Robert Dykes, a/k/a v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
ROBERT DYKES, A/K/A
LEROY JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 2717-01-3 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Robert Dykes of possession of more
than nine pounds of marijuana with the intent to distribute and
sentenced him to serve thirty years in the penitentiary, with
twenty years suspended. On appeal, Dykes contends that the
evidence was insufficient to support a finding of constructive
possession or possession with the intent to distribute. For the
reasons that follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with all
reasonable inferences that may be drawn. Ortega v. Commonwealth,
31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000) (citing Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(additional citation omitted)). On August 31, 2000, Thomas
Duggan, a United States Postal Inspector and director of the
Prohibitive Mailing team, seized a package in Los Angeles,
California because it exhibited several suspicious
characteristics. The package was addressed to "Lisa Beckford" at
"1402 Spruce Street Ext., Martinsville, Virginia 24112." After
obtaining a search warrant, the team opened the package and
discovered 9.9 pounds of marijuana. They repackaged the drugs and
forwarded the package to Postal Inspector Brumbaugh in Roanoke,
Virginia.
Brumbaugh learned that no one named "Lisa Beckford"
received mail at the address on the package. Based on his
professional experience, Brumbaugh knew that drug traffickers
often use incorrect address information on packages. Brumbaugh
therefore wrote a letter to "Lisa Beckford" explaining that an
incorrect zip code had prevented delivery. He encouraged her to
contact his office if she still wanted the package delivered.
The next day, he received a telephone call from a man
identifying himself as "Harris Beckford, Lisa Beckford's husband."
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"Mr. Beckford" stated they had received the letter, and he
requested re-delivery at the same address. Brumbaugh planned to
deliver the package the following day. When Brumbaugh arrived at
the address, Marco Taylor answered the door, claiming he was "Lisa
Beckford's boyfriend," and asked to sign for the package.
Brumbaugh asked whether the package was Lisa Beckford's and
whether she was expecting it, and Taylor responded affirmatively
to both questions. He then took the package and signed for it as
"Jimmy Long." At trial, Taylor testified that he used the name
"Jimmy Long" because Dykes told him the package contained drugs.
He further testified that Dykes paid him to sign for the package.
Shortly thereafter, Martinsville police officers saw Taylor
leave the residence. The officers executed their search warrant
and found Robert Dykes, April Mills, and her small child inside
the residence. The police found the letter Brumbaugh had sent to
"Lisa Beckford," regarding the incorrect zip code, in the front
pocket of Dykes' pants. Officers found the delivered marijuana in
the closet of a bedroom, along with an electronic scale located
about three feet from the package. Additionally, the officers
found personal papers and items with Dykes' name and the
residence's address on them, including an optometrist's
prescription and warrrants for Dykes' arrest.
Dykes' former girlfriend, Nicole Gravely, owned the residence
and had allowed Dykes to stay there for at least two weeks prior
to his arrest. Gravely stayed with her mother on the weekends,
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and she was not present at the residence during the time of the
delivery.
At trial, Taylor testified for the Commonwealth as part of a
plea bargain which reduced his charges to misdemeanors. In his
testimony, Taylor approximated the value of the marijuana in the
package at $3,600, or $350 to $400 per pound.
The trial court dismissed the conspiracy charge against Dykes
since there was no evidence corroborating Taylor's testimony. The
judge stated "I don't feel like you've convicted the Defendant of
conspiracy based solely on Mr. Taylor's testimony considering the
incentive that he has . . . I generally require some corroboration
unless the witness is most convincing." The trial court convicted
Dykes of possession with intent to distribute.
ANALYSIS
When sufficiency of the evidence is challenged on appeal,
we consider the evidence "in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Hagy v.
Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001)
(citation omitted). Furthermore, we "permit the verdict to
stand unless plainly wrong." George v. Commonwealth, 242 Va.
264, 278, 411 S.E.2d 12, 20 (1991), quoted in Tibbs v.
Commonwealth, 31 Va. App. 687, 707, 525 S.E.2d 579, 588 (2000).
The judgment of the trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be
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disturbed on appeal unless plainly wrong or without evidence to
support it. Brown v. Commonwealth, 5 Va. App. 489, 491, 364
S.E.2d 773, 774 (1988) (citations omitted).
CONSTRUCTIVE POSSESSION
Dykes argues there was insufficient evidence to convict him
of constructive possession. He argues that the trial court
rejected Taylor's testimony, due to his incentive to lie, and
without Taylor's testimony, the evidence fails to prove he
knowingly exerted dominion and control over the marijuana beyond a
reasonable doubt. We disagree.
The Commonwealth may establish constructive possession
through "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 the character of
the substance and that it was subject to his dominion and
control." Logan v. Commonwealth, 19 Va. App. 437, 444, 452
S.E.2d 364, 368-69 (1994) (en banc) (citation omitted).
Ownership or occupancy of a vehicle or of
premises where illicit drugs are found is a
circumstance that may be considered together
with other evidence tending to prove that
the owner or occupant exercised dominion and
control over items in the vehicle or on the
premises in order to prove that the owner or
occupant constructively possessed the
contraband.
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83 (1992) (citation omitted). "Furthermore, proof that a person
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is in close proximity to contraband is a relevant fact [and]
. . . may tend to show that, as an owner or occupant of property
or of a vehicle, the person necessarily knows of the presence,
nature, and character of a substance that is found there." Id.
In the case at bar, the Commonwealth introduced sufficient
evidence of Dykes' awareness of the nature and presence of the
marijuana and that it was subject to his dominion and control.
First, the police found the package, together with Dykes'
personal items, including warrants for his arrest and other mail
addressed to him at the residence, in the only furnished bedroom
in the house. Gravely, Dykes' former girlfriend, permitted
Dykes to reside in the house, and she often was away visiting
her mother. The trial court could, therefore, reasonably infer
that he was staying in the room and had dominion over its
contents. 1 See id.; see also Hargraves v. Commonwealth, 37
Va. App. 299, 314, 557 S.E.2d 737, 744 (2002) (holding that a
drawer used exclusively by defendant for his personal belongings
demonstrates his dominion and control over its contents).
Second, the police found the letter Brumbaugh had sent to
"Lisa Beckford" in Dykes' pants pocket. Moreover, Dykes
admitted he was in the house on the same day Brumbaugh received
a telephone call from "Harris Beckford, Lisa Beckford's
1
There was no evidence that anyone else occupied Dykes'
room.
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husband." Therefore, the trial court reasonably inferred that
Dykes made the call requesting re-delivery of the package.
Finally, Taylor testified that Dykes paid him to sign for
the package because it contained drugs. Although the trial
court noted Taylor had an incentive to lie and found his
testimony was insufficient to prove Dykes' guilt on the
conspiracy charge without further corroboration, see Feigley v.
Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993),
the court credited his testimony with respect to the possession
charge and found that his testimony, together with the other
evidence admitted, proved Dykes' guilt beyond a reasonable
doubt. See Hopkins v. Commonwealth, 230 Va. 280, 293, 337
S.E.2d 264, 272 (1985) (stating that the trier of fact can
reject a witness' testimony in part and accept it in part). We
find no error in the court's determination that Dykes possessed
the drugs in question beyond a reasonable doubt.
INTENT TO DISTRIBUTE
Dykes also argues there was insufficient evidence to find an
intent to distribute, claiming that the Commonwealth submitted no
direct evidence to prove that the marijuana found was packaged for
sale or that the amount was more than one person would use
personally. He further contends that the Commonwealth failed to
show how the scales would function as part of the marijuana trade.
We reject both arguments.
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"Because direct proof of intent [to distribute drugs] is
often impossible, it must be shown by circumstantial evidence."
Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122,
130 (1998) (en banc) (citations omitted). When proof of intent
rests upon circumstantial evidence, the quantity of drugs which
the defendant possesses is a circumstance courts should
consider. Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d
382, 383 (1984). Quantity alone is sufficient to establish
intent to distribute if the amount of drugs found is greater
than that normally possessed for personal use. See id. In
addition, absence of any paraphernalia suggestive of personal
use is recognized as a factor indicating the intent to
distribute. Welshman, 28 Va. App. at 37, 502 S.E.2d at 130; see
also Dukes, 227 Va. at 122, 313 S.E.2d at 383. Conversely, the
presence of paraphernalia used in the packaging process may be
considered in support of a finding of an intent to distribute.
See Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340,
341-42 (1990).
In the instant case, the Commonwealth's evidence was
sufficient to prove an intent to distribute. The package
delivered to the residence contained 9.9 pounds of marijuana,
with a resale value of approximately $400 per pound and an
overall street value of $3,600. We find the quantity of drugs
at issue here inconsistent with personal use and consistent with
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an intent to distribute. See generally Welshman, 28 Va. App. at
37, 502 S.E.2d at 130; Dukes, 227 Va. at 122, 313 S.E.2d at 383.
Moreover, the officers found an electronic scale in the
closet, three feet from the package of marijuana. The presence
of scales, of any variety, found in close proximity to drugs, is
evidence of the intent to distribute. See Davis v.
Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991)
(recognizing that a set of handscales located fifteen feet from
the drugs was packaging paraphernalia that constituted
circumstantial evidence of intent to distribute).
For the reasons stated in this opinion, we affirm Dykes'
conviction.
Affirmed.
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