Robert Wesley Deans, Jr. v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
ROBERT WESLEY DEANS, JR.
MEMORANDUM OPINION * BY
v. Record No. 1881-96-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
John H. Click, Jr. (White, Blackburn & Conte,
P.C., on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Robert Wesley Deans, Jr. (appellant) appeals his conviction
for possession of marijuana in a county jail on the basis that
the evidence presented at trial was insufficient to prove his
guilt beyond a reasonable doubt. We agree and reverse his
conviction.
On October 28, 1995, Chesterfield County deputies conducted
a search of the Chesterfield County Jail dormitory in which
appellant was housed. The deputies ordered the inmates into the
center of the room and then removed them from the dorm.
Appellant occupied the bottom bunk of a bunk bed. Deputy Brian
Michaels, the Commonwealth's only witness, searched appellant's
bed and the area surrounding the bed. Underneath appellant's bed
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
were two jail-issued plastic tubs which inmates used to store
their personal belongings. In one of the tubs, Michaels
discovered two paper bags, one of which contained plastic bags of
tortilla and potato chips.
Michaels checked each of the plastic bags of chips, and
noticed that one of the bags had been resealed with a black putty
substance and that it contained two balloons. Michaels opened
the balloons; he believed that one balloon contained marijuana
and that the other balloon contained a mixture of tobacco and
marijuana. Michaels testified that he returned the paper bags to
the plastic tub. Deputy Cardelino testified, however, that the
bags and contents of both inmates' plastic tubs were placed on
the bunk bed. When the inmates returned to the dorm, Michaels
told appellant and the occupant of the top bunk to gather their
personal belongings. Appellant gathered his possessions, and
picked up the paper bag which contained the altered chip bag.
Michaels then left the room. Subsequent testing confirmed that
each of the balloons contained marijuana.
At trial, appellant presented the testimony of another
inmate, James Davis, who testified that he, appellant, and a
third inmate routinely kept items in the same bags to avoid theft
by other inmates. Davis testified that the marijuana was his and
that he had pled guilty to its possession. He testified that he
had placed the marijuana in the paper bag earlier in the day of
the search. The Commonwealth impeached Davis as a convicted
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felon on cross-examination.
On appeal, this Court reviews the evidence "'in the light
most favorable to the Commonwealth and accord to the evidence all
reasonable inferences fairly deducible therefrom.'" Phoung v.
Commonwealth, 15 Va. App. 457, 460, 424 S.E.2d 712, 714 (1992)
(quoting Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988)). A jury's verdict "shall not be set
aside unless it appears from the evidence that such judgment is
plainly wrong or without evidence to support it." Code
§ 8.01-680; Phoung, 15 Va. App. at 460, 424 S.E.2d at 714(quoting Traverso, 6 Va. App. at 176, 366 S.E.2d at 721). The
credibility of witnesses, the weight accorded the testimony of
witnesses, and the inferences to be drawn from proven facts are
questions within the province of the jury. Spivey v.
Commonwealth, 23 Va. App. 715, 724, 479 S.E.2d 543, 548 (1997)
(citing Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d
473, 476 (1989)).
Possession of a controlled substance may be either actual or
constructive. McGee v. Commonwealth, 4 Va. App. 317, 322, 357
S.E.2d 738, 740 (1987) (citing Archer v. Commonwealth, 225 Va.
416, 418, 303 S.E.2d 863, 863 (1983)). To support a conviction
for constructive possession on appeal, "the Commonwealth must
point to evidence of acts, statements, or conduct of the accused
or other facts and circumstances which tend to show that the
defendant was aware of both the presence and character of the
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substance and that it was subject to his dominion and control."
Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740
(1984) (citing Eckhart v. Commonwealth, 222 Va. 447, 450, 281
S.E.2d 853, 855 (1981)). The Commonwealth may show possession of
the controlled substance through circumstantial evidence provided
the evidence "excludes every reasonable hypothesis of innocence."
Spivey, 23 Va. App. at 724, 479 S.E.2d at 548 (citing, inter
alia, Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d
419, 420 (1994)).
The Commonwealth, relying upon the theory of constructive
possession, points to three pieces of evidence in support of
appellant's knowledge of the marijuana.
First, the Commonwealth points to the fact that, when told
to gather his belongings, appellant took the paper bag containing
the marijuana enclosed in the plastic chip bag. This evidence
does not demonstrate, however, that appellant knew of the
"presence and character" of the marijuana which the bag had
contained. Appellant's knowing possession of the paper bag does
not establish that he knew that the paper bag contained the chip
bag in question, much less that the chip bag contained marijuana.
Second, the Commonwealth argues that the proximity of the
marijuana to appellant's bunk supports the conclusion that he
knowingly possessed the controlled substance. "While proximity
to a controlled substance is insufficient alone to establish
possession, it is a factor to consider when determining whether
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the accused constructively possessed drugs." Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en
banc) (citing Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d
358, 360 (1982)). Thus, the proximity of the marijuana to
appellant's bunk is some, but not sufficient, evidence of his
knowledge of the contraband.
Finally, the Commonwealth contends that the evidence was
sufficient to convict appellant because Davis' testimony was not
credible, and the jury could choose to disregard it. Davis
testified that he, appellant, and a third inmate kept their chips
in a single paper bag to avoid theft by other inmates. Davis
further testified that he had placed the chip bag containing
marijuana in the paper bag earlier that day. Davis was impeached
as a convicted felon. See, e.g., Doss v. Commonwealth, 23 Va.
App. 679, 685, 479 S.E.2d 92, 95 (1996). Assuming without
deciding that the jury concluded that Davis lied to conceal
appellant's guilt, see Speight v. Commonwealth, 4 Va. App. 83,
88, 354 S.E.2d 95, 98 (1987) (en banc) (citing Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)), that
credibility determination is not sufficient to exclude the
reasonable hypothesis that appellant had no knowledge of the
contraband concealed in the bag he picked up when directed to
gather his belongings. See Stover v. Commonwealth, 222 Va. 618,
624, 283 S.E.2d 194, 196 (1981); Tucker, 18 Va. App. at 144, 442
S.E.2d at 421.
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Accordingly, we find the evidence insufficient to sustain
the appellant's conviction beyond a reasonable doubt and reverse.
See, e.g., Burchette v. Commonwealth, 15 Va. App. 432, 435-36,
425 S.E.2d 81, 84 (1992); Hairston v. Commonwealth, 5 Va. App.
183, 186-87, 360 S.E.2d 893, 895 (1987).
Reversed and dismissed.
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