Deon Andre Richardson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 9, 1996
• Docket: 0942951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Senior Judge Hodges Argued at Norfolk, Virginia

DEON ANDRE RICHARDSON MEMORANDUM OPINION * v. Record No. 0942-95-1 BY JUDGE JOSEPH E. BAKER APRIL 9, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS J. Warren Stephens, Judge Designate James S. Ellenson for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Deon Andre Richardson (appellant) appeals his bench trial

conviction by the Circuit Court of the City of Newport News

(trial court) for possession of cocaine in violation of Code

§ 18.2-250. The sole issue presented by this appeal is whether

the evidence is sufficient to support appellant's conviction.

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, the record discloses

that on October 12, 1994, at approximately 11:00 p.m., appellant

was riding as a front-seat passenger in a vehicle which was

stopped for a minor traffic violation by Newport News Police * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Officer Christopher Wells (Wells). Two additional passengers

were seated in the rear seat of the car.

Wells obtained the driver's license and vehicle registration

and asked the driver to exit the vehicle. The driver complied

and Wells radioed for assistance. While talking to the driver

outside of the vehicle, Wells noticed a lot of movement by

appellant and a rear seat passenger and that appellant looked

back at him a couple of times. Officer Michael Horton (Horton) and another officer arrived

in response to Wells' request for assistance. Horton and the

other officer went to the vehicle and asked the passengers to

step out. Horton stated that appellant kept "looking down and

around by the seat" and, because of this, he asked appellant

"[w]hat are you looking for." Appellant did not respond. After

appellant exited the car, Horton saw "off-white rocks" along the

doorjamb where appellant had been looking. Additionally, Horton

saw an off-white substance "smeared in the seat which would have

been between [appellant's] legs where he was sitting," and "a

couple of pebbles . . . between the seat and where [appellant's]

legs would have been." Later, Horton also observed "some white

substance crushed into the jeans of [appellant's] pants" which

appeared to be the "same color and consistency" of what he had

located in the vehicle.

After securing the passengers, Horton returned to the car to

collect evidence for forensic analysis. In doing so, he combined

- 2 - the "off-white rocks" found along the doorjamb and the "little

pebbles" from appellant's seat in one container. Later he

collected some of the white substance which was on appellant's

pants and kept that separate from the samples taken from the car.

Forensic analysis of the evidence revealed that at least one

of the substances in the container holding the off-white rocks

from the doorjamb and the little pebbles from appellant's

passenger seat tested positive for cocaine. No controlled

substance was found in the off-white substance removed from

appellant's pants. 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)).

Due to the collection techniques utilized in this case, it

is unclear what, in fact, tested positive for cocaine; it may

have been the off-white rocks from along the doorjamb, the little

pebbles from appellant's seat, or both. While at least one of

the two substances tested positive, because the two were combined

- 3 - and tested together we have no way of knowing if both were, in

fact, cocaine. See Reedy v. Commonwealth, 9 Va. App. 386, 387,

388 S.E.2d 650, 650-51 (1990) (The Commonwealth must show that

evidence was not contaminated in any way that would affect the

results of its analysis). We do know that the substance on

appellant's pants did not test positive for cocaine, and that

Horton testified that the substance on appellant's pants was

similar in appearance to the other substances collected from the

car. A reasonable hypothesis flowing from the evidence is that

the little pebbles found resting between appellant's legs and the

substance on appellant's pants were, indeed, the same substance.

In fact, the Commonwealth, believing that the substance on

appellant's pants had tested positive for cocaine, urged that

hypothesis on this Court. Given our inability to determine which substances tested

positive for cocaine, we cannot say that the evidence proves

beyond a reasonable doubt that appellant "was aware of both the

presence and character of the substance and that it was subject

to his dominion and control." McGee, 4 Va. App. at 322, 357

S.E.2d at 740. Accordingly, the judgment of the trial court is

reversed and the charge against appellant is dismissed.

Reversed and dismissed.

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