Melvin K. Acors v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Overton
MELVIN K. ACORS
v. Record No. 0538-95-2 MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA APRIL 16, 1996
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
William H. Ledbetter, Jr., Judge
(Michael J. George, on brief), for appellant.
Appellant submitting on brief.
(James S. Gilmore, III, Attorney General;
Eugene Murphy, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Melvin K. Acors appeals his conviction for possession of
cocaine on the ground that the evidence is insufficient to
sustain the conviction. We hold that the evidence is sufficient
to prove that the defendant possessed the cocaine found by the
police and affirm his conviction.
The dispositive issue in this case is whether the
circumstantial evidence proves beyond a reasonable doubt that the
item which the defendant was seen to have thrown away when
confronted by police officers was cocaine found in the vicinity
where the item was thrown.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. FACTS
Officer Doug Perkins of the Fredericksburg Police
Department, along with several other officers, went to a home in
Fredericksburg to execute a search warrant. When Perkins
approached the house from the rear along a dark alleyway, he
heard voices coming from the street. He saw the defendant and
another man coming down the alleyway "from the front of the
house." Perkins called out "Police . . . [g]et on the [g]round,"
and turned his flashlight on the men when they were approximately
ten to fifteen feet away. At that point, the defendant reached
into his pocket, removed "a dull white object" that was "[a]bout
the size of a small ball," and threw it into an adjoining yard
over a chain link fence and shrubs. Perkins testified that
although he did not "see [the object] land because the shrubs
were in the way, he "could estimate where [the object] landed."
He testified that the defendant "made a second throwing motion in
the same manner, but [that he] couldn't see anything leave his
hand" that time.
After securing the two men, Perkins assisted the other
officers in "raid[ing] the house," which took about "three to
five minutes." After executing the search warrant, Perkins told
Detective Brent Taylor that he had "observed the [defendant]
throw something over the fence." Perkins and Taylor went to the
"adjoining yard" and Perkins "showed Detective Taylor where [he]
felt this item that was thrown across the fence should be." They
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"[w]alked right to . . . a baggie containing suspected crack
cocaine." According to Perkins, the "yard was fairly well
groomed and mowed," and they did not see or find any other white
objects on the ground. Perkins testified that he had never
before been in the yard. After finding the baggie, Perkins
returned to the alleyway and identified the defendant as the
person he had seen who threw the object over the fence.
On cross-examination, Perkins testified that the area was
known for drug activity. He also testified that the defendant
was not named or mentioned in the search warrant, that he had
primarily focused his attention on the defendant, and that he did
not shine his flashlight on the second individual.
II. ANALYSIS
In Collins v. Commonwealth, 13 Va. App. 177, 409 S.E.2d 175(1991), the police officer drove his patrol car into a dimly lit
parking lot and stopped approximately thirty feet behind Collins,
who was sitting in a parked vehicle. Id. at 178, 409 S.E.2d at
175. When Collins exited the vehicle, the officer saw him make
"a throwing motion under the vehicle with his right arm." The
officer immediately "approached [the vehicle] and illuminated the
area underneath the vehicle with his flashlight." A second
officer "retrieved from underneath the vehicle a plastic baggie
containing fourteen smaller baggies of a white substance." Id.
On these facts, we held that the evidence was sufficient to prove
that the cocaine recovered from underneath the vehicle had been
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cocaine that the defendant possessed and threw under the vehicle.
See also Beverly v. Commonwealth, 12 Va. App. 160, 165, 403
S.E.2d 175, 177-78 (1991) (holding that the evidence was
sufficient to sustain a conviction for possession of cocaine
where "the police found a package containing almost two grams of
cocaine at the place where appellant had dropped an object" just
a short time earlier).
Here, Officer Perkins had his flashlight trained on the
defendant from a distance of approximately ten to fifteen feet.
He saw the defendant throw a dull white object into an adjoining
yard and over a chain link fence and shrubs. Unlike the officer
in Collins, Officer Perkins saw the object leave the defendant's
hand. He was unequivocal in his testimony that the defendant
made a throwing motion. See Collins, 13 Va. App. at 180, 409
S.E.2d at 176 (Benton, J., dissenting). A few minutes after
Perkins saw the defendant throw the object, Perkins and Detective
Taylor found a plastic baggie containing a white substance or
"chunk" in the area of the adjoining yard where Perkins estimated
that the object the defendant threw had landed. The substance
was determined to be crack cocaine.
The evidence here, viewed in the light most favorable to the
Commonwealth and granting to it "all reasonable inferences [that
may be] drawn therefrom," creates more than "a mere suspicion"
that the crack cocaine found in the adjoining yard by Officers
Perkins and Taylor was the same item that the defendant was seen
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to have possessed and thrown into the adjoining yard. Garland v.
Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784-85 (1983);
see also Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d
735, 737 (1971) ("Numerous decisions have affirmed convictions
for possession of narcotic drugs resting on proof that a
defendant was observed dropping or throwing away an identifiable
object which, when subsequently recovered, was found to contain
narcotics."). The object found in the adjoining yard had the
same physical appearance as the item the defendant was seen to
have thrown, the officers observed no other objects in the
vicinity, no other persons were observed in the area, it was a
relatively private area rather than a public thoroughfare, and
very little time lapsed between when the defendant was seen
throwing an object and when the cocaine was retrieved. See
Johnson v. Commonwealth, 12 Va. App. 150, 153, 402 S.E.2d 502,
504 (1991) (stating that "the drugs were found in a relatively
private area" in affirming a conviction for possession of cocaine
with intent to distribute). These facts identify unerringly that
the item that the defendant threw across the fence when
confronted by the police officers was the crack cocaine that was
later retrieved. Accordingly, the evidence is sufficient to
support the defendant's conviction.
Affirmed.
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BENTON, J., dissenting.
"[W]here, as here, a conviction is based on circumstantial
evidence, 'all necessary circumstances proved must be consistent
with guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.'" Garland v. Commonwealth,
225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).
Because the evidence in this case fails to satisfy this standard,
I would reverse the conviction.
The evidence proved that a police "SWAT" team was
approaching a house in a "high drug area" at 11:30 p.m. to
conduct a search for drugs. Because many people were standing
near the front of the house, one group of officers approached the
house from the rear through a dark alley. Officer Perkins saw
Melvin Acors walking fast in the alley in a direction away from
the street where the house was located. Another man was walking
a few feet behind Acors. Officer Perkins testified that after he
verbally confronted the two men, he noticed Acors throw a small
object over a hedge in the backyard of the house adjacent to the
house that was to be searched. He also observed Acors make a
second throwing motion. The other man turned as if to retreat.
Officer Perkins could not see whether the man who turned to
retreat threw anything. He ordered both men to the ground.
Officer Perkins said the item Acors threw cleared a large
hedge; however, he could not see where the object landed. After
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Acors and the other man were prone on the ground, Officer Perkins
left them in the custody of another officer. Officer Perkins
continued to the house, entered it, and assisted other officers
in securing the house for the search.
While Officer Perkins was in the house, Officer Taylor
learned from an unidentified officer that "someone threw
something" into the backyard of the adjacent house. Officer
Taylor went into the backyard and looked beneath and around the
bushes across from Acors but did not find any object. Officer
Taylor then went into the house that was being searched and saw
Officer Perkins. Officer Perkins, who had been in the house five
minutes, accompanied Officer Taylor through the front gate of the
yard where Officer Taylor had searched. Officer Perkins
"estimated approximately where [the men stopped in the alleyway]
and walked right to the object." Because of the height of the
hedges and the darkness, Officer Perkins could not see Acors and
the other man who were still prone on the ground. Officer
Perkins testified that the object he found in the backyard, a
small packet of cocaine, was "six to ten feet from the chain link
fence and the shrubs."
This evidence creates a mere suspicion that the object
Officer Perkins found in the backyard of the house was thrown by
Acors. "Suspicion, however, no matter how strong, is
insufficient to sustain a criminal conviction." Stover v.
Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981). The
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evidence fails to exclude the reasonable hypothesis that the
object, located in a yard across the alley from a house that was
raided for drugs, was not placed there by some other person for
quick retrieval. Indeed, the evidence proved that this was a
"high drug area" and that many people were loitering on the
street in front of the house that was raided. Furthermore, the
evidence does not exclude the possibility that when the man
walking behind Acors turned to retreat, he tossed the object that
Officer Perkins recovered.
The evidence did not prove that Acors threw an "identifiable
object" and that the same object was recovered. See Gordon v.
Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971).
Merely identifying the recovered object as "the 'same color, size
and shape'" as the object Officer Perkins believed Acors
possessed raises only a suspicion or probability of guilt. Id.
at 298, 183 S.E.2d at 736. "There must be an unbroken chain of
circumstances 'proving the guilt of [Acors] to the "exclusion of
any other rational hypothesis and to a moral certainty."'" Id.
at 300, 183 S.E.2d at 737 (quoting Brown v. Commonwealth, 211 Va.
252, 255, 176 S.E.2d 813, 815 (1970)). Officer Perkins' belief
that he recovered the same object thrown by Acors was
speculation. He did not see the object after it passed beyond
the hedges and fell in the dark. Thus, I would hold that the
evidence was insufficient to prove beyond a reasonable doubt that
Acors possessed the cocaine that was found in the yard.
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