                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Frank
Argued at Richmond, Virginia


STEPHEN ARTHUR GERMANI
                                                                MEMORANDUM OPINION* BY
v.        Record No. 1521-04-2                               JUDGE RUDOLPH BUMGARDNER, III
                                                                    OCTOBER 11, 2005
COMMONWEALTH OF VIRGINIA


                        FROM THE CIRCUIT COURT OF HANOVER COUNTY
                                    John R. Alderman, Judge

                    G. Russell Stone, Jr. (Cary B. Bowen; Bowen, Champlin, Carr,
                    Foreman & Rockecharlie, on brief), for appellant.

                    Paul C. Galanides, Assistant Attorney General (Judith Williams
                    Jagdmann, Attorney General, on brief), for appellee.


          Stephen Arthur Germani appeals his conviction of possession of marijuana in a

correctional facility, Code § 53.1-203.1 He contends the evidence is insufficient to prove he

knowingly and intentionally possessed marijuana in a correctional facility. Finding no error, we

affirm.

          On appeal, we review the evidence and the reasonable inferences fairly deducible

therefrom in the light most favorable to the Commonwealth. Commonwealth v. Hudson, 265

Va. 505, 514, 578 S.E.2d 781, 786, cert. denied, 540 U.S. 972 (2003). Deputy Noah Rogers

arrested the defendant for driving under the influence and found marijuana in the vehicle. The

deputy could not search the defendant before transporting him to jail because he was extremely


          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
          1
         Code § 53.1-203(6) provides that “It shall be unlawful for a prisoner in a state, local or
community correctional facility or in the custody of an employee thereof to . . . Procure, sell,
secrete or have in his possession . . . marijuana.”
confrontational and hostile. The deputy repeatedly asked the defendant whether he had

additional drugs. When they arrived at the jail, the deputy warned, “I’m giving you one last

chance, you take anything past those doors and, you know, it’s going to be a much bigger penalty

if you have anything on you.”

        The defendant continued to be combative after taking a breath test. The deputy placed

him in a “side cell” while the magistrate completed his committal order. The defendant was

“kicking the door and yelling” and “extremely belligerent.” When officers entered the cell to

serve the order on him and get him to complete the intake processing, the defendant had

maneuvered his handcuffed hands from behind his back to in front. He wore a t-shirt and had

another shirt lying on the bench. The pocket of the shirt on the bench contained a bag of

marijuana. The defendant was wearing this shirt when he was arrested, and it was returned to the

defendant as his property. No one else was in the cell with the defendant, and the shirt had not

been in the cell earlier that night.

        The Commonwealth must “point to evidence of acts, statements, or conduct of the

accused or other facts or circumstances which tend to show that the defendant was aware of both

the presence and character of the substance and that it was subject to his dominion and control.”

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Before entering the

jail, the defendant was repeatedly warned about the increased penalty for possession of narcotics

inside the jail walls. The officers found marijuana in the pocket of the shirt the defendant was

wearing when he was arrested. The shirt was not on the bench when the defendant was placed in

the cell, and no one else was in the cell with him. The defendant accepted the shirt as his

property.

        The defendant argues no evidence showed that the marijuana was in the shirt when he

wore it or that he was aware of the marijuana in the shirt found beside him in the jail cell. He

                                               -2-
maintains the evidence fails to show he intended to possess the marijuana found in the shirt or

that he intended to possess it in the jail. However, the facts permitted the trial court to find

reasonably that the defendant knowingly and intentionally possessed the marijuana outside the

jail, was warned against bringing it into the jail, deliberately chose to ignore the warning, and

brought it into the jail. From those findings, the trial court could reasonably infer that the

defendant intentionally took the marijuana into the jail. “After determining credibility and

assessing the weight of the testimony, the [trier of fact] must ascertain what reasonable

inferences arise from the facts they found proven by that testimony.” Pease v. Commonwealth,

39 Va. App. 342, 354, 573 S.E.2d 272, 278 (2002), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003).

“We let the decision stand unless we conclude no rational [trier of fact] could have reached that

decision.” Id. at 355, 573 S.E.2d at 278. The evidence permitted the trial court to find the

defendant knowingly and intentionally possessed the marijuana in a correctional facility.

Accordingly, we affirm.

                                                                                            Affirmed.




                                                 -3-
Elder, J., dissenting.

        I believe the evidence fails to support a finding that appellant intentionally and

voluntarily brought marijuana into the jail. Appellant possessed the marijuana prior to his arrest,

and his presence in the jail was involuntary. His mere failure to admit that possession in

response to police questioning prior to being taken to jail proved knowledge but failed to prove

he intentionally and voluntarily possessed the marijuana while inside the jail. Thus, I

respectfully dissent.

        Code § 53.1-203 provides in relevant part as follows:

                        It shall be unlawful for a prisoner in a state, local or
                community correctional facility or in the custody of an employee
                thereof to:

                           *       *       *       *       *        *       *

                      6. Procure, sell, secrete or have in his possession a
                [Schedule III] controlled substance . . . or marijuana . . . .

                           *       *       *       *       *        *       *

                        . . . For a violation of subdivision 6, [the prisoner] shall be
                guilty of a Class 5 felony.

        The Commonwealth contends this statute defines a strict liability offense and that it was

not required to prove appellant intended to possess marijuana in a correctional facility. It cites

Esteban v. Commonwealth, 266 Va. 605, 587 S.E.2d 523 (2003), in support of this proposition. I

believe Esteban is distinguishable and that principles of constitutional law bar appellant’s

conviction under the facts of this case.

        Esteban involved a conviction for violating Code § 18.2-308.1(B), which provides in

relevant part that “‘if any person possesses any firearm . . . while such person is upon [the

premises of] . . . any public . . . elementary . . . school, including buildings and grounds, . . . he

shall be guilty of a Class 6 felony.’” Id. at 607, 587 S.E.2d at 524 (quoting Code

                                                  -4-
§ 18.2-308.1(B)). It was undisputed that Esteban, a teacher at the school, brought onto the

premises a bag containing a revolver. Id. at 607-08, 587 S.E.2d at 525. Esteban claimed she had

forgotten the revolver was in the bag and contended she was entitled to an instruction requiring

the Commonwealth to prove she “‘knew she possessed the firearm’” on school property. Id. at

608-09, 587 S.E.2d at 525.

       In rejecting Esteban’s contention, the Supreme Court held as follows:

               [T]he law is clear that the legislature may create strict liability
               offenses as it sees fit, and there is no constitutional requirement
               that an offense contain a mens rea or scienter element. Thus,
               courts construe statutes and regulations that make no mention of
               intent as dispensing with it and hold that the guilty act alone makes
               out the crime.
                       In the final analysis, the issue whether mens rea or scienter
               is a necessary element in the indictment and proof of a particular
               crime becomes a question of legislative intent to be construed by
               the court.

Id. at 609, 587 S.E.2d at 526 (citation omitted) (emphasis added). The Court noted “the General

Assembly recognized that the presence of a loaded revolver on school property created great

dangers for [all those present] either from the accidental or intentional discharge of the weapon”

and that the fact that “a person . . . innocently brings a loaded revolver onto school property does

not diminish that danger.” Id. at 609-10, 587 S.E.2d at 526. It concluded the legislature

“expressly” chose not “to insert a mens rea element into the offense” and that “to require proof

thereof[] would defeat the statutory purpose.” Id. at 610, 587 S.E.2d at 526. Although the

legislature may dispense with the intent requirement, the Supreme Court recognized in Esteban

that proof of a “guilty act” remains necessary to support one’s conviction for a crime. Id. at 609,

587 S.E.2d at 526.

       It is well settled that criminal liability may not be imposed in the absence of “an act, or an

omission to act where there is a legal duty to act. Thus the common law crimes are defined in

terms of act or omission to act, and statutory crimes are unconstitutional unless so defined.”
                                                -5-
Wayne R. LaFave, Criminal Law § 6.1, at 302 (4th ed. 2003) (emphasis added). Equally clear is

that

               criminal liability requires that the activity in question be voluntary.
               The deterrent function of the criminal law would not be served by
               imposing sanctions for involuntary action, as such action cannot be
               deterred. Likewise, assuming revenge or retribution to be a
               legitimate purpose of punishment, there would appear to be no
               reason to impose punishment on this basis as to those whose
               actions were not voluntary.

Id. § 6.1(c), at 304-05 (emphasis added).2 Thus, “all crimes of affirmative action,” even strict

liability crimes, “require something in the way of a mental element -- at least an intention to

make the bodily movement which constitutes the act which the crime requires.” 1 Wayne R.

LaFave & Austin W. Scott, Substantive Criminal Law § 3.5(e), at 314 (1986). In Esteban, the

defendant’s intentional or voluntary act was going onto school grounds with the weapon in her

possession. Whether or not she knew the weapon was in her possession and intended to take the

weapon with her, it was undisputed that she was intentionally and voluntarily on school grounds.

In appellant’s case by contrast, appellant’s presence in a correctional facility while in possession

of marijuana, although knowing, was not proved to be intentional or voluntary.

       Thus, assuming without deciding the General Assembly intended to make possession of

marijuana by an inmate in a correctional facility a strict liability offense, the offense nevertheless

must exclude cases of involuntary possession of marijuana in a correctional facility. See State v.

Tippetts, 43 P.3d 455 (Or. Ct. App. 2002) (decided under statute codifying voluntary act

requirement); cf. Martin v. State, 17 So. 2d 427, 427 (Ala. Ct. App. 1944) (holding “that an

accusation of drunkenness in a designated public place cannot be established by proof that the

accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by


       2
         Some states have codified this requirement. See, e.g., 720 Ill. Comp. Stat. 5/4-1 (2005);
Or. Rev. Stat. § 161.095(1) (2005); Tex. Penal Code § 6.01(a) (2005).

                                                 -6-
the arresting officer”), cited with approval in Powell v. Texas, 392 U.S. 514, 541 n.1, 88 S. Ct.

2145, 2158 n.1, 20 L. Ed. 2d 1254 (1968) (Black, J., joined by Harlan, J., concurring); Fontaine

v. State, 762 A.2d 1027, 1032 (Md. Ct. Spec. App. 2000) (holding that “acts of appellant after he

was arrested were not voluntary” and, thus, that where he was arrested in Delaware and taken to

Maryland by police, evidence failed to prove he intended to distribute marijuana in his

possession while in Maryland); Commonwealth v. Collier, 693 N.E.2d 673, 675-76 (Mass. 1998)

(where defendant was passenger in car driven by third party, holding conviction for violation of

protective order required proof that defendant’s coming within proscribed distance of former

wife was voluntary). But see State v. Winsor, 110 S.W.3d 882, 885-88 (Mo. Ct. App. 2003)

(holding willful possession of a controlled substance itself constitutes the requisite voluntary act

and that presence in county jail need not have been voluntary); Brown v. State, 89 S.W.3d 630,

632-33 (Tex. Crim. App. 2002) (en banc) (holding statute requiring voluntariness of act to be

punished “‘refers only to one’s physical bodily movements’” and that defendant “compelled to

enter into [a] correctional facility” “‘in custody, under restraint’” while in possession of

marijuana “voluntarily” possessed marijuana in correctional facility), rev’g 35 S.W.3d 183 (Tex.

App. 2000).

               [T]he mere fact that defendant voluntarily possessed the drugs
               before he was arrested is insufficient to hold him criminally liable
               for the later act of introducing the drugs into the jail. Rather . . .
               the involuntary act must, at a minimum, be a reasonably
               foreseeable or likely consequence of the voluntary act on which the
               state seeks to base criminal liability. [Absent additional] facts, no
               reasonable juror could find that the introduction of contraband into
               the jail was a reasonably foreseeable consequence of [merely]
               possessing it.

Tippetts, 43 P.3d at 459-60 (citing American Law Institute, Model Penal Code § 2.01, at 120

(Tentative Draft no. 4 1955)) (citation and footnote omitted). “[M]ere possession of drugs when

[a defendant is] taken by police to a correctional facility is not legally sufficient to prove that he

                                                 -7-
voluntarily introduced contraband into that facility[,] . . . even if . . . defendant’s arrest and the

discovery of the drugs were ‘readily foreseeable consequences’ of his prearrest conduct.” State

v. Gonzalez, 71 P.3d 573, 574 (Or. Ct. App. 2003) (quoting State v. Delaney, 71 P.3d 93, 93 (Or.

Ct. App. 2003)). Compare State v. Thaxton, 79 P.3d 897, 899-900 (Or. Ct. App. 2003) (where

driver of car stopped by police put marijuana in pocket of defendant passenger and defendant

then put some of marijuana in his own sock, holding jury could find defendant guilty of

introducing contraband into jail because evidence supported a finding that “when defendant hid

the marijuana in his sock, he knew that the officers were likely to arrest him and take him to jail”

and “that putting the marijuana in the sock was a voluntary act directed toward introducing the

contraband to the jail”).

        Appellant argued the evidence failed to prove his taking marijuana into the jail with him

was a voluntary act. The trial court, as proof that appellant did, in fact, act with intent to take

marijuana into a correctional facility, expressly relied on the fact that appellant “had a number of

different opportunities to own up to [the fact that he had marijuana in his possession] outside [the

correctional facility] when there wouldn’t have been any big deal” but that “he chose not to do

so.” Appellant’s contention that the evidence failed to prove his act was voluntary and

intentional was broad enough to encompass an objection to the trial court’s rationale that he had

a duty to reveal his possession prior to entering the correctional facility in response to

questioning by and warnings from correctional officers. Further, I believe the trial court’s

reliance on appellant’s failure to “own up to” the possession “outside” as proof that the act was

voluntary constituted reversible error.

        As set out above, criminal liability may be imposed based on an omission only where the

law imposes a legal duty to act. See LaFave, supra, § 6.1, at 302. Here, the law imposed upon

appellant no legal duty to act--by turning the marijuana over to the officers or by alerting them to

                                                  -8-
the fact that he possessed it. To the contrary, appellant’s constitutional right against

self-incrimination negated the existence of any legal duty to notify the arresting officers or jail

officials, prior to being incarcerated, that he possessed marijuana. See Tippetts, 43 P.3d at 457

n.2 (“The state does not dispute that, without sufficient promise of immunity, . . . the Fifth

Amendment to the United States Constitution prevent[s] the state from forcing defendant to

choose between admitting to possession of a controlled substance and being charged with

introducing that substance into a correctional facility.”); Thaxton, 79 P.3d at 899 n.3 (in

reviewing sufficiency of evidence to prove possession of marijuana in correctional facility was

voluntary act, declining to consider defendant’s denial that he possessed marijuana because,

“[a]lthough that denial came after he received the Miranda warnings . . . , the officer’s suggestion

that he would face additional charges if more contraband were found at the jail gave defendant

an inappropriate Hobson’s choice”); Brown, 35 S.W.3d at 189 (holding that requiring defendant

to use “opportunity” to confess to avoid having his actions in taking marijuana into correctional

facility deemed voluntary would violate Fifth Amendment).

               [T]he opportunity the officers gave [the defendant to turn over the
               contraband] was nothing more than an invitation to admit his guilt
               to a lesser crime in order to avoid arrest and prosecution for a more
               serious offense. This type of “opportunity” is tantamount to an
               attempt to compel the defendant to waive his Fifth Amendment
               privilege against self-incrimination “by threatening to impose . . .
               other sanctions ‘capable of forcing the self-incrimination which the
               Amendment forbids.’”

Brown, 35 S.W.3d at 189 (quoting Lykins v. State, 784 S.W.2d 32, 37 (Tex. Crim. App. 1989)

(quoting Minnesota v. Murphy, 465 U.S. 420, 434, 104 S. Ct. 1136, 1146, 79 L. Ed. 2d 409

(1984))) (citation omitted). Thus, I would hold appellant’s failure to relinquish the marijuana or

to admit possessing it in response to police questioning does not constitute a voluntary omission

upon which to base a conviction for violating Code § 53.1-203.



                                                -9-
       For these reasons, I would conclude the evidence fails to prove possession of marijuana

inside a correctional facility is voluntary--and, thus, fails to support a conviction for violating

Code § 53.1-203--where a defendant (1) first possessed the substance before entering the facility,

at a time when arrest was not reasonably foreseeable, and (2) had no opportunity to dispose of

the substance before entering the facility without waiving his rights to remain silent and against

self-incrimination. Thus, I respectfully dissent.




                                                - 10 -
