Terry Lee Jackson v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: March 26, 2002
• Docket: 2052013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia

TERRY LEE JACKSON MEMORANDUM OPINION * BY v. Record No. 2052-01-3 JUDGE LARRY G. ELDER MARCH 26, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Leyburn Mosby, Jr., Judge

Paul Matthew Tancredi, Third Year Law Student (David E. Wright, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Terry Lee Jackson (appellant) appeals from his bench trial

conviction for possessing cocaine. On appeal, he contends the

evidence was insufficient to prove he constructively possessed

the cocaine found in a jacket inside a car occupied by him and

two others. We hold evidence that the jacket was appellant's

was sufficient to prove he constructively possessed the cocaine,

and we affirm his conviction.

When considering the sufficiency of the evidence on appeal

of a criminal conviction, we view the evidence in the light most

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. favorable to the Commonwealth, granting to the evidence all

reasonable inferences fairly deducible therefrom. Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Possession of drugs supporting a conviction may be

constructive rather than actual. Josephs v. Commonwealth, 10

Va. App. 87, 99, 390 S.E.2d 491, 497-98 (1990) (en banc).

Constructive possession may be proved 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 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). Neither close

proximity to illegal drugs nor occupancy of an automobile in

which they are found, standing alone, amounts to "possession" of

such drugs under Code § 18.2-250; however, both are factors that

may be considered in determining whether possession occurred in

a particular case. See Castaneda v. Commonwealth, 7 Va. App.

574, 583-84, 376 S.E.2d 82, 87 (1989) (en banc). Such

circumstantial evidence is sufficient to prove possession as

long as it excludes all reasonable hypotheses of innocence

flowing from the evidence. See, e.g., Hamilton v. Commonwealth,

16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

Here, the only reasonable hypothesis flowing from the

evidence, viewed in the light most favorable to the

Commonwealth, is that appellant constructively possessed the

- 2 - cocaine found in the pocket of the jacket. A reliable

confidential informant reported to Investigator Lloyd that "a

black male with his hair standing straight up on his head

wearing a black jacket was in possession of cocaine in a white

vehicle with [the] Virginia personalized tag of HOOTID . . . in

the area of Fort Avenue." Although the information Lloyd

received from the informant was hearsay, appellant did not

object to the admission of that information based on hearsay or

any other ground. In fact, his attorney specifically mentioned

in argument to the court that although "[he] would submit that

[evidence] is hearsay, . . . [he] did not make that objection."

Thus, the trial court was entitled to consider the tip, received

from an informant Investigator Lloyd testified had proven to be

reliable, in determining whether the circumstantial evidence was

sufficient to prove appellant constructively possessed the

cocaine. See, e.g., Stevens v. Mirakian, 177 Va. 123, 131, 12

S.E.2d 780, 783 (1941) (holding "hearsay testimony admitted

without objection may properly be considered and given its

natural probative effect" by the finder of fact), cited with

approval in Baughan v. Commonwealth, 206 Va. 28, 31, 141 S.E.2d

750, 753 (1965).

After receiving the informant's call, Investigator Lloyd

immediately pursued the tip. Less than twenty minutes later in

the area of Fort Avenue, Lloyd spotted the vehicle bearing the

license plate described by the informant, and he stopped it to

- 3 - investigate the tip further. Inside that vehicle, Lloyd

discovered three men, but only one of them, appellant, matched

the description given by the informant. When Lloyd effected the

stop, appellant was not wearing a jacket. However, once

appellant and the other occupants had exited the car,

Investigator Lloyd discovered in the front passenger seat of the

vehicle precisely where appellant had been sitting a black

jacket which contained cocaine. Lloyd had carefully observed

the occupants of the vehicle from the time he effected the stop

until he was able to examine the vehicle's contents, and he saw

no gestures or other movements tending to indicate that someone

other than appellant placed the jacket or the cocaine in the

place where Investigator Lloyd found them. In addition, the

driver and backseat passenger both disclaimed ownership of the

jacket. Thus, the only reasonable hypothesis flowing from the

Commonwealth, was that the jacket belonged to appellant; that

appellant was aware of the presence and character of the cocaine

in the jacket's pocket; and that the cocaine was subject to

appellant's dominion and control. Thus, the evidence supported

the trial court's finding that appellant constructively

possessed the cocaine.

For these reasons, we hold the evidence was sufficient to

support appellant's conviction, and we affirm.

Affirmed.

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