Theresa Ann Jones v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia
THERESA ANN JONES
MEMORANDUM OPINION * BY
v. Record No. 0816-00-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
John H. Goots (Chalkley & Witmeyer, L.L.P.,
on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The appellant, Theresa Ann Jones, appeals her conviction
for possession of cocaine, in violation of Code § 18.2-250.
Jones contends the evidence was insufficient, as a matter of
law, to prove that Jones: (1) exercised dominion and control
over the cocaine; and (2) had knowledge of the presence and
character of the cocaine. For the following reasons, we affirm.
BACKGROUND
On September 10, 1999, Investigator Charles Hanna with the
Henrico County Police Department was executing a search warrant
at a residence. While the police were searching the apartment,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Jones knocked on the door. When she came in, Hanna asked her
how she had arrived at the apartment. Jones replied that
someone had given her a ride there in a black Lincoln. Hanna
went outside to investigate. He saw a black Lincoln parked
outside. However, "the car was cold," and "nobody was in the
vehicle." Hanna noticed two people sitting in a brown pickup
truck and went over to speak with them. The occupants of the
truck stated they had given a person a ride to the apartment.
After receiving consent from the driver of the vehicle, Hanna
searched the truck and found a brown purse on the seat between
the two occupants. Upon searching the purse, Hanna found a
crack pipe underneath "various makeup" and "fake hair." The two
occupants denied owning the purse and the crack pipe.
Hanna returned to the apartment with the purse and its
contents. Jones acknowledged that the purse and "everything in
the purse" belonged to her. When asked specifically about the
crack pipe, Jones denied owning it and denied knowing how it got
into her purse. Jones told Hanna that "she had just got out of
jail and she hadn't used crack since she was locked up." Hanna
did not find any drugs on Jones when he searched her subsequent
to placing her under arrest.
ANALYSIS
On appeal, we view the evidence and all reasonable
inferences fairly deducible therefrom, in the light most
favorable to the Commonwealth. Higginbotham v. Commonwealth,
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216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We will affirm
the conviction "unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it."
Id.
Code § 18.2-250(A) provides: "It is unlawful for any
person knowingly or intentionally to possess a controlled
substance . . . ." "'Possession of a controlled substance may
be actual or constructive.'" Pemberton v. Commonwealth, 17 Va.
App. 651, 654, 440 S.E.2d 420, 422 (1994) (citation omitted).
"'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.'" Id. (citations omitted).
In this case, Jones contends the Commonwealth failed to
prove, as a matter of law, that Jones was aware of both the
presence and character of the cocaine found and that the cocaine
was subject to her dominion and control. 1 We disagree.
1
Contrary to the Commonwealth's contention, we find Jones
properly preserved both issues for appeal. In his motion to
strike, Jones's counsel stated, "The pocketbook was easily
accessible to two other individuals in the car." "[W]e don't
know how that crack pipe got there, but there's surely not an
inference that it's hers, and we'd move to strike on that
basis." The objection was sufficient to raise both issues that
are the subject of this appeal.
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"Where 'a conviction is based on circumstantial evidence,
all necessary circumstances proved must be consistent with guilt
and inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Pemberton, 17 Va. App. at 655, 440
S.E.2d at 422 (citations omitted); see also Scruggs v.
Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 664 (1994).
In this case, the evidence excludes every reasonable hypothesis
of innocence. Although Jones argues that it is possible that
while she was in the apartment one of the occupants of the truck
hid the crack pipe in her purse, the Commonwealth's evidence
excludes such a possibility. When Hanna found the crack pipe in
Jones's purse, he questioned both occupants of the vehicle and
both denied owning the purse and the crack pipe. Therefore, the
inference is warranted that the crack pipe found buried in
Jones's purse belonged to her. See Robbs v. Commonwealth, 211
Va. 153, 155-56, 176 S.E.2d 429, 431 (1970) (court held it was
reasonable to infer that housecoat and drugs contained inside
belonged to the defendant where the other persons present denied
ownership). In addition, the court found that Jones lied to the
police about how she got to the apartment. The reasonable
inference flowing from her lie is that she was trying to divert
the police away from the truck and her purse containing the
crack pipe. Although Jones denied knowing about the crack pipe,
the court, acting as fact finder, was free to reject her
testimony and conclude that she was lying to conceal her guilt.
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Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987) (en banc); see also Rollston v. Commonwealth, 11 Va. App.
535, 547-48, 399 S.E.2d 823, 830-31 (1988). In addition,
"[p]ossession of a controlled drug gives rise to an inference of
the defendant's knowledge of its character." Josephs v.
Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 (1990)
(en banc); see also Shackleford v. Commonwealth, 32 Va. App.
307, 325, 528 S.E.2d 123, 132 (2000); Hunley v. Commonwealth, 30
Va. App. 556, 562, 518 S.E.2d 347, 350 (1999). Furthermore,
Jones admitted to a history of prior use of crack cocaine, thus
supporting the inference that she was aware of the character of
the cocaine found in her purse.
We find the evidence was sufficient to prove that Jones was
aware of both the presence and character of the cocaine found in
her purse and that the cocaine was subject to her dominion and
control. Accordingly, we affirm the conviction.
Affirmed.
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