Fullwood v. Com.

• Decision Date: 25 February 2010
• Docket Number: Record No. 091015.
• Citation: 689 S.E.2d 742
• Parties: Ronnie Eugene FULLWOOD v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

689 S.E.2d 742 Ronnie Eugene FULLWOOD
v.
COMMONWEALTH of Virginia. Record No. 091015. Supreme Court of Virginia. February 25, 2010.

[689 S.E.2d 743]

Charles E. Haden, Hampton, for appellant.

Jennifer C. Williamson, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: KEENAN, KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.

[689 S.E.2d 744]

OPINION BY Senior Justice HARRY L. CARRICO.

This appeal involves the application of Code § 18.2-255.2, which is entitled "Prohibiting the sale or manufacture of drugs on or near certain properties." On June 12, 2006, a grand jury in the Circuit Court for the City of Newport News indicted the defendant, Ronnie Eugene Fullwood, on one count of possessing marijuana and one count of possessing cocaine with intent to distribute within 1,000 feet of a school while upon public property or property open to public use in violation of Code § 18.2-255.2.

At the outset of a bench trial in the circuit court, Fullwood moved to dismiss one of the charges against him on the ground that possession of more than one substance with intent to distribute within 1,000 feet of a school constituted only one offense because the possession was based upon a single incident or transaction. The circuit court denied the motion. The court denied similar motions made at the conclusion of the Commonwealth's evidence and at the conclusion of all the evidence, the latter motion adding an argument that both charges should be dismissed because the possession did not occur on property open to public use.

At Fullwood's sentencing, he again moved the dismissal of one of the charges on the ground that the possession of two substances at the same time constituted only one offense. The circuit court denied the motion and sentenced Fullwood to incarceration with the Virginia Department of Corrections for five years on his marijuana conviction, all suspended, and for five years on his cocaine conviction, with four years suspended. Both suspensions were conditioned upon Fullwood's good behavior for fifteen years and his supervision on probation for one year from the date of his release from custody.^*

In a published opinion, the Court of Appeals of Virginia affirmed the judgment of the circuit court. Fullwood v. Commonwealth, 54 Va.App. 153, 676 S.E.2d 348 (2009). We awarded Fullwood this appeal.

Code § 18.2-255.2 provides in pertinent part as follows:

A. It shall be unlawful for any person to manufacture, sell or distribute or possess with intent to sell, give or distribute any controlled substance, imitation controlled substance or marijuana while:

(i) upon the property, including buildings and grounds, of any public or private elementary, secondary, or post secondary school, or any public or private two-year or four-year institution of higher education, or any clearly marked licensed child day center as defined in § 63.2-100;

(ii) upon public property or any property open to public use within 1,000 feet of the property described in clause (i);

. . . .

B. Violation of this section shall constitute a separate and distinct felony. Any person violating the provisions of this section shall, upon conviction, be imprisoned for a term of not less than one year nor more than five years and fined not more than $100,000. A second or subsequent conviction hereunder for an offense involving a controlled substance classified in Schedule I, II, or III of the Drug Control Act (§ 54.1-3400 et seq.) or more than one-half ounce of marijuana shall be punished by a mandatory minimum term of imprisonment of one year to be served consecutively with any other sentence.

BACKGROUND

On the early afternoon of January 20, 2006, Officers Ara M. Hahn and J.S. Turlington of the City of Newport News Police Department conducted surveillance at the Newsome Park apartment complex located on a dead-end street in the city. Off of the end of that street is a cul-de-sac and off of the cul-de-sac is a parking lot serving the complex that is less than six hundred feet from the Newsome Park Elementary School.

The apartment complex is located on private property posted with "No Trespassing" signs. There was also a letter on file with

689 S.E.2d 745

the Police Department authorizing the police to enforce the "No Trespassing" prohibition.

The police suspected that an "open-air drug market" was being operated on the parking lot; they had made "a lot [of arrests] dealing with narcotics" and had seized "various amounts of mostly marijuana." Officers Hahn and Turlington positioned themselves in a vacant apartment overlooking the parking lot. Using binoculars, Officer Hahn saw Fullwood pull into the parking lot and park his car near a dumpster. He alighted from the car and remained in the area talking to "people out there loitering around."

About 3:30 p.m., a pickup truck pulled into the parking lot and stopped twenty to thirty yards away from Fullwood's car. The driver of the pickup "never got out." Within a twenty-second span, Fullwood approached the driver's window of the pickup, had a brief conversation with the driver, and "appeared to get ... money, currency" from him. Fullwood then walked to his car, opened the trunk, and got "a small item" out of a backpack. Fullwood walked back to the pickup, where the driver put out his hand, palm up, into which Fullwood "appeared to drop something." Fullwood walked away and entered one of the apartments, where he stayed for "a couple minutes." The driver of the pickup exited the parking lot.

Officer Hahn radioed "surrounding units that were acting as take-down units" and gave them a description of the pickup truck and described what he had observed. J.V. Polak, a sergeant of the Police Department, observed the pickup on a nearby street, conducted a traffic stop, and gave the driver Miranda warnings. Sergeant Polak recovered "[a] clear plastic bag containing suspected marijuana" from the driver.

Officer Hahn later observed another suspected sale when a vehicle pulled into the parking lot and a passenger wearing a "Georgetown Hoyas jacket" got out and engaged Fullwood in a brief conversation. The two then went to the trunk of Fullwood's vehicle where Fullwood retrieved a "plastic bag that looked like it had an off-white substance inside of it." Fullwood "received money" and "did the exchange with the gentleman in the Hoyas jacket," who got into his car and drove away. He was not arrested because Officer Hahn did not have an officer "to take down that suspected buyer."

About 5:43 p.m., Sergeant Polak arrived at the parking lot and observed Fullwood walking around. Polak approached Fullwood, placed him under arrest, and told him that there would be a search of his car. Fullwood told Sergeant Polak that "there was a gun in the trunk,"...