Craig Antonio Dawson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 22, 2003
• Docket: 1687021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Felton and Senior Judge Overton Argued at Chesapeake, Virginia

CRAIG ANTONIO DAWSON MEMORANDUM OPINION * BY v. Record No. 1687-02-1 JUDGE WALTER S. FELTON, JR. APRIL 22, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Walter J. Ford, Judge Designate

Barrett R. Richardson (Richardson and Rosenberg, LLC, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Craig Dawson was convicted in a bench trial of possession of

cocaine, in violation of Code § 18.2-250. On appeal, Dawson

contends that the evidence was insufficient to prove beyond a

reasonable doubt that he possessed cocaine. For the following

reasons, we affirm the judgment of the trial court.

I. BACKGROUND

On January 16, 2002, Detective B.J. Karpowski and several

other officers of the Portsmouth Police Department executed a

search warrant for drugs at 1520 Highland Avenue. During the

execution of the warrant, Detective Karpowski entered the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. kitchen and observed Craig Dawson standing next to the counter.

On the counter, two to three inches from Dawson, was a

one-dollar bill with several pieces of an off-white, rock-like

substance on it. Detective Karpowski believed the substance to

be crack cocaine. There was nothing else on the counter.

Chemical analysis determined the substance to be cocaine.

At trial, Detective Karpowski testified on

cross-examination that Dawson was found in the kitchen standing

near the counter. He was not a resident of the house.

Detective Karpowski stated that Dawson's hands were not on the

counter and he made no movements or gestures toward the cocaine.

Only one other person was in the kitchen, and he was

approximately six feet away from Dawson. When asked about the

number of people that were found in the residence at the time

the search warrant was executed, Detective Karpowski testified

that there were approximately five people located in the house.

In addition to the kitchen, drugs and drug paraphernalia were

recovered from other areas of the house. Dawson was convicted

of possession of cocaine, in violation of Code § 18.2-250.

II. ANALYSIS

On appeal, Dawson contends the evidence was insufficient to

prove beyond a reasonable doubt that he possessed cocaine. We

disagree.

When the sufficiency of the evidence is challenged on appeal, it is well established that we must view the evidence in the light

- 2 - most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The conviction will be disturbed only if plainly wrong or without evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

Dawson was convicted of possession of cocaine based on the

theory of constructive possession. To support a conviction

based on constructive possession of 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 defendant was aware of both the presence

and character of the substance and that it was subject to his

dominion and control." McGee v. Commonwealth, 4 Va. App. 317,

322, 357 S.E.2d 738, 740 (1987).

Dawson argues there were no other factors, other than

proximity to the drugs, to establish a connection between him

and the drugs. He contends that mere proximity to the drugs

cannot support his conviction for possession. Behrens v.

Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).

While it is true that proximity to a controlled substance is

insufficient alone to establish possession, it is a factor to

consider when determining whether the accused constructively

possessed drugs. Brown v. Commonwealth, 15 Va. App. 1, 9, 421

S.E.2d 877, 882 (1997). "A person's ownership or occupancy of

premises on which the subject item is found, proximity to the

- 3 - item, and statements or conduct concerning the location of the

item are probative factors to be considered in determining

whether the totality of the circumstances supports a finding of

possession." Gregory v. Commonwealth, 28 Va. App. 393, 398, 504

S.E.2d 886, 888 (1998).

Although Dawson's mere proximity to the illicit drug is not

alone sufficient to prove possession, and his occupancy of

premises where other drugs and drug paraphernalia are found does

not create a presumption of possession, the totality of the

circumstances present in this case provides sufficient evidence

for the trial court to reasonably conclude that Dawson was

guilty beyond a reasonable doubt of possession of cocaine. See

Walton v. Commonwealth, 255 Va. 422, 497 S.E.2d 869 (1998);

Glasco v. Commonwealth, 26 Va. App. 763, 497 S.E.2d 150 (1998);

Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543 (1997).

A search warrant for drugs was executed for the residence.

Upon their entry, the officers found five individuals and

evidence of drugs and drug use throughout the residence. Dawson

was found in the kitchen, two to three inches from a dollar bill

with crack cocaine on it. Nothing else was located on the

counter, and no one else was in close proximity. The only other

person in the kitchen was approximately six feet away from

Dawson. That Dawson's hands were not on the counter and that he

made no movements or gestures toward the cocaine were among all

- 4 - the factors to be considered in the totality of the

circumstances.

It was reasonable for the trial court to conclude that

Dawson was aware that drugs were present and being used in the

residence and that he knew of the presence and character of the

substance located mere inches from him. Dawson's proximity to

the drugs on the counter supports the trial court's finding that

he exercised dominion and control over the cocaine. Based on

the totality of the circumstances, we conclude that the evidence

was sufficient to prove beyond a reasonable doubt that Dawson

possessed cocaine.

The judgment of the trial court is affirmed.

Affirmed.

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