Patrick Hall v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Argued at Richmond, Virginia
PATRICK HALL
MEMORANDUM OPINION * BY
v. Record No. 0003-96-2 CHIEF JUDGE NORMAN K. MOON
AUGUST 27, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James F. D'Alton, Jr., Judge
Brad P. Butterworth (Butterworth & Waymack,
on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Patrick Hall appeals from his conviction of possession of
cocaine with intent to distribute in violation of Virginia Code
§ 18.2-248. He argues that insufficient evidence was presented
by the Commonwealth to establish that he constructively possessed
cocaine. We agree and reverse the conviction.
On February 1, 1995, Detective Michael Whittington, Officer
Michael Walls, Officer Kenneth Wontz, and other officers of the
Hopewell Police Department executed a search warrant at 712
Crestline Boulevard in Hopewell. The residence at 712 Crestline
is a one-story duplex that was leased to Lawrence Irving and had
utilities in the name of Ernest Johns, Jr. The residence had
been under surveillance for several weeks prior to the search on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
February 1, as a result of twenty-five to thirty citizen
complaints that the residence was the center of suspected drug
activity. Surveillance was conducted in three-to-four hour
increments rather than twenty-four hours a day. Detective
Whittington observed considerable vehicle and occasional foot and
bicycle traffic during the course of his surveillance. On the
night of the search, Detective Whittington observed several
vehicles stop at the residence. One vehicle was stopped shortly
after departing from the residence and its occupants were
arrested for possession of crack cocaine.
At the time of the search, Detective Whittington and the
accompanying officers were unaware of who was inside the
residence. The officers approached from the rear of the duplex;
no lights were on, and the dwelling was completely dark. Officer
Walls testified that he could see a person's hand on the blinds
as they passed underneath a window. The officers knocked and
announced their presence, after fifteen to thirty seconds, no one
responded and they made forcible entry. The persons in the house
appeared to be surprised by the entry. The police found
appellant seated alone in the kitchen directly adjacent to the
window in which Officer Walls observed the hand. In addition to
appellant, the officers found Michael McKoy lying on the floor in
the living room and Peter McCrea standing in a back bedroom.
Appellant, McKoy, and McCrea were handcuffed and brought to
the living room where they were informed of the purpose of the
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search. Officers discovered a torn plastic baggie with three
loose pieces of cocaine and a razor blade on top of a water
heater in a closet adjacent to the bedrooms. The loose pieces
were later determined to constitute 2.2 grams of cocaine. The
officers also discovered a plastic bag in the attic crawl space
which held twenty-four small plastic bag corners containing solid
material subsequently determined to be 25.6 grams of cocaine. A
triple beam scale was also found in the attic crawl space. The
attic crawl space was accessed by a panel opening in the ceiling
located in a hallway between the den, bathroom, and two bedrooms.
The opening was not more than five feet from any of the rooms.
At the time of the search, the panel was down.
Upon concluding the search of the premises, the officers
searched appellant, McKoy, and McCrea. The police found $95.81
on appellant's person. Detective Whittington also discovered a
computer-calculator on a wooden stand in the living room near the
television about ten feet from where appellant was sitting.
Whittington had previously seized the computer in another
incident with appellant, and appellant acknowledged ownership of
it. Appellant's jacket was discovered hanging on the rear side
of a bedroom door; a door which abutted the door of the closet
where the water heater was located if both doors were open. A
letter addressed to appellant at 503 Cedar Level Road, Hopewell,
was in the pocket of the jacket.
One thousand and ninety-five dollars in cash was found in
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McKoy's right front pocket. McKoy testified that he had been
"rolled over" while he was lying on the floor and the cash placed
in his pocket. He also had a pager and $42 in his left pocket,
which he stated was his own money. McCrea had a pager and
$100.55 in cash on his person.
At the conclusion of the search appellant, McKoy, and McCrea
were transported to the police station for further questioning.
Appellant stated he did not know either McKoy or McCrea and
explained that he had arrived at the duplex at about 9:30 p.m. to
see Lawrence Irving, the lessee of the premises. He stated that
it was his intention to stay overnight and that he had brought no
drugs with him.
At trial appellant did not testify, but produced one
witness, Roswell Stith, who testified appellant rented a room in
her home at 503 Cedar Lane. She also testified that appellant
was not employed but helped out around the house and assisted
Stith and her husband in making and selling Christmas wreaths.
McCrea and McKoy both testified that they did not know each other
or appellant before arriving at the duplex. They further denied
having any knowledge of drugs on the premises.
On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). In
proving possession of a controlled substance, the Commonwealth
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may prove either actual or constructive possession. Pemberton
v. Commonwealth, 17 Va. App. 651, 440 S.E.2d 420 (1994). The
record indicates that appellant did not have drugs or drug
contraband on his person. Nor were drugs or drug contraband
found in appellant's immediate presence in the kitchen where he
was seated. Consequently, the Commonwealth must rely upon
evidence that proved constructive possession.
"``To support a conviction based on 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 (1987) (quoting Drew v. Commonwealth,
230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citations
omitted)). Although proximity to a controlled substance "is a
factor to consider when determining whether the accused
constructively possessed drugs," it is "insufficient alone to
establish possession." Brown v. Commonwealth, 15 Va. App. 1, 9,
421 S.E.2d 877, 882 (1992) (en banc).
The record does not prove that appellant was connected with
the specific drugs discovered. Although Detective Whittington
observed appellant at the residence on prior occasions, the
letter found in appellant's jacket and Stith's testimony indicate
appellant was not a resident of the duplex leased to Lawrence
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Irving, but rather was a visitor.
There is no evidence that appellant was in a position to see
the drugs or drug paraphernalia. Appellant's calculator, while
potentially useful in drug operations, is nevertheless not
contraband and is insufficient to establish appellant's awareness
of the drugs. The cocaine discovered during the search was
concealed in the attic and on the top of a water heater in a
closet. The cocaine in the attic could not be reached without
the assistance of two officers who lifted a third officer.
Further there is sufficient evidence to suggest that other
persons, including the leaseholder Lawrence Irving, could have
concealed the drugs in the duplex without appellant's
participation. Detective Whittington testified that during his
surveillance operation he observed "hand-to-hand transactions"
taking place, but none involved appellant and that appellant's
visits were infrequent. Detective Whittington also stated that
because there was not twenty-four hour surveillance, it is
possible that Lawrence Irving could have spent significant time
in the duplex.
"Whenever ``evidence leaves indifferent which of several
hypotheses is true, or merely established only some finite
probability in favor of one hypothesis, such evidence does not
amount to proof of guilt beyond a reasonable doubt.'" Pemberton,
17 Va. App. at 654, 440 S.E.2d at 422 (quoting Sutphin v.
Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985)).
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While "[t]he Commonwealth is not required to prove that there is
no possibility that someone else may have planted, discarded,
abandoned or placed the drugs or paraphernalia," Brown, 15 Va.
App. at 10, 421 S.E.2d at 883, nevertheless, "all reasonable
hypotheses of innocence must be excluded." Pemberton, 17 Va.
App. at 655, 440 S.E.2d at 422. The Commonwealth chose to put in
evidence appellant's statement to the police that he was a mere
visitor to the premises and possessed no drugs. Because the
drugs were concealed in the residence and a number of persons
were observed to have entered the residence prior to the search,
the evidence does not exclude as a reasonable hypothesis
appellant's innocence based on his statement.
The facts here are less compelling than those of two other
cases in which the evidence was, nonetheless, held insufficient
to support a finding of constructive possession. See Drew v.
Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986); Pemberton, 17
Va. App. 651, 440 S.E.2d 420.
This is insufficient to prove constructive possession by the
defendant. Accordingly, we reverse the conviction.
Reversed.
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