Herron v. Com.
| Decision Date | 23 February 2010 |
| Docket Number | Record No. 1759-08-2. |
| Citation | 688 S.E.2d 901,55 Va. App. 691 |
| Parties | Shiron W. HERRON, Jr. v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
James L. McLemore, IV, for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: BEALES, POWELL and ALSTON, JJ.
Shiron W. Herron, Jr. (appellant) appeals his conviction for violating Code § 53.1-203(5), making it unlawful for any prisoner in a correctional facility to possess a chemical compound not lawfully received.1 Appellant argues the evidence was insufficient to support the conviction because he did not intend to bring cocaine into a correctional facility. Appellant further argues the conviction is in violation of his Fifth Amendment right against self-incrimination. For the reasons stated below, we affirm appellant's conviction.
"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008).
The evidence showed that on April 19, 2006, Detective S. Thomas (Thomas) of the Richmond Police Department was investigating suspicious activity at an apartment complex. While there, Thomas observed appellant knocking on the door of an apartment. Thomas asked appellant if he lived at the apartment, and appellant replied that he did not. When the door opened, appellant quickly entered and shut the door. Approximately ten to fifteen seconds later, Thomas knocked on the door and the apartment leaseholder allowed Thomas to enter. Once inside, Thomas observed appellant poking his head out of the kitchen. At some point after Thomas entered the apartment, he determined that appellant had an outstanding warrant for assault and battery, and he arrested appellant.
In a search incident to arrest, Thomas asked appellant if he had anything in his buttocks or crotch area. Appellant said that he did not. However, when Thomas asked appellant to spread his legs, appellant placed his feet only a few inches apart. When Thomas touched the backside of appellant's legs, appellant immediately spun around. As a result, Thomas was unable to complete the search.
Thomas then took appellant to jail. Before going inside, Thomas again asked appellant if he had any contraband on his person. Thomas specifically informed appellant there were additional charges for taking any illegal substance inside the jail. Appellant again responded that he did not have any drugs.
Upon arriving at the jail Thomas informed officers there that appellant was uncooperative in his search and would need to be searched further. During processing, a deputy attempted a pat-down search but again, when he came near appellant's buttocks area, appellant jumped back and spun around. An officer asked appellant if he had anything on his person that he wanted to turn over, and appellant again said that he did not. Officers placed appellant in a holding cell and performed a strip search. Once appellant removed his pants, one of the officers noticed a plastic baggy between appellant's buttocks. The officer asked appellant to remove the bag. Appellant pulled the bag from his buttocks, ripped it open, and began shoving small packets of an off-white substance into his mouth. Officers restrained appellant and retrieved some of the substance, which was later determined to be cocaine.
At trial, appellant moved to strike the evidence recovered during the search conducted at the jail, arguing that he did not intend to bring cocaine into the jail and that forcing him to confess to possession of the drugs violated his Fifth Amendment right against self-incrimination. The trial court denied appellant's motion to strike the evidence and found appellant guilty of possession of an illegal substance in a correctional facility. This appeal followed.
Appellant was convicted of violating Code § 53.1-203(5), which provides It shall be unlawful for a prisoner in a state, local or community correctional facility or in the custody of an employee thereof to ... [p]rocure, sell, secrete or have in his possession any chemical compound which he has not lawfully received....
Appellant argues that the trial court erred in convicting him of possession of cocaine in violation of the statute because he did not have the requisite intent to bring cocaine into the jail. Appellant contends that the Commonwealth did not prove beyond a reasonable doubt that he possessed the specific intent to take the drugs into a correctional facility, because he did not enter the jail voluntarily. Further, appellant argues that forcing him to admit to possession of the drugs is a violation of his right against self-incrimination, as conferred by the Fifth Amendment to the United States Constitution. In this regard, appellant argues that he was presented with a "Hobson's choice"2 of admitting that he had contraband, thus waiving his Fifth Amendment rights with respect to a potential charge of possession of cocaine, or alternatively running the risk of being charged with the instant offense if the drugs on his person were recovered while appellant was inside the jail.
In a challenge to the sufficiency of the evidence, this Court must uphold appellant's conviction unless it "is plainly wrong or without evidence to support it." Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997).
To the extent the issue presented here involves the statutory construction of Code § 53.1-203, this Court reviews the trial court's ruling de novo. Robinson v. Commonwealth, 274 Va. 45, 51, 645 S.E.2d 470, 473 (2007); Williams v. Commonwealth, 50 Va.App. 337, 340, 649 S.E.2d 717, 718 (2007). The basic rules of statutory construction require this Court to determine intent from the words used in the statutes at issue. See e.g., Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d 66, 68 (2004). "Although penal laws are to be construed strictly [against the Commonwealth], they ought not to be construed so strictly as to defeat the obvious intent of the legislature." Carter v. Commonwealth, 38 Va.App. 116, 125, 562 S.E.2d 331, 335 (2002) (alteration in Carter) (quoting Willis v. Commonwealth, 10 Va.App. 430, 441, 393 S.E.2d 405, 411 (1990)). "`[A] statute should never be construed so that it leads to absurd results.'" Id. (quoting Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992)).
Appellant's first contention is that the trial court erred in denying his motion to strike the evidence because the Commonwealth failed to prove beyond a reasonable doubt that appellant intended to bring cocaine into the jail. However, nothing in Code § 53.1-203 requires that the Commonwealth prove appellant's specific intent.
[T]he law is clear that the legislature may create strict liability offenses as it sees fit, and there is no constitutional requirement that an offense contain a mens rea or scienter element. Thus, courts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime.
Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003) (citations omitted).
In Esteban, the defendant was convicted under Code § 18.2-308.1(B), which prohibits possession of a firearm on school property. Id. at 606-07, 587 S.E.2d at 524. Esteban argued that she did not know there was a firearm in the bag she was carrying, although she admitted to intentionally and voluntarily entering onto school property. Id. at 608, 587 S.E.2d at 525. Esteban argued the trial court should have instructed the jury that the Commonwealth had to prove she knew she possessed the firearm on school property. Id. at 608-09, 587 S.E.2d at 525. Rejecting Esteban's argument, the Supreme Court of Virginia held that in enacting Code § 18.2-308.1(B), the General Assembly intended to "assure that a safe environment exists on or about school grounds" by prohibiting "the introduction of firearms into a school environment," even those introduced inadvertently or unintentionally. Id. at 609-10, 587 S.E.2d at 526. Thus, the Court in Esteban held Code § 18.2-308.1(B) created a strict liability crime and affirmed Esteban's conviction.
The legislative intent behind Code § 53.1-203(5) is no less compelling. Any introduction of a controlled substance into a correctional facility threatens the successful rehabilitation of the prisoners in that facility, compromises the health of the prisoners, and threatens the safety of those who work in that facility. See generally Winston v. Commonwealth, 51 Va.App. 74, 82, 654 S.E.2d 340, 344 (2007) ().
Further, under well-settled rules of statutory construction, "omitted terms were not intended to be included within the scope of the statute." Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000). Code § 53.1-203(5), like Code § 18.2-308.1(B), contains no intent requirement, and this Court will not read one into the statute. Accordingly, Code § 53.1-203(5) does not require the Commonwealth to prove appellant intended to bring drugs into a correctional facility.
Appellant further contends that even if Code § 53.1-203(5) is a strict liability offense, the Commonwealth still must prove that appellant committed a voluntary act. "All crimes of affirmative action," even strict liability crimes, "require something in the way of a mental element-at least an intention to make the bodily movement which constitutes the act which the crime requires." 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal...
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