Virginia Lawyers Weekly VA Lawyers Weekly
Where a police detective pursuing appellant saw him throw a bag from his car window, there was sufficient evidence that he possessed the marijuana found the bag by a police officer who was assisting in the chase.
Background
Strano, a police detective, was pursuing appellant Butler after he failed to yield to oncoming traffic. Strano saw him throw something from the car window while on North King St. Boyd, an officer driving to assist in the chase, heard Strano on the radio, went to the location and found a bag containing about a gram of marijuana in the middle of the street.
Later, after apprehending Butler, Strano asked him how much marijuana was in the bag. Butler said, “about a gram.”
The circuit court convicted Butler of possessing marijuana and felony fleeing and eluding. Butler appealed.
Possession
“Butler argues that the evidence was insufficient to prove that the marijuana Boyd found on North King Street ‘was the same marijuana’ he discarded during the pursuit. He stresses that Boyd found the marijuana in a ‘high crime area’ and no forensic evidence linked him to the bag.
“He concludes that because ‘there was no positive identification of the recovered marijuana’ showing it was the same marijuana that he had, the Commonwealth’s evidence was insufficient to sustain his conviction. …
“After Detective Strano announced ‘over the radio’ that Butler had thrown ‘a bag’ out the car window onto North King Street, Officer Boyd immediately searched the area and found a bag containing approximately one gram of marijuana ‘in the middle of the road.’”
Butler later stated that the bag contained about a gram of marijuana. “A defendant’s statement that ‘tends to show guilt’ is ‘evidence of a most satisfactory nature and may furnish the strongest and most convincing evidence of truth.’ …
“Moreover, ‘drugs are a thing of value people are unlikely to abandon or ship to another without warning.’ … Thus, the circuit court reasonably could conclude that an unspecified stranger did not leave a valuable, albeit illegal, substance unattended in the ‘middle’ of North King Street.
“Accordingly, based on the combined force of Butler’s statements and the above circumstances, a rational factfinder could conclude that Butler possessed the marijuana found in the recovered bag. Therefore, the circuit court’s judgment was not plainly wrong or without evidentiary support.”
Felony eluding
“Butler also argues that the evidence was insufficient to convict him of felony eluding because he did not endanger any person or law-enforcement vehicle. Butler contends that he drove no faster than fifty miles per hour, did not lose control of his vehicle or cross median lines, and no pedestrians or motorists were ‘actually in danger during the pursuit.’
“Thus, he concludes that the felony eluding charge should have been reduced to misdemeanor eluding. …
“The evidence here demonstrated that after Detective Strano activated his emergency lights, Butler accelerated out of a parking lot and drove fifty miles an hour in a thirty-five-miles-per-hour zone while discarding contraband from his window.
“He then turned onto a residential street with a twenty-five-miles-per-hour speed limit and ‘accelerated’ to continue his flight. As Butler approached the dead end, he abandoned his moving vehicle, allowing it to roll uncontrolled off the road and into a wooden fence.
“Although no evidence demonstrated that Butler’s flight caused anyone to be ‘actually in danger,’ the evidence need not prove that Butler’s flight created an imminent threat to sustain his conviction. …
“Instead, the evidence need only demonstrate that Butler’s conduct raised ‘the specter of endangerment.’ … From the above circumstances, a rational factfinder could conclude that Butler’s conduct raised a specter of endangerment to himself, his passenger, other motorists, and any pedestrians on the residential street.”
Affirmed.
Butler v. Commonwealth, Record No. 0123-22-1, Oct. 18, 2022. CAV (Humphreys). From the Circuit Court of the City of Hampton (Hutton). Charles E. Haden for appellant. David A. Mick, Jason S. Miyares for appellee. VLW 022-7-471, 6 pp.
