COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia
KALIEK LAMONT SUBER MEMORANDUM OPINION * BY v. Record No. 0842-98-1 JUDGE ROSEMARIE ANNUNZIATA MAY 11, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE E. Preston Grissom, Judge
David W. Bouchard (Bouchard & Smith, on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Kaliek Lamont Suber (“appellant”) appeals his bench trial
conviction of possession of heroin under Code § 18.2-250 on the
ground that the evidence was insufficient to sustain the
conviction. Specifically, he contends the evidence does not
establish beyond a reasonable doubt that he had dominion and
control over the substance in question. We find no error and
affirm.
We state the relevant facts in the light most favorable to
the Commonwealth based on the evidence adduced at trial and the
inferences that may reasonably be drawn from it. See
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265
(1998). On December 14, 1996, police officers searched the
residence of Alberta Armstrong, appellant’s grandmother,
pursuant to her lawfully-obtained consent. Appellant was living
in the house at the time. When the police entered appellant’s
bedroom, appellant was seated on his bed ironing a shirt; two
other individuals were seated on another bed in the room. Under
appellant’s bed, the police found twenty-seven individual
packets of heroin hidden in a white sneaker. 1 The heroin had the
stamp "kick ass” on it.
After his arrest, appellant gave the police a statement in
which he stated that a friend had brought the bags of heroin
stamped “ass kicker” into his room and sometimes hid drugs
within the room. 2 Appellant was charged with possession of
heroin with the intent to distribute.
At trial, Sergeant Tony Torez, one of the officers that
spoke with appellant during the search, testified that appellant
1 Police also found six rocks of cocaine in a pocket of a suit inside appellant’s room, an empty bag of marijuana behind appellant’s bed, and appellant’s wallet on a television inside the room. 2 Appellant’s full statement is as follows:
In my room, we played video games and watched movies. One of the guys come in with dope stamped ass kicker. Sometimes he hides it around – sometimes he hides it around my room. The bags hold heroin.
- 2 - acknowledged people were storing drugs in his room and “had
knowledge that drugs were in [the] room.” At the conclusion of
the Commonwealth's evidence, the court reduced the charge to
possession of heroin.
Testifying in his defense, appellant acknowledged that the
heroin was found in his bedroom and stated that he shared the
room with Keith Spence and a cousin named “D.C.” Appellant
testified that he did not know the drugs were in his room on the
day in question, did not know who put the drugs in his room, and
did not know to whom the drugs belonged. However, appellant
admitted telling the police that Spence was bringing drugs into
the room and storing them there. Appellant also admitted that
he knew Spence was selling drugs in the neighborhood and that he
knew the drugs in the room were heroin because he had seen the
stamp “ass kicker.”
The judgment of the trial court is entitled to the same
weight as a jury verdict and will not be set aside unless it
appears from the evidence that it is plainly wrong or without
evidence to support it. See Barlow v. Commonwealth, 26 Va. App.
421, 429, 494 S.E.2d 901, 904 (1998); Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Appellant
concedes that the evidence in this case is sufficient to
establish beyond a reasonable doubt that he knew the nature of
- 3 - the drugs in question but contends that the evidence failed to
establish that he knew of the precise location of the drugs and
that he had dominion and control over them. We disagree.
To prove constructive possession, the Commonwealth must
establish “‘that the defendant was aware of both the presence
and character of the substance and that it was subject to his
dominion and control.’” Brown v. Commonwealth, 5 Va. App. 489,
491-92, 364 S.E.2d 773, 774 (1988) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).
"Such ‘possession may be proved by evidence of acts,
declarations or conduct of the accused from which an inference
may be fairly drawn that he knew of the existence of narcotics
at the place where they were found.’" Josephs v. Commonwealth,
10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc)
(quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d
812, 814 (1975)). It is not necessary that possession be
exclusive. See Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983); Blake v. Commonwealth, 15 Va. App. 706,
708, 427 S.E.2d 219, 220 (1993).
Although ownership or occupancy of the premises on which
drugs are found does not give rise to a presumption of
possession, “this factor may be considered with other evidence
[of the acts, statements, or conduct of the accused] in
determining whether [the accused] constructively possessed
drugs.” Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d
- 4 - 783, 784 (1983). See Tucker v. Commonwealth, 18 Va. App. 141,
144, 442 S.E.2d 419, 421 (1994). Similarly, “[w]hile mere
proximity to a controlled substance is insufficient to establish
possession, it is a factor when determining whether the accused
constructively possessed drugs.” Brown, 5 Va. App. at 492, 364
S.E.2d at 774 (finding that the defendant’s close proximity to
the drugs at issue, “combined with his knowledge of their
presence and the fact that he was in the house about an hour,”
was sufficient to prove they were subject to his dominion and
control). See also Minor v. Commonwealth, 6 Va. App. 366,
371-72, 369 S.E.2d 206, 209 (1988) (affirming a conviction of
possession of cocaine based on evidence showing the defendant’s
residence in a house where the drugs at issue were found, his
knowledge of the presence of the drugs in his brother’s bedroom,
and his close proximity to the drugs). 3
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence establishes that appellant had
constructive possession of the heroin in his room at the time of
the search. Upon arrest, appellant told police that he was in
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia
KALIEK LAMONT SUBER MEMORANDUM OPINION * BY v. Record No. 0842-98-1 JUDGE ROSEMARIE ANNUNZIATA MAY 11, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE E. Preston Grissom, Judge
David W. Bouchard (Bouchard & Smith, on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Kaliek Lamont Suber (“appellant”) appeals his bench trial
conviction of possession of heroin under Code § 18.2-250 on the
ground that the evidence was insufficient to sustain the
conviction. Specifically, he contends the evidence does not
establish beyond a reasonable doubt that he had dominion and
control over the substance in question. We find no error and
affirm.
We state the relevant facts in the light most favorable to
the Commonwealth based on the evidence adduced at trial and the
inferences that may reasonably be drawn from it. See
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265
(1998). On December 14, 1996, police officers searched the
residence of Alberta Armstrong, appellant’s grandmother,
pursuant to her lawfully-obtained consent. Appellant was living
in the house at the time. When the police entered appellant’s
bedroom, appellant was seated on his bed ironing a shirt; two
other individuals were seated on another bed in the room. Under
appellant’s bed, the police found twenty-seven individual
packets of heroin hidden in a white sneaker. 1 The heroin had the
stamp "kick ass” on it.
After his arrest, appellant gave the police a statement in
which he stated that a friend had brought the bags of heroin
stamped “ass kicker” into his room and sometimes hid drugs
within the room. 2 Appellant was charged with possession of
heroin with the intent to distribute.
At trial, Sergeant Tony Torez, one of the officers that
spoke with appellant during the search, testified that appellant
1 Police also found six rocks of cocaine in a pocket of a suit inside appellant’s room, an empty bag of marijuana behind appellant’s bed, and appellant’s wallet on a television inside the room. 2 Appellant’s full statement is as follows:
In my room, we played video games and watched movies. One of the guys come in with dope stamped ass kicker. Sometimes he hides it around – sometimes he hides it around my room. The bags hold heroin.
- 2 - acknowledged people were storing drugs in his room and “had
knowledge that drugs were in [the] room.” At the conclusion of
the Commonwealth's evidence, the court reduced the charge to
possession of heroin.
Testifying in his defense, appellant acknowledged that the
heroin was found in his bedroom and stated that he shared the
room with Keith Spence and a cousin named “D.C.” Appellant
testified that he did not know the drugs were in his room on the
day in question, did not know who put the drugs in his room, and
did not know to whom the drugs belonged. However, appellant
admitted telling the police that Spence was bringing drugs into
the room and storing them there. Appellant also admitted that
he knew Spence was selling drugs in the neighborhood and that he
knew the drugs in the room were heroin because he had seen the
stamp “ass kicker.”
The judgment of the trial court is entitled to the same
weight as a jury verdict and will not be set aside unless it
appears from the evidence that it is plainly wrong or without
evidence to support it. See Barlow v. Commonwealth, 26 Va. App.
421, 429, 494 S.E.2d 901, 904 (1998); Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Appellant
concedes that the evidence in this case is sufficient to
establish beyond a reasonable doubt that he knew the nature of
- 3 - the drugs in question but contends that the evidence failed to
establish that he knew of the precise location of the drugs and
that he had dominion and control over them. We disagree.
To prove constructive possession, the Commonwealth must
establish “‘that the defendant was aware of both the presence
and character of the substance and that it was subject to his
dominion and control.’” Brown v. Commonwealth, 5 Va. App. 489,
491-92, 364 S.E.2d 773, 774 (1988) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).
"Such ‘possession may be proved by evidence of acts,
declarations or conduct of the accused from which an inference
may be fairly drawn that he knew of the existence of narcotics
at the place where they were found.’" Josephs v. Commonwealth,
10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc)
(quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d
812, 814 (1975)). It is not necessary that possession be
exclusive. See Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863 (1983); Blake v. Commonwealth, 15 Va. App. 706,
708, 427 S.E.2d 219, 220 (1993).
Although ownership or occupancy of the premises on which
drugs are found does not give rise to a presumption of
possession, “this factor may be considered with other evidence
[of the acts, statements, or conduct of the accused] in
determining whether [the accused] constructively possessed
drugs.” Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d
- 4 - 783, 784 (1983). See Tucker v. Commonwealth, 18 Va. App. 141,
144, 442 S.E.2d 419, 421 (1994). Similarly, “[w]hile mere
proximity to a controlled substance is insufficient to establish
possession, it is a factor when determining whether the accused
constructively possessed drugs.” Brown, 5 Va. App. at 492, 364
S.E.2d at 774 (finding that the defendant’s close proximity to
the drugs at issue, “combined with his knowledge of their
presence and the fact that he was in the house about an hour,”
was sufficient to prove they were subject to his dominion and
control). See also Minor v. Commonwealth, 6 Va. App. 366,
371-72, 369 S.E.2d 206, 209 (1988) (affirming a conviction of
possession of cocaine based on evidence showing the defendant’s
residence in a house where the drugs at issue were found, his
knowledge of the presence of the drugs in his brother’s bedroom,
and his close proximity to the drugs). 3
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence establishes that appellant had
constructive possession of the heroin in his room at the time of
the search. Upon arrest, appellant told police that he was in
his room, playing video games and watching movies with friends,
when one friend, who “sometimes [hid drugs] around [his] room,”
3 In both Minor and Brown, when police entered a residence to search for drugs, the respective defendants were sitting on or around a bed in another person’s room, within arm’s reach of two pounds of cocaine. See Minor, 6 Va. App. at 367-68, 369 S.E.2d at 207; Brown, 5 Va. App. at 492, 364 S.E.2d at 774.
- 5 - brought in the “dope” stamped “ass kicker.” Although appellant
later denied knowledge of the drugs under his bed at trial, in
its role of judging credibility, the trier of fact is not
required to accept in toto an accused’s statement but may rely
on it in whole, in part, or reject it completely. See Rollston
v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830
(1991). Thus, the trial court was entitled to reject
appellant’s denial of knowledge on the witness stand and
interpret that portion of his testimony as “mere fabrication[]
to conceal guilt . . . .” Id. at 547, 399 S.E.2d at 830. Based
on appellant’s residence in the bedroom, appellant’s presence
inside his room at the time someone brought in the heroin at
issue, appellant’s knowledge of the nature and presence of the
heroin, the location of the heroin underneath appellant’s bed,
appellant’s close proximity to the heroin at the time of the
search, and the trial court’s permitted inferences based upon
its credibility determinations, we find that the court had
sufficient evidence to conclude appellant exercised dominion and
control.
For the foregoing reasons, we affirm appellant’s
conviction.
Affirmed.
- 6 -