COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements Argued at Richmond, Virginia
ROSALIND M. MABRY MEMORANDUM OPINION * BY v. Record No. 1069-01-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 22, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Ali J. Amirshahi for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Rosalind M. Mabry was convicted in a bench trial of
possession of cocaine. 1 On appeal, he contends the evidence was
insufficient to sustain the conviction. We disagree and affirm
the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 We note that Mabry was originally charged with possession of cocaine with intent to distribute, in violation of Code § 18.2-248. At trial, the court struck the evidence "as to the intent" and entered an order finding Mabry guilty of possession of cocaine. However, the sentencing order erroneously recited the offense as a violation of Code § 18.2-248 rather than Code § 18.2-250. proceedings as necessary to the parties' understanding of the
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We will not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985).
Mabry claims the Commonwealth failed to prove beyond a
reasonable doubt that he constructively possessed the cocaine
found in a suitcase inside the home by the police. Specifically,
he argues the evidence presented at trial was insufficient to show
he was aware of the presence and character of the cocaine or that
he exercised dominion and control over it. Furthermore, he adds,
no drugs were found on him, and he made no statements
acknowledging the presence of the cocaine. Thus, he concludes,
the Commonwealth's evidence, which was merely circumstantial, did
not exclude the reasonable hypothesis of innocence that the man
the officer saw outside in the yard had discarded the cocaine in
the suitcase in the bedroom without Mabry's knowledge.
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character of
- 2 - the drug and that the accused consciously possessed it." Walton
v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).
"[P]roof of actual possession is not required; proof of
constructive possession will suffice." Id. at 426, 497 S.E.2d
at 872. Constructive possession may be established by "evidence
of acts, statements, or conduct of the accused or other facts or
circumstances which tend to show that the [accused] was aware of
both the presence and the character of the substance and that it
was subject to his dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Occupancy or ownership of the premises where the illegal
drug is found is a factor that may be considered in deciding
whether the accused was in possession of the illegal drug. See
Walton, 255 Va. at 426, 497 S.E.2d at 871. Possession need not
be exclusive; it may be shared. See Gillis v. Commonwealth, 215
Va. 298, 301-02, 208 S.E.2d 768, 771 (1974) (noting that
occupancy of premises as a cotenant is a factor to be considered
with other evidence in determining whether accused had
constructive possession of illegal drugs). Thus, in resolving
the issue of constructive possession, "the Court must consider
'the totality of the circumstances disclosed by the evidence.'"
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832
(1997) (quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d
351, 353 (1979)).
- 3 - "Proof of constructive possession necessarily rests on
circumstantial evidence; thus, '"all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Burchette v. Commonwealth, 15 Va. App. 432, 434,
425 S.E.2d 81, 83 (1993) (quoting Garland v. Commonwealth, 225
Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982))).
"However, the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
"Whether an alternative hypothesis of innocence is reasonable is
a question of fact and, therefore, is binding on appeal unless
plainly wrong." Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832
(citation omitted). "While no single piece of evidence may be
sufficient, the 'combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion.'" Stamper v.
Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)
(quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562,
564 (1919)).
Here, the evidence established that Officer John Barkley of
the Richmond Police Department responded to a dispute call from
Ms. Wallace at a residence on Swanson Road in Southside
- 4 - Richmond. Mabry and Ms. Wallace met Officer Barkley at the
doorway of the residence. Mabry told Barkley that "he just
wanted to leave and he just want[ed] to go in and get his
suitcase and his things and just leave and didn't want to have
any more problems." Because the call had indicated that
firearms were involved, Barkley would not let either Wallace or
Mabry go back in the house. While the officer was there, he saw
a "gentleman . . . outside of the residence in the yard who
left."
Barkley, after obtaining permission to search the
residence, entered the house and conducted a search for
firearms. In the bedroom, he saw an open suitcase with men's
clothing in it on the floor at the foot of the bed. In the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements Argued at Richmond, Virginia
ROSALIND M. MABRY MEMORANDUM OPINION * BY v. Record No. 1069-01-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 22, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Ali J. Amirshahi for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Rosalind M. Mabry was convicted in a bench trial of
possession of cocaine. 1 On appeal, he contends the evidence was
insufficient to sustain the conviction. We disagree and affirm
the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 We note that Mabry was originally charged with possession of cocaine with intent to distribute, in violation of Code § 18.2-248. At trial, the court struck the evidence "as to the intent" and entered an order finding Mabry guilty of possession of cocaine. However, the sentencing order erroneously recited the offense as a violation of Code § 18.2-248 rather than Code § 18.2-250. proceedings as necessary to the parties' understanding of the
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We will not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985).
Mabry claims the Commonwealth failed to prove beyond a
reasonable doubt that he constructively possessed the cocaine
found in a suitcase inside the home by the police. Specifically,
he argues the evidence presented at trial was insufficient to show
he was aware of the presence and character of the cocaine or that
he exercised dominion and control over it. Furthermore, he adds,
no drugs were found on him, and he made no statements
acknowledging the presence of the cocaine. Thus, he concludes,
the Commonwealth's evidence, which was merely circumstantial, did
not exclude the reasonable hypothesis of innocence that the man
the officer saw outside in the yard had discarded the cocaine in
the suitcase in the bedroom without Mabry's knowledge.
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character of
- 2 - the drug and that the accused consciously possessed it." Walton
v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).
"[P]roof of actual possession is not required; proof of
constructive possession will suffice." Id. at 426, 497 S.E.2d
at 872. Constructive possession may be established by "evidence
of acts, statements, or conduct of the accused or other facts or
circumstances which tend to show that the [accused] was aware of
both the presence and the character of the substance and that it
was subject to his dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Occupancy or ownership of the premises where the illegal
drug is found is a factor that may be considered in deciding
whether the accused was in possession of the illegal drug. See
Walton, 255 Va. at 426, 497 S.E.2d at 871. Possession need not
be exclusive; it may be shared. See Gillis v. Commonwealth, 215
Va. 298, 301-02, 208 S.E.2d 768, 771 (1974) (noting that
occupancy of premises as a cotenant is a factor to be considered
with other evidence in determining whether accused had
constructive possession of illegal drugs). Thus, in resolving
the issue of constructive possession, "the Court must consider
'the totality of the circumstances disclosed by the evidence.'"
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832
(1997) (quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d
351, 353 (1979)).
- 3 - "Proof of constructive possession necessarily rests on
circumstantial evidence; thus, '"all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Burchette v. Commonwealth, 15 Va. App. 432, 434,
425 S.E.2d 81, 83 (1993) (quoting Garland v. Commonwealth, 225
Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982))).
"However, the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
"Whether an alternative hypothesis of innocence is reasonable is
a question of fact and, therefore, is binding on appeal unless
plainly wrong." Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832
(citation omitted). "While no single piece of evidence may be
sufficient, the 'combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion.'" Stamper v.
Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)
(quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562,
564 (1919)).
Here, the evidence established that Officer John Barkley of
the Richmond Police Department responded to a dispute call from
Ms. Wallace at a residence on Swanson Road in Southside
- 4 - Richmond. Mabry and Ms. Wallace met Officer Barkley at the
doorway of the residence. Mabry told Barkley that "he just
wanted to leave and he just want[ed] to go in and get his
suitcase and his things and just leave and didn't want to have
any more problems." Because the call had indicated that
firearms were involved, Barkley would not let either Wallace or
Mabry go back in the house. While the officer was there, he saw
a "gentleman . . . outside of the residence in the yard who
left."
Barkley, after obtaining permission to search the
residence, entered the house and conducted a search for
firearms. In the bedroom, he saw an open suitcase with men's
clothing in it on the floor at the foot of the bed. In the
suitcase, Barkley found a pair of men's white socks that had a
substance later determined to be cocaine inside. In that same
room, Barkley also found a wallet containing Mabry's
identification on a nightstand next to the bed. The officer
further observed men's and women's clothes scattered about the
room, as well as in a dresser in the room and in the room's
closet. Barkley also found three digital scales in the room,
one of which was in plain view on top of a dresser. He also
recovered sandwich baggies from atop another dresser and two
handguns from between the mattress and box spring of the bed.
In the course of his search, Officer Barkley observed no other
men in the house or any other suitcases.
- 5 - Viewed in the light most favorable to the Commonwealth,
such evidence, considered in its totality, clearly supports the
finding that Mabry knew of the presence and character of the
cocaine and that he intentionally and consciously had
constructive possession of it. Not only was Mabry's wallet
found along with drug paraphernalia in the bedroom where the
cocaine was hidden in a suitcase containing men's clothes, no
other suitcases were found in the house. Mabry specifically
told Barkley, upon the officer's arrival at the house, that he
wanted to retrieve his suitcase from inside the house and leave.
Likewise, the police officer observed no other men in the house.
The only reasonable conclusion is that the one suitcase found in
the house belonged to Mabry.
Officer Barkley did see a man in the yard outside the house
who left, but nothing even remotely connected that man to the
suitcase or cocaine found inside the house. "The Commonwealth
is not required to prove that there is no possibility that
someone else may have planted, discarded, abandoned or placed
the drugs . . . [where they are found by the police]." Brown v.
Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en
banc).
Hence, we hold that the evidence was sufficient to support
Mabry's conviction for possession of cocaine and that the
- 6 - conviction is not plainly wrong. Accordingly, we affirm the
conviction.
Affirmed.
- 7 -