Terry Lee Jackson v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
TERRY LEE JACKSON
MEMORANDUM OPINION * BY
v. Record No. 2052-01-3 JUDGE LARRY G. ELDER
MARCH 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
Paul Matthew Tancredi, Third Year Law Student
(David E. Wright, Assistant Public Defender;
Office of the Public Defender, on brief), for
appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Terry Lee Jackson (appellant) appeals from his bench trial
conviction for possessing cocaine. On appeal, he contends the
evidence was insufficient to prove he constructively possessed
the cocaine found in a jacket inside a car occupied by him and
two others. We hold evidence that the jacket was appellant's
was sufficient to prove he constructively possessed the cocaine,
and we affirm his conviction.
When considering the sufficiency of the evidence on appeal
of a criminal conviction, we view the evidence in the light most
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
favorable to the Commonwealth, granting to the evidence all
reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Possession of drugs supporting a conviction may be
constructive rather than actual. Josephs v. Commonwealth, 10
Va. App. 87, 99, 390 S.E.2d 491, 497-98 (1990) (en banc).
Constructive possession may be proved by "evidence of acts,
statements, or conduct of the accused or other facts or
circumstances which tend to show that the [accused] was aware of
both the presence and character of the substance and that it was
subject to his dominion and control." Drew v. Commonwealth, 230
Va. 471, 473, 338 S.E.2d 844, 845 (1986). Neither close
proximity to illegal drugs nor occupancy of an automobile in
which they are found, standing alone, amounts to "possession" of
such drugs under Code § 18.2-250; however, both are factors that
may be considered in determining whether possession occurred in
a particular case. See Castaneda v. Commonwealth, 7 Va. App.
574, 583-84, 376 S.E.2d 82, 87 (1989) (en banc). Such
circumstantial evidence is sufficient to prove possession as
long as it excludes all reasonable hypotheses of innocence
flowing from the evidence. See, e.g., Hamilton v. Commonwealth,
16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Here, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the
Commonwealth, is that appellant constructively possessed the
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cocaine found in the pocket of the jacket. A reliable
confidential informant reported to Investigator Lloyd that "a
black male with his hair standing straight up on his head
wearing a black jacket was in possession of cocaine in a white
vehicle with [the] Virginia personalized tag of HOOTID . . . in
the area of Fort Avenue." Although the information Lloyd
received from the informant was hearsay, appellant did not
object to the admission of that information based on hearsay or
any other ground. In fact, his attorney specifically mentioned
in argument to the court that although "[he] would submit that
[evidence] is hearsay, . . . [he] did not make that objection."
Thus, the trial court was entitled to consider the tip, received
from an informant Investigator Lloyd testified had proven to be
reliable, in determining whether the circumstantial evidence was
sufficient to prove appellant constructively possessed the
cocaine. See, e.g., Stevens v. Mirakian, 177 Va. 123, 131, 12
S.E.2d 780, 783 (1941) (holding "hearsay testimony admitted
without objection may properly be considered and given its
natural probative effect" by the finder of fact), cited with
approval in Baughan v. Commonwealth, 206 Va. 28, 31, 141 S.E.2d
750, 753 (1965).
After receiving the informant's call, Investigator Lloyd
immediately pursued the tip. Less than twenty minutes later in
the area of Fort Avenue, Lloyd spotted the vehicle bearing the
license plate described by the informant, and he stopped it to
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investigate the tip further. Inside that vehicle, Lloyd
discovered three men, but only one of them, appellant, matched
the description given by the informant. When Lloyd effected the
stop, appellant was not wearing a jacket. However, once
appellant and the other occupants had exited the car,
Investigator Lloyd discovered in the front passenger seat of the
vehicle precisely where appellant had been sitting a black
jacket which contained cocaine. Lloyd had carefully observed
the occupants of the vehicle from the time he effected the stop
until he was able to examine the vehicle's contents, and he saw
no gestures or other movements tending to indicate that someone
other than appellant placed the jacket or the cocaine in the
place where Investigator Lloyd found them. In addition, the
driver and backseat passenger both disclaimed ownership of the
jacket. Thus, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the
Commonwealth, was that the jacket belonged to appellant; that
appellant was aware of the presence and character of the cocaine
in the jacket's pocket; and that the cocaine was subject to
appellant's dominion and control. Thus, the evidence supported
the trial court's finding that appellant constructively
possessed the cocaine.
For these reasons, we hold the evidence was sufficient to
support appellant's conviction, and we affirm.
Affirmed.
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