Omar John v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
OMAR JOHN
MEMORANDUM OPINION * BY
v. Record No. 2487-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Craig S. Cooley for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Omar John (appellant) was convicted in a bench trial of
possession with intent to distribute more than five pounds of
marijuana, in violation of Code § 18.2-248.1(3). He contends
the evidence was insufficient to prove (1) he possessed the
marijuana or (2) he intended to distribute it. For the
following reasons, we affirm appellant's conviction.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The trial court's judgment will not be set aside unless plainly
wrong or without evidence to support it. Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
The evidence established that Trooper Jeff Kandler was
working undercover at the bus station in Richmond "screening
[arriving] passengers." Kandler observed appellant get off a
bus from Washington D.C. with a heavy green bag. They made eye
contact, and appellant quickly walked away and entered the
bathroom. Kandler waited outside the bathroom and saw appellant
exit the bathroom with the green bag. Appellant again made eye
contact with Kandler and abruptly went into the cafeteria where
he bought a drink and french fries. Kandler then lost sight of
him. Two other officers, Detective Tunstall and Investigator
Simpson, joined Kandler and the three waited for appellant to
leave the cafeteria. Appellant walked out of the cafeteria
without the bag. Kandler stated "approximately sixty seconds
elapsed" between the time he lost sight of appellant and
appellant's exit from the cafeteria.
Tunstall and Simpson followed appellant, and Kandler
entered the cafeteria to search for the green bag. Kandler
"noticed the soft drink, the french fries on the table and the
green bag underneath the table." An unidentified female sat at
a table to the right of the bag. Kandler did not touch or move
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the bag. He left the bag in the cafeteria and returned to the
main station area.
Kandler approached appellant and identified himself as a
police officer. Appellant accompanied the three officers to a
nearby office. Kandler asked appellant if he had arrived on a
bus; if so, where the bus originated; and if appellant had a
bag. Appellant stated he got off a bus from Washington D.C. but
denied carrying a bag. Kandler sent Tunstall and Simpson to the
cafeteria to recover the green bag. Simpson retrieved the green
bag from the floor in the far right corner of the cafeteria next
to a table that held a soft drink and fries. An unidentified
Hispanic male sat at the table but denied ownership of the bag.
Neatly folded clothing, a water bottle with "Omar" written on it
and a seven pound brick of marijuana with a value of $8,400
wholesale were inside the bag. Four to five minutes elapsed
between the time the detectives entered the office with
appellant and the detectives recovered the green bag.
II. SUFFICIENCY OF THE EVIDENCE
To support a conviction based upon
constructive possession, 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.
Langston v. Commonwealth, 28 Va. App. 276, 285, 504 S.E.2d 380,
384 (1998).
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"[I]f the proof relied upon by the
Commonwealth is wholly circumstantial . . .
to establish guilt beyond a reasonable doubt
all necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence. . . . To accomplish that, the
chain of necessary circumstances must be
unbroken and the evidence as a whole must
satisfy the guarded judgment that both the
corpus delicti and the criminal agency of
the accused have been proved to the
exclusion of any other rational hypothesis
and to a moral certainty. . . ."
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977) (quoting LaPrade v. Commmonwealth, 191 Va. 410, 418,
61 S.E.2d 313, 316 (1950)). The evidence must be taken as a
whole and in sequence to determine whether appellant
constructively possessed the marijuana in the green bag.
Appellant contends the evidence was insufficient to convict
him of possessing the marijuana because the Commonwealth failed
to: (1) establish he knew the green bag contained marijuana and
(2) there was a break in the chain of evidence when the green
bag was out of the police officers' sight. We disagree.
Kandler testified appellant got off the bus with the green
bag and carried it to the cafeteria. Appellant denied the bag
was his. The items recovered from the bag included a water
bottle with "Omar" written on it and his personal belongings.
The evidence clearly establishes the bag as his. See Shurbaji
v. Commonwealth, 18 Va. App. 415, 424, 444 S.E.2d 553, 554
(1994); Albert v. Commonwealth, 2 Va. App. 734, 742, 347 S.E.2d
536, 538-39 (1986). Additionally, his denial of ownership
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allowed the trial court to "infer guilty knowledge on the part
of [appellant] upon finding his testimony untruthful . . . and
upon consideration of his conduct prior to and during [the
incident]." Speight v. Commonwealth, 4 Va. App. 83, 89, 354
S.E.2d 95, 99 (1987).
Next, appellant argues that because the bag was left
unguarded in a public place while the officers were questioning
him, some other person may have tampered with it and placed the
seven pound brick of marijuana inside.
"Where circumstantial evidence is sufficient to exclude
every reasonable hypothesis of innocence, it is sufficient to
support a conviction. The hypotheses which must be thus
excluded are those which flow from the evidence itself, and not
from the imaginations of defense counsel." Cook v.
Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983)
(citing Turner v. Commonwealth, 218 Va. 141, 148-49, 235 S.E.2d
357, 361 (1977)).
No evidence indicated that anyone else touched the bag
during the brief period it was out of the officers' view. The
marijuana was placed under neatly folded clothing with no
evidence of disturbance, and the bag was in the same location as
when appellant set it down. The fact that other people were in
the immediate area, without more, does not require a contrary
finding.
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Thus, we hold that the evidence was sufficient to prove
appellant possessed both the bag and the drugs located within
it.
II. INTENT TO DISTRIBUTE
Appellant next contends that even assuming the drugs
belonged to him, the evidence did not establish that he intended
to distribute them.
Where an offense consists of an act
combined with a particular intent, proof of
the intent is essential to the conviction.
Because direct proof of intent is often
impossible, it must be shown by
circumstantial evidence. But "[w]here . . .
the Commonwealth's evidence of intent to
distribute is wholly circumstantial, 'all
necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence and exclude every reasonable
hypothesis of innocence.'"
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1998) (internal citations omitted).
Appellant possessed over seven pounds of marijuana with a
wholesale value of $8,400. The trial court found that the
marijuana "[w]as compressed for the purpose of transporting. It
does not appear that any of it . . . you don't have a hunk out
of it. I have no indication that he had been using it. It's a
tremendous amount. I haven't seen that much marijuana in this
Court in a long time." Officer Moore's testimony that
ordinarily such a large amount is inconsistent with personal use
allows the trial court to infer these drugs were for
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distribution. See Glenn v. Commonwealth, 10 Va. App. 150, 155,
390 S.E.2d 505, 508 (1990) (holding jury could reasonably
conclude that possession of over four pounds of marijuana was
inconsistent with personal use and consistent with
distribution); Gregory v. Commonwealth, 22 Va. App. 100, 110,
468 S.E.2d 117, 122-23 (1996) (holding evidence sufficient in
view of quantity of cocaine, even though expert admitted it was
conceivable a user with a "serious drug addiction" could consume
that amount of cocaine).
Lastly, nothing in the record indicates that appellant had
the brick of marijuana for his personal use. No drug
paraphernalia or other indicia of personal use was in his bag or
on his person. See Clark v. Commonwealth, 32 Va. App. 286,
304-05, 527 S.E.2d 484, 493 (2000) (noting a factor from which
one can infer intent to distribute was that no paraphernalia for
smoking was found); Glasco v. Commonwealth, 26 Va. App. 763, 497
S.E.2d 150 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
Therefore, we hold the evidence sufficient to support a
finding that appellant intended to distribute the drugs found in
the green bag.
For the foregoing reasons, we affirm.
Affirmed.
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