                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Malveaux and Senior Judge Frank
            Argued at Hampton, Virginia
PUBLISHED




            SAMUEL RUDOLPH JOSHUA RASPBERRY
                                                                                OPINION BY
            v.     Record No. 0988-18-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                              OCTOBER 29, 2019
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                         Christopher W. Hutton, Judge

                           Ronald L. Smith (Smith Law Firm, PLC, on brief), for appellant.

                           Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Following a bench trial, the Circuit Court for the City of Hampton (“circuit court”)

            convicted appellant Samuel Rudolph Joshua Raspberry (“Raspberry”) of two counts of

            possession with intent to distribute narcotics—cocaine and methamphetamine—both in violation

            of Code § 18.2-248; possession of a concealed weapon, in violation of Code § 18.2-308;

            possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2; and possession

            of a firearm while in possession of a controlled substance, with the intent to distribute, in

            violation of Code § 18.2-308.4. This appeal follows in which Raspberry assigns error to the

            admission of court records regarding his prior criminal history and to the sufficiency of the

            evidence that he constructively possessed the two firearms found in the vehicle he was operating.

                                                    I. BACKGROUND

                   On May 18, 2017, the Virginia State Police contacted Hampton Detective Juan Figueroa

            (“Detective Figueroa”) about Raspberry because Raspberry had an outstanding capias. Virginia

            State Police also informed Detective Figueroa that Raspberry would be present at a specific
address in Hampton, Virginia, later that same day. Detective Figueroa subsequently travelled to

the location where he expected Raspberry to appear and set up surveillance. At that time,

Detective Figueroa also possessed information that Raspberry would be driving a gray Ford

Fusion with “Virginia tags.”

       At approximately 2:45 p.m., Officer Figueroa witnessed Raspberry parking a gray Ford

Fusion. Detective Figueroa then pulled his vehicle behind Raspberry and identified himself.

Detective Figueroa told Raspberry that Raspberry was under arrest and directed Raspberry to get

out of the vehicle. After confirming Raspberry’s identity, Detective Figueroa searched

Raspberry incident to arrest. During the search of Raspberry’s person, Detective Figueroa

discovered a green Crown Royal bag in Raspberry’s right pocket, which contained 12.65 grams

of cocaine, “roughly $1,000” in $10 and $20 bills, a digital scale, and 45 MDMA

(methamphetamine) pills. Detective Figueroa also discovered marijuana on Raspberry’s person,

for which Raspberry was not charged.

       After searching Raspberry’s person, Detective Figueroa searched a bag located on the

front passenger seat of Raspberry’s vehicle. The bag contained two firearms wrapped in a pair

of jeans and two Gatorade bottles. The Gatorade bottles had condensation on the outside of the

bottles. When Detective Figueroa opened the bag, he saw the jeans and the guns on top, with the

Gatorade bottles underneath and at the bottom of the bag.

       At Raspberry’s trial, which took place on April 6, 2018, Detective Figueroa testified for

the Commonwealth. After being qualified as an expert in narcotics distribution, Detective

Figueroa testified that the quantity of drugs that Raspberry possessed, its packaging, the amount

of money discovered, and Raspberry’s possession of the digital scale were all inconsistent with

personal use. Detective Figueroa also testified that the “street value” of the cocaine discovered

on Raspberry’s person was “about $1,400 worth.” Further, Detective Figueroa indicated that

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there was a “noticeable nexus between firearms and drugs” in the City of Hampton because

“people . . . will protect their products or their merchandise and their currency with firearms.”

Detective Figueroa also agreed that a “large quantity of [drug] dealers carry firearms” on their

person.

          Raspberry’s girlfriend, Miosa Henderson (“Henderson”), owned the gray Ford Fusion

that Raspberry drove on the day of his arrest. At trial, Henderson testified that officers arrested

Raspberry after Raspberry arrived to pick her up from work. Henderson also noted that

Raspberry frequently drove her vehicle. She also testified that the bag discovered by Detective

Figueroa on the front passenger seat of the vehicle did not belong to her and that she did not

know who it belonged to.

          At the beginning of the trial, the Commonwealth offered three certified orders from the

Circuit Court for the City of Hampton indicating that Raspberry was a convicted felon.1

Raspberry, however, objected to the admission of the court orders because they “were not signed

by a judge.”

          Each of the three court orders indicated that Raspberry was previously convicted of a

felony and contained electronic signatures from judges as opposed to physical signatures. The

first court order introduced by the Commonwealth is titled “Revocation of Suspension of

Sentence” order and dated December 19, 2014. The signature line reads “S/CHRISTOPHER W.

HUTTON,” and the word “JUDGE” appears below it. The second court order is also titled

“Revocation of Suspension of Sentence” and dated April 24, 2009. The signature line reads

“S/BONNIE L. JONES,” with the word “JUDGE” below it. The third and final court order

introduced by the Commonwealth is titled “Sentencing Order” and dated August 6, 2008. The




          After the circuit court overruled Raspberry’s objection and admitted the prior court
          1

orders, the Commonwealth withdrew a fourth sentencing order from Isle of Wight County.
                                                -3-
signature line reads “S/RANDOLPH T. WEST,” with the word “JUDGE” below it. All were

certified by the Hampton Circuit Court Clerk with an embossed seal containing the following

language:

               I certify that the document to which this authentication is affixed is
               a true copy of an original record in the Hampton Circuit Court, that
               I have custody of the record and I am the custodian of that record.

               Linda Batchelor Smith, Clerk

               By [signature]

               Deputy Clerk[.]

       The circuit court took Raspberry’s objection under advisement, but later stated

               [o]ne of them is my signature. So one of them is my name. The
               other one is Judge West, and the other one is Judge Jones.

                  ....

               Well, this is simply not only a custom in the City of Hampton. I
               don’t know where else it is practiced, but there is a Virginia Code
               section that allows this type of activity. Rather than the Judge
               signing each of these orders, it allows it to be . . . documented by
               the clerk in such a fashion in these orders.

The circuit court then admitted the three court orders as evidence of Raspberry’s prior felony

convictions but noted Raspberry’s objection on the record.

       The circuit court subsequently convicted Raspberry of all charges. The circuit court later

sentenced Raspberry to five years for possession of a firearm while in possession of a controlled

substance with the intent to distribute, five years with three years suspended for the possession of

a firearm by a convicted felon, and twelve months, all suspended, for carrying a concealed

weapon. The circuit court also convicted Raspberry of both possession with the intent to

distribute cocaine and possession with the intent to distribute methamphetamine, but Raspberry

does not challenge these convictions on appeal.




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                                           II. ANALYSIS

                            A. Raspberry’s Status as a Convicted Felon

       In his first assignment of error, Raspberry argues that the Commonwealth failed to prove

“beyond a reasonable doubt that he was a convicted felon.” More specifically, Raspberry

contends that the three court orders from the Circuit Court for the City of Hampton were

inadmissible because they were not “physically” signed by a judge. Therefore, Raspberry argues

that the circuit court could not rely upon the three court orders to convict him of possession of a

firearm by a convicted felon, in violation of Code § 18.2-308.2, and possession of a firearm

while in possession of a controlled substance with the intent to distribute, in violation of Code

§ 18.2-308.4.

       “Decisions regarding the admissibility of evidence lie within the trial court’s sound

discretion and will not be disturbed on appeal absent an abuse of discretion.” Blankenship v.

Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.

461, 465 (2006)) (internal quotation marks omitted). “Only when reasonable jurists could not

differ can we say an abuse of discretion has occurred.” Id. (quoting Tynes v. Commonwealth, 49

Va. App. 17, 21 (2006)). To the extent that this case involves the trial court’s application of a

statute, however, we review that issue de novo. Bowden v. Commonwealth, 52 Va. App. 673,

676 (2008) (citing Ainslie v. Inman, 265 Va. 347, 352 (2003)).

       In the Commonwealth, Code § 8.01-389 provides for the admissibility of judicial records.

Pursuant to that statute, “[t]he records of any judicial proceeding and any other official records of

any court of this Commonwealth shall be received as prima facie evidence provided that such

records are certified by the clerk of the court where preserved to be a true record.” Code

§ 8.01-389(A). Prima facie proof that the clerk has certified such a record to be a true copy of

the official record exists where: (1) “[t]he use of the term ‘copy teste,’ ‘true copy,’ or ‘certified

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copy’ or a substantially similar term on a certification [is] affixed or annexed to a copy of an

official record maintained by a clerk of court,” (2) the copy “bears the signature of the clerk or

any deputy clerk,” and (3) the copy “has the name of the court where such record is preserved on

the document or on the certification.” Code § 8.01-389(B). Most importantly, “[t]he

certification of any record pursuant to this section shall automatically authenticate such record

for the purpose of its admission into evidence in any trial, hearing, or proceeding.” Code

§ 8.01-389(F).

       Here, the court orders meet the requirements of Code § 8.01-389 and were properly

admitted at Raspberry’s bench trial. The court orders bear prima facie proof that the Hampton

Circuit Court Clerk certified the records to be true copies. Namely, the orders were all certified

by the Hampton Circuit Court Clerk with an embossed seal that contained (1) use of the term

“true copy,” (2) the signature of a deputy clerk, and (3) the name of the court where the records

were preserved, “Hampton Circuit Court.” As such, the court orders were certified pursuant to

Code § 8.01-389, making them automatically authenticated for the purpose of admitting the

records into evidence at trial. Thus, the circuit court did not abuse its discretion in admitting the

orders into evidence at Raspberry’s bench trial.

       Raspberry relies on Waller v. Commonwealth, 278 Va. 731 (2009), in support of his

argument. In Waller, the Supreme Court held “[u]nder Code § 8.01-389(A), the records of all

judicial proceedings except orders of circuit courts shall be received as prima facie evidence

while circuit court orders shall be received only when authenticated pursuant to Code

§ 17.1-123(A).” Id. at 737 (emphasis in original). However, Code § 17.1-123(A) deals with the

maintenance of the circuit court’s order book and in any event, since Waller, the General

Assembly has revised both Code § 8.01-389(A) and Code § 17.1-123(A).




                                                -6-
        In 2013, the General Assembly revised Code § 8.01-389(A), removing the requirements

that records must be “authenticated” under Code § 17.1-123(A). Now, Code § 8.01-389(A) only

requires that the records be certified as a true record by the clerk of court for the circuit court

where the record is preserved. Code § 8.01-389(A).

        Additionally, the General Assembly revised Code § 17.1-123(A) in 2014, also removing

language that required authentication of an order. At the time of the Waller decision, Code

§ 17.1-123(A) provided, in part:

               All orders that make up each day’s proceedings of every circuit
               court shall be recorded by the clerk in a book known as the order
               book. Orders that make up each day’s proceedings that have been
               recorded in the order book shall be deemed authenticated when
               (i) the judge’s signature is shown in the order, (ii) the judge’s
               signature is shown in the order book, or (iii) an order is recorded in
               the order book on the last day of each term showing the signature
               of each judge presiding during the term.

Waller, 278 Va. at 735. Code § 17.1-123(A) now provides:

               Orders that make up each day’s proceedings that have been
               recorded in the order book shall be deemed the official record
               pursuant to § 8.01-389 when (i) the judge’s signature is shown in
               the order, (ii) the judge’s signature is shown in the order book, or
               (iii) an order is recorded in the order book on the last day of each
               term showing the signature of each judge presiding during the
               term.

(Emphasis added). However, Code § 17.1-123(A) and the presence or absence of a judge’s

signature on the order deals only with the authenticity of the order. Since Raspberry has only

assigned error to the admissibility of these orders, the authenticity of the records is not properly

before us.2 Therefore, the orders were properly admitted under Code § 8.01-389(A) and Waller

does not apply.


        2
         To the extent that Raspberry’s assignment of error can be read to also subsume an attack
on the authenticity of the judges’ signatures, any such analysis would be controlled by the
application of Code § 59.1-480(8) defining an electronic signature as “an electronic sound,
symbol, or process attached to or logically associated with a record and executed or adopted by a
                                                -7-
                                    B. Sufficiency of the Evidence

        In his second assignment of error, Raspberry “challenges the sufficiency of the evidence

regarding his knowing possession of a firearm.” According to Raspberry, the evidence adduced

at trial was insufficient to prove that he constructively possessed the two firearms discovered by

Detective Figueroa. Therefore, Raspberry seems to argue that the circuit court erroneously

convicted him of all offenses related to the firearms—possession of a concealed weapon,

possession of a firearm by a convicted felon, and possession of a firearm while in possession of a

controlled substance with the intent to distribute—even though he fails to do so with specificity.

        “In reviewing a challenge to the sufficiency of the evidence to support a conviction, ‘the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Melick v. Commonwealth, 69 Va. App. 122, 144 (2018) (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “This familiar standard gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017) (quoting Kelly, 41 Va. App. at

257-58). In conducting our analysis, we are mindful that “determining the credibility of the

witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of

fact, who has the ability to hear and see them as they testify.” Miller v. Commonwealth, 64

Va. App. 527, 536 (2015) (citing Commonwealth v. Taylor, 256 Va. 514, 518 (1998)). Thus, we

will affirm the judgment of the trial court unless that judgment is “plainly wrong or without

evidence to support it.” Kelly, 41 Va. App. at 257 (citations omitted).



person with the intent to sign the record” and Code § 59.1-485(a), which provides that “[a]
record or signature may not be denied legal effect or enforceability solely because it is in
electronic form.”
                                                -8-
       Here, the evidence was sufficient for the circuit court to find that Raspberry

constructively possessed the two firearms discovered by Detective Figueroa. Code § 18.2-308.2

prohibits convicted felons, like Raspberry, from possessing firearms. Code § 18.2-308.4

prohibits the possession of a firearm while in possession of a controlled substance with the intent

to distribute. Finally, Code § 18.2-308 prohibits carrying a concealed weapon. “Where the

General Assembly uses the word ‘possess,’ Virginia courts have typically held that proof of

actual or constructive possession are both permissible.” Hunter v. Commonwealth, 56 Va. App.

50, 58 (2010) (citations omitted).

       Our Supreme Court has explained that to establish constructive possession of a firearm

by a defendant, “the Commonwealth must present evidence of acts, statements, or conduct by the

defendant or other facts and circumstances proving that the defendant was aware of the presence

and character of the firearm and that the firearm was subject to his dominion and control.”

Smallwood v. Commonwealth, 278 Va. 625, 630 (2009) (quoting Bolden v. Commonwealth, 275

Va. 144, 148 (2008)). Thus, the issue of whether Raspberry constructively possessed the two

firearms is “largely a factual one.” Id. at 631 (quoting Ritter v. Commonwealth, 210 Va. 732,

743 (1970)).

       With these principles applied to the present case, it is clear that sufficient evidence

existed to support Raspberry’s convictions. The evidence reflects that the two guns discovered

by Detective Figueroa were in a bag on the front passenger seat of the vehicle that Raspberry

was driving and within Raspberry’s dominion and control. Although “the Commonwealth does

not meet its burden of proof simply by showing the defendant’s proximity to the firearm, it is a

circumstance probative of possession and may be considered as a factor in determining whether

the defendant possessed the firearm.” Id. at 630-31 (quoting Bolden, 275 Va. at 148).




                                                -9-
       Additionally, while Raspberry did not own the vehicle, Raspberry’s girlfriend,

Henderson, testified that she owned the vehicle and that Raspberry frequently drove it.

Henderson also testified that the bag discovered by Detective Figueroa did not belong to her and

that she did not know who it belonged to. Detective Figueroa also testified that, in addition to

the firearms, the bottom of the bag contained two Gatorade bottles with condensation on the

outside of the bottles. The circuit court, acting as the fact finder, could infer from this testimony

that the Gatorade bottles had been recently placed at the bottom of the bag. Finally, Detective

Figueroa testified to a nexus between firearms and narcotics distribution. See Thomas v.

Commonwealth, 44 Va. App. 741, 755 (“While not alone dispositive, evidence linking a

defendant to drug distribution may be considered as one factor in determining whether he may

have had a motive to possess a firearm.”), adopted upon reh’g en banc, 45 Va. App. 811 (2005).

Given this evidence, this Court cannot say that the circuit court erred in convicting Raspberry of

the offenses related to his constructive possession of multiple firearms.

       For the reasons stated, we hold that the circuit court did not err in admitting the court

orders as proof of Raspberry’s prior felony convictions and that sufficient evidence existed to

support Raspberry’s convictions. Accordingly, we affirm the circuit court’s judgment.

                                                                                           Affirmed.




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