Charles Napoleon Hawkins v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Clements
UNPUBLISHED
Argued at Chesapeake, Virginia
CHARLES NAPOLEON HAWKINS
MEMORANDUM OPINION* BY
v. Record No. 2098-12-1 JUDGE STEPHEN R. McCULLOUGH
OCTOBER 22, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
W. McMillan Powers, Assistant Public Defender (Office of the
Public Defender, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Charles Napoleon Hawkins was convicted of possession of ten or more forged bank notes.
He argues the evidence was insufficient as a matter of law for four reasons (1) the Commonwealth
failed to prove he possessed the notes; (2) the evidence did not establish that he knew the notes were
forged; (3) the prosecution’s evidence failed to establish that he intended to utter the notes; and
(4) the testimony of Sergeant Travis Smaglo was contradictory and should not have been believed.1
We disagree and affirm the decision of the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
In his opening brief, appellant expressly abandoned his first four assignments of error.
These assignments of error were directed at the trial court’s denial of appellant’s motion to strike
at the close of the Commonwealth’s evidence. His remaining assignments of error cover the
same ground, but address the trial court’s decision to deny the motion to strike made at the
conclusion of all the evidence. Accordingly, we do not address the first four assignments of
error in appellant’s brief.
BACKGROUND
Appellant was the subject of several outstanding warrants. Police learned that he could be
found at Big Daddy’s, a pool hall in the City of Portsmouth. Several officers assembled and entered
the establishment. One officer, Officer Watts, went around the pool table. Sergeant Smaglo
testified on direct examination that he observed appellant reach into his right shorts pocket with his
right hand. Smaglo drew his gun and twice told appellant to remove his hand. As he removed his
hand, appellant threw a large sum of money on the floor. He was then handcuffed. Sergeant
Smaglo collected the money that was on the floor. He recovered a total of 18 twenty-dollar bills.
When appellant overheard Smaglo tell another officer that the money belonged to appellant,
appellant denied that the money was his. Smaglo answered, “[w]ell, yes it is. You threw it on the
floor. Why would you not want your money?” Appellant responded by denying again that the
money was his. At the time, Smaglo did not notice anything unusual about the money.
On cross-examination, Smaglo was asked, “when you approached Mr. Hawkins before he
began reaching into his pocket and began pulling out the money, . . . what was he doing with his
hand before you approached him?” Sergeant Smaglo answered, “Well, by the time I had noticed his
hand, when I first noticed him, his hand was already in his right . . . pocket, I believe, when I first
noticed that Officer Watts had already grabbed his left hand, his left arm.” Sergeant Smaglo also
testified that he did not recover any other currency from appellant, but Smaglo stated that he did not
search appellant.
Later, Smaglo noticed that a number of the bills had the same serial number, which led him
to believe they were counterfeit. Dan Apperson, an employee of the United Sates Secret Service,
testified as an expert on counterfeit currency for the prosecution. He concluded that the notes
recovered from appellant were counterfeit. The counterfeit bills totaled $360.
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Appellant offered testimony from a number of witnesses, including appellant’s half-sister
Keanna Wilson, who testified that appellant would not have had any opportunity to put his hands in
his pockets. According to Wilson, the police walked into the pool hall with guns drawn and
appellant would have been shot had he attempted to move his hands. She stated that at no time did
appellant pull anything out of his pockets. A friend of appellant’s, Kerry Irving, as well as
appellant’s father, offered similar testimony.
ANALYSIS
Code § 18.2-173 provides in relevant part that a person who possesses ten or more forged
bank notes “knowing the same to be forged . . . with the intent to utter or employ the same as true”
is guilty of a Class 6 felony. “When considering a challenge to the sufficiency of the evidence to
sustain a conviction, this Court reviews ‘the evidence in the light most favorable to the prevailing
party at trial and consider[s] all inferences fairly deducible from that evidence.’” Clark v.
Commonwealth, 279 Va. 636, 640, 691 S.E.2d 786, 788 (2010) (quoting Jones v. Commonwealth,
276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)). Where there is a conflict in the evidence, this
standard of review requires us to resolve that conflict in favor of the prevailing party, in this instance
the Commonwealth, Rodgers v. Commonwealth, 227 Va. 605, 614, 318 S.E.2d 298, 303 (1984),
and we “will not set aside the factual findings of the trial court unless those findings are ‘plainly
wrong or without supporting evidence,’” Williams v. Commonwealth, 52 Va. App. 194, 197, 662
S.E.2d 627, 628-29 (2008) (quoting Foster v. Commonwealth, 38 Va. App. 549, 554, 567 S.E.2d
547, 549 (2002)). Further, the trial judge, “who has the opportunity to see and hear the witnesses,
has the sole responsibility to determine their credibility, the weight to be given their testimony, and
the inferences to be drawn from proven facts.” Commonwealth v. Taylor, 256 Va. 514, 518, 506
S.E.2d 312, 314 (1998).
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I. THE EVIDENCE ESTABLISHED THAT THE APPELLANT POSSESSED THE FORGED BANK
NOTES, THAT HE HAD THE REQUISITE KNOWLEDGE THAT THE NOTES WERE
COUNTERFEIT, AND THAT HE HAD THE REQUISITE INTENT TO EMPLOY THEM AS TRUE.
In his first assignment of error, appellant argues that his conviction must be reversed
because the evidence does not establish that he possessed the bank notes. Sergeant Smaglo testified
that he observed appellant reach into his pocket with his right hand and throw the forged bank notes
on the floor. Appellant offered contrary testimony from his half-sister, a friend, and his father. The
trial court, however, believed Sergeant Smaglo’s testimony and disbelieved the testimony of
appellant’s witnesses. We will not second-guess the trial court’s credibility determinations on
appeal. The judgment of the trial court was not plainly wrong or without supporting evidence with
regard to whether appellant possessed the notes.2
The fact that appellant tried to discard the forged notes when the police arrived permits an
inference by the factfinder that appellant knew the bank notes were counterfeit and that he
attempted to discard them to avoid being caught with them in his possession. Ordinarily, one does
not throw away large sums of money on the floor when approached by police. As the United States
Court of Appeals for the Fifth Circuit has noted, “[p]robably the strongest evidence of guilty
knowledge is an attempt to abandon counterfeit currency when detection is feared.” Ruiz v. United
States, 374 F.2d 619, 620 (5th Cir. 1967).
Finally, we examine whether the evidence establishes that appellant harbored an intent to
utter these bills as true. Importantly, appellant possessed a large sum of counterfeit bills. When a
“defendant possesse[s] an unusually large number of counterfeit bills,” such “possession raise[s] a
possible inference that defendant obtained the currency purposefully for redistribution, rather
2
At trial, appellant did not raise any issues with respect to inconsistencies in Sergeant
Smaglo’s testimony and, therefore, any argument on this basis is defaulted. See Rule 5A:18.
Although Smaglo’s testimony is inconsistent with regard to the precise position of appellant’s right
hand prior to throwing the currency, Smaglo never wavered with regard to whether he observed
appellant throw the money on the floor.
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than incidentally in the course of business.” United States v. Berrios, 443 F. Supp. 408, 410 (E.D.
Pa. 1978). Moreover, he was in possession of the notes in a commercial establishment, a pool hall,
where, the trial court could infer from common experience, cash transactions are common. On
these facts, the trial court could draw the common sense conclusion that appellant possessed the
counterfeit currency with the intent to utter it, rather than for some other purpose such as an abiding
interest in numismatics.
II. RULE 5A:18 BARS CONSIDERATION OF THE ASSIGNMENT OF ERROR CONCERNING
CONTRADICTIONS IN SERGEANT SMAGLO’S TESTIMONY.
In his final assignment of error, Hawkins argues that the evidence was insufficient because
Sergeant Smaglo’s testimony is contradictory and unworthy of belief. This argument was not
advanced at trial. Under our rules, we will not consider on appeal an argument that was not made in
the trial court. Rule 5A:18. Appellant does not invoke the ends of justice exception, and we will
not do so sua sponte. See Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448
(2003) (en banc). Therefore, we will not consider this assignment of error.
CONCLUSION
The judgment of the trial court is affirmed.
Affirmed.
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