Sclester Uzzle, Jr. v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
SCLESTER UZZLE, JR.
MEMORANDUM OPINION * BY
v. Record No. 0192-98-1 JUDGE RICHARD S. BRAY
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Westbrook J. Parker, Judge
Michael J. Lutke, Assistant Public Defender,
for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Sclester Uzzle, Jr. (defendant) was convicted in a bench
trial for possession of cocaine with intent to distribute, a
violation of Code § 18.2-248. On appeal, defendant challenges
the sufficiency of the evidence to support the conviction.
Finding no error, we affirm 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.
In reviewing the sufficiency of the evidence, we examine
the record in “the light most favorable to the Commonwealth,
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
granting to it all reasonable inferences fairly deducible
therefrom,” Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987), discarding all conflicting evidence of
the accused. See Lea v. Commonwealth, 16 Va. App. 300, 303, 429
S.E.2d 477, 479 (1993). The credibility of witnesses, the
weight accorded 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 judgment of a trial court will be disturbed on
appeal only if plainly wrong or unsupported by the evidence.
See Code § 8.01-680.
I.
On the evening of May 31, 1997, Isle of Wight Deputy
Sheriff Timothy Worrell was engaged in undercover surveillance
of a parking area that served the Windsor Court Apartments.
Positioned in the rear of an unmarked vehicle and aided by a
telescopic device, Worrell observed the activities of defendant
and an unidentified man from 8:05 p.m. until 9:30 p.m. Worrell
testified that defendant
appeared to be working with [the other] male
. . . [who] would approach . . . vehicles,
make verbal contact, . . . and then would
make some type of hand-to-hand exchange.
After this would take place, [Worrell] could
see what appeared to be money being handed
to [defendant] from the other . . . male.
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As Worrell watched, the man approached “ten to twelve” cars and,
“after every . . . two to three . . ., he and [defendant] would
get together.”
Worrell further recalled that,
[a]t 9:30 p.m., the . . . unknown . . .
male left the premises . . . and [defendant]
began approaching vehicles . . . . After he
would walk up to the car [and briefly talk]
with the people, he would leave and go
behind . . . a six, seven foot fence
enclosed around [a] dumpster. He would
. . . then come out and walk back up to the
vehicle, make some type of reaching in
motion as if he was handing someone
something.
Defendant interacted with the occupants of “four or five
vehicles” and walked behind the dumpster, enclosed on three
sides by the fence, on each occasion. Worrell noticed that
defendant went to a white Honda car parked “right behind the
dumpster” “two or three times,” “raise[d] the trunk and then
shut the [lid] back down,” but was unable to “tell if
[defendant] was fiddling or anything” in the trunk. Worrell
acknowledged that “other people . . . were in the . . . area,”
although “not in the close proximity that [defendant] went to
the fence.”
At approximately 10:45 p.m., Worrell summoned Sheriff’s
Captain Joseph Willard to the scene. As Willard and Deputy
Lindsay arrived, defendant was seen “giving . . . change” to an
unknown woman. Willard advised defendant “why [they] were
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there,” and “did [a] pat . . . down . . . [for] weapons.” A
consent search of defendant’s person produced two pagers and
“some change.” Willard communicated his findings to Worrell,
and Worrell directed him “to the dumpster site.” During the
encounter, defendant was “gesturing his eyes towards the
dumpster area.” When Willard “checked there,” he “found two
canisters sitting on the rail inside of the fence,” “just a hand
reach in,” at a point where the “fence was leaned back.” Upon
inspection, Willard discovered that the canisters contained
sixteen “rocks” of cocaine.
A subsequent consent search of the Honda revealed an open
box in the trunk which contained “a wad of U.S. currency folded
up and stuck beside [a] distributor cap.” The currency totaled
$586, specifically, (1) $100 bill, (1) $50 bill, (20) $20 bills,
(3) $10 bills, (1) $5 bill, and (1) $1 bill. Defendant claimed
that his sister owned the Honda and denied knowledge of the
money.
Qualified as an expert in the sale and distribution of
cocaine in Isle of Wight County, Worrell testified that “[i]t’s
very common for cocaine to be packaged in a container like [the
canisters found]. They take the cocaine out of the container
and hand the rock to the [purchaser]” without separate
packaging. Worrell opined that each rock would sell for $20 and
that a $20 bill was the customary currency in such transactions.
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Defendant’s wife testified that she owned the vehicle and
had placed the money in the trunk, hidden in a “closed” box and
unknown to defendant. Other defense witnesses testified that
defendant passed them cigarettes from the car while they talked
with him in the parking area at approximately 10:00 p.m. on the
offense date. Defendant’s niece recalled speaking with him from
her car “around 10:00 p.m.” Defendant testified that he had
arrived at the Windsor Court Apartments to “play cards” in the
early afternoon and “went outside . . . to stretch” at
approximately 9:30 or 10:00 p.m. for “about thirty-five
minutes.” He denied approaching any vehicles earlier in the
evening, opening the trunk of the Honda, or walking behind the
dumpster.
II.
It is well settled that
possession 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
(1987) (citations omitted). “Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
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provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.” Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)
(citations omitted), cert. denied, 465 U.S. 1109 (1984).
However, the Commonwealth “‘is not required to disprove every
remote possibility of innocence, but is, instead, required only
to establish guilt of the accused to the exclusion of a
reasonable doubt.’” Cantrell v. Commonwealth, 7 Va. App. 269,
289, 373 S.E.2d 328, 338 (1988) (citation omitted). “The
hypotheses which the prosecution must reasonably exclude are
those ‘which flow from the evidence itself, and not from the
imagination of defendant’s counsel.’” Id. at 289-90, 373 S.E.2d
at 338-39 (citation omitted).
Here, the evidence disclosed that both defendant and his
companion were repeatedly approaching cars and engaging in
exchanges with the occupants over a period of several hours.
The unidentified man was seen occasionally passing money to
defendant. Later, while alone, defendant continued to stop and
converse with persons in automobiles, disappear behind the
dumpster in the vicinity of the hidden cocaine, return to the
waiting car and effect an exchange. He sometimes opened the
trunk of the Honda, parked adjacent to the dumpster, which
contained substantial cash in denominations consistent with the
sale of cocaine “rocks” like those found in the canisters.
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Additionally, defendant possessed two pagers, “regularly
recognized . . . tools of the drug trade.” White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc).
Such circumstances sufficiently proved that defendant was
distributing cocaine to persons in automobiles from a cache
within the dumpster fence and depositing the proceeds in the
trunk of his wife’s car. Defendant’s lies to police, and,
later, at trial, provided further indicia of guilt. See, e.g.,
Daung Sam v. Commonwealth, 13 Va. App. 312, 320, 411 S.E.2d 832,
837 (1991).
Accordingly, we affirm the decision of the trial court.
Affirmed.
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Benton, J., dissenting.
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 [accused] 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)). "But mere proximity
to a controlled drug is insufficient to establish possession."
Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673
(1975).
[P]robability of guilt is insufficient to
warrant a criminal conviction. Suspicious
circumstances "'no matter how grave or
strong, are not proof of guilt sufficient to
support a verdict of guilty. The actual
commission of the crime by the accused must
be shown by evidence beyond a reasonable
doubt to sustain his conviction.'"
Suspicious circumstances alone are not
sufficient to prove knowing possession of a
controlled substance.
Burchette v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d
81, 86 (1992) (citations omitted).
The evidence proved that Sclester Uzzle, Jr. did not
actually possess cocaine. He had no cocaine on his person and
no evidence proved that he touched the containers of cocaine
that the police found sitting on a rail inside the fence, which
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surrounded three sides of the large trash "dumpster." The
surveillance officer saw Uzzle go behind the fenced area but
could not see his activity because the dumpster obstructed the
officer's view. The evidence proved that the fenced area was in
the parking area of an apartment complex and that other people
were walking by the fenced area.
The officers detained neither the vehicles that Uzzle
approached nor any of the other persons who approached the
vehicles. Thus, the officer could only have speculated as to
the nature of Uzzle's contact with those persons. Indeed, the
conviction is based upon pure speculation concerning Uzzle's
activities. In a criminal case, where the quantum of proof must
be beyond a reasonable doubt, the imperative to secure a
conviction free of speculation, surmise, and conjecture is
constitutionally based. See In re Winship, 397 U.S. 358 (1970).
"[V]erdict[s] . . . based only upon speculation and conjecture
. . . cannot be permitted to stand." Dunn v. Commonwealth, 222
Va. 704, 705-06, 284 S.E.2d 792, 793 (1981).
For these reasons, I would reverse the conviction.
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