Collins v. Commonwealth

Benton, J.,

dissenting.

Detective Huston admitted that he saw nothing in Reginald Collins’ hand when Collins exited the automobile. Huston also admitted that what he described as a throwing motion may not have been a throw:

Q: Could he have been off balance getting out of the car?

A: Yes, sir.

Q: Could he have slipped and fallen in attempting to catch himself?

A: It’s possible, yes, sir.

Q: So it’s not necessarily a throwing motion then?

A: What I perceived then was a throwing motion. It could have been anything.

“[Wjhere, as here, a conviction is based on circumstantial evidence, ‘all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.’ ” Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). “Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction.” Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).

On the evidence in this record, the Commonwealth failed to prove Collins’ possession beyond a reasonable doubt. The circumstantial evidence shows only that a detective saw Collins from a distance of thirty feet in a dimly lit parking lot make a motion as Collins exited his automobile. The detective admitted that the motion he saw “could have been anything” and that he never saw anything in Collins’ hand. This proof is not entirely consistent with guilt nor is it inconsistent with Collins’ claim of innocence. It does not negate the hypothesis that the cocaine was already on the ground where it was found. The proof merely raises a suspicion that Collins threw the cocaine under the automobile. When, as here, “the evidence leaves it indefinite which of several hypotheses is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof, however great the probability may be.” Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924).

For these reasons, I dissent and would reverse the convictions.