Damien Montez Mosley, s/k/a Damien M. Moseley v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
DAMIEN MONTEZ MOSLEY, S/K/A
DAMIEN MONTEZ MOSELEY
MEMORANDUM OPINION * BY
v. Record No. 2477-98-3 JUDGE RICHARD S. BRAY
DECEMBER 7, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Margaret A. Nelson, Senior Assistant Public
Defender, for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Damien Montez Mosley (defendant) was convicted in a bench
trial for possession of cocaine with intent to distribute,
possession of a firearm while in possession of cocaine, and
possession of a firearm by a convicted felon, violations of Code
§§ 18.2-248, -308.4, and -308.2, respectively. On appeal, he
challenges the sufficiency of the evidence to support the
convictions. Finding no error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
In accordance with well established
principles, we assess the sufficiency of the
evidence to support a criminal conviction
upon a review of the record "in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The judgment of a
trial court sitting without a jury is
entitled to the same weight as a jury
verdict and will not be set aside unless it
appears from the evidence that the judgment
is plainly wrong or without evidence to
support it." "The weight which should be
given to evidence and whether the testimony
of a witness is credible are questions which
the fact finder must decide."
Greene v. Commonwealth, 17 Va. App. 606, 607-08, 440 S.E.2d 138,
139 (1994).
Viewed accordingly, the record discloses that, during the
evening hours of February 17, 1998, Lynchburg Police Investigators
Wayne Duff and K.D. Holyfield were patrolling the vicinity of the
Greenfield Apartments, "targeting" the recurring sale of illicit
drugs in the area. Duff observed a man, suspected to be
defendant, "run . . . inside of [an apartment] building from the
breezeway." Aware of an outstanding arrest warrant and Juvenile
Detention Order for defendant, Duff and Holyfield initiated an
investigation. Acting on "prior information" given to Holyfield,
the two proceeded to Apartment 108, 1 knocked at the door, and the
tenant, Tanya Harper, admitted them to conduct a search for
defendant.
1
Duff was aware that defendant "stayed" somewhere in the
building which housed Apartment 108, although he "lived" nearby
with his grandmother.
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Upon entry, the investigators observed "several . . . people"
in the "living room" and two men "walking up the hallway from the
bedroom-bathroom areas to the living room area." After searching
several rooms for defendant, without success, Duff noticed an
individual "lying in the bed" of a darkened rear bedroom, "facing
away from the doorway." After identifying himself, Duff demanded,
"let me see [your] hands and . . . face . . . me," and immediately
recognized and arrested defendant. Defendant was discovered by
Duff approximately six minutes after he had been observed in the
breezeway.
A search of the bedroom area by Duff revealed a .380 caliber
semi-automatic pistol, "loaded with a round in the chamber,"
hidden "[u]nderneath the box spring [of the bed] which was
elevated off the floor a few inches." "Just to the left" of the
firearm were "five bags of off-white chunks," later determined to
be cocaine. Both the weapon and the cocaine were "located
directly under . . . defendant's feet . . . while . . . lying in
the bed." A search of defendant's person revealed a pager and
$1,695 cash. Duff testified that the amount and the denominations
of the cash, together with the pager, were "typical" to "illegal
street-level distribution of cocaine."
After Duff advised defendant of his Miranda rights, defendant
stated that he "just went up there . . . 15 or 20 minutes" before
the police. He initially denied knowledge of the firearm, but,
when asked if his fingerprints would be found on the gun, recalled
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that someone had previously "passed" him the weapon in the living
room. Defendant explained to Duff that "people said that the
security guards had come up . . . and that's when he went into the
house. And then he . . . touched the gun and they was, like, get
everything out of the house because security must have called."
He denied knowledge of the subject cocaine but had "seen plenty of
cocaine" in "the building" earlier that evening, some of which
"could have been this five" bags. Defendant admitted selling
cocaine on prior occasions but denied personal use of the drug.
In challenging the sufficiency of the evidence to support his
convictions, defendant addressed only the possession element of
the several offenses.
To support a conviction based on
constructive possession, as in this case,
"the Commonwealth must point to evidence of
acts, statements, or conduct of the accused
or other facts or circumstances which tend
to show that the defendant was aware of both
the presence and character of the
[contraband] and that it was subject to his
dominion and control."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). "Possession . . . need not always be
exclusive. The defendant may share it with one or more persons"
and "[t]he duration of possession is immaterial." Gillis v.
Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974). "[A]
person may constructively possess [contraband] owned by another."
Harrison v. Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854,
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857 (1991). The "principles applicable to constructive possession
of drugs also apply to constructive possession of a firearm."
Archer v. Commonwealth, 26 Va. App. 1, 12, 49 S.E.2d 826, 831
(1997).
"[O]wnership or occupancy of the premises where the drug [or
weapon] is found does not create a presumption of possession," but
"may be considered in deciding whether an accused possessed the
[item]." Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d
869, 871 (1998) (citations omitted). Similarly, it is "today
universally recognized" that flight and deceit by an accused may
evince a "'consciousness of guilt'" reflective "'of guilt itself'"
and, therefore, also relevant circumstances to be considered by
the fact finder. Langhorne v. Commonwealth, 13 Va. App. 97, 102,
409 S.E.2d 476, 480 (1991) (quoting United States v. Ballard, 423
F.2d 127, 133 (5th Cir. 1970)).
When "a conviction is based on circumstantial evidence, 'all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182,
184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217
Va. 360, 366, 228 S.E.2d 563, 567 (1976)). However, "'[t]he
Commonwealth is not required to prove that there is no possibility
that someone else may have planted, discarded, abandoned, or
placed the [firearm,] drugs or paraphernalia where they were found
near an accused.'" Pemberton v. Commonwealth, 17 Va. App. 651,
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655, 440 S.E.2d 420, 422 (1994) (quoting Brown v. Commonwealth, 15
Va. App. 1, 10, 421 S.E.2d 877, 883 (1992)). Whether a hypothesis
of innocence is reasonable is a question of fact, see Cantrell v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and
a finding by the trial court is binding on appeal unless plainly
wrong. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
Here, defendant fled into the building immediately after
police observed him outside the premises. Within six minutes, he
was located alone in the darkened bedroom of an apartment, in bed
and feigning sleep. At defendant's feet, beneath the box spring,
police found the gun and drugs hidden together. A search of
defendant's person revealed items related to the narcotics trade,
and he later admitted to prior sales of cocaine. 2 He acknowledged
an awareness that "plenty" of cocaine was present "in [the]
building," including, perhaps, the five bags in issue. After
first denying contact with the firearm, defendant admitted
handling the weapon moments before arrest.
Such evidence supports the finding that defendant exercised
dominion and control of the drugs and firearm, with knowledge of
the nature and character of each, both before and after hiding
2
We recognize that evidence of intent to distribute cocaine
cannot "'bootstrap' proof . . . that [an accused] actually or
constructively possessed" it. Scruggs v. Commonwealth, 19 Va.
App. 58, 62, 448 S.E.2d 663, 665 (1994). Here, however, such
evidence established defendant's familiarity with the drug and
related trade.
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himself and the contraband in an attempt to elude and deceive
police, circumstances clearly sufficient to support the
convictions.
Accordingly, we affirm the trial court.
Affirmed.
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Benton, J., dissenting.
To convict an accused of possession of a prohibited item,
"[t]he Commonwealth must establish that the [accused]
intentionally and consciously possessed it with knowledge of its
nature and character . . . [and] the evidence . . . [must]
exclude all reasonable conclusions inconsistent with that of the
[accused's] guilt." Burton v. Commonwealth, 215 Va. 711, 713,
213 S.E.2d 757, 758-59 (1975). "To support a conviction based
upon constructive possession 'the Commonwealth must point to
evidence of acts, statements, or conduct of the accused or other
facts or circumstances which tend to show that the [accused] was
aware of both the presence and character of the [item] and that
it was subject to his dominion and control.'" Hancock v.
Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 140 (1995)
(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984)). The existence of evidence necessary to prove
elements of the offense "cannot be based upon surmise or
speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 213
S.E.2d 752, 753 (1975). "To satisfy the due process
requirements of the . . . Constitution, the prosecution must
bear the burden of proving all elements of the offense beyond a
reasonable doubt." Stokes v. Warden, 226 Va. 111, 117, 306
S.E.2d 882, 885 (1983).
Mosley's conviction for constructive possession was based
on circumstantial evidence.
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[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence. In LaPrade v. Commonwealth, 191
Va. 410, 418, 61 S.E.2d 313, 316 (1950),
[the Supreme Court] summarized those
principles as follows:
". . . [I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence. They must
overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. To
accomplish that, the chain of necessary
circumstances must be unbroken and the
evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
rational hypothesis and to a moral
certainty. . . ."
But, circumstances of suspicion, no
matter how grave or strong, are not proof of
guilt sufficient to support a verdict of
guilty. The actual commission of the crime
by the accused must be shown by evidence
beyond a reasonable doubt to sustain his
conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977).
The evidence proved that the police officers saw Mosley
outside an apartment building and sought to capture him because
of an outstanding warrant for his arrest. The officers pursued
Mosley to an apartment where his friend Tonya Harper resided.
At least five other persons were in the apartment before Mosley
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entered the apartment. The evidence proved that Mosley did not
reside at this apartment.
After the officers entered the apartment and began to
search for Mosley, they encountered two men "walking up the
hallway from the bedroom-bathroom areas to the living room
area." The officers went past the men and searched the
bedrooms. Shining a flashlight into the darkened bedrooms, the
officers found Mosley lying on a bed in one of the rooms. The
officers put handcuffs on Mosley and removed him from the bed.
Searching the room, the officers "lift[ed] the box spring and
mattress off of the ground" and found cocaine and a gun beneath
the bed. From the time the officers saw Mosley enter the
apartment until they arrested him, no one saw Mosley in
possession of either the cocaine or the gun.
The evidence also proved that Harper's apartment had been
searched five weeks earlier incident to a search warrant.
Harper was the lessee of the apartment when the police conducted
that earlier search. During that search, the police found drugs
and paraphernalia consistent with drug use and the drug trade.
When searching the same bedroom, the police found and seized a
large sum of money, cocaine, marijuana, and marijuana smoking
devices. Mosley was not in the apartment during that search.
"Suspicious circumstances, including proximity to a
controlled drug, are insufficient to support a conviction."
Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430,
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432 (1986). In Hairston v. Commonwealth, 5 Va. App. 183, 360
S.E.2d 893 (1987), where the accused "held a child whose
clothing contained a package of cocaine," we reversed a
conviction for possession of cocaine because no evidence proved
the accused "placed the cocaine inside the baby's [clothing] or
. . . knew that cocaine had been placed there." Id. at 186, 360
S.E.2d at 895. We applied the well established principle that
"suspicion, no matter how strong, is insufficient to sustain a
criminal conviction." Id. at 187, 360 S.E.2d at 895 (citing
Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197
(1981)).
The evidence in this case merely proved that Mosley fled
from the police who were seeking to arrest him on an outstanding
warrant. He entered a friend's apartment and was found in a
dark room lying on a bed under which cocaine and a weapon were
later found concealed between the mattress and box springs. He
made no statement and committed no act indicating he knew these
items were under the mattress. Further, no evidence
demonstrated his knowledge of the presence of the cocaine or the
weapon under the bed. See Scruggs v. Commonwealth, 19 Va. App.
58, 61, 448 S.E.2d 663, 665 (1994).
These facts do not negate the reasonable hypothesis that
Mosley went to the bedroom solely to elude an arrest on the
outstanding warrant. Not only did the evidence fail to prove
Mosley knew the gun and cocaine were under the bed, the presence
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of the gun and cocaine is explained by other circumstances
independent of Mosley. The apartment of his friend was a place
where narcotics had previously been found by the police.
Although earlier that day Mosley had seen some of those items in
Harper's living room, no evidence proved he knew they had been
put in the bedroom. The evidence merely allows the inference
that Mosley was a guest of Harper, who lived in the apartment.
See Huvar v. Commonwealth, 212 Va. 667, 668, 187 S.E.2d 177, 178
(1972) (holding that an accused's mere presence in another
person's apartment when drugs are found is not sufficient to
sustain a conviction for possession of those drugs).
This evidence failed to prove Mosley intentionally or
consciously possessed the items that were found beneath the
mattress and box spring. Indeed, no evidence proved he knew
they were there. The totality of these facts is not
inconsistent with his innocence regarding possession of the
drugs and the gun.
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