COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker Argued at Norfolk, Virginia
ROBERT GREG WILLIAMS, JR. MEMORANDUM OPINION * BY v. Record No. 1156-98-1 JUDGE ROBERT P. FRANK SEPTEMBER 21, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge
J. Carroll Melton, II, for appellant.
Ruth M. McKeaney, Assistant Attorney General (Mark L. Earley, Attorney General of Virginia, on brief), for appellee.
Following a bench trial on March 9, 1998, Robert Greg
Williams, Jr. (appellant) appeals his convictions of possession of
a firearm by a convicted felon, possession of a concealed weapon
by a convicted felon, possession of a firearm while in the
possession of heroin, possession of a firearm while in the
possession of cocaine, possession of an imitation controlled
substance with intent to distribute, and possession of cocaine
with intent to distribute within 1,000 feet of school property.
On appeal, appellant challenges the sufficiency of the evidence to
support the convictions. We find that the trial judge did not err
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. in denying appellant's motion to strike the evidence, and we
affirm the convictions.
I. BACKGROUND
On February 3, 1997, appellant was the right, front passenger
in a vehicle stopped for travelling in the wrong direction on a
one-way street by Officers Infantino, Thompson, and Lee and
Corporal Huffman of the Norfolk Police Department. The vehicle
was stopped within 1,000 feet of an elementary school. As Officer
Infantino and Corporal Huffman approached the vehicle, appellant's
eyes became wide. He acted nervous and began fidgeting, looked
around, and then reached down with his right arm towards the floor
of the vehicle or under the seat. The officers commanded
appellant to put his hands where they could see them. When
Officer Infantino reached the passenger-side door, appellant
handed the officer a red straw containing a white powdery residue.
He told Officer Infantino that there was no residue on the straw.
Appellant exited the car, and Officer Infantino and Corporal
Huffman performed a pat-down search. In appellant's front pants
pocket, the officers found a bag containing two, white, rock-like
substances. Appellant told the officers that they were his "lucky
rocks." The substances were later confirmed to be crack cocaine.
During a more thorough search of appellant by Officer
Thompson, appellant attempted to drop a tissue from his hands. A
wax paper envelope containing heroin was wrapped inside the
tissue.
- 2 - During a search of the vehicle, the officers found a loaded
nine millimeter semi-automatic pistol under the passenger seat
closer to the right, passenger-side door. They also found a
plastic baggie containing imitation cocaine sticking out of the
glove compartment, directly in front of appellant's seat. The
corner of the baggie was in plain view, and white powder was
visible inside the bag.
Corporal Huffman testified that the imitation cocaine was
inconsistent with personal use, and the combination of the heroin,
crack cocaine and imitation cocaine was "consistent with a user
that's selling to support his habit." 1
Appellant was tried in a bench trial on March 9, 1998, and
was convicted of escape without force, possession of heroin,
possession of a firearm while in the possession of heroin,
possession of imitation cocaine with intent to distribute,
possession of cocaine, possession of a firearm while in the
possession of cocaine, possession of cocaine with intent to
distribute within 1,000 feet of school property, possession of a
firearm by a convicted felon, possession of a concealed weapon by
a convicted felon, and failure to appear.
1 While expert testimony on an ultimate issue of fact is generally inadmissible, appellant does not challenge Corporal Huffman's statement on appeal, and, therefore, the issue is not before this Court. See Llamera v. Commonwealth, 243 Va. 262, 414 S.E.2d 597 (1992).
- 3 - II. ANALYSIS
"We review the evidence in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom. The judgment appealed from will be affirmed
unless it appears from the evidence that it is plainly wrong or
without evidence to support it." McGee v. Commonwealth, 4 Va.
App. 317, 322, 357 S.E.2d 738, 740 (1987). "'Circumstantial
evidence is as competent and is entitled to as much weight as
direct evidence provided it is sufficiently convincing to exclude
every reasonable hypothesis except that of guilt.'" Id. (quoting
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983)).
A. Possession of imitation cocaine with intent to distribute
Appellant was convicted of possession of an imitation
controlled substance (imitation crack cocaine) with the intent to
distribute. He challenges the conviction on the ground that the
evidence was insufficient to support the conviction.
"Possession of a controlled substance may be actual or
constructive." Id. (citing Archer v. Commonwealth, 225 Va. 416,
418, 303 S.E.2d 863, 863 (1983)). Possession does not have to be
exclusive; possession of the drugs may be shared by more than one
person. See Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d
799, 806 (1970). Appellant did not have actual possession of the
imitation controlled substance, so the evidence must show
constructive possession.
- 4 - 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 the 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)).
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) (citations omitted). Physical proximity to the
contraband is not, alone, sufficient to support a conviction
based on constructive possession, but is a circumstance to be
considered with other evidence. See Powers, 227 Va. at 476, 316
S.E.2d at 740. Possession of other drugs or paraphernalia "are
additional facts which [permit] the fact finder to infer" that
the accused had knowledge of the presence of the drugs. Wymer
v. Commonwealth, 12 Va. App. 294, 301, 403 S.E.2d 702, 707
(1991).
In Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863
(1994) (en banc), this Court held that the mere proximity of a
- 5 - passenger in a car to small rocks of crack cocaine in the
vehicle's console was insufficient to establish possession. We
held that the evidence did not establish the length of time the
passenger occupied the vehicle or that the passenger occupied the
vehicle when the police officer received the report that drugs
were being used in the vehicle. See id. at 574, 439 S.E.2d at
864. Further, there was no evidence that the passenger saw the
cocaine among the other items in the console or that he knew the
rocks were cocaine. See id. The police officer did not see the
passenger using cocaine nor did the driver or the passenger make
any statement indicating that the passenger had knowledge of the
drugs. See id.
This case is distinguishable from Jones. Appellant was
seated in the right, front, passenger seat of the vehicle. The
imitation controlled substance was located in the glove
compartment directly in front of appellant's seat and in his line
of sight. The corner of the bag containing the substance was
sticking out of the glove compartment in plain view, and a white
powdery substance was visible in the bag. As the officers
approached the vehicle, appellant acted nervous and fidgety, his
eye were wide, and he looked around. He was in possession of
other drugs, and he clearly had knowledge relating to drug use as
he stated that there was no residue on the red straw as he handed
it to the police officer. We find that this evidence was
sufficient to show that appellant was aware of the presence and
- 6 - character of the imitation controlled substance and that it was
subject to his dominion and control.
"Possession of a quantity greater than that ordinarily
possessed for one's personal use may be sufficient to establish an
intent to distribute it." Hunter v. Commonwealth, 213 Va. 569,
570, 193 S.E.2d 779, 780 (1973). The method in which the drugs
are packaged may indicate an intent to distribute it. See Monroe
v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).
At trial, Corporal Huffman testified that the imitation crack
cocaine was inconsistent with personal use. The imitation crack
cocaine was chopped into smaller blocks which Corporal Huffman
stated is consistent with a trend among drug dealers to sell drugs
hand-to-hand without packaging material. We find that this
evidence was sufficient to establish intent to distribute.
We, therefore, affirm the conviction of possession of an
imitation controlled substance with the intent to distribute.
B. Convictions involving possession of a firearm
Appellant challenges the sufficiency of the evidence as to
the convictions involving possession of a firearm: possession
of a firearm by a convicted felon, possession of a concealed
weapon by a convicted felon, possession of a firearm while in
the possession of heroin, and possession of a firearm while in
the possession of cocaine. Appellant does not challenge his
status as a convicted felon, and does not argue that he did not
possess the cocaine and the heroin. The evidence is clear that
- 7 - appellant did not have actual possession of the gun. Therefore,
the issues for review as to these convictions are whether the
evidence was sufficient to show that appellant constructively
possessed the gun and whether the gun was concealed.
"'A conviction for knowingly and intentionally possessing a
firearm after having been convicted of a felony . . . requires
proof beyond a reasonable doubt of either actual or constructive
possession of the firearm.'" Gregory v. Commonwealth, 28 Va.
App. 393, 397, 504 S.E.2d 886, 888 (1998) (quoting Hancock v.
Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 140 (1995)).
This Court has applied the same principles of law for
constructive possession of a controlled substance to
constructive possession of a firearm. See id. at 397-98, 504
S.E.2d at 888.
In this case, the evidence showed the gun was located under
the right, front, passenger seat of the car in which appellant
was the right, front passenger. The gun was closer to the
front, passenger-side door than to the middle of the passenger
compartment. As the police officers approached the vehicle,
appellant leaned forward towards the floor and reached with his
right arm under the seat or to the floor of the vehicle.
Appellant acted nervous, began fidgeting, and looked around.
The officers also found drugs on appellant's person and an
imitation controlled substance directly in front of where he was
sitting. Corporal Huffman testified that the drugs and the
- 8 - imitation controlled substance were consistent with a user who
sells drugs to support his habit. 2 From this evidence, the fact
finder could infer beyond a reasonable doubt that appellant was
aware of the presence and the character of the gun on the floor
of the vehicle and that it was subject to his dominion and
control.
Code § 18.2-308.2(A) defines a concealed weapon as one
"hidden from common observation." Code § 18.2-308.2(A). In
Main v. Commonwealth, 19 Va. App. 272, 450 S.E.2d 772 (1994), we
held that "'common observation' connotes general or ordinary
observation," and it is the province of the trier of fact to
determine "what is common observation and what is not." Main v.
Commonwealth, 19 Va. App. 272, 275, 450 S.E.2d 772, 773 (1994)
(citation omitted).
In this case, the gun was under the front, passenger seat
of the vehicle. The trier of fact determined that the gun was
hidden from common observation, and we will not disturb that
determination on appeal.
We find that the evidence was sufficient to support the
trier of fact's finding that appellant constructively possessed
the weapon and that the weapon was hidden from common
observation. Therefore, we affirm the convictions involving
2 This Court has recognized there is a relationship between drug distribution and the presence of weapons. See Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994).
- 9 - possession of the gun: possession of a firearm by a convicted
felon, possession of a concealed weapon by a convicted felon,
possession of a firearm while in the possession of heroin, and
possession of a firearm while in the possession of cocaine.
C. Possession of cocaine with intent to distribute within 1,000 feet of a school
Appellant contends that the evidence was not sufficient to
support his conviction for possession of cocaine with intent to
distribute within 1,000 feet of a school. Appellant does not
contest that he possessed cocaine. The issues for determination
as to this conviction are whether appellant had intent to
distribute cocaine and whether appellant was within 1,000 feet
of school property.
Appellant contends that he did not possess an amount of
cocaine sufficient to establish intent to distribute. We
disagree with appellant and find that the evidence was
sufficient to show that he possessed the requisite intent to
distribute cocaine.
In Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748,
749 (1978), the Supreme Court of Virginia held that the quantity
of drugs possessed by a defendant is "not necessarily indicative
of a lack of intent to distribute." The defendant in Colbert
was discovered in the passenger seat of a van parked on the
grounds of an elementary school. See id. at 2, 244 S.E.2d at
748. Officers approached the van because trespassing on school
- 10 - grounds after dark was prohibited. See id. One of the officers
saw a bag of what appeared to be marijuana over the sun visor,
and the other officer saw the defendant remove a styrofoam
bucket from between his legs and put it behind the seat. See
id. The defendant was arrested, and a search of the van
revealed a bag of marijuana over the sun visor, five "nickel
bags" of marijuana in the styrofoam bucket and a large plastic
bag on the defendant's seat containing marijuana residue. See
id. at 2-4, 244 S.E.2d at 748-49. The defendant had over two
hundred dollars in small denominations on his person. See id.
at 3, 244 S.E.2d at 749. The Court held that the evidence was
sufficient to support the conviction for possession with intent
to distribute because "the jury might well have inferred that
the quantity seized was what remained from a larger supply held
for distribution." Id. at 4, 244 S.E.2d at 749. The Court
considered the packaging of the marijuana into "nickel bags" as
a factor that could lead the jury to infer that the marijuana
had been transferred from the large plastic bag into smaller
bags for distribution. See id. The Court also considered the
money in the defendant's pocket as a factor that the jury may
have used to reach the conclusion that the defendant sold the
marijuana. See id.
We believe that this case is similar to Colbert. Appellant
possessed a small quantity of heroin, a small quantity of crack
cocaine, and an unknown quantity of imitation crack cocaine.
- 11 - Corporal Huffman testified that the drugs and the imitation
crack cocaine possessed by appellant were inconsistent with
personal use, and, instead, were indicative of a user who sells
drugs to support his habit. Appellant also possessed a firearm.
We believe that despite the small quantity of cocaine possessed
by appellant, other circumstances, i.e., the possession of
heroin, the possession of imitation crack cocaine and the
possession of a firearm, coupled with Corporal Huffman's
testimony, could permit the fact finder to reasonably infer that
appellant was distributing cocaine.
Code § 18.2-255.2(A)(ii) states that it is unlawful to
possess a controlled substance with intent to distribute the
substance while "upon public property or any property open to
public use within 1,000 feet of . . . school property." Code
§ 18.2-255.2(A)(ii). The statute further states that
"[v]iolation of this section shall constitute a separate and
distinct felony." Code § 18.2-255.2(B). The statute also sets
forth a separate penalty that applies in addition to any
penalties proscribed for violations of other provisions of law
arising from the same act. See Code § 18.2-255.2(B) and (C).
The evidence is undisputed that the vehicle in which
appellant was a passenger was travelling in the wrong direction
on a one-way street and was stopped by the officers within 1,000
feet of an elementary school. Appellant, however, argues that
since he was in a moving vehicle and the incident occurred after
- 12 - eleven o'clock at night, he did not violate the intent of the
statute.
Our decision on this issue is controlled by the Supreme
Court of Virginia's decision in Commonwealth v. Burns, 240 Va.
171, 395 S.E.2d 456 (1990). In Burns, the defendant was
arrested at 8:45 p.m. on a Friday evening for distributing
cocaine on public property within 1,000 feet of a school. See
Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457
(1990). School was not in session when the transaction
occurred, school-related activities were not taking place, and
juveniles did not view or take part in the sale. See id. at
174-75, 395 S.E.2d at 457-58. The trial court granted the
defendant's motion to dismiss on the ground that the statute was
unconstitutional as applied to Burns. See id. at 175, 395
S.E.2d at 458. The trial court reasoned that since the statute
did not provide a defense for transactions which occur when
school is not in session and children are not present, the
statute created "an irrebuttable presumption 'violative of due
process guarantees.'" Id. The Supreme Court held, however,
that the statute does not create presumptions. See id. at 176,
395 S.E.2d 459. Instead, the statute "creates a 'separate and
distinct felony,'" which "reflects the General Assembly's
concern about the aggravated nature of drug transactions
involving children." Id. The Court stated that the General
Assembly incorporated the aggravating factor, drug transactions
- 13 - occurring within 1,000 feet of a school, into the offense. See
id. Thus, the Court reasoned, the legislative finding that drug
transactions are harmful to children becomes a matter of
substance rather than a presumption. See id. In its holding
the Court stated
In our opinion, also implicit in the General Assembly's enactment of Code § 18.2-255.2 is the legislative finding that the threat of harm to children is present whether or not school is in session, school-related activities are being held, or children are present when drug transactions take place within 1,000 feet of a school. By its finding, the General Assembly has settled once and for all that such drug transactions do cause harm to children, whether or not children are present when the transactions take place. . . . Nor can there be any question that this latter conclusion is rationally related to the Commonwealth's interest in protecting children from such threatened harm.
Id. at 177, 395 S.E.2d at 459 (emphasis in original).
Therefore, based on the holding in Burns, we hold that
appellant's argument that he did not violate the intent of the
statute is without merit, and we find that the evidence was
sufficient to support a conviction under Code § 18.2-255.2.
We, therefore, hold that the evidence was sufficient to
support appellant's conviction for possession of cocaine with
intent to distribute within 1,000 feet of school property.
III. CONCLUSION
For the foregoing reasons, we hold that the trial court did
not err in denying appellant's motion to strike the evidence and
- 14 - that the evidence was sufficient to support appellant's
convictions for possession of a firearm by a convicted felon,
possession of a concealed weapon by a convicted felon,
possession of a firearm while in the possession of cocaine,
possession of an imitation controlled substance with intent to
distribute, and possession of cocaine with intent to distribute
within 1,000 feet of school property. We, therefore, affirm the
convictions.
Affirmed.
- 15 -