Matthew Kris Smith v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 19, 1996
• Docket: 1203952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Senior Judges Cole and Duff Argued at Richmond, Virginia

MATTHEW KRIS SMITH

v. Record No. 1203-95-2 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON COMMONWEALTH OF VIRGINIA MARCH 19, 1996

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender; Office of the Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Matthew Kris Smith appeals his conviction of possession of

cocaine with intent to distribute. He argues that the evidence

was insufficient to support his conviction. We affirm the

conviction.

On November 30, 1994 two police officers were on assignment

at the Greyhound bus station in Richmond. They were part of an

"interdiction team" seeking to prevent illegal narcotics from

entering Richmond from source cities such as New York and

Philadelphia. The officers saw Smith get off a bus from New York

and enter the bus terminal. Smith was carrying a navy blue piece

of luggage.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Once inside the terminal, Smith put down the blue bag just

long enough to put on his overcoat. He carried the bag as he

moved around the terminal, attempting to exit through two of the

gates and speaking on two occasions to the clerk behind the

ticket counter. He then sat down about ten feet in front of the

ticket counter and placed the blue bag between his feet.

One of the officers approached Smith, identified herself as

a police officer, and asked Smith to accompany her to the

customer service office. Smith complied, but left the bag

behind. The second officer followed Smith and his partner into

the office, keeping watch on the bag as he walked. The officer

lost sight of the bag only for a "split second" as he walked past

the wall to enter the inner office. At the customer service

office, the first officer explained to Smith that she was part of

the drug interdiction team and that he was not under arrest. She

asked for permission to search his person and his bag. He gave

permission for the personal search, but stated that his bag was

already on board the bus. The second officer conducted the search while the first went

to retrieve the blue bag. As he searched Smith, the second

officer kept watch on the bag through the glass window in the

office. No one else approached the bag or tampered with it in

any way. When the first officer retrieved the bag, it was in the

same position as it was when Smith left it.

Smith did not have narcotics on his person. However, when

the officers searched the bag, they found a bag containing over

- 2 - 211 grams of cocaine with a street value of $7,200.

Where sufficiency of the evidence is challenged after

conviction, we examine the evidence in the light most favorable

to the Commonwealth, granting to the Commonwealth all reasonable

inferences deducible therefrom. The jury's verdict will not be

disturbed on appeal unless it is plainly wrong or without

evidence to support it. Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975). To convict a defendant of illegal possession of drugs, the

Commonwealth must show that the defendant was aware of the

presence and character of the drug, and that he was intentionally

and consciously in possession of it. Woodson v. Commonwealth, 14

Va. App. 787, 794, 421 S.E.2d 1, 5, aff'd, 245 Va. 104, 429

S.E.2d 1, 5 (1992). Possession may be either constructive or

actual. For actual possession, physical possession giving the

defendant "immediate and exclusive control" is sufficient.

Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06

(1970). For constructive possession, the Commonwealth must show

that the drugs were in the defendant's "dominion or control". Id.

Smith argues that the Commonwealth failed to prove that

Smith was aware of the presence of cocaine inside the blue bag.

We disagree. Smith got off the bus and entered the terminal with

the blue bag in his hand. The bag remained exclusively in his

possession and control until he abandoned it in order to

accompany the officer to the station office. The defense

- 3 - presented no credible evidence that the bag searched was not the

bag Smith carried into the terminal, or that anyone tampered with

the bag inside the terminal. Thus, the Commonwealth proved that

Smith actually possessed the bag and the drugs inside it. Proof

of possession of a controlled substance gives rise to the

inference that the defendant knows of its character. Josephs v.

Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 (1990)

(en banc). Smith's knowledge that he had illegal drugs in his

possession is confirmed by his conduct after he was approached by

the police. He abandoned the bag and denied any connection with

it, both when he was questioned by the police and at trial. His

denial, coupled with the officers' evidence that he possessed the

bag, demonstrate his knowledge of the cocaine's character.

Smith also argues that the Commonwealth failed to prove that

Smith had dominion and control over the blue bag. His argument

is based primarily on the lack of "direct evidence" that the bag

belonged to Smith, combined with the "break in the chain of

circumstances" when Smith left the bag to accompany the officer.

However, the Commonwealth proved by direct evidence that Smith

left the bus with the blue bag that contained the cocaine and

exercised exclusive physical control of it until he left it at

his chair to accompany the first police officer. While the

second officer acknowledged that he lost sight of the bag for a

"split second" when he entered the customer service office,

viewed in the light most favorable to the Commonwealth, this - 4 - evidence does not show a "break in the chain of circumstances."

The Commonwealth proved, by direct evidence, actual possession of

the bag and the cocaine. For these reasons, the conviction is

affirmed.

- 5 -