Stanley Reynold Brathwaite v. Commonwealth ( 1995 )

A Rehearing En Banc was granted in this case on October 16, 1995.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
STANLEY REYNOLD BRATHWAITE
MEMORANDUM OPINION * BY
v. Record No. 0790-94-2 CHIEF JUDGE NORMAN K. MOON
AUGUST 15, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Felipita Athanas for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Stanley Reynold Brathwaite appeals his bench trial
convictions of possession of cocaine and possession of a firearm
while unlawfully in possession of cocaine. Brathwaite argues
that the Commonwealth's evidence was insufficient to convict him.
We disagree and affirm Brathwaite's convictions.
The Commonwealth's evidence established that a Richmond
police officer executed a search warrant on a motel room occupied
by Brathwaite, two females, and an infant child. The motel room
was not registered to Brathwaite. Upon the officer's entrance,
Brathwaite was lying on the closest of two beds to the door on
the left side of the room. The bed was half made, and Brathwaite
appeared to be lying on top of the bed covers, with his head
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
propped up on his hand and his elbow or arm touching two stacked
pillows. A search of the room uncovered .12 grams of cocaine in
one part of the room. A .357 revolver and .16 grams of cocaine
packaged in tissue paper were found under one of the pillows on
the bed where Brathwaite was lying.
At Brathwaite's trial the officer who searched the motel
room testified that the .357 revolver and .16 grams of cocaine
were found about twelve inches from Brathwaite's hand. The
officer testified that, as he entered the motel room, Brathwaite
was lying on the bed, and "[t]he pillow was lying on his arm like
sitting up on his arm. His head was off the pillow looking over
at us."
Brathwaite made no statements concerning the cocaine or
revolver. Brathwaite made no furtive motions or gestures away
from the cocaine and did not attempt to prevent the officers from
searching the room. The record does not reveal to whom the room
was registered, what time of day the search was made, how
Brathwaite was dressed, how long he had been in the room, or
whether there were clothes or other items belonging to him
located in the room.
[P]ossession of a controlled substance may be actual or
constructive. . . . "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 defendant was aware of both the presence
and character of the substance and that it was subject
to his dominion and control.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
- 2 -
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)) (emphasis added). This Court is guided
by the principles concerning constructive possession of
controlled substances when determining whether a defendant
constructively possessed a firearm. See Blake v. Commonwealth,
15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993).
While mere proximity to contraband is insufficient to
establish possession, and an accused's occupancy of the premises
does not give rise to a presumption of possession, these factors
are circumstances to be considered by the fact finder with other
evidence in determining whether a defendant constructively
possessed drugs. See Lane v. Commonwealth, 223 Va. 713, 292
S.E.2d 358 (1982); Hambury v. Commonwealth, 3 Va. App. 435, 350
S.E.2d 524 (1986); see also Fogg v. Commonwealth, 216 Va. 394,
395, 219 S.E.2d 672, 673 (1975).
We hold that the proximity of Brathwaite to the drugs and
revolver coupled with his occupancy of the room was a sufficient
basis for inferring his constructive possession of the cocaine.
The evidence tended to prove that Brathwaite's arm was within
inches of the cocaine and large firearm, a .357 pistol,
underneath the pillow where they were discovered by the officer.
The trial court, therefore, reasonably concluded that Brathwaite
was aware of the presence, nature and character of the cocaine.
Furthermore, we decline to subscribe to Brathwaite's
argument that his case should be reversed based on the case of
Fogg. To the contrary, his case is factually dissimilar and does
- 3 -
not merit reversal. In Fogg, the contraband was found away from
the defendant in a bag on a window sill. In this case, cocaine
and a very large revolver, while not in plain sight, were found
only inches from Brathwaite's arm underneath a pillow on a bed on
top of which only he was lying. Accordingly, we affirm
Brathwaite's convictions.
Affirmed.
- 4 -
Annunziata, J., dissenting.
When the evidence against an accused is wholly
circumstantial, as here, "[a]ll necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
must exclude every reasonable hypothesis of innocence." Boothe
v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987).
The Commonwealth's circumstantial evidence fails to exclude
the hypothesis that Brathwaite entered the motel room only a
short time before the officer, laid down on the bed, which
unknown to him had contraband concealed under the pillow.
Accordingly, I respectfully dissent from the majority
opinion and would reverse and dismiss the convictions.
- 5 -