Reginald Slade v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
REGINALD SLADE
MEMORANDUM OPINION * BY
v. Record No. 0122-98-1 JUDGE NELSON T. OVERTON
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Darell Sayer (Ferrell, Backus, Sayer, Nicolo
& Mobley, P.C., on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Reginald Slade (appellant) appeals his conviction for
possession of cocaine in violation of Code § 18.2-250. On
appeal, appellant argues that the trial court erred by failing
to grant his motion to suppress the evidence. He also argues
that the evidence was insufficient to prove that he possessed
cocaine. Finding no error, we affirm the conviction.
FACTS
Because we find that appellant’s motion to suppress the
evidence was untimely made and was procedurally barred, we
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
recite only the facts as related to the sufficiency of the
evidence.
On March 17, 1997, officers of the Newport News Police
Department executed a search warrant at a residence located on
28th Street in Newport News. The search warrant authorized a
search for evidence of selling and/or using narcotics at a
residence. When the police entered the residence, they saw
between ten and twenty people inside the residence. The police
found appellant and a woman lying on a bed in a small bedroom
located at the top of the stairs. The police also found a
marble slab, a razor blade containing cocaine residue, and a
silver knife containing cocaine residue in plain view on a
dresser located a few feet from the bed on which appellant was
lying when the police entered the bedroom. The officers
recovered scales containing cocaine residue from the dresser
drawer. The door to the bedroom was closed when the officers
entered.
Officer Best testified that one could see the top of the
dresser while lying on the bed. Appellant told the police that
he had lived in the room for the past four months. The officers
also recovered cocaine from a purse belonging to the woman who
was in the room with appellant.
After the Commonwealth had presented its case-in-chief, and
when the Commonwealth moved to admit into evidence the
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certificates of analysis, appellant moved to dismiss the charge
on the ground that the police made an "unlawful," "no-knock"
entry into the residence in violation of appellant’s Fourth
Amendment rights. Appellant moved to suppress the evidence
obtained by the police during their search of the residence. He
also moved to strike the evidence. The trial court denied both
motions.
ANALYSIS
I. Motion to Suppress
Defense motions or objections seeking
(i) suppression of evidence on the grounds
such evidence was obtained in violation of
the provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United
States or Article I, Section 8, 10 or 11 of
the Constitution of Virginia proscribing
illegal searches and seizures and protecting
rights against self-incrimination . . .
shall be raised by motion or objection, in
writing, before trial. The motions or
objections shall be filed and notice given
to opposing counsel not later than seven
days before trial. A hearing on all such
motions or objections shall be held not
later than three days prior to trial, unless
such period is waived by the accused, as set
by the trial judge. The court may, however,
for good cause shown and in the interest of
justice, permit the motions or objections to
be raised at a later time.
Code § 19.2-266.2.
Appellant did not file a written motion to suppress before
the trial, and he moved to suppress the evidence only after the
Commonwealth had presented its case-in-chief. Therefore,
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appellant's motion was untimely. See id. Appellant also failed
to show good cause for his failure to file a written motion or
why the "ends of justice" required the trial court to consider
the motion. Accordingly, the trial court did not err in denying
the motion.
II. Sufficiency of the Evidence
"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)
(citation omitted).
Possession may be actual or constructive.
Constructive possession may be established
by "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
the character of the substance and that it
was subject to his dominion and control."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citation omitted). "Circumstantial
evidence of possession is sufficient to support a conviction
provided it excludes every reasonable hypothesis of innocence."
Spivey v. Commonwealth, 23 Va. App. 715, 724, 479 S.E.2d 543,
548 (1997).
Although mere proximity to drugs is
insufficient to establish possession, it is
a circumstance which may be probative in
determining whether an accused possessed
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such drugs. Ownership or occupancy of the
premises is likewise a circumstance
probative of possession. Thus, in resolving
this issue, the Court must consider "the
totality of the circumstances disclosed by
the evidence."
Id. at 725, 479 S.E.2d at 548 (citations omitted).
From the evidence presented, the fact finder could infer
beyond a reasonable doubt that appellant was aware of the
presence and character of the cocaine and that it was subject to
his dominion and control. See id. at 724, 479 S.E.2d at 548.
Although there were other people present in the residence at the
time the officers executed the search warrant, only appellant
and one woman were in the small bedroom where the police found
the cocaine residue. In addition, possession need not be
exclusive and may be shared. See Josephs v. Commonwealth, 10
Va. App. 87, 99, 390 S.E.2d 491, 497 (1990).
Further, appellant admitted to the police that he had been
living for four months in the room in which the drugs were
found. Moreover, the police found the cocaine and drug
paraphernalia in plain view on the top of a dresser located a
few feet from the bed on which appellant was lying. Therefore,
"[t]he only reasonable hypothesis arising from such evidence is
that [appellant] constructively possessed the cocaine . . .
found . . . in plain view . . . [and was] aware of the nature
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and character of the drugs." Spivey, 23 Va. App. at 725, 479
S.E.2d at 548.
For the foregoing reasons, we affirm the conviction.
Affirmed.
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