John Ronald DeVaul v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
JOHN RONALD DeVAUL
MEMORANDUM OPINION * BY
v. Record No. 1345-00-1 JUDGE ROBERT J. HUMPHREYS
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Christopher P. Reagan, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
John Ronald DeVaul appeals his conviction, after a bench
trial, for possession of cocaine. DeVaul argues that the trial
court erred in finding the evidence sufficient to establish that
he constructively possessed the drug. Because this opinion has no
precedential value and because the parties are conversant with the
facts, we do not recite them in detail here.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Furthermore, the judgment of a trial court will be disturbed on
appeal only if plainly wrong or unsupported by the evidence.
See Code § 8.01-680.
During trial, the trial court overruled DeVaul's motions to
strike and ultimately convicted him of the offense finding the
evidence sufficient to support a "reasonable inference that
[DeVaul] had knowledge of that which was in plain view in the
room."
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character
of the drug and that the accused consciously possessed it."
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871
(1998). "[P]roof of actual possession, [however,] is not
required; proof of constructive possession will suffice.
Constructive possession may be established when there are acts,
statements, or conduct of the accused or other facts or
circumstances which tend to show that the [accused] was aware of
both the presence and character of the substance and that it was
subject to his dominion and control." Id. at 426, 497 S.E.2d at
872. "Mere proximity to the controlled substance, however, is
insufficient to establish possession. Nevertheless, the
possession need not be exclusive." Eckhart v. Commonwealth, 222
Va. 447, 450, 281 S.E.2d 853, 855 (1981).
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"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence."
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
83 (1992) (citations omitted). "However, the Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993).
Here, DeVaul contends that the Commonwealth merely proved
his proximity to the drugs, which he alleges is insufficient to
establish constructive possession. To the contrary, unlike the
situation in Haskins v. Commonwealth, 31 Va. App. 145, 151, 521
S.E.2d 777, 780 (1999), the Commonwealth also proved that DeVaul
was the sole person in the room at the time Officer Joseph
DeStefano arrived. Furthermore, the Commonwealth proved that
DeVaul had been sleeping in the room, a factor from which the
trial court could reasonably infer that DeVaul was at least in
joint possession and control over the room. See Gillis v.
Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974)
(occupancy of premises as a co-tenant is a factor to be
considered with other evidence in determining whether a
defendant had constructive possession of contraband). Moreover,
the drugs were found in the bathroom on top of the toilet seat.
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Although the bathroom light was not on, the foyer light was on,
and the drug paraphernalia was in the plain view of someone
standing at or near the doorway to the room. Viewed in the
light most favorable to the Commonwealth, this evidence supports
the reasonable inference that DeVaul was aware of the presence
and character of the paraphernalia and contraband.
Based on the totality of the circumstances, we do not find
that the trial court was "plainly wrong" in finding the evidence
sufficient to establish that DeVaul constructively possessed the
contraband. See Eckhart, 222 Va. at 451, 281 S.E.2d at 855
(evidence sufficient to establish that defendant was aware of
drugs found in a bedroom she shared with her husband, when she
was seated outside the room in a location from which the drugs
were visible).
Affirmed.
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