                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Powell
Argued at Chesapeake, Virginia


ARTHUR MARTINEZ WOODSON
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1108-08-1                               CHIEF JUDGE WALTER S. FELTON, JR.
                                                                   OCTOBER 6, 2009
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               Dean W. Sword, Jr., Judge

                 William Roots, Jr. (Law Office of William Roots, Jr., on brief), for
                 appellant.

                 John W. Blanton, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       Following a bench trial, Arthur Martinez Woodson (“appellant”) was convicted of

possession of cocaine with intent to distribute, third offense, in violation of Code § 18.2-248. 1

On appeal, he contends the trial court erred in denying his motion to suppress evidence seized

during what he asserts was a warrantless visual body cavity search. He also contends the trial

court erred in finding the evidence sufficient to prove he possessed cocaine with intent to

distribute and that he had previously been convicted on two prior occasions of possession of




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          Appellant was charged in a single, three-count indictment with (1) distribution of a
controlled substance within 1,000 feet of a school bus stop in violation of Code § 18.2-255.2,
(2) possession of cocaine with intent to distribute in violation of Code § 18.2-248, and
(3) possession of cocaine with intent to distribute, third offense, in violation of Code
§ 18.2-248(C). The trial court dismissed the first count of the indictment on appellant’s motion
to strike, and nolle prosequied the second count.
controlled substances with intent to distribute. For the following reasons, we affirm the

judgment of the trial court.

                                       I. BACKGROUND

       On appeal, “[w]here the issue is whether the evidence is sufficient, we view the evidence

in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.” Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731

(1995). So viewed, the evidence proved that Portsmouth Police Officer Knorowski was engaged

in a narcotics surveillance operation on November 2, 2006. Around 7:46 a.m., Knorowski, from

a concealed location and using binoculars, saw a woman approach appellant who was sitting on

the front porch of a residence. After the woman handed appellant money, appellant stood up and

gave an object to her. From his vantage point, Knorowski could not determine the nature of the

object appellant handed to the woman. A few minutes later, Knorowski observed another

woman approach appellant. Appellant handed her a cigarette, and she departed. He then left the

porch and walked to a nearby intersection. There, around 8:20 a.m., Officer Knorowski

observed a third woman approach appellant.

               [S]he had U.S. currency in her hands, and she appeared to be
               counting it. . . . [Appellant] took the U.S. currency from [her] . . .
               and put it in [his] right pants pocket. . . . At that point [appellant]
               opened his left hand, where [Officer Knorowski] observed a plastic
               baggy containing several rocks of suspected crack cocaine
               individually wrapped. [Appellant] then gave one rock of suspected
               crack cocaine to [the woman].

Following this transaction, appellant “lowered his pants and stuck the plastic bag containing the

suspected crack cocaine in between his buttocks.” Officer Knorowski continued to observe

appellant until Officer Huneycutt arrested him moments later. 2


       2
        The record reflects that officers also stopped the woman with whom appellant made the
suspected drug transaction, and thereafter released her. However, it is silent as to whether police
recovered any controlled substances from her.
                                                -2-
       Following his arrest, appellant was taken to a small private room at the police station.

Consistent with standard procedure, Officers Huneycutt and Martin obtained written permission

from a police supervisor to conduct a strip search of appellant. Pursuant to the two officers’

instructions, appellant removed his outer clothing. The officers searched items of clothing as

appellant removed them. When appellant was clothed only in his boxer shorts, Officer

Huneycutt instructed him to lower those shorts from his waist by approximately “three inches.”

After appellant complied, Huneycutt saw “the top of a piece of plastic” at “the top of his

buttocks,” approximately “an inch, inch and-a-half down from . . . where your back ends and

your rear end starts.” At the officer’s request, appellant removed the plastic bag from his

buttocks area. Neither appellant nor the officers in the room removed appellant’s boxer shorts

during the search, and at no time were his anus or genitals exposed.

       The plastic bag recovered from appellant contained .38 gram of cocaine in the form of

“solid material” inside of a “plastic bag corner.” The officers recovered $223 in cash from

appellant’s pants pockets. The trial court admitted two prior conviction orders, one reflecting

that appellant had been previously convicted of possession of heroin with intent to distribute in

the City of Portsmouth in 2001, and another showing he had been convicted in 1996 of

distributing cocaine in the same city.

                                            II. ANALYSIS

                                         A. Motion to Suppress

       Appellant contends the trial court erred in denying his motion to suppress the cocaine

seized from him during the search following his arrest, asserting that police unlawfully subjected




                                                 -3-
him to a warrantless visual body cavity search. 3 We conclude the trial court did not err in

denying appellant’s motion to suppress.

       Appellant’s contention that the cocaine was seized from him in violation of the Fourth

Amendment

               presents a mixed question of fact and law that an appellate court
               reviews de novo. In evaluating the claim, the appellate court must
               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.

               While “the Commonwealth has the burden of proving the
               legitimacy of a warrantless search and seizure,” [appellant] must
               show that the trial court’s denial of his suppression motion, when
               the evidence is considered in the light most favorable to the
               prosecution, was reversible error.

Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (quoting Simmons

v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989)) (citations omitted).

       “An established exception to the warrant requirement of the Fourth Amendment exists for

a search incident to a lawful arrest. However, when law enforcement officers perform a ‘full

search’ of an arrestee without a warrant, their authority is ‘only skin deep.’” King v.

Commonwealth, 49 Va. App. 717, 723, 644 S.E.2d 391, 394 (2007) (quoting Commonwealth v.

Gilmore, 27 Va. App. 320, 328, 498 S.E.2d 464, 468 (1998)) (citation omitted).

               A search of the person may range from a Terry-type pat-down to a
               generalized search of the person to the more intrusive strip search
               or body cavity search. “A strip search generally refers to an
               inspection of a naked individual, without any scrutiny of his body
               cavities. A visual body cavity search extends to a visual inspection
               of the anal and genital areas.”




       3
         Appellant does not argue that the officers lacked probable cause to arrest him or to
search him incident to his arrest.
                                               -4-
Hughes v. Commonwealth, 31 Va. App. 447, 455, 524 S.E.2d 155, 159 (2000) (en banc)

(quoting Commonwealth v. Thomas, 708 N.E.2d 669, 672 n.4 (Mass. 1999)).

       Here, during the search incident to his arrest, appellant removed his outer clothes,

remaining clothed only in his boxer shorts. When the contraband was discovered, only the upper

portion of his buttocks was visible to the officers. From the record on appeal, we conclude that

the trial court did not err in finding that the officers did not conduct a visual body cavity search

of appellant. Accordingly, we hold that the trial court did not err in denying appellant’s motion to

suppress the evidence seized from him.

                                           B. Sufficiency

       Where the appellant challenges the sufficiency of the evidence to convict him of the

charged offense, we must “examine the evidence that tends to support the conviction[] and to

permit the conviction[] to stand unless [it is] plainly wrong or without evidentiary support.”

Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998) (citing Code

§ 8.01-680). “The credibility of the witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732.

                                       1. Intent to Distribute

       Appellant concedes the evidence, if lawfully seized, was sufficient to prove he possessed

cocaine, but contends the evidence failed to prove he intended to distribute that cocaine.

       “In determining whether a defendant is guilty of possession with the intent to distribute,

the trier of fact is entitled to weigh all the circumstances in a given case.” Stanley v.

Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14 (1991) (en banc). “While possession

of a small quantity of a controlled substance creates an inference that the drug is held for

personal use, when considered in conjunction with other circumstances, the small quantity

                                                 -5-
possessed may support a finding of an intent to distribute.” Early v. Commonwealth, 10

Va. App. 219, 222, 391 S.E.2d 340, 341 (1990) (citation omitted). Other such circumstances

include the “method of packaging of the controlled substance,” the “presence of an unusual

amount of money, suggesting profit from sales,” Servis v. Commonwealth, 6 Va. App. 507, 524,

371 S.E.2d 156, 165 (1988), and the “person’s conduct,” Long v. Commonwealth, 8 Va. App.

194, 198, 379 S.E.2d 473, 476 (1989). Further, the trier of fact “might well have inferred that

the quantity seized was what remained from a larger supply held for distribution.” Colbert v.

Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978).

       Here, Officer Knorowski, who had witnessed several hundred drug transactions, observed

appellant take an individually wrapped rock of suspected cocaine out of a bag and receive money

in exchange for that item. Officers later recovered that same bag, containing individually

packaged cocaine, from appellant’s person. We conclude the trial court did not err in finding

that evidence sufficient to prove appellant possessed cocaine with intent to distribute it. See

Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979) (“While no single

piece of evidence may be sufficient, the ‘combined force of many concurrent and related

circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a

conclusion.’” (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919))).

                                       2. Prior Convictions

       Appellant also contends the trial court erred in finding the evidence sufficient to prove

that he had previously been convicted of distribution of controlled substances on two prior

occasions, thereby triggering the enhanced punishment provisions of Code § 18.2-248(C). 4




       4
          “When a person is convicted of a third or subsequent offense under this subsection . . . ,
he shall be sentenced to imprisonment for life or for a period of not less than five years . . . and
he shall be fined not more than $500,000.” Code § 18.2-248(C).
                                               -6-
        The trial court admitted two prior conviction orders offered to prove appellant’s prior

controlled substance convictions, both from the City of Portsmouth, one from 1996 and one from

2001. Appellant argues that those prior orders failed to establish that he was the same “Arthur

Woodson” identified in those orders, contending that the birth dates shown on those conviction

orders did not match his date of birth, and that the 1996 order did not show the social security

number of the person convicted.

        Where the issue is “a ‘mere question of identification’” under a recidivist statute, “[it] is a

question for the [trier of fact] . . . as to whether . . . [the accused] is [the] person named in [the]

conviction orders.” Holmes v. Commonwealth, 41 Va. App. 690, 693, 589 S.E.2d 11, 12 (2003)

(quoting King v. Lynn, 90 Va. 345, 347, 18 S.E. 439, 440 (1893)).

        Officer Huneycutt testified that at the time of his arrest appellant told him his name was

Arthur Martinez Woodson. Appellant also told the officer that his date of birth was “10/16/76”

and that his social security number was “XXX-XX-XXXX.” The indictment for the offense on

appeal reflects the name “Arthur M. Woodson.” During his pretrial colloquy, appellant testified

under oath that his date of birth was “10/16/76.”

        The 2001 conviction order reflects that the person convicted by the Circuit Court of the

City of Portsmouth for possession of heroin with the intent to distribute was “Arthur M.

Woodson,” born “10-16-76,” and whose social security number was “XXX-XX-XXXX,” the same

name, date of birth, and social security number given to police by appellant at the time of his

arrest. We conclude that the trial court did not err in finding that the 2001 conviction order

established that appellant was the same person who had been previously convicted of possession

of heroin with intent to distribute.




                                                  -7-
       The January 18, 1996 conviction order reflects that “Arthur Woodson,” born “January 16,

1976,” was convicted by the Circuit Court of the City of Portsmouth for “selling cocaine.” 5

       We have previously held that “‘[i]dentity of names carries with it a [permissible

inference] of identity of person, the strength of which will vary according to the circumstances.’”

Holmes, 41 Va. App. at 692, 589 S.E.2d at 12 (quoting Cook v. Commonwealth, 7 Va. App. 225,

230, 372 S.E.2d 780, 783 (1988)). In addition to the same name as that of appellant, the January

18, 1996 conviction order shows the person convicted had the same day of birth and year of birth

as appellant gave to Officer Huneycutt at the time of his arrest, and which he gave to the trial

court at the beginning of his trial. While the birth month of the person convicted in the 1996

order was January (written numerically as “01”), which differs from that of appellant, October

(written numerically as “10”), the day and year of birth shown on that order are identical to

appellant’s stated day and year of birth. The trial court could reasonably infer from the evidence

presented that appellant was the subject of the 1996 conviction order. See id. at 693, 589 S.E.2d

at 12 (similar “offenses . . . occurred in adjacent jurisdictions, and were committed by adult

males of like age” “add to the strength of the inference”).

       From this evidence, the trial court made a specific factual finding that appellant was the

same “Arthur Woodson” named in the 1996 conviction order. A trial court’s factual findings

cannot be disturbed on appeal unless no “‘rational trier of fact’” could have come to the

conclusions it did. Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)

(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       We conclude from the record on appeal that the trial court did not err in finding the

evidence presented at trial established that appellant had twice previously been convicted of


       5
         The 1996 order does not contain a social security number for the person who is the
subject of that order.

                                                -8-
distributing controlled substances. Accordingly, the trial court did not err in imposing the

enhanced punishment for a third conviction of possession with intent to distribute a controlled

substance as required by Code § 18.2-248(C).

                                        III. CONCLUSION

       For the foregoing reasons, we affirm appellant’s conviction of possession of cocaine with

intent to distribute, third offense, in violation of Code § 18.2-248.

                                                                                    Affirmed.




                                                 -9-
