Tieone Demetrist Thomas v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 16, 1998
• Docket: 1618972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Elder Argued at Richmond, Virginia

TIEONE DEMETRIST THOMAS MEMORANDUM OPINION * BY v. Record No. 1618-97-2 JUDGE LARRY G. ELDER JUNE 16, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Susan L. Parrish, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

(Mark L. Earley, Attorney General; Steven A. Witmer, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Tieone Demetrist Thomas (appellant) appeals his conviction

of possession of cocaine in violation of Code § 18.2-250. He

contends the evidence was insufficient to support his conviction.

For the reasons that follow, we reverse.

When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. See Higginbotham v.

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

review, this Court does not substitute its own judgment for that

of the trier of fact. See Cable v. Commonwealth, 243 Va. 236, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will

not be set aside unless it appears that the judgment is plainly

wrong or without supporting evidence. See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

"[W]here the Commonwealth's evidence as to an element of an

offense is wholly circumstantial, 'all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of innocence.'" Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553

(1987) (citation omitted). However, the Commonwealth "'is not

required to disprove every remote possibility of innocence, but

is instead, required only to establish guilt of the accused to

the exclusion of a reasonable doubt.'" Cantrell v. Commonwealth,

7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation

omitted). "The hypotheses which the prosecution must exclude are

those 'which flow from the evidence itself, and not from the

imagination of defendant's counsel.'" Id. at 289-90, 373 S.E.2d

at 338-39 (citation omitted).

"To convict a person of possession of illegal drugs 'the

Commonwealth must prove that the defendant was aware of the

presence and character of the drugs and that he intentionally and

consciously possessed them.'" Castaneda v. Commonwealth, 7 Va.

App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting

Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814

(1975)). Possession need not be actual, exclusive, or lengthy in

-2- order to support a conviction under Code § 18.2-250; instead, the

statute criminalizes possession of illegal drugs of any duration

that is constructive or joint. See Gillis v. Commonwealth, 215

Va. 298, 302, 208 S.E.2d 768, 771 (1974); Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc).

Constructive possession of illegal drugs may be proven 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.'" Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,

82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986)). Neither close proximity to illegal

drugs nor occupancy of the premises on which they are found,

standing alone, ever 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 Tucker v. Commonwealth, 18 Va. App. 141, 144, 442 S.E.2d

419, 421 (1994); Castaneda, 7 Va. App. at 583-84, 376 S.E.2d at

87.

We hold that the evidence was insufficient to prove that

appellant either actually or constructively possessed the cocaine

found in the fifty-dollar bill on the chest of drawers. Although

the circumstantial evidence presented by the Commonwealth raised

-3- a suspicion that appellant placed the bill containing the cocaine

on the chest of drawers along with the pile of change, keys, and

papers after he arrived at his mother's residence and before he

went to sleep, the evidence failed to exclude the reasonable

hypothesis that appellant's brother placed the cocaine on the

chest of drawers and that appellant had no knowledge of the

cocaine's presence when it was discovered by Detective Mabry.

The evidence did not establish appellant was aware of the

presence of the cocaine on the chest of drawers at the time of

his arrest. The fifty-dollar bill containing the cocaine was

located next to a pile of coins, keys, and papers that appellant

placed in his pocket after Detective Mabry took possession of the

bill. None of appellant's statements or conduct or any other

circumstance supports an inference that he knew crack cocaine was

concealed inside the bill. Even though the bill was folded in

such a way that a person familiar with narcotics would recognize

it concealed illegal drugs, appellant did not react when

Detective Mabry picked up the bill from the chest of drawers and

inspected it. Appellant also took no action when the detective

prevented appellant's brother from grabbing the bill.

Significantly, no evidence directly established who placed the

bill on the chest of drawers or how long it was there, and no

evidence proved appellant was personally familiar with illegal

drugs. The close proximity of appellant or his personal effects

to the bill containing the cocaine, alone, is insufficient to

-4- prove that he knowingly possessed it. See Clodfelter v.

Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977); cf.

Drew, 230 Va. at 473, 338 S.E.2d at 845; Burchette, 15 Va. App.

at 437-38, 425 S.E.2d at 85.

Moreover, it is apparent from the record that appellant's

brother was both aware of the presence of the cocaine in the bill

and actually possessed it, and the circumstantial evidence did

not exclude the reasonable hypothesis that his possession of the

cocaine was exclusive. When appellant's brother entered the

bedroom and saw the officers, he immediately reached for the bill

containing the cocaine. Appellant, on the other hand, was sound

asleep when the officers arrived, and no evidence in the record

indicates he was ever awake at a time when the bill containing

the cocaine was present on the chest of drawers. While appellant

was not a permanent resident of his mother's residence and

arrived only the night before his arrest, appellant's brother

lived there and had access to his mother's bedroom, which was

where appellant was sleeping. Appellant's mother testified that

"sometimes [appellant's brother] might . . . bring something in

there and leave and forget." Because the circumstantial evidence

is equally susceptible to an interpretation that is consistent

with appellant's innocence -- that appellant's brother placed the

bill containing the cocaine on the chest of drawers and appellant

was never aware of its presence before his arrest, the trial

court erred when it concluded the Commonwealth proved appellant's

-5- guilt beyond a reasonable doubt. See Williams v. Commonwealth,

193 Va. 764, 772, 71 S.E.2d 73, 77 (1952).

For the foregoing reasons, we reverse the conviction of

possession of cocaine.

Reversed and dismissed.

-6-