Kenneth Ray Lowe v. Commonwealth of Virginia , 36 Va. App. 163 ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
KENNETH RAY LOWE
OPINION BY
v. Record No. 1910-00-3 JUDGE ROSEMARIE ANNUNZIATA
JULY 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
(Freddie E. Mullins; Buddy H. Wallen, P.C.,
on briefs), for appellant. Appellant
submitting on briefs.
(Mark L. Earley, Attorney General; Leah A.
Darron, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
The appellant, Kenneth Ray Lowe, appeals his conviction in
the Circuit Court of Buchanan County for manufacturing
marijuana, in violation of Code § 18.2-248.1. 1 Lowe contends the
evidence was insufficient to support the conviction. We agree,
and reverse.
1
The Court notes that the conviction and sentencing order
reflects that the appellant pled guilty to the charge of
manufacturing marijuana. However, after a review of the entire
record in this case, it appears the appellant pled not guilty.
Accordingly, this matter is remanded to the trial court for the
sole purpose of correcting that clerical error.
BACKGROUND
On appeal, we view the evidence and all reasonable
inferences fairly deducible therefrom, in the light most
favorable to the Commonwealth. Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On July 19, 1999,
Buchanan County Sheriff's Investigator Blaine Crouse was looking
for Jerry Lowe, the appellant's brother. He drove to Jerry
Lowe's home and spoke with a woman who lived with him. The
woman advised Crouse that Jerry Lowe "wasn't at home, that he
had spent the night at [the appellant's] residence and then told
[the officer] that [the appellant's] house was down there at the
railroad trestle."
Crouse was familiar with appellant's residence because he
had been there "probably three or four times" in the prior four
months, and he had once arrested appellant there. Crouse also
testified that when he arrived at appellant's home that day, a
German Shepherd dog that he had seen on his previous visits was
tied up in the backyard.
Crouse walked onto the front porch and knocked on the door.
When no one answered, he turned to leave, but saw a bucket
containing a marijuana plant sitting on the hillside, fifteen
feet from the residence. He walked up on the hillside to check
the plant and, when he turned around, saw four other buckets
containing marijuana plants sitting on a table against the side
of the house. The dirt in the buckets looked like it had "just
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been worked," and he observed finger and hand prints in the soil
surrounding the plants.
Crouse also observed a device nailed to the house that
channeled water onto the plants. The plants were sent to the
Bureau of Forensic Science for analysis, which established that
the plants were marijuana and weighed two grams.
Crouse also testified that he had been at the same
residence two hours prior to discovering the marijuana plants
and that he had spoken to a young lady during that earlier
visit, but had not learned her name.
Defense counsel moved to strike at the close of the
Commonwealth's evidence. The trial court overruled the motion
and found that the evidence established that freshly tended
marijuana plants were found at the appellant's home and that
this circumstantial evidence proved that appellant had dominion
and control over the drugs. Appellant was convicted of
manufacturing marijuana and sentenced to five years in prison
with four years of the sentence suspended.
ANALYSIS
In order to prove that the appellant manufactured the
marijuana in question, the Commonwealth was required to prove
that he "planted, cultivated, grew or harvested" the marijuana.
Patterson v. Commonwealth, 19 Va. App. 698, 702, 454 S.E.2d 367,
369 (1995); King v. Commonwealth, 2 Va. App. 708, 710-11, 347
S.E.2d 530, 531 (1986). In addition, because "[a] person cannot
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manufacture marijuana without possessing it," Patterson, 19 Va.
App. at 702, 454 S.E.2d at 369, the Commonwealth was required to
prove the defendant was: (1) aware of the presence and
character of the particular substance; and (2) was intentionally
and consciously in possession of it. Clodfelter v.
Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820, 822 (1977). The
Commonwealth was not required to prove the defendant actually
possessed the controlled substance, but could rely on proof of
constructive possession. Drew v. Commonwealth, 230 Va. 471,
473, 338 S.E.2d 844, 845 (1986).
To support a conviction based on constructive possession,
the Commonwealth must point to evidence of acts, statements or
conduct of the accused or other facts and circumstances which
tend to show the defendant was aware of both the presence and
character of the substance and that it was subject to his
dominion and control. Garland v. Commonwealth, 225 Va. 182,
184, 300 S.E.2d 783, 784 (1983); Clodfelter, 218 Va. at 622, 238
S.E.2d at 822. Where the Commonwealth's case rests entirely
upon circumstantial evidence, as in this case, the evidence not
only must be consistent with guilt, but it also must exclude
every reasonable hypothesis of innocence. Clodfelter, 218 Va.
at 623, 238 S.E.2d at 822.
The Commonwealth's evidence failed to establish that the
appellant occupied the home at the time the marijuana plants
were found or that he was the only person with access to the
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residence. Although it proved that Lowe resided at the home and
had been present there on previous occasions, evidence of
ownership or occupancy of the premises, alone, is insufficient
to prove constructive possession. Nicholas v. Commonwealth, 186
Va. 315, 322, 42 S.E.2d 306, 310 (1947); see also Lane v.
Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982)
(citing Code § 18.2-250.1).
While evidence of ownership or occupancy is probative on
the question and constitutes a circumstance that may be
considered along with other evidence, Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984), in this case, no
other evidence connected the appellant to the marijuana. No
evidence showed the appellant had been at the house on the day
the marijuana was found or during a period from which the finder
of fact could reasonably conclude appellant constructively
possessed the marijuana. Furthermore, the Commonwealth's own
evidence showed that two other people, the appellant's brother
and the unidentified woman, were at the residence on the day
Investigator Crouse discovered the recently "worked" marijuana
plants.
The Commonwealth's circumstantial evidence failed to
eliminate the reasonable hypothesis that someone other than
Lowe brought the pots of marijuana to the home on the day they
were discovered. See Burchette v. Commonwealth, 15 Va. App.
432, 438, 425 S.E.2d 81, 85 (1992) (where we found, "[t]he
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evidence simply does not exclude the very real possibility that
other members of [the defendant's] family or someone other than
[the defendant] used or had access to the vehicle and had left
the drugs there unbeknownst to him"). Therefore, we find the
evidence to be insufficient, as a matter of law, to prove the
appellant manufactured the marijuana. Accordingly, we reverse
the conviction and dismiss the indictment.
Reversed and dismissed.
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