Randall Lee Norton v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
RANDALL LEE NORTON
MEMORANDUM OPINION * BY
v. Record No. 1897-95-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 25, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Robert H. Morrison (William W. Bennett, Jr. &
Associates, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his conviction of possession of cocaine,
Randall Lee Norton contends that the evidence is insufficient to
support his conviction. We agree and reverse.
On August 18, 1994, Officer Pulliam of the South Boston
Police Department stopped a car that had come into radar at
thirty-eight miles per hour in a twenty-five mile per hour zone.
When the vehicle stopped, the driver exited and ran. The three
people remaining in the vehicle identified Norton as the driver.
Morgan Brown, a passenger in the front seat and the owner of the
car, told Officer Pulliam that they were headed back to their
hotel room, "Crestview, Room 121." Brown told Pulliam that he
had given Norton money to pay for the room. Brown consented to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
let Officer Pulliam search the room and opened the door with his
key. Officer Pulliam found two aluminum beer cans that had been
converted into smoking devices, one in a folding bed and the
other between the mattress and box springs. The beer cans
contained cocaine residue.
The following day, Norton told Officer Pulliam that he had
run because he was afraid of getting another DUI charge. He
admitted that he had checked into the Crestview and had paid for
the room with money from Brown. Officer Pulliam asked Norton
whether his fingerprints were on the beer cans. Norton replied,
"Possibly, I guess they are." Officer Pulliam asked, "Why are
your fingerprints on the cans?" Norton said, "Because I drank
the beer." Officer Pulliam then asked, "Is it possible you
smoked crack out of those cans? Norton said, "I'm sure it is."
"On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Maynard v. Commonwealth, 11 Va.
App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc). The
judgment of a trial court sitting without a jury will not be set
aside unless plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
Plainly, Norton was not found in actual possession of
cocaine. He contends that the evidence fails to prove
constructive possession. We agree.
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To establish 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."
Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740
(1984).
The Commonwealth proved only that Norton was registered in
the Crestview Motel, that cocaine residue was on two beer cans
found in the room registered to him, and that he had smoked
cocaine within several days prior to his arrest. "[P]roof that
contraband was found in premises . . . occupied by the defendant
is insufficient, standing alone, to prove constructive
possession." Behrens v. Commonwealth, 3 Va. App. 131, 135, 348
S.E.2d 430, 432 (1986). There was no evidence that Norton was
seen inside the motel room, that his fingerprints were on the
beer cans, or that he had smoked cocaine from those beer cans.
Thus, the evidence did not prove that Norton had knowledge of the
cocaine on the beer cans or that he asserted dominion and control
over that cocaine.
The judgment of the trial court is reversed and the
indictment is ordered dismissed.
Reversed and dismissed.
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