COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata Argued at Richmond, Virginia
DANIEL CHARLES, SR. MEMORANDUM OPINION * BY v. Record No. 2310-00-2 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 18, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Joseph W. Kaestner (Kaestner Pitney & Jones, P.C., on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial court, without a jury, convicted Daniel Charles,
Sr. of possession of more than one-half ounce, but not more than
five pounds, of marijuana with intent to distribute and
sentenced him to twelve months in jail. He appeals his
conviction, contending that the evidence was insufficient to
support a finding of constructive possession or possession with
intent to distribute. For the reasons that follow, we reverse.
BACKGROUND
Officer Dan Allen of the Henrico Division of Police legally
stopped a pickup truck that appeared to be trying to avoid him.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. He found the driver and the defendant "acting very nervous."
Asked why she was trying to "duck" him, the driver explained
that her passenger, Daniel Charles, told her that his license
had been suspended and that he was wanted in the City of
Richmond. Allen searched Charles with his consent and found two
marijuana cigarettes in his inside coat pocket, a pager in his
belt clip, and $769.19 in a variety of denominations in his
pockets. Next, Allen searched the vehicle with the driver's
consent. Under the passenger seat where Charles had been
sitting, the officer found a ziploc bag containing another bag
with a large quantity of marijuana in it. Analysis showed that
the marijuana in the bag and the cigarettes weighed a total of
15.1 ounces.
ANALYSIS
When sufficiency of the evidence is challenged on appeal,
we consider the evidence "in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Hagy v.
Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001)
(citation omitted). Furthermore, we "permit the verdict to
stand unless plainly wrong." George v. Commonwealth, 242 Va.
264, 278, 411 S.E.2d 12, 20 (1991), quoted in Tibbs v.
Commonwealth, 31 Va. App. 687, 707, 525 S.E.2d 579, 588 (2000).
- 2 - "To establish possession of a controlled substance, it
generally is necessary to show that the defendant was aware of
the presence and character of the particular substance and was
intentionally and consciously in possession of it." Gillis v.
Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).
However, "suspicion or even probability of guilt is not
sufficient. There must be an unbroken chain of circumstances
'proving the guilt of the accused to the exclusion of any other
rational hypothesis and to a moral certainty.'" Gordon v.
Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 736 (1971)
(quoting Brown v. Commonwealth, 211 Va. 252, 255, 176 S.E.2d
813, 815 (1970)). The Commonwealth must point to sufficient
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 control.
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citation omitted); see also Andrews v.
Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).
We find that the Commonwealth has failed to demonstrate
acts or conduct from which the court could properly conclude
beyond a reasonable doubt that Charles knowingly possessed the
bag of marijuana. The Commonwealth established only that
Charles sat in the passenger seat of a vehicle owned by the
- 3 - driver's boyfriend, under which a bag containing a large
quantity of marijuana lay. The Commonwealth offered no evidence
that Charles placed the bag of marijuana under the seat or that
he knew the bag was there. It is well settled that proof of
proximity to a controlled substance is insufficient, standing
alone, to establish possession. Womack v. Commonwealth, 220 Va.
5, 7, 255 S.E.2d 351, 352 (1979); White v. Commonwealth, 24 Va.
App. 446, 452, 482 S.E.2d 876, 879 (1997); Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en
banc); cf. Code § 18.2-250 ("[O]ccupancy of . . . [a]
vehicle . . . in which a controlled substance was found shall
not create a presumption that such person either knowingly or
intentionally possessed such controlled substance.").
The Commonwealth claims that Charles' possession of two
cigarettes of marijuana connects him to the ziploc bag
containing the larger quantity of marijuana. However, the
evidence established no connection between the cigarettes in
Charles' possession and the plastic bag of marijuana under the
car seat in which he sat. See Monroe v. Commonwealth, 4 Va.
App. 154, 156, 355 S.E.2d 336, 337 (1987) (finding that
possession of a small quantity of drugs usually implies
possession for personal use). The two drugs found by the police
in this case were markedly different. The marijuana Charles had
on his person was in a different form and packaged differently
from the marijuana under his seat. The Commonwealth offered no
- 4 - lab reports indicating that the cigarettes and the marijuana
found under the seat were of the same type and no testimony that
the two were even the same color. In fact, the only connection
between the two is that they are forms of marijuana, a fairly
common narcotic. See Ritter v. Commonwealth, 210 Va. 732, 742,
173 S.E.2d 799, 806 (1970) (noting that many are familiar with
the drug). The association between the two is thus too tenuous
to prove Charles had dominion and control over the drugs under
his seat. Cf. Womack, 220 Va. at 8, 255 S.E.2d at 353 (holding
that "[t]he fact that the two pentobarbital capsules found on
the person of the defendant were identical to 77 other such
capsules seized by the police, is significant on the question
whether the defendant had dominion or control over the drugs
expressly listed in the indictment" (emphasis added)).
The Commonwealth, however, argues that the Virginia Supreme
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata Argued at Richmond, Virginia
DANIEL CHARLES, SR. MEMORANDUM OPINION * BY v. Record No. 2310-00-2 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 18, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Joseph W. Kaestner (Kaestner Pitney & Jones, P.C., on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial court, without a jury, convicted Daniel Charles,
Sr. of possession of more than one-half ounce, but not more than
five pounds, of marijuana with intent to distribute and
sentenced him to twelve months in jail. He appeals his
conviction, contending that the evidence was insufficient to
support a finding of constructive possession or possession with
intent to distribute. For the reasons that follow, we reverse.
BACKGROUND
Officer Dan Allen of the Henrico Division of Police legally
stopped a pickup truck that appeared to be trying to avoid him.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. He found the driver and the defendant "acting very nervous."
Asked why she was trying to "duck" him, the driver explained
that her passenger, Daniel Charles, told her that his license
had been suspended and that he was wanted in the City of
Richmond. Allen searched Charles with his consent and found two
marijuana cigarettes in his inside coat pocket, a pager in his
belt clip, and $769.19 in a variety of denominations in his
pockets. Next, Allen searched the vehicle with the driver's
consent. Under the passenger seat where Charles had been
sitting, the officer found a ziploc bag containing another bag
with a large quantity of marijuana in it. Analysis showed that
the marijuana in the bag and the cigarettes weighed a total of
15.1 ounces.
ANALYSIS
When sufficiency of the evidence is challenged on appeal,
we consider the evidence "in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Hagy v.
Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001)
(citation omitted). Furthermore, we "permit the verdict to
stand unless plainly wrong." George v. Commonwealth, 242 Va.
264, 278, 411 S.E.2d 12, 20 (1991), quoted in Tibbs v.
Commonwealth, 31 Va. App. 687, 707, 525 S.E.2d 579, 588 (2000).
- 2 - "To establish possession of a controlled substance, it
generally is necessary to show that the defendant was aware of
the presence and character of the particular substance and was
intentionally and consciously in possession of it." Gillis v.
Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).
However, "suspicion or even probability of guilt is not
sufficient. There must be an unbroken chain of circumstances
'proving the guilt of the accused to the exclusion of any other
rational hypothesis and to a moral certainty.'" Gordon v.
Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 736 (1971)
(quoting Brown v. Commonwealth, 211 Va. 252, 255, 176 S.E.2d
813, 815 (1970)). The Commonwealth must point to sufficient
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 control.
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citation omitted); see also Andrews v.
Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).
We find that the Commonwealth has failed to demonstrate
acts or conduct from which the court could properly conclude
beyond a reasonable doubt that Charles knowingly possessed the
bag of marijuana. The Commonwealth established only that
Charles sat in the passenger seat of a vehicle owned by the
- 3 - driver's boyfriend, under which a bag containing a large
quantity of marijuana lay. The Commonwealth offered no evidence
that Charles placed the bag of marijuana under the seat or that
he knew the bag was there. It is well settled that proof of
proximity to a controlled substance is insufficient, standing
alone, to establish possession. Womack v. Commonwealth, 220 Va.
5, 7, 255 S.E.2d 351, 352 (1979); White v. Commonwealth, 24 Va.
App. 446, 452, 482 S.E.2d 876, 879 (1997); Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en
banc); cf. Code § 18.2-250 ("[O]ccupancy of . . . [a]
vehicle . . . in which a controlled substance was found shall
not create a presumption that such person either knowingly or
intentionally possessed such controlled substance.").
The Commonwealth claims that Charles' possession of two
cigarettes of marijuana connects him to the ziploc bag
containing the larger quantity of marijuana. However, the
evidence established no connection between the cigarettes in
Charles' possession and the plastic bag of marijuana under the
car seat in which he sat. See Monroe v. Commonwealth, 4 Va.
App. 154, 156, 355 S.E.2d 336, 337 (1987) (finding that
possession of a small quantity of drugs usually implies
possession for personal use). The two drugs found by the police
in this case were markedly different. The marijuana Charles had
on his person was in a different form and packaged differently
from the marijuana under his seat. The Commonwealth offered no
- 4 - lab reports indicating that the cigarettes and the marijuana
found under the seat were of the same type and no testimony that
the two were even the same color. In fact, the only connection
between the two is that they are forms of marijuana, a fairly
common narcotic. See Ritter v. Commonwealth, 210 Va. 732, 742,
173 S.E.2d 799, 806 (1970) (noting that many are familiar with
the drug). The association between the two is thus too tenuous
to prove Charles had dominion and control over the drugs under
his seat. Cf. Womack, 220 Va. at 8, 255 S.E.2d at 353 (holding
that "[t]he fact that the two pentobarbital capsules found on
the person of the defendant were identical to 77 other such
capsules seized by the police, is significant on the question
whether the defendant had dominion or control over the drugs
expressly listed in the indictment" (emphasis added)).
The Commonwealth, however, argues that the Virginia Supreme
Court's statement in Colbert v. Commonwealth that a fact finder
might infer that a small quantity of drugs seized "was what
remained from a larger supply held for distribution," 219 Va. 1,
4, 244 S.E.2d 748, 749 (1978), controls our inquiry on this
issue. Such reliance is misplaced. The reasoning in Colbert
that the Commonwealth refers to applied only to its analysis of
"intent to distribute," not to the establishment of possession,
a fact established by other evidence. Id. The Court did not
find, as the Commonwealth suggests, that the possession of the
smaller quantity of marijuana provided sufficient evidence to
- 5 - convict the defendant of possession of a much larger, separately
packaged, and elsewhere located quantity of marijuana. Rather,
in determining possession, the Court considered the defendant's
inculpatory conduct, his proximity to the drugs, and his control
of the premises where the drugs were found. Id. at 3-4, 244
S.E.2d at 749. Specifically, the Court noted that the police
observed a bucket with five "nickel bags" of marijuana weighing
a total of 1.91 ounces between the defendant's legs, and
observed the defendant, presumably fearful of detection, move
the bucket and place it behind a seat. Id. at 4, 244 S.E.2d at
749. Here, the Commonwealth has not presented comparable
evidence of inculpatory conduct or evidence of Charles' control
over the vehicle in which the drugs were found.
The remaining evidence offered by the Commonwealth,
Charles' possession of a pager and $769.19 in cash, is similarly
problematic. While we have consistently found that these facts
may be probative of "intent to distribute," they do not
demonstrate that Charles was aware of the presence and character
of the marijuana under his seat, or that he controlled it. See
Burchette v. Commonwealth, 15 Va. App. 432, 437, 425 S.E.2d 81,
85 (1992) (rejecting the possession of guns, cellular telephones
and beepers as evidence linking the defendant to marijuana found
in his car); see also Glenn v. Commonwealth, 10 Va. App. 150,
155, 390 S.E.2d 505, 508 (1990) (noting that the unexplained
possession of a large amount of cash in small denominations
- 6 - constitutes evidence of "intent to distribute," but not
including such evidence in its analysis of possession); Glasco
v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156
(1998) (finding possession of a pager and a large amount of cash
probative of "intent to distribute" controlled substances but
not citing that evidence as probative of possession (citing
White, 24 Va. App. at 453, 482 S.E.2d at 879)).
In short, the Commonwealth's only evidence that Charles
knew of and controlled the drugs under his seat is that he was
sitting on the seat. This evidence alone cannot sustain his
conviction for possession of marijuana. Consequently, we cannot
say that he is guilty of possession with intent to distribute.
Therefore, we reverse the judgment of conviction and dismiss the
indictment.
Reversed.
- 7 -