George Anthony Patterson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Beales
Argued by teleconference
GEORGE ANTHONY PATTERSON
MEMORANDUM OPINION* BY
v. Record No. 1567-05-2 JUDGE RANDOLPH A. BEALES
AUGUST 8, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
Keith A. Jones (Law Office of Keith A. Jones, P.C., on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
George Anthony Patterson (hereinafter “appellant”) appeals from his convictions by
bench trial of possession of marijuana and possession of a firearm by a felon. In addition to
challenging the sufficiency of the evidence, appellant argues the trial court erred in finding that a
vehicle registration card was inadmissible hearsay. Assuming without deciding that the trial
court erred in not admitting the registration card, we find such error harmless and affirm
appellant’s convictions.
I.
“On appeal, we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
II.
FACTS
On June 3, 2004, a narcotics dog called in by Officer B.E. Davis gave a positive alert to
appellant’s car, which was parked in a restaurant lot. Approximately thirty minutes after the dog
alerted, Davis observed appellant exit the restaurant, open the driver’s door, and rummage
through the front and back seats. Appellant got out of the car and opened the engine hood. As
appellant began to look at the engine, Davis approached him and informed him of the dog’s
response. Davis asked appellant if he owned the car, and appellant stated it was his car.
Using the key, which appellant provided to him, Davis opened the car trunk and searched
it. Inside he found a prescription bottle bearing appellant’s name, several pieces of mail
addressed to appellant, and several photographs of appellant. He also discovered a bank receipt
in appellant’s name. These items were scattered throughout the trunk, some of them on top of or
touching a black and white Foot Locker bag that contained a pistol and two matching bullets.
Another bag in the trunk held loose marijuana and a digital scale.
At trial, appellant attempted to introduce a copy of the vehicle’s registration card to
establish he was not the record owner of the vehicle. Appellant argued that the registration card
fell within the public records exception to the hearsay rule. In sustaining the Commonwealth’s
objection, the trial court held that the registration card was “not a public record. . . . D.M.V.
records may be, but the registration found in a car is hearsay.”
The trial court found appellant guilty of both possession of marijuana and possession of a
firearm by a felon. This appeal followed.
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III.
ANALYSIS
A.
Appellant asserts the trial court erred in ruling that the registration card did not fall within
the public records exception to the hearsay rule. We need not address the admissibility of the
registration card because even if the trial court erred by failing to admit it, such error was
harmless.1
From the record before us, “we can say ‘with fair assurance, after pondering all that
happened without stripping the [asserted] erroneous action from the whole’ that it plainly
appears that [appellant] has had a fair trial and that the verdict and judgment were not
substantially affected by . . . [the failure of the trial court to admit the registration card into
evidence].” Clay v. Commonwealth, 262 Va. 253, 261, 546 S.E.2d 728, 732 (2001) (citation
omitted). See also Code § 8.01-678.
Here, the evidence showed not only that appellant possessed keys to the car, but that he
opened the car door and checked under the hood before police approached him. Appellant was
the sole occupant of the car and told police it belonged to him. In addition, several items in the
trunk bore his name. Based upon this evidence, we conclude that admission of the registration
card would not have “substantially influenced” the trial court’s determination that appellant
possessed the contraband in the trunk. See Hardy v. Commonwealth, 17 Va. App. 677, 440
S.E.2d 434 (1994) (appellant who was sole occupant of vehicle registered to brother-in-law
1
Appellant, it may be noted, failed to make the excluded registration card a part of the
record on appeal. “An appellate court must dispose of the case upon the record and cannot base
its decision upon appellant’s petition or brief, or statements of counsel in open court. We may
act only upon facts contained in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635,
432 S.E.2d 2, 6 (1993) (quoting Riddick v. Commonwealth, 135 Va. 724, 726, 115 S.E. 523, 524
(1923)).
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properly found to be in possession of cocaine discovered in trunk). Accordingly, any error
committed by the trial court in excluding the card was harmless.
B.
We also reject appellant’s claim that the evidence was insufficient to support his
convictions for possession of a firearm and possession of marijuana.
“Constructive ‘possession may be proved by evidence of acts, declarations or conduct of
the accused from which the inference may be fairly drawn that he knew of the existence of
narcotics at the place where they were found.’” Hardy, 17 Va. App. at 682, 440 S.E.2d at
437 (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975)
(additional citations omitted)). Moreover, the substance in question must be “‘subject to his
dominion and control.’” Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155
(1998) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). “In
resolving this issue, the court must consider ‘the totality of the circumstances disclosed by the
evidence.’” Id. (quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979)).
While “[o]ccupancy of a vehicle where [contraband is] found is insufficient, standing
alone, to support an inference of possession, . . . it is a circumstance which the fact finder may
consider along with other evidence when determining whether a person knowingly possessed
drugs.” Hardy, 17 Va. App. at 682, 440 S.E.2d at 437 (citations omitted). Moreover,
“[a]lthough mere proximity to drugs is insufficient to establish possession, it is a circumstance
which may be probative in determining whether an accused possessed such drugs.” Glasco, 26
Va. App. at 774, 497 S.E.2d at 155. Finally, possession “need not always be exclusive. The
defendant may share it with one or more.” Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc) (quoting Gillis v. Commonwealth, 215 Va. 298, 301-02, 208
S.E.2d 768, 771 (1974)).
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Appellant concedes that he had dominion and control over the vehicle, but contends that
the evidence was insufficient because the Commonwealth presented no evidence to prove he had
handled the contraband or had sole access to the car.
Circumstantial evidence may establish the elements of a crime,
provided it excludes every reasonable hypothesis of innocence.
“The statement that circumstantial evidence must exclude every
reasonable theory of innocence is simply another way of stating
that the Commonwealth has the burden of proof beyond a
reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513,
578 S.E.2d 781, 785 (2003). This Court must determine not
whether there is some evidence to support [appellant’s] hypothesis
of innocence but, rather, whether a reasonable fact finder, upon
consideration of all the evidence, could have rejected appellant’s
theories and found him guilty beyond a reasonable doubt. Whether
a hypothesis of innocence is reasonable is a question of fact.
Corbin v. Commonwealth, 44 Va. App. 196, 202-03, 604 S.E.2d 111, 114 (2004) (citations
omitted).
Here, we cannot say that the fact finder’s rejection of appellant’s hypothesis of innocence
was unreasonable. Examining the “totality of the circumstances,” the fact finder could
reasonably conclude that appellant was aware of the marijuana and gun and that they were
subject to his dominion and control. Davis saw appellant open the car, rummage through the
interior compartment, and examine the engine, presumably for purposes of maintenance and
repair. See Logan v. Commonwealth, 19 Va. App. 437, 444-45, 452 S.E.2d 364, 369 (1994)
(defendant’s acknowledged responsibility for repair work a factor in determining car was subject
to his dominion and control). When Davis approached appellant, he told Davis the car belonged
to him and produced a set of keys. See Jetter v. Commonwealth, 17 Va. App. 745, 747, 440
S.E.2d 633, 634 (1994) (defendant’s possession of car keys to vehicle where drugs are found is
“significant evidence” from which it can be inferred the drugs are “subject to his dominion and
control”). The trunk contained photographs of appellant, as well as sundry items bearing his
name, including a magazine placed directly on top of the Foot Locker bag containing the gun.
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Such evidence, when viewed as a whole, was sufficient to establish beyond a reasonable doubt
that appellant possessed the gun and marijuana.
IV.
For the foregoing reasons, we hold that, even if the trial court erred by excluding the
vehicle registration card, such error was harmless, and the trial court had sufficient evidence
upon which to base the convictions. The judgment of the trial court is, therefore, affirmed.
Affirmed.
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