COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman Argued at Chesapeake, Virginia
JAMES DOUGLAS GRAVES, JR. MEMORANDUM OPINION * BY v. Record No. 3348-01-1 JUDGE LARRY G. ELDER JANUARY 14, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Thomas W. Carpenter (Thomas W. Carpenter, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
James Douglas Graves, Jr., (appellant) appeals from his
bench trial conviction for possession of cocaine in violation of
Code § 18.2-250. On appeal, he contends the evidence was
insufficient to prove he constructively possessed cocaine found
in a pair of boots which he was not wearing at the time but
which he subsequently admitted were his. We hold the evidence
was sufficient, and we affirm.
When considering the sufficiency of the evidence on appeal
of a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to the evidence all
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
"To convict a person of possession of illegal drugs, 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally
and consciously possessed them.'" Castaneda v. Commonwealth, 7
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)). Possession need not be actual, exclusive or lengthy in
order to support a conviction under Code § 18.2-250; instead,
the statute criminalizes possession of illegal drugs of any
duration that is constructive or joint. Gillis v. Commonwealth,
215 Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
Constructive possession of illegal drugs may be proven by
"evidence of 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."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986). Neither close proximity to illegal drugs nor occupancy
of the premises on which they are found, standing alone, amounts
to "possession" of such drugs under Code § 18.2-250; however,
both are factors that may be considered in determining whether - 2 - possession occurred in a particular case. Castaneda, 7 Va. App.
at 583-84, 376 S.E.2d at 87. Such circumstantial evidence may
be sufficient to prove possession, as long as it excludes all
reasonable hypotheses of innocence flowing from the evidence.
Higginbotham, 216 Va. at 352-53, 218 S.E.2d at 537.
We hold the evidence, viewed in the light most favorable to
the Commonwealth, was sufficient to prove appellant exercised at
least joint constructive possession of the cocaine residue on
the spoon. Police discovered the spoon in a sock located in a
pair of men's work boots they found beneath a chest at the foot
of the bed in the upstairs master bedroom of appellant's
residence. Appellant admitted the boots were his, and he wore
them to the police station following his arrest.
When police arrived to execute the search warrant for
appellant's residence, they found appellant "at the foot of
. . . the staircase" of his two-story residence. Appellant had
no shoes or boots on at the time, and no evidence established
that a pair of shoes or boots was near appellant when the police
entered.
Although appellant's wife and another man were inside the
residence with appellant when the police first arrived, all
three were on the first floor when the police entered the
residence, and no one had an opportunity to place anything in
the boot after the police arrived. Thus, no evidence supported
a hypothesis that someone placed the spoon there out of fear - 3 - that the police entering to execute the search warrant would
find it on his or her person, and the only reasonable hypothesis
was that appellant placed the spoon in the shoes, which he
admitted were his, at some time prior to the arrival of the
police.
Further, appellant implicitly indicated an awareness of the
presence of the spoon and residue in his boot. The evidence
established that when Detective D.E. Flythe took the boots
downstairs, the following exchange took place:
APPELLANT: Where are you going with my boots?
DETECTIVE FLYTHE: These are your boots?
APPELLANT: Yeah.
DETECTIVE FLYTHE: You know you're under arrest for possession of cocaine?
APPELLANT: Those aren't my boots.
Appellant, when told he was under arrest for possession of
cocaine, immediately disclaimed ownership of the boots, showing
an awareness of the fact that it was the cocaine residue inside
the boots that led to his arrest for possessing cocaine.
For these reasons, we hold the only hypothesis flowing from
the evidence is that appellant exercised constructive possession
of the cocaine residue on the spoon found inside his boot.
Thus, we affirm the challenged conviction.
Affirmed.
- 4 - Benton, J., dissenting.
The trial judge convicted Graves on circumstantial evidence
of constructive possession. To prove that an accused
constructively possessed a controlled substance, "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 [accused] was aware of both the presence
and character of the substance and that it was subject to his
dominion and control." Powers v. Commonwealth, 227 Va. 474,
476, 316 S.E.2d 739, 740 (1984). Furthermore, Code § 18.2-250
could not be clearer: "Upon the prosecution of a person [for
possession of a controlled substance], ownership or occupancy of
premises . . . upon or in which a controlled substance was found
shall not create a presumption that such person either knowingly
or intentionally possessed such controlled substance."
[W]ell established principles apply to testing the sufficiency of circumstantial evidence . . . .
"[I]f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman Argued at Chesapeake, Virginia
JAMES DOUGLAS GRAVES, JR. MEMORANDUM OPINION * BY v. Record No. 3348-01-1 JUDGE LARRY G. ELDER JANUARY 14, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Thomas W. Carpenter (Thomas W. Carpenter, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
James Douglas Graves, Jr., (appellant) appeals from his
bench trial conviction for possession of cocaine in violation of
Code § 18.2-250. On appeal, he contends the evidence was
insufficient to prove he constructively possessed cocaine found
in a pair of boots which he was not wearing at the time but
which he subsequently admitted were his. We hold the evidence
was sufficient, and we affirm.
When considering the sufficiency of the evidence on appeal
of a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to the evidence all
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
"To convict a person of possession of illegal drugs, 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally
and consciously possessed them.'" Castaneda v. Commonwealth, 7
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)). Possession need not be actual, exclusive or lengthy in
order to support a conviction under Code § 18.2-250; instead,
the statute criminalizes possession of illegal drugs of any
duration that is constructive or joint. Gillis v. Commonwealth,
215 Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
Constructive possession of illegal drugs may be proven by
"evidence of 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."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986). Neither close proximity to illegal drugs nor occupancy
of the premises on which they are found, standing alone, amounts
to "possession" of such drugs under Code § 18.2-250; however,
both are factors that may be considered in determining whether - 2 - possession occurred in a particular case. Castaneda, 7 Va. App.
at 583-84, 376 S.E.2d at 87. Such circumstantial evidence may
be sufficient to prove possession, as long as it excludes all
reasonable hypotheses of innocence flowing from the evidence.
Higginbotham, 216 Va. at 352-53, 218 S.E.2d at 537.
We hold the evidence, viewed in the light most favorable to
the Commonwealth, was sufficient to prove appellant exercised at
least joint constructive possession of the cocaine residue on
the spoon. Police discovered the spoon in a sock located in a
pair of men's work boots they found beneath a chest at the foot
of the bed in the upstairs master bedroom of appellant's
residence. Appellant admitted the boots were his, and he wore
them to the police station following his arrest.
When police arrived to execute the search warrant for
appellant's residence, they found appellant "at the foot of
. . . the staircase" of his two-story residence. Appellant had
no shoes or boots on at the time, and no evidence established
that a pair of shoes or boots was near appellant when the police
entered.
Although appellant's wife and another man were inside the
residence with appellant when the police first arrived, all
three were on the first floor when the police entered the
residence, and no one had an opportunity to place anything in
the boot after the police arrived. Thus, no evidence supported
a hypothesis that someone placed the spoon there out of fear - 3 - that the police entering to execute the search warrant would
find it on his or her person, and the only reasonable hypothesis
was that appellant placed the spoon in the shoes, which he
admitted were his, at some time prior to the arrival of the
police.
Further, appellant implicitly indicated an awareness of the
presence of the spoon and residue in his boot. The evidence
established that when Detective D.E. Flythe took the boots
downstairs, the following exchange took place:
APPELLANT: Where are you going with my boots?
DETECTIVE FLYTHE: These are your boots?
APPELLANT: Yeah.
DETECTIVE FLYTHE: You know you're under arrest for possession of cocaine?
APPELLANT: Those aren't my boots.
Appellant, when told he was under arrest for possession of
cocaine, immediately disclaimed ownership of the boots, showing
an awareness of the fact that it was the cocaine residue inside
the boots that led to his arrest for possessing cocaine.
For these reasons, we hold the only hypothesis flowing from
the evidence is that appellant exercised constructive possession
of the cocaine residue on the spoon found inside his boot.
Thus, we affirm the challenged conviction.
Affirmed.
- 4 - Benton, J., dissenting.
The trial judge convicted Graves on circumstantial evidence
of constructive possession. To prove that an accused
constructively possessed a controlled substance, "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 [accused] was aware of both the presence
and character of the substance and that it was subject to his
dominion and control." Powers v. Commonwealth, 227 Va. 474,
476, 316 S.E.2d 739, 740 (1984). Furthermore, Code § 18.2-250
could not be clearer: "Upon the prosecution of a person [for
possession of a controlled substance], ownership or occupancy of
premises . . . upon or in which a controlled substance was found
shall not create a presumption that such person either knowingly
or intentionally possessed such controlled substance."
[W]ell established principles apply to testing the sufficiency of circumstantial evidence . . . .
"[I]f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other - 5 - rational hypothesis and to a moral certainty."
But, circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977) (citations omitted).
The evidence failed to prove which of the three persons in
the downstairs living room had been in the upstairs bedroom
where Graves's work boots were located. No evidence established
when Graves arrived home or when he had last worn his work
boots. No evidence proved the sock found in the boots was
Graves's sock. Although, as the majority notes, none of the
three individuals had the opportunity to hide the spoon in the
boots after the police arrived, no evidence proved one of them
could not have put the spoon in the boots before the police
arrived. Furthermore, we cannot naively presume drug users
attempt to hide their drug paraphernalia only from the police.
The evidence failed to exclude the possibility that Graves's
wife or the visitor possessed the cocaine residue found on the
spoon.
I do not agree that Graves's statements implicitly
indicated an awareness of the existence of the cocaine. The
detective who seized the boots testified that other officers
- 6 - removed the spoon and sock from the boots before he took the
boots downstairs where Graves, Graves's wife, and the other man
were detained. The detective testified that he carried the
boots downstairs "[t]o get [Graves] to say that they were his
boots." The detective further testified as follows:
Q Did you at any point inform him that you had found anything in the boots?
A Yes, sir.
Q Okay. When was that?
A Right after he said, "Where are you going with my boots?"
Q Had he been shown the object prior to that?
A No, sir.
Q Had the group been shown the object prior to that?
Q Had the group or Mr. Graves individually been shown any objects recovered in this search?
A As I said, no, sir, not that I recall, sir.
Q When you came downstairs with the boots, would it be fair to characterize Mr. Graves' reaction as one of surprise that you had his boots?
A Mr. Graves was a little hostile that day, so he was probably mad at us.
Within the context of these events, the evidence merely
proved that Graves attempted to disassociate himself from the
boots after the detective informed him they found a spoon with - 7 - cocaine residue in the boots. Furthermore, the only link that
potentially connects Graves and the cocaine is his ownership of
the boots. That link, however, is insufficient to prove he
possessed the cocaine.
[I]n order for ownership or occupancy of property . . . to be sufficient to support the inference that the owner or occupant also possessed contraband that was located on the property or in the [property], the owner or occupant must be shown to have exercised dominion and control over the premises and to have known of the presence, nature, and character of the contraband at the time of such ownership or occupancy.
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83-84 (1992). The evidence did not prove Graves was aware of
the spoon with the cocaine residue before the detective informed
him of it.
While suspicious, the evidence in the record fails to
exclude the reasonable hypothesis that Graves's wife or friend
used the cocaine in the bedroom and deposited the spoon in the
sock. "While a conviction may be properly based upon
circumstantial evidence, suspicion or even probability of guilt
is not sufficient." Gordon v. Commonwealth, 212 Va. 298, 300,
183 S.E.2d 735, 737 (1971).
For these reasons, I would reverse the conviction
- 8 -