Issac A Fawehimni, s/k/a, etc v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
ISSAC A. FAWEHIMNI, S/K/A
ISSAC FAWEHMINI
MEMORANDUM OPINION * BY
v. Record No. 0389-02-4 JUDGE ROBERT J. HUMPHREYS
MARCH 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Judge
Kimberly J. Phillips, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Issac Fawehimni appeals his conviction, after a bench trial,
for possession of cocaine. Appellant contends the trial court
erred in finding the evidence sufficient, as a matter of law, to
support his conviction. For the reasons that follow, we affirm
the judgment of the trial court.
We first note that when examining a challenge to the
sufficiency of the evidence on appeal, we must review the evidence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
"'in the light most favorable to the Commonwealth'" and grant it
the benefit of any reasonable inferences. Ward v. Commonwealth,
264 Va. 648, 654, 570 S.E.2d 827, 831 (2002) (quoting Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
This principle requires us to "'discard the evidence of the
accused'" which conflicts, either directly or inferentially, with
the Commonwealth's evidence. Wactor v. Commonwealth, 38 Va. App.
375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).
"The legal principles applicable to this case are well
established and clearly defined." Clodfelter v. Commonwealth, 218
Va. 619, 622, 238 S.E.2d 820, 822 (1977). In order to convict a
defendant of possession of drugs,
it generally is necessary to show that
defendant was aware of the presence and
character of the particular substance and
was intentionally and consciously in
possession of it. Physical possession
giving the defendant "immediate and
exclusive control" is sufficient. However,
the possession need not always be exclusive.
The defendant may share it with one or more.
The duration of the possession is immaterial
and need not always be actual possession.
The defendant may be shown to have had
constructive possession by establishing that
the drugs involved were subject to his
dominion or control.
In People v. Pigrenet, 26 Ill. 2d 224, 186
N.E.2d 306 (1962), the court held that while
knowledge was an essential ingredient in the
crime of possession of narcotics, such
knowledge may be proved by evidence of acts,
declarations or conduct of the accused from
which the inference may be fairly drawn that
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he knew of the existence of narcotics at the
place where they were found.
Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06
(1970) (citation omitted).
Although mere proximity to the contraband is
insufficient to establish possession, it is
a factor that may be considered in
determining whether a defendant possessed
the contraband. Ownership or occupancy of
the premises on which the contraband was
found 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." Womack v. Commonwealth, 220 Va.
5, 8, 255 S.E.2d 351, 353 (1979).
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832
(1997) (other citations omitted).
"Circumstantial evidence of such possession is sufficient to
support a conviction, provided it excludes every reasonable
hypothesis of innocence." Id. at 13, 492 S.E.2d at 832. However,
"[t]he Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring from
the imagination of the defendant." Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether an
alternative hypothesis of innocence is reasonable is a question of
fact and, therefore, such a determination is binding on appeal
unless plainly wrong. Archer, 26 Va. App. at 12-13, 492 S.E.2d at
832.
Contrary to appellant's argument, the only reasonable
hypothesis flowing from the "totality" of the evidence in this
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case is that appellant was aware of the presence and the
character of the contraband at issue and that it was subject to
his dominion and control. Officer J.W. Andrea, of the Fairfax
County Police Department, testified that on the morning of May
9, 2001, he obtained appellant's name and identifying
information by running a "check" on the license plate of his
car, which was parked in the hotel parking lot. Armed with this
information, Officer Andrea stated that he went to the front
desk of the hotel and determined, from their records, which room
appellant was staying in, providing a reasonable inference that
appellant was, at least, jointly registered as an occupant of
the room. Moreover, Officer Andrea testified that appellant
answered the door to the room wearing only his underwear,
providing a reasonable inference that he had slept in the room.
Andrea stated that his subsequent search of the room revealed
that appellant was the sole occupant of the room, wherein he
found the "Nestea" can, with holes punched in it, containing a
residue, as well as the razor blade exhibiting a white residue,
in plain view. 1 The Nestea can was later determined to exhibit
1
Counsel for appellant failed to include in her brief on
appeal the particularly significant fact that, in addition to
the "Nestea" can containing residue, Officer Andrea also found a
razor blade containing a white powdery residue on appellant's
bureau. We remind counsel that Rule 5A:20(d) requires the
appellant, in his or her opening brief on appeal, to provide
"[a] clear and concise statement of the facts that relate to the
questions presented, with references to the pages of the
transcript, written statement, record, or appendix."
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traces of cocaine. 2 Despite appellant's contention that the "can
belonged to a . . . woman that was with him the night before
called Phyllis," Andrea further testified that he found no
evidence that a woman had ever been present in the room.
Considering the principles stated above, we find that the
Commonwealth provided the trial court with more than ample
evidence from which it could reasonably conclude that appellant
was aware of the contents of the room, and exercised dominion and
control over the room and its contents. See Susan Eckhart v.
Commonwealth, 222 Va. 447, 451, 281 S.E.2d 853, 855 (1981).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
2
The parties failed to include the exhibit pertaining to
the laboratory analysis of the contraband in the appendix on
appeal. We remind both parties that Rule 5A:25(c) states that
"[a]n appendix shall include," "exhibits necessary for an
understanding of the case that can reasonably be reproduced."
Rule 5A:25(c)(6) (emphasis added).
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