Shiron W. Herron, Jr. (appellant) appeals his conviction for violating Code § 53.1-203(5), making it unlawful for any prisoner in a correctional facility to possess a chemical compound not lawfully received. 1 Appellant argues the evidence was insufficient to support the conviction because he did not intend to bring cocaine into a correctional facility. Appellant further argues the conviction is in violation оf his Fifth Amendment right against self-incrimination. For the reasons stated below, we affirm appellant’s conviction.
I. BACKGROUND
“When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence.”
Jones v. Commonwealth,
The evidence showed that on April 19, 2006, Detective S. Thomas (Thomas) of the Richmond Pоlice Department was investigating suspicious activity at an apartment complex. While there, Thomas observed appellant knocking on the door of an apartment. Thomas asked appellant if he lived at the apartment, and appellant replied that he did not. When the door opened, appellant quickly entered and shut the door. Approximately ten to fifteen seconds later, Thomas knockеd on the door and the apartment leaseholder allowed Thomas to enter. Once inside, Thomas observed appellant poking his head out of the kitchen. At some point after Thomas entered the apartment, he determined that appellant had an outstanding warrant for assault and battery, and he arrested appellant.
Thomas then took appellant to jail. Before going inside, Thomas again asked appellant if he had any contraband on his person. Thomas specifically informed appellant there were additional charges for taking any illegal substance inside the jail. Appellant again responded that he did not have any drugs.
Upon arriving at the jail Thomas informed officers there that appellant was uncooperative in his search and would need to be searched further. During processing, a deputy attempted a pat-down search but again, when he came near appellant’s buttocks area, appellant jumped back and spun around. An officer asked appellant if he had anything on his person that he wanted to turn over, and appellant again said that he did not. Officers placed appellant in a holding cell and performed a strip search. Once appellant removed his pants, one оf the officers noticed a plastic baggy between appellant’s buttocks. The officer asked appellant to remove the bag. Appellant pulled the bag from his buttocks, ripped it open, and began shoving small packets of an off-white substance into his mouth. Officers restrained appellant and retrieved some of the substance, which was later determined to be cocaine.
At trial, appellant moved tо strike the evidence recovered during the search conducted at the jail, arguing that he did not intend to bring cocaine into the jail and that forcing him to confess to possession of the drugs violated his Fifth Amendment right against self-incrimination. The trial court denied appellant’s motion to strike the evidence and found appellant guilty of possession of an illegal substance in a correctional facility. This appeal followed.
II. ANALYSIS
Appellant was convicted of violating Code § 53.1-203(5), which provides:
It shall be unlawful for a prisoner in a state, local or community correctional facility or in the custody of an employee thereof to ... [pjrocure, sell, secrete or have in his possession any chemical compound which he has not lawfully received____
Appellant argues that the trial court erred in convicting him of possession of cocaine in violation of the statute because he did not have the requisite intent to bring cocaine into the jail. Appellant contends that the Commonwealth did not prove beyond a reasonable doubt that he possessed the specific intent to take the drugs into a correctional facility, because he did not enter the jail voluntarily. Further, appellant argues that forcing him to admit to possession of the drugs is a violation of his right against self-incrimination, as conferred by the Fifth Amendment to the United States Constitution. In this regard, appellant argues that he was presented with a “Hobson’s choice”
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of admitting that he had contraband, thus waiving his Fifth Amendment rights with respect to a potential charge of possession of cocaine, or alternatively running the risk of
In a challenge to the sufficiency of the evidence, this Court must uphold appellant’s conviction unless it “is plainly wrong or without evidence to support it.”
Archer v. Commonwealth,
To the extent the issue presented here involves the statutory construction of Code § 53.1-203, this Court reviews the trial court’s ruling
de novo. Robinson v. Commonwealth,
A. Intent Requirement
Appellant’s first contention is that the trial court erred in denying his motion to strike the evidence because the Commonwealth failed to prove beyond a reasonable doubt that appellant intended to bring cocaine into the jail. However, nothing in Code § 53.1-203 requires thаt the Commonwealth prove appellant’s specific intent.
[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.
Esteban v. Commonwealth,
In
Esteban,
the defendant was convicted under Code § 18.2-308.1(B), which prohibits pоssession of a firearm on school property.
Id.
at 606-07,
The legislative intent behind Code § 53.1-203(5) is no less compelling. Any introduction of a controlled substance into a correctional facility thrеatens the successful rehabilitation of the prisoners in that facility, compromises the health of the prisoners, and threatens the safety of those who work in that facility.
See generally Winston v. Commonwealth,
Further, under well-settled rules of statutory construction, “omitted terms werе not intended to be included within the scope of the statute.”
Commonwealth v. Brown,
Appellant further contends that even if Code § 53.1-203(5) is a strict liability offense, the Commonwealth still must prove that appellant committed a voluntary aсt. “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). Appellant argues that it is undisputed that he did not enter the jail voluntarily; thus, the Commonwealth failed to prove he committed a voluntary act.
Our appellate courts have never addressed, in a published opinion, the “voluntary act” required for a conviction under Code § 53.1-203(5). However, the majority of other jurisdictions find “no more than entry into jail knowing that one is carrying contraband is required by the plain terms of the governing statutes.”
See State v. Alvarado,
Courts in the minority of jurisdictions hold that in order for the involuntary act of entering the jail with drugs to supply the basis for a conviction of bringing drugs into jail, “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.”
State v. Tippetts,
We find the analysis of the majority jurisdictions more persuasive because of the logic of their conclusions. The reasoning of the majority of jurisdictions is more persuasive, both because these opinions are generally more logically related to the language of our statute and Virginia case law
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and
B. Fifth Amendment
Appellant’s final contention is that Code § 53.1-203(5) violates his Fifth Amendment right against self-incrimination because he was faced with the choice of either admitting to the criminal act of possessing cocaine or facing a further charge of possessing contraband inside a correctional facility.
The Fifth Amendment to the United States Constitution provides, in pertinent part, that “no person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V;
Husske v. Commonwealth,
Further, “[t]he Fifth Amendment ... only prohibits the use of a witness’ statements which are the product of compulsion----”
Husske,
“[A] witness protected by the privilege may rightfully refuse to answer unless anduntil he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in whiсh he is a defendant,” and, “if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution.”
Venable v. Commonwealth,
“The criminal process includes many situations which require a defendant to make difficult judgments regarding which course to follow.... Sometimes the choices faced by a defendant may have the effect of discouraging the exercise of constitutional rights but that does not mean such choices аre prohibited.”
Canas,
In line with this reasoning, the majority of courts in other jurisdictions have rejected defendants’ Fifth Amendment claims with regards to introduction of contraband into a correctional facility. A defendant’s decision not to reveal drugs concealed on his person does not “somehow absolve him of responsibility for his actions on the theory that providing him an opportunity to choose between admitting to possession оf the [drug] and being charged with introducing that sub
stance into the jail violates the self-incrimination clause of the Fifth Amendment.”
Alvarado,
Under the circumstances of this case, we cannot say appellant was compelled to incriminate himself. Rather, appellant made a choice not to disclose the drugs concealed on his person. In making such a choice, appellant risked later discovery of the drugs and the penalties that accompany carrying drugs into the jail. However, appellant also faced the possibility that the drugs would not be discovered. Thus, appellant’s choice may have had the effect of discouraging the exercise of his constitutional right against self-incrimination, but that does not mean such choice was prohibited. Appellant was not presented with a “Hobson’s choice” but rather with a “dilemma,” or a choice between two options of nearly equal value. Since no offer of constitutional implication was presented to the appellant by the government in the exercise of appellant’s choice, and because appellant created his own dilemma, we cannot conclude that there was any constitutional violation.
III. CONCLUSION
We find that the legislative history and relevant legal analysis on the issues presented cause us to reach the inevitable conclusion that the conduct prescribed by Code § 53.1-203(5) is one of strict liability. Further, where apрellant was warned about the consequences of taking drugs into a correctional facility and chose not to disclose the presence of those drugs before entering the facility,
Affirmed.
Notes
. Appellant was also convicted of possession of cocaine with intent to distribute. This Court denied appellant’s petition for appeal of that conviction.
. According to legend, Tobias Hobson was the first Englishman to rent horses for hackney use. Hobson owned a full stable of horses, giving potential customers the appearance of a wide selection from which to сhoose. However, in order to rotate the use of his horses, Hobson offered potential customers one of two choices: take the horse nearest the stable door or take none at all. More often than not, the horse offered was surpassed in appearance and quality by others further down the line, and thus the nature of the purchaser’s circumstances has since become a metaphor for аnyone given a difficult choice between two sub-optimal alternatives. See The American Heritage Dictionary of the English Language 835 (4th ed. 2006). Interestingly, the premise of the "Hobson's choice” was later applied in the automotive transportation industry. Recall Henry Ford's famous offer—"Any customer can have a car painted any colour that he wants so long as it is black." Henry Ford & Samuel Crowther, My Life and Work 72 (1922). Thus, a true "Hobson’s choice” is no real choice at all—the only options being to either accept or refuse the offer that is given to you. Hence, by the very legend and its progeny, a "Hobson's choice” is different from a true choice between two (or more) equally agreeable or disagreeable options.
. In
Morris v. Commonwealth,
. Even under the minority view, as stated in
Tippetts,
the Court could find that it was reasonably foreseeable that when appellant concealed drugs on his person, he would be transported to jail. It may be inferred that a person intends the natural and probable consequences of his acts.
Schmitt v. Commonwealth,