Horace Andrew Jones, Jr. v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
HORACE ANDREW JONES, JR.
MEMORANDUM OPINION * BY
v. Record No. 1398-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
John D. Konstantinou (McKenna & Konstantinou,
on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Horace Andrew Jones, Jr. (appellant) was convicted in a
bench trial of possessing cocaine in violation of Code
§ 18.2-250. He contends the evidence was insufficient to support
the conviction. We disagree and affirm.
I.
At 9:10 p.m. on August 30, 1996, Ranger Holliday of the
Newport News Parks Department approached a vehicle backed in at a
watershed property gate off Richneck Road. Jones, seated in the
driver's seat, was the sole occupant of the vehicle. According
to Holliday, as he approached, appellant "initially tried to get
out of the vehicle and come around to me." When Holliday asked
appellant what he was doing there, he replied that he just pulled
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in to sit for a bit. When asked for his driver's license, Jones
produced an identification card issued by the Department of Motor
Vehicles. Holliday arrested Jones because he was wanted on an
outstanding warrant.
After the arrest, Holliday found a registration card in the
glove box indicating that the vehicle was not owned by Jones.
However Jones stated several times that he had just purchased the
car from the registered owner a week earlier, and the paperwork
was not yet complete. On the floorboard of the driver's side, in
the area where the driver's foot would be, Holliday found a
hollow antenna section and a cigarette lighter. The antenna
section was readily visible from outside the vehicle on the
passenger side and appeared to have a "black-gray type of
residue" covering it. Antenna sections are used as "stems" to
smoke crack cocaine, and the residue proved to be cocaine.
At trial, appellant testified that the car belonged to a
friend and that he had been driving it for 30 to 45 minutes
because he had gotten lost in the area. Appellant denied telling
Holliday that he had recently purchased the car and that he had
been driving it for a week. Appellant offered no explanation for
his suspicious behavior in exiting the car before the ranger
approached or for his failure to tell Holliday that he was lost
when he pulled in to sit for a bit.
In finding that appellant constructively possessed the
antenna section containing the cocaine, the trial court rejected
2
Jones' argument that he was unaware of the presence of the
antenna section. The court stated:
[T]his matter . . . boils down to a matter of
credibility between the witnesses and who the
Court finds . . . more credible. The
Defendant has contradicted almost everything
that the park ranger has said except that he
was there. I find that the ranger['s] . . .
testimony is, in fact, believable. The Court
believes that [the Defendant] said all of
those things to the officer.
II.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). In
so doing, we must discard the evidence of the accused in conflict
with that of the Commonwealth and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences.
See Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164,
165 (1988). The credibility of witnesses, the weight accorded to
testimony, and the inferences to be drawn from proven facts are
matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The trial court's judgment will not be set aside unless the
judgment is plainly wrong or without evidence to support it. See
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc).
[P]ossession of a controlled substance may be
3
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
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)). See Walton v. Commonwealth, No. 971369,
___ Va. ___, ___ S.E.2d ___ (Feb. 27, 1998).
Although mere proximity to drugs is insufficient to
establish possession, it is a circumstance which may be probative
in determining whether an accused possessed such drugs. See Lane
v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982);
Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882
(1992) (en banc). Ownership or occupancy of the vehicle in which
drugs are found is likewise a circumstance probative of
possession. See Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986) (citing Code § 18.2-250). Thus, in
resolving this issue, we must consider "the totality of the
circumstances disclosed by the evidence." Womack v.
Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).
Here, Jones was the sole occupant of the vehicle, and he was
found sitting in the driver's seat. When the officer approached,
appellant immediately exited the car, and the trial court could
reasonably infer that he was attempting to distract Holliday from
4
looking inside where the drugs were located. The antenna
section, with visible residue, together with the cigarette
lighter, were found in plain view on the driver's floorboard,
near where Jones' left foot rested. Finally, Jones' inconsistent
statements about his ownership of the vehicle, the time he had
control of the car and its contents, and his reason for being
stopped at the watershed entrance were acts upon which the trial
court could reject his denial of knowledge or ownership of the
antenna. While appellant made no specific statement regarding
the use of the device, when viewed as a whole, his acts and
conduct support the trial court's finding that he was aware of
the presence and character of the cocaine and that he was guilty
of possessing it.
Affirmed.
5