Wymer v. Com., 0662-90-1

• Decision Date: 09 April 1991
• Docket Number: No. 0662-90-1,0662-90-1
• Citation: 403 S.E.2d 702,12 Va.App. 294
• Parties: Evelyn Sue WYMER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 702

403 S.E.2d 702

12 Va.App. 294

Evelyn Sue WYMER v. COMMONWEALTH of Virginia.

Record No. 0662-90-1.

Court of Appeals of Virginia.

April 9, 1991.

Joseph M. DuRant (Patten, Wornom & Watkins, on briefs), Newport News, for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: JOSEPH E. BAKER, MOON and WILLIS, JJ.

JOSEPH E. BAKER, Judge.

Evelyn Sue Wymer (appellant) appeals from her bench trial conviction by the Circuit Court of the City of Williamsburg and James City County (trial court) for possession of cocaine. She asserts that the trial court erred (1) when it refused to admit into evidence the criminal record of her brother-in-law, Daniel Wymer (Daniel); (2) when it held that ownership of a residence, in which drugs and related drug paraphernalia were found in her bedroom dresser, jewelry box, bedroom closet, in a vase in her living room and in her purse, was sufficient to prove possession of the cocaine found in the residence; (3) when it admitted evidence of marijuana and paraphernalia for its use and use of either marijuana or cocaine as supporting proof of the charge that she possessed cocaine; and (4) when it admitted evidence of drug dealing in the Forest Glen area of James City County in which her residence was located.

On appeal, the judgment of the trial court is presumed correct. Daley v. Commonwealth, 132 Va. 621, 622, 111 S.E. 111, 111 (1922). In reviewing that record, we consider the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Boykins v. Commonwealth, 210 Va. 309, 311, 170 S.E.2d 771, 773 (1969). When the sufficiency of the evidence is attacked, the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be disturbed unless plainly wrong or without evidence to support it. Granberry v. Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946); Code § 8.01-680.

On October 13, 1989, pursuant to information given him, James City County police officer Linhart procured a warrant to search the premises owned by appellant and her husband, Donald Ray Wymer (Donald), located in the Forest Glen area of James City County. When Linhart arrived to search the premises he found the doors locked, windows secured and no one at home. Approximately one-half hour later, appellant and Donald arrived. Linhart advised them that, pursuant to the warrant, he had entered the house. ¹ Before proceeding further, Linhart read Miranda rights to appellant and Donald. Thereafter, they told him that they were the only occupants of the house. They were asked to remain in the living room as Linhart proceeded to search the premises.

In and on top of appellant's dresser, in a bedroom shared by appellant and Donald, Linhart found assorted evidence of drug use. Based on his experience as a narcotics investigator, at trial he explained the use and purpose of each item he discovered. On top of the dresser was a jewelry box which contained two short bent straws with cocaine residue. The ends of the straws had been blackened by heat. He explained that these straws are typically used to heat and inhale cocaine into the user's nostrils. In a dresser drawer, Linhart found a brass pipe and a leather and wood pipe of the type commonly used to smoke marijuana or cocaine. In addition, inside the dresser Linhart discovered a clear plastic baggie, bound by a short twist tie, which held a white powder substance. Linhart testified that the baggie was the typical manner in which cocaine was packaged for distribution in the James City County area and that in the area recently a substance packaged in that manner had been sold as cocaine but was not.

In a closet in a second bedroom, inside a bag containing wedding and honeymoon memorabilia of appellant, Linhart found: three broken bowl pipes, a marijuana leaf imprint, two single edge razor blades, two additional plastic baggies containing a white powder residue, forty-six twist ties another short bent straw, a glass bottle with marijuana residue and a metal wire clip charred at the end. Linhart explained that the razor blades were of the type used to cut cocaine and form it into lines which could be "snorted" into the nostrils by heating and using the short bent straws; that the baggies and twist ties were of the type used in the James City area to package and distribute cocaine; and that the wire clip was of the type used to hold and smoke marijuana cigarettes.

In a vase located in the living room next to the sofa on which appellant and Donald had been sitting, Linhart found two additional short bent straws, each containing cocaine residue. When asked to explain the presence of the drug related items, appellant told Linhart that her brother-in-law, Daniel, had "planted" all the above items in their house because two weeks earlier he had been forced to leave their home in which he had resided with his girlfriend for approximately six months.

Appellant asked Linhart to let her obtain cigarettes from her purse outside in her car. Linhart retrieved her purse but looked inside before giving it to her. In the purse were a marijuana smoking device, a wooden box and brass pipe, forceps with charred ends, cigarette papers and another short bent straw with cocaine residue. ² Linhart then asked appellant, "Well, how do you explain this? The same things are in your pocketbook that I found in the house that you say were planted here." Appellant did not respond to that question.

At trial, appellant objected to the introduction of any evidence relating to marijuana on the ground that she was charged only with possession of cocaine.

In support of their claim that Daniel had "planted" the contraband at their house, appellant and Donald testified that there was animosity between Daniel and themselves; that he had threatened to have their house raided; and that he chased her down the road in a car pursuant to a threat that he was going to kill her. ³ Appellant sought to introduce Daniel's criminal record, but the trial court refused to accept it as evidence. She denied knowledge of any of the contraband and claimed the forceps were used to pick ticks from her cat and for clipping candle wicks. She could not explain the presence of the straw in her purse but asserted that she learned later that, without her knowledge, her husband had placed the brass pipe therein for the purpose of returning it to its owner who lived in Richmond.

Donald testified that he had trouble with Daniel; that he knew nothing of the contraband found in his house; and that Daniel was capable of planting the drugs in his house. He also said that he had placed the pipe in his wife's purse but gave no explanation for the other items contained therein.

At trial, appellant offered the documented criminal record of Daniel. Although Daniel and Donald are brothers whose parents lived nearby, and Donald admitted he knew where Daniel could be found, appellant made no attempt to have Daniel testify at her trial. Appellant sought to convince the trial court, without direct evidence to that effect, that Daniel had "planted" the drugs at places where they were found and then gave information to the police that caused the search warrant to be issued. Appellant's evidence concerning threats from Daniel was that he told them he would "have the cops at [appellant's] house," not that he would frame her. Appellant's sole defense to the charge that she unlawfully possessed cocaine is that Daniel, who formerly resided in the house with appellant and Donald, had been evicted by them and that he had threatened to "have [her] house raided." There was no evidence that he threatened to frame her or "plant" drugs on the premises. The trier of the fact could infer from the evidence that Daniel, who had lived in appellant's house for six months prior to two weeks before her arrest, was aware of the presence of drugs, drug paraphernalia and the drug habits of appellant and Donald, and that this knowledge was the basis for the threat to have their house searched by the...