Tobias Norrell, s/k/a, etc v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 22, 2003
• Docket: 0978022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Felton Argued at Richmond, Virginia

TOBIAS NORRELL, S/K/A TOBIAS L. NORRELL MEMORANDUM OPINION * BY v. Record No. 0978-02-2 JUDGE LARRY G. ELDER APRIL 22, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Duling, Judge Designate

John W. Luxton (Morchower, Luxton & Whaley, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Linwood T. Wells, Jr., Assistant Attorney General, on brief), for appellee.

Tobias Norrell (appellant) appeals from his bench trial

conviction for possession of cocaine with intent to distribute.

On appeal, he contends the evidence was insufficient to prove

his constructive possession of cocaine found inside a safe. We

hold the circumstantial evidence was sufficient to prove his

constructive possession, and we affirm.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to the evidence all reasonable inferences fairly

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987). Circumstantial evidence is

sufficient to support a conviction provided it excludes every

reasonable hypothesis of innocence flowing from the evidence.

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,

29 (1993).

The possession necessary to support a conviction for the

possession of cocaine may be actual or constructive. See, e.g.,

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368

(en banc). Establishing constructive possession requires proof

"that the defendant was aware of both the presence and character

of the [item] and that it was subject to his dominion and

control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d

739, 740 (1984). A person's ownership or occupancy of premises

on which the subject item is found, proximity to the item, and

statements or conduct concerning the location of the item are

probative factors to be considered in determining whether the

totality of the circumstances supports a finding of possession.

Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826,

831-32 (1997). Possession "need not always be exclusive. The

defendant may share it with one or more." Josephs v.

Commonwealth, 10 Va. App. 87, 89, 390 S.E.2d 491, 497 (1990) (en

banc).

Here, although Officer Kenneth Cornett said appellant

entered the apartment through a window after trying to make sure

- 2 - no one was watching, appellant said he had a key to the

apartment and denied entering through the window. When asked if

he lived there, appellant responded, "I stay here, it's my

brother's house." When asked for identification, appellant

said, "[I]t's back here," and walked immediately toward the rear

of the residence. Appellant later went directly to one of the

apartment's two bedrooms where he examined the pockets of three

articles of clothing located on the floor and the bed of that

room. Although appellant said he could not locate his

identification, police subsequently found appellant's current

Virginia identification card in a tennis shoe in the closet of

that room. Also in the room were appellant's J. Sargeant

Reynolds picture student i.d. and two photographs of appellant.

This evidence, including appellant's statements that he

"stay[ed]" in the apartment and had a key, supported the

inference that appellant occupied the bedroom in which the above

items were found.

Other evidence linked appellant to the contents of the safe

found beneath the bed in that room, despite the fact that a key

to the safe was not found in his possession. When police opened

the safe, they found a contract for a cellular telephone bearing

the signature of Tobias Norrell as the guarantor and dated

October 1, 2001, only two days prior the officers' search of the

apartment. By comparing the signature on the cellular telephone

contract with the signatures on appellant's Virginia and J.

- 3 - Sargeant Reynolds identification cards, both of which contained

appellant's photograph, the finder of fact could conclude that

appellant was the person who had signed the cell phone contract.

See Wileman v. Commonwealth, 24 Va. App. 642, 647, 484 S.E.2d

621, 623-24 (1997) (noting that fact finder may conduct

"side-by-side comparison of genuine samples and alleged samples"

to determine whether handwriting is that of a particular

person).

Also in the safe was a box for a cellular telephone. At

the time of appellant's arrest, he had in his possession a

cellular telephone that matched the picture on the box. Thus,

the only reasonable hypothesis flowing from the evidence is that

appellant had access to the safe and constructively possessed

the quantity of cocaine also found in the safe, either jointly

or exclusively. See Birdsong v. Commonwealth, 37 Va. App. 603,

607-10, 560 S.E.2d 468, 470-72 (2002) (holding evidence need not

establish defendant knew combination to safe containing cocaine

where direct evidence linked him to other evidence in safe and

circumstantial evidence established his constructive possession

of drugs). The fact that an identification card for Eric

Pretty, the person who rented the apartment, was found beneath

the safe and that Pretty may also have had possession of the

cellular telephone matching the box in the safe on the day of

the search does not require a different result.

- 4 - For these reasons, we hold the circumstantial evidence

proved appellant constructively possessed the cocaine found in

the safe. Thus, we affirm his conviction for possession of

cocaine with intent to distribute.

Affirmed.

- 5 -