Tieone Demetrist Thomas v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia
TIEONE DEMETRIST THOMAS
MEMORANDUM OPINION * BY
v. Record No. 1618-97-2 JUDGE LARRY G. ELDER
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Susan L. Parrish, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
(Mark L. Earley, Attorney General; Steven A.
Witmer, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Tieone Demetrist Thomas (appellant) appeals his conviction
of possession of cocaine in violation of Code § 18.2-250. He
contends the evidence was insufficient to support his conviction.
For the reasons that follow, we reverse.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will
not be set aside unless it appears that the judgment is plainly
wrong or without supporting evidence. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
"[W]here the Commonwealth's evidence as to an element of an
offense is wholly circumstantial, 'all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence.'"
Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987) (citation omitted). However, the Commonwealth "'is not
required to disprove every remote possibility of innocence, but
is instead, required only to establish guilt of the accused to
the exclusion of a reasonable doubt.'" Cantrell v. Commonwealth,
7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation
omitted). "The hypotheses which the prosecution must exclude are
those 'which flow from the evidence itself, and not from the
imagination of defendant's counsel.'" Id. at 289-90, 373 S.E.2d
at 338-39 (citation omitted).
"To convict a person of possession of illegal drugs 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally and
consciously possessed them.'" Castaneda v. Commonwealth, 7 Va.
App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)). Possession need not be actual, exclusive, or lengthy in
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order to support a conviction under Code § 18.2-250; instead, the
statute criminalizes possession of illegal drugs of any duration
that is constructive or joint. See Gillis v. Commonwealth, 215
Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
Constructive possession of illegal drugs may be proven by
"'evidence of acts, statements, or conduct of the accused or
other facts or circumstances which tend to show that the
[accused] was aware of both the presence and character of the
substance and that it was subject to his dominion and control.'"
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)). Neither close proximity to illegal
drugs nor occupancy of the premises on which they are found,
standing alone, ever amounts to "possession" of such drugs under
Code § 18.2-250; however, both are factors that may be considered
in determining whether possession occurred in a particular case.
See Tucker v. Commonwealth, 18 Va. App. 141, 144, 442 S.E.2d
419, 421 (1994); Castaneda, 7 Va. App. at 583-84, 376 S.E.2d at
87.
We hold that the evidence was insufficient to prove that
appellant either actually or constructively possessed the cocaine
found in the fifty-dollar bill on the chest of drawers. Although
the circumstantial evidence presented by the Commonwealth raised
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a suspicion that appellant placed the bill containing the cocaine
on the chest of drawers along with the pile of change, keys, and
papers after he arrived at his mother's residence and before he
went to sleep, the evidence failed to exclude the reasonable
hypothesis that appellant's brother placed the cocaine on the
chest of drawers and that appellant had no knowledge of the
cocaine's presence when it was discovered by Detective Mabry.
The evidence did not establish appellant was aware of the
presence of the cocaine on the chest of drawers at the time of
his arrest. The fifty-dollar bill containing the cocaine was
located next to a pile of coins, keys, and papers that appellant
placed in his pocket after Detective Mabry took possession of the
bill. None of appellant's statements or conduct or any other
circumstance supports an inference that he knew crack cocaine was
concealed inside the bill. Even though the bill was folded in
such a way that a person familiar with narcotics would recognize
it concealed illegal drugs, appellant did not react when
Detective Mabry picked up the bill from the chest of drawers and
inspected it. Appellant also took no action when the detective
prevented appellant's brother from grabbing the bill.
Significantly, no evidence directly established who placed the
bill on the chest of drawers or how long it was there, and no
evidence proved appellant was personally familiar with illegal
drugs. The close proximity of appellant or his personal effects
to the bill containing the cocaine, alone, is insufficient to
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prove that he knowingly possessed it. See Clodfelter v.
Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977); cf.
Drew, 230 Va. at 473, 338 S.E.2d at 845; Burchette, 15 Va. App.
at 437-38, 425 S.E.2d at 85.
Moreover, it is apparent from the record that appellant's
brother was both aware of the presence of the cocaine in the bill
and actually possessed it, and the circumstantial evidence did
not exclude the reasonable hypothesis that his possession of the
cocaine was exclusive. When appellant's brother entered the
bedroom and saw the officers, he immediately reached for the bill
containing the cocaine. Appellant, on the other hand, was sound
asleep when the officers arrived, and no evidence in the record
indicates he was ever awake at a time when the bill containing
the cocaine was present on the chest of drawers. While appellant
was not a permanent resident of his mother's residence and
arrived only the night before his arrest, appellant's brother
lived there and had access to his mother's bedroom, which was
where appellant was sleeping. Appellant's mother testified that
"sometimes [appellant's brother] might . . . bring something in
there and leave and forget." Because the circumstantial evidence
is equally susceptible to an interpretation that is consistent
with appellant's innocence -- that appellant's brother placed the
bill containing the cocaine on the chest of drawers and appellant
was never aware of its presence before his arrest, the trial
court erred when it concluded the Commonwealth proved appellant's
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guilt beyond a reasonable doubt. See Williams v. Commonwealth,
193 Va. 764, 772, 71 S.E.2d 73, 77 (1952).
For the foregoing reasons, we reverse the conviction of
possession of cocaine.
Reversed and dismissed.
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