COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements Argued at Chesapeake, Virginia
JARVIS DESHANON BROWN MEMORANDUM OPINION * BY v. Record No. 2361-00-1 JUDGE ROBERT P. FRANK NOVEMBER 6, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Edward W. Hanson, Jr., Judge
Janee D. Joslin (Davis & Pugh, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.
Jarvis Deshanon Brown (appellant) was convicted in a jury
trial of possession with the intent to distribute more than five
pounds of marijuana, in violation of Code § 18.2-248.1. On
appeal, he contends the trial court erred in finding the evidence
sufficient to convict. Finding no error, we affirm the judgment
of the trial court.
BACKGROUND
On April 26, 1999, John Casey, an employee of the Family
Motors car dealership, arrived at work and noticed a package in
the office. When he opened the package, he discovered inside the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. larger package a shrink-wrapped package approximately three feet
long that contained a large quantity of marijuana. Two other
inner boxes also contained marijuana. The inner packages
contained a combined total of over 100 pounds of marijuana. Casey
immediately told his manager to call the police.
In examining the outside of the package, Casey noticed that
it originated in California. The shipping receipt listed a phone
number and a name, Linda Nichols.
Virginia Beach Police Detectives Richard Brereton and Terry
Dugan responded to the call. Brereton called the telephone number
listed on the shipping receipt. He identified himself as a
fictional employee of Family Motors named "Bob" and explained he
had received a package that was not for the dealership. No person
named "Bob" worked at the dealership. Brereton had several
conversations with the person in California, who identified
herself as Linda Nichols. Eventually, Nichols told Brereton that
an individual named Jarvis Brown would come and claim the package.
Appellant appeared at the dealership that afternoon. He
asked for "Bob." Detective Dugan, playing the role of "Bob,"
walked with appellant to a van where the drugs were stored. Dugan
asked appellant if he knew what was in the box. Appellant
initially stated "monitors or computers" and then said, "[N]aw,
I'm just here to pick it up for Linda."
Dugan told him the box contained marijuana and asked
appellant about compensation for his efforts. Appellant denied
- 2 - any knowledge of the marijuana but expressed his willingness to
make a telephone call to inquire if "Bob" could be compensated.
The detective "slid the box down to a point where [appellant]
could put his hands on it." Appellant then placed one hand on
each side of the box and, in the words of Dugan, "he took
possession of the package." Dugan gave the "take down" signal,
and appellant was arrested within seconds of his placing his hands
on the package.
After he was arrested and given his Miranda rights, appellant
gave the police a statement. He initially stated he was at the
dealership to pick up microphones. He then stated that he was
there to see "Bob," not to pick up microphones. After some
hesitation, he then claimed that he was there to pick up computer
monitors, which the car dealership had never sold. Appellant
further stated that he did not know what was in the package and
that he was there to look at a computer. Appellant said several
times that he would like to help the police, but "these guys"
would kill him and his family. He also noted that he would find
out who "set him up." Finally, he admitted that his friend, Rico,
called him and asked him to pick up the package. Appellant
stated, "Rico is a drug dealer. He sent me up there to pick up
the package. I just didn't think the package was going to be that
big."
Appellant denied calling California and said he did not know
how anyone at the packaging company knew his name.
- 3 - ANALYSIS
Appellant contends the evidence was not sufficient to prove
that he knowingly possessed, either actually or constructively,
the marijuana.
When considering the sufficiency of the evidence on appeal in
a criminal case, we view 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). "In so doing, we must
'"discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom."'" Norman v. Commonwealth, 2 Va. App. 518, 520,
346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va.
492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v.
Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The
trial court's judgment will not be set aside unless the judgment
is plainly wrong or without evidence to support it. Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
Possession of a controlled substance may be actual or
constructive. See Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983).
To support a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements,
- 4 - 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."
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)). See Eckhart v. Commonwealth, 222 Va. 447, 450, 281
S.E.2d 853, 855 (1981).
Proof by circumstantial evidence "'is not sufficient . . . if
it engenders only a suspicion or even a probability of guilt.'"
Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,
859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977)). "'"All necessary circumstances proved must
be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)
(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements Argued at Chesapeake, Virginia
JARVIS DESHANON BROWN MEMORANDUM OPINION * BY v. Record No. 2361-00-1 JUDGE ROBERT P. FRANK NOVEMBER 6, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Edward W. Hanson, Jr., Judge
Janee D. Joslin (Davis & Pugh, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.
Jarvis Deshanon Brown (appellant) was convicted in a jury
trial of possession with the intent to distribute more than five
pounds of marijuana, in violation of Code § 18.2-248.1. On
appeal, he contends the trial court erred in finding the evidence
sufficient to convict. Finding no error, we affirm the judgment
of the trial court.
BACKGROUND
On April 26, 1999, John Casey, an employee of the Family
Motors car dealership, arrived at work and noticed a package in
the office. When he opened the package, he discovered inside the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. larger package a shrink-wrapped package approximately three feet
long that contained a large quantity of marijuana. Two other
inner boxes also contained marijuana. The inner packages
contained a combined total of over 100 pounds of marijuana. Casey
immediately told his manager to call the police.
In examining the outside of the package, Casey noticed that
it originated in California. The shipping receipt listed a phone
number and a name, Linda Nichols.
Virginia Beach Police Detectives Richard Brereton and Terry
Dugan responded to the call. Brereton called the telephone number
listed on the shipping receipt. He identified himself as a
fictional employee of Family Motors named "Bob" and explained he
had received a package that was not for the dealership. No person
named "Bob" worked at the dealership. Brereton had several
conversations with the person in California, who identified
herself as Linda Nichols. Eventually, Nichols told Brereton that
an individual named Jarvis Brown would come and claim the package.
Appellant appeared at the dealership that afternoon. He
asked for "Bob." Detective Dugan, playing the role of "Bob,"
walked with appellant to a van where the drugs were stored. Dugan
asked appellant if he knew what was in the box. Appellant
initially stated "monitors or computers" and then said, "[N]aw,
I'm just here to pick it up for Linda."
Dugan told him the box contained marijuana and asked
appellant about compensation for his efforts. Appellant denied
- 2 - any knowledge of the marijuana but expressed his willingness to
make a telephone call to inquire if "Bob" could be compensated.
The detective "slid the box down to a point where [appellant]
could put his hands on it." Appellant then placed one hand on
each side of the box and, in the words of Dugan, "he took
possession of the package." Dugan gave the "take down" signal,
and appellant was arrested within seconds of his placing his hands
on the package.
After he was arrested and given his Miranda rights, appellant
gave the police a statement. He initially stated he was at the
dealership to pick up microphones. He then stated that he was
there to see "Bob," not to pick up microphones. After some
hesitation, he then claimed that he was there to pick up computer
monitors, which the car dealership had never sold. Appellant
further stated that he did not know what was in the package and
that he was there to look at a computer. Appellant said several
times that he would like to help the police, but "these guys"
would kill him and his family. He also noted that he would find
out who "set him up." Finally, he admitted that his friend, Rico,
called him and asked him to pick up the package. Appellant
stated, "Rico is a drug dealer. He sent me up there to pick up
the package. I just didn't think the package was going to be that
big."
Appellant denied calling California and said he did not know
how anyone at the packaging company knew his name.
- 3 - ANALYSIS
Appellant contends the evidence was not sufficient to prove
that he knowingly possessed, either actually or constructively,
the marijuana.
When considering the sufficiency of the evidence on appeal in
a criminal case, we view 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). "In so doing, we must
'"discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom."'" Norman v. Commonwealth, 2 Va. App. 518, 520,
346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va.
492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v.
Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The
trial court's judgment will not be set aside unless the judgment
is plainly wrong or without evidence to support it. Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
Possession of a controlled substance may be actual or
constructive. See Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983).
To support a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements,
- 4 - 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."
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)). See Eckhart v. Commonwealth, 222 Va. 447, 450, 281
S.E.2d 853, 855 (1981).
Proof by circumstantial evidence "'is not sufficient . . . if
it engenders only a suspicion or even a probability of guilt.'"
Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,
859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977)). "'"All necessary circumstances proved must
be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)
(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194,
196 (1981) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228
S.E.2d 563, 567 (1976))). "When, from the circumstantial
evidence, 'it is just as likely, if not more likely,' that a
'reasonable hypothesis of innocence' explains the accused's
conduct, the evidence cannot be said to rise to the level of proof
beyond a reasonable doubt." Littlejohn, 24 Va. App. at 414, 482
S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not
"'exclude every possible theory or surmise,'" but it must exclude
- 5 - those hypotheses "'which flow from the evidence itself.'"
Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328,
338-39 (1988) (quoting Black v. Commonwealth, 222 Va. 838, 841,
284 S.E.2d 608, 609 (1981)).
Our inquiry, therefore, is whether appellant was aware of the
presence and character of the marijuana found in the package and
whether he exercised dominion and control over the packaged drugs.
We first examine the information that appellant had
concerning the shipment of drugs. Appellant knew the drugs were
shipped by Nichols. He was aware of the phone conversation
between Brereton and Nichols because he asked for "Bob" when he
arrived at the car dealership. The detective had given Nichols
the fictitious name of "Bob" when he spoke to her.
From the various phone calls, the detective knew that someone
named Jarvis Brown would arrive to pick up the package. While
appellant denied any knowledge of the drugs, he volunteered to
make a telephone call to inquire if "Bob" would be compensated.
The fact finder could properly infer that appellant was in contact
with the source of the marijuana.
When appellant was advised that the package contained
marijuana, he nevertheless put his hands on each side of the
package. He did not retreat or disclaim the package. His actions
were consistent with one who went to the dealership intending to
pick up the marijuana.
- 6 - Appellant gave several contradictory explanations for his
presence at the dealership. Initially, he said he was there to
pick up a microphone, then a computer monitor. Ultimately, he
said he was sent there by a drug dealer to pick up a package but
claimed he was surprised the package was "that big." The trial
court was entitled to infer that he was lying to conceal his
guilt. See Black, 222 Va. at 842, 284 S.E.2d at 610.
Further, appellant expressed concern that if he assisted the
police, "these guys" would kill him and his family. This concern
about retaliation belies his claim that he did not know the
contents of the package.
From the evidence, the fact finder could conclude that
appellant had been in contact with Nichols, who originally shipped
the drugs, and that appellant was sent to the dealership to pick
up the package. The fact finder also could infer, since appellant
was in a position to discuss compensation with Nichols, he was
intimately connected with the drug operation.
While appellant contends he did not exercise dominion and
control over the marijuana, the facts do not support his position.
The undercover detective slid the package to where appellant could
retrieve it. Appellant, after being told that the package
contained marijuana, placed one hand on each side of the box. The
detective characterized appellant's actions as "[taking]
possession of the package."
- 7 - Possession need not be actual, exclusive, or lengthy in order
to support a conviction; instead, the statute criminalizes
constructive or joint possession of illegal drugs for any
duration. See Gillis v. Commonwealth, 215 Va. 298, 302, 208
S.E.2d 768, 771 (1974); Josephs, 10 Va. App. at 99, 390 S.E.2d at
497.
The trial court could reasonably infer that, but for
appellant's arrest within seconds of his placing his hands on the
package, he would have picked up the package and left with it.
Here, the evidence was sufficient beyond a reasonable doubt
that appellant was guilty of the offense. We affirm the judgment
Affirmed.
- 8 -