Anthoine Plunkett s/k/a v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
ANTHOINE PLUNKETT, S/K/A
ANTOINE PLUNKETT
v. Record No. 3002-99-3
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY
JUDGE ROBERT J. HUMPHREYS
ANTHOINE PLUNKETT DECEMBER 19, 2000
v. Record No. 0257-00-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Brian H. Turpin (Law Offices of Brian H.
Turpin, on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Anthoine Plunkett appeals his conviction, after a bench
trial, of one count of possession of a controlled substance with
intent to distribute. Plunkett contends that the trial court
erred in finding the evidence sufficient to establish that he had
the requisite knowledge of the nature, character and location of
the drugs and that he had actual or constructive possession of the
drugs. In a separate appeal to this Court, Plunkett contends that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the trial court erred in subsequently revoking his suspended
sentence for a prior drug-related offense. 1 We dispose of both
appeals in this memorandum opinion.
"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. We should affirm the
judgment unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)
(citation omitted).
"In order to convict a defendant of 'possession' of a
narcotic drug . . . it generally is necessary to show that
defendant was aware of the presence and character of the
particular substance and was intentionally and consciously in
possession of it." Ritter v. Commonwealth, 210 Va. 732, 741,
173 S.E.2d 799, 805 (1970). However, "[p]ossession [of drugs]
may be actual or constructive. Constructive possession may be
established by '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 the character
of the substance and that it was subject to his dominion and
1
Although Plunkett's appeals have not been formally
consolidated, due to their interrelated nature, we dispose of
both matters in this decision.
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control.'" Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984).
The applicable law is summarized in Womack
v. Commonwealth, 220 Va. 5, 255 S.E.2d 351(1979). Constructive possession may be
shown by establishing that the [contraband]
was known to and subject to the dominion and
control of the accused. Knowledge of the
presence and character of the controlled
substance may be shown by evidence of the
acts, statements or conduct of the accused.
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). "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).
Here, the evidence established that Plunkett was found on
the premises of the residence belonging to Angela Wilson,
although outside the house, when the police arrived to execute
the warrant. In addition, Plunkett's daughter was inside the
house when the police arrived. However, the police also found
three other men inside the house. One was found in the front
room, sitting on the couch. Another was found sitting at a
table which was located "just outside the bathroom." The third
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male was found in the bathroom, with the toilet refilling as if
it had just been flushed.
The police found a gym bag on the floor in the front room.
It was "cinched" shut when the police initially found it.
Inside the bag's main compartment were the following items: 1)
a letter addressed to Plunkett from an attorney; 2) sales
receipt information in Plunkett's name; 3) a First State Bank
bag; 4) some checkbooks and banking information in Plunkett's
name; 5) a deposit ticket in the name of Angela Wilson; 6) a
deposit ticket in the name of David Hamlett; 7) a watch; 8)
latex gloves; 9) a digital scale; and 10) a Crown Royal bag
containing 33.48 grams of cocaine. In the side compartments of
the bag, officers found Plunkett's wallet, containing his
driver's license, social security card and other identifying
information. They also found two cameras.
Plunkett ran from the scene once the officers tried to
detain him. When asked for identification, Plunkett waved
toward the gym bag, indicating that he knew his wallet and/or
identification were in the bag.
The Commonwealth argues that these circumstances prove
Plunkett had knowledge of the drugs in the bag and that they
were subject to his dominion and control. We disagree.
We have previously held that the fact that a suspect's
personal items are found in close proximity to contraband does
not, in and of itself, establish ownership, knowledge or
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possession. See Burchette, 15 Va. App. at 437-38, 425 S.E.2d at
85 (the fact that some of defendant's personal possessions were
found in the vehicle during the search establishes, at most,
that he had, at some point in time, been in the vehicle; that
evidence does not establish that he had been in the vehicle when
the contraband was present); See Drew v. Commonwealth, 230 Va.
471, 472-74, 338 S.E.2d 844, 845-46 (1986) (evidence that
defendant's checkbook, bank statement, telephone bill, driver's
license, vehicle registration, and credit union voucher were
found in house in which large amounts of cocaine were discovered
was held insufficient to support conviction for constructive
possession).
Here, Plunkett denied knowledge of the contents of the bag.
Other than the fact that Plunkett's personal items were found in
the bag, there was no evidence that Plunkett had access to the
bag, or that the bag was ever subject to his possession and/or
dominion and control. In fact, witness Angela Wilson testified
that the bag belonged to her and claimed that she put the items
belonging to Plunkett, as well as the deposit tickets belonging
to herself and David Hamlett, in the bag. She denied knowledge
of the contents in the bag related to the drugs.
Despite the above, Plunkett's flight from police does
provide some evidence of guilty knowledge. His possession of
items associated with drug use and distribution (such as the
pager and the large sum of cash) are also factors to be
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considered by the trier of fact. Yet, these factors alone do
not establish guilt. See White v. Commonwealth, 25 Va. App.
662, 668, 492 S.E.2d 451, 454 (1997) (en banc); see also Glasco
v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156
(1998), affirmed 257 Va. 433, 513 S.E.2d 137 (1999); Langhorne v.
Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 480 (1991).
While it is true that in resolving questions of possession,
a court must consider "the totality of the circumstances
disclosed by the evidence," the evidence here, even combined,
simply does not relate Plunkett with the drugs in the gym bag.
See Womack, 220 Va. at 8, 255 S.E.2d at 353. At most, the
evidence establishes a suspicion that Plunkett knew about the
drugs and/or had some degree of dominion and control over the
gym bag and its contents. "Suspicious circumstances no matter
how grave or strong, are not proof of guilt sufficient to
support a verdict of guilty." Burchette, 15 Va. App. at 437-38,
425 S.E.2d at 85 (citations omitted).
Furthermore, the fact that Plunkett nodded toward the bag
when asked for identification establishes only that Plunkett
knew his wallet and/or identification was in the bag. It does
not establish that the bag was his, nor that he had knowledge,
dominion, or control over the bag and its contents.
As we held in Burchette, "[this] evidence simply does not
exclude the very real possibility that . . . someone other than
[Plunkett] used or had access to the [gym bag] and had left the
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drugs there unbeknownst to him. . . . The evidence does not
exclude every reasonable hypothesis of innocence." Burchette,
15 Va. App. at 438, 425 S.E.2d at 85. "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. The Commonwealth need
not exclude every possible theory or surmise, but it must
exclude those hypotheses which flow from the evidence itself."
Haskins v. Commonwealth, 31 Va. App. 145, 151, 521 S.E.2d 777,
780 (1999) (citations omitted).
Thus, we hold that the Commonwealth failed to carry its
burden of proof with regard to both the elements of knowledge
and possession. Because knowledge and possession are essential
elements of the crime with which Plunkett was charged, we
reverse the conviction and enter final judgment dismissing the
indictment.
In a separate but related appeal, Plunkett argues that the
trial court erred when it subsequently revoked his suspended
sentence for a prior drug conviction. Plunkett argues that the
trial court erred because it was required to continue the
revocation matter pending the outcome of his appeal. We
disagree with Plunkett's contention.
"[In] a proceeding to revoke probation, a trial court may
take steps to ensure that a defendant will not be incarcerated
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because of a revocation based on an improper conviction. If a
defendant's suspended sentence is revoked, execution of the
sentence may be postponed pending an appeal. [However,] the
decision to grant or deny a continuance in a criminal case lies
within the sound discretion of the trial court." Patterson v.
Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43, 45 (1991).
Accordingly, we affirm the trial court's decision on this
basis. However, in light of our decision to reverse and dismiss
the underlying conviction, we remand this matter to the trial
court for further proceedings consistent with that decision.
See id. at 1049-50, 407 S.E.2d at 45 (if, on appeal of a
revocation proceeding, the underlying conviction is reversed,
the revocation must also be reversed).
Record No. 3002-99-3,
reversed and dismissed.
Record No. 0257-00-3,
affirmed and remanded.
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