Raspberry v. Commonwealth

• Decision Date: 29 October 2019
• Docket Number: Record No. 0988-18-1
• Citation: 833 S.E.2d 894,71 Va.App. 19
• Parties: Samuel Rudolph Joshua RASPBERRY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 19

833 S.E.2d 894

Samuel Rudolph Joshua RASPBERRY

v.COMMONWEALTH of Virginia

Record No. 0988-18-1

Court of Appeals of Virginia, Hampton.

OCTOBER 29, 2019

Ronald L. Smith (Smith Law Firm, PLC, on brief), Hampton, for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Malveaux and Senior Judge Frank

OPINION BY JUDGE ROBERT J. HUMPHREYS

Following a bench trial, the Circuit Court for the City of Hampton ("circuit court") convicted appellant Samuel Rudolph Joshua Raspberry ("Raspberry") of two counts of possession with intent to distribute narcotics—cocaine and methamphetamine—both in violation of Code § 18.2-248 ; possession of a concealed weapon, in violation of Code § 18.2-308 ; possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2 ; and possession of a firearm while in possession of a controlled substance, with the intent to distribute, in violation of Code § 18.2-308.4. This appeal follows in which Raspberry assigns error to the admission of court records regarding his prior criminal history and to the sufficiency of the evidence that he constructively possessed the two firearms found in the vehicle he was operating.

I. BACKGROUND

On May 18, 2017, the Virginia State Police contacted Hampton Detective Juan Figueroa ("Detective Figueroa") about Raspberry because Raspberry had an outstanding capias. Virginia State Police also informed Detective Figueroa that Raspberry would be present at a specific address in Hampton, Virginia, later that same day. Detective Figueroa subsequently travelled to the location where he expected Raspberry to appear and set up surveillance. At that time, Detective Figueroa also possessed information that Raspberry would be driving a gray Ford Fusion with "Virginia tags."

At approximately 2:45 p.m., Officer Figueroa witnessed Raspberry parking a gray Ford Fusion. Detective Figueroa then pulled his vehicle behind Raspberry and identified himself. Detective Figueroa told Raspberry that Raspberry was under arrest and directed Raspberry to get out of the vehicle.

After confirming Raspberry’s identity, Detective Figueroa searched Raspberry incident to arrest. During the search of Raspberry’s person, Detective Figueroa discovered a green Crown Royal bag in Raspberry’s right pocket, which contained 12.65 grams of cocaine, "roughly $1,000" in $10 and $20 bills, a digital scale, and 45 MDMA (methamphetamine) pills. Detective Figueroa also discovered marijuana on Raspberry’s person, for which Raspberry was not charged.

After searching Raspberry’s person, Detective Figueroa searched a bag located on the front passenger seat of Raspberry’s vehicle. The bag contained two firearms wrapped in a pair of jeans and two Gatorade bottles. The Gatorade bottles had condensation on the outside of the bottles. When Detective Figueroa opened the bag, he saw the jeans and the guns on top, with the Gatorade bottles underneath and at the bottom of the bag.

At Raspberry’s trial, which took place on April 6, 2018, Detective Figueroa testified for the Commonwealth. After being qualified as an expert in narcotics distribution, Detective Figueroa testified that the quantity of drugs that Raspberry possessed, its packaging, the amount of money discovered, and Raspberry’s possession of the digital scale were all inconsistent with personal use. Detective Figueroa also testified that the "street value" of the cocaine discovered on Raspberry’s person was "about $1,400 worth." Further, Detective Figueroa indicated that there was a "noticeable nexus between firearms and drugs" in the City of Hampton because "people ... will protect their products or their merchandise and their currency with firearms." Detective Figueroa also agreed that a "large quantity of [drug] dealers carry firearms" on their person.

Raspberry’s girlfriend, Miosa Henderson ("Henderson"), owned the gray Ford Fusion that Raspberry drove on the day of his arrest. At trial, Henderson testified that officers arrested Raspberry after Raspberry arrived to pick her up from work. Henderson also noted that Raspberry frequently drove her vehicle. She also testified that the bag discovered by Detective Figueroa on the front passenger seat of the vehicle did not belong to her and that she did not know who it belonged to.

At the beginning of the trial, the Commonwealth offered three certified orders from the Circuit Court for the City of Hampton indicating that Raspberry was a convicted felon.¹ Raspberry, however, objected to the admission of the court orders because they "were not signed by a judge."

Each of the three court orders indicated that Raspberry was previously convicted of a felony and contained electronic signatures from judges as opposed to physical signatures. The first court order introduced by the Commonwealth is titled "Revocation of Suspension of Sentence" order and dated December 19, 2014. The signature line reads "S/CHRISTOPHER W. HUTTON," and the word "JUDGE" appears below it. The second court order is also titled "Revocation of Suspension of Sentence" and dated April 24, 2009. The signature line reads "S/BONNIE L. JONES," with the word "JUDGE" below it. The third and final court order introduced by the Commonwealth is titled "Sentencing Order" and dated August 6, 2008. The signature line reads "S/RANDOLPH T. WEST," with the word "JUDGE" below it. All were certified by the Hampton Circuit Court Clerk with an embossed seal containing the following language:

I certify that the document to which this authentication is affixed is a true copy of an original record in the Hampton Circuit Court, that I have custody of the record and I am the custodian of that record.

Linda Batchelor Smith, Clerk

By [signature]

Deputy Clerk[.]

The circuit court took Raspberry’s objection under advisement, but later stated

[o]ne of them is my signature. So one of them is my name. The other one is Judge West, and the other one is Judge Jones.

....

Well, this is simply not only a custom in the City of Hampton. I don’t know where else it is practiced, but there is a Virginia Code section that allows this type of activity. Rather than the Judge signing each of these orders, it allows it to be ... documented by the clerk in such a fashion in these orders.

The circuit court then admitted the three court orders as evidence of Raspberry’s prior felony convictions but noted Raspberry’s objection on the record.

The circuit court subsequently convicted Raspberry of all charges. The circuit court later sentenced Raspberry to five years for possession of a firearm while in possession of a controlled substance with the intent to distribute, five years with three years suspended for the possession of a firearm by a convicted felon, and twelve months, all suspended, for carrying a concealed weapon. The circuit court also convicted Raspberry of both possession with the intent to distribute cocaine and possession with the intent to distribute methamphetamine, but Raspberry does not challenge these convictions on appeal.

II. ANALYSIS

A. Raspberry’s Status as a Convicted Felon

In his first assignment of error, Raspberry argues that the Commonwealth failed to prove "beyond a reasonable doubt that he was a convicted felon." More specifically, Raspberry contends that the three court orders from the Circuit Court for the City of Hampton were inadmissible because they were not "physically" signed by a judge. Therefore, Raspberry argues that the circuit court could not rely upon the three court orders to convict him of possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2, and possession of a firearm while in possession of a controlled substance with the intent to distribute, in violation of Code § 18.2-308.4.

"Decisions regarding the admissibility of evidence lie within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion." Blankenship v. Commonwealth, 69 Va. App. 692, 697, 823 S.E.2d 1 (2019) (quoting Michels v. Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675 (2006) ) (internal quotation marks omitted). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Id. (quoting Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688 (2006) ). To the extent that this case involves the trial court’s application of a statute, however, we review that issue de novo .

Bowden v. Commonwealth, 52 Va. App. 673, 676, 667 S.E.2d 27 (2008) (citing Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246 (2003) ).

In the Commonwealth, Code § 8.01-389 provides for the admissibility of judicial records. Pursuant to that statute, "[t]he records of any judicial proceeding and any other official records of any court of this Commonwealth shall be received as prima facie evidence provided that such records are certified by the clerk of the court where preserved to be a true record." Code § 8.01-389(A). Prima facie proof that the clerk has certified such a record to be a true copy of the official record exists where: (1) "[t]he use of the term ‘copy teste,’ ‘true copy,’ or ‘certified copy’ or a substantially similar term on a certification [is] affixed or annexed to a copy of an official record maintained by a clerk of court," (2) the copy "bears the signature of the clerk or any deputy clerk," and (3) the copy "has the name of the court where such record is preserved on the document or on the certification." Code § 8.01-389(B). Most importantly, "[t]he certification of any record pursuant to this section shall automatically authenticate such record for the purpose of its admission into evidence in any trial, hearing, or proceeding." Code § 8.01-389(F).

Here, the court orders meet the requirements of Code § 8.01-389 and were properly admitted at Raspberry’s bench trial. The court orders bear prima facie proof that the Hampton Circuit Court Clerk certified the records to be true copies. Namely,...