Benton v. Commonwealth

1

MARY LANDON BENTON v. COMMONWEALTH OF VIRGINIA

No. 0631-21-1

Court of Appeals of Virginia

October 11, 2022

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Rufus A. Banks Jr., Judge

(Robert L. Wegman; The Law Office of Robert L. Wegman P.L.C., on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; David M. Uberman, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Present: Judges Malveaux, Fulton and Friedman.

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX JUDGE.

Mary Landon Benton ("appellant") was convicted in a bench trial of possession with intent to distribute cocaine, in violation of Code § 18.2-248, and possession with intent to distribute Suboxone, in violation of Code § 18.2-248(E1). On appeal, she contends that the trial court erred in denying her motion to strike because the evidence was insufficient to sustain her convictions. For the following reasons, we affirm the trial court's judgment.

I. BACKGROUND

"'In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.' Accordingly, we regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence." Meade v. Commonwealth, 74 Va.App. 796, 802 (2022) (citation omitted) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).

On April 26, 2019, Detective Terra Cooley of the Chesapeake Police Department observed a white Nissan Altima on Bainbridge Boulevard. She "ran the tags" of the Altima and discovered that appellant was the car's registered owner and her license had been suspended. Cooley stopped the car after confirming from a DMV photograph that appellant was its driver.

As Cooley spoke with appellant about her suspended license, she noticed that there were two other people in the car, "a front seat passenger and a rear seat passenger." Cooley also smelled "an odor of marijuana coming from the vehicle." Appellant denied that there was any marijuana in the car and claimed that the odor might have been "from the house that she was just coming from." Cooley called for assistance and waited at the driver's side of appellant's car.

Officer Elberg arrived and Cooley asked appellant and the rear seat passenger, appellant's daughter, to get out of the car and stand with Elberg. Cooley then asked the front seat passenger to leave the car. Cooley testified that about thirty seconds elapsed between appellant and the front seat passenger exiting the car and that she did not see the front seat passenger make any "furtive movements" during that time. When the front seat passenger got out of the car, Cooley noticed that she had a "balled up" plastic bag concealed in her right hand. Cooley asked the passenger what was in her hand, and the passenger "clinched [sic] her fist" and "put her right hand behind her back." Cooley grabbed the passenger's right hand, and the passenger dropped two small bags on the ground that appeared to contain crack cocaine and marijuana.

Cooley arrested the front seat passenger. Shortly after she did so, Elberg asked appellant, "What else is in this car?" Appellant replied, "Nothing. I-I didn't even know if there was weed or anything."

After arresting the front seat passenger, Cooley searched appellant's car and found a purse sitting partially on the driver's seat and partially on the center console.^[1] She identified the purse as appellant's because it contained appellant's I.D. card, as well as mail and other items bearing appellant's name. The purse also contained a silver digital scale with white residue on it, two cell phones,^[2] and a Coach clutch. The clutch held two plastic bags, the contents of which Cooley suspected to be crack cocaine and powder cocaine; subsequent testing of the bags' contents by the Virginia Department of Forensic Science identified them as 6.72 grams of the former substance and 3.79 grams of the latter substance. The clutch also held $520 in twenty-dollar bills. Finally, the purse contained "another bigger wallet" that held identification cards in appellant's name and thirty-four individually packaged Suboxone strips. Cooley asked appellant if she had a prescription for Suboxone, and appellant replied that she did not.

Cooley arrested appellant. In doing so, she confiscated a third phone that appellant had just been speaking on and was still holding in her hand. When Cooley first said to appellant, "Let me see your phone," appellant pointed at her car and replied, "My phone's in there." After Cooley took the phone from appellant, she asked, "Whose phone is this?" Appellant responded, "That's my other daughter's phone." As appellant was placed in a police car, she called out to her daughter and said, "Get my phone and call [attorney] Joanne Spencer." At that point, Cooley approached appellant's daughter, who was standing nearby, with the recently confiscated phone in her hand. Cooley asked appellant's daughter, "Whose phone is this?" and she replied, "My mom's."

After appellant was placed in the police car, Officer Elberg asked her if she had a prescription for the Suboxone. Appellant asked Elberg whether he would rather someone acquire Suboxone or "a heroin cap." Elberg replied, "So they're not prescribed to you?" and appellant responded, "No, they're not."

Detective Souther of the Chesapeake Police Department assisted Cooley during the traffic stop. Souther asked appellant why she had almost ten grams of cocaine, and appellant stated that she planned to attend a concert that weekend and "wanted enough for the whole weekend." When Souther asked appellant how much crack cocaine she smoked in a day, appellant did not answer. The detective also queried appellant about why she did not have any smoking devices with her if she was "such a heavy user." Appellant replied that she was on her way to work, and Souther then asked appellant "why she brought crack to work but not a smoking device. She again didn't answer."

Appellant was charged with possession with intent to distribute cocaine and Suboxone. At trial, the Commonwealth introduced testimony from Detectives Cooley and Souther, as well as video footage from police body cameras. The Commonwealth also introduced forensic records of text messages retrieved from two of the phones that Cooley had confiscated. The records showed that the phone appellant had been using just before her arrest, and which Cooley confiscated from appellant's person, had received a message the day before the traffic stop that stated, "You have 6 subs." That message elicited the response, "Yea." The sender then said, "Ok get with you later or tomorrow," and then, about an hour later, asked "Are you home got cash." Detective Cooley testified, without objection, that in her training and experience that series of texts "would be referring to Suboxone." Another text received by the phone on the morning of the traffic stop included the statement, "Hey can I come out to your work want to get a 60 I got cash." Cooley testified, again without objection, that she understood that question to mean "that [appellant] is selling [$]60 worth of some sort of narcotic."

In addition, the Commonwealth introduced testimony from Sergeant Allen of the Chesapeake Police Department, who qualified as an expert in the fields of narcotics and narcotics distribution. Based upon the evidence presented, Allen opined that the drugs recovered in appellant's case were "inconsistent with personal use." In discussing the factors that led him to this conclusion, Allen first testified that the amount of crack cocaine was "more than any user possess[es] at one time," and instead represented the amount that might be consumed "over the course of maybe several weeks through repeated trips to their dealer." Allen further opined that if divided into the quantities commonly used recreationally, the crack would represent approximately thirty-five to seventy "separate doses." Allen had never encountered a recreational user who possessed such a large amount of the drug.

Allen also opined that the amount of powder cocaine found in appellant's purse was "more than what a general user of cocaine will possess at one time," but instead represented a "very common amount to buy as a start up or a business." He explained that such an amount could either be "cut" or sold "as is and they will make a little bit of money on it. And generally over time they will increase the amount they are purchasing, amount they are selling." Additionally, Allen testified that it would be "unusual for a user of crack cocaine to also possess powder cocaine," because crack provides a "much stronger" and "more intense" high; thus, "[o]nce you're used to that, you're not going to go back and use powder also." Allen acknowledged that "[t]here may be some user out there somewhere that goes back and forth," but stated that "it's rare to see that."

Allen further opined that the silver scale bearing a white powdery residue was "more indicative of [a] distributor than it would be [of] a user." He stated that "[w]hile it's not unusual that a user would have a scale to weigh their product, it is unusual that that scale [would] then have residue on it in the form of a product they were weighing." Allen explained that this was so because drug users that bring scales to a purchase utilize the scales to weigh packaged drugs and ensure they are not being short-changed; Allen had "never spoken to a user that . . . takes the cocaine out and puts it on a scale, keeps the bag and now we are just weighing out the powder. Generally . . . just the bag is placed on the scale." By contrast, when...