Andre Taylor v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
ANDRE TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 0891-97-2 JUDGE MARVIN F. COLE
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James F. D'Alton, Jr., Judge
Homer C. Eliades (Adrienne George-Eliades;
Eliades and Eliades, on brief), for
appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Andre Taylor (appellant) appeals his conviction for
possession of cocaine. On appeal, appellant contends that the
evidence was insufficient to support his conviction. We affirm
the conviction.
Four police officers executed a search warrant on a
residence in Hopewell, Virginia at about 10:00 p.m. on November
15, 1996. Three persons were in the residence when the officers
entered: Vernon Boone, Steven Wyche, and appellant.
Officer Hawkins testified that when the officers entered the
apartment, all three men were seated in chairs around a kitchen
table. They immediately stood and ran. Officer Hunter testified
that he saw Boone "shove" something into his pants and turn his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
back to the officers before running away. Hunter stated that
appellant was about two to three feet from Boone when Hunter
first entered the residence. Hunter recovered a bag containing
.866 grams of crack cocaine which fell from the waistline of
Boone's pants. Some of the cocaine was individually packaged in
knotted plastic bag corners. Hunter, who testified that he was
familiar with the packaging and distribution of cocaine, stated
that the quantity and packaging of the recovered cocaine was
inconsistent with personal use.
Appellant admitted to the officers that he was the lessee of
the property and that Wyche also lived there. The officers
recovered a shotgun from under a mattress in the only bedroom in
the apartment, and they found a set of scales in the kitchen.
Hawkins testified that, based on his experience with drug cases,
the scales were similar to those used in the drug trade.
Appellant admitted that the shotgun belonged to him.
The officers also seized $355 in cash from appellant's pants
pocket. Appellant admitted that one of the two pagers found in
the living room belonged to him. The officers recovered other
personal items belonging to appellant from the apartment.
The trial court found appellant guilty of possession of
cocaine, stating that "the scales, the pager, the gun and so
forth in conjunction" with appellant's flight, his proximity to
the drugs and "all the other aspects of it" pointed to his
knowledge, dominion and control of the drugs.
2
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Possession of a controlled substance need
not be exclusive, and may be shared.
[P]ossession 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). Such "'possession may be proved by
"evidence of acts, declarations or conduct of the accused from
which an inference may be fairly drawn that he knew of the
existence of narcotics at the place where they were found."'"
Josephs v. Commonwealth, 10 Va. App. 87, 99-100, 390 S.E.2d 491,
498 (1990) (citation omitted).
Circumstantial evidence of possession is
sufficient to support a conviction provided
it excludes every reasonable hypothesis of
innocence.
Although mere proximity to drugs is
insufficient to establish possession, it is a
circumstance which may be probative in
determining whether an accused possessed such
drugs. Ownership or occupancy of the
premises is likewise a circumstance probative
of possession. Thus, in resolving this
issue, the Court must consider "the totality
of the circumstances disclosed by the
evidence."
3
Spivey v. Commonwealth, 23 Va. App. 715, 724-25, 479 S.E.2d 543,
548 (1997) (citations omitted). "Flight itself from the scene
[is] some evidence of guilty knowledge. Thus, the finder of fact
could infer the appellant possessed the drugs at the time he
began to run." Johnson v. Commonwealth, 12 Va. App. 150, 153,
402 S.E.2d 502, 504 (1991). Possession of items associated with
drug use and distribution is a factor to be considered by the
trier of fact. See, e.g., White v. Commonwealth, 25 Va. App.
662, 668, 492 S.E.2d 451, 454 (1997) (en banc) (recognizing also
that pagers are tools of the drug trade).
Here, appellant was seated at a table along with two other
men, and all three men fled as the police entered the apartment.
One of the men, who was seated two to three feet away from
appellant, stuffed a bag containing .866 grams of cocaine into
his pants when the police arrived. Hunter testified that the
amount of cocaine and the method of its packaging was
inconsistent with personal use. Hunter stated that one of the
pieces of cocaine was a "$50 rock," which "is a lot for one
person to use." According to Hunter, the other pieces would sell
for about $10 and $20.
Appellant admitted to the police that he leased the
apartment, and the police recovered some of his personal
belongings in the apartment. The police recovered indicia of the
drug trade, such as cash, a shotgun, a pager, and a set of scales
from the apartment. Thus, the only reasonable hypothesis arising
4
from such evidence is that appellant was aware of the nature and
character of the cocaine, that it was subject to his dominion and
control, and that he jointly and constructively possessed the
substance with the other men. Therefore, the evidence was
sufficient to prove beyond a reasonable doubt that appellant
possessed cocaine.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
5