Regina Brown v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
REGINA BROWN
MEMORANDUM OPINION * BY
v. Record No. 2875-00-2 JUDGE G. STEVEN AGEE
JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Craig W. Stallard, Assistant Public Defender
(Patricia P. Nagel, Assistant Public
Defender; Office of the Public Defender, on
brief) for appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Regina Brown (Brown) was convicted, after a bench trial, of
one count of possession of cocaine, in violation of Code
§ 18.2-250. She was sentenced to serve seven months
incarceration. On appeal, Brown contends that the trial court
erred in finding the evidence sufficient to establish that she
possessed the drugs. For the following reasons, we agree and
reverse her conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
On May 30, 2000, at approximately 2:50 a.m., Officer Carter
of the Richmond Police Department observed Brown, the sole
occupant of the vehicle she was driving, park a car in front of
an apartment building. The car's back license plate hung by one
screw. Suspicious, Officer Carter "ran the tags" and discovered
the license plate was registered to another vehicle.
When Brown returned to the car alone two minutes later,
Officer Carter detained her and asked for her driver's license.
A second officer arrived at the scene to assist Officer Carter.
The second officer walked around the car, looking inside.
Officer Carter asked if Brown had anything illegal in the car
and requested permission to perform a search. Brown consented
to a search of the car.
After the consent was given, the second officer informed
Officer Carter that he had noticed a short metal pipe and stem
in the ashtray as he peered inside the vehicle. Officer Carter
then found the pipe and stem in the open ashtray which was in
the middle of the car's console. Laboratory analysis of the
pipe found cocaine residue.
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No evidence was introduced to establish the ownership of
the vehicle Brown occupied or the license plate attached to the
vehicle. Other than the observation by Officer Carter when
Brown parked the vehicle, there was no evidence as to the period
of time Brown was in possession of the vehicle. Officer Carter
testified he did not see Brown make any movement towards the
center of the console during the brief time he observed her.
There was no direct evidence that Brown was cognizant of the
metal pipe or its contents.
ANALYSIS
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable
to the Commonwealth and give it all
reasonable inferences fairly deducible
therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975) (citation omitted).
"In order to convict a defendant of 'possession' of a
narcotic drug . . . it generally is necessary to show that
defendant was aware of the presence and character of the
particular substance and was intentionally and consciously in
possession of it." Ritter v. Commonwealth, 210 Va. 732, 741,
173 S.E.2d 799, 805 (1970).
[P]ossession of a controlled substance may
be actual or constructive. See Archer [v.
Commonwealth], 225 Va. [416,] 418, 303
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S.E.2d [863,] 863 [(1983)]. "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.'" 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 Eckhart v.
Commonwealth, 222 Va. 447, 450, 281 S.E.2d
853, 855 (1981).
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987). The Commonwealth argues that Brown's sole occupancy of
the car at the time of seizure proved Brown had knowledge of the
drugs in the vehicle, which were in plain view, and that they
were subject to her dominion and control. We disagree.
"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, '"all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Burchette v. Commonwealth, 15 Va. App. 432, 434,
425 S.E.2d 81, 83 (1992) (citations omitted). While it is a
circumstance that may be probative in determining whether an
accused possessed such drugs, mere proximity to contraband is
insufficient to establish possession. Lane v. Commonwealth, 223
Va. 713, 716, 292 S.E.2d 358, 360 (1982). Likewise,
"[o]wnership or occupancy of the vehicle in which the drugs are
found is . . . [simply] a circumstance probative of possession."
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Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150,
155 (1998) (citations omitted), aff’d, 257 Va. 433, 513 S.E.2d
137 (1999). Thus, we 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).
Proof by circumstantial evidence "'is not sufficient . . .
if it engenders only a suspicion or even a probability of
guilt.'" Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482
S.E.2d 853, 859 (1997) (quoting Hyde v. Commonwealth, 217 Va.
950, 955, 234 S.E.2d 74, 78 (1977)). "'"[A]ll necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence."'" Betancourt v. Commonwealth, 26 Va.
App. 363, 373, 494 S.E.2d 873, 878 (1998) (quoting Stover v.
Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981)
(citation omitted)). "When, from the circumstantial evidence,
'it is just as likely, if not more likely,' that a 'reasonable
hypothesis of innocence' explains the accused's conduct, the
evidence cannot be said to rise to the level of proof beyond a
reasonable doubt." Littlejohn, 24 Va. App. at 414, 482 S.E.2d
at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not
"'exclude every possible theory or surmise,'" but it must
exclude those hypotheses "'which flow from the evidence
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itself.'" Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373
S.E.2d 328, 338-39 (1988) (citation omitted).
Here, the facts establish no more than a mere suspicion
that Brown possessed the drugs. While Brown was in close
proximity to the drugs and was the sole occupant of the vehicle,
there is no evidence that she used the pipe or the drugs, or
that she knew of their presence. There is no evidence Brown
ever saw the pipe or the cocaine remnants or exercised dominion
and control over them. There was no evidence that Brown was
nervous, fidgety, or made furtive gestures toward the
contraband. She made no statements indicating she was aware of
the presence and character of the drugs or the metal pipe.
The evidence proved the loose license plate was registered
to another vehicle, but no evidence established the ownership of
the license plate. There was no evidence Brown owned the car or
how long she had been driving it. No evidence established that
she drove the car on a regular basis or whether she had ever
driven it before. A hypothesis that someone else used the drugs
in the car and left the remnants in the ashtray without Brown's
knowledge is as consistent with the facts as her guilt. See
Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864
(1994).
The Commonwealth's evidence failed to prove acts or conduct
from which the trial court could infer beyond a reasonable doubt
that Brown knowingly and intentionally possessed the items found
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in the ashtray of the car she was driving. As we held in
Burchette, "[this] evidence simply does not exclude the very
real possibility that . . . someone other than [Brown] used or
had access to the vehicle and had left the drugs there
unbeknownst to [her]. . . . The evidence does not exclude every
reasonable hypothesis of innocence." 15 Va. App. at 438, 425
S.E.2d at 85.
The Commonwealth failed to carry its burden of proof as to
the fundamental elements of knowledge and possession. We,
therefore, reverse the conviction and enter final judgment
dismissing the indictment.
Reversed and dismissed.
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