Jimmie McAurther Wright v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judge Elder, Senior Judge Duff and
Retired Judge Plummer *
Argued at Alexandria, Virginia
JIMMIE MCAURTHER WRIGHT
MEMORANDUM OPINION** BY
v. Record No. 1780-96-4 JUDGE LARRY G. ELDER
NOVEMBER 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
Mark Petrovich (Martin, Arif & Petrovich, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Jimmie McAurther Wright (appellant) appeals his conviction
of possession of cocaine with intent to distribute in violation
of Code § 18.2-248. He contends that the evidence was
insufficient to support his conviction. 1 For the reasons that
follow, we reverse and remand.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a light most
*
Retired Judge William G. Plummer took part in the
consideration of this case by designation pursuant to Code
§ 17-116.01.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
At trial, the trial court ruled that appellant waived his
motion to strike by presenting evidence during the Commonwealth's
case-in-chief. We do not address the merits of this ruling
because the Commonwealth concedes that appellant preserved for
appeal his challenge of the sufficiency of the evidence.
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,
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).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). "[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
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evidence itself, and not from the imagination of defendant's
counsel.'" Id. at 289-90, 373 S.E.2d at 338-39.
In a prosecution under Code § 18.2-248, the Commonwealth has
the burden of proving two elements: (1) that the accused
possessed a controlled substance (2) while having the specific
intent to distribute such a substance. See Wilkins v.
Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444 (1994);
Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15
(1991); Code § 18.2-248. Appellant contends that the
Commonwealth failed to prove either element. We consider each in
turn.
A.
POSSESSION
We hold that the evidence was sufficient to prove that
appellant knowingly and intentionally possessed cocaine in the
motel room. "To convict a defendant of illegal possession of
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." Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990)
(citation omitted). "Physical possession giving the defendant
'immediate and exclusive control' is sufficient." Gillis v.
Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974).
The testimony of Captain Lomonaco proved that appellant
possessed a plastic bag containing objects the size and shape of
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little rocks in his right pants pocket at the time the captain
patted down appellant's clothing. The evidence of appellant's
conduct after Captain Lomonaco felt the plastic bag in his pocket
and the circumstances surrounding the discovery of the plastic
bag containing crack cocaine on the ground outside of the
bathroom window was sufficient to support the jury's conclusion
that the two bags were one and the same. Immediately after
Captain Lomonaco felt the plastic bag in appellant's pants
pocket, appellant pushed the captain away and barricaded himself
inside the bathroom. When the officers arrested appellant forty
or fifty seconds later, the bag in his pants pocket was no longer
present. The window to the bathroom had been closed prior to
appellant's evasive action and was open when the officers kicked
in the door and overpowered appellant. Captain Lomonaco
testified that the toilet did not flush while appellant was in
the bathroom and that he observed appellant "leaning out the
[bathroom] window with what appeared to be both hands." The
plastic bag containing the crack was found on top of "fresh snow"
about ten to fifteen feet from the outside of the bathroom
window. Detective Feightner testified that there were no tracks
other than his within ten or fifteen feet of the bag.
Appellant's awareness of the cocaine in his pocket and his intent
to possess it could be reasonably inferred from his evasive
conduct after the captain felt the bag in his pocket. Any
reasonable hypotheses that the appellant disposed of the plastic
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bag in his possession in some manner other than tossing it out
the window or that the bag found on the ground was placed there
by someone else were excluded by two key facts: (1) only forty
or fifty seconds passed in between the time that Captain Lomonaco
felt the plastic bag in appellant's pocket and discovered that
the plastic bag was no longer there and (2) the toilet did not
flush while appellant was in the bathroom.
This case is distinguishable from Gordon v. Commonwealth,
212 Va. 298, 183 S.E.2d 735 (1971), because the circumstances
that rendered the gap in the police's observation of the
defendant "fatal" in that case are not present here. In Gordon,
the defendant was seen fleeing from the police carrying an
envelope. See id. at 299, 183 S.E.2d at 736. When the defendant
was arrested following a chase on foot, no envelope was in his
possession. See id. A short while later, a detective found an
envelope containing "narcotics works," on some grass adjacent to
a "fairly busy" street that was near the route taken by the
defendant. See id. at 299-300, 183 S.E.2d at 736. The Virginia
Supreme Court held that the circumstantial evidence was
insufficient to prove that the envelope containing the heroin had
been in the defendant's possession. See id. at 300, 183 S.E.2d
at 737. The Court reasoned that because the envelope found by
the detective was located next to "the public street on which
numerous persons were gathered" and because no officer had seen
where along defendant's escape route he had discarded his
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envelope, the circumstantial evidence had failed to exclude the
reasonable hypothesis that the envelope found by the detective
had been dropped by some other pedestrian walking along the
street. See id. at 300-01, 183 S.E.2d at 737.
Unlike Gordon, the officers in this case could pinpoint the
area where appellant would have discarded the plastic bag to the
patch of ground adjacent to the bathroom window. Moreover,
Captain Lomonaco observed appellant reaching toward the opened
window with his hands as he and Officer Miller attempted to kick
in the bathroom door. In addition, the bag containing the crack
was found on top of undisturbed snow and was ten to fifteen feet
away from a path that the record established was frequented only
by a dog owner and his or her dog.
B.
INTENT TO DISTRIBUTE
Although we conclude that the evidence was sufficient to
prove that appellant possessed cocaine, we hold that the evidence
was insufficient to support the jury's conclusion that appellant
had the specific intent to distribute the drug. The intent of an
accused to distribute drugs may be shown by circumstantial
evidence. Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d
139, 140 (1986). Circumstances that shed light on the accused's
specific intent regarding illegal drugs in his possession include
(1) the quantity and method of packaging of the drugs possessed
by him, (2) the presence or absence of an unusual amount of money
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suggesting profit from sales, and (3) the presence or absence of
drug paraphernalia. See Servis v. Commonwealth, 6 Va. App. 507,
524-25, 371 S.E.2d 156, 165 (1988); see also Dukes v.
Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984);
Wells, 2 Va. App. at 551-52, 347 S.E.2d at 140.
Although the evidence in this case created a suspicion that
appellant may have had the intent to distribute drugs, it was not
inconsistent with the hypothesis that he merely possessed cocaine
with the intent to consume it himself. The evidence established
that appellant possessed about six grams of crack cocaine with a
street value of between $600 and $900 and that he had $232 on his
person at the time of his arrest. However, no evidence indicated
whether these amounts of cocaine and cash were consistent with
distribution or personal use. Although a blue gym bag containing
drug paraphernalia and razor blades was discovered on a bed in
the motel room where appellant was arrested, no evidence
established that these items belonged to appellant rather than to
one of the room's other two occupants. The motel room, itself,
was registered to "Bobby Goode," and a man by this name answered
the door when the police arrived to search the room. Based on
these circumstances, the mere possession of the cocaine and cash
by appellant is insufficient to exclude the reasonable hypothesis
that appellant had purchased cocaine for personal use from one of
the other occupants of the room prior to the officers' arrival.
For the foregoing reasons, we reverse appellant's conviction
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of possession of cocaine with intent to distribute in violation
of Code § 18.2-248 and remand the proceeding to the trial court
for a new trial on the charge of possession of cocaine, if the
Commonwealth so elects.
Reversed and remanded.
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