Craig Antonio Dawson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
CRAIG ANTONIO DAWSON
MEMORANDUM OPINION * BY
v. Record No. 1687-02-1 JUDGE WALTER S. FELTON, JR.
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Walter J. Ford, Judge Designate
Barrett R. Richardson (Richardson and
Rosenberg, LLC, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Craig Dawson was convicted in a bench trial of possession of
cocaine, in violation of Code § 18.2-250. On appeal, Dawson
contends that the evidence was insufficient to prove beyond a
reasonable doubt that he possessed cocaine. For the following
reasons, we affirm the judgment of the trial court.
I. BACKGROUND
On January 16, 2002, Detective B.J. Karpowski and several
other officers of the Portsmouth Police Department executed a
search warrant for drugs at 1520 Highland Avenue. During the
execution of the warrant, Detective Karpowski entered the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
kitchen and observed Craig Dawson standing next to the counter.
On the counter, two to three inches from Dawson, was a
one-dollar bill with several pieces of an off-white, rock-like
substance on it. Detective Karpowski believed the substance to
be crack cocaine. There was nothing else on the counter.
Chemical analysis determined the substance to be cocaine.
At trial, Detective Karpowski testified on
cross-examination that Dawson was found in the kitchen standing
near the counter. He was not a resident of the house.
Detective Karpowski stated that Dawson's hands were not on the
counter and he made no movements or gestures toward the cocaine.
Only one other person was in the kitchen, and he was
approximately six feet away from Dawson. When asked about the
number of people that were found in the residence at the time
the search warrant was executed, Detective Karpowski testified
that there were approximately five people located in the house.
In addition to the kitchen, drugs and drug paraphernalia were
recovered from other areas of the house. Dawson was convicted
of possession of cocaine, in violation of Code § 18.2-250.
II. ANALYSIS
On appeal, Dawson contends the evidence was insufficient to
prove beyond a reasonable doubt that he possessed cocaine. We
disagree.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
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most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992).
Dawson was convicted of possession of cocaine based on the
theory of constructive possession. To support a conviction
based on constructive possession of a controlled substance, "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).
Dawson argues there were no other factors, other than
proximity to the drugs, to establish a connection between him
and the drugs. He contends that mere proximity to the drugs
cannot support his conviction for possession. Behrens v.
Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).
While it is true that proximity to a controlled substance is
insufficient alone to establish possession, it is a factor to
consider when determining whether the accused constructively
possessed drugs. Brown v. Commonwealth, 15 Va. App. 1, 9, 421
S.E.2d 877, 882 (1997). "A person's ownership or occupancy of
premises on which the subject item is found, proximity to the
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item, and statements or conduct concerning the location of the
item are probative factors to be considered in determining
whether the totality of the circumstances supports a finding of
possession." Gregory v. Commonwealth, 28 Va. App. 393, 398, 504
S.E.2d 886, 888 (1998).
Although Dawson's mere proximity to the illicit drug is not
alone sufficient to prove possession, and his occupancy of
premises where other drugs and drug paraphernalia are found does
not create a presumption of possession, the totality of the
circumstances present in this case provides sufficient evidence
for the trial court to reasonably conclude that Dawson was
guilty beyond a reasonable doubt of possession of cocaine. See
Walton v. Commonwealth, 255 Va. 422, 497 S.E.2d 869 (1998);
Glasco v. Commonwealth, 26 Va. App. 763, 497 S.E.2d 150 (1998);
Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543 (1997).
A search warrant for drugs was executed for the residence.
Upon their entry, the officers found five individuals and
evidence of drugs and drug use throughout the residence. Dawson
was found in the kitchen, two to three inches from a dollar bill
with crack cocaine on it. Nothing else was located on the
counter, and no one else was in close proximity. The only other
person in the kitchen was approximately six feet away from
Dawson. That Dawson's hands were not on the counter and that he
made no movements or gestures toward the cocaine were among all
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the factors to be considered in the totality of the
circumstances.
It was reasonable for the trial court to conclude that
Dawson was aware that drugs were present and being used in the
residence and that he knew of the presence and character of the
substance located mere inches from him. Dawson's proximity to
the drugs on the counter supports the trial court's finding that
he exercised dominion and control over the cocaine. Based on
the totality of the circumstances, we conclude that the evidence
was sufficient to prove beyond a reasonable doubt that Dawson
possessed cocaine.
The judgment of the trial court is affirmed.
Affirmed.
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