Debby Jo Wallman v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia
DEBBY JO WALLMAN
MEMORANDUM OPINION * BY
v. Record No. 0169-99-1 JUDGE RICHARD S. BRAY
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General; Donald E.
Jeffrey, III, Assistant Attorney General, on
brief), for appellee.
Debby Jo Wallman (defendant) was convicted in a bench trial
for possession of heroin in violation of Code § 18.2-250. On
appeal, she contends that the evidence was insufficient to support
the conviction. We agree and reverse the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
The credibility of the witnesses, the weight accorded testimony,
and the inferences drawn from the 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 judgment of the
trial court will not be disturbed unless plainly wrong or
unsupported by evidence. See Code § 8.01-680. "However, a [trial
court's] conclusion . . . based on evidence not in material
conflict does not have the same binding weight on appeal."
Durrette v. Durrette, 223 Va. 328, 332, 288 S.E.2d 432, 434
(1982).
I.
The instant record disclosed that Portsmouth Police Officer
A.M. Williams observed a "pickup truck" stop unlawfully "on the
side of the road" and a passenger exit the vehicle. The driver,
then alone, returned the truck to the roadway and "began taking
off." Williams "caught up," "activated [his] emergency equipment"
and effected a stop. Upon approaching the vehicle, Williams
determined that defendant was the operator and requested her
"license and registration." Unable to produce a license,
defendant, appearing "very nervous," confessed that her privileges
had been suspended. Williams then asked defendant "to step away
from" the vehicle and placed her under arrest.
After securing defendant in the police car, Williams returned
to the truck and "observed a purple Crown Royal liquor bag [on]
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the driver's floorboard," "in plain view," "easily seen," directly
below "where your knees are . . . when you're driving." Opening
the opaque bag, which was "pulled shut by [a] draw string,"
Williams discovered "numerous syringes, two metal spoons [with
suspected heroin residue], and an empty deck of what [he] believed
to be heroin." Subsequent laboratory analysis identified the
residue as heroin and cocaine. Further investigation revealed
that defendant's "live-in boyfriend" was the registered owner of
the truck.
II.
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
subject to his dominion and control."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). "[T]he possession need not always be
exclusive. The defendant may share [the drugs] with one or
more. The duration of the possession is immaterial and need not
always be actual possession." Ritter v. Commonwealth, 210 Va.
732, 741, 173 S.E.2d 799, 806 (1970). "Although mere proximity
to the drugs is insufficient to establish possession, and
occupancy of [a] vehicle does not give rise to a presumption of
possession . . . both are factors which may be considered in
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determining whether a defendant possessed drugs." Josephs v.
Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990)
(en banc).
Where "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) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).
"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).
"Whether a hypothesis of innocence is reasonable is a question
of fact, and a finding by the trial court is binding unless
plainly wrong." Glasco v. Commonwealth, 26 Va. App. 763, 774,
497 S.E.2d 150, 155 (1998) (citation omitted).
Here, defendant was the operator of a vehicle owned by
another, and no evidence established the duration of her
possession or familiarity with the vehicle. The bag containing
the drug paraphernalia and attendant residue, although in "plain
view" on the floorboard, was opaque and closed, its contents
hidden from casual observation. Apart from defendant's
"nervous[ness]," a response consistent with anxiety attributable
to her suspended license, the record reveals no furtive
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movements, statements or other circumstances suggestive of an
awareness that the bag contained contraband. Such evidence
fails to establish that defendant had the requisite knowledge of
the presence and character of the offending contents.
Accordingly, we find the evidence insufficient and reverse
the conviction.
Reversed and dismissed.
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