COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank Argued at Chesapeake, Virginia
ANGELO WILLIAMS MEMORANDUM OPINION * BY v. Record No. 0289-00-1 JUDGE JAMES W. BENTON, JR. JUNE 5, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge
Sarah A. Mansberger, Assistant Public Defender (Melinda R. Glaubke, Senior Assistant Public Defender, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
A jury convicted Angelo Williams of possession of cocaine
with the intent to distribute. He contends the evidence was
insufficient to support the conviction. He also contends the
trial judge erred by admitting in evidence marijuana found in the
container with the cocaine and an order proving a prior
conviction. We hold that the evidence was insufficient to prove
constructive possession of the cocaine and reverse the conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.
The evidence at trial proved that Virginia State Trooper
William S. Towles saw Angelo Williams driving alone at 4:30 p.m.
in a traffic lane designated for vehicles containing two or more
people. Williams was also exceeding the posted speed limit.
After he stopped Williams for those infractions, he learned that
Williams's operator's license had been suspended and arrested
Williams. In a search of the vehicle, which was registered to a
relative of Williams, Trooper Towles saw objects on the floor and
inspected "a Planter's nut can [located] underneath the driver's
seat." Inside the can, he found a plastic bag containing three
smaller bags of crack cocaine. Over Williams's objection, the
trial judge permitted Trooper Towles to testify that the can also
contained marijuana.
When Trooper Towles later showed the can and its contents to
Williams, Williams denied knowledge of them and said it was not
his vehicle. Trooper Towles searched Williams again and removed
from Williams's shirt pocket money totaling $600, which was in
denominations of "one $100 bill, twenty-two $20s, four $10s, and
four $5s." In response to Trooper Towles's inquiries, Williams
told him the money was "for a bill" he had to pay for his aunt.
A detective testified as an expert witness that the bags
found in the can contained numerous "portions of crack cocaine
. . . in, roughly, the . . . size [of a] $20 rock" and that the
fifteen grams of cocaine in the bags would have a value of $3,000.
- 2 - He also testified "that the typical dosage unit for a user of
crack cocaine would be a $20 rock" and that a user of crack
cocaine would usually possess or have close at hand a smoking
device. He further testified that drug dealers often package
their money in the denominations taken from Williams.
At the conclusion of the Commonwealth's case-in-chief, the
trial judge admitted in evidence, over Williams's objection, an
order reflecting Williams's previous conviction for possession of
cocaine with the intent to distribute. Although the indictment
did not allege other offenses, the prosecutor offered the order as
evidence in the guilt phase of the trial because "the Commonwealth
[was] proceeding on [Code § 18.2-248(C)], the enhancement
provision."
Following the Commonwealth's evidence, Williams's aunt
testified that the day Williams was arrested she had given him
"five hundred and eighty some dollars" to obtain money orders to
pay her rent and car payment. She also testified that the vehicle
Williams was driving when he was arrested belonged to her niece.
At the conclusion of the evidence, the jury convicted
Williams of possession of cocaine with the intent to distribute
"as charged in the indictment." Following the penalty phase of
the trial, the jury recommended "punishment at fifteen (15) years
confinement and $3,000."
- 3 - II.
"The Commonwealth had the burden to prove by evidence beyond
a reasonable doubt that [the accused] possessed the [cocaine] with
intent to distribute." Dukes v. Commonwealth, 227 Va. 119, 123,
313 S.E.2d 382, 384 (1984). When, as here, the conviction is
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 [accused]
was aware of both the presence and character of the [cocaine] and
that it was subject to his dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
In addition, when a conviction for constructive possession of
a controlled substance is based on circumstantial evidence, the
following principles apply:
"[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 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
- 4 - 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) (citation omitted).
Equally well established is the principle that a person's
occupancy of a vehicle in which a controlled substance is found
raises no presumption that the person "either knowingly or
intentionally possessed [the] controlled substance." Code
§ 18.2-250; Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d
844, 845 (1986). Thus, we have held that "'[s]uspicious
circumstances, including proximity to a controlled drug, are
insufficient to support a conviction.'" McNair v. Commonwealth,
31 Va. App. 76, 86, 521 S.E.2d 303, 308 (1999) (quoting Behrens
v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432
(1986)). Simply put, the existence of evidence necessary to
prove elements of the offense "cannot be based upon surmise or
speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 213
S.E.2d 752, 753 (1975).
The evidence favorable to the prosecution's case has three
basic components: the presence of cocaine in the can underneath
the seat, Williams's possession of the money, and Williams's
nervous behavior. The evidence also proved, however, that the
vehicle Williams was driving belonged to his relative. The
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank Argued at Chesapeake, Virginia
ANGELO WILLIAMS MEMORANDUM OPINION * BY v. Record No. 0289-00-1 JUDGE JAMES W. BENTON, JR. JUNE 5, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge
Sarah A. Mansberger, Assistant Public Defender (Melinda R. Glaubke, Senior Assistant Public Defender, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
A jury convicted Angelo Williams of possession of cocaine
with the intent to distribute. He contends the evidence was
insufficient to support the conviction. He also contends the
trial judge erred by admitting in evidence marijuana found in the
container with the cocaine and an order proving a prior
conviction. We hold that the evidence was insufficient to prove
constructive possession of the cocaine and reverse the conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.
The evidence at trial proved that Virginia State Trooper
William S. Towles saw Angelo Williams driving alone at 4:30 p.m.
in a traffic lane designated for vehicles containing two or more
people. Williams was also exceeding the posted speed limit.
After he stopped Williams for those infractions, he learned that
Williams's operator's license had been suspended and arrested
Williams. In a search of the vehicle, which was registered to a
relative of Williams, Trooper Towles saw objects on the floor and
inspected "a Planter's nut can [located] underneath the driver's
seat." Inside the can, he found a plastic bag containing three
smaller bags of crack cocaine. Over Williams's objection, the
trial judge permitted Trooper Towles to testify that the can also
contained marijuana.
When Trooper Towles later showed the can and its contents to
Williams, Williams denied knowledge of them and said it was not
his vehicle. Trooper Towles searched Williams again and removed
from Williams's shirt pocket money totaling $600, which was in
denominations of "one $100 bill, twenty-two $20s, four $10s, and
four $5s." In response to Trooper Towles's inquiries, Williams
told him the money was "for a bill" he had to pay for his aunt.
A detective testified as an expert witness that the bags
found in the can contained numerous "portions of crack cocaine
. . . in, roughly, the . . . size [of a] $20 rock" and that the
fifteen grams of cocaine in the bags would have a value of $3,000.
- 2 - He also testified "that the typical dosage unit for a user of
crack cocaine would be a $20 rock" and that a user of crack
cocaine would usually possess or have close at hand a smoking
device. He further testified that drug dealers often package
their money in the denominations taken from Williams.
At the conclusion of the Commonwealth's case-in-chief, the
trial judge admitted in evidence, over Williams's objection, an
order reflecting Williams's previous conviction for possession of
cocaine with the intent to distribute. Although the indictment
did not allege other offenses, the prosecutor offered the order as
evidence in the guilt phase of the trial because "the Commonwealth
[was] proceeding on [Code § 18.2-248(C)], the enhancement
provision."
Following the Commonwealth's evidence, Williams's aunt
testified that the day Williams was arrested she had given him
"five hundred and eighty some dollars" to obtain money orders to
pay her rent and car payment. She also testified that the vehicle
Williams was driving when he was arrested belonged to her niece.
At the conclusion of the evidence, the jury convicted
Williams of possession of cocaine with the intent to distribute
"as charged in the indictment." Following the penalty phase of
the trial, the jury recommended "punishment at fifteen (15) years
confinement and $3,000."
- 3 - II.
"The Commonwealth had the burden to prove by evidence beyond
a reasonable doubt that [the accused] possessed the [cocaine] with
intent to distribute." Dukes v. Commonwealth, 227 Va. 119, 123,
313 S.E.2d 382, 384 (1984). When, as here, the conviction is
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 [accused]
was aware of both the presence and character of the [cocaine] and
that it was subject to his dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
In addition, when a conviction for constructive possession of
a controlled substance is based on circumstantial evidence, the
following principles apply:
"[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 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
- 4 - 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) (citation omitted).
Equally well established is the principle that a person's
occupancy of a vehicle in which a controlled substance is found
raises no presumption that the person "either knowingly or
intentionally possessed [the] controlled substance." Code
§ 18.2-250; Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d
844, 845 (1986). Thus, we have held that "'[s]uspicious
circumstances, including proximity to a controlled drug, are
insufficient to support a conviction.'" McNair v. Commonwealth,
31 Va. App. 76, 86, 521 S.E.2d 303, 308 (1999) (quoting Behrens
v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432
(1986)). Simply put, the existence of evidence necessary to
prove elements of the offense "cannot be based upon surmise or
speculation." Patterson v. Commonwealth, 215 Va. 698, 699, 213
S.E.2d 752, 753 (1975).
The evidence favorable to the prosecution's case has three
basic components: the presence of cocaine in the can underneath
the seat, Williams's possession of the money, and Williams's
nervous behavior. The evidence also proved, however, that the
vehicle Williams was driving belonged to his relative. The
trooper did not see Williams actually possess the can containing
- 5 - the controlled substances or engage in any conduct which
suggested he knew the can was in the vehicle. No evidence
proved Williams had touched the can or its contents. Moreover,
Williams made no statements tending to show he was aware of the
presence of the can or the controlled substances. Indeed, he
denied knowing either was in the vehicle. The evidence also
proved that the can containing the cocaine was under the seat
and not visible through ordinary observation.
A person's proximity to a place where a controlled
substance is present is insufficient to support a conviction
where the evidence does not prove that the person intentionally
and knowingly possessed the controlled substance. See
Clodfelter, 218 Va. at 623, 238 S.E.2d at 822 (holding that
evidence failed to prove the occupant of hotel room
intentionally and knowingly possessed drugs that were present in
his room but hidden from view); Scruggs v. Commonwealth, 19 Va.
App. 58, 61-63, 448 S.E.2d 663, 665-66 (1994) (holding that the
evidence failed to prove the vehicle's driver knew of the
presence of the drugs, which were hidden in a passenger seat);
Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864
(1994) (holding that the passenger in car did not constructively
possess drugs where the evidence failed to prove either that he
saw drugs between seats or knew of drugs under the seat); Nelson
v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d 627, 628-29
(1994) (holding that the occupant of a hotel room did not
- 6 - constructively possess drugs found in the room where drugs were
not in plain view, no drugs were found on him, and evidence
failed to show how long he had been in room). As in those
cases, the trier of fact was left to surmise whether Williams
might have been aware of the can and its contents, which were
under the seat and not readily visible. See Jones, 17 Va. App.
at 574, 439 S.E.2d at 864 (noting that "the evidence also failed
to prove that [the accused] knew the can with cocaine . . . was
under the [vehicle's] seat where [he] sat"). Thus, the evidence
was insufficient to prove Williams constructively possessed the
cocaine because it did not prove he knowingly and intentionally
exercised dominion and control over the unseen items. See
Powers, 227 Va. at 476, 316 S.E.2d at 740.
Williams's nervousness when he was stopped for the traffic
infractions and the presence of money in Williams's pocket
folded in the various denominations are circumstances that
create suspicion but lend little probative value to the inquiry
whether Williams was aware of the presence of the cocaine in the
vehicle. Although Williams became very nervous when Trooper
Towles stopped him and went to check his driving status, the
evidence also proved Williams was driving "on a suspended
operator's license." Moreover, the money was not unexplained
and was not being carried in an area of pervasive drug activity.
Cf. Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877,
882-83 (1992). "It is, of course, a truism of the criminal law
- 7 - that evidence is not sufficient to support a conviction if it
engenders only a suspicion or even a probability of guilt."
Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533
(1951). The evidence in this record is not "wholly consistent
with guilt and wholly inconsistent with innocence." Scruggs, 19
Va. App. at 61, 448 S.E.2d at 664. "Conviction cannot rest upon
[surmise and] conjecture." Smith, 192 Va. at 461, 65 S.E.2d at
533. See also Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977).
Viewed in its totality, the evidence in this record is
insufficient to prove beyond a reasonable doubt the elements of
the offense of which Williams was convicted. Accordingly, we
reverse the judgment and dismiss the indictment. Thus, we need
not address the two issues alleging inadmissible evidence.
Reversed and dismissed.
- 8 -