Deon Andre Richardson v. Commonwealth ( 1996 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Annunziata and Senior Judge Hodges
    Argued at Norfolk, Virginia
    DEON ANDRE RICHARDSON
    MEMORANDUM OPINION *
    v.           Record No. 0942-95-1      BY JUDGE JOSEPH E. BAKER
    APRIL 9, 1996
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
    J. Warren Stephens, Judge Designate
    James S. Ellenson for appellant.
    Linwood T. Wells, Jr., Assistant Attorney
    General (James S. Gilmore, III, Attorney
    General, on brief), for appellee.
    Deon Andre Richardson (appellant) appeals his bench trial
    conviction by the Circuit Court of the City of Newport News
    (trial court) for possession of cocaine in violation of Code
    § 18.2-250.    The sole issue presented by this appeal is whether
    the evidence is sufficient to support appellant's conviction.
    In passing upon the sufficiency of the evidence, we view the
    evidence in the light most favorable to the Commonwealth,
    granting to it all reasonable inferences fairly deducible
    therefrom.     Wright v. Commonwealth, 
    224 Va. 502
    , 505, 
    297 S.E.2d 711
    , 713 (1982).    Guided by that principle, the record discloses
    that on October 12, 1994, at approximately 11:00 p.m., appellant
    was riding as a front-seat passenger in a vehicle which was
    stopped for a minor traffic violation by Newport News Police
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    Officer Christopher Wells (Wells).       Two additional passengers
    were seated in the rear seat of the car.
    Wells obtained the driver's license and vehicle registration
    and asked the driver to exit the vehicle.      The driver complied
    and Wells radioed for assistance.    While talking to the driver
    outside of the vehicle, Wells noticed a lot of movement by
    appellant and a rear seat passenger and that appellant looked
    back at him a couple of times.
    Officer Michael Horton (Horton) and another officer arrived
    in response to Wells' request for assistance.      Horton and the
    other officer went to the vehicle and asked the passengers to
    step out.   Horton stated that appellant kept "looking down and
    around by the seat" and, because of this, he asked appellant
    "[w]hat are you looking for."    Appellant did not respond.    After
    appellant exited the car, Horton saw "off-white rocks" along the
    doorjamb where appellant had been looking.      Additionally, Horton
    saw an off-white substance "smeared in the seat which would have
    been between [appellant's] legs where he was sitting," and      "a
    couple of pebbles . . . between the seat and where [appellant's]
    legs would have been."    Later, Horton also observed "some white
    substance crushed into the jeans of [appellant's] pants" which
    appeared to be the "same color and consistency" of what he had
    located in the vehicle.
    After securing the passengers, Horton returned to the car to
    collect evidence for forensic analysis.      In doing so, he combined
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    the "off-white rocks" found along the doorjamb and the "little
    pebbles" from appellant's seat in one container.    Later he
    collected some of the white substance which was on appellant's
    pants and kept that separate from the samples taken from the car.
    Forensic analysis of the evidence revealed that at least one
    of the substances in the container holding the off-white rocks
    from the doorjamb and the little pebbles from appellant's
    passenger seat tested positive for cocaine.    No controlled
    substance was found in the off-white substance removed from
    appellant's pants.
    Possession of a controlled substance may be actual or
    constructive.   Archer v. Commonwealth, 
    225 Va. 416
    , 418, 
    303 S.E.2d 863
    , 863 (1983).   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)).
    Due to the collection techniques utilized in this case, it
    is unclear what, in fact, tested positive for cocaine; it may
    have been the off-white rocks from along the doorjamb, the little
    pebbles from appellant's seat, or both.    While at least one of
    the two substances tested positive, because the two were combined
    - 3 -
    and tested together we have no way of knowing if both were, in
    fact, cocaine.    See Reedy v. Commonwealth, 
    9 Va. App. 386
    , 387,
    
    388 S.E.2d 650
    , 650-51 (1990) (The Commonwealth must show that
    evidence was not contaminated in any way that would affect the
    results of its analysis).   We do know that the substance on
    appellant's pants did not test positive for cocaine, and that
    Horton testified that the substance on appellant's pants was
    similar in appearance to the other substances collected from the
    car.   A reasonable hypothesis flowing from the evidence is that
    the little pebbles found resting between appellant's legs and the
    substance on appellant's pants were, indeed, the same substance.
    In fact, the Commonwealth, believing that the substance on
    appellant's pants had tested positive for cocaine, urged that
    hypothesis on this Court.
    Given our inability to determine which substances tested
    positive for cocaine, we cannot say that the evidence proves
    beyond a reasonable doubt that appellant "was aware of both the
    presence and character of the substance and that it was subject
    to his dominion and control."    McGee, 4 Va. App. at 322, 357
    S.E.2d at 740.   Accordingly, the judgment of the trial court is
    reversed and the charge against appellant is dismissed.
    Reversed and dismissed.
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Document Info

Docket Number: 0942951

Filed Date: 4/9/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021