Christopher Newell Lee v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
CHRISTOPHER NEWELL LEE
MEMORANDUM OPINION * BY
v. Record No. 0976-97-2 JUDGE SAM W. COLEMAN III
FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James A. Luke, Judge
Brad P. Butterworth (Butterworth & Waymack,
on brief), for appellant.
Euguene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Christopher Newell Lee was convicted in a bench trial for
possession of cocaine, a schedule II controlled substance. The
sole issue on appeal is whether the evidence is sufficient to
prove that appellant constructively possessed the cocaine.
Finding the evidence sufficient, we affirm the conviction.
In proving possession of a controlled substance, the
Commonwealth may prove either actual or constructive possession.
See White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876,
879 (1997).
"To support a conviction based on
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
subject to his dominion and control.'"
Id. (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d
844, 845 (1986) (other citations omitted)). When the
Commonwealth relies on circumstantial evidence, as it must often
do in order to prove constructive possession, the evidence must
exclude every reasonable hypothesis of innocence that flows from
the evidence. See Cantrell v. Commonwealth, 7 Va. App. 269,
289-90, 373 S.E.2d 328, 338-39 (1988).
"On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). "The judgment of a trial
court sitting without a jury is entitled to the same weight as a
jury verdict and will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence
to support it." Id.Viewed accordingly, the evidence proved that appellant
constructively possessed cocaine. Appellant was driving his
brother's pickup truck when he was stopped by City of Hopewell
Police Detective Michael Whittington. After appellant consented
to a search of the vehicle, Detective Whittington recovered a
baggie containing cocaine residue from a jacket lying directly
behind the driver's seat. When Detective Whittington stated to
appellant that he believed the residue was cocaine, appellant
replied: "It is, but it isn't mine; it's my brother's."
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The circumstantial evidence supports the trial court's
conclusion that appellant knew of the nature and presence of the
cocaine and that he subjected it to his dominion and control.
Appellant's acknowledgement that the substance in the baggie was
cocaine warranted the inference that he knew of the presence and
nature of the cocaine in the jacket. See Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc) (constructive possession may be proved by "evidence of
. . . declarations . . . of the accused for which an inference
may be fairly drawn that he knew of the existence of the
narcotics at the place they were found"). Moreover, from the
fact that appellant knew of the nature and character of the
substance and was familiar with it by claiming that it belonged
to his brother, the fact finder could infer that he was aware of
the presence of the cocaine. Furthermore, the fact finder could
reasonably conclude that appellant, who knew of the nature and
presence of the cocaine, was exerting dominion and control over
the cocaine from the fact that he was the operator of the
vehicle, which was under his immediate lawful possession and
control. See Fox v. Commonwealth, 213 Va. 97, 101, 189 S.E.2d
367, 370 (1972); Jetter v. Commonwealth, 17 Va. App. 745, 747,
440 S.E.2d 633, 634 (1994); Burchette v. Commonwealth, 15 Va.
App. 432, 435, 425 S.E.2d 81, 83 (1992). The proximity of
appellant to the cocaine found directly behind the driver's seat
is a factor that the fact finder could consider in determining
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whether he possessed the cocaine. See White, 24 Va. App. at
452-53, 482 S.E.2d at 879.
Accordingly, upon review, we cannot say that the conviction
is plainly wrong or without evidence to support it. See
Code § 8.01-680. We affirm the conviction.
Affirmed.
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Benton, J., dissenting.
"The burden was on the Commonwealth to prove beyond a
reasonable doubt that [Christopher Lee] . . . was aware of the
presence and character of the [cocaine] . . . and was
intentionally and consciously in physical or constructive
possession of it." Wright v. Commonwealth, 217 Va. 669, 670, 232
S.E.2d 733, 734 (1977). Because the conviction was based upon
constructive possession, the evidence must prove "acts,
statements, or conduct of [Lee] . . . or other facts or
circumstances which tend to show that [Lee] . . . was aware of
both the presence and 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). "Further, where,
as here, a conviction is based on circumstantial evidence, 'all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182,
184, 300 S.E.2d 783, 784 (1983) (citation omitted).
No acts, statements, conduct of Lee, or other circumstances
proved that Lee was aware of the presence of the cocaine. The
evidence proved that the officer stopped Lee while Lee was
driving his brother's truck. Lee consented to a search of the
truck. After three or four minutes of searching the cab of the
truck, the officer searched behind the seats and found a jacket
and other clothing. Inside the pocket of the jacket, the officer
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found "a clear, baggy type item" that the officer believed
contained cocaine residue. The officer testified that he "showed
the item to [Lee] . . . [and] advised him that I believed it was
cocaine residue." Lee told the officer, "It is, but it isn't
mine; it's my brother's."
Although the evidence proved that Lee acknowledged that the
substance in the baggie was cocaine residue, that proof does not
warrant the inference, as the majority suggests, that Lee was
aware of the cocaine's presence in the vehicle. The proof merely
allows the inferences that Lee knew the appearance of cocaine
residue, or that Lee was familiar with his brother's cocaine use,
or that Lee was willing to accept the officer's belief that the
substance was cocaine. The inferences that flow from the
evidence do not establish that Lee knew before seeing the cocaine
that cocaine was in the jacket or even that he knew the jacket
was in the vehicle. The principle is well established that
"[w]here inferences are relied upon to establish guilt, they must
point to guilt so clearly that any other conclusion would be
inconsistent therewith." Dotson v. Commonwealth, 171 Va. 514,
518, 199 S.E. 471, 473 (1938). Thus, to sustain a conviction, it
is not enough to conclude that the evidence reasonably supports
an inference of guilt, "[t]he actual commission of the crime by
the accused must be shown by evidence beyond a reasonable doubt."
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977).
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No evidence proved that Lee knew or should have necessarily
known that a plastic baggie was in a pocket of a jacket in the
cab of a truck that did not belong to him. See Jones v.
Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994). The
evidence does not exclude the reasonable hypothesis that Lee
became aware of the presence and the character of the substance
once the officer showed it to Lee and told Lee that he believed
it was cocaine residue.
It cannot even be reasonably inferred that because Lee
claimed the baggie belonged to his brother, Lee was aware of the
presence of the substance before it was shown to him. Lee did
not acknowledge that the jacket was his. The evidence proved
that the vehicle was owned by Lee's brother. Furthermore, no
evidence excluded the reasonable hypothesis that Lee said the
cocaine was his brother's because it was found in the pocket of a
jacket in his brother's truck. Certainly, the evidence does not
exclude the reasonable hypothesis that the bag found in the
jacket pocket was the property of Lee's brother, the owner of the
truck. Lee's presence in the vehicle does not prove that he
possessed the cocaine. Lee's mere proximity to a controlled
substance is not enough to establish possession, see Wright, 217
Va. 670-71, 232 S.E.2d at 734, and Lee's occupancy of the vehicle
does not give rise to a presumption that he possessed the
cocaine. See Code § 18.2-250.1(A). At most, the evidence
creates a suspicion that Lee was aware of the presence of the
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cocaine. "Suspicion, however, no matter how strong, is
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insufficient to sustain a criminal conviction." Stover v.
Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).
For these reasons, I would reverse the conviction.
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