Darlene Morgan, s/k/a Darlene R. Morgan v. CW ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
DARLENE MORGAN, S/K/A
DARLENE R. MORGAN
MEMORANDUM OPINION * BY
v. Record No. 3009-99-2 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
(Phillip T. DiStanislao, Jr.; Hardy &
DiStanislao, P.C., on brief), for appellant.
Appellant submitting on brief.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Darlene Morgan, appellant, appeals her conviction, after a
bench trial, of possession of cocaine with intent to distribute. 1
Morgan argues that the trial court erred in finding the evidence
sufficient to establish constructive possession. We disagree
and affirm the conviction.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Morgan and her husband were jointly tried for this
offense. This appeal concerns only Darlene Morgan's conviction.
inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Here, the evidence proved that Investigator Fendle E. Vaughn,
of the Dinwiddie Sheriff's Office, executed a search warrant of a
home occupied by Morgan and her husband on the evening of
September 26, 1997. Vaughn and the officers accompanying him
found the home to be occupied by six adults and three children.
As the officers entered, one of the adults informed the officers
that Kevin Morgan, appellant's husband, was in a bedroom of the
home. As the officers approached the bedroom, Kevin Morgan was
leaving the room. He was wearing "lounge pants like pajama
bottoms, no shirt, [and] no shoes." Vaughn testified that the
lights in the room were on and the door was open. Morgan was
inside the room, holding a baby in her arms. She was dressed in a
"white nightgown."
After removing Morgan and her husband from the bedroom, the
officers found $4,500 in cash, a ziplock bag containing a large
quantity of cocaine, an electric scale, $110.56 in additional
currency, a pager, food stamp papers which were listed as
belonging to Morgan, a clear plastic bag containing "white powder
residue," and a "slip of paper with a number of columns added up
on it."
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The $4,500 in cash was found in a "multi-colored bag" or
"purse" in a closed drawer of a nightstand that was next to the
bed. The bag did not contain any identification. The ziplock bag
containing the cocaine was found on the floor between the bed and
the nightstand. The scale was located in a dresser in the room,
which also contained men's tennis shoes, cigars and some change. 2
The clothing near the dresser "appeared to be mens [sic]" but
could have been "unisex."
"In order to convict a defendant of 'possession' of a
narcotic drug . . . it generally is necessary to show that [the]
defendant was aware of the presence and character of the
particular substance and was intentionally and consciously in
possession of it." Ritter v. Commonwealth, 210 Va. 732, 741,
173 S.E.2d 799, 805 (1970). However, "[p]ossession [of drugs]
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.'" Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984).
The applicable law is summarized in Womack
v. Commonwealth, 220 Va. 5, 255 S.E.2d 351(1979). Constructive possession may be
2
The scale was submitted for fingerprint analysis, and a
latent fingerprint was identified as belonging to Morgan's
husband.
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shown by establishing that the [contraband]
was known to and subject to the dominion and
control of the accused. Knowledge of the
presence and character of the controlled
substance may be shown by evidence of the
acts, statements or conduct of the accused.
Mere proximity to the controlled substance,
however, is insufficient to establish
possession. Nevertheless, the possession
need not be exclusive.
Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855
(1981). "Proof of constructive possession necessarily rests on
circumstantial evidence; thus, all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence."
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
83 (1992) (citations omitted). "However, the Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993).
Morgan contends that the evidence proved nothing more than
her mere proximity to the drugs. On the contrary, the evidence
proved that Morgan was found in the bedroom in which the drugs
were found. Her husband was present in the room with her, and
they were both dressed in clothing from which it could
reasonably be inferred that they intended to sleep in the room.
In addition, Morgan's food stamp papers were found in the room,
along with a bag or purse containing $4,500. This evidence was
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sufficient to allow the trial court to reasonably infer that
Morgan possessed joint control over the bedroom and its contents
with her husband. See Gillis v. Commonwealth, 215 Va. 298, 301,
208 S.E.2d 768, 771 (1974) (occupancy of premises as a co-tenant
is a factor to be considered with other evidence in determining
whether a defendant had constructive possession of contraband).
Moreover, the drugs were found on the floor, outside the
nightstand, between the bed and the nightstand. Viewed in the
light most favorable to the Commonwealth, this evidence
indicates that the drugs were in Morgan's view while she was in
the room.
Based on the totality of the circumstances, we do not find
that the trial court was "plainly wrong" in finding the evidence
sufficient to establish that Morgan jointly and constructively
possessed the drugs, along with her husband. See Eckhart, 222
Va. at 451, 281 S.E.2d at 855 (evidence sufficient to establish
that defendant was aware of drugs found in a bedroom she shared
with her husband, when she was seated outside the room in a
location from which the drugs were visible).
Affirmed.
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