                        COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Agee * and Felton
Argued at Richmond, Virginia


JAMES SLYVESTER JONES
                                           MEMORANDUM OPINION * * BY
v.   Record No. 1077-02-2                JUDGE WALTER S. FELTON, JR.
                                                APRIL 1, 2003
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

          Vanessa E. Hicks, Assistant Public Defender,
          for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General;
          Linwood T. Wells, Jr., Assistant Attorney
          General, on brief), for appellee.


     James Jones was convicted in a bench trial of attempting to

possess cocaine, in violation of Code §§ 18.2-257 and 18.2-250,

and possessing a firearm after having been convicted of a

felony, in violation of Code § 18.2-308.2.     On appeal, Jones

contends the trial court erred:     (1) in denying his motion to

suppress the evidence; (2) in admitting the juvenile records

because the Commonwealth failed to prove that the juvenile


     * Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.

     ** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
petition in fact pertained to him; and (3) in finding the

evidence sufficient beyond a reasonable doubt to convict him of

possessing a firearm after having been convicted of a felony.

For the following reasons, we affirm in part and reverse in

part.

                            I.   BACKGROUND

        On July 23, 2000, at approximately 10:30 p.m., Officers

Brian O'Donnell, Joseph Trahey, and Greg Annis of the

Charlottesville Police Department were traveling on foot in the

vicinity of 321 Sixth Street.     The officers were in the area

because of numerous complaint calls to the police department

regarding drug dealing in front of the residence at 321 Sixth

Street.     The officers approached the residence from the backyard

and observed three young males standing in front on the

sidewalk.    As the officers approached them, the three men

dispersed and ran.    Jones and another man ran towards Cherry

Avenue with Officer Annis in pursuit.

        Officer O'Donnell noticed that as Jones ran away, he was

also crouching over.    As a result, Officer O'Donnell shone his

flashlight on Jones and saw that he had a gun in his right hand. 1

Officer O'Donnell yelled "Gun," and commanded Jones to "[g]et on

the ground."    Subsequently, Officer O'Donnell wrestled him to

the ground.    As he did so, he heard the sound of Jones' gun hit


        1
       Jones does not dispute that he possessed the gun at the
time of the confrontation.

                                 - 2 -
the pavement.      Once Jones was on the ground, Officer O'Donnell

handcuffed and searched him while Officer Trahey recovered the

gun.

       During the search, Officer O'Donnell recovered from Jones'

right rear jeans pocket, a knotted plastic bag containing nine

off-white, rock-like substances.      At that point, Officer

O'Donnell placed Jones under arrest for drug possession.       Jones

was taken to the police department and read his Miranda rights. 2

He signed a waiver of those rights and subsequently admitted to

Officer O'Donnell that he had the gun for about two months.      He

further stated that the substance found in his pocket was crack

cocaine, worth approximately $120, that he used to lace

marijuana.      Jones was charged with attempting to possess

cocaine, 3 in violation of Code § 18.2-257 (18.2-250), and

possession of a firearm after having been convicted of a felony,

in violation of Code § 18.2-308.2.

       On October 19, 2001, a hearing was held whereby Jones

requested suppression of the suspected cocaine, the firearm, and

any statements he made after being detained, on the grounds that

he was illegally seized, detained, and searched by officers of


       2
           Miranda v. Arizona, 384 U.S. 436 (1966).
       3
       Chemical analysis determined that the substance recovered
from Jones was 1.030 grams of aspirin. Because the substance
seized from Jones was not actually cocaine, the substance he
thought he possessed, he was charged with attempted possession
of cocaine.


                                  - 3 -
the Charlottesville Police Department.   At the hearing, Officer

O'Donnell was called to testify, among other things, as to why

he had conducted the search of Jones.    He testified that when he

handcuffed Jones he was placing him into "investigative

detention," not arresting him because he had a gun in his hand

when he ran from the police.   Officer O'Donnell expressed

concern that Jones might still have a weapon.

     When asked why he conducted the search, the following

colloquy ensued:

          [OFFICER O'DONNELL]: Basically, the time of
          night, the numerous calls to the area about
          specifically drug dealing, the fact that
          [Jones] broke and ran at police presence and
          the fact that he had a firearm on his person
          -– well, in his hand as he ran. Those
          things all together. I believed – I was
          fairly certain that there were some type of
          narcotics or other illegal substance on his
          person.

          MR. ZUG [Commonwealth's attorney]: And what
          is it about those factors that lead you to
          believe that – or led you to believe at that
          time?

          [OFFICER O'DONNELL]: My training experience
          with people that I've arrested in the past.

The trial court denied Jones' motion to suppress.   It held:

          I think unless he's involved in this
          vigorous flight and we have to be taken into
          custody in that fashion and he's actually
          cuffed and all, I think that under all those
          circumstances I think he certainly was
          reasonable in being detained at least to the
          point of checking the status of that weapon
          and the status of the defendant in relation
          to the weapon. It, you know, again, it's
          not a -– to me it's not a, what you call,

                               - 4 -
          slam dunk issue. I think it's an area that
          you could debate about.

          But, I really believe that the – I don't
          think there was a – the probable cause. I'm
          not satisfied absent the stop that there was
          probable cause to search him. You see, I
          think once the weapon gets out there, I find
          that there is probable cause to detain him.
          And combined with the flight and the
          association with the drug activity in the
          neighborhood, that all of that gives rise
          to, certainly, a basis for a detention for
          investigation. I think that's what the
          officer did. And I think that would have
          inevitably led to the finding of the drugs.
          I think the officer, when a weapon is out
          there, if he finds anything in the pocket
          during the search that could conceivably be
          a weapon, certainly he'd be able to search
          him for that.

          But I think basically that –- the way I'm
          coming down on this is a bit of inevitable
          discovery in the context of the
          investigation. And that's really what I
          think the answer to this.

     At trial, Jones objected to the admission of certified

copies of juvenile and domestic relations district court records

to prove a prior felony conviction.    He contended that the word

"Petition" on one document was hearsay, that the document's

admission violated his right to confront witnesses, and the

documents reflected that the social security number of the

person named was unknown.   Officer O'Donnell testified that the

records were obtained using information provided by Jones,

including his name, date of birth, and social security number.

The trial court admitted the juvenile records into evidence.   On

October 19, 2001, Jones was found guilty of attempting to

                               - 5 -
possess cocaine and possessing a firearm after having been

convicted of a felony.

                II.   ATTEMPTED POSSESSION OF COCAINE

     We first consider whether the trial court erred in denying

Jones' motion to suppress the evidence.      Jones contends that the

police exceeded the scope of a legal Terry stop when they seized

cocaine from his person. 4   Furthermore, the evidence did not

support the application of the inevitable discovery exception to

the exclusionary rule.   As a result, he argues that the trial

court should have suppressed the evidence.     We agree.

     In reviewing the trial court's denial of a motion to

suppress, the defendant has the burden to show that the ruling,

when the evidence is viewed in the light most favorable to the

Commonwealth, was reversible error.     Murphy v. Commonwealth, 264

Va. 568, 573, 570 S.E.2d 836, 838 (2002).     "A defendant's claim

that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact that we review de novo

on appeal."    Id.; see also Ornelas v. United States, 517 U.S. 690,

691 (1996).    "In making such a determination, we give deference to

the factual findings of the trial court and independently

determine whether the manner in which the evidence was obtained

meets the requirements of the Fourth Amendment."     Murphy, 264 Va.

at 573, 570 S.E.2d at 838.


     4
         Terry v. Ohio, 392 U.S. 1 (1968).


                                - 6 -
                           A.   TERRY STOP

     "The United States Supreme Court has articulated 'a narrowly

drawn authority to permit a reasonable search for weapons for the

protection of the police officer where [the police officer] has

reason to believe that he is dealing with an armed and dangerous

individual.'"   Hall v. Commonwealth, 22 Va. App. 226, 228, 468

S.E.2d 693, 694 (1996) (quoting Terry v. Ohio, 392 U.S. 1, 27

(1968)).   However, the authority to conduct a pat-down search does

not follow automatically from the authority to effectuate an

investigative stop.   Harrell v. Commonwealth, 30 Va. App. 398,

403, 517 S.E.2d 256, 258-59 (1999).     "Once a police officer has

properly detained a suspect for questioning he may conduct a

limited pat-down search for weapons if he reasonably believes that

the suspect might be armed and dangerous."    Moore v. Commonwealth,

12 Va. App. 404, 406, 404 S.E.2d 77, 77 (1991) (quoting Williams

v. Commonwealth, 4 Va. App. 53, 66, 354 S.E.2d 79, 86 (1987)).

"The purpose of this 'pat-down' search is not to uncover evidence

of criminal activity, but to permit the officer to conduct his

investigation without encountering a violent response."    Murphy,

264 Va. at 573-74, 570 S.E.2d at 839.

     If during a lawful pat-down for weapons of a suspect's

outer clothing a police officer feels an object whose contour or

mass makes its identity immediately apparent, there has been no

invasion of the suspect's privacy beyond that already authorized

by the officer's search for weapons.     Minnesota v. Dickerson,

                                - 7 -
508 U.S. 366, 375-76 (1993).   "[I]f the object is contraband,

its warrantless seizure would be justified by the same practical

considerations that inhere in the plain-view context."     Id.

     In the case before us, Officer O'Donnell conducted an

unlawful search of Jones and unlawfully seized from his rear

jeans pocket, a plastic bag containing what appeared to be nine

rocks of crack cocaine.    There is no question that the initial

stop of Jones was proper.   When Jones saw the police officer

approaching him, he fled carrying a handgun in his right hand.

When apprehended by Officer O'Donnell, Jones lost possession of

the weapon.   Another officer subsequently recovered it.   Officer

O'Donnell testified that he handcuffed Jones and placed him in

investigative detention.    Officer O'Donnell was clear in stating

that Jones was not placed under arrest at that time. 5

     When asked at the suppression hearing why he conducted the

search of Jones, Officer O'Donnell stated:

          Basically, the time of night, the numerous
          calls to the area about specifically drug
          dealing, the fact that [Jones] broke and ran
          at police presence and the fact that he had
          a firearm on his person -- well, in his hand
          as he ran. Those things all together. I
          believed - I was fairly certain that there
          were some types of narcotics or other
          illegal substance on his person.




     5
       Since Jones was not under arrest at the time of the
search, we need not determine whether the search was incident to
a lawful arrest.

                                - 8 -
(Emphasis added).    Officer O'Donnell's stated intent in

conducting a search of Jones was to recover narcotics or other

illegal substances, not to determine whether Jones had

additional weapons on his person.     We therefore conclude that

Officer O'Donnell's actions exceeded the permissible scope of

the limited search for weapons.

                      B.    INEVITABLE DISCOVERY

     The trial court incorrectly relied on the doctrine of

inevitable discovery in reaching its decision regarding the

issue of attempted possession of cocaine.     Application of the

doctrine of inevitable discovery requires the Commonwealth to

show three things:   (1) a reasonable probability that the

evidence in question would have been discovered by lawful means,

but for the police misconduct; (2) the leads making discovery

inevitable were possessed by the police at the time of the

misconduct; and (3) the police also prior to the misconduct were

actively pursuing the alternative line of investigation.     Walls

v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185

(1986).   The Commonwealth failed to prove the existence of these

factors in this case.      There was no specific complaint

concerning Jones, so there were no leads for the police to

follow prior to the police misconduct.     In addition, Officer

O'Donnell was not actively pursuing any alternative line of

investigation.   The inevitable discovery cannot be the direct



                                  - 9 -
result of the initial unlawful search, but rather must be

independent of it.

     We reverse the judgment of the trial court finding Jones

guilty of attempted possession of cocaine and order the charge

dismissed.

                  III.   ADMISSION OF JUVENILE RECORDS

     We next consider whether the trial court erred in admitting

the juvenile petition and accompanying records.

             "The admissibility of evidence is within the
             broad discretion of the trial court, and a
             ruling will not be disturbed on appeal in
             the absence of an abuse of discretion."
             Blain v. Commonwealth, 7 Va. App. 10, 16,
             371 S.E.2d 838, 842 (1988). "Evidence is
             admissible if it is both relevant and
             material." Evans-Smith v. Commonwealth, 5
             Va. App. 188, 196, 361 S.E.2d 436, 441
             (1987).

Braxton v. Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688,

692 (1997).

     The Commonwealth offered as evidence a certified copy of a

petition and accompanying papers from the Charlottesville

Juvenile and Domestic Relations District Court.      The petition

indicated that the records were those of James Sylvester Jones.

However, the social security number was shown as unknown.     Jones

contends that the Commonwealth failed to prove that the juvenile

petition in fact pertained to him and as a result, should not

have been admitted into evidence.     We disagree.




                                 - 10 -
     Officer O'Donnell testified that the petition and

accompanying records were obtained using information provided by

Jones.    Jones supplied Officer O'Donnell with his name, date of

birth, and social security number.        With that information in

hand, Officer O'Donnell obtained the petition and accompanying

records.    The trial court did not abuse its discretion in

admitting the juvenile petition and accompanying records.

           IV.   POSSESSION OF A FIREARM BY A CONVICTED FELON

     We lastly consider whether the evidence was sufficient to

convict Jones of possessing a firearm after having been

convicted of a felony.

             When the sufficiency of the evidence is
             challenged on appeal, it is well established
             that we must view the evidence in the light
             most favorable to the Commonwealth, granting
             to it all reasonable inferences fairly
             deducible therefrom. The conviction will be
             disturbed only if plainly wrong or without
             evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

     Code § 18.2-308.2 states in relevant part:

             A. It shall be unlawful for (i) any person
             who has been convicted of a felony or (ii)
             any person under the age of twenty-nine who
             was found guilty as a juvenile fourteen
             years of age or older at the time of the
             offense of a delinquent act which would be a
             felony if committed by an adult . . . to
             knowingly and intentionally possess or
             transport any firearm or to knowingly and
             intentionally carry it about his
             person . . . .


                                 - 11 -
Jones contends that there was a fatal variance between the

allegations in the indictment and the proof of the crime.      He

argues that the Commonwealth chose to prosecute him under Code

§ 18.2-308.2(A)(i).   However, instead of attempting to prove a

felony conviction under Code § 18.2-308.2(A)(i), the

Commonwealth proceeded to prove a violation under Code

§ 18.2-308.2(A)(ii) without amending the charge.   We disagree.

       Jones was indicted under the broad provisions of Code

§ 18.2-308.2.   He was given fair notice of the charges against

him.   He was put on notice that he would have to defend against

being in possession of a weapon after having been convicted of

either a felony or a delinquent act as a juvenile that would

have been a felony if it had been committed by an adult.       See

generally Buchanan v. Commonwealth, 238 Va. 389, 397-98, 384

S.E.2d 757, 762-63 (1989).   Thus, his argument is without merit.

What remains to be determined is whether Jones was in possession

of a weapon and whether the evidence was sufficient to prove

beyond a reasonable doubt his status as a convicted felon.      As

to each issue, we answer in the affirmative.

       At trial, Jones conceded the fact that he was in possession

of a weapon when he encountered Officer O'Donnell.   Furthermore,

the evidence supported the trial court's finding that Jones was

a person prohibited from possessing weapons within the statutory

definition.   The Commonwealth presented evidence that Jones was

born on May 29, 1980.   In addition, it presented evidence that

                               - 12 -
Jones was found guilty on a juvenile petition for unlawful

wounding, a felony if committed by an adult.

     An adjudicatory hearing was held on November 1, 1994.

Jones entered a guilty plea that was accepted by the juvenile

and domestic relations district court.      The petition reflects a

finding of guilty from which it can be reasonably inferred that

the juvenile court found Jones guilty of the offense charged in

the petition.

     The Commonwealth presented evidence from which the court

could reasonably conclude that Jones was under the age of

twenty-nine when the present offense was committed and that he

was fourteen years of age or older when adjudicated guilty of

unlawful wounding, an offense that would have been a felony if

committed by an adult.   The evidence was sufficient beyond a

reasonable doubt to convict Jones of a violation under Code

§ 18.2-308.2.

     We affirm the judgment of the trial court finding Jones

guilty of possessing a firearm after having been convicted of a

felony.

                          V.   CONCLUSION

     We find that the trial court erred in denying Jones' motion

to suppress the evidence of the contraband seized from him.

Accordingly, we reverse the judgment of the trial court and

order the charge of attempted possession of cocaine be

dismissed.   We also find that the trial court did not err in

                               - 13 -
admitting Jones' juvenile records and, therefore, affirm the

judgment of the trial court, admitting the evidence.   We further

find that the evidence was sufficient beyond a reasonable doubt

to convict Jones of possession of a firearm after having been

convicted of a felony, and affirm the trial court's judgment of

conviction.

                                             Affirmed in part,
                                             reversed and
                                             dismissed in part.




                             - 14 -
