Bagley v. Commonwealth, Record No. 0249-20-2

• Docket Nº: Record No. 0249-20-2
• Citation: 854 S.E.2d 177, 73 Va.App. 1
• Case Date: February 23, 2021
• Court: Court of Appeals of Virginia

73 Va.App. 1
854 S.E.2d 177

Lamont Lendell BAGLEY
v.
COMMONWEALTH of Virginia

Record No. 0249-20-2

Court of Appeals of Virginia.

FEBRUARY 23, 2021

Elliott B. Bender (David C. Reinhardt; Bender Law Group, PLLC, on briefs), Richmond, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges AtLee and Athey

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

73 Va.App. 8

Lamont Lendell Bagley appeals his conviction for second-offense possession of a Schedule I or II controlled substance with intent to distribute in violation of Code § 18.2-248, as well as the related revocation of a suspended sentence for his prior conviction for the same crime. On appeal, he argues that the search in which the drugs were discovered was unlawful under the Fourth Amendment to the United States Constitution. He further contends that the trial court acted improperly by making erroneous written additions to the transcript. Finally, he asserts that the evidence was insufficient to prove that he possessed the drugs and therefore also failed to support the revocation of his prior suspended sentence. We hold that the trial court did not commit reversible error. Accordingly, we affirm the challenged conviction and revocation.

I. BACKGROUND¹

At about 3:00 a.m. on January 26, 2019, Officers Megan Lynch and Austin Earlenbaugh of the Henrico County Police

73 Va.App. 9

Department responded to a call for police assistance. Both were "displaying [their] badge[s] of authority" at the time. The call was for a "disorderly situation" at 3527 Bolling Road. Officer Lynch was told that the caller reported that "two black males" and "one black female" were "blocking his driveway" in a white Nissan and had "brandished" "a firearm at [him]." Lynch also knew the caller reported that one or both of the men were "in their twenties." The caller additionally provided the police dispatcher with his name and other identifying information, although Lynch and Earlenbaugh did not know the identity of the caller at the time.

When the officers arrived at the address in their separate police cars, they determined that the dwelling at the given address was a small apartment building with an adjacent

854 S.E.2d 181

driveway.² They found two cars in the driveway, one white and one maroon. The white vehicle was facing the street, and the maroon vehicle was facing the white one. The officers did not activate their emergency lights or sirens and approached on foot from the street.

When the officers shone their flashlights "into the white car from the front, [they] saw a black male," the appellant, "in the driver[’s] seat." Lynch was about ten feet away from the white car on the passenger side. Earlenbaugh stood "off[ ] of the driver's side" and was more than ten feet away. The officers also saw a man inside the maroon car. At that time, the appellant and the occupant of the maroon car were the only people other than the officers at the scene.

As soon as the beam from Officer Lynch's flashlight shone on the windshield of the white car, the appellant began to engage in "furtive movement," "very rapidly" "throwing" or "shooting" his hands "straight down," toward the bottom half of the car. Lynch saw the appellant engage in these movements

73 Va.App. 10

"multiple" times. She could not see the appellant's hands, but she saw his arms move and believed that he was "sticking his hands ... underneath the driver's seat." Earlenbaugh, who was standing to the side of the white car, also described the appellant's movements as "quickly leaning under the [driver's] seat."

After making these movements, the appellant opened the car door, got out "quickly," and moved rapidly toward the apartment building. The officers "stopped him from going inside [an] apartment" in order to "speak to him about the situation" for which they had been dispatched. They frisked the appellant for weapons and found "nothing ... on him." They also obtained his identification and handcuffed him. The appellant's identification reflected that he was in his mid-thirties, although Officer Lynch did not review his birth date at that time.

Lynch next conducted a protective sweep of the driver's seat of the white car because she believed that the appellant had been trying to hide something and knew the caller had reported that an occupant of the white car had brandished a firearm. When Lynch opened the car door, she saw a blue latex glove between the driver's seat and the door. She left the glove in place and limited her search to the area beneath the driver's seat. Two to three inches from the front of the seat, she found a bag containing a large quantity of white powder that appeared to be cocaine, as well as a digital scale. Some of the powder was also "scattered on[ ] the floor."

Once Officer Lynch found the suspected cocaine and scale beneath the seat, the rest of the vehicle was searched. Inside the blue glove was a white substance also believed to be cocaine. Plastic baggies that looked new were on the ground beside the driver's door of the car. The appellant did not own the car, but he had permission to use it. Although no evidence established how long he had been in the car at the time of the incident, a piece of mail bearing his name was found in the car's center console.

73 Va.App. 11

At the pre-trial suppression hearing, the appellant argued that the officers did not have reasonable suspicion to search the car. The judge rejected this claim and denied the motion to suppress. He reasoned that because the appellant was merely detained and not under arrest, the appellant could be expected to re-enter the vehicle when the detention ended and would once again have access to the firearm that the police reasonably believed might be in the car. Consequently, the judge held that the search of the vehicle was a lawful protective sweep.

At trial, in addition to offering testimony from the officers about their encounter with the appellant, the Commonwealth introduced evidence about the drugs. That evidence proved that the white powder in the car comprised more than 80 grams of crack and powder cocaine representing about 700 individual doses. Expert testimony regarding the value of an ounce of each type of cocaine supported a finding that the drugs were worth between $4,600 and $5,100.

In a motion to strike and again during closing argument, the appellant contended

854 S.E.2d 182

that the evidence failed to prove that he had dominion and control of the drugs as required to prove constructive possession. The trial court denied the motion to strike and found the evidence sufficient to prove the appellant's guilt. The court expressly relied on the appellant's furtive movements toward the floorboard beneath the driver's seat when the officers shined their flashlights on him. It further pointed out that the appellant quickly got out of the vehicle and "tried to walk away" from the officers. The court also emphasized that the officers found multiple new baggies on the ground beside the car door.

The court found the appellant guilty of second-offense possession of a Schedule I or II controlled substance with intent to distribute. He was sentenced to twenty years in prison with thirteen years suspended. The court also revoked the appellant's suspended sentence of ten years for a prior drug offense and resuspended nine years, leaving him with one year to serve.

73 Va.App. 12

The appellant subsequently filed a motion to reconsider or alternatively for a new suppression hearing. The court denied the motion. After the appellant filed his notice of appeal and the relevant transcripts were prepared, he objected to the trial transcript because it was incomplete. In response, the court subsequently filed an "Addition to Transcript."

II. ANALYSIS

The appellant presents eight assignments of error covering four different subject areas. First, he contends that the search in which the drugs were discovered violated his Fourth Amendment rights. Second, he argues that the denial of his motion to reconsider the suppression ruling based on after-discovered evidence was error. Third, he suggests that the trial court's written additions to the transcript were not supported by the record. Fourth, he asserts that the evidence was insufficient to prove that he possessed the drugs and therefore also failed to support the revocation of his prior suspended sentence. We consider each of the assignments of error in turn.

A. Reasonableness of the Search of the Vehicle³

In his first four assignments of error, the appellant argues that the search of the vehicle was unreasonable under the Fourth Amendment. Consequently, he contends that the trial court erred by refusing to suppress the incriminating evidence found in the car.

Our consideration of these related claims involves well-defined principles. In reviewing the...