George Anthony Patterson v. Commonwealth ( 2006 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Felton, Judges Elder and Beales
    Argued by teleconference
    GEORGE ANTHONY PATTERSON
    MEMORANDUM OPINION* BY
    v.     Record No. 1567-05-2                                    JUDGE RANDOLPH A. BEALES
    AUGUST 8, 2006
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
    Frederick G. Rockwell, III, Judge
    Keith A. Jones (Law Office of Keith A. Jones, P.C., on brief), for
    appellant.
    Kathleen B. Martin, Assistant Attorney General (Robert F.
    McDonnell, Attorney General, on brief), for appellee.
    George Anthony Patterson (hereinafter “appellant”) appeals from his convictions by
    bench trial of possession of marijuana and possession of a firearm by a felon. In addition to
    challenging the sufficiency of the evidence, appellant argues the trial court erred in finding that a
    vehicle registration card was inadmissible hearsay. Assuming without deciding that the trial
    court erred in not admitting the registration card, we find such error harmless and affirm
    appellant’s convictions.
    I.
    “On appeal, we review the evidence in the light most favorable to the Commonwealth,
    granting to it all reasonable inferences fairly deducible therefrom.” Archer v. Commonwealth,
    
    26 Va. App. 1
    , 11, 
    492 S.E.2d 826
    , 831 (1997) (quoting Martin v. Commonwealth, 
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987)).
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    II.
    FACTS
    On June 3, 2004, a narcotics dog called in by Officer B.E. Davis gave a positive alert to
    appellant’s car, which was parked in a restaurant lot. Approximately thirty minutes after the dog
    alerted, Davis observed appellant exit the restaurant, open the driver’s door, and rummage
    through the front and back seats. Appellant got out of the car and opened the engine hood. As
    appellant began to look at the engine, Davis approached him and informed him of the dog’s
    response. Davis asked appellant if he owned the car, and appellant stated it was his car.
    Using the key, which appellant provided to him, Davis opened the car trunk and searched
    it. Inside he found a prescription bottle bearing appellant’s name, several pieces of mail
    addressed to appellant, and several photographs of appellant. He also discovered a bank receipt
    in appellant’s name. These items were scattered throughout the trunk, some of them on top of or
    touching a black and white Foot Locker bag that contained a pistol and two matching bullets.
    Another bag in the trunk held loose marijuana and a digital scale.
    At trial, appellant attempted to introduce a copy of the vehicle’s registration card to
    establish he was not the record owner of the vehicle. Appellant argued that the registration card
    fell within the public records exception to the hearsay rule. In sustaining the Commonwealth’s
    objection, the trial court held that the registration card was “not a public record. . . . D.M.V.
    records may be, but the registration found in a car is hearsay.”
    The trial court found appellant guilty of both possession of marijuana and possession of a
    firearm by a felon. This appeal followed.
    -2-
    III.
    ANALYSIS
    A.
    Appellant asserts the trial court erred in ruling that the registration card did not fall within
    the public records exception to the hearsay rule. We need not address the admissibility of the
    registration card because even if the trial court erred by failing to admit it, such error was
    harmless.1
    From the record before us, “we can say ‘with fair assurance, after pondering all that
    happened without stripping the [asserted] erroneous action from the whole’ that it plainly
    appears that [appellant] has had a fair trial and that the verdict and judgment were not
    substantially affected by . . . [the failure of the trial court to admit the registration card into
    evidence].” Clay v. Commonwealth, 
    262 Va. 253
    , 261, 
    546 S.E.2d 728
    , 732 (2001) (citation
    omitted). See also Code § 8.01-678.
    Here, the evidence showed not only that appellant possessed keys to the car, but that he
    opened the car door and checked under the hood before police approached him. Appellant was
    the sole occupant of the car and told police it belonged to him. In addition, several items in the
    trunk bore his name. Based upon this evidence, we conclude that admission of the registration
    card would not have “substantially influenced” the trial court’s determination that appellant
    possessed the contraband in the trunk. See Hardy v. Commonwealth, 
    17 Va. App. 677
    , 
    440 S.E.2d 434
     (1994) (appellant who was sole occupant of vehicle registered to brother-in-law
    1
    Appellant, it may be noted, failed to make the excluded registration card a part of the
    record on appeal. “An appellate court must dispose of the case upon the record and cannot base
    its decision upon appellant’s petition or brief, or statements of counsel in open court. We may
    act only upon facts contained in the record.” Smith v. Commonwealth, 
    16 Va. App. 630
    , 635,
    
    432 S.E.2d 2
    , 6 (1993) (quoting Riddick v. Commonwealth, 
    135 Va. 724
    , 726, 
    115 S.E. 523
    , 524
    (1923)).
    -3-
    properly found to be in possession of cocaine discovered in trunk). Accordingly, any error
    committed by the trial court in excluding the card was harmless.
    B.
    We also reject appellant’s claim that the evidence was insufficient to support his
    convictions for possession of a firearm and possession of marijuana.
    “Constructive ‘possession may be proved by evidence of acts, declarations or conduct of
    the accused from which the inference may be fairly drawn that he knew of the existence of
    narcotics at the place where they were found.’” Hardy, 17 Va. App. at 682, 
    440 S.E.2d at 437
     (quoting Andrews v. Commonwealth, 
    216 Va. 179
    , 182, 
    217 S.E.2d 812
    , 814 (1975)
    (additional citations omitted)). Moreover, the substance in question must be “‘subject to his
    dominion and control.’” Glasco v. Commonwealth, 
    26 Va. App. 763
    , 774, 
    497 S.E.2d 150
    , 155
    (1998) (quoting Powers v. Commonwealth, 
    227 Va. 474
    , 476, 
    316 S.E.2d 739
    , 740 (1984)). “In
    resolving this issue, the court must consider ‘the totality of the circumstances disclosed by the
    evidence.’” 
    Id.
     (quoting Womack v. Commonwealth, 
    220 Va. 5
    , 8, 
    255 S.E.2d 351
    , 353 (1979)).
    While “[o]ccupancy of a vehicle where [contraband is] found is insufficient, standing
    alone, to support an inference of possession, . . . it is a circumstance which the fact finder may
    consider along with other evidence when determining whether a person knowingly possessed
    drugs.” Hardy, 17 Va. App. at 682, 
    440 S.E.2d at 437
     (citations omitted). Moreover,
    “[a]lthough 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.” Glasco, 
    26 Va. App. at 774
    , 
    497 S.E.2d at 155
    . Finally, possession “need not always be exclusive. The
    defendant may share it with one or more.” Josephs v. Commonwealth, 
    10 Va. App. 87
    , 99, 
    390 S.E.2d 491
    , 497 (1990) (en banc) (quoting Gillis v. Commonwealth, 
    215 Va. 298
    , 301-02, 
    208 S.E.2d 768
    , 771 (1974)).
    -4-
    Appellant concedes that he had dominion and control over the vehicle, but contends that
    the evidence was insufficient because the Commonwealth presented no evidence to prove he had
    handled the contraband or had sole access to the car.
    Circumstantial evidence may establish the elements of a crime,
    provided it excludes every reasonable hypothesis of innocence.
    “The statement that circumstantial evidence must exclude every
    reasonable theory of innocence is simply another way of stating
    that the Commonwealth has the burden of proof beyond a
    reasonable doubt.” Commonwealth v. Hudson, 
    265 Va. 505
    , 513,
    
    578 S.E.2d 781
    , 785 (2003). This Court must determine not
    whether there is some evidence to support [appellant’s] hypothesis
    of innocence but, rather, whether a reasonable fact finder, upon
    consideration of all the evidence, could have rejected appellant’s
    theories and found him guilty beyond a reasonable doubt. Whether
    a hypothesis of innocence is reasonable is a question of fact.
    Corbin v. Commonwealth, 
    44 Va. App. 196
    , 202-03, 
    604 S.E.2d 111
    , 114 (2004) (citations
    omitted).
    Here, we cannot say that the fact finder’s rejection of appellant’s hypothesis of innocence
    was unreasonable. Examining the “totality of the circumstances,” the fact finder could
    reasonably conclude that appellant was aware of the marijuana and gun and that they were
    subject to his dominion and control. Davis saw appellant open the car, rummage through the
    interior compartment, and examine the engine, presumably for purposes of maintenance and
    repair. See Logan v. Commonwealth, 
    19 Va. App. 437
    , 444-45, 
    452 S.E.2d 364
    , 369 (1994)
    (defendant’s acknowledged responsibility for repair work a factor in determining car was subject
    to his dominion and control). When Davis approached appellant, he told Davis the car belonged
    to him and produced a set of keys. See Jetter v. Commonwealth, 
    17 Va. App. 745
    , 747, 
    440 S.E.2d 633
    , 634 (1994) (defendant’s possession of car keys to vehicle where drugs are found is
    “significant evidence” from which it can be inferred the drugs are “subject to his dominion and
    control”). The trunk contained photographs of appellant, as well as sundry items bearing his
    name, including a magazine placed directly on top of the Foot Locker bag containing the gun.
    -5-
    Such evidence, when viewed as a whole, was sufficient to establish beyond a reasonable doubt
    that appellant possessed the gun and marijuana.
    IV.
    For the foregoing reasons, we hold that, even if the trial court erred by excluding the
    vehicle registration card, such error was harmless, and the trial court had sufficient evidence
    upon which to base the convictions. The judgment of the trial court is, therefore, affirmed.
    Affirmed.
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