Minor v. Commonwealth , 6 Va. App. 366 ( 1988 )

Benton, J.,

dissenting.

In order to convict the appellant, Sylvester P. Minor, the Commonwealth had the burden of proving beyond a reasonable doubt that he possessed cocaine with intent to distribute. Accordingly, the Commonwealth attempted to establish at trial that the appellant was aware of the presence and character of the cocaine and that the cocaine was subject to his dominion and control. See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986); Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). The Commonwealth relied upon the testimony of Detective Fleming to place appellant in the room where the cocaine was discovered. I dissent from the majority opinion’s conclusions that the evidence places appellant in the room and, thus, in a position to be aware of and able to exercise control over the openly displayed cocaine.

The Due Process clause protects an accused from a conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970); see Foster v. Commonwealth, 209 Va. 326, 330-31, 163 S.E.2d 601, 604 (1968). When the question of the sufficiency of the evidence is raised on appellate review, we must determine whether a reasonable fact finder could find from the evidence before it that guilt had been proved beyond a reasonable doubt. Reasonable doubt is one “ ‘based on reason which arises from the evidence or lack of evidence.’ ” Johnson v. Louisiana, 406 U.S. 356, 360 (1972).

It is well settled in Virginia that to justify conviction of a crime, it is not sufficient to create a suspicion or probability of guilt, but the evidence must establish the guilt of an accused beyond a reasonable doubt. It must exclude every reasonable hypothesis except that of guilt. The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.

Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970)(citations omitted).

As an appellate court, we review the evidence in the light most favorable to the Commonwealth in order to give deference to the function of the trier of fact in weighing the evidence, Allen v. Commonwealth, 211 Va. 805, 807, 180 S.E.2d 513 (1971), and we grant to that evidence “all reasonable inferences fairly deducible therefrom.” Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). However, in so doing, we do not abandon our obligation to scrutinize whether the evidence, so viewed, rationally supports the verdict of guilt beyond a reasonable doubt. “[W]here the evidence leaves it indefinite which of several hypotheses is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof [beyond a reasonable doubt], however great the probability may be.” Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924). Measured by these standards, the evidence in this case is insufficient to sustain the conviction.

The evidence, viewed in the light most favorable to the Commonwealth, establishes that Detectives Fleming, Clavert, Clark, and Robinson were at the front door of the residence armed with a search warrant. Detective Carter and two other officers watched the back door. The front entrance to the house had both a storm door and a front door interior to the storm door. As someone inside the residence opened the interior front door to leave, Detective Fleming forced open the storm door within one or two seconds.

Fleming was first to enter the residence and ran down a hallway. He testified that he chased a man, who he identified as Calvin Brake, down the hall to the “rear bedroom” of the house, passing the master bedroom. He did not notice the stairwell as he went by it. Fleming testified that he stopped for his own safety at the door to the master bedroom “[j]ust for a split second.” He testified that “Michael Minor was seated at the foot of the bed; Sylvester Minor, as best I can recall, was at the head of the bed; and Mr. Brown was in a chair stool between the two.”

He stated that he then continued his pursuit of Brake. Once Brake got inside the “den,” Brake ran to the right. Fleming then saw Anthony Reese rising out of a chair in the den. Reese turned around, his hands on the back of the chair, and returned to his seat. Fleming went over, saw a plastic pack with powder on the floor behind Reese’s chair, and secured Reese.

Clavert, who was immediately behind Fleming, did not know who came to the front door as they rushed in because “[everything happened so quickly.” He testified that the “front door was opened . . . Detective Fleming ran in [and] I was right behind him, and the party who opened the door ran back inside.” Clavert did not see who was in front of Fleming. Although he was “on [Fleming’s] tail” and close enough to touch him, he could not “tell ... if [Fleming] stopped [at the bedroom door] or not.” Clavert ran into the master bedroom where he met James Brown and Michael Minor at the door of the master bedroom, attempting to exit the room. Clavert stopped them at the door and put them aginst the wall. Clavert was able to see the entire bedroom and could not recall seeing anyone else in the room. He did not see the appellant in the room and did not initially detain him.

Detective Clark ran into the house immediately behind Clavert. He testified that he ran down the hallway behind Fleming and Clavert and, within three or four seconds of his entry into the house, “took control” of Brake, without assistance, in the hallway between the master bedroom and the den. Clark testified that “[i]t seemed . . . that [Brake] was coming from the den.” Clark saw Fleming go into the den to apprehend Reese, and he saw Clavert, who was immediately in front of him, go into the master bedroom. Clark stated that he “had a hold of . . . Brake in the hallway” and that Detective Robinson, who was behind him, passed him and went into the den.

Detective Robinson testified that he ran down the hallway behind Clark and continued into the den. He saw Fleming in the den with custody of one man. He further testified that he saw another individual, whom he described as Brake, standing alone near a sofa. He “grabbed Brake and sat him down on the sofa” after he “patted [Brake] down.”

Fleming returned to the master bedroom approximately a minute after he first passed it and after apprehending Reese. When he returned to the master bedroom the other officers and occupants of the house were there, including the appellant.

None of the officers testified that he initially apprehended or detained the appellant. None of the testimony establishes where the appellant initially was apprehended or detained. Moreover, Fleming’s testimony, which the Commonwealth relies upon to establish appellant’s guilt through presence in the master bedroom, is ambiguous and, if viewed through the gloss painted by the majority opinion, is contrary to the credible facts.

Fleming was very specific in his testimony that Michael Minor and James Brown were in the master bedroom. However, when responding concerning the appellant, he consistently qualified his testimony with “as best I can recall.” The majority opinion suggests that Fleming was only uncertain as to appellant’s precise location in the room. On the contrary, the facts undisputably suggest that his recollection was obviously incorrect regarding the appellant’s presence in the room. Only five persons were in the house at the time of the raid. Fleming apprehended Reese in the den. Clavert apprehended Michael Minor and Brown in the master bedroom and did not recall seeing appellant in the bedroom. Although Clark testified that he apprehended Brake in the hallway between the master bedroom and the den, the evidence also establishes (1) that Brake ran into the den to escape Fleming’s pursuit and (2) that Robinson apprehended Brake in the den. Not one of the detectives testified that he apprehended the appellant. The reasonable inference that flows from this evidence is that either Robinson or Clark apprehended appellant. In either of those events, the appellant was not in the room with the narcotics.

Furthermore, if the appellant was in the bedroom, it defies reason to believe that Clavert, who was “on [Fleming’s] tail” and close enough to touch him, did not see appellant. Clavert ran into the master bedroom to secure it and its occupants. It also defies logic to conclude that Clavert, concerned about his safety during a drug raid, would not be aware of the presence of a third person in the room as he apprended and detained two others.

The appellant resided with his brother, Michael Minor, in the house. The evidence established that appellant’s brother occupied the master bedroom where the officers found cocaine on the bed and that appellant occupied the upstairs bedroom in which the officers found no cocaine or other contraband. At the police station later that night appellant informed the police as follows:

Question: How long were you in the room where all the cocaine was found?

Answer: When they come in the front door, that’s when they pushed me back into the room. I was coming down the stairs going to work. And then that’s when he came in the door and pushed me back into the room.

This evidence, together with the testimony of the other Commonwealth’s witnesses, conclusively establishes that appellant could not have been in that room when Fleming first glanced in. The only evidence that contradicts this explanation for appellant’s presence near the area in which the cocaine was found is Fleming’s testimony—“as best [he] can recall.” Thus, only a scintilla of evidence conceivably supports the Commonwealth’s theory that appellant was in the room when Fleming momentarily glanced in the room. The Commonwealth’s obligation to prove appellant’s guilt beyond a reasonable doubt cannot be supported by such a slender thread.

In failing to prove beyond a reasonable doubt that appellant was in the master bedroom, the evidence does not otherwise establish that appellant was aware of the presence and character of the cocaine and that he intentionally and consciously possessed it or exercised dominion and control over it. See Drew, 230 Va. at 473, 338 S.E.2d at 845; Powers, 227 Va. at 476, 316 S.E.2d at 740. No presumption arises from the ownership or occupancy of the residence where the drugs were found. Code § 18.2-250; Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 770-71 (1974).

For these reasons, I would reverse the conviction and dismiss the indictment.