                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Beales and Decker
            Argued at Salem, Virginia
PUBLISHED




            TINA LASHA HALL, A/K/A
             TINA LASHA WALLER
                                                                                 OPINION BY
            v.     Record No. 1751-17-3                                   JUDGE RANDOLPH A. BEALES
                                                                              NOVEMBER 6, 2018
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                           Stacey W. Moreau, Judge

                           Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.

                           Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Following the execution of a search warrant, Tina Lasha Hall, a/k/a Tina Lasha Waller

            (“appellant”) was indicted for four felonies, including possession of a firearm by a convicted

            felon and possession of a firearm while possessing cocaine with the intent to distribute.

            Appellant moved to sever the charge for possession of a firearm by a felon from the other

            charges in the indictment. After she prevailed on a motion to strike at the first trial on the other

            charges, she moved to dismiss the charge of possession of a firearm by a convicted felon,

            arguing that it violated the principle of collateral estoppel and double jeopardy. The trial court

            denied appellant’s motion, and she was ultimately convicted. On appeal, appellant contends the

            trial court erred in denying her motion to dismiss based on “collateral estoppel pursuant to the
Double Jeopardy Clause of the Fifth Amendment”1 and in finding the evidence sufficient to find

her guilty of possession of a firearm by a convicted felon.

                                                                    I. BACKGROUND

                                                               Relevant Procedural History

              On February 16, 2016, appellant was indicted for possession of cocaine with intent to

distribute, third or subsequent offense; possession of marijuana with intent to distribute;

possession of a firearm while possessing cocaine with intent to distribute; and possession of a

firearm after having been convicted of a felony. On May 5, 2016, appellant moved to sever the

charge of possession of a firearm by a convicted felon from the other charges, and the trial court

granted the motion. On January 18, 2017, appellant was tried for the other charges.2 At the

conclusion of the Commonwealth’s case-in-chief, the trial court granted appellant’s motion to

strike the charges.

              On January 23, 2017, appellant filed a motion to dismiss the charge of possession of a

firearm by a convicted felon based on collateral estoppel and double jeopardy. The trial court

denied the motion to dismiss and proceeded to trial. At a bench trial on August 10, 2017, the

trial court found appellant guilty of possession of a firearm by a convicted felon. She was

sentenced to four years of incarceration with two years suspended and 18 months of supervised

probation.




                                                            
              1
         Appellant does not argue that her trial for possession of a firearm by a convicted felon
also violated the similar double jeopardy prohibition in Article I, Section 8 of the Virginia
Constitution.
              2
         On July 11, 2016, the Commonwealth moved to nolle prosequi the charge of possession
of marijuana with the intent to distribute.
                                            -2-
       Evidence Presented at Appellant’s Trial for Possession of a Firearm by a Convicted Felon

              On the morning of October 30, 2015, at approximately 8:30 a.m., police officers from the

Pittsylvania County Sheriff’s Office executed a search warrant on the residence of Ronnie Stone

at 1105 Cody Road in Pittsylvania County.

              Earlier that morning, approximately an hour before the search warrant was executed,

Investigator Robert Worsham with the Pittsylvania County Sheriff’s Office conducted

surveillance of the address. From his location in the woods, he witnessed one person – appellant

– leave the residence and get into a vehicle. Approximately one week prior to the execution of

the search warrant, another officer, Corporal James Davis, knocked on the door of the residence.

Appellant answered and, when Corporal Davis inquired about possibly purchasing a vehicle

outside of the residence, appellant told him that he would have to wait for Stone to return home.

              During the execution of the search warrant on October 30th, in one of the bedrooms of

the residence, the officers located an AK-47 between the bed and the nightstand. They found

live ammunition in the firearm and another ammunition magazine in the drawer of the

nightstand. Appellant’s and Stone’s young child was lying in that bed when the police arrived.

              On a dresser in the bedroom, the officers located a tin decorated with sunflowers. The

child’s insurance card was found on top of the tin and five one-hundred-dollar bills were found

inside. The officers found a bottle of medicine bearing the child’s name on the dresser. They

also located two prescription bottles from CVS prescribed to appellant in that same bedroom.

              Underneath the bed, the officers found an empty box for a firearm.3 They also located

two pieces of mail addressed to appellant. The address on one of the pieces of mail was on

Thompson Store Road in Vernon Hill, Virginia. In a shoe box under the bed, the officers found


                                                            
              3
         At trial, Corporal Davis testified that he did not know if the box was the box for the
firearm that the officers located between the bed and the nightstand.
                                                 -3-
certificates of title for four vehicles – each naming appellant as the vehicle’s owner. The address

listed for appellant on the certificates was on Marysville Road in Altavista, Virginia.

              The police seized fifteen vehicles at the residence. In one of the vehicles at the residence,

a Honda Odyssey, the police found a repair bill for the vehicle bearing appellant’s name.

Appellant’s address on the bill was listed as 1105 Cody Road – the address of the residence

being searched. Lieutenant Gerald Ford ran a Q-VIN4 for appellant and found that she had

several vehicles registered in her name. For every vehicle listed on the report, appellant’s

address was also listed as 1105 Cody Road. At appellant’s trial, the Commonwealth introduced

the answer appellant submitted in a forfeiture proceeding on the seized vehicles. In that

document, appellant claimed ownership of seven of the vehicles seized at the residence.

              After the warrant was executed, the police directed Stone to call appellant, and

Investigator Colbert asked her to return to the residence. When she arrived, she was interviewed

by Major Nicholson. Major Nicholson testified that he asked appellant about the firearm and

that she told him Stone’s father had given the gun to Stone for his protection approximately two

months earlier. Major Nicholson also testified that appellant admitted to him that she was a

convicted felon. A copy of appellant’s prior convictions was entered into evidence without

objection.

              After the Commonwealth rested, appellant’s cousin, Keisha Waller, testified that

appellant lived with appellant’s mother at the Thompson Store Road address and that she had

never seen appellant with a firearm.

              Appellant testified in her own defense. She claimed that she was at Stone’s residence at

about 6:00 a.m. that morning to drop off their child. She did not deny “using that address” but


                                                            
              4
        Lieutenant Ford testified that a “Q-VIN essentially runs a person’s information to see
what vehicles are registered in that person’s name.”
                                                -4-
claimed that she did not reside there. She testified that Stone’s father had bought a gun about

two months prior, but she denied saying anything to Major Nicholson about Stone’s father giving

it to Stone. She also denied knowing that there was a firearm in the residence. Appellant

testified that the mail and other documents belonging to her were probably in the residence as a

result of her “just like randomly leaving, leaving things there . . . .” She further testified that she

did not know how the certificates of title to her vehicles got under the bed at Stone’s residence,

and she denied that she was taking the medication found in the bedroom at that time.

        At the conclusion of the trial, the trial court found appellant guilty of possession of a

firearm by a convicted felon.

                                             II. ANALYSIS

                                       A. Collateral Estoppel

        Although appellant moved to have the charges against her severed, appellant contends

that her conviction for possession of a firearm by a convicted felon violates the collateral

estoppel principle encompassed in the Fifth Amendment’s guarantee against double jeopardy.

Specifically, she argues that because she prevailed on her motion to strike on the charge of

possession of a firearm while possessing cocaine with the intent to distribute at the first trial, the

issue of whether she possessed the firearm had already been litigated, and collateral estoppel

principles should have precluded the Commonwealth from proceeding with the trial on

possession of a firearm by a convicted felon.

        “Whether there has been a double jeopardy violation presents a question of law requiring

a de novo review.” Fullwood v. Commonwealth, 279 Va. 531, 539, 689 S.E.2d 742, 747 (2010).

The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. “This guarantee recognizes the

vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice
                                                 -5-
system would invite if prosecutors could treat trials as dress rehearsals until they secure the

convictions they seek.” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018).  However, “the Clause

was not written or originally understood to pose ‘an insuperable obstacle to the administration of

justice’ in cases where ‘there is no semblance of [these] type[s] of oppressive practices.’” Id.

(quoting Wade v. Hunter, 336 U.S. 684, 688-89 (1949)). Collateral estoppel “is embodied in the

Fifth Amendment guarantee against double jeopardy.” Ashe v. Swenson, 397 U.S. 436, 445

(1970). “It means simply that when an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be litigated between the same parties in any

future lawsuit.” Id. at 443. “Collateral estoppel, as applied in criminal proceedings, becomes

applicable only when the defendant’s prior acquittal necessarily resolved a factual issue that the

Commonwealth seeks to litigate again in a subsequent proceeding.” Commonwealth v. Leonard,

294 Va. 233, 239, 805 S.E.2d 245, 249 (2017).

       In Currier, 138 S. Ct. 2144, the United States Supreme Court was presented with an issue

virtually identical to the one in the case at bar. In that case, in order to prevent the introduction

of evidence of his prior convictions, defendant Michael Currier and the Commonwealth agreed

that the trial court should sever the charges of burglary and larceny from his charge of possession

of a firearm by a convicted felon. Id. at 2148. The trial court granted the request, and Currier

was acquitted by a jury on the burglary and larceny charges. Id. Before the second trial on the

firearm charge, Currier argued that the collateral estoppel component of double jeopardy should

prohibit the government from trying him on the charge of possession of a firearm by a convicted

felon. Id. at 2149. The trial court rejected the arguments, and Currier was ultimately convicted

on the firearm charge. Id. Appellant appealed his conviction, which was affirmed by this Court

and then also affirmed by the Virginia Supreme Court. Currier v. Commonwealth, 65 Va. App.

605, 779 S.E.2d 834 (2015), aff’d, 292 Va. 737, 798 S.E.2d 164 (2016).
                                                 -6-
       The United States Supreme Court also affirmed the conviction, holding that no collateral

estoppel violation existed because Currier had agreed to have two separate trials on the charges

against him. The Supreme Court reasoned that, in cases where the defendant agrees to two trials

to avoid the introduction of prejudicial but probative evidence, “the defendant wins a potential

benefit and experiences none of the prosecutorial ‘oppression’ the Double Jeopardy Clause exists

to prevent.” Currier, 138 S. Ct. at 2151. Therefore, “a defendant’s consent dispels any specter

of double jeopardy abuse that holding two trials might otherwise present.” Id. See also

Campbell v. Commonwealth, 69 Va. App. 217, 230, 817 S.E.2d 663, 669-70 (2018) (holding

defendant’s trial on the charge of possession with the intent to distribute – after being found

guilty of manufacturing at an earlier trial – was not barred by constitutional double jeopardy

principles where the defendant had requested a continuance on that charge).

       In the case before us, appellant requested that the charges be severed to prevent the

Commonwealth from introducing evidence of her prior convictions at her trial for possessing a

firearm while possessing cocaine with the intent to distribute. Because appellant agreed to the

severance, we do not need to further analyze whether the appellant’s trial for possession of a

firearm by a convicted felon would have required the parties to relitigate an issue of ultimate fact

decided in the first trial. The “‘Double Jeopardy Clause, which guards against Government

oppression, does not relieve a defendant from the consequences of [a] voluntary choice’ like

that.” Currier, 138 S. Ct. at 2151 (quoting United States v. Scott, 437 U.S. 82, 99 (1978)).

Therefore, given the Supreme Court’s decision in Currier, appellant’s conviction at the second

trial for possession of a firearm by a convicted felon certainly did not offend the Double

Jeopardy Clause.

       Appellant contends that we should distinguish this case from Currier because, unlike the

defendant in Currier, who was acquitted by a jury in his first trial, appellant’s first trial ended
                                                 -7-
when she prevailed on a motion to strike. Thus, according to appellant, “the evidence was even

less sufficient in the first case for [appellant] than it was in the first case in Currier.” We

disagree with appellant that this difference renders Currier inapplicable. Regardless of the

manner by which appellant prevailed at the first trial, appellant’s agreement to the two trials

removed any concerns of any possible prosecutorial overreaching or governmental oppression

that would be central to a challenge under the Double Jeopardy Clause. Therefore, the trial court

did not err in denying appellant’s motion to dismiss.5

                                     B. Sufficiency of the Evidence for Appellant’s Conviction

              Appellant also contends that the evidence was insufficient to prove that she possessed the

firearm found in the bedroom. When considering the sufficiency of the evidence on appeal, “a

reviewing court does not ‘ask itself whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588

S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing

the evidence in the light most favorable to the Commonwealth, as we must since it was the

prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555,

574 (2004), “[w]e must instead ask whether ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588

S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447

(2003) (en banc)). “This familiar standard gives full play to the responsibility of the trier of fact


                                                            
              5
           Appellant also argues that the trial court erred for failing to take “into account the whole
case including evidence, pleadings, and arguments” in determining whether collateral estoppel
applied to preclude the Commonwealth from prosecuting her in the second trial. Appellant
argues that the trial court only listened to her counsel’s argument on the motion to strike in the
first trial, instead of reviewing the record from the entire proceeding. However, the trial court
did not need to undertake a collateral estoppel analysis to determine the issues litigated in the
first trial because appellant’s request to have the charges in the indictment severed precluded her
from arguing a double jeopardy violation. Therefore, we find no error.
                                                  -8-
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

       Possession of a firearm may be actual or constructive. “Constructive possession may be

established by ‘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 the

character of the substance and that it was subject to his dominion and control.’” Logan v.

Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) (en banc) (quoting

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1989)).

       The circumstantial evidence presented at trial showed that, although appellant denied

living in the residence, she was a regular occupant of the home. “A person’s ownership or

occupancy of premises on which the subject item is found, proximity to the item, and statements

or conduct concerning the location of the item are probative factors to be considered in

determining whether the totality of the circumstances supports a finding of possession.” Wright

v. Commonwealth, 53 Va. App. 266, 274, 670 S.E.2d 772, 775-76 (2009). Appellant was at the

residence by herself a week prior to the search warrant’s execution when Corporal Davis stopped

by to inquire about a vehicle. Investigator Worsham also saw her there in the early morning – at

around 7:30 a.m. – on the day the search warrant was executed. Furthermore, appellant kept

possessions – including the seven vehicles that she claimed were hers in the forfeiture action – at

the residence. She did not deny “using that address,” and she apparently reported it as her

address to DMV and to an automobile repair shop because the documents from both DMV and

the repair shop showed it as her address.

       Substantial evidence also suggested that appellant was an occupant of the bedroom where

the firearm was found in plain view. Appellant’s child was found in the bed, and his medications

were found on the dresser in that bedroom approximately an hour after appellant was seen
                                               -9-
leaving the residence. The logical inference from this fact is that appellant was in the room with

her child that morning and she, therefore, would have had access to the gun just before she left

that morning. Medication prescribed to appellant was found in that bedroom, and her mail was

found under the bed. The police also recovered certificates of title to vehicles owned by

appellant in a shoebox under the bed. The certificates were not haphazardly lying on the floor

under the bed; they had been placed in a shoebox, suggesting that appellant purposely filed and

stored them there.

              In addition to the evidence connecting appellant to the room where the firearm was

located in plain view, the trial court concluded that appellant was aware of the presence and

character of the gun in the residence because of her statements to Major Nicholson. Appellant

told Nicholson that the gun the officers recovered belonged to Stone – and that Stone’s father

had given it to him two months earlier.6 Although at trial appellant denied making these

statements to Major Nicholson and denied knowing that the firearm was in the residence or that

it belonged to Stone, the trial judge was permitted to reject her testimony and accept that of

Nicholson. Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998)

(“In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving

testimony of the accused and to conclude that the accused is lying to conceal his guilt.”). Based

on the totality of the circumstances, we certainly cannot say that no rational factfinder could have

convicted appellant of possession of a firearm by a convicted felon.




                                                            
              6
         Stone’s ownership and possession of the firearm would not preclude appellant from also
possessing the firearm. See Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154,
157 (2009) (“Possession and not ownership is the vital issue. Possession may be joint or several.
Two or more persons may be in possession where each has the power of control and intends to
exercise control jointly.” (quoting Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482,
487 (1953))).
                                                - 10 -
                                         III. CONCLUSION

       In short, the trial court did not err in denying appellant’s motion to dismiss the indictment

for possession of a firearm by a convicted felon because appellant agreed to have the charges

against her severed. Appellant’s voluntary decision to request that the charges be severed

benefited appellant because it kept the Commonwealth from introducing evidence of earlier

felony convictions in the first trial. Since the severance was at her election, as the United States

Supreme Court held in Currier v. Virginia, she was not subject to any prosecutorial overreaching

or abuse that the Double Jeopardy Clause was intended to prevent. Therefore, the trial court did

not err in refusing to dismiss the indictment for possession of a firearm by a convicted felon.

       In addition, the evidence was sufficient for a rational factfinder to convict appellant of

possession of a firearm by a convicted felon. Although appellant claimed not to live at the

residence where the firearm was found, she kept multiple vehicles at the address, she reported

the address to the DMV, and she was alone at the residence a week before the search warrant

was executed – and was also there very early in the morning on the day it was executed.

Appellant also kept numerous personal items in the bedroom where the firearm was found in

plain view, including mail, medication, and numerous vehicle certificates of title organized in a

shoebox under the bed. Her small child was also found in that bed that was next to the firearm –

shortly after she left the residence that morning. Given all of these circumstances, we certainly

cannot say that no rational factfinder could have found appellant guilty of possession of a firearm

by a convicted felon.

       For all of these reasons, we affirm appellant’s conviction for possession of a firearm after

having been convicted of a felony.

                                                                                           Affirmed.



                                               - 11 -
