Elvin Robertson v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
ELVIN ROBERTSON
MEMORANDUM OPINION * BY
v. Record No. 1807-96-2 JUDGE RICHARD S. BRAY
JUNE 24, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
Theodore N. I. Tondrowski (Amy M. Curtis;
Bowen & Bowen, P.C., on brief), for
appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Elvin Robertson (defendant) was convicted in a bench trial
for possession of cocaine with intent to distribute in violation
of Code § 18.2-248. On appeal, defendant argues that the
Commonwealth failed to prove his knowledge of the presence and
character of the offending substance, a necessary element to the
1
crime. Finding no error, we affirm the conviction.
I.
In reviewing the sufficiency of the evidence, we examine the
record in the light most favorable to the Commonwealth, granting
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
We decline to address defendant's argument that the
evidence was insufficient to prove the necessary intent to
distribute. See Rule 5A:12(c) ("Only questions presented in the
petition for appeal will be noticed by the Court of Appeals.").
to it all reasonable inferences fairly deducible therefrom. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). The judgment of a trial court, sitting without a jury,
is entitled to the same weight as a jury verdict and will be
disturbed only if plainly wrong or without evidence to support
it. See id. The credibility of a witness, the weight accorded
the testimony, and the inferences to be drawn from proven facts
are matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
Viewed accordingly, the evidence establishes that police
investigator Jay Jordan, 2 acting on a detailed telephone tip from
a reliable confidential informant that defendant was in
possession of cocaine, 3 located and began following a vehicle,
driven by defendant but owned by another. When traffic
conditions momentarily separated Jordan from the car, he radioed
Chase City Police Officer Ben Williams to stop the vehicle.
Jordan arrived at the scene within minutes, and Williams then
approached defendant on the driver's side, requesting that he
produce his operator's license. Defendant answered that "he
didn't have [his driver's license] with him," but provided a
Social Security number which was sufficient for Williams to
initiate a Department of Motor Vehicles (DMV) inquiry.
2
Jordan was Chase City Chief of Police at the time of trial.
3
The contents of the tip were not considered substantive
evidence by the trial court.
- 2 -
Meanwhile, Jordan directed defendant to exit the car and
conducted a weapons pat-down of his person. Defendant declined
Jordan's request to search the vehicle. Jordan then advised
defendant of the informant's "complaint" against him and returned
to the open driver's door of the stopped vehicle. When Jordan
"looked down" at the floorboard from outside the open door, he
noticed "what appeared to be a plastic bag." As he "began to
kneel down to see what it was, [defendant] fled on foot." Based
upon a cursory examination of the bag, Jordan suspected that it
contained cocaine, "chase[d] [defendant] down" and arrested him
for possession of cocaine with intent to distribute.
Police discovered $242 on defendant's person during a search
incidental to his arrest, and further examination of the bag and
later analysis of its contents revealed thirty smaller baggies of
cocaine. The DMV inquiry disclosed that defendant had provided a
false Social Security number. The record is silent with respect
to the status of his operator's license.
II.
Under settled legal principles,
possession of a controlled substance may be
actual or constructive. "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.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
- 3 -
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)) (other citations omitted). Possession
"need not always be exclusive. The defendant may share it with
one or more." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc). Although mere proximity to
drugs is insufficient to establish possession, it is a
circumstance which may be probative in determining whether an
accused possessed such drugs. See Lane v. Commonwealth, 223 Va.
713, 716, 292 S.E.2d 358, 360 (1982); Brown v. Commonwealth, 15
Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (reh'g en banc).
Ownership or occupancy of the vehicle in which the drugs are
found is likewise a circumstance probative of possession. See
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (citing Code § 18.2-250). Thus, in resolving this issue,
the Court must consider "the totality of the circumstances
disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5,
8, 255 S.E.2d 351, 353 (1979).
Circumstantial evidence may establish possession, provided
it excludes every reasonable hypothesis of innocence. See, e.g.,
Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420
(1994). However, "[t]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993). Whether a hypothesis of innocence is reasonable is a
- 4 -
question of fact, see Cantrell v. Commonwealth, 7 Va. App. 269,
290, 373 S.E.2d 328, 339 (1988), and a finding by the trial court
is binding on appeal unless plainly wrong. See Martin, 4 Va.
App. at 443, 358 S.E.2d at 418.
Here, a plastic bag containing cocaine was clearly visible
on the floor of the driver's side of a vehicle operated by
defendant. Defendant was alone in the car, provided police with
a false Social Security number, and was in possession of $242 in
cash. Finally, defendant fled upon learning particulars of the
informant's report and at the moment Jordan spotted the bag of
cocaine and proceeded to investigate, conduct indicative of a
guilty mind. See Langhorne v. Commonwealth, 13 Va. App. 97,
102-03, 409 S.E.2d 476, 480 (1991). "Although none of these
circumstances, standing alone, would have sufficiently proved
that defendant knowingly possessed the drugs, the facts combined
to support the finding that the narcotics discovered were subject
to defendant's informed 'dominion and control.'" Hetmeyer v.
Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900
(1994).
Accordingly, we affirm the conviction.
Affirmed.
- 5 -
Benton, J., dissenting.
"The burden was on the Commonwealth to prove beyond a
reasonable doubt that [Elvin Robertson] was aware of the presence
and character of the [cocaine] and was intentionally and
consciously in physical or constructive possession of it."
Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734
(1977). Because the conviction was based upon constructive
possession, the evidence must prove "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." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984). "Further, where, 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)
(citation omitted).
The evidence proved that the vehicle was not owned by
Robertson. Certainly, the evidence does not exclude the
hypothesis that the bag under the driver's seat was the property
of the owner of the vehicle. Robertson's presence in the vehicle
does not prove that he possessed the cocaine. The principle is
well established that mere proximity to the controlled substance
is not enough to establish possession. See Wright, 217 Va. at
- 6 -
670-71, 232 S.E.2d at 734. Furthermore, Robertson's occupancy of
the vehicle did not give rise to a presumption that he possessed
the cocaine. See Code § 18.2-250.1(A).
No acts, statements, or conduct of Robertson proved that
Robertson was aware of the presence of the cocaine. The evidence
proved that after Robertson had been told to exit the vehicle,
the officer went to the open door of the vehicle and saw "on the
floorboard sticking approximately three to five inches . . . a
floor mat." The officer then saw "what appeared to be a plastic
bag." Because he "couldn't detect what type of material was
inside of it . . . [, he] knelt down" and took a closer look.
The photograph in the record shows a corner of a plastic bag
protruding from under the seat. No evidence proved that
Robertson saw anything amiss in the vehicle or should have
necessarily seen that a plastic bag was under the driver's seat.
See Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863
(1994); see also Fogg v. Commonwealth, 216 Va. 394, 219 S.E.2d
672 (1975); Burton v. Commonwealth, 215 Va. 711, 213 S.E.2d 757
(1975). The evidence only permits suspicious inferences to be
drawn. "'[E]vidence is not sufficient to support a conviction if
it engenders only a suspicion or even a probability of guilt.'"
Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977)
(citation omitted).
Robertson's flight was certainly not sufficient to prove
beyond a reasonable doubt that he knew of the presence of
- 7 -
cocaine. The evidence proved that when the officer asked
Robertson for his driving permit, Robertson gave the officer a
Social Security number that was not his. His flight occurred
while the officer was checking the validity of the number.
The principle is well established that "'where a fact is
equally susceptible of two interpretations one of which is
consistent with the innocence of the accused, [the trier of fact]
cannot arbitrarily adopt that interpretation which incriminates
him.'" Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d
251, 253 (1969) (citation omitted). From the Commonwealth's
evidence, it is just as likely, if not more likely, that
Robertson, "who was in trouble with the law [because he gave the
officer an improper Social Security number], merely attempted to
run . . . to avoid apprehension" for that circumstance. Haywood
v. Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606, 608
(1995). That is a reasonable hypothesis that the evidence fails
to exclude.
For these reasons, I would reverse the conviction.
- 8 -