Waverly G. Hawkins v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
WAVERLY G. HAWKINS
MEMORANDUM OPINION * BY
v. Record No. 2402-95-1 JUDGE RICHARD S. BRAY
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
John C. Lauterbach, Jr. (James L. Grandfield,
Assistant Public Defender, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Waverly G. Hawkins (defendant) was convicted in a jury trial
for possession of cocaine and, on appeal, challenges the
sufficiency of the evidence. We affirm the conviction.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988). The jury's verdict will not be disturbed
unless plainly wrong or without evidence to support it. Id. The
credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination. Long v. Commonwealth, 8 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 194, 199, 379 S.E.2d 473, 476 (1989).
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
While on routine patrol, Officer Vidrine observed an
unlighted truck parked in a roadway. As Vidrine's vehicle
neared, he saw the passenger, defendant, "ben[d] down into the
floorboard," "immediately [sit] up . . . back in the seat" and
toss "some papers . . . out the passenger's side window."
Further investigation disclosed an empty cigarette pack, several
"books of matches," "a couple of burnt matches," and a "piece of
screen" on the ground beneath the passenger window of the truck.
Looking inside, Vidrine observed numerous additional "burnt
matches" on the passenger side of the truck floorboard and "white
crumbs" in defendant's lap. As a result of his training and
experience, Vidrine recognized the screen and burned matches as
"indicative of drug usage" and suspected the "crumbs" were crack
cocaine.
At Vidrine's request, defendant exited the truck, and
Vidrine noticed a small white "rocklike" substance of suspected
crack cocaine on the passenger seat. A search of defendant's
person disclosed more "crumbs of the same type of substance in
[defendant's] left front trouser pocket." Under the passenger
seat, Vidrine found an item which he identified as a crack
smoking device, including a screen and wire mesh, and subsequent
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laboratory analysis confirmed the presence of cocaine residue on
the pipe.
[P]ossession of a controlled substance may be
actual or constructive. "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.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987) (citation omitted) (quoting Drew v. Commonwealth, 230 Va.
471, 473, 338 S.E.2d 844, 845 (1986)). Circumstantial evidence
is sufficient to support a conviction provided it excludes every
reasonable hypothesis of innocence. Tucker v. Commonwealth, 18
Va. App. 141, 143, 442 S.E.2d 419, 420 (1994); see McGee, 4 Va.
App. at 322, 357 S.E.2d at 740; Johnson v. Commonwealth, 2 Va.
App. 598, 604-05, 347 S.E.2d 163, 167 (1986). Although
defendant's mere proximity to drugs is insufficient to establish
possession, Code § 18.2-250, it is a fact which may be considered
in resolving the issue. See Lane v. Commonwealth, 223 Va. 713,
716, 292 S.E.2d 358, 360 (1982); Brown v. Commonwealth, 15 Va.
App. 1, 9, 421 S.E.2d 877, 882-83 (1992) (en banc).
Here, defendant was a passenger in a darkened truck parked
in the road. Officer Vidrine initially observed defendant in a
bending position but, when Vidrine's headlights illuminated the
truck, he immediately arose and discarded several items from the
window, including matchbooks, burned matches and a screen, all
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items related to cocaine use. Vidrine found additional burned
matches on the passenger floorboard of the truck and white
"crumbs" resembling crack cocaine in defendant's lap, in his
pants pocket and on the passenger seat. A crack pipe found
beneath the passenger seat tested positive for cocaine residue.
Such evidence provided ample support for the court's conclusion
that defendant constructively possessed cocaine, aware of the
nature and character of the illicit substance.
Defendant's reliance on Jones v. Commonwealth, 17 Va. App.
572, 439 S.E.2d 863 (1994), and Scruggs v. Commonwealth, 19 Va.
App. 58, 448 S.E.2d 663 (1994), is misplaced. In Jones,
defendant was a passenger in an automobile with five small rocks
of cocaine on a tray located between the passenger and driver
seats and cocaine residue on a soda can beneath the passenger's
seat. Thus, the only evidence incriminating Jones was his
proximity to the drugs, clearly insufficient to support a
conviction. 17 Va. App. at 574, 439 S.E.2d at 864. In Scruggs,
the police found cocaine secreted within a tear in the passenger
seat of his vehicle, also occupied by another person, and Scruggs
in actual possession of cash and a firearm. 19 Va. App. at
59-60, 448 S.E.2d at 664. In reversing the conviction, the Court
recognized that Scruggs' possession of these items was probative
of an intent to distribute, but reasoned that "circumstantial
proof of Scruggs' intent [could not] be used to 'bootstrap' proof
of the predicate fact that he actually or constructively
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possessed cocaine." Id. at 62, 448 S.E.2d at 665. Manifestly,
the conviction in this instance is supported by additional
substantive evidence.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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