Kelly v. Commonwealth of Virginia
| Decision Date | 21 January 2003 |
| Docket Number | Record No. 3100-01-1. |
| Court | Virginia Court of Appeals |
| Parties | DEMETRIUS KELLY, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. |
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY, No. 00CR200. Glen A. Tyler, Judge.
William L. Taliaferro, Jr. (Swartz, Rabinowitz, Taliaferro, Lewis, Swartz & Goodove, on brief), for appellant.
John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton and Kelsey Argued at Richmond, Virginia.
OPINION BY JUDGE ROBERT J. HUMPHREYS
This matter comes before the Court on a rehearing en banc from an unpublished panel decision rendered January 21, 2003. See Kelly v. Commonwealth, 03 Vap UNP 3100011 (2003). In that decision, a divided panel of this Court affirmed Kelly's conviction for possession of marijuana with intent to distribute (in violation of Code § 18.2-248.1), but reversed his conviction for importing narcotics into Virginia with intent to distribute (in violation of Code § 18.2-248.01), finding the evidence insufficient, as a matter of law, to support that conviction. By order dated February 21, 2003, we granted the Commonwealth's petition for a rehearing en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing en banc, we affirm the judgment of the trial court as to both convictions.
I. Background
When the sufficiency of the evidence is challenged on appeal, we review the evidence "in the light most favorable to 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 so doing, 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, 348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)).
So viewed, the evidence proved that on March 14, 2000, State Trooper William Talbert stopped the car Kelly was driving for having unapproved tinting on its windows. Kelly was driving southbound on Route 13 in Accomack County. Talbert approached the driver's side of the car and asked Kelly for his identification. The officer testified Kelly appeared nervous and that his hands shook. Talbert detected the odors of both burnt and "green" marijuana.
Kelly's license bore a Norfolk address. Talbert asked Kelly "where are you coming from?" Kelly twice told the officer that he and his passenger, Joey Knight, had been in Maryland. Kelly stated he was not sure where in Maryland he had been, and told Trooper Talbert that he would have to ask Knight about that.
Because he had smelled "burnt marijuana in the car and green marijuana," Talbert told Kelly he was going to "search him and his car and also [Knight] . . . ." Talbert then searched Kelly's car.
In the front [Talbert] could kind of smell burnt and greenish marijuana a little bit and then [Talbert] observed what [he] believed to be marijuana flakes and buds in the front seat — left front seat right quarter and between the front left and right bucket seats around the console carpet area seeds and buds of marijuana in the carpeting and [he] looked underneath and [he] could smell kind of a greenish tinge of marijuana heavier like underneath on the floor board like under the seats and so forth. [Talbert] went to the back seat and pulled . . . down the rear seat compartment. Not all the way back in the cargo area. [Talbert] pushed the button down and pulled the rear seat forward. The back of it folded down and there was a black duffel bag behind the back seat in the cargo area of the vehicle.
* * * * * * *
[Talbert] unzipped it and [he] saw several looked [sic] like up to six cellophane wrapped [sic] heavily wrapped — you couldn't tell what was in it — packages of what [Talbert] assumed to be drugs . . . .
At that point, Talbert told Kelly he was under arrest for "trafficking cocaine." Kelly looked "extremely surprised" and stated, "Cocaine?"
Talbert transported the two men to the police station. As he placed the duffel bag on a table and began to take out the heavily wrapped bags, Kelly exclaimed, "Man, that ain't my weed." Talbert testified he did not know the contents of the bag until he cut through the cellophane, that Kelly was not in a position where he could observe the contents of the bag, and had not been told the bag contained marijuana.
The officers later determined the bag contained twenty pounds and five ounces of marijuana. Talbert testified that amount of marijuana was inconsistent with personal use.
Kelly testified on his own behalf. He stated that he had met "up" with Knight that morning to go to Maryland to "see two strippers [Knight] had met the previous week." He claimed that when he arrived at Knight's home that morning, Knight asked if he could use Kelly's car to go to the store. Kelly stated that he agreed, and waited at Knight's home until he returned, about fifteen to twenty minutes later.
Kelly testified that the two men left for Maryland at about 11:30 a.m. Kelly claimed that on their way there, they had veered off of Route 13 to make a stop at a "Stuckey's" restaurant to get "[s]oda, chips and . . . a lottery ticket." When they left Stuckey's and returned to Route 13, Kelly made a wrong turn, causing the car to travel toward Norfolk and away from Maryland. Kelly stated that it was at that time that he was stopped by Trooper Talbert.
Kelly agreed that Trooper Talbert asked him "where [he] was coming from," but then quickly changed his mind and testified that Trooper Talbert asked him "where he was going to." Kelly claimed that he told Trooper Talbert he was going to Maryland. He further claimed that he had never been to Maryland, and denied having any knowledge that the black bag was in his car, or that marijuana was in his car. He testified that when he was at the police station and stated "that ain't my weed," the contents of the bag were laid out on the table, "in plain view."
The trial court ruled as follows:
In this case the facts are in some respects in dispute. The court finds that [Kelly] was on U.S. Route 13; that he stopped at Stuckey's roadside commercial establishment; that he then proceeded south on U.S. Route 13 towards Norfolk away from Maryland when the trooper stopped him proceeding in that direction. He did not tell the trooper that he was headed in the wrong direction. There is no evidence that emanates from that particular time to indicate that he was going in a wrong direction. He told the trooper on two separate occasions that he was coming from Maryland. There is no evidence to indicate at all that he was doing otherwise. There is no evidence to indicate that he had stopped anywhere other than in Accomack County after coming to Maryland. The evidence is clear that [Kelly] was coming from Maryland.
The court further found that the evidence clearly established "[Kelly] did know what was in those packages and he said that weed is not mine." Therefore, the trial court found Kelly "guilty as charged on both counts."
II. Analysis
On appeal, Kelly contends the trial court erred in finding the evidence sufficient, as a matter of law, to prove that he transported the drugs into the Commonwealth and/or to prove that he possessed the drugs. We disagree.
When considering on appeal the sufficiency of the evidence presented below, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). Thus, we do not "substitute our judgment for that of the trier of fact." Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id.
As Kelly accurately points out, in circumstantial evidence cases, the reasonable doubt standard requires proof "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). However, Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785 (2003). Moreover, this principle, Id. at 513, 578 S.E.2d at 785 (citation omitted).
In regard to Kelly's first contention, Code § 18.2-248.01 provides, in pertinent part, that "it is unlawful for any person to transport into the Commonwealth by any means with intent to sell or distribute . . . five or more pounds of marijuana." "[A] violation of Code § 18.2-248.01 occurs at the moment a person transporting illegal substances...
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