Wallace L. Wilson, III v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
WALLACE L. WILSON, III
MEMORANDUM OPINION * BY
v. Record No. 1072-00-1 JUDGE G. STEVEN AGEE
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Joseph R. Winston, Special Appellate Defender
(Public Defender Commission, on brief), for
appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Wallace L. Wilson, III (defendant) was convicted and
sentenced in the Circuit Court of the City of Portsmouth for
possession of a firearm while in possession of cocaine in
violation of Code § 18.2-308.4, possession of cocaine with
intent to distribute in violation of Code § 18.2-248 and
obstruction of justice in violation of Code § 18.2-460(C). He
appeals those convictions averring that the evidence was
insufficient to support the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
For the reasons set forth below, we affirm the convictions
for possession under Code §§ 18.2-308.4 and 18.2-248, but
reverse the conviction for obstruction of justice.
I.
On the evening of November 4, 1999, Portsmouth Police
Officer R.G. Suggs was on routine patrol when he observed the
defendant driving a vehicle with a broken taillight. The
defendant and his passenger parked, exited the car and began
walking away when Officer Suggs pulled in behind the vehicle.
Officer Suggs told the defendant that he intended to run a
status check on the defendant's driver's license. The defendant
did not have his license, but verbally provided Officer Suggs
with a name, birth date and social security number.
Officer Suggs' computer check came back "not on file," and
the defendant replied that Officer Suggs had gotten his
information wrong. As Officer Suggs was obtaining additional
information from the defendant for another check, Officer W.G.
Culpepper arrived and walked to the passenger side of the
defendant's vehicle. Officer Culpepper shined his flashlight
through the vehicle's window and observed, in plain view, on top
of the ashtray, a folded dollar bill and a red straw. Officer
Culpepper also detected, from his view, a residue on the
observed item that he concluded to be cocaine or heroin.
Officer Culpepper asked the defendant if the "heroin straw"
belonged to him, and the defendant responded that the "cocaine
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straw" belonged to his passenger who had earlier left the area
at Officer Suggs' request. The defendant then agreed to allow
Officer Culpepper to search the vehicle.
Officer Culpepper proceeded to the driver's side of the
car, shined his light inside and observed the open end of a
plastic bag under the front seat armrest. The bag was right
beside the driver's seat opened toward the driver. Just as
Officer Culpepper leaned inside the car and grabbed the plastic
bag, the defendant "took off running." Officers Suggs and
Culpepper pursued the defendant, apprehending him after a
quarter mile chase.
When Officer Culpepper returned to the vehicle, he found
that the observed bag contained a large chunk of cocaine and two
other bags with a smaller amount of cocaine powder. The officer
also found, underneath the cocaine bag, a loaded handgun. A
subsequent search of the defendant's person revealed $84 in cash
and a razor blade. In addition, Officer Suggs determined that
the vehicle did not belong to the defendant, however it had not
been reported stolen.
At trial, an expert testified that the chunk of cocaine
weighed 3.5 grams, with a street value of $350, and the cocaine
powder had a total weight of 1 gram with a street value of $100.
The expert also testified that the circumstances of the case
were inconsistent with personal use.
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The defendant testified that he knew nothing about the gun,
the dollar bill, the straw or the cocaine. He knew his
passenger by his first name, but had no personal relationship
with him. He claimed he did not know the location of the
passenger at the time of trial.
The defendant further testified that he told Officer
Culpepper that the "cocaine straw" was not his, but denied
telling him it belonged to his passenger. He testified he did
not see the "cocaine straw" as he exited the car and that his
passenger remained in the car several seconds after his exit.
The defendant testified that Officer Suggs was mistaken when he
testified that the defendant and the passenger had exited the
car at the same time.
The defendant also testified that he fled because he had a
suspended driver's license. He admitted, however, that he did
not run until Officer Culpepper had leaned into the car to
retrieve the observed bag.
II.
When the sufficiency of the evidence is challenged, we
consider all the evidence, and any reasonable inferences fairly
deducible therefrom, in the light most favorable to the party
that prevailed at trial, which is the Commonwealth in this case.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). Witness credibility, the weight accorded the
testimony and the inferences to be drawn from proven facts are
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matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
A trial court's judgment is not to be disturbed on appeal unless
it is plainly wrong or without evidence to support it. See Code
§ 8.01-680.
It is well-established that circumstantial evidence is just
as competent and entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt. Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). The
Commonwealth's evidence, however, need not affirmatively
disprove all theories which might negate the conclusion that the
defendant committed the crimes; the conviction will instead be
sustained if the evidence excludes every reasonable hypothesis
of innocence. Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.
Whether an alternative hypothesis of innocence is reasonable is
a question of fact, binding on appeal unless plainly wrong.
Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826,
831-32 (1997).
To convict someone of illegal possession of illicit drugs,
the Commonwealth must prove the defendant was aware of the
presence and character of the drug and that he consciously
possessed it. Andrews v. Commonwealth, 216 Va. 179, 182, 217
S.E.2d 812, 814 (1975). However, actual possession of the
controlled substance is not required; constructive possession
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will suffice. The "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"
prove constructive possession. Drew v. Commonwealth, 230 Va.
471, 473, 338 S.E.2d 844, 845 (1986).
Possession of significant sums of cash and drugs, items
routinely classified as tools of the drug trade, the manner in
which the drugs are packaged and testimony that the quantity and
packaging of the drugs in question is consistent with dealing in
the local drug trade are all significant factors when
determining whether the evidence supports a finding of both
possession and an intent to distribute. White v. Commonwealth,
24 Va. App. 446, 452-53, 482 S.E.2d 876, 879 (1997) (citations
omitted). It is "universally conceded that the fact of an
accused's flight . . . and related conduct, are admissible as
evidence of consciousness of guilt, and thus of guilt itself."
Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476,
480 (1991).
"[P]roof that a person is in close proximity to contraband
is a relevant fact that, depending on the circumstances, may
tend to show that, as an owner or occupant of property or of a
vehicle, the person necessarily knows of the presence, nature
and character of a substance that is found there." Burchette v.
Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992).
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In the instant case, the bag containing drugs was opened
toward the driver's side of the car, the defendant was in
possession of cash and a razor blade, and identified the straw
found by Officer Culpepper as a "cocaine straw." Moreover, the
defendant ran from the scene contemporaneous with Officer
Culpepper leaning into the car close to the items located under
the armrest. "Flight following the commission of a crime is
evidence of guilt . . . ." Clagett v. Commonwealth, 252 Va. 79,
93, 472 S.E.2d 263, 271 (1996).
Furthermore, the gun was found in the same location as the
drugs. "[F]irearms are recognized as tools of the drug trade,
the possession of which are probative of intent to distribute."
Glasco v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150,
156 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
From the totality of these circumstances, the trial judge
could conclude beyond a reasonable doubt that the defendant
constructively possessed the drugs with the intent to distribute
and the gun in conjunction with the drugs.
III.
The defendant was also indicted and convicted under the
felony obstruction of justice statute, Code § 18.2-460(C). This
statute provides inter alia:
If any person by threats of bodily harm or
force knowingly attempts to intimidate or
impede a . . . law enforcement officer . . .
or to obstruct or impede the administration
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of justice in any court . . . he shall be
guilty of a Class 5 felony.
Code § 18.2-460(C) (emphasis added).
The Commonwealth argued on brief that the incorrect
information allegedly given by the defendant to Officer Suggs
was sufficient to convict him under subsection (A) of Code
§ 18.2-460, the misdemeanor provision which requires that a
person "knowingly obstructs . . . a law enforcement officer."
However, the defendant was convicted under the felony provision,
subsection (C), not the misdemeanor provision. Notwithstanding
that the Commonwealth's argument goes to the wrong statute, it
would fail in any event under Ruckman v. Commonwealth, 28 Va.
App. 428, 505 S.E.2d 388 (1998).
Ruckman holds that conflicting or incorrect statements to
the investigating officer do not "obstruct" the officer in the
performance of his duties as contemplated by Code § 18.2-460(A).
Id. at 431, 505 S.E.2d at 390. As the defendant's alleged
statements to Officer Suggs would not sustain a conviction under
the misdemeanor subsection, then ä fortiori Ruckman bars a
conviction under the felony provision of Code § 18.2-460(C) for
similar acts.
The felony provision requires "threats of bodily harm or
force" by the defendant to prove obstruction of justice. The
Commonwealth argues the defendant's flight from the scene is
such an action. This contention is plainly wrong as the
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long-standing precedent of Jones v. Commonwealth, 141 Va. 471,
126 S.E. 74 (1925), reveals: "to escape an officer by running
is not such an obstruction as the law contemplates." Id. at
478, 126 S.E. at 75-76.
The record being devoid of any evidence that the defendant
"by threats of bodily harm or force knowingly attempted to
intimidate or impede the officers," there is clearly no evidence
to support the conviction of obstruction of justice.
IV.
The defendant's convictions under Code § 18.2-308.4 and
Code § 18.2-248 are hereby affirmed. The conviction under Code
§ 18.2-460(C) is hereby reversed and dismissed.
Affirmed in part,
reversed in part.
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Benton, J., concurring and dissenting.
I concur in Part III of the opinion reversing the
conviction for obstruction of justice. I dissent from Part II
of the opinion and, for the reasons that follow, I would reverse
the convictions for possession of cocaine with intent to
distribute and possession of the firearm.
Code § 18.2-250 is very explicit. "Upon the prosecution of
a person [for possession of a controlled substance], ownership
or occupancy of . . . [a] vehicle upon or in which a controlled
substance was found shall not create a presumption that such
person either knowingly or intentionally possessed such
controlled substance." Id. To prove beyond a reasonable doubt
that an accused constructively possessed 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 [accused] was aware of both the presence
and character of the substance and that it was subject to his
dominion and control." Powers v. Commonwealth, 227 Va. 474,
476, 316 S.E.2d 739, 740 (1984).
[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence.
* * * * * * *
"[I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
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inconsistent with innocence. They must
overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. 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."
But, circumstances of suspicion, no
matter how grave or strong, are not proof of
guilt sufficient to support a verdict of
guilty. The actual commission of the crime
by the accused must be shown by evidence
beyond a reasonable doubt to sustain his
conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977) (citations omitted).
The evidence proved that the vehicle Wallace L. Wilson was
driving was not his vehicle and was not stolen. Officer Suggs
testified that Wilson and another man exited the vehicle after
it stopped. Officer Suggs could not see inside the vehicle
before it stopped and, therefore, had no basis to know who owned
or handled the items later found in the vehicle. Officer Suggs
did not testify that the other man exited the vehicle before
Wilson. The other man walked away after Officer Suggs ordered
him to do so.
No evidence proved whether the vehicle belonged to the
other man. The evidence does prove, however, that when Officer
Suggs told Wilson that he needed to speak to him about the
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vehicle's broken lens, the other man attempted to speak to
Officer Suggs. Officer Suggs told the other man to leave
without ascertaining whether he owned the vehicle. Obeying
Officer Suggs, the other man walked away.
When Officer Culpepper arrived and looked in the vehicle,
the other man was not present. In response to the officers'
inquiry, Wilson said that he had no drugs or weapons. Officer
Culpepper testified that he looked in the vehicle and saw a
straw in the ashtray. When he asked Wilson "if that was his
heroin straw in the ashtray," Wilson denied that it was his and
said it belonged to the other man. At Officer Culpepper's
request, Wilson gave the officers permission to search the
vehicle.
No evidence proved that Wilson knew the bag of cocaine was
under the armrest or knew the gun was under the bag under the
armrest. Indeed, Wilson's statements to the officers were that
he was unaware of any drugs or weapons in the vehicle. Officer
Culpepper first searched the car and saw the bag when he used
his search light to illuminate the car. Later, Officer Suggs
discovered the gun from under the same armrest that covered the
bag. No evidence proved Wilson was aware of those items. "To
sustain a conviction for possession of a controlled substance in
violation of Code § 18.2-250, the evidence must prove beyond a
reasonable doubt that the accused was aware of the presence and
character of the controlled substance." Jones v. Commonwealth,
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17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994). The fact that
the bag was "opened toward" the driver's side is as consistent
with the other man holding the bag and placing it under the
armrest as it is with Wilson placing it. Moreover, no evidence
excludes the hypothesis it was left there by the owner of the
vehicle.
Wilson told the officers that the straw in the ashtray
belonged to the other man. He denied that he had drugs or
contraband and allowed the officer to search. Wilson's
statements denying ownership clearly are not evidence tending to
show that he exercised dominion and control over the straw with
cocaine or the other items. See Wright v. Commonwealth, 217 Va.
669, 670-71, 232 S.E.2d 733, 733-34 (1977). Likewise,
permitting a search of the vehicle is not conduct that evidences
guilt. As in Jones, where the accused did not possess the items
and was only in proximity to them, the trier of fact could
attribute those items to Wilson "[o]nly by drawing an
impermissible inference of knowledge from [Wilson's] mere
proximity to [those items]." 17 Va. App. at 574, 439 S.E.2d at
864.
Although the law clearly indicates that flight may be
conduct that evidences guilt, the record in this case proves
that Wilson had other reasons to cause him to flee. He was
driving without a license, and he had been confronted with
discovery of the other man's cocaine straw in the vehicle.
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Under these circumstances, the inference to be drawn from his
flight is equivocal. Such evidence is not wholly consistent
with guilt of the charged offense and wholly inconsistent with
innocence of that offense. See Scruggs v. Commonwealth, 19 Va.
App. 58, 61, 448 S.E.2d 663, 664 (1994).
Even if it is probable that the drugs and the gun found in
the vehicle belonged to Wilson, probability of guilt is
insufficient to warrant a criminal conviction. Crisman v.
Commonwealth, 197 Va. 17, 21, 87 S.E.2d 796, 799 (1955).
Suspicious circumstances "'no matter how grave or strong, are
not proof of guilt sufficient to support a verdict of guilty.
The actual commission of the crime by the accused must be shown
by evidence beyond a reasonable doubt to sustain his
conviction.'" Id. (quoting Powers v. Commonwealth, 182 Va. 669,
676, 30 S.E.2d 22, 25 (1944)). Suspicious circumstances alone
are not sufficient to prove knowing possession of a controlled
substance. Id.
"When, from the circumstantial evidence, 'it is just as
likely, if not more likely,' that a 'reasonable hypothesis of
innocence' explains the accused's conduct, the evidence cannot
be said to rise to the level of proof beyond a reasonable
doubt." Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482
S.E.2d 853, 859 (1997) (citation omitted). The evidence does
not exclude the hypothesis that the drugs and the gun were put
under the armrest by the other man or the owner of the vehicle,
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who may have been the other man. Moreover, no evidence proved
that Wilson was aware of the presence of those items. "Because
there exists a hypothesis of innocence consistent with the
circumstantial evidence in this case, we [must] reverse the
conviction for possession [of the gun and] of cocaine with
intent to distribute and dismiss the indictment." Scruggs, 19
Va. App. at 62-63, 448 S.E.2d at 665-66.
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