COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Powell Argued at Richmond, Virginia
DERWOOD AMELIUS DAVIS MEMORANDUM OPINION * BY v. Record No. 2560-07-2 JUDGE CLEO E. POWELL FEBRUARY 10, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Samuel P. Simpson, V (Montgomery & Simpson, on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Derwood Amelius Davis, appellant, was convicted of possession of cocaine, in violation of
Code § 18.2-250, following a bench trial. On appeal, he contends that the evidence is insufficient to
convict. We agree and reverse his conviction.
I. BACKGROUND
At approximately 11:45 p.m. on May 26, 2007, Officer Mack of the Henrico County
Police Department responded to a call of a possible larceny at the home appellant shared with his
wife, Lynn. Mrs. Davis told the officer that her husband had stolen money from her and that he
has a drug problem. She did not mention what kind of drugs her husband allegedly used.
Mrs. Davis also showed Officer Mack a photograph of her husband.
Officer Mack then went to a nearby area where narcotics are commonly sold and used.
He spotted a man he believed to be Mr. Davis walking in a lit parking lot. Officer Mack pulled
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. into the parking lot and approached the man. When he asked the man if he was Derwood Davis,
he responded that he was and put his hands in his front pockets. Officer Mack moved closer to
Mr. Davis and asked him to remove his hands from his pockets. Instead, Mr. Davis turned away
from Officer Mack and the other officer who had arrived to assist. When he turned away, his
hands were still in his pockets. Officer Mack could not see Mr. Davis’s hands when he turned
away from the officers. Within seconds, though, the officers grabbed both of Mr. Davis’s wrists,
removed his hands from his pockets, and handcuffed him.
The officers recovered $2,050 from Mr. Davis’s left rear pocket and $50 from his front
right pocket. Approximately five feet from where Mr. Davis turned around, Officer Mack found
five individually wrapped bags that he suspected to contain crack cocaine and a small piece of
radio antenna that he believed was used to smoke the suspected crack cocaine. Though no one
else was in the area at this time, Officer Mack agreed at trial that he has found “at least the
evidence of contraband all over” the parking lot. Officer Mack never saw Mr. Davis throw
anything, nor did he hear anything hit the ground. Officer Mack observed Mr. Davis during the
entire encounter.
II. ANALYSIS
When the sufficiency of the evidence is challenged on appeal, we view the evidence and
all inferences fairly deducible therefrom in the light most favorable to the Commonwealth.
Wynn v. Commonwealth, 5 Va. App. 283, 286, 362 S.E.2d 193, 195 (1987). This Court will
only reverse a judgment that is plainly wrong or without evidence to support it. See Jay v.
Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008) (citing Hedrick v.
Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641 (1999)).
To support a conviction based on constructive possession [of drugs], “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 -2- both the presence and character of the substance and that it was subject to his dominion and control.”
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Virginia courts have
repeatedly stated that “[s]uspicious circumstances, including proximity to a controlled drug, are
insufficient to support a conviction.” Behrens v. Commonwealth, 3 Va. App. 131, 135, 348
S.E.2d 430, 433 (1986).
In Gordon v. Commonwealth, 212 Va. 298, 183 S.E.2d 735 (1972), the Supreme Court of
Virginia held that the evidence was insufficient to prove constructive possession. There, a police
detective saw the appellant step between two bushes “‘and a concrete type fence and pulled out a
brownish color manila envelope’” as the detective drove past the appellant. Id. at 298-99, 183
S.E.2d at 736 (quoting transcript). When Gordon saw the police detective, he greeted the
detective by name and walked off in the opposite direction from which he came. Id. at 299, 183
S.E.2d at 736. The detective made a u-turn to follow the appellant and when he saw that the
detective did so, Gordon began running. Id. The detective then left his car and pursued the
appellant on foot, during which the detective lost sight of him for three to four seconds. Id.
When the detective next saw Gordon, he no longer carried the manila envelope. Id. A different
police detective later found a manila envelope that contained illegal drugs in the area where the
first detective lost sight of the appellant. Id. at 300, 183 S.E.2d at 737. The first detective said
the recovered envelope was the same size, shape, and color as the one he saw Gordon holding.
Id. The Supreme Court of Virginia acknowledged that there are numerous cases where courts
have affirmed convictions for possession of drugs where the evidence proved that the defendant
was seen throwing or dropping an identifiable object that was later discovered to contain
contraband. Id. The Court in Gordon, however, concluded that there was a break in the chain of
evidence because “[n]o witness was produced who saw Gordon dispose of the manila envelope -3- which he carried. The envelope containing narcotics ‘works’ was found by [the police detective]
on a grass plot separated only by a perforated wall from the public street on which numerous
persons were gathered.” Id. at 300-01, 183 S.E.2d at 737. Therefore, the Court reversed
appellant’s conviction because the evidence was insufficient to prove that he possessed illegal
drugs. Id. at 301, 183 S.E.2d at 737.
Earlier this year, the Supreme Court of Virginia reversed a conviction for possession of
narcotics based on a theory of constructive possession. Maxwell v. Commonwealth, 275 Va.
437, 444, 657 S.E.2d 499, 503 (2008). In Maxwell, police officers were investigating the
appellant about an unrelated matter. Id. at 440, 657 S.E.2d at 501. When the officer informed
him that he needed to go to the police station for further questioning, Maxwell ran. Id. The
police saw the appellant “walk out from behind several stacks of plywood located between the
alley and a chain-link fence that enclosed [a] lumberyard.” Id. Officers arrested Maxwell and in
a search incident to arrest found $450 but no smoking device. Id. A “drug-dog” later “alerted
on” a lumber pallet. Id. The officer “‘reached in got . . . a plastic bag’” containing “‘eight
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Powell Argued at Richmond, Virginia
DERWOOD AMELIUS DAVIS MEMORANDUM OPINION * BY v. Record No. 2560-07-2 JUDGE CLEO E. POWELL FEBRUARY 10, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Samuel P. Simpson, V (Montgomery & Simpson, on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Derwood Amelius Davis, appellant, was convicted of possession of cocaine, in violation of
Code § 18.2-250, following a bench trial. On appeal, he contends that the evidence is insufficient to
convict. We agree and reverse his conviction.
I. BACKGROUND
At approximately 11:45 p.m. on May 26, 2007, Officer Mack of the Henrico County
Police Department responded to a call of a possible larceny at the home appellant shared with his
wife, Lynn. Mrs. Davis told the officer that her husband had stolen money from her and that he
has a drug problem. She did not mention what kind of drugs her husband allegedly used.
Mrs. Davis also showed Officer Mack a photograph of her husband.
Officer Mack then went to a nearby area where narcotics are commonly sold and used.
He spotted a man he believed to be Mr. Davis walking in a lit parking lot. Officer Mack pulled
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. into the parking lot and approached the man. When he asked the man if he was Derwood Davis,
he responded that he was and put his hands in his front pockets. Officer Mack moved closer to
Mr. Davis and asked him to remove his hands from his pockets. Instead, Mr. Davis turned away
from Officer Mack and the other officer who had arrived to assist. When he turned away, his
hands were still in his pockets. Officer Mack could not see Mr. Davis’s hands when he turned
away from the officers. Within seconds, though, the officers grabbed both of Mr. Davis’s wrists,
removed his hands from his pockets, and handcuffed him.
The officers recovered $2,050 from Mr. Davis’s left rear pocket and $50 from his front
right pocket. Approximately five feet from where Mr. Davis turned around, Officer Mack found
five individually wrapped bags that he suspected to contain crack cocaine and a small piece of
radio antenna that he believed was used to smoke the suspected crack cocaine. Though no one
else was in the area at this time, Officer Mack agreed at trial that he has found “at least the
evidence of contraband all over” the parking lot. Officer Mack never saw Mr. Davis throw
anything, nor did he hear anything hit the ground. Officer Mack observed Mr. Davis during the
entire encounter.
II. ANALYSIS
When the sufficiency of the evidence is challenged on appeal, we view the evidence and
all inferences fairly deducible therefrom in the light most favorable to the Commonwealth.
Wynn v. Commonwealth, 5 Va. App. 283, 286, 362 S.E.2d 193, 195 (1987). This Court will
only reverse a judgment that is plainly wrong or without evidence to support it. See Jay v.
Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008) (citing Hedrick v.
Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641 (1999)).
To support a conviction based on constructive possession [of drugs], “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 -2- both the presence and character of the substance and that it was subject to his dominion and control.”
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Virginia courts have
repeatedly stated that “[s]uspicious circumstances, including proximity to a controlled drug, are
insufficient to support a conviction.” Behrens v. Commonwealth, 3 Va. App. 131, 135, 348
S.E.2d 430, 433 (1986).
In Gordon v. Commonwealth, 212 Va. 298, 183 S.E.2d 735 (1972), the Supreme Court of
Virginia held that the evidence was insufficient to prove constructive possession. There, a police
detective saw the appellant step between two bushes “‘and a concrete type fence and pulled out a
brownish color manila envelope’” as the detective drove past the appellant. Id. at 298-99, 183
S.E.2d at 736 (quoting transcript). When Gordon saw the police detective, he greeted the
detective by name and walked off in the opposite direction from which he came. Id. at 299, 183
S.E.2d at 736. The detective made a u-turn to follow the appellant and when he saw that the
detective did so, Gordon began running. Id. The detective then left his car and pursued the
appellant on foot, during which the detective lost sight of him for three to four seconds. Id.
When the detective next saw Gordon, he no longer carried the manila envelope. Id. A different
police detective later found a manila envelope that contained illegal drugs in the area where the
first detective lost sight of the appellant. Id. at 300, 183 S.E.2d at 737. The first detective said
the recovered envelope was the same size, shape, and color as the one he saw Gordon holding.
Id. The Supreme Court of Virginia acknowledged that there are numerous cases where courts
have affirmed convictions for possession of drugs where the evidence proved that the defendant
was seen throwing or dropping an identifiable object that was later discovered to contain
contraband. Id. The Court in Gordon, however, concluded that there was a break in the chain of
evidence because “[n]o witness was produced who saw Gordon dispose of the manila envelope -3- which he carried. The envelope containing narcotics ‘works’ was found by [the police detective]
on a grass plot separated only by a perforated wall from the public street on which numerous
persons were gathered.” Id. at 300-01, 183 S.E.2d at 737. Therefore, the Court reversed
appellant’s conviction because the evidence was insufficient to prove that he possessed illegal
drugs. Id. at 301, 183 S.E.2d at 737.
Earlier this year, the Supreme Court of Virginia reversed a conviction for possession of
narcotics based on a theory of constructive possession. Maxwell v. Commonwealth, 275 Va.
437, 444, 657 S.E.2d 499, 503 (2008). In Maxwell, police officers were investigating the
appellant about an unrelated matter. Id. at 440, 657 S.E.2d at 501. When the officer informed
him that he needed to go to the police station for further questioning, Maxwell ran. Id. The
police saw the appellant “walk out from behind several stacks of plywood located between the
alley and a chain-link fence that enclosed [a] lumberyard.” Id. Officers arrested Maxwell and in
a search incident to arrest found $450 but no smoking device. Id. A “drug-dog” later “alerted
on” a lumber pallet. Id. The officer “‘reached in got . . . a plastic bag’” containing “‘eight
individually wrapped off-white rocklike substances’” that were later identified as crack cocaine.
Id. at 440, 657 S.E.2d at 501-02 (quoting transcript). A bag containing an additional twelve
rocks of crack cocaine and a bag filled with marijuana were also found in the plywood. Id. at
441, 657 S.E.2d at 502. After the officers found the suspected drugs, Maxwell changed from
“‘talkative and cooperative’” to “‘less talkative and distant[.]’” Id. at 440, 657 S.E.2d at 502
(quoting transcript). Employees at the lumberyard had not seen anyone near the lumber stack
though they were not watching the lumber all day. Id. at 441, 657 S.E.2d at 502. The Supreme
Court of Virginia held that “no rational trier of fact could have found the essential elements of
the crime[s involved in the case] beyond a reasonable doubt.’” Id. at 443, 657 S.E.2d at 503
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The Court reasoned that the evidence
-4- may create suspicion, but it is not “consistent with guilt and inconsistent with innocence and [does not] exclude every reasonable hypothesis of innocence.” See Garland [v. Commonwealth], 225 Va. [182,] 184, 300 S.E.2d [783,] 784 [(1983)]. Nor does it constitute “evidence of acts, statements, or conduct . . . or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance[s] and that [they were] subject to his dominion and control.” See Drew, 230 Va. at 473, 338 S.E.2d at 845.
Id.
In Mr. Davis’s case, the officers never saw him make a throwing motion nor did they
hear anything land on the ground. In fact, Officer Mack testified that Mr. Davis first put his
hands into his pockets when the police encountered him and his hands remained in his pockets
when he turned away from them. The officers forcibly removed Mr. Davis’s hands from his
pockets when they turned him around and handcuffed him. That the illegal drugs were found
approximately five feet from where Mr. Davis was arrested is immaterial because “[m]ere
proximity to a controlled drug is not sufficient to establish dominion and control.” Drew, 230
Va. at 473, 338 S.E.2d at 845 (citing Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d
733, 734 (1977); Fogg v. Commonwealth, 216 Va. 394, 395, 219 S.E.2d 672, 673 (1975)).
III. CONCLUSION
Because the evidence in the light most favorable to the Commonwealth proved only that
Mr. Davis was within mere proximity to the cocaine that Officer Mack found, we hold the evidence
was insufficient to support appellant’s felony conviction for possession of cocaine, in violation of
Code § 18.2-250. Therefore, we reverse Mr. Davis’s conviction and dismiss his indictment.
Reversed and dismissed.
-5-