George Douglas Young, Jr. v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
GEORGE DOUGLAS YOUNG, JR.
MEMORANDUM OPINION * BY
v. Record No. 1228-00-2 JUDGE RICHARD S. BRAY
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
(Robert H. Morrison, Bennett & Morrison,
P.L.C., on brief), for appellant. Appellant
submitting on brief.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
George Young, Jr. (defendant) was convicted in a bench trial
of conspiracy to distribute cocaine, possession of cocaine with
intent to distribute, possession of a firearm while in possession
of cocaine and possession of marijuana, all "on or about
January 27, 1998 through January 30, 1998." On appeal, defendant
challenges the sufficiency of the evidence to support the
convictions for possession of cocaine and related possession of a
firearm. We disagree and affirm the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In reviewing the sufficiency of the evidence, we consider
the record, "in the light most favorable to the Commonwealth,
giving it all reasonable inferences fairly deducible therefrom."
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998) (citation omitted). "[T]he fact finder is not
required to accept entirely either the Commonwealth's or the
defendant's account of the facts [but] may reject that which it
finds implausible, [and] accept other parts which it finds
believable." Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428
S.E.2d 16, 24 (1993) (citation omitted). Thus, the credibility of
the witnesses, the weight accorded testimony, and the inferences
drawn from proven facts are matters to be determined by the fact
finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d
473, 476 (1989). The judgment of the trial court will not be
disturbed unless plainly wrong or unsupported by the evidence.
See Code § 8.01-680.
Viewed accordingly, the instant record discloses that, on
January 30, 1998, Jimmy Thomas, special agent for the Virginia
Department of Alcoholic Beverage Control, and Halifax County
Police Sergeant Richard Pulliam executed a search warrant at a
residence in the town of Virgilina. Entering the residence
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"through the front door . . . into a hallway," Thomas observed
defendant asleep on "a bed in the middle of the living room."
Five other persons, including Mack Kincy, were gathered in "a
smaller room" adjacent to and at "the back of the living room."
The resulting search yielded an array of contraband,
including a "nine millimeter semiautomatic pistol," a "forty
caliber semiautomatic pistol," cocaine, marijuana, large amounts
of cash, cellular phones, pagers, razor blades, and "marked money
. . . from a controlled buy." Defendant concedes on brief that
"the majority of these items . . . were in plain view and laying
about the [smaller] room," within several feet of defendant.
Searching defendant's person, police discovered $163 in his
pocket, which he explained was won "playing cards," but no drugs
or weapons.
Interviewed by police, defendant admitted smoking marijuana
earlier in the evening. Defendant denied selling drugs on the day
of the search, although he had witnessed twelve people purchase
drugs from others at the house and had advised a person seeking
drugs to "hold up," while he summoned Mack Kincy from "inside" to
make the sale. However, defendant admitted distributing crack
cocaine the preceding evening, including trading the drug for a
shotgun, a transaction observed by Pulliam during his undercover
surveillance. Defendant acknowledged his fingerprints would
appear on the razor blades and "guns," because he had "busted open
cigars" with the razor blades and had "touched all" the weapons.
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Mack Kincy testified defendant "sometimes . . . would stay"
at the residence, a house "used . . . for selling cocaine" by
several persons, including defendant, and sold cocaine on several
occasions during the period embraced by the subject indictment.
Kincy noted defendant regularly purchased the drug for resale,
both from another resident and a "person that lived upstate."
On appeal, defendant challenges the sufficiency of the
evidence to establish "that [he] constructively possessed the
cocaine confiscated . . . during the raid at issue," together with
firearms, although he does not contest the related conviction for
conspiracy to distribute cocaine.
II.
Actual or constructive possession of drugs and firearms will
support a conviction for such offenses. Logan v. Commonwealth,
19 Va. App. 437, 444, 452 S.E.2d 364, 368 (1994) (en banc). The
principles that govern a determination of constructive
possession of illegal drugs also apply to like possession of a
firearm. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427
S.E.2d 219, 220-21 (1993). Constructive possession may be
established by "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 the character
of the substance and that it was subject to his dominion and
control." Logan, 19 Va. App. at 444, 452 S.E.2d at 368-69
(citation omitted). "[P]ossession need not always be exclusive.
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The defendant may share it with one or more" persons and "[t]he
duration of the possession is immaterial." Gillis v.
Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974).
"[P]roof that a person is in close proximity to contraband is a
relevant fact that, depending on the circumstances, may tend to
show that, as an owner or occupant of property . . ., the person
necessarily knows of the presence, nature and character of the
[item] that is found there." Burchette v. Commonwealth, 15 Va.
App. 432, 435, 425 S.E.2d 81, 83 (1992).
Here, defendant confessed to trading crack cocaine 1 for a
shotgun and other cocaine sales during the several days
immediately preceding the search, January 30, 1998, assisting
Kincy in a cocaine sale earlier that day, and handling both drug
paraphernalia and firearms found scattered about the home.
Defendant's statements, his continuing involvement with others in
the distribution of cocaine from the premises and the related
possession of firearms were corroborated by the testimony of
Kincy. Such evidence clearly established defendant actually and
1
In the absence of a certificate of chemical analysis,
defendant contends the Commonwealth failed to prove the
substance traded for the shotgun was cocaine. However, "[t]he
nature of an illegal substance may be demonstrated by
circumstantial evidence." Myrick v. Commonwealth, 13 Va. App.
333, 339-40, 412 S.E.2d 176, 179 (1991). Defendant admitted
trading "cocaine" for the shotgun, and the transaction occurred
in a house dedicated to sale of the drug, harboring several
persons, including defendant, then conspiring in such
distribution. Thus, the record sufficiently established the
identity of the substance traded and otherwise sold by
defendant.
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constructively possessed both cocaine and firearms during the
period embraced by the indictment, January 27 through 30, 1998.
Further, "[a] co-conspirator may be criminally liable for an
act of another member of the conspiracy if the act is 'done in
the furtherance of the conspiracy' and can 'be reasonably
foreseen as a necessary and natural consequence of the'
conspiracy." Cotter v. Commonwealth, 19 Va. App. 382, 386, 452
S.E.2d 20, 22 (1994). The Commonwealth proved defendant's
co-conspirators possessed the cocaine and firearms discovered in
the house during the search, all in furtherance of the
conspiracy to distribute cocaine, criminal conduct that renders
defendant equally culpable.
Accordingly, the evidence sufficiently supported the
convictions, and we affirm the trial court.
Affirmed.
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