Van Derrick Tucker v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
VAN DERRICK TUCKER
MEMORANDUM OPINION * BY
v. Record No. 0348-97-2 JUDGE RUDOLPH BUMGARDNER, III
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
(Paul C. Bland; Beverly M. Murray, on brief),
for appellant. Appellant submitting on
brief.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
The defendant was charged with possession of cocaine with
the intent to distribute. After a bench trial, he was found
guilty. He appeals his conviction arguing that there was
insufficient evidence. Finding that the evidence was sufficient
to support the conviction, we affirm.
Officer E.S. Jones arrested the defendant by executing an
outstanding arrest warrant for a parole violation. The defendant
tried to escape arrest, but the officer was able to overcome him.
This officer placed handcuffs on the defendant, conducted a
quick pat-down search but did not check his back pockets, lower
legs, or shoes. Another officer transported the defendant to
jail. While driving him, the officer saw the defendant squirm
around and apparently try to get into his back pocket. Nothing
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was found in the vehicle where the defendant had been seated.
The defendant was placed in a holding cell and watched by
two officers, Officer Jeanette Richardson and the officer who
transported him. He was the only one in the cell. At first he
was seated on a processing bench. He kept moving around and was
told to be still. He finally got up and walked ten to fifteen
feet to a desk and chair. These were at the other end of the
cell at the point farthest from the officers. When seated at the
desk, the defendant was partly out of the officers' sight. While
there, the defendant appeared to be reaching into his right
pocket and messing with his shoes. Richardson remarked to the
other officer that the defendant was trying to ditch something.
When Officer Jones arrived, the defendant's clothes were
disheveled, one pocket was pulled out, and his right shoe was
off. The other officer had Jones check the area where the
defendant had been sitting. In plain sight and within one to two
feet of where the defendant had been seated, Jones found cocaine.
Richardson had been in that area twenty minutes before, she had
sat where the defendant had been seated, and she saw no drugs
there then. Only Jones and the defendant had been back in that
area.
Where an appellant challenges the sufficiency of the
evidence, the evidence must be viewed in the light most favorable
to the Commonwealth, granting it all reasonable inferences fairly
deducible therefrom. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). We may not disturb a
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verdict unless it was "plainly wrong or without evidence to
support it." Stockton v. Commonwealth, 227 Va. 124, 145, 314
S.E.2d 371, 385 (1984). On appeal this Court must "discard the
evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be drawn
therefrom." Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d
603, 606 (1954).
From the evidence, the trial court could properly infer that
the defendant had the illegal drugs on his person. When the
police arrested him, they did not thoroughly search the
defendant. While being transported he appeared to be trying to
get into his pocket, but nothing was found where he was seated.
In the cell he moved away from the jailer and was partially
concealed. He again appeared to be reaching into his pocket.
His clothes were disheveled, his pocket was pulled out, and his
shoe was off. Immediately after he left the cell, the drugs were
found where he had been seated when acting strangely. He had
been alone in the cell, and only twenty minutes before an officer
had looked at the area and seen nothing where the drugs were
found. This evidence supports the inference that the drugs were
discarded by the defendant when he was finally able to remove
them from his person.
Finding evidence to support the findings of the trial court,
we affirm.
Affirmed.
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Benton, J., dissenting.
The majority concludes that the circumstances were
sufficient to permit an inference that Van Derrick Tucker
possessed the cocaine found in the holding cell. I would reverse
the conviction because the evidence was insufficient to prove
beyond a reasonable doubt that Tucker constructively possessed
the cocaine.
Because no evidence proved that Tucker was ever in actual
possession of the cocaine, the question is whether Tucker
constructively possessed the cocaine. His proximity to the
twenty-three bags of cocaine is insufficient to prove beyond a
reasonable doubt that he constructively possessed them. See
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822
(1977). In order to prove that Tucker constructively possessed
the cocaine, the Commonwealth was required to prove facts and
circumstances that indicated that Tucker was aware of the
presence of the cocaine and exercised dominion and control over
it. Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986). Moreover, in order for circumstantial evidence to prove
guilt beyond a reasonable doubt, the evidence must be wholly
consistent with guilt and wholly inconsistent with innocence.
See Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393
(1984).
Tucker fled when the officer approached to arrest him for a
parole violation. After the officer caught Tucker and struggled
with him, the officer put handcuffs on Tucker and searched Tucker
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before putting him in a police vehicle. The officer did not find
the twenty-three bags of cocaine on Tucker. The officer does not
suggest how she could not have discovered twenty-three bags of
cocaine that the majority infers were then in Tucker's
possession.
Although the officer who transported Tucker to jail
testified at trial that he saw Tucker "squirming around," he
obviously was not concerned that Tucker may have had a weapon or
contraband because the officer did not search Tucker. When that
officer delivered Tucker to the jail, he put Tucker in a holding
cell. The holding cell was accessible to a variety of people and
used to hold arrested persons. The jail was very busy at that
time. No one searched the holding cell before Tucker was placed
there. In the holding cell were a desk, a chair, and a bench.
Furthermore, the officer who was present and watching Tucker "the
whole time" did not see Tucker with the twenty-three bags of
cocaine and did not see Tucker drop anything.
Viewed as a whole, the circumstantial evidence does not
prove beyond a reasonable doubt that Tucker possessed the
cocaine. "Suspicion, no matter how strong, is not enough.
Convictions cannot rest upon speculation and conjecture."
Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d 853,
860 (1997) (citations omitted). Moreover, when evidence is
equally susceptible of two interpretations, one of which is
consistent with the innocence of the accused, the trier of fact
cannot arbitrarily adopt that interpretation which incriminates
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the accused. See Corbett v. Commonwealth, 210 Va. 304, 307, 171
S.E.2d 251, 253 (1969).
The evidence proved that the police officer searched Tucker
and did not find the twenty-three bags of cocaine. The second
police officer then placed Tucker in a holding cell that had not
been searched and that had been used to detain other prisoners.
A third police officer watched Tucker while he was in the holding
cell and did not see Tucker with the twenty-three bags of
cocaine. Only after Tucker was searched and put in the cell that
had not been searched did the police find twenty-three bags of
"chunk-like" cocaine under a desk. On these facts, this
conviction is supported only by speculation and conjecture that
somehow Tucker carried the twenty-three bags of cocaine into the
holding cell.
Because the evidence in this case was wholly circumstantial
and because it did not exclude the reasonable hypothesis of
innocence that another prisoner or person left the twenty-three
bags of cocaine in the cell, the evidence was insufficient to
prove Tucker's guilt beyond a reasonable doubt. I dissent.
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