COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole Argued at Richmond, Virginia
CRAIG JEROME MORRIS
v. Record No. 1507-95-3 MEMORANDUM OPINION * BY JUDGE JOSEPH E. BAKER COMMONWEALTH OF VIRGINIA MAY 14, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge Sharon K. Eimer, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Craig Jerome Morris (appellant) appeals his bench trial
convictions by the Circuit Court of the City of Lynchburg (trial
court) for possession of cocaine with intent to distribute in
violation of Code § 18.2-48 and possession of a firearm while
unlawfully possessing cocaine in violation of Code § 18.2-308.4.
Appellant argues on appeal: (1) that the evidence is
insufficient to show that he possessed cocaine; (2) that the
evidence is insufficient to sustain his conviction for possession
of cocaine with intent to distribute; and (3) that the evidence
is
insufficient to sustain his conviction for knowingly possessing a
firearm while in unlawful possession of cocaine. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. In passing upon the sufficiency of the evidence, we view the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d
711, 713 (1982). Guided by that principle, we find the record
discloses that on November 22, 1994, at 10:27 p.m., the Lynchburg
Police Department executed a search warrant at a residence in
Lynchburg. Fifty-four seconds after the police knocked on the
back door of the residence, Helen Abbott (Abbott) opened the
door. Investigator P. K. Morris (Morris) entered the residence
and found appellant in an upstairs bedroom which he later
admitted was his own. Among the items related to the drug trade found in
appellant's bedroom were a pouch containing a baggie in which
there was .50 grams of cocaine; behind a television set another
baggie containing .18 grams of cocaine; under appellant's bed in
a suitcase a .45 caliber revolver and a radio receiver; also
under the bed in a green pouch, a .32 caliber pistol with a clip
containing several rounds of ammunition; two police scanners, one
on a shelf above appellant's bed, the other a larger "shelf"
scanner located on appellant's dresser; a pager next to
appellant's bed; $307 cash in an "ammo box" in appellant's
bedroom closet; $75 cash in the bottom drawer of appellant's
dresser; "25 to 50" small, one-inch Ziploc baggies in that bottom
drawer; another 25 to 50 baggies in the upper left-hand dresser
- 2 - drawer; and two baggies of marijuana, one on the shelf above
appellant's bed, the other between appellant's bed mattress and
box springs.
Appellant presented at trial evidence that was contrary to
statements he gave to the police at the time he was arrested.
For example, he told the police that the pager was his but at
trial he presented evidence through a witness who asserted that
the pager was that of the witness. Appellant initially told the
police that he was keeping the guns for his brother to prevent
his brother from killing his wife, yet at trial he denied any
knowledge of the presence of the guns in his room prior to the
police arriving at the residence. Initially, appellant told the
police that the $307 was his and was being kept as his rent
money; however, at trial, he denied the money was his and
presented a witness who claimed the money was hers. Possession of a controlled substance may be actual or
constructive. Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983). To support a conviction 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 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) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).
- 3 - Although mere proximity to the controlled substance is
insufficient to establish possession, it is a factor to consider
when determining whether the accused constructively possessed
drugs. Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768,
770-71 (1974). The ownership or occupancy of the premises where
the items were found is another factor that may be considered "to
prove that the owner or occupant exercised dominion and control
over [the items]." Burchette v. Commonwealth, 15 Va. App. 432,
435, 425 S.E.2d 81, 83 (1992). In all cases of circumstantial evidence the conduct of the accused is always an important factor in the estimate of the weight of the circumstances which point to his guilt. Where a conviction rests upon circumstantial evidence, much weight is given to contradictory statements of material facts by the accused. Each should be considered along with other facts and circumstances shown in evidence to determine whether, upon the whole case, the evidence excludes every reasonable hypothesis consistent with the accused's innocence.
Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213
(1949).
The trial court found the testimony of appellant and his
witness not credible, rejecting appellant's claim that the
cocaine had been placed in his room by another. As the Court in Toler said: The facts, accepted by the [trier of fact], admitted of inferences of guilt more probable and natural than of any reasonable hypothesis of innocence, and warranted the [trier of fact] in rejecting his explanations as untrue. In other words, the facts established are consistent with his guilt and
- 4 - inconsistent with his innocence.
188 Va. at 146, 235 S.E.2d at 214. Appellant's proximity to the
drugs, their location in his bedroom, and his inconsistent
statements support the finding of the trial court that appellant
possessed the cocaine found in his room.
Possession of Cocaine With Intent to Distribute
In order to support appellant's conviction for possession of
cocaine with intent to distribute, the Commonwealth must prove
beyond a reasonable doubt that he intended to distribute the
cocaine that he possessed. See Patterson v. Commonwealth, 215
Va. 698, 699, 213 S.E.2d 752, 753 (1975).
The evidence reveals that appellant was in possession of .68
grams of cocaine, a pager, two police scanners, two handguns, 50
to 100 one-inch square, plastic baggies, $382 cash ($75 in the
dresser next to his bed and $307 in an ammunition box in his
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole Argued at Richmond, Virginia
CRAIG JEROME MORRIS
v. Record No. 1507-95-3 MEMORANDUM OPINION * BY JUDGE JOSEPH E. BAKER COMMONWEALTH OF VIRGINIA MAY 14, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge Sharon K. Eimer, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Craig Jerome Morris (appellant) appeals his bench trial
convictions by the Circuit Court of the City of Lynchburg (trial
court) for possession of cocaine with intent to distribute in
violation of Code § 18.2-48 and possession of a firearm while
unlawfully possessing cocaine in violation of Code § 18.2-308.4.
Appellant argues on appeal: (1) that the evidence is
insufficient to show that he possessed cocaine; (2) that the
evidence is insufficient to sustain his conviction for possession
of cocaine with intent to distribute; and (3) that the evidence
is
insufficient to sustain his conviction for knowingly possessing a
firearm while in unlawful possession of cocaine. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. In passing upon the sufficiency of the evidence, we view the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d
711, 713 (1982). Guided by that principle, we find the record
discloses that on November 22, 1994, at 10:27 p.m., the Lynchburg
Police Department executed a search warrant at a residence in
Lynchburg. Fifty-four seconds after the police knocked on the
back door of the residence, Helen Abbott (Abbott) opened the
door. Investigator P. K. Morris (Morris) entered the residence
and found appellant in an upstairs bedroom which he later
admitted was his own. Among the items related to the drug trade found in
appellant's bedroom were a pouch containing a baggie in which
there was .50 grams of cocaine; behind a television set another
baggie containing .18 grams of cocaine; under appellant's bed in
a suitcase a .45 caliber revolver and a radio receiver; also
under the bed in a green pouch, a .32 caliber pistol with a clip
containing several rounds of ammunition; two police scanners, one
on a shelf above appellant's bed, the other a larger "shelf"
scanner located on appellant's dresser; a pager next to
appellant's bed; $307 cash in an "ammo box" in appellant's
bedroom closet; $75 cash in the bottom drawer of appellant's
dresser; "25 to 50" small, one-inch Ziploc baggies in that bottom
drawer; another 25 to 50 baggies in the upper left-hand dresser
- 2 - drawer; and two baggies of marijuana, one on the shelf above
appellant's bed, the other between appellant's bed mattress and
box springs.
Appellant presented at trial evidence that was contrary to
statements he gave to the police at the time he was arrested.
For example, he told the police that the pager was his but at
trial he presented evidence through a witness who asserted that
the pager was that of the witness. Appellant initially told the
police that he was keeping the guns for his brother to prevent
his brother from killing his wife, yet at trial he denied any
knowledge of the presence of the guns in his room prior to the
police arriving at the residence. Initially, appellant told the
police that the $307 was his and was being kept as his rent
money; however, at trial, he denied the money was his and
presented a witness who claimed the money was hers. Possession of a controlled substance may be actual or
constructive. Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983). To support a conviction 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 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) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).
- 3 - Although mere proximity to the controlled substance is
insufficient to establish possession, it is a factor to consider
when determining whether the accused constructively possessed
drugs. Gillis v. Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768,
770-71 (1974). The ownership or occupancy of the premises where
the items were found is another factor that may be considered "to
prove that the owner or occupant exercised dominion and control
over [the items]." Burchette v. Commonwealth, 15 Va. App. 432,
435, 425 S.E.2d 81, 83 (1992). In all cases of circumstantial evidence the conduct of the accused is always an important factor in the estimate of the weight of the circumstances which point to his guilt. Where a conviction rests upon circumstantial evidence, much weight is given to contradictory statements of material facts by the accused. Each should be considered along with other facts and circumstances shown in evidence to determine whether, upon the whole case, the evidence excludes every reasonable hypothesis consistent with the accused's innocence.
Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213
(1949).
The trial court found the testimony of appellant and his
witness not credible, rejecting appellant's claim that the
cocaine had been placed in his room by another. As the Court in Toler said: The facts, accepted by the [trier of fact], admitted of inferences of guilt more probable and natural than of any reasonable hypothesis of innocence, and warranted the [trier of fact] in rejecting his explanations as untrue. In other words, the facts established are consistent with his guilt and
- 4 - inconsistent with his innocence.
188 Va. at 146, 235 S.E.2d at 214. Appellant's proximity to the
drugs, their location in his bedroom, and his inconsistent
statements support the finding of the trial court that appellant
possessed the cocaine found in his room.
Possession of Cocaine With Intent to Distribute
In order to support appellant's conviction for possession of
cocaine with intent to distribute, the Commonwealth must prove
beyond a reasonable doubt that he intended to distribute the
cocaine that he possessed. See Patterson v. Commonwealth, 215
Va. 698, 699, 213 S.E.2d 752, 753 (1975).
The evidence reveals that appellant was in possession of .68
grams of cocaine, a pager, two police scanners, two handguns, 50
to 100 one-inch square, plastic baggies, $382 cash ($75 in the
dresser next to his bed and $307 in an ammunition box in his
closet), and two baggies of marijuana; that no paraphernalia
necessary for the personal use of cocaine was found; that
appellant stated he did not personally consume cocaine, only
marijuana; and that appellant made inconsistent statements
concerning his knowledge of the existence of the black pouch and
the ownership of the cocaine it held, the ownership of the pager,
and the ownership of the money found in his room.
The absence of paraphernalia necessary for personal
consumption, coupled with appellant's admission that he did not
personally use cocaine is strong evidence of an intent to
- 5 - distribute. The presence of a pager, police scanners, weapons,
and small plastic baggies where the cocaine was found also
support the trial court's judgment. See Servis v. Commonwealth,
6 Va. App. 507, 371 S.E.2d 156 (1988) (the presence of
paraphernalia used in the drug trade is relevant to proof of
intent to distribute). In addition, the trial court was entitled
to place much weight on appellant's inconsistent statements
concerning material facts of the case. Toler, supra, 188 Va. at
781, 51 S.E.2d at 213. We hold that the evidence is sufficient to support its
submission to the trier of fact that concluded appellant was
guilty as charged. Viewing the evidence in its totality, we
cannot say that the conclusion of the trial court was plainly
wrong or without evidence to support it.
Possession of a Firearm While in Possession of Cocaine
Code § 18.2-308.4 provides that any person who unlawfully
possesses cocaine and "simultaneously with knowledge and intent
possesses any firearm" is guilty of a felony. To uphold a
conviction under Code § 18.2-308.4, "actual possession of both
the firearm and the controlled substance is not required . . . .
Constructive possession of either or both is sufficient for
conviction." Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414
S.E.2d 860, 862 (1992). It is not necessary that "[t]he
Commonwealth . . . prove that [appellant] had ready access to
either the gun or the cocaine to establish 'simultaneous
- 6 - possession.'" Id. at 81, 414 S.E.2d at 862.
Having determined that appellant possessed the cocaine, the
issue becomes whether appellant possessed either or both of the
firearms found in his room. To support a conviction 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 defendant was aware of
both the presence and character of the [object] and that it was
subject to his dominion and control." Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Appellant told Morris that the handguns found under his bed
were not his, but that his brother had entrusted them to him.
This evidence alone is sufficient to prove that appellant was
aware of the presence and character of the firearms, and that
they were subject to his dominion and control; thus, establishing
constructive possession.
Accordingly, the judgment of the trial court is affirmed. Affirmed.
- 7 -