George Douglas Young, Jr. v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: May 15, 2001
• Docket: 1228002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Bray Argued at Richmond, Virginia

GEORGE DOUGLAS YOUNG, JR. MEMORANDUM OPINION * BY v. Record No. 1228-00-2 JUDGE RICHARD S. BRAY MAY 15, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY William L. Wellons, Judge

(Robert H. Morrison, Bennett & Morrison, P.L.C., on brief), for appellant. Appellant submitting on brief.

Stephen R. McCullough, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

George Young, Jr. (defendant) was convicted in a bench trial

of conspiracy to distribute cocaine, possession of cocaine with

intent to distribute, possession of a firearm while in possession

of cocaine and possession of marijuana, all "on or about

January 27, 1998 through January 30, 1998." On appeal, defendant

challenges the sufficiency of the evidence to support the

convictions for possession of cocaine and related possession of a

firearm. We disagree and affirm the trial court.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

I.

In reviewing the sufficiency of the evidence, we consider

the record, "in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom."

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998) (citation omitted). "[T]he fact finder is not

required to accept entirely either the Commonwealth's or the

defendant's account of the facts [but] may reject that which it

finds implausible, [and] accept other parts which it finds

believable." Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428

S.E.2d 16, 24 (1993) (citation omitted). Thus, the credibility of

the witnesses, the weight accorded testimony, and the inferences

drawn from proven facts are matters to be determined by the fact

finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d

473, 476 (1989). The judgment of the trial court will not be

disturbed unless plainly wrong or unsupported by the evidence.

See Code § 8.01-680.

Viewed accordingly, the instant record discloses that, on

January 30, 1998, Jimmy Thomas, special agent for the Virginia

Department of Alcoholic Beverage Control, and Halifax County

Police Sergeant Richard Pulliam executed a search warrant at a

residence in the town of Virgilina. Entering the residence

- 2 - "through the front door . . . into a hallway," Thomas observed

defendant asleep on "a bed in the middle of the living room."

Five other persons, including Mack Kincy, were gathered in "a

smaller room" adjacent to and at "the back of the living room."

The resulting search yielded an array of contraband,

including a "nine millimeter semiautomatic pistol," a "forty

caliber semiautomatic pistol," cocaine, marijuana, large amounts

of cash, cellular phones, pagers, razor blades, and "marked money

. . . from a controlled buy." Defendant concedes on brief that

"the majority of these items . . . were in plain view and laying

about the [smaller] room," within several feet of defendant.

Searching defendant's person, police discovered $163 in his

pocket, which he explained was won "playing cards," but no drugs

or weapons.

Interviewed by police, defendant admitted smoking marijuana

earlier in the evening. Defendant denied selling drugs on the day

of the search, although he had witnessed twelve people purchase

drugs from others at the house and had advised a person seeking

drugs to "hold up," while he summoned Mack Kincy from "inside" to

make the sale. However, defendant admitted distributing crack

cocaine the preceding evening, including trading the drug for a

shotgun, a transaction observed by Pulliam during his undercover

surveillance. Defendant acknowledged his fingerprints would

appear on the razor blades and "guns," because he had "busted open

cigars" with the razor blades and had "touched all" the weapons.

- 3 - Mack Kincy testified defendant "sometimes . . . would stay"

at the residence, a house "used . . . for selling cocaine" by

several persons, including defendant, and sold cocaine on several

occasions during the period embraced by the subject indictment.

Kincy noted defendant regularly purchased the drug for resale,

both from another resident and a "person that lived upstate."

On appeal, defendant challenges the sufficiency of the

evidence to establish "that [he] constructively possessed the

cocaine confiscated . . . during the raid at issue," together with

firearms, although he does not contest the related conviction for

conspiracy to distribute cocaine.

II.

Actual or constructive possession of drugs and firearms will

support a conviction for such offenses. Logan v. Commonwealth,

19 Va. App. 437, 444, 452 S.E.2d 364, 368 (1994) (en banc). The

principles that govern a determination of constructive

possession of illegal drugs also apply to like possession of a

firearm. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427

S.E.2d 219, 220-21 (1993). Constructive possession may be

established by "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, 19 Va. App. at 444, 452 S.E.2d at 368-69

(citation omitted). "[P]ossession need not always be exclusive.

- 4 - The defendant may share it with one or more" persons and "[t]he

duration of the possession is immaterial." Gillis v.

Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771 (1974).

"[P]roof that a person is in close proximity to contraband is a

relevant fact that, depending on the circumstances, may tend to

show that, as an owner or occupant of property . . ., the person

necessarily knows of the presence, nature and character of the

[item] that is found there." Burchette v. Commonwealth, 15 Va.

App. 432, 435, 425 S.E.2d 81, 83 (1992).

Here, defendant confessed to trading crack cocaine 1 for a

shotgun and other cocaine sales during the several days

immediately preceding the search, January 30, 1998, assisting

Kincy in a cocaine sale earlier that day, and handling both drug

paraphernalia and firearms found scattered about the home.

Defendant's statements, his continuing involvement with others in

the distribution of cocaine from the premises and the related

possession of firearms were corroborated by the testimony of

Kincy. Such evidence clearly established defendant actually and

1 In the absence of a certificate of chemical analysis, defendant contends the Commonwealth failed to prove the substance traded for the shotgun was cocaine. However, "[t]he nature of an illegal substance may be demonstrated by circumstantial evidence." Myrick v. Commonwealth, 13 Va. App. 333, 339-40, 412 S.E.2d 176, 179 (1991). Defendant admitted trading "cocaine" for the shotgun, and the transaction occurred in a house dedicated to sale of the drug, harboring several persons, including defendant, then conspiring in such distribution. Thus, the record sufficiently established the identity of the substance traded and otherwise sold by defendant.

- 5 - constructively possessed both cocaine and firearms during the

period embraced by the indictment, January 27 through 30, 1998.

Further, "[a] co-conspirator may be criminally liable for an

act of another member of the conspiracy if the act is 'done in

the furtherance of the conspiracy' and can 'be reasonably

foreseen as a necessary and natural consequence of the'

conspiracy." Cotter v. Commonwealth, 19 Va. App. 382, 386, 452

S.E.2d 20, 22 (1994). The Commonwealth proved defendant's

co-conspirators possessed the cocaine and firearms discovered in

the house during the search, all in furtherance of the

conspiracy to distribute cocaine, criminal conduct that renders

defendant equally culpable.

Accordingly, the evidence sufficiently supported the

convictions, and we affirm the trial court.

Affirmed.

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