Lorenzo Moore v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
LORENZO MOORE
MEMORANDUM OPINION * BY
v. Record No. 2037-99-1 JUDGE WILLIAM H. HODGES
OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Alice K. Twiford for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Lorenzo Moore, appellant, appeals his convictions for
possession of cocaine, in violation of Code § 18.2-250, and
possession of a firearm while in possession of cocaine, in
violation of Code § 18.2-308.4. Appellant challenges the
sufficiency of the evidence for both offenses. We conclude the
evidence was insufficient to prove appellant possessed the
cocaine and, accordingly, we reverse the convictions.
FACTS
On December 18, 1998, at 12:40 a.m., State Trooper M.T.
Fisher stopped a rental vehicle for defective equipment. As
Fisher approached the car, he observed the passenger making
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
quick, furtive movements. The driver, appellant, made no
movements. When Fisher shined his flashlight into the car, he
immediately saw a 9mm firearm on the console between appellant
and the passenger. Fisher asked appellant and the passenger to
exit the vehicle. When appellant complied, Fisher observed a
torn plastic baggie corner with a small piece of suspected crack
cocaine on the driver's seat between where appellant's right leg
would have been and the console. Fisher described the size and
appearance of the cocaine as being like that of half a dime.
The baggie and cocaine together were the size of a dime. Fisher
testified he immediately recognized the substance to be cocaine,
based on his training and experience. He conceded, however,
that someone who had no experience with cocaine and its
packaging might have mistaken the object for trash. Laboratory
analysis proved the substance was cocaine.
Fisher also found a smoking device under the driver's seat,
marijuana under the armrest of the console between the front
seats, and a loaded magazine for the weapon under the
passenger's seat. The passenger produced documentation
indicating the gun belonged to him and he claimed possession of
the marijuana. Appellant made no statement. The record does
not indicate whether the smoking device was for marijuana,
crack, or some other substance. Nor did the officer have the
pipe tested to determine the source of the burnt residue on the
pipe. The officer stated that both occupants had been drinking,
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but did not testify that either appeared to be under the
influence of any other substances. The rental car was
registered to a company, not to appellant or the passenger.
ANALYSIS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
In reviewing that evidence, however, "we
cannot . . . disregard credible, unimpeached
evidence of the Commonwealth which
exculpates the defendant and creates a
reasonable doubt." A conviction based on
circumstantial evidence may be sustained
only if the evidence, when taken as a whole,
excludes every reasonable hypothesis of
innocence. Thus, the evidence must be
wholly consistent with guilt and wholly
inconsistent with innocence.
Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663,
664-65 (1994) (citations omitted).
"To sustain a conviction for possession of a controlled
substance in violation of Code § 18.2-250, the evidence must
prove beyond a reasonable doubt that the accused was aware of
the presence and character of the controlled substance." Jones
v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864
(1994) (citation omitted).
"To support a conviction based on
constructive possession, 'the Commonwealth
must point to evidence of acts, statements,
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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 substance and that it was
subject to his dominion and control.'"
White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879
(1997) (citations omitted). "Evidence merely that the accused
was in the proximity of controlled substances is insufficient,
however, to prove that the accused was aware of the presence and
character of a controlled substance." Jones, 17 Va. App. at
574, 439 S.E.2d at 864.
The Commonwealth contends the smoking device found under
appellant's seat connects appellant with the cocaine. We
disagree. The device was not in plain view, and no evidence
proved appellant knew it was under the seat or that he had used
it. Appellant made no furtive movements to suggest he put the
device under the seat. Further, the evidence does not prove
that the device was used to smoke cocaine. Therefore, the
smoking device does not tie appellant to the cocaine in any way.
The Commonwealth also argues that the trial court could
infer appellant's knowledge of the cocaine's presence and
character because he was sitting on the cocaine. However,
regardless of whether appellant was seated on or next to the
cocaine, it was small enough to go unnoticed. Even if he knew
of its presence, no evidence showed he was aware of its
character or that he exercised any dominion and control over it.
Fisher candidly testified that someone without experience in
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handling cocaine could have mistaken the package for trash. No
evidence proved appellant had any experience with cocaine.
The passenger made the furtive movements and claimed
ownership of the gun and the marijuana. Appellant made no
statements, nor exhibited any conduct, and no circumstances
existed from which one could infer that he was aware of the
presence or character of the cocaine. Therefore, having failed
to exclude reasonable hypotheses of innocence, the evidence does
not prove beyond a reasonable doubt that appellant possessed the
cocaine. Finding the evidence insufficient, we reverse the
possession of cocaine conviction. Without the predicate offense
of possession of cocaine, we also reverse the conviction for
possession of a firearm while in possession of cocaine.
Reversed and dismissed.
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