Kenneth James Hunter v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
KENNETH JAMES HUNTER
MEMORANDUM OPINION * BY
v. Record No. 1483-01-3 JUDGE ROBERT P. FRANK
OCTOBER 1, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
Jesse W. Meadows III, for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Kenneth James Hunter (appellant) was convicted in a bench
trial of possession of cocaine, in violation of Code § 18.2-250.
On appeal, he contends the trial court erred in finding the
evidence was sufficient to convict him. More particularly, he
maintains the evidence did not show he exercised dominion and
control over the cocaine. Appellant further contends, since he is
not guilty of this offense, the trial court erred in revoking a
previously suspended sentence, based on the present conviction.
For the reasons stated, we affirm the conviction and revocation.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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)).
In his brief, appellant concedes the evidence was sufficient
to show he was aware of the presence and character of the cocaine.
Our sufficiency analysis, therefore, is limited to whether the
evidence proved the cocaine was subject to appellant's dominion
and control.
To convict a person of possession of illegal
drugs "the Commonwealth must prove that the
defendant was aware of the presence and
character of the drugs and that he
intentionally and consciously possessed
them." Andrews v. Commonwealth, 216 Va.
179, 182, 217 S.E.2d 812, 814 (1975).
Possession may be actual or constructive.
Peterson v. Commonwealth, 5 Va. App. 389,
402, 363 S.E.2d 440, 448 (1987).
Constructive possession exists when "an
accused has dominion or control over the
drugs." Andrews, 216 Va. at 182, 217 S.E.2d
at 814. Such "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.'" Id. (citations omitted).
Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d 82,
86 (1989) (en banc).
"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, '"all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Burchette v. Commonwealth, 15 Va. App. 432, 434,
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425 S.E.2d 81, 83 (1992) (quoting Garland v. Commonwealth, 225
Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982))).
However, "the 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 a
hypothesis of innocence is reasonable is a
question of fact, Cantrell v. Commonwealth,
7 Va. App. 269, 290, 373 S.E.2d 328, 339
(1988), and a finding by the trial court is
binding on appeal unless plainly wrong,
Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987).
Glasco v. Commonwealth, 26 Va. App. 763, 773-74, 497 S.E.2d 150,
155 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The trier of fact is not required to accept a
party's evidence in its entirety, Barrett v. Commonwealth, 231
Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe
or disbelieve in part or in whole the testimony of any witness,
Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,
830 (1991). "The trial court was entitled to disbelieve
[appellant's] explanation and conclude he lied to conceal his
guilt." Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512
S.E.2d 823, 827 (1999).
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We agree with appellant that proximity alone is not
sufficient to prove possession. However, proximity "is a
circumstance which may be probative in determining whether an
accused possessed such drugs. Ownership or occupancy of the
[location] in which drugs are found is likewise a circumstance
probative of possession." Glasco, 26 Va. App. at 774, 497
S.E.2d at 155 (citations omitted). To determine possession, the
court considers the totality of the circumstances. White v.
Commonwealth, 24 Va. App. 446, 454, 482 S.E.2d 876, 879-80
(1997).
The record belies appellant's argument that the only
evidence suggesting the cocaine was under his dominion and
control was his proximity to the drug. The police found
appellant in a closet in the spare room of an apartment leased
by his girlfriend, Tabitha Dawson. 1 They found a book bag
approximately three inches from his feet and cocaine on the
shelf no more than two feet from his head. The book bag
contained two handguns, a box of ammunition, several pairs of
latex gloves, a pair of black nylon stockings that were cut in
two, a roll of duct tape, and scales commonly used to weigh small
amounts of marijuana. Digital scales and more cocaine were found
in the other bedroom where Quentin Haskins was apprehended. Other
1
Appellant and Dawson were married prior to the trial.
Dawson testified as a defense witness.
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small baggies of cocaine and $100 in cash were found in the
kitchen. Appellant had $531 in cash and three baggies of
marijuana on his person.
The fact that the evidence proved Haskins likely possessed
the same cocaine that was found in the closet does not preclude
appellant from also possessing the drug. The possession of
drugs need not be exclusive, but may be shared with another.
Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863-64
(1983); Gillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d
768, 771 (1974). The trial court, sitting as the fact finder,
found appellant jointly possessed the drugs with Haskins.
Further, the trial court could conclude appellant occupied
the premises, given his characterization of the apartment as
"our apartment." Some of his personal property was also in the
room where police found appellant. Also, appellant had $531 on
his person. See White, 24 Va. App. at 453, 482 S.E.2d at 879
(possession of a significant sum of cash supports a finding of
possession).
Given the testimony, the fact finder could properly infer
appellant and Haskins, jointly, sold drugs at a hotel.
Appellant told the police that he knew Haskin had cocaine when
they drove to the hotel, and he saw Haskins sell drugs to "an
unknown white male." Upon completion of the transaction, they
returned to the apartment together. Haskins handled the drugs,
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and the trial court could conclude appellant maintained the cash
proceeds of the sale.
The trial court could infer further that, when the police
arrived, both appellant and Haskins attempted to hide and to
protect the drugs from seizure by the police. They jointly
controlled the drugs to avoid detection and seizure.
While appellant and Dawson testified the $531 in his pocket
was her salary, the trial court was free to, and did, disbelieve
that testimony. The trial court could also consider appellant's
conflicting accounts, given to the police and in court. He told
the police officer that Haskins threw the book bag and the
cocaine into the closet, then he testified at trial that he did
not see Haskins put anything in the closet. Appellant's prior
felony convictions and his misdemeanor conviction for stealing
also affected his credibility as a witness. Newton v.
Commonwealth, 29 Va. App. 433, 449, 512 S.E.2d 846, 853 (1999).
"If there is evidence to support the conviction," we will
not substitute our judgment for that of the trier of fact, even
were our opinion to differ. Commonwealth v. Presley, 256 Va.
465, 466, 507 S.E.2d 72, 72 (1998). The totality of the
circumstances here is sufficient to support the trial court's
finding that appellant exercised dominion and control over the
cocaine to constitute joint constructive possession.
Appellant also contends the trial court erred in finding he
violated the terms of a previously suspended sentence. However,
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a trial court has broad discretion to revoke a suspended
sentence, based on Code § 19.2-306, which allows a court to do
so "for any cause deemed by it sufficient." See also Hamilton
v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976).
The court's revocation will not be reversed unless an abuse of
discretion is clearly shown. Id. at 327, 228 S.E.2d at 556;
Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687
(1991).
Appellant argues on appeal that the revocation was without
cause because the evidence was not sufficient to prove he
possessed cocaine. 2 As we have determined the evidence was
sufficient, his argument fails. We find the trial court did not
abuse its discretion in finding appellant violated the terms of
the suspended sentence.
For the reasons stated above, we affirm both the conviction
for possession of cocaine and the revocation of appellant's
previously suspended sentence.
Affirmed.
2
The Commonwealth, in the probation violation hearing, did
not rely solely on the possession of cocaine charge. The
Commonwealth also relied upon evidence that appellant had
attempted to escape from custody and had not cooperated with his
probation officer.
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