Constance Levon Muwwakyl, s/k/a Constance L. Davis v. Commonwealth of Virginia ( 2009 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Powell and Senior Judge Coleman
    Argued at Richmond, Virginia
    CONSTANCE LEVON MUWWAKYL, S/K/A
    CONSTANCE L. DAVIS
    MEMORANDUM OPINION * BY
    v.     Record No. 0389-08-2                                     JUDGE CLEO E. POWELL
    MAY 26, 2009
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    Richard D. Taylor, Jr., Judge
    Taylor B. Stone (Bremner, Janus & Stone, on brief), for appellant.
    Erin M. Kulpa, Assistant Attorney General (Robert F. McDonnell,
    Attorney General, on brief), for appellee.
    Constance Levon Muwwakyl (appellant) appeals from her bench trial conviction for
    possessing cocaine. 1 On appeal, she contends the trial court erred in finding the evidence
    sufficient to prove that she possessed the drugs found in her bedroom. We hold the trial court
    did not err and affirm appellant’s conviction.
    I. BACKGROUND
    On February 14, 2008, police officers from the City of Richmond executed a search
    warrant based on information related to narcotics distribution at 3114 Woodrow Avenue.
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    Appellant was indicted for possession of cocaine with the intent to distribute, in
    violation of Code § 18.2-248. The trial court sustained her motion to strike as to intent to
    distribute and announced from the bench that it was convicting her of possession, which is a
    violation of Code § 18.2-250. The conviction and sentencing orders, however, indicate that
    appellant was convicted of “possession of cocaine” in violation of “Code § 18.2-248.” As the
    record reveals that the trial court intended to convict appellant of possession of cocaine, we will
    address the sufficiency of the evidence to support that conviction.
    Detective Paul Black knocked on the front door of the residence, and appellant answered the
    door. Detective Black identified himself as a member of the Richmond Police Department and
    asked appellant if he could speak with her. Appellant tried to slam the door, but officers forcibly
    entered the house and showed appellant the search warrant.
    Once officers were inside the home, appellant “became very agitated, belligerent, [and
    began] yelling.” Detective Black and another individual restrained and handcuffed appellant.
    The police checked the house and detained twelve people, including appellant and an elderly
    man that she cared for who was in bed on the second floor of the home. Detective Black
    believed that only appellant and the elderly man lived in the residence.
    When police entered the basement bedroom shortly after entering the house, police
    encountered three people sitting in chairs approximately one foot from appellant’s bed, but
    appellant was not one of them. The officer who searched these individuals did not find anything
    illegal in any of their possessions. During the subsequent search of the basement bedroom,
    police recovered a box for a digital scale, a razor blade with white residue on it from the
    nightstand, and a couple of black smoking devices commonly referred to as “crack pipes” from
    on top of the bed. Police also found a bullet on the nightstand next to the bed. Two “baggies”
    containing an off-white substance were found underneath clothing on the bed. The crack cocaine
    was broken into several pieces and packaged in corners of plastic bags contained within two
    large bags. Laboratory analysis later revealed that these “baggies” contained fourteen rocks of
    crack cocaine. Officers removed a cap on a bedpost and found another bag of a substance they
    believed to be crack cocaine. The larger rock found inside the bedpost weighed 2.9 grams. In
    this same bedroom, officers found female clothing as well as credit cards, bank cards, and a
    social security card in appellant’s name on the nightstand next to the bed.
    -2-
    After officers found substances they believed to be crack cocaine, Detective Black read
    appellant her Miranda rights and questioned her. She told him that she used crack cocaine but
    did not sell it. When asked if she had “brokered any deals[,]” appellant told Detective Black that
    she “sometimes get [sic] it from someone to give it to someone else.” Appellant denied owning
    a gun. She also told Detective Black that she was unemployed and paid her bills with money she
    received from her church.
    The trial court found that the basement was appellant’s bedroom and that she knew
    people were down there. The trial court did not believe that the other people in the basement
    stashed the drugs in appellant’s bedpost. Moreover, the trial court concluded that she “knew of
    the presence of those drugs, that she had an opportunity to possess and control those drugs.” The
    court found that appellant’s behavior as she attempted to close the door on police revealed her
    knowledge. The trial court then found her guilty of possession of cocaine.
    II. ANALYSIS
    “[U]pon appellate review, the evidence and all inferences flowing therefrom must be
    viewed in the light most favorable to the prevailing party in the trial court.” Commonwealth v.
    Hudson, 
    265 Va. 505
    , 514, 
    578 S.E.2d 781
    , 786 (2003). This Court will reverse a judgment of
    the trial court that is plainly wrong or without evidence to support it. Jay v. Commonwealth, 
    275 Va. 510
    , 524, 
    659 S.E.2d 311
    , 319 (2008) (citing Hedrick v. Commonwealth, 
    257 Va. 328
    , 340,
    
    513 S.E.2d 634
    , 641 (1999)).
    To support a conviction based on constructive possession [of
    drugs], “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.”
    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)); see Garland v. Commonwealth,
    -3-
    
    225 Va. 182
    , 184, 
    300 S.E.2d 783
    , 784 (1983). “Suspicious circumstances, including proximity
    to a controlled drug, are insufficient to support a conviction.” Behrens v. Commonwealth, 
    3 Va. App. 131
    , 135, 
    348 S.E.2d 430
    , 432 (1986).
    Viewed in the light most favorable to the Commonwealth, the evidence proved that the
    appellant owned and occupied the home that had been the subject of police surveillance as part
    of a narcotics investigation. When police executed a search warrant at the home, appellant tried
    to slam the door to thwart the officers’ entry. The subsequent search of appellant’s home
    revealed a razor blade with white residue on it in plain view on the nightstand in appellant’s
    basement bedroom. Police also recovered credit cards, bank cards, and a social security card in
    appellant’s name from on top of the nightstand. On her bed, police also found two crack pipes
    and fourteen crack rocks underneath female clothing. When officers removed the cap to one of
    the bedposts on appellant’s bed, police found a large rock of cocaine weighing 2.9 grams.
    Here, the evidence clearly proved that the basement bedroom belonged to appellant. The
    proximity of the illegal drugs to her credit cards, bank cards, social security card, clothing, and
    bed coupled with her efforts to prevent police from entering her home are sufficient “‘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 [her] dominion and control.’” 
    Drew, 230 Va. at 473
    , 338 S.E.2d at 845 (quoting
    
    Powers, 227 Va. at 476
    , 316 S.E.2d at 740).
    III. CONCLUSION
    The evidence in this case was sufficient to prove that appellant possessed the cocaine
    found in her bedroom and, therefore, we affirm her conviction for possession of cocaine.
    Affirmed.
    -4-