Carlton Harris, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
CARLTON HARRIS, s/k/a
CARLTON F. HARRIS
MEMORANDUM OPINION * BY
v. Record No. 1773-94-2 JUDGE JAMES W. BENTON, JR.
JANUARY 16, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
Robert E. Hawthorne, Jr. (Hawthorne &
Hawthorne, P.C., on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
A jury convicted Carlton F. Harris of possessing cocaine in
violation of Code § 18.2-250. Harris contends the evidence was
insufficient to prove beyond a reasonable doubt that he possessed
the cocaine. We affirm the conviction.
I.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider [the evidence] in the
light most favorable to the Commonwealth and give it all
reasonable inferences fairly deducible therefrom." Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
So viewed, the evidence proved that officers at Mecklenburg
Correctional Center, a penitentiary, conducted a search of
Carlton Harris' cell and the adjacent cell. Harris, who lived
alone in the six feet by nine feet cell, cooperated with the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
officers conducting the search. During the search of Harris'
cell, one of the officers examined a corncob pipe that was in a
cup on a table. The pipe contained a plastic wrapper that held a
white substance. Laboratory tests established that the substance
was cocaine.
Although the penitentiary's policy forbids an inmate from
entering another inmate's cell, both Commonwealth and defense
witnesses testified that inmates often enter other inmates'
cells. Two inmates, Mark Peace and John Colclasure, testified
for the defense that they entered Harris' cell on the day of the
search. Peace testified "it's a possibility" that he left
something in a corncob pipe in Harris' cell on that day. He
denied placing drugs in Harris' cell.
Colclasure, a self-described "drug fiend" who occupied a
cell next to Harris, testified that he knew of the search in
advance. He said that he placed the cocaine and pipe in Harris'
cell prior to the search when Harris went to get ice. Colclasure
described the contents of the pipe. However, he admitted on
cross-examination that he saw the officer remove the pipe during
the search. Colclasure denied seeing the officer search the pipe
and said he knew of the cocaine in the pipe because the cocaine
belonged to him.
Colclasure further described an elaborate scheme by which he
intended to involve Harris unwittingly in a plan to entrap a
guard who was selling marijuana. Colclasure also testified that
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he once planned an escape, possessed weapons while in prison, and
obtained drugs by having his visitors smuggle them into the
prison.
Harris testified he did not know the pipe or cocaine was in
his cell until the officer discovered it. He also testified that
Colclasure entered his cell several times before the search. He
did not remember Colclasure leaving anything in his cell. Harris
further testified that during his three years of incarceration he
never had a visitor.
II.
To prove possession, the Commonwealth must show that Harris
was aware of both the presence and character of the substance and
that he had dominion and control over it. Wymer v. Commonwealth,
12 Va. App. 294, 300, 403 S.E.2d 702, 706 (1991). This
possession may be constructive and not actual. Lane v.
Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982).
When asked by Harris' counsel why the search occurred, one
of the officers testified that the prison authorities believed
that Harris received contraband that day, which was visitation
day at the penitentiary. The evidence also proved that prior to
the search Harris was locked in his cell by himself. The cocaine
was discovered among Harris' possessions. Although proximity to
the drugs does not establish possession, it is a factor to be
considered. Id. at 716, 292 S.E.2d at 360. Moreover, while
occupancy of a specific area is not dispositive of possession, it
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is certainly powerful evidence in a case such as this where only
Harris lived in the small cell. See id.
Furthermore, the credibility of witnesses and the weight of
their testimony are matters to be determined by the jury.
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985). Peace testified that he possibly put something in
the corncob pipe. Colclasure, who admitted that he and Harris
smoked marijuana together in prison, claimed to have placed the
cocaine in the pipe. The jury could have rejected both of these
versions of events as untruthful efforts to assist Harris. See
Crumble v. Commonwealth, 2 Va. App. 231, 236, 343 S.E.2d 359, 362
(1986).
The principle is well established that "'the testimony of a
witness may be wholly rejected by a jury, if from his manner and
the improbability of his story or his self contradiction in the
several parts of his narrative, the jury become convinced that he
is not speaking the truth.'" Presley v. Commonwealth, 185 Va.
261, 266, 38 S.E.2d 476, 478 (1946)(citation omitted). Much of
Colclasure's testimony was intended to convey to the jury that he
"set-up" Harris. Colclasure's testimony also consisted of a long
list of prohibited activities that he participated in while
incarcerated. His testimony in its entirety was related in such
a fashion that the jury reasonably could have disbelieved that he
truthfully testified.
In this case the Commonwealth had to prove Harris' knowledge
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by circumstantial evidence. We conclude that the evidence was
sufficient to prove beyond a reasonable doubt that Harris
possessed the cocaine. "[A]ll necessary circumstances proved
[were] consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence." Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)
(citation omitted).
Accordingly, the conviction is affirmed.
Affirmed.
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