner a controlled drug. While appellant admitted to possessing the contraband in
question, he denies having the requisite intent to distribute.
In furtherance of his argument, appellant contends that no evidence proved he intended to
deliver the pills to “any prisoner” in the jail annex. He maintains that the evidence is consistent with
his testimony that he brought the pills into the jail only for his own use, proving mere possession.
-4-
The trial court, however, did not believe appellant’s trial testimony, which conflicted with what the
trial court called “the more credible version of his statement.”
We acknowledge that “a factfinder cannot arbitrarily disregard a reasonable hypothesis of
innocence.” Cooper v. Commonwealth, 54 Va. App. 558, 573, 680 S.E.2d 361, 368 (2009).
However, “‘[w]hether an alternate hypothesis of innocence is reasonable is a question of fact
and, therefore, is binding on appeal unless plainly wrong.’” Emerson v. Commonwealth, 43
Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (quoting Archer v. Commonwealth, 26 Va. App.
1, 12-13, 492 S.E.2d 826, 832 (1997)); see also Clanton v. Commonwealth, 53 Va. App. 561,
572-73, 673 S.E.2d 904, 910 (2009) (en banc). In this case, the trial judge made a factual
determination that appellant’s hypothesis of innocence was not reasonable, and we will not
disturb that conclusion on appeal.
The evidence revealed that appellant knew of the procedures to turn in prescription
medication at the jail annex. He not only failed to follow those procedures, but he also
concealed the pills in his underwear. Appellant told Sergeant Hill that he brought the pills into
the jail to give to other inmates so his stay would “go a lot easier.” While appellant at trial
denied making that statement, the trial court rejected appellant’s testimony. “A defendant’s false
statements are probative to show he is trying to conceal his guilt, and thus is evidence of his
guilt.” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) (citing
Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).
The trial court discarded appellant’s testimony as to why he concealed the pills and
brought them into the jail. Appellant’s statement to Sergeant Hill, in itself, is sufficient to prove
he brought the drugs into the jail with the intent to distribute them to another prisoner, and not
merely for his own use. The trial court accepted Sergeant Hill’s testimony that appellant made
that admission, and the trial court rejected appellant’s explanation at trial. “The credibility of the
-5-
witnesses and the weight accorded the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20
Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citing Schneider v. Commonwealth, 230 Va.
379, 382, 337 S.E.2d 735, 736-37 (1985).
Relying on Lewis v. Commonwealth, 15 Va. App. 337, 423 S.E.2d 371 (1992), appellant
maintains that his actions amounted to mere preparation and not to an attempt to deliver the
drugs to a prisoner. In Lewis, we explained:
It is well established that an attempt is composed of two
elements: the intention to commit the crime, and the doing of some
direct act towards its consummation which is more than mere
preparation but falls short of execution of the ultimate purpose.
Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212,
213 (1978). The evidence must prove an overt but ineffectual act
committed in furtherance of the criminal purpose. Howard v.
Commonwealth, 221 Va. 904, 906, 275 S.E.2d 602, 603 (1981).
It is impossible to formulate a rule which will be a definite
and unbending guide in determining what acts constitute
preparation and what acts amount to legal attempts. In a general
way, however, it may be said that preparation consists in devising
or arranging the means or measures necessary for the commission
of the offense and that the attempt is the direct movement toward
the commission after the preparations are made. Granberry v.
Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946).
Id. at 339-40, 423 S.E.2d at 373 (internal quotations omitted).
Appellant posits that the evidence in this case failed to prove an action done in
furtherance of a delivery. However, the facts in Lewis are markedly different from the facts
before us on appeal.
In Lewis, the defendant, a jail guard, approached an inmate and proposed that the inmate
sell drugs on the guard’s behalf. The inmate gave the defendant marked money. Later,
defendant was walking toward the inmate compound when he was arrested. No drugs were
found on the defendant. We held defendant’s actions amounted to no more than preparation. No
-6-
evidence proved he ever possessed any drugs, nor that he made any arrangements to secure the
drugs. We noted that “[p]reparation alone is not enough, there must be some appreciable
fragment of the crime committed, it must be in such progress that it will be consummated unless
interrupted by circumstances independent of the will of the attempter, and the act must not be
equivocal in nature.” Id. at 340, 423 S.E.2d at 373 (quoting People v. Buffum, 256 P.2d 317,
321 (Cal. 1953)). In reversing Lewis’s conviction, we concluded that “[w]hile it is not necessary
to show that the conduct was thwarted at the instant of consummation, the evidence must prove
that the preparation proceeded ‘far enough towards the accomplishment of the desired result to
amount to the commencement of the consummation.’” Id. (quoting Barrett v. Commonwealth,
210 Va. 153, 156, 169 S.E.2d 449, 451 (1969)).
Unlike Lewis, appellant took all the necessary steps to accomplish his objective of
delivering drugs to others in the jail annex. In preparation for reporting to jail, appellant
concealed drugs, for which he had no prescription, in his underwear, then entered the jail with
those drugs, and failed to report the drugs to jail personnel. But for the strip search, he would
have completed his crimes. Appellant went far beyond mere preparation.
The trial court in this case rejected appellant’s hypothesis of innocence and concluded
that appellant had the intent to distribute drugs in violation of Code § 18.2-248 and the intent to
deliver or attempt to deliver drugs to a prisoner in violation of Code § 18.2-474.1. That decision
can be overturned only if “no rational factfinder would have come to that conclusion.” Haskins
v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004). In this case, the evidence
supports the trial court’s finding.
-7-
CONCLUSION
Because the Commonwealth’s evidence proved appellant’s guilt beyond a reasonable
doubt, the trial court did not err in convicting appellant. Therefore, we affirm the judgment of
the trial court.
Affirmed.
-8-