Ragland v. Commonwealth, Record No. 0294–16–3

• Decision Date: 28 March 2017
• Docket Number: Record No. 0294–16–3
• Citation: 797 S.E.2d 437,67 Va.App. 519
• Court: Virginia Court of Appeals
• Parties: Anthony Wade RAGLAND v. COMMONWEALTH of Virginia

67 Va.App. 519

797 S.E.2d 437

Anthony Wade RAGLAND

v.COMMONWEALTH of Virginia

Record No. 0294–16–3

Court of Appeals of Virginia, Lexington.

MARCH 28, 2017

David A. Oblon (Albo & Oblon, L.L.P., on brief), Arlington, for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Petty and Chafin

OPINION BY JUDGE ROBERT J. HUMPHREYS

Anthony Wade Ragland ("Ragland") appeals the February 18, 2016 decision by the Circuit Court of Augusta County (the "trial court") convicting him of one count of possession of a cellular telephone by a prisoner, in violation of Code § 18.2–431.1. Ragland's three assignments of error are that the trial court erred in (1) finding that Ragland possessed a "cellular telephone" as opposed to an "other wireless telecommunications device," (2) finding that Ragland possessed a cellular telephone during his period of incarceration, and (3) refusing to take judicial notice of Federal Communication Commission ("FCC") documents.

I. Background

In November 2014, Ragland was serving a sentence at the Middle River Regional Jail (the "jail") in Augusta County, Virginia. During the course of this sentence, Ragland was enrolled in the jail's work release program. Pursuant to his participation in this program, Ragland signed an eight-page document, entitled "Work Release Rules and Regulations" (the "Regulations"). Paragraph 62 of the signed Regulations noted, "Cellular telephones are not permitted unless required by your employer. It is up to your employer to contact the Work Release Department if you need to have a cellular telephone." On November 16, 2014, Ragland was found with a cellular telephone in his possession after he passed the primary entrance to the jail. As a result, he was charged with one count of possession of a cellular telephone by a prisoner, in violation of Code § 18.2–431.1. Ragland was tried via a bench trial on November 30, 2015.

In summary, the Commonwealth's evidence at trial was that at approximately 9:45 p.m. on November 16, 2014, Ragland returned to the jail following his workday. Corporal David Gregory ("Gregory"), a jail security officer, testified that, as he prepared to commence Ragland's security "shake down," he observed Ragland holding a "brown lunch bag in his hand." Gregory asked Ragland "why he had the lunch bag?" In response, Ragland indicated that he intended to bring it with him into the jail. Gregory asserted that Ragland could not do this, and Ragland responded that he had been permitted to bring it in previously. Gregory explained that he would not allow it, as it was against the rules, and directed Ragland to throw the bag away.

Because Ragland "became kind of uneasy [and] didn't want to put [the brown lunch bag] in the trash," Gregory inspected its contents, finding what he believed was a cellular telephone underneath a sandwich. Upon this discovery, Gregory immediately asked Ragland "where he got the cell phone ?" Ragland responded that "it was his" and claimed he had been told by Joanna Kay Shifflett ("Shifflett"), a work release specialist at the jail, that he "could bring it in [the jail]." Gregory told Ragland that he did not "believe Shifflett told [Ragland] that [Ragland] could have the phone." Gregory confiscated the cellular telephone and charged Ragland with having a cellular telephone or trying to introduce a cellular telephone into the jail.

At this point in the testimony, the Commonwealth submitted four photographs of the cellular telephone in question. Gregory identified the cellular telephone as being the one that he confiscated from Ragland. The photos were admitted into evidence without objection.

A couple days prior to his initial term of incarceration at the jail, Ragland called Shifflett to inquire about cellular telephones, explaining that he needed one for his employment with Martin's. At trial, Shifflett testified that she discussed the rules and regulations with Ragland prior to the service of his sentence.¹ Shifflett directed Ragland to have his supervisor call the jail, but indicated that it would be necessary for him to keep the cellular telephone secured at his place of employment, because he would not be permitted to bring a cellular telephone with him upon his return to the jail. Shifflett expressly denied that she ever told Ragland that he was permitted to bring a cellular telephone into the jail. Moreover, she noted that a large sign in the jail's work release area proclaimed the prohibition on possessing cellular telephones while in custody.

On cross-examination, Shifflett acknowledged that she could not testify as to whether Ragland's employer might have contacted one of her co-workers with respect to inquiring about arrangements for Ragland's use of a cellular telephone during his participation in the work release program. Nevertheless, she affirmed that even if Ragland's employer had made the necessary contact, the jail would not have approved Ragland's possession of a cellular telephone while in custody. She further noted that, while such determinations were made on a case-by-case basis, the jail had never approved an inmate's possession of a cellular telephone while in custody.

During Gregory's interrogation of Ragland when the cellular telephone was first discovered, Ragland told Gregory that he had brought the phone with him, because "Martin's would not allow him to have the cellular telephone." He further claimed that he kept the phone's charger at his place of employment. When Gregory asked Ragland why his employer would permit him to keep the phone's charger at work, but not the phone itself, Ragland simply replied, "You got me." Throughout this discussion both Gregory and Ragland referred to the item as either a "phone" or a "cellular telephone," and Ragland never asserted to Gregory or any other jail official that the item recovered from the bag was anything other than a cellular telephone.

On cross-examination, Gregory was asked to describe the layout of the entrance to the jail used by those inmates reporting in from the work release program. Gregory described an "initial entry area," through the jail's "main door," where visual searches of inmates are conducted, in an effort to detect obvious contraband. Next, he described the "secondary area" as the area where inmate strip searches are conducted. He explained that "you come in the primary entrance, then you go through another door, the locker room is in that area. We call it the mud room, but that's where the locker area is located." Gregory testified that the secondary area contains lockers for the storage of specified items "listed on the work release agreement" that are not permitted to be in the inmate's possession while in custody. Each inmate has his own lock for the locker room.

Gregory noted that his interaction with Ragland occurred in the initial entry area. Gregory testified definitively, "When you enter the primary door, you've entered the jail. We go ahead and do a visual search." Furthermore, he testified that contraband was prohibited in both the initial entry area as well as in the secondary area. He explained that jail staff members, in general, were prohibited from having cellular telephones in the jail, but certain authorized staff members could bring phones into either the primary or secondary locations employed by the work release program.

Gregory admitted that he did not make any phone calls from the device nor see Ragland using the device. Rather, upon finding the cellular telephone, Gregory saw that it was on and directed Ragland to turn it off. Next, Gregory confiscated the phone, logged it into evidence, and turned it over to Captain Robert Mowbray ("Mowbray").

Prior to Ragland's release from the jail for his original sentence, Mowbray informed Ragland of the intention to charge him with the inmate possession of a cellular telephone offense. Mowbray noted that Ragland was "upset" and "did not understand why he would be charged with possession of the phone." Mowbray testified that he then explained to Ragland both the law and jail policies that Ragland violated in bringing the cellular telephone into the jail. During this conversation, Ragland again never asserted the object in his possession was something other than a cellular telephone. Additionally, Mowbray stated as far as he knew no inmate has ever been permitted to bring a cellular telephone into the jail.

At the conclusion of the prosecution's case, Ragland moved to strike, arguing that the evidence failed to exclude the possibility that Ragland had been authorized to possess the cellular telephone and that the evidence failed to affirmatively establish that the item possessed was, in fact, a cellular telephone. Additionally, he argued that the cellular telephone was recovered prior to his entry into the housing portion of the jail because the lockers located in the jail's secondary screening area are contemplated for the storage of items that were appropriate for work release use, but which would otherwise be contraband within the facility. Accordingly, Ragland argued that, in possessing the cellular telephone, he had not gone beyond this location of the facility intended for that purpose.

The trial court rejected these arguments. In overruling the motion to strike the evidence, the trial court stated that it believed Shifflett when she testified that no one could bring a cellular telephone into the jail. Additionally, it found that Ragland did not prove that his employer had requested that Ragland be allowed the use of a cellular telephone while working, as was required of the employer per the Regulations. With respect to whether the Commonwealth had established that the device was a cellular telephone, the trial court stated,

Well we certainly don't have any expert testimony that this was a cell phone, but we do have the testimony of both Investigator Mowbray and Corporal Gregory, who testified it was a cell

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