Derrick Antonio Williams v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: February 5, 2002
• Docket: 0393011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardner and Frank Argued at Chesapeake, Virginia

DERRICK ANTONIO WILLIAMS MEMORANDUM OPINION * BY v. Record No. 0393-01-1 JUDGE RUDOLPH BUMGARDNER, III FEBRUARY 5, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Von L. Piersall, Jr., Judge

Charles B. Lustig, Assistant Public Defender (Brenda C. Spry, Deputy Public Defender, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

The trial court convicted Derrick Antonio Williams of

possession of heroin in violation of Code § 18.2-250. He

challenges the sufficiency of the evidence. Finding no error,

we affirm.

Examining the evidence in the light most favorable to the

Commonwealth, Officer L.A. Stokes was walking toward the

defendant as the defendant emerged from behind a dumpster. They

were facing each other and approximately ten yards apart. The

defendant dropped a yellow baggie from his hand when he made eye

contact with Stokes. Stokes walked directly to the baggie. The

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. defendant looked at him, then changed direction, and walked away

at an accelerating pace. Stokes retrieved an M&M baggie that

contained "numerous clear capsules containing a white powder

which [Stokes] believed to be heroin."

Stokes looked for the defendant but could not find him. He

recognized the defendant's face from prior contact with him but

did not know his name. Stokes processed the baggie without the

defendant's name, stored it in a locker in the property and

evidence room, and waited until he encountered the defendant

again. Nine days later, Stokes saw the defendant and arrested

him for having possessed the M&M baggie of heroin. Stokes

re-packaged the M&M baggie to add the defendant's name to the

data. It was mailed to the laboratory for analysis.

"In order to convict a person of illegal possession of an

illicit drug, the Commonwealth must prove beyond a reasonable

doubt that the accused was aware of the presence and character

of the drug and that the accused consciously possessed it."

Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 894, 899

(1994) (citation omitted). Proof of actual possession gives

rise to the inference that the possessor is the owner and knows

its character. Hamilton v. Commonwealth, 16 Va. App. 751, 754,

433 S.E.2d 27, 29 (1993). The court may also consider the

defendant's "acts, declarations, or conduct" in determining his

knowledge. Hairston v. Commonwealth, 5 Va. App. 183, 186, 360

S.E.2d 893, 895 (1987); Johnson v. Commonwealth, 12 Va. App.

- 2 - 150, 153, 402 S.E.2d 502, 504 (1991) (flight may be considered

consciousness of guilt).

Upon seeing Officer Stokes, the defendant dropped a yellow

M&M baggie, quickened his pace, and disappeared. Stokes

recognized the defendant, though he did not know his name. He

immediately retrieved the bag, which contained heroin. Nine

days later, Stokes saw the defendant, identified him as the man

who dropped the baggie, and arrested him. From his actual

possession, the trial court could reasonably infer the defendant

intentionally and knowingly possessed the heroin. "Numerous

decisions have affirmed convictions for possession of narcotic

drugs resting on proof that a defendant was observed dropping or

throwing away an identifiable object which, when subsequently

recovered, was found to contain narcotics." Gordon v.

Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971)

(conviction reversed where officer did not see defendant discard

envelope) (citations omitted).

The defendant objected to the admission of the certificate

of analysis alleging a break in the chain of custody. He

asserted that an unaccounted for person must have had access to

the evidence locker. "[T]here's someone else out there who had

a key . . . and access to the locker . . . and the Commonwealth

has not put that person on to . . . establish the chain [of

custody]." The trial court overruled the objection and admitted

the exhibits. The defendant did not appeal the admission of the

- 3 - certificate of analysis. He now raises the same contention as

part of his challenge to the sufficiency of the evidence. The

argument was not made as part of his motion to strike, and we

will not consider it separately now. Buck v. Commonwealth, 247

Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (appellate court

will not consider an argument on appeal different from one

raised at trial even if it is related to the same issue).

Accordingly, credible evidence proved beyond a reasonable

doubt that the defendant intentionally and knowingly possessed

the heroin.

Affirmed.

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