Ames v. Commonwealth
| Decision Date | 07 November 2017 |
| Docket Number | Record No. 0526-16-1 |
| Court | Virginia Court of Appeals |
| Parties | ROBERT CHRISTOPHER AMES v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judges Decker and Russell
Argued at Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Bassel Khalaf, Assistant Public Defender, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Robert Christopher Ames appeals his convictions for possession of a concealed weapon, possession of a firearm by a convicted felon, and possession of marijuana, in violation of Code §§ 18.2-250.1, -308, and -308.2. He argues that the trial court erred by admitting testimony that he asserted his Fourth Amendment rights as substantive evidence of his guilt. The appellant also challenges the sufficiency of the evidence to prove that he had constructive possession of the firearm and marijuana and that the location of the firearm rendered it accessible for immediate use. For the reasons that follow, we affirm the convictions.
While on patrol on the evening of August 28, 2014, Officer Spencer Parrish with the Virginia Beach Police Department detected a strong odor of unburned marijuana as he walked across a convenience store parking lot to his police car. There was a Honda parked in front of the store with the driver's side door open. Parrish saw the appellant in the driver's seat "digging around" inside the center console of the vehicle. The officer returned to his car and told his partner, Officer Mark Bennett, about the odor. He told Bennett that he believed that the smell was coming from the appellant's vehicle. They moved the marked police car behind the Honda.
Both Parrish and Bennett, who were in uniform, approached the car. The officers smelled the odor of marijuana coming from the open driver's door. The appellant was the only person inside the vehicle, and he continued rummaging in the center console "area." Bennett identified himself and started talking to the appellant. The appellant got out of the car, turned to face Bennett, and "slammed" the car door behind him. Officer Bennett asked how much marijuana was in the car. The appellant's hands shook, his voice trembled, and he was breathing heavily. He started walking away from the car. At that point, Bennett asked for his identification. The appellant provided an identification card, although he had difficulty doing so because his hands were shaking.
Bennett explained to the appellant that he was being detained because of the marijuana odor coming from the car. The appellant denied that the car smelled like marijuana. Bennett told the appellant to put his hands behind his back. As the officers took hold of the appellant'swrists, he tried to pull his hands away from them. The appellant asked why he was being arrested. As Officer Bennett moved the appellant toward the police car, he yelled, The appellant tried to run, but Bennett maintained his hold on the appellant's wrist and the handcuffs. Eventually, the officers were able to subdue the appellant.
Parrish and Bennett searched the Honda. Officer Parrish opened the center console and immediately found a loaded Glock handgun. A plastic bag containing marijuana was found in a closed compartment in the center of the dashboard. A digital scale was also recovered. The police learned that the Honda was registered to a female, and they found a Virginia identification card belonging to Taj Haskins in the car.
The appellant was tried on charges of unlawfully carrying a concealed weapon, possessing a firearm after being convicted of a felony, possessing marijuana, and resisting arrest. At the conclusion of the Commonwealth's evidence, the trial court granted the appellant's motion to strike the charge of resisting arrest. The court convicted the appellant of the remainder of the charges. He was sentenced to a total of seven years and thirty days in prison, with all except two years suspended.
The appellant argues that the trial court erred by admitting the testimony that he asserted his rights under the Fourth Amendment as substantive evidence of guilt. He also contends that the evidence did not support his convictions.
The appellant argues that the trial court erred by admitting testimony that he asked the police officers why he was being "arrested" and that he yelled that they could not search his car. He contends that allowing the Commonwealth to use his assertions of his Fourth Amendmentrights as substantive evidence of his guilt was an impermissible "penalty for asserting a constitutional privilege."2 The appellant also argues that the statements were more prejudicial than probative in violation of Rule of Evidence 2:403.
The standard of review on appeal is well settled. The "admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Cousins v. Commonwealth, 56 Va. App. 257, 272, 693 S.E.2d 283, 290 (2010) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Thomas v. Commonwealth, 62 Va. App. 104, 111-12, 742 S.E.2d 403, 407 (2013) (quoting Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013)). A reviewing court can conclude that "an abuse of discretion has occurred" only in cases in which "reasonable jurists could not differ" about the correct result. Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)). "[B]y definition," however, a trial court "abuses its discretion when it makes an error of law." Coffman v. Commonwealth, 67 Va. App. 163, 166, 795 S.E.2d 178, 179 (2017) (quoting Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132, 135 (2014)).
The appellant argues that the challenged statements could not be used as substantive evidence of his guilty knowledge of the presence of the contraband in the car any more than an accused's exercise of his or her Fifth Amendment right to remain silent can be used as evidence of guilt. See Griffin v. California, 380 U.S. 609, 615 (1965) (). He suggests that assertions of Fourth Amendment rights are per se inadmissible evidence but provides no applicable legal authority supporting this proposition.3 We see no basis for creation of such a per se rule.
The appellant also contends that the challenged statements were inadmissible under the traditional probative versus prejudice framework because the trial court failed to adequately consider the unfairly "prejudicial effect of penalizing" him for asserting his Fourth Amendment rights. Generally, relevant evidence should be excluded only if "the probative value of the evidence is substantially outweighed by . . . the danger of unfair prejudice."4 Commonwealth v. Proffitt, 292 Va. 626, 635, 792 S.E.2d 3, 7 (2016) (alteration in original) (quoting Va. R. Evid. 2:403(a)). "In determining whether relevant evidence should be admitted, the trial court must apply a balancing test to assess the probative value of the evidence and any undue prejudicial effect of that evidence." McCloud v. Commonwealth, 269 Va. 242, 257, 609 S.E.2d 16, 24 (2005). "Virginia law . . . intervenes only when the alleged prejudice tends to inflame irrational emotions or leads to illegitimate inferences." Thomas v. Commonwealth, 44 Va. App. 741, 758, 607 S.E.2d 738, 746, adopted upon reh'g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005); see, e.g., Turner v. Commonwealth, 65 Va. App. 312, 330, 777 S.E.2d 569, 578 (2015) ().
The appellant's question why he was arrested was not prejudicial; it did not tend to "inflame irrational emotions" or give rise to "impermissible inferences," particularly in the context of a bench trial.5 Thomas, 44 Va. App. at 758, 607 S.E.2d at 746. To the extent that the appellant's question of why he was "arrested" and his declaration that the police officers could not search his car supported the inference that the appellant knew that he had contraband in the car, that incidental prejudice was outweighed by the evidence's probative value. See generally Thomas, 44 Va. App. at 758, 607 S.E.2d at 746; Burchette v. Commonwealth, 15 Va. App. 432, 438, 425 S.E.2d 81, 85 (1992) (). It is clear from the record that the trial court was aware of its responsibility to weigh the probative value against the prejudicial effect of the evidence and did so.
The Commonwealth sought to prove the sequence of events underlying the charge of resisting arrest as well as the appellant's connection to the car. The appellant's question why he was "arrest[ed]" was relevant to the charge of resisting arrest. In addition, his declaration that the officers could not search "his" car was probative of his connection to the vehicle and consequently relevant to the charges relating to possession of the contraband inside it. See Burchette, 15 Va. App. at 435, 425 S.E.2d at 83 (...
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