ERVIN McCOY HARRIS V COMMONWEALTH OF VIRGINIA

• Court: Court of Appeals of Virginia
• Decided: July 30, 2002
• Docket: 2183011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Agee Argued at Chesapeake, Virginia

ERVIN McCOY HARRIS MEMORANDUM OPINION * BY v. Record No. 2183-01-1 JUDGE G. STEVEN AGEE JULY 30, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James A. Cales, Jr., Judge

Andrew Kolp, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Ervin McCoy Harris (Harris) was convicted in the City of

Portsmouth Circuit Court of possession of cocaine, in violation

of Code § 18.2-250, and possession of marijuana, in violation of

Code § 18.2-250.1. He was sentenced to eighteen months

incarceration for the possession of cocaine conviction, and

thirty days in jail for the marijuana conviction. Harris now

appeals his convictions contending the evidence was insufficient

to establish his possession of the contraband. For the

following reasons we affirm Harris' convictions.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

Portsmouth police detectives executed a search warrant at

an apartment. Upon their entry, the detectives observed Harris

and two women sitting on a couch. Immediately in front of the

trio, approximately one to two feet away and "well within reach"

of Harris, was a coffee table on which two baggies of cocaine

and one marijuana blunt were in plain view. One baggie

contained 2.13 grams of cocaine, while the other baggie

contained 17 individual baggies of cocaine, collectively

weighing 1.67 grams.

The search of the apartment uncovered Harris'

identification on top of the refrigerator in the kitchen and his

social security card in a pair of pants in an upstairs bedroom.

Harris' name was not on the lease, but a detective testified

that Harris told him that he resided at the apartment.

II. ANALYSIS

On appeal, Harris contends the Commonwealth failed to prove

that he possessed the cocaine and marijuana. We disagree and

hold the Commonwealth established Harris' constructive

possession of the narcotics.

- 2 - A. STANDARD OF REVIEW

When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom. See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). On review, this Court does not substitute its own

judgment for that of the trier of fact. See Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).

Witness credibility, the weight accorded the testimony and the

inferences to be drawn from proven facts are matters to be

determined by the fact finder. See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial court's

judgment will not be set aside unless it appears that the

judgment is plainly wrong or without supporting evidence. See

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

B. THE EVIDENCE IS SUFFICIENT

"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 869, 871

(1998) (citation omitted).

- 3 - [P]roof of actual possession, [however,] is not required; proof of constructive possession will suffice. Constructive possession may be established when there are "'acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.'"

Id. at 426, 497 S.E.2d at 872 (citations omitted).

In determining whether a defendant constructively possessed drugs, the defendant's proximity to the drugs and his occupancy of the [premises] must also be considered. Although mere proximity to the drugs is insufficient to establish possession, and occupancy of the [premises] does not give rise to a presumption of possession, . . . both are factors which may be considered in determining whether a defendant possessed drugs.

Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491,

498 (1990) (en banc) (citations omitted). "[P]ossession need

not always be exclusive. The defendant may share it with one or

more." Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d

799, 806 (1970). In addition, when narcotics are found in plain

view, a reasonable person might infer that those present knew of

its presence and were exercising control of it. See generally

Nelson v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d 627,

628 (1994).

Thus, in resolving the issue of constructive possession,

the trial court must consider "the totality of the circumstances

disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5,

- 4 - 8, 255 S.E.2d 351, 353 (1979). Circumstantial evidence may be

sufficient to prove possession. "Circumstantial evidence is as

competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt." Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

We conclude the totality of the evidence sufficiently

proves beyond a reasonable doubt that Harris possessed the

contraband. Harris was present when police executed the search

warrant and found the narcotics in plain view on the coffee

table directly in front of Harris and easily within reach.

Evidence established that Harris "stayed" at the apartment, if

in fact he did not actually reside there. These facts coupled

with the personal property belonging to Harris found throughout

the house were sufficient to prove Harris possessed the

narcotics jointly with others and to exclude all reasonable

hypotheses of appellant's innocence. Although none of these

circumstances, standing alone, would have sufficiently proved

that Harris possessed the narcotics, the facts combined to

support the finding that the narcotics discovered in plain view

of, and within reach of, Harris were subject to his informed

"dominion and control." See generally Hardy v. Commonwealth, 17

Va. App. 677, 682-83, 440 S.E.2d 434, 437-38 (1994).

This finding is consistent with our prior decisions. For

example, in Brown v. Commonwealth, 5 Va. App. 489, 364 S.E.2d

- 5 - 773 (1988), we held the evidence to be sufficient to establish

constructive possession by the defendant where police, executing

a search warrant, found a mirror with cocaine on it, two pounds

of cocaine, a strainer with cocaine residue on it and plastic

bags all within arm's reach of the defendant and two other men.

We upheld his conviction for possession with intent to

distribute finding that Brown's close proximity to the drugs at

issue, a fact from which the trial court could reasonably infer

an awareness of the presence and character of the cocaine,

"combined with . . . the fact that he was in the house about an

hour," was sufficient to prove the narcotics were subject to his

dominion and control. Id. at 493, 364 S.E.2d at 775. 1

Accordingly, we find the evidence to be sufficient in the

case at bar to establish constructive possession and, therefore,

affirm Harris' convictions for the possession of cocaine and

marijuana.

Affirmed.

1 See also Minor v. Commonwealth, 6 Va. App. 366, 371-72, 369 S.E.2d 206, 209 (1988).

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