Ronald H. Moorefield, Sr. v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
RONALD H. MOOREFIELD, SR.
MEMORANDUM OPINION * BY
v. Record No. 2686-96-2 JUDGE SAM W. COLEMAN III
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Carl C. Muzi for appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Ronald H. Moorefield, Sr. appeals his conviction by a jury
on two counts of possession of marijuana with the intent to
distribute. Petersburg police on two separate occasions executed
warrants to search appellant's house. On the two occasions they
recovered marijuana, large amounts of cash, and paraphernalia
related to the distribution of drugs, including scales, a pager,
baggies, and a grinder containing traces of marijuana. Appellant
lived in the house with his two sons. The police recovered
various items of evidence from appellant's bedroom, the bedrooms
of appellant's sons, and the common areas of the house. The
officers testified as to which room in appellant's house they
found each item. Appellant contends that the items of evidence
seized from his sons' bedrooms and from the common areas of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
house were inadmissible because those areas were not subject to
his dominion and control. He also contends the evidence was
insufficient to support his convictions. We hold that the trial
court did not abuse its discretion in admitting the evidence and
that Rule 5A:12(c) bars our consideration of appellant's
sufficiency claim. Accordingly, we affirm the convictions.
ADMISSIBILITY OF THE EVIDENCE
"Evidence is admissible if it is both relevant and material.
'[E]vidence is relevant if it tends to establish the proposition
for which it is offered.' . . . Evidence is material if it
relates to a matter properly at issue." Evans-Smith v.
Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987)
(citation omitted). The admissibility of evidence is a matter
within the sound discretion of the trial court and its
evidentiary rulings will not be disturbed on appeal absent a
"clear abuse of discretion." Coe v. Commonwealth, 231 Va. 83,
88, 340 S.E.2d 820, 823 (1986).
The Commonwealth charged that appellant constructively
possessed the marijuana seized from the home and intended to
distribute it. "To support a conviction for constructive
possession, the Commonwealth must . . . show that the defendant
was aware of both the presence and character of the substance and
that it was subject to his dominion and control." White v.
Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879 (1997)
(citation omitted). "[P]ossession [of a controlled substance]
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need not always be exclusive. The defendant may share it with
one or more." Brown v. Commonwealth, 15 Va. App. 1, 9, 421
S.E.2d 877, 883 (1992). Possession of cash and instrumentalities
of the drug trade, such as scales, pagers, and baggies, may
evince an intent to distribute drugs. See Davis v. Commonwealth,
12 Va. App. 728, 733, 406 S.E.2d 922, 931 (1991).
The items seized from the appellant's sons' bedrooms and the
common areas of the house were admissible if they tended to prove
that appellant constructively possessed the drugs found
throughout the house and intended to distribute the drugs.
Evidence that drugs are located at various locations
throughout the appellant's house, whether it be in rooms occupied
exclusively by the appellant, in common areas, or in rooms or
areas occupied primarily by other family members, is relevant
because it tends to show that appellant was aware of the drugs,
he exercised dominion and control of the drugs, either by himself
or jointly with his sons, and he intended to distribute them
using the various paraphernalia found in his house. See Wymer v.
Commonwealth, 12 Va. App. 294, 300-01, 403 S.E.2d 702, 706-07
(1991) (evidence of cocaine and drug paraphernalia found in
common areas of house and bedroom shared by accused and another
relevant in accused's prosecution for cocaine possession). The
test for relevancy "is not whether the proposed evidence
conclusively proves the fact, but whether it has any tendency to
establish the fact in issue." Radar v. Commonwealth, 15 Va. App.
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325, 331, 423 S.E.2d 207, 211 (1992). Furthermore, the evidence
that drugs and paraphernalia were throughout the house was
material in that it related to and tended to prove the
Commonwealth's charges of possessing drugs with the intent to
distribute. Accordingly, the trial court did not abuse its
discretion when it admitted the evidence seized from the sons'
bedrooms and the common areas of the house.
SUFFICIENCY OF THE EVIDENCE - RULE 5A:12(c)
Appellant also contends the evidence was insufficient to
prove that he possessed marijuana with the intent to distribute.
Appellant failed to raise this issue in his petition for appeal.
"Only questions presented in the petition for appeal will be
noticed by the Court of Appeals." Rule 5A:12(c); see Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991) ("[This Court] will not consider issues on appeal that
were not raised in the petition and were not granted by this
Court."). Accordingly, Rule 5A:12(c) precludes our review of
appellant's sufficiency claim.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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