Wilbur L. Martin, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Overton
Argued at Norfolk, Virginia
WILBUR L. MARTIN, JR.
MEMORANDUM OPINION * BY
v. Record No. 2861-95-1 JUDGE RICHARD S. BRAY
SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
V. Thomas Forehand, Jr., Judge
Wesley A. Murphy for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Daniel J. Munroe, Assistant Attorney General,
on brief), for appellee.
Wilbur L. Martin, Jr. (defendant) was convicted by a jury of
possession of cocaine in violation of Code § 18.2-250 and
complains, on appeal, that the evidence was insufficient. We
disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal. Under familiar principles of appellate review, we
examine the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. Traverso v. Commonwealth, 6 Va. App. 172,
176, 366 S.E.2d 719, 721 (1988). The jury's verdict will not be
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disturbed unless plainly wrong or without evidence to support it.
Id. The credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are
matters solely within the province of the fact finder. Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
On August 29, 1994, Chesapeake Police Officer James E.
Jarrett, Jr. observed defendant consuming beer in an "open public
area." Jarrett exited his marked patrol car, approached
defendant, requested identification, and advised that he intended
to issue defendant a summons for drinking in public. Jarrett
conducted a "pat[] down" of defendant, "quick[ly] pushing or
grabbing . . . [his] clothing" for weapons, without "go[ing] into
inner clothing," and discovered neither weapons nor narcotics.
Defendant was then "placed" on the "rear seat on the right side"
of the police vehicle while a "warrants check" was "run" by
Jarrett. Finding no outstanding warrants, Jarrett issued
defendant the promised summons and released him.
Moments later, Jarrett, in accordance with his custom,
"checked the rear seat by lifting it up and looking in and
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feeling to make sure nothing ha[d] been dropped off." During
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Jarrett testified that he "always check[s his] patrol car[]
before . . . go[ing] on duty and . . . after somebody has been
placed in the back to make sure nothing has been dropped in
there," an inspection which includes "lifting [the rear seat] up
and looking in and feeling" for objects.
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this routine search, Jarrett discovered "a clear plastic baggie,"
containing six individual packages of crack cocaine, "under the
seat between the frame of the vehicle and the seat cushion area"
occupied by defendant. Defendant was immediately again stopped
and arrested for the instant offense.
"Possession may be actual or constructive. Constructive
possession exists when 'an accused has dominion or control over
the drugs.' Such 'possession may be proved by "evidence of acts,
declarations or conduct of the accused from which the inference
may be fairly drawn that he knew of the existence of narcotics at
the place where they were found."'" Castaneda v. Commonwealth, 7
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (citations
omitted). "Proof of constructive possession necessarily rests on
circumstantial evidence; thus, 'all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence.'"
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
83 (1992) (citations omitted).
"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, Code § 18.2-250, both are
factors which may be considered in determining whether a
defendant possessed drugs." Josephs v. Commonwealth, 10 Va. App.
87, 100, 390 S.E.2d 491, 498 (1990) (en banc) (citations
omitted). "[I]n order for ownership or occupancy . . . of a
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vehicle to be sufficient to support [such] inference[,]
. . . [the] occupant must be shown to have exercised dominion and
control over the premises and to have known of the presence,
nature, and character of the contraband at the time of
such . . . occupancy." Burchette, 15 Va. App. at 435, 425 S.E.2d
at 83-84 (citation omitted). However, "[t]he Commonwealth is not
required to prove that there is no possibility that someone else
may have planted, discarded, abandoned or placed the drugs . . .
in the [automobile]." Brown v. Commonwealth, 15 Va. App. 1, 10,
421 S.E.2d 877, 883 (1992) (en banc).
Jarrett's inspection of the police vehicle immediately prior
to his encounter with defendant disclosed no contraband. Only
defendant and Jarrett were thereafter inside the car, and the
offending drugs were discovered hidden in the area occupied by
defendant. From such evidence, the jury could conclude that
defendant removed the cocaine from his person and placed it
beneath the seat cushion, attempting to conceal the drugs from
Jarrett.
Accordingly, we affirm the conviction.
Affirmed.
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