Cary Clinton Stacy v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
CARY CLINTON STACY
v. Record No. 1565-94-1 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA DECEMBER 19, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Douglas Fredericks (E. Jane Anderson, on
brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial on May 23, 1994, the appellant, Cary
Clinton Stacy ("Stacy"), was convicted of possession of heroin
with intent to distribute. On June 21, 1994, the trial court
fined Stacy $100 and sentenced him to twenty years in prison,
suspending ten years. On appeal, Stacy argues that the evidence
was insufficient to support the conviction. For the following
reasons, we reverse.
On November 5, 1993, Norfolk police officers executed a
search warrant at 3029 Kimball Terrace in Norfolk. Investigator
Biemler entered first, proceeding through the dark home until he
reached a well-lit kitchen. Upon reaching the kitchen, Biemler
saw three males standing by the kitchen's open back door. At
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial, Biemler identified Stacy as one of those men. There was
no evidence that Stacy lived at that address or was other than a
casual visitor there.
Upon entering the kitchen, Biemler ordered the three men to
get on the floor. Before the men reacted, Biemler tripped on a
bicycle positioned between Biemler and the men, causing all four
men to fall to the ground, close to where they were standing.
The bike landed on top of the subjects, and Biemler landed on top
of the bike. Stacy landed on his back and/or side, his head and
shoulders resting upon a cabinet. Biemler, who had his gun drawn
on the subjects, then ordered the men to put their hands in plain
view. Unlike the other two subjects who immediately complied,
Stacy hesitated, though he eventually brought forth his hands.
At trial, Biemler could not recall where Stacy's hands had been
during the period of hesitation.
One by one, Biemler got the men up and passed them to his
partner who searched and identified them. Biemler noticed
nothing in the way of evidence upon removing the first two men.
However, when Stacy got up, Biemler noticed a plastic baggie and
some money on the floor. In the baggie were fourteen glassine
envelopes containing heroin. The baggie lay approximately six
inches from the counter against which Stacy came to rest. The
money amounted to sixty-eight dollars (thirteen five-dollar bills
and three ones). Another bag, this one containing cocaine, was
recovered from behind the door. The door was opened against the
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kitchen wall when Biemler entered; Stacy was standing adjacent to
the door. The bag of cocaine was found behind the door after
Biemler closed it, and it lay approximately three feet from the
place where Stacy had fallen. Before tripping on the bike,
Biemler did not have a chance to inspect the kitchen floor, and
he did not see Stacy throw anything to the ground. After
searching Stacy, the officers found no weapons, drugs, or money
on his person. Biemler testified that Stacy made no statement
and took no action, to indicate his ownership or control over it.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a light most
favorable to the Commonwealth. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court
may not substitute its own judgment for that of the trier of
fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218,
220 (1992). Instead, the trial court's judgment will not be set
aside unless it appears that the judgment is plainly wrong or
without supporting evidence. Code § 8.01-680; Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987)).
It cannot be disputed that Stacy ended his fall in close
proximity to the drugs. Based on that evidence, the Commonwealth
first contends that Stacy had actual possession of the drugs:
Stacy's position relative to the drugs put them in his physical
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possession and gave him immediate and exclusive control.
Alternatively, the Commonwealth argues that Stacy maintained
constructive possession of the drugs.
To support a conviction for either actual or constructive
possession, the Commonwealth must establish that an accused
knowingly and intentionally possessed that which he is accused of
possessing. Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d
757, 758-59 (1975); Buono v. Commonwealth, 213 Va. 475, 476, 193
S.E.2d 798, 799 (1973) ("To establish ``possession' in a legal
sense it is not sufficient to simply show actual or constructive
possession of the drug by the defendant. The Commonwealth must
also establish that the defendant intentionally and consciously
possessed it with knowledge of its nature and character.");
Williams v. Commonwealth, 14 Va. App. 666, 669, 418 S.E.2d 346,
348 (1992); see also 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)) ("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.'").
As such, an accused's mere proximity to contraband or his
presence on the premises where it is found are, alone,
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insufficient to establish constructive possession. See, e.g.,
Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882
(1992); Nelson v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d
627, 628-29 (1994). Indeed, proximity and presence, together,
are insufficient where the evidence does not show that the
defendant knowingly possessed what he is accused of possessing.
See Scruggs v. Commonwealth, 19 Va. App. 58, 61-63, 448 S.E.2d
663, 665-66 (1994) (defendant, owner and driver of car in which
drugs found within passenger seat, did not constructively possess
drugs because evidence failed to show defendant knew drugs were
there); Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d
863, 864 (1994) (defendant, passenger in car where drugs found
both between passenger and driver seats and under passenger seat,
did not constructively possess drugs because evidence failed to
show how long defendant had been in car, whether defendant saw
drugs between seats, or whether defendant knew of drugs under
seat); Nelson, 17 Va. App. at 711, 440 S.E.2d at 628-29 (1994)
(defendant, present in hotel room where drugs found, did not
constructively possess drugs because drugs not in plain view, no
drugs found on defendant, and evidence failed to show how long
defendant had been in room).
Thus, even if Stacy's physical relationship to the drugs
amounts to possession, either actual or constructive, the
Commonwealth must still establish, beyond a reasonable doubt,
that Stacy knowingly and intentionally possessed the drugs. To
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meet its burden the Commonwealth may produce evidence of
circumstances tending to show that Stacy was aware of the
presence and character of the drugs. See, e.g., McGee v.
Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987).
However, where the Commonwealth's case is based on circumstantial
evidence, all the necessary circumstances proved must be
consistent with guilt and inconsistent with innocence to
establish guilt beyond a reasonable doubt. E.g., Harrell v.
Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990).
Here, to establish the requisite knowledge on Stacy's part,
the Commonwealth relies solely on the testimony of Officer
Biemler that Stacy delayed in bringing forth his hands when so
ordered. The Commonwealth relies on this evidence to infer that
Stacy did something with the drugs during the delay, an act
establishing his knowledge of the presence and character of the
drugs. Other than Stacy's delay in raising his hands, there is
no evidence of suspicious conduct on Stacy's part tending to show
he was aware of the presence and character of the drugs.
This circumstance fails to exclude, beyond a reasonable
doubt, reasonable inferences of Stacy's innocence. Officer
Biemler testified that, when he entered the kitchen, he tripped
on a bicycle causing all four men to fall to the ground. The
bicycle landed on top of Stacy and the other two suspects, and
Biemler landed on top of the bicycle. Given this sequence of
events, it cannot be concluded that the evidence excludes the
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hypothesis that Stacy's hands were innocently trapped under
either himself, the bicycle, or one of the other men at the time.
Moreover, when the men fell to the floor, Stacy landed on
his back or his side. The drugs were found six inches from the
cabinet against which his head and shoulders rested. By
inference, the drugs were behind him, not beneath him. The
Commonwealth's evidence on this point is contradictory; Biemler
first testified that the drugs were beneath Stacy but, upon
further cross-examination, agreed the drugs weren't "underneath
his body proper." Biemler then qualified his answer, stating
"All I can say is when I picked him up, that's when I spotted
it." The bag of cocaine was found behind the door, three feet
away from Stacy. The evidence therefore does not exclude the
hypothesis that the drugs were on the floor--near the cabinet and
behind the door--unbeknownst to Stacy prior to his entry.
Finally, the evidence shows that two other men occupied the
kitchen during the arrest. The evidence does not exclude the
possibility that one of the other two men discarded the drugs
upon hearing Biemler move through the home.
As such, the evidence is insufficient to support Stacy's
conviction. We accordingly reverse.
Reversed.
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