COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata Argued at Salem, Virginia
JAMES JUNIOUS CHANDLER, S/K/A JAMES JULIUS CHANDLER MEMORANDUM OPINION * BY v. Record No. 0230-94-3 JUDGE ROSEMARIE ANNUNZIATA MAY 21, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge Mark T. Williams (Williams, Stilwell, Morrison, Williams and Light, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Appellant, James Junious Chandler, appeals his conviction
for possession of cocaine in violation of Code § 18.2-250(a).
Appellant contends the evidence was insufficient to support a
conviction based on constructive possession. We disagree and
affirm. "To support a conviction based upon constructive possession, `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 both the presence and character of the substance and that it was subject to his dominion and control.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 * Pursuant to Code § 17-116.010 this opinion is not designated for publication. S.E.2d 844, 845 (1986)). Neither proximity to contraband nor
presence on the premises where it is found are alone sufficient
to establish constructive possession. E.g., Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992).
Moreover, proximity and presence, together, are insufficient
where the evidence does not show that the defendant's possession
was knowing. See Scruggs v. Commonwealth, 19 Va. App. 58, 61-63,
448 S.E.2d 663, 665-66 (1994) (defendant, owner and driver of car
in which drugs found within passenger seat, did not
constructively possess drugs because evidence failed to show
defendant knew drugs were there); Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994) (defendant, passenger
in car where drugs found both between passenger and driver seats
and under passenger seat, did not constructively possess drugs
because evidence failed to show how long defendant had been in
car, whether defendant saw drugs between seats, or whether
defendant knew of drugs under seat); Nelson v. Commonwealth, 17
Va. App. 708, 711, 440 S.E.2d 627, 628-29 (1994) (defendant,
present in hotel room where drugs found, did not constructively
possess drugs because drugs not in plain view, no drugs found on
defendant, and evidence failed to show how long defendant had
been in room).
However, both proximity and presence are factors the trial
court may consider in evaluating the totality of circumstances. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360
- 2 - (1982); Brown, 15 Va. App. at 10, 421 S.E.2d at 883; Castaneda v.
Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989).
And, "`[k]nowledge . . . may be proved by evidence of acts,
declarations or conduct of the accused from which the inference
may be fairly drawn that [the accused] knew of the existence of
narcotics at the place where they were found.'" Hairston v.
Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987)
(quoting People v. Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306,
308 (1962)). In a case of constructive possession, where the Commonwealth
relies wholly on circumstantial evidence to prove a necessary
element of the offense, all the necessary circumstances proved
must be consistent with guilt and inconsistent with innocence to
establish guilt beyond a reasonable doubt. Harrell v.
Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990).
However, this rule does not require the Commonwealth to disprove
every remote possibility of innocence. Cantrell v. Commonwealth,
7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990). The Commonwealth must reasonably exclude
only those hypotheses "which flow from the evidence itself, and
not from the imagination of defendant's counsel." Id. at 289-90,
373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838,
841, 284 S.E.2d 608, 609 (1981)). Thus, as appellant concedes,
"[t]he Commonwealth is not required to prove that there is no
possibility that someone else may have planted, discarded,
- 3 - abandoned or placed the drugs [where they are found near an
accused]." See, e.g., Brown, 15 Va. App. at 10, 421 S.E.2d at
863.
Whether an alternative hypothesis is a "reasonable
hypothesis of innocence" is a question of fact. Cantrell, 7 Va.
App. at 290, 373 S.E.2d at 339. Unless plainly wrong, a trial
court's factual finding is binding on appeal. E.g., Naulty v.
Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986).
When considering the sufficiency of the evidence on appeal in a
criminal case, this Court views the evidence in a light most
favorable to the Commonwealth. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court
may not substitute its own judgment for that of the trier of
fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218,
220 (1992). Instead, the trial court's judgment will not be set
aside unless it appears that the judgment is plainly wrong or
without supporting evidence. Code § 8.01-680; Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987)).
Here, the evidence shows that Danville Police Officers
Michael Wallace and D. C. Creed responded to a reported dispute
involving a firearm at the home of a Mrs. Hicks. When Wallace
arrived, appellant and Hicks were outside. Wallace checked both
for weapons but found none. He asked appellant to empty his
- 4 - pockets, but appellant refused to comply. Wallace conducted a
pat down search of appellant but felt no weapon. Wallace then
looked inside a parked vehicle which belonged to neither
appellant nor Hicks and discovered a gun. By that time, Creed
had arrived. Wallace exclaimed, "I found a gun," whereupon
appellant ran into Hicks' residence. Creed pursued appellant,
ordering him to stop four times. Appellant did not comply.
Instead, appellant ran into a bathroom and closed the door.
Within five to ten seconds, Creed reached the bathroom and opened
the door.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata Argued at Salem, Virginia
JAMES JUNIOUS CHANDLER, S/K/A JAMES JULIUS CHANDLER MEMORANDUM OPINION * BY v. Record No. 0230-94-3 JUDGE ROSEMARIE ANNUNZIATA MAY 21, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge Mark T. Williams (Williams, Stilwell, Morrison, Williams and Light, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Appellant, James Junious Chandler, appeals his conviction
for possession of cocaine in violation of Code § 18.2-250(a).
Appellant contends the evidence was insufficient to support a
conviction based on constructive possession. We disagree and
affirm. "To support a conviction based upon constructive possession, `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 both the presence and character of the substance and that it was subject to his dominion and control.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 * Pursuant to Code § 17-116.010 this opinion is not designated for publication. S.E.2d 844, 845 (1986)). Neither proximity to contraband nor
presence on the premises where it is found are alone sufficient
to establish constructive possession. E.g., Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992).
Moreover, proximity and presence, together, are insufficient
where the evidence does not show that the defendant's possession
was knowing. See Scruggs v. Commonwealth, 19 Va. App. 58, 61-63,
448 S.E.2d 663, 665-66 (1994) (defendant, owner and driver of car
in which drugs found within passenger seat, did not
constructively possess drugs because evidence failed to show
defendant knew drugs were there); Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994) (defendant, passenger
in car where drugs found both between passenger and driver seats
and under passenger seat, did not constructively possess drugs
because evidence failed to show how long defendant had been in
car, whether defendant saw drugs between seats, or whether
defendant knew of drugs under seat); Nelson v. Commonwealth, 17
Va. App. 708, 711, 440 S.E.2d 627, 628-29 (1994) (defendant,
present in hotel room where drugs found, did not constructively
possess drugs because drugs not in plain view, no drugs found on
defendant, and evidence failed to show how long defendant had
been in room).
However, both proximity and presence are factors the trial
court may consider in evaluating the totality of circumstances. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360
- 2 - (1982); Brown, 15 Va. App. at 10, 421 S.E.2d at 883; Castaneda v.
Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989).
And, "`[k]nowledge . . . may be proved by evidence of acts,
declarations or conduct of the accused from which the inference
may be fairly drawn that [the accused] knew of the existence of
narcotics at the place where they were found.'" Hairston v.
Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987)
(quoting People v. Pigrenet, 26 Ill. 2d 224, 227, 186 N.E.2d 306,
308 (1962)). In a case of constructive possession, where the Commonwealth
relies wholly on circumstantial evidence to prove a necessary
element of the offense, all the necessary circumstances proved
must be consistent with guilt and inconsistent with innocence to
establish guilt beyond a reasonable doubt. Harrell v.
Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990).
However, this rule does not require the Commonwealth to disprove
every remote possibility of innocence. Cantrell v. Commonwealth,
7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990). The Commonwealth must reasonably exclude
only those hypotheses "which flow from the evidence itself, and
not from the imagination of defendant's counsel." Id. at 289-90,
373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838,
841, 284 S.E.2d 608, 609 (1981)). Thus, as appellant concedes,
"[t]he Commonwealth is not required to prove that there is no
possibility that someone else may have planted, discarded,
- 3 - abandoned or placed the drugs [where they are found near an
accused]." See, e.g., Brown, 15 Va. App. at 10, 421 S.E.2d at
863.
Whether an alternative hypothesis is a "reasonable
hypothesis of innocence" is a question of fact. Cantrell, 7 Va.
App. at 290, 373 S.E.2d at 339. Unless plainly wrong, a trial
court's factual finding is binding on appeal. E.g., Naulty v.
Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986).
When considering the sufficiency of the evidence on appeal in a
criminal case, this Court views the evidence in a light most
favorable to the Commonwealth. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court
may not substitute its own judgment for that of the trier of
fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218,
220 (1992). Instead, the trial court's judgment will not be set
aside unless it appears that the judgment is plainly wrong or
without supporting evidence. Code § 8.01-680; Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987)).
Here, the evidence shows that Danville Police Officers
Michael Wallace and D. C. Creed responded to a reported dispute
involving a firearm at the home of a Mrs. Hicks. When Wallace
arrived, appellant and Hicks were outside. Wallace checked both
for weapons but found none. He asked appellant to empty his
- 4 - pockets, but appellant refused to comply. Wallace conducted a
pat down search of appellant but felt no weapon. Wallace then
looked inside a parked vehicle which belonged to neither
appellant nor Hicks and discovered a gun. By that time, Creed
had arrived. Wallace exclaimed, "I found a gun," whereupon
appellant ran into Hicks' residence. Creed pursued appellant,
ordering him to stop four times. Appellant did not comply.
Instead, appellant ran into a bathroom and closed the door.
Within five to ten seconds, Creed reached the bathroom and opened
the door. As the door opened, the toilet flushed. Creed saw
appellant standing next to the toilet with his left pants pocket
pulled inside out and his pants zipped and buttoned. Creed asked
appellant to step back and to display his hands. Appellant
complied, and Creed saw appellant neither hold nor drop anything.
Upon bending down to look behind the toilet for a weapon, Creed
noticed what would prove to be a piece of crack cocaine
approximately one-eighth of an inch in diameter. Creed testified
that the cocaine rested approximately six inches from appellant's
foot on the same side of the floor as the side of appellant's
pants which had the pocket pulled inside out. The evidence is sufficient to support a finding, beyond a
reasonable doubt and to the exclusion of a reasonable hypothesis
to the contrary, that appellant was aware of both the presence
and character of the cocaine and that it was subject to his
dominion and control. Appellant fled from Officer Creed,
- 5 - refusing to stop until he reached the bathroom. Within seconds,
Creed found appellant standing next to a flushing commode with
his pants zipped and buttoned. One of appellant's pockets was
turned inside out, and Creed found cocaine on the floor directly
below that pocket, only six inches from appellant's foot.
Contrary to appellant's assertion, this case is readily
distinguished from Hairston and Wright v. Commonwealth, 217 Va.
669, 232 S.E.2d 733 (1977). In Hairston, the evidence showed
only that the accused held a child whose clothing contained a
package of drugs and who had been in the care of three other
people for the preceding two and one-half hours. 5 Va. App. at
186, 360 S.E.2d at 895. In Wright, the evidence showed only that the accused sat with another man in a room where the police found
drugs. 217 Va. at 670, 232 S.E.2d at 734.
Accordingly, appellant's conviction is affirmed.
Affirmed.
- 6 - BENTON, J., dissenting.
The Commonwealth had the burden to prove beyond a reasonable
doubt that James Chandler possessed the cocaine found by Officer
Creed. Because the evidence in this case did not prove that
Chandler "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), I would reverse the conviction. Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991), the evidence proved that when Officer Wallace detained
Chandler in response to a report that "a female had a gun,"
Chandler refused Wallace's request to empty his pockets. After
the officer frisked him for weapons and walked away, Chandler ran
inside a residence. Another officer, Creed, chased Chandler into
the bathroom. Officer Creed estimated that he opened the
bathroom door five to ten seconds after Chandler entered the
bathroom. When Officer Creed entered the bathroom, he heard the
toilet flushing and saw that the "water had already [gone] down
[and] the bowl was starting to fill back up." Chandler was
standing in front of the toilet with his pants zippered and
buttoned. One of his pockets was "pulled inside out." Creed
asked him to move from the room, searched behind the toilet, and
found a small piece of cocaine on the floor.
Possession of cocaine may be actual or constructive. Drew,
- 7 - 230 Va. at 473, 338 S.E.2d at 845. "To support a conviction
based upon constructive possession, '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.'"
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987)(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). The evidence proved that Officer Creed
did not observe Chandler possess cocaine or do any act to suggest
that he knew the cocaine was on the floor. Only after "ben[ding]
down to look behind the toilet to see if [Chandler] might have
thrown a weapon behind the toilet," did Officer Creed find the
piece of cocaine. Based on the circumstantial evidence, the trial judge could
have inferred that Chandler flushed something down the toilet.
However, only by speculation, surmise or conjecture could he have
concluded that Chandler dropped the cocaine that Officer Creed
found on the floor. "It is, of course, a truism of the criminal
law that evidence is not sufficient to support a conviction if it
engenders only a suspicion or even a probability of guilt." Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533
(1951).
In Virginia it is well established that "[e]vidence merely
that the accused was in the proximity of controlled substances is
- 8 - insufficient" to prove possession. Jones v. Commonwealth, 17 Va.
App. 572, 574, 439 S.E.2d 863, 864 (1994). Just because Chandler
was near the cocaine does not prove beyond a reasonable doubt
that he was aware of its presence. Id. The evidence also failed
to prove that Chandler exercised exclusive dominion or control.
The Commonwealth did not present any evidence that the bathroom
was free of drugs prior to Chandler's entrance or that Chandler
dropped the cocaine. See Burchette v. Commonwealth, 15 Va. App.
432, 438, 425 S.E.2d 81, 85 (1992). To sustain a conviction based upon circumstantial evidence,
"the evidence must be wholly consistent with guilt and wholly
inconsistent with innocence." Scruggs v. Commonwealth, 19 Va.
App. 58, 61, 448 S.E.2d 663, 664 (1994). Evidence is not wholly
inconsistent with innocence where the proof establishes only that
the police find a small piece of cocaine on the floor in the same
room as the accused. Such evidence leads only to surmise and
conjecture as to who left the cocaine. "Conviction cannot rest
upon [surmise and] conjecture." Smith, 192 Va. at 461, 65 S.E.2d
at 533. See also Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977).
Where, as in this case, the evidence amounts to a "mere
suspicion," the evidence is insufficient to convict the accused.
Garner v. Commonwealth, 186 Va. 600, 613, 43 S.E.2d 911, 917
(1947)(citation omitted). Therefore, I would reverse the
conviction.
- 9 -