Robert Dykes, a/k/a v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 24, 2002
• Docket: 2717013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia

ROBERT DYKES, A/K/A LEROY JOHNSON MEMORANDUM OPINION * BY v. Record No. 2717-01-3 JUDGE ROSEMARIE ANNUNZIATA SEPTEMBER 24, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Charles M. Stone, Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on briefs), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

The trial court convicted Robert Dykes of possession of more

than nine pounds of marijuana with the intent to distribute and

sentenced him to serve thirty years in the penitentiary, with

twenty years suspended. On appeal, Dykes contends that the

evidence was insufficient to support a finding of constructive

possession or possession with the intent to distribute. For the

reasons that follow, we affirm.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background

On appeal, we view the evidence in the light most favorable

to the Commonwealth, the party prevailing below, together with all

reasonable inferences that may be drawn. Ortega v. Commonwealth,

31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000) (citing Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(additional citation omitted)). On August 31, 2000, Thomas

Duggan, a United States Postal Inspector and director of the

Prohibitive Mailing team, seized a package in Los Angeles,

California because it exhibited several suspicious

characteristics. The package was addressed to "Lisa Beckford" at

"1402 Spruce Street Ext., Martinsville, Virginia 24112." After

obtaining a search warrant, the team opened the package and

discovered 9.9 pounds of marijuana. They repackaged the drugs and

forwarded the package to Postal Inspector Brumbaugh in Roanoke,

Virginia.

Brumbaugh learned that no one named "Lisa Beckford"

received mail at the address on the package. Based on his

professional experience, Brumbaugh knew that drug traffickers

often use incorrect address information on packages. Brumbaugh

therefore wrote a letter to "Lisa Beckford" explaining that an

incorrect zip code had prevented delivery. He encouraged her to

contact his office if she still wanted the package delivered.

The next day, he received a telephone call from a man

identifying himself as "Harris Beckford, Lisa Beckford's husband."

- 2 - "Mr. Beckford" stated they had received the letter, and he

requested re-delivery at the same address. Brumbaugh planned to

deliver the package the following day. When Brumbaugh arrived at

the address, Marco Taylor answered the door, claiming he was "Lisa

Beckford's boyfriend," and asked to sign for the package.

Brumbaugh asked whether the package was Lisa Beckford's and

whether she was expecting it, and Taylor responded affirmatively

to both questions. He then took the package and signed for it as

"Jimmy Long." At trial, Taylor testified that he used the name

"Jimmy Long" because Dykes told him the package contained drugs.

He further testified that Dykes paid him to sign for the package.

Shortly thereafter, Martinsville police officers saw Taylor

leave the residence. The officers executed their search warrant

and found Robert Dykes, April Mills, and her small child inside

the residence. The police found the letter Brumbaugh had sent to

"Lisa Beckford," regarding the incorrect zip code, in the front

pocket of Dykes' pants. Officers found the delivered marijuana in

the closet of a bedroom, along with an electronic scale located

about three feet from the package. Additionally, the officers

found personal papers and items with Dykes' name and the

residence's address on them, including an optometrist's

prescription and warrrants for Dykes' arrest.

Dykes' former girlfriend, Nicole Gravely, owned the residence

and had allowed Dykes to stay there for at least two weeks prior

to his arrest. Gravely stayed with her mother on the weekends,

- 3 - and she was not present at the residence during the time of the

delivery.

At trial, Taylor testified for the Commonwealth as part of a

plea bargain which reduced his charges to misdemeanors. In his

testimony, Taylor approximated the value of the marijuana in the

package at $3,600, or $350 to $400 per pound.

The trial court dismissed the conspiracy charge against Dykes

since there was no evidence corroborating Taylor's testimony. The

judge stated "I don't feel like you've convicted the Defendant of

conspiracy based solely on Mr. Taylor's testimony considering the

incentive that he has . . . I generally require some corroboration

unless the witness is most convincing." The trial court convicted

Dykes of possession with intent to distribute.

ANALYSIS

When sufficiency of the evidence is challenged on appeal,

we consider the evidence "in the light most favorable to the

Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom." Hagy v.

Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001)

(citation omitted). Furthermore, we "permit the verdict to

stand unless plainly wrong." George v. Commonwealth, 242 Va.

264, 278, 411 S.E.2d 12, 20 (1991), quoted in Tibbs v.

Commonwealth, 31 Va. App. 687, 707, 525 S.E.2d 579, 588 (2000).

The judgment of the trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be

- 4 - disturbed on appeal unless plainly wrong or without evidence to

support it. Brown v. Commonwealth, 5 Va. App. 489, 491, 364

S.E.2d 773, 774 (1988) (citations omitted).

CONSTRUCTIVE POSSESSION

Dykes argues there was insufficient evidence to convict him

of constructive possession. He argues that the trial court

rejected Taylor's testimony, due to his incentive to lie, and

without Taylor's testimony, the evidence fails to prove he

knowingly exerted dominion and control over the marijuana beyond a

reasonable doubt. We disagree.

The Commonwealth may establish constructive possession

through "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 the character of

the substance and that it was subject to his dominion and

control." Logan v. Commonwealth, 19 Va. App. 437, 444, 452

S.E.2d 364, 368-69 (1994) (en banc) (citation omitted).

Ownership or occupancy of a vehicle or of premises where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle or on the premises in order to prove that the owner or occupant constructively possessed the contraband.

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992) (citation omitted). "Furthermore, proof that a person

- 5 - is in close proximity to contraband is a relevant fact [and]

. . . may tend to show that, as an owner or occupant of property

or of a vehicle, the person necessarily knows of the presence,

nature, and character of a substance that is found there." Id.

In the case at bar, the Commonwealth introduced sufficient

evidence of Dykes' awareness of the nature and presence of the

marijuana and that it was subject to his dominion and control.

First, the police found the package, together with Dykes'

personal items, including warrants for his arrest and other mail

addressed to him at the residence, in the only furnished bedroom

in the house. Gravely, Dykes' former girlfriend, permitted

Dykes to reside in the house, and she often was away visiting

her mother. The trial court could, therefore, reasonably infer

that he was staying in the room and had dominion over its

contents. 1 See id.; see also Hargraves v. Commonwealth, 37

Va. App. 299, 314, 557 S.E.2d 737, 744 (2002) (holding that a

drawer used exclusively by defendant for his personal belongings

demonstrates his dominion and control over its contents).

Second, the police found the letter Brumbaugh had sent to

"Lisa Beckford" in Dykes' pants pocket. Moreover, Dykes

admitted he was in the house on the same day Brumbaugh received

a telephone call from "Harris Beckford, Lisa Beckford's

1 There was no evidence that anyone else occupied Dykes' room.

- 6 - husband." Therefore, the trial court reasonably inferred that

Dykes made the call requesting re-delivery of the package.

Finally, Taylor testified that Dykes paid him to sign for

the package because it contained drugs. Although the trial

court noted Taylor had an incentive to lie and found his

testimony was insufficient to prove Dykes' guilt on the

conspiracy charge without further corroboration, see Feigley v.

Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993),

the court credited his testimony with respect to the possession

charge and found that his testimony, together with the other

evidence admitted, proved Dykes' guilt beyond a reasonable

doubt. See Hopkins v. Commonwealth, 230 Va. 280, 293, 337

S.E.2d 264, 272 (1985) (stating that the trier of fact can

reject a witness' testimony in part and accept it in part). We

find no error in the court's determination that Dykes possessed

the drugs in question beyond a reasonable doubt.

INTENT TO DISTRIBUTE

Dykes also argues there was insufficient evidence to find an

intent to distribute, claiming that the Commonwealth submitted no

direct evidence to prove that the marijuana found was packaged for

sale or that the amount was more than one person would use

personally. He further contends that the Commonwealth failed to

show how the scales would function as part of the marijuana trade.

We reject both arguments.

- 7 - "Because direct proof of intent [to distribute drugs] is

often impossible, it must be shown by circumstantial evidence."

Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122,

130 (1998) (en banc) (citations omitted). When proof of intent

rests upon circumstantial evidence, the quantity of drugs which

the defendant possesses is a circumstance courts should

consider. Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d

382, 383 (1984). Quantity alone is sufficient to establish

intent to distribute if the amount of drugs found is greater

than that normally possessed for personal use. See id. In

addition, absence of any paraphernalia suggestive of personal

use is recognized as a factor indicating the intent to

distribute. Welshman, 28 Va. App. at 37, 502 S.E.2d at 130; see

also Dukes, 227 Va. at 122, 313 S.E.2d at 383. Conversely, the

presence of paraphernalia used in the packaging process may be

considered in support of a finding of an intent to distribute.

See Early v. Commonwealth, 10 Va. App. 219, 222, 391 S.E.2d 340,

341-42 (1990).

In the instant case, the Commonwealth's evidence was

sufficient to prove an intent to distribute. The package

delivered to the residence contained 9.9 pounds of marijuana,

with a resale value of approximately $400 per pound and an

overall street value of $3,600. We find the quantity of drugs

at issue here inconsistent with personal use and consistent with

- 8 - an intent to distribute. See generally Welshman, 28 Va. App. at

37, 502 S.E.2d at 130; Dukes, 227 Va. at 122, 313 S.E.2d at 383.

Moreover, the officers found an electronic scale in the

closet, three feet from the package of marijuana. The presence

of scales, of any variety, found in close proximity to drugs, is

evidence of the intent to distribute. See Davis v.

Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 925 (1991)

(recognizing that a set of handscales located fifteen feet from

the drugs was packaging paraphernalia that constituted

circumstantial evidence of intent to distribute).

For the reasons stated in this opinion, we affirm Dykes'

conviction.

Affirmed.

- 9 -