Corey Anton Johnson v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
COREY ANTON JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 1487-99-3 JUDGE ROSEMARIE ANNUNZIATA
JULY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on
brief), for appellant.
Thomas M. McKenna, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Corey Anton Johnson was indicted for possession of cocaine
with the intent to distribute in violation of Code § 18.2-248.
In a bench trial, the court found him guilty as charged and
sentenced him to 10 years in prison and imposed a $2,500 fine.
Five years of the sentence and the entire fine were suspended.
Johnson appeals his conviction, contending the evidence was not
sufficient to convict him. For the reasons that follow, we
affirm the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
FACTS
On appeal, the evidence is reviewed in the light most
favorable to the Commonwealth, together with all reasonable
inferences which may fairly be drawn from it. See Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).
Johnson occupied a house that was the subject of a search by the
Lynchburg Police Department on September 29, 1998. When
Investigator J.L. Hise and a group of his fellow officers
arrived, they found Johnson in a room he rented for $200 a month
on the upper floor of the house; he was clad only in a pair of
shorts, and three other men were present with him. The four men
were individually searched and brought downstairs. According to
Hise, Johnson appeared "extremely anxious" to retrieve a pair of
shoes from his room, asking ten or twelve times to be allowed to
retrieve the shoes. The officers searched the upstairs room and
found several pairs of shoes there, among which was a pair of
Nike tennis shoes in which the officers found a plastic bag
containing off-white chunky substances weighing over six grams,
later determined to be cocaine. The street value of cocaine was
between $100 and $125 per gram. Hise presented the shoes to
Johnson, who acknowledged they were his.
Johnson denied knowing about the cocaine found in the
shoes, and denied being a cocaine user. He stated that he was
unemployed and that the $150 found in his pocket pursuant to a
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consensual search was money he had saved. When asked about the
$75 found scattered on the floor of the room, he stated it was
from the gambling the men were engaged in before the police
arrived. The police also found a working pager on Johnson's
person. The three men found in Johnson's room denied putting
the cocaine in Johnson's shoe.
CONSTRUCTIVE POSSESSION
Possession may be actual or constructive.
Constructive possession may be established
by 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
the character of the substance and that it
was subject to his dominion and control.
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citations omitted). Constructive
possession may be established by circumstantial evidence
provided such evidence excludes every reasonable hypothesis of
innocence that flows from the evidence. See Tucker v.
Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994);
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993). 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).
Ownership or occupancy of . . . premises
where illicit drugs are found is a
circumstance that may be considered together
with other evidence tending to prove that
the owner or occupant exercised dominion and
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control over the items . . . on the premises
in order to prove that the owner or occupant
constructively possessed the contraband
. . . . Furthermore, proof that a person is
in close proximity to contraband is a
relevant fact that, depending on the
circumstances, may tend to show that, as an
owner or occupant of property . . . the
person necessarily knows of the presence,
nature, and character of a substance that is
found there.
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83 (1992) (citations omitted).
Johnson was found in a room that he rented, in which
illegal drugs were found in a pair of his shoes. Johnson
acknowledged the shoes as his and was anxious to retrieve a pair
of shoes before leaving the room. The other individuals found
in the room when the police arrived denied putting the cocaine
in the shoes, and the trial court accepted their testimony as
credible. "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995). Furthermore, the trier of fact need not
accept an accused's statements and may credit them in whole or
in part, or not at all. See Rollston v. Commonwealth, 11
Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). An accused's
claims of innocence may be considered mere fabrications to
conceal guilt. See id. at 548, 399 S.E.2d at 830. Thus, the
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trial court could conclude beyond a reasonable doubt, based on
this circumstantial evidence, that Johnson was aware of the
presence and nature of the drugs and that he possessed them.
INTENT TO DISTRIBUTE
Proof of the intent to distribute drugs may also be
established by circumstantial evidence, including the quantity
of drugs and cash possessed and whether the accused is a drug
user. Large sums of money, particularly in small denominations,
and the absence of drug paraphernalia supporting personal drug
use, have been commonly accepted as factors indicating intent to
distribute. See Welshman v. Commonwealth, 28 Va. App. 20, 37,
502 S.E.2d 122, 130 (1998) (en banc). Pagers have also been
considered a factor in establishing an accused's involvement in
the drug trade. See White v. Commonwealth, 25 Va. App. 662,
668, 492 S.E.2d 451, 454 (1997) (en banc).
Johnson claimed he was not a drug user, yet was found in
possession of over six grams of cocaine. He had a pager and
$150, although he was unemployed. We find the evidence was
sufficient to prove beyond a reasonable doubt that Johnson was
guilty of possessing cocaine with the intent to distribute, and
affirm his conviction.
Affirmed.
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Fitzpatrick, C.J., concurring, in part, and dissenting, in part.
I concur with the majority that the evidence presented
supports a finding of guilt for possession of cocaine. However,
I do not find the evidence sufficient to prove the intent to
distribute cocaine.
The only evidence of intent to distribute was the
possession of a pager, approximately $150 in cash found on the
appellant, not a "large amount of cash," and appellant's
testimony that he did not use drugs. While it is true that
intent to distribute may be shown by circumstantial evidence, it
is unreasonable to use as the sole basis ordinary items used by
people who do not distribute drugs.
This Court has addressed this specific issue in Burchette
v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).
Initially, we address the issue whether
the nature of the items in the vehicle, the
handgun and cellular telephone, and the fact
that these items frequently are used by drug
dealers proves that the marijuana belonged
to Burchette. The argument advanced in
support of this hypothesis is that because
an officer who stops a suspected drug dealer
can conduct a limited "pat-down" search for
weapons and because police officers know
that drug dealers frequently carry handguns,
. . . the fact that a person owns a handgun
found in his vehicle is evidence that drugs
found in his vehicle belong to him also. It
does not follow, however, that because
police officers know that drug dealers
frequently own guns, cellular telephones, or
beepers, Burchette, who owned a handgun and
cellular telephone, was a drug dealer. . . .
In essence, the Commonwealth asks us to hold
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that since most drug dealers carry handguns
[or pagers], most people who carry handguns
[or pagers] are drug dealers. We reject the
hypothesis.
Id. at 437, 425 S.E.2d at 84-85 (citations omitted) (emphasis
added). Accordingly, I dissent in part.
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