Theresa Ann Jones v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 27, 2001
• Docket: 0816002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Humphreys Argued at Richmond, Virginia

THERESA ANN JONES MEMORANDUM OPINION * BY v. Record No. 0816-00-2 JUDGE ROSEMARIE ANNUNZIATA MARCH 27, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY Catherine C. Hammond, Judge

John H. Goots (Chalkley & Witmeyer, L.L.P., on brief), for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The appellant, Theresa Ann Jones, appeals her conviction

for possession of cocaine, in violation of Code § 18.2-250.

Jones contends the evidence was insufficient, as a matter of

law, to prove that Jones: (1) exercised dominion and control

over the cocaine; and (2) had knowledge of the presence and

character of the cocaine. For the following reasons, we affirm.

BACKGROUND

On September 10, 1999, Investigator Charles Hanna with the

Henrico County Police Department was executing a search warrant

at a residence. While the police were searching the apartment,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Jones knocked on the door. When she came in, Hanna asked her

how she had arrived at the apartment. Jones replied that

someone had given her a ride there in a black Lincoln. Hanna

went outside to investigate. He saw a black Lincoln parked

outside. However, "the car was cold," and "nobody was in the

vehicle." Hanna noticed two people sitting in a brown pickup

truck and went over to speak with them. The occupants of the

truck stated they had given a person a ride to the apartment.

After receiving consent from the driver of the vehicle, Hanna

searched the truck and found a brown purse on the seat between

the two occupants. Upon searching the purse, Hanna found a

crack pipe underneath "various makeup" and "fake hair." The two

occupants denied owning the purse and the crack pipe.

Hanna returned to the apartment with the purse and its

contents. Jones acknowledged that the purse and "everything in

the purse" belonged to her. When asked specifically about the

crack pipe, Jones denied owning it and denied knowing how it got

into her purse. Jones told Hanna that "she had just got out of

jail and she hadn't used crack since she was locked up." Hanna

did not find any drugs on Jones when he searched her subsequent

to placing her under arrest.

ANALYSIS

On appeal, we view the evidence and all reasonable

inferences fairly deducible therefrom, in the light most

favorable to the Commonwealth. Higginbotham v. Commonwealth,

- 2 - 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We will affirm

the conviction "unless it appears from the evidence that the

judgment is plainly wrong or without evidence to support it."

Id.

Code § 18.2-250(A) provides: "It is unlawful for any

person knowingly or intentionally to possess a controlled

substance . . . ." "'Possession of a controlled substance may

be actual or constructive.'" Pemberton v. Commonwealth, 17 Va.

App. 651, 654, 440 S.E.2d 420, 422 (1994) (citation omitted).

"'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 character of the substance and that it was subject to his

dominion and control.'" Id. (citations omitted).

In this case, Jones contends the Commonwealth failed to

prove, as a matter of law, that Jones was aware of both the

presence and character of the cocaine found and that the cocaine

was subject to her dominion and control. 1 We disagree.

1 Contrary to the Commonwealth's contention, we find Jones properly preserved both issues for appeal. In his motion to strike, Jones's counsel stated, "The pocketbook was easily accessible to two other individuals in the car." "[W]e don't know how that crack pipe got there, but there's surely not an inference that it's hers, and we'd move to strike on that basis." The objection was sufficient to raise both issues that are the subject of this appeal.

- 3 - "Where 'a conviction is based on circumstantial evidence,

all necessary circumstances proved must be consistent with guilt

and inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'" Pemberton, 17 Va. App. at 655, 440

S.E.2d at 422 (citations omitted); see also Scruggs v.

Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 664 (1994).

In this case, the evidence excludes every reasonable hypothesis

of innocence. Although Jones argues that it is possible that

while she was in the apartment one of the occupants of the truck

hid the crack pipe in her purse, the Commonwealth's evidence

excludes such a possibility. When Hanna found the crack pipe in

Jones's purse, he questioned both occupants of the vehicle and

both denied owning the purse and the crack pipe. Therefore, the

inference is warranted that the crack pipe found buried in

Jones's purse belonged to her. See Robbs v. Commonwealth, 211

Va. 153, 155-56, 176 S.E.2d 429, 431 (1970) (court held it was

reasonable to infer that housecoat and drugs contained inside

belonged to the defendant where the other persons present denied

ownership). In addition, the court found that Jones lied to the

police about how she got to the apartment. The reasonable

inference flowing from her lie is that she was trying to divert

the police away from the truck and her purse containing the

crack pipe. Although Jones denied knowing about the crack pipe,

the court, acting as fact finder, was free to reject her

testimony and conclude that she was lying to conceal her guilt.

- 4 - Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98

(1987) (en banc); see also Rollston v. Commonwealth, 11 Va. App.

535, 547-48, 399 S.E.2d 823, 830-31 (1988). In addition,

"[p]ossession of a controlled drug gives rise to an inference of

the defendant's knowledge of its character." Josephs v.

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

(en banc); see also Shackleford v. Commonwealth, 32 Va. App.

307, 325, 528 S.E.2d 123, 132 (2000); Hunley v. Commonwealth, 30

Va. App. 556, 562, 518 S.E.2d 347, 350 (1999). Furthermore,

Jones admitted to a history of prior use of crack cocaine, thus

supporting the inference that she was aware of the character of

the cocaine found in her purse.

We find the evidence was sufficient to prove that Jones was

aware of both the presence and character of the cocaine found in

her purse and that the cocaine was subject to her dominion and

control. Accordingly, we affirm the conviction.

Affirmed.

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