DEION COLLINS V COMMONWEALTH OF VIRGINIA ( 2002 )

THE COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
DEION COLLINS
MEMORANDUM OPINION * BY
v. Record No. 1920-01-1 JUDGE ROBERT J. HUMPHREYS
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Charles E. Sizemore, Jr. (Charles E.
Sizemore, Jr., P.C., on brief), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Deion Collins appeals his conviction, after a bench trial,
for possession of more than one ounce, but less than five pounds,
of marijuana with intent to distribute, in violation of Code
§ 18.2-248.1. Collins contends the evidence presented was
insufficient to establish, as a matter of law, that he was aware
of both the presence and the character of the subject marijuana,
that it was subject to his dominion and control, and that he
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
intended to distribute it. For the reasons that follow, we affirm
his conviction.
To support a conviction based upon
constructive possession, "the Commonwealth
must point to 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
character of the substance and that it was
subject to his dominion and control." 1
"'Possession' of a drug does not have to be exclusive, but
may be joint." 2 Moreover, "[w]hile mere proximity to contraband
is insufficient to establish possession, and an accused's
occupancy of the premises does not give rise to a presumption of
possession, these factors are circumstances to be considered by
the jury with other evidence in determining whether a defendant
constructively possessed drugs." 3
Finally, "[b]ecause direct proof of intent is often
impossible, it must be shown by circumstantial evidence." 4 "In
proving intent, various types of circumstantial evidence may be
appropriate — evidence concerning the quantity of drugs and cash
1
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844,
845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 740 (1984)).
2
Italiano v. Commonwealth, 214 Va. 334, 335-36, 200 S.E.2d
526, 528 (1973).
3
Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 36
(1982) (citations omitted).
4
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d
156, 165 (1988).
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possessed, the method of packaging, . . . whether appellant
himself used drugs," 5 and the absence of evidence suggestive of
personal use. See Colbert v. Commonwealth, 219 Va. 1, 4, 244
S.E.2d 748, 749 (1978). 6
Thus, although there is no presumption of knowledge or
intentional possession of the marijuana from Collins' mere
occupancy of the apartment, 7 his occupancy of the premises is a
factor to be considered with other evidence in determining whether
he had constructive possession of the drugs. 8 Indeed, although he
told police he had only been in the apartment for a few minutes,
Collins himself testified that he had been in the apartment for
thirty to forty minutes, just before police executed the search.
Further, the evidence proved that police had been watching the
apartment for 48 hours prior to the search and had not seen
Collins enter or leave the apartment. Thus, a reasonable
inference would be that Collins had actually been in the apartment
for the entire 48-hour period prior to the search. It would also
be reasonable for the trial court to have inferred that Collins
5
Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432
S.E.2d 527, 530 (1993).
6
Spivey v. Commonwealth, 23 Va. App. 715, 725-26, 479
S.E.2d 543, 548 (1997), overruled on other gounds by Henry v.
Commonwealth, 32 Va. App. 547, 529 S.E.2d 796 (2000).
7
Code § 18.2-250.1.
8
Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768,
770-71 (1974).
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was thus present in the apartment during the Norfolk police
controlled drug buy, which had taken place within that 48-hour
period.
In addition, Collins was found in a hallway, connecting to
the living room and the kitchen, in plain view of those rooms, in
which substantial quantities of packaged marijuana and firearms
were visible. Finally, Collins also had on his person $142, which
included "buy money" provided by the Norfolk police department for
undercover drug purchases. Therefore, the trial court could
reasonably conclude from the totality of the circumstances that
Collins was aware of the contents of the rooms and was in a
position where he could exercise dominion and control over the
marijuana. 9
In addition to the above, the fact that no contraband was
found on Collins' person, the quantity of the controlled substance
found in the apartment, the manner in which it was packaged, the
presence of firearms, as well as Collins' possession of $142, and
the length of time he appeared to have been in the apartment, was
sufficient to show an intent to distribute.10 Therefore, we hold
9
See Eckhart v. Commonwealth, 222 Va. 447, 451, 281 S.E.2d
853, 855-56 (1981).
10
See Dutton v. Commonwealth, 220 Va. 762, 764-65, 263
S.E.2d 52, 54 (1980); Colbert, 219 Va. at 4, 244 S.E.2d at 749;
Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780
(1973); Glasco v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d
150, 156 (1998).
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that the evidence was sufficient to support Collins' conviction
for possessing marijuana with the intent to distribute it, and we
affirm the judgment of the trial court.
Affirmed.
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