Jerrod Sherrell Jackson v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia and by teleconference
JERROD SHERRELL JACKSON, A/K/A
JEROME JACKSON
MEMORANDUM OPINION * BY
v. Record No. 0628-02-3 JUDGE JEAN HARRISON CLEMENTS
JUNE 17, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
William W. Sweeney, Judge Designate
Andrew W. Childress, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Jerrod Sherrell Jackson was convicted in a bench trial of
assault and battery against a law enforcement officer, in
violation of Code § 18.2-57(C), possession of cocaine with intent
to distribute, in violation of Code § 18.2-248, and possession of
marijuana, in violation of Code § 18.2-250.1. 1 On appeal, Jackson
contends the trial court erred (1) in denying his motion to
suppress the evidence offered against him that was obtained by the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Jackson was also convicted of assuming another name, in
violation of Code § 18.2-504.1. He does not challenge this
conviction on appeal.
police in violation of his Fourth Amendment rights and (2) in
finding the evidence sufficient to prove he intended to distribute
the cocaine in his possession. Finding no error, we affirm the
convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
Under familiar principles of appellate review, we view the
evidence and all reasonable inferences fairly deducible from
that evidence in the light most favorable to the Commonwealth,
the party that prevailed below. See Dowden v. Commonwealth, 260
Va. 459, 461, 536 S.E.2d 437, 438 (2000); Weathers v.
Commonwealth, 32 Va. App. 652, 656, 529 S.E.2d 847, 849 (2000).
So viewed, the evidence presented in this case establishes
that, at approximately 11:50 p.m. on April 26, 2001, Lynchburg
City Police Officer Tom Childress received a "LYN-COM" police
dispatch alerting him to a report from Greenfield Security
regarding the location of a man for whom there was an
outstanding capias. LYN-COM confirmed that a capias for failure
to appear at a criminal proceeding was outstanding for the
person named by Greenfield Security. Childress testified he
could not remember the name of the wanted man, but the
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description he received from dispatch was of a black male, with
a stocky build, wearing dark clothes and a black stocking cap,
who had left the area served by Greenfield Security in the
backseat of a green Allied taxi, identified as cab number
eleven. According to dispatch, the taxi was "headed toward the
area of 2202 Memorial Avenue."
Responding to the area where the taxi was reportedly
headed, Officer Childress proceeded in his marked police car up
Stuart Street toward the intersection of Memorial Avenue and
Stuart Street. As he approached the intersection, Childress
observed a green Allied taxi sitting under a streetlight at the
intersection, approximately three houses away from 2202 Memorial
Avenue. He saw two people in the taxi, the driver and a black
male in the backseat. When the officer's headlights illuminated
the taxi's interior, Childress saw that the passenger had a
stocky build and was wearing dark clothing and a black stocking
cap. Childress saw the passenger look in the direction of 2202
Memorial Avenue, where two marked police cars were parked, and
then look directly at Childress. At that point, the taxi
proceeded down Stuart Street past Childress's vehicle and away
from 2202 Memorial Avenue. The driver of the taxi, who was
called as a witness for Jackson, testified that the taxi was
Allied cab number eleven.
Officer Childress turned his vehicle around and followed
the taxi. After going approximately three blocks, the taxi
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pulled into the parking lot of the Family Dollar store.
Childress pulled his vehicle into the lot and parked behind the
taxi. A second police officer pulled his vehicle into the
parking lot and parked beside the taxi.
Officer Childress got out of his vehicle, approached the
taxi, and informed the driver that he was checking information
that there was an outstanding warrant for the passenger and that
he would need to ascertain the passenger's identity. Childress
then approached the passenger, later identified as Jackson,
informed him of the report he had received from LYN-COM, and
asked him if he had any identification. Jackson told Childress
he did not have any identification on him. The officer then
asked Jackson to get out of the taxi, and Jackson complied.
When asked for his name and date of birth, Jackson told the
officer his name was Jerome Saunders and his date of birth was
February 26, 1972. Childress then asked Jackson his age, and
Jackson responded that he was twenty-six years old. Immediately
recognizing that Jackson's stated age was inconsistent with the
year of his birth, Childress informed Jackson that, while not
under arrest, he was no longer free to leave and would be
handcuffed until the police could verify his identity.
However, when the other officer present attempted to
handcuff him, Jackson spun loose, punched Officer Childress in
the face, and attempted to flee. Jackson was subsequently
subdued, placed under arrest for assaulting Childress, and
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searched incident to that arrest. On his person, the officers
found $140 in twenty-dollar bills, a bag containing 8.3 grams of
a green leafy material later determined to be marijuana, and a
second bag containing 1.871 grams of a white substance later
determined to be cocaine. No smoking device was found on his
person.
Later, at the magistrate's office with Jackson, Officer
Childress learned that Jackson was not the person identified by
Greenfield Security and dispatch as having an outstanding
capias.
At trial, Investigator Davidson was qualified as an expert
in narcotics trafficking. He testified that the cocaine found
on Jackson's person was packaged in a way typically used for
distribution, was "almost ten times" the amount of cocaine a
typical user of cocaine would possess, and had a "street value"
of approximately $250. Davidson also testified that a user
would typically have a pipe or papers to smoke the cocaine. He
added that cocaine was typically sold in twenty-dollar "rock
increments" and that those who purchased cocaine typically used
twenty-dollar bills to pay for it.
Jackson testified he used cocaine but was not a dealer. He
further testified he had "so much" cocaine on him that night
because he had just won $290 in the lottery and had used some of
his winnings to buy cocaine and marijuana for his personal use.
He did not have anything on him with which to smoke the drugs,
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he testified, because the police "pulled [him] over" before he
had the chance to get any "papers."
II. MOTION TO SUPPRESS
Jackson contends the police lacked a reasonable suspicion
that he was wanted on an outstanding capias. He claims his
actions and the informant's vague and general description did
not provide Officer Childress with sufficient information to
justify the investigatory detention. Therefore, Jackson argues,
his initial detention was unlawful and all evidence resulting
from that unlawful seizure was obtained in violation of his
Fourth Amendment rights and should have been suppressed. Thus,
Jackson concludes, the trial court erred in not suppressing the
evidence offered against him. 2
The Commonwealth concedes that Jackson was effectively
seized when he was informed that the police intended to compare
his identity to that of a particular person for whom a capias
had been confirmed. The Commonwealth contends, however, that
the information provided to Officer Childress by dispatch and
his observations of Jackson's actions after receiving that
information clearly justified a brief investigatory detention to
check Jackson's identity. Jackson's further detention, the
Commonwealth continues, was also justified when he gave the
2
At oral argument, Jackson waived the other
suppression-related arguments included in his appellate brief.
Accordingly, we do not address those arguments here.
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police obviously false information regarding his age and date of
birth. Thus, the Commonwealth concludes, the investigatory
stop, Jackson's ensuing arrest, and the seizure of the marijuana
and cocaine were proper. We agree with the Commonwealth.
When a motion to suppress is reviewed on appeal, we examine
the records of both the suppression hearing and the trial to
determine whether the evidence was lawfully seized. DePriest v.
Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542 (1987).
"In reviewing a trial court's denial of a motion to suppress,
'[t]he burden is upon [the defendant] to show that the ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (alterations in original) (quoting Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
"'Ultimate questions of reasonable suspicion and probable cause
to make a warrantless search' involve questions of both law and
fact and are reviewed de novo on appeal." Id. (quoting Ornelas
v. United States, 517 U.S. 690, 691 (1991)). However, "we are
bound by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support them and we give
due weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." Id. at 198, 487
S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
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Under well-established Fourth Amendment principles, "[t]he
police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity 'may be afoot.'"
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). An investigatory stop under Terry
"is a lawful stop designed to permit an officer with reasonable
suspicion of criminal activity to quickly confirm or dispel that
suspicion." Davis v. Commonwealth, 35 Va. App. 533, 539, 546
S.E.2d 252, 255 (2001) (citing Illinois v. Wardlow, 528 U.S.
119, 126 (2000)). "Actual proof that criminal activity is afoot
is not necessary; the record need only show that it may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425
S.E.2d 77, 79 (1992). However, the justification for the
investigatory stop "must be based on something more than the
officer's 'inchoate and unparticularized suspicion or "hunch."'"
Ramey v. Commonwealth, 35 Va. App. 624, 629, 547 S.E.2d 519, 522
(2001) (quoting Terry, 392 U.S. at 27).
In determining whether a police officer had a reasonable
suspicion justifying an investigatory stop, "the courts must
consider 'the totality of the circumstances—the whole picture.'"
Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406
(1994) (quoting Sokolow, 490 U.S. at 8). We are further
mindful, in making that determination, that the police officer
may "view the circumstances confronting him in light of his
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training and experience, and he may consider any suspicious
conduct of the suspected person." James v. Commonwealth, 22
Va. App. 740, 745, 473 S.E.2d 90, 92 (1996).
Here, the record establishes that Officer Childress
received a report from dispatch that there was an outstanding
capias for a man who was the backseat passenger in a green
Allied taxi, identified as cab number eleven, heading for "the
area of 2202 Memorial Avenue." The man was described as a black
male, with a stocky build, wearing dark clothes and a black
stocking cap. Upon arriving, shortly after receiving the
dispatch, in the vicinity of 2202 Memorial Avenue, Childress
observed Jackson, a stocky black male, wearing dark clothes and
a black stocking cap in the backseat of a green Allied taxi,
identified as cab number eleven, located approximately three
houses away from 2202 Memorial Avenue. Childress saw Jackson
look in the direction of 2202 Memorial Avenue, where marked
police vehicles were parked. The officer then saw Jackson look
back at him. At that point, the taxi drove away from the
location.
Based on the totality of these circumstances, we conclude
that Officer Childress had a reasonable, articulable suspicion
that Jackson was the man who was wanted on the outstanding
capias. Not only did Jackson's physical characteristics and
clothing match the description provided by dispatch, Childress
observed Jackson in the vicinity of the address provided by
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dispatch in the backseat of a taxi matching the description
provided by dispatch. Childress's suspicion that Jackson was
the wanted man was further buttressed by Jackson's observable
interest in the indicated address and his leaving the area
immediately upon noticing Childress's approach.
Officer Childress's initial detention of Jackson was
therefore reasonable to allow the officer to confirm or dispel
his suspicion by checking Jackson's identity. Accordingly, that
brief investigatory detention was not in violation of Jackson's
Fourth Amendment rights.
Thereafter, when Jackson gave the officer obviously false
identifying information, Officer Childress was justified in
detaining him further while attempting to obtain additional
information. Once Jackson struck Childress in the face, the
officer had probable cause to arrest Jackson. Incident to that
arrest, the officers could properly conduct the search that
resulted in the discovery of the marijuana and cocaine on
Jackson's person. Hence, the trial court did not err in denying
Jackson's motion to suppress.
III. SUFFICIENCY OF THE EVIDENCE
Jackson next contends the evidence was insufficient to
prove he intended to distribute the cocaine in his possession.
We disagree.
When the sufficiency of the evidence is challenged on
appeal, we review the evidence "in the light most favorable to
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the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.
248, 250, 356 S.E.2d 443, 444 (1987). "In doing so, we must
discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335,
349, 494 S.E.2d 859, 866 (1998). We are further mindful that
the "credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are
matters solely for the fact finder's determination." Crawley v.
Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).
We will not disturb the conviction unless it is plainly wrong or
unsupported by the evidence. Sutphin v. Commonwealth, 1
Va. App. 241, 243, 337 S.E.2d 897, 898 (1985).
"Where an offense consists of an act combined with a
particular intent, proof of the intent is essential to the
conviction." Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988). "Because direct proof of intent [to
distribute drugs] is often impossible, it must be shown by
circumstantial evidence." Id. "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
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"However, the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
"Whether an alternate hypothesis of innocence is reasonable is a
question of fact and, therefore, is binding on appeal unless
plainly wrong." Archer v. Commonwealth, 26 Va. App. 1, 12-13,
492 S.E.2d 826, 832 (1997).
Factors that may indicate the defendant intended to
distribute the illegal drugs in his possession include the
"[p]ossession of a quantity [of drugs] greater than that
ordinarily possessed for one's personal use," Iglesias v.
Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en
banc), "[t]he method of packaging of the controlled substance,"
Servis, 6 Va. App. at 524, 371 S.E.2d at 165, the quantity and
denomination of the cash possessed, see Welshman v.
Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998),
and "the absence of any paraphernalia suggestive of personal
use," id.Here, the record contains ample evidence that Jackson
intended to distribute the cocaine in his possession. Jackson
possessed 1.871 grams of cocaine, consisting of three separate
rocks in three separate bags. He also had $140 in twenty-dollar
bills on his person. In addition, he had no smoking device on
his person. The Commonwealth's narcotics expert, Investigator
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Davidson, testified that the typical cocaine user purchased
cocaine in twenty-dollar "rock increments" and paid with
twenty-dollar bills. Davidson further testified that the
cocaine found on Jackson's person had a "street value" of
approximately $250 and was packaged in a manner typically used
for distribution. It was also, according to Davidson, nearly
ten times the amount of cocaine a typical user of cocaine would
possess. Davidson also testified that a mere user would
typically have a pipe or papers on him to smoke the cocaine.
Although Jackson testified at trial that he had just won
the lottery, had purchased the cocaine in his possession for
personal use, and had not had the chance before being detained
by the police to procure papers with which to smoke the cocaine,
the trial court was entitled, in assessing Jackson's credibility
and determining the weight to accord his testimony, to conclude
that he had given false testimony regarding his intended use of
the cocaine and that he had done so to conceal his guilt. See
Christian v. Commonwealth, 33 Va. App. 704, 716, 536 S.E.2d 477,
483 (2000) (en banc); Welch v. Commonwealth, 15 Va. App. 518,
525, 425 S.E.2d 101, 106 (1992).
We conclude, therefore, that the evidence presented by the
Commonwealth was sufficient to prove beyond a reasonable doubt
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that Jackson possessed the cocaine with the requisite intent to
distribute it.
Accordingly we affirm Jackson's convictions.
Affirmed.
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