COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank Argued at Chesapeake, Virginia
WARREN DEWAYNE BRIGHT MEMORANDUM OPINION * BY v. Record No. 2794-99-1 JUDGE ROBERT P. FRANK NOVEMBER 21, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge
Kevin M. Diamonstein for appellant.
Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Warren D. Bright (appellant) was convicted in a bench trial
of possession of cocaine in violation of Code § 18.2-250. On
appeal, he challenges the sufficiency of the evidence. For the
reasons stated herein, we find the trial court erred in convicting
appellant and we reverse the conviction.
I. BACKGROUND
Newport News Police Officer James Vollmer was conducting
surveillance in the 1000 block of Twenty-Fourth Street on October
27, 1998 at 9:30 p.m. when he observed appellant, the sole
occupant of a pickup truck, stop in that location. Officer
Vollmer was conducting surveillance at that location because of
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. "numerous complaints" and drug-related arrests he had made there.
He saw appellant get out of the truck and cross the street. At
that point, appellant was not in the officer’s line of vision.
Thirty seconds later, appellant returned to the truck and drove
away.
After being contacted by Officer Vollmer, Officer Wachsmuth
stopped the truck shortly thereafter for not having a front
license plate on the vehicle and a faded temporary permit
displayed on the rear.
Officer Wachsmuth asked appellant about the license plates,
and appellant told him that his employer had given him the truck a
few weeks earlier. Appellant admitted it was his truck. He said
he put the temporary plate on the rear because he had not yet
obtained permanent plates from the Department of Motor Vehicles.
After he finished issuing appellant a traffic summons, Officer
Wachsmuth asked for permission to search the vehicle for "any
weapons or drugs."
Appellant consented to a search, and Officer Vollmer, who had
arrived on the scene, searched the truck. He found "three or four
little pieces" of loose crack cocaine on the driver's side of the
truck's bench seat. The drugs were found in plain view where the
driver sits. More cocaine, described by Officer Vollmer as
"crumbs," was found on the floor of the truck on the driver's side
doorframe. Nothing was found on appellant's person.
- 2 - The cocaine appeared to be a "rock" worth twenty dollars,
which had been broken up. The larger chunk, "about the size of a
piece of rice," was surrounded by the smaller "crumbs," as if the
item had been sat upon. Although there was "miscellaneous trash"
on the seat, there was no debris on the driver's side where the
cocaine was found and appellant was alone in the vehicle when the
police stopped him. There was no evidence appellant was nervous,
fidgety, or made furtive gestures.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal in
a criminal case, we view 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). "In so doing, we must
'discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom.'" Cirios v. Commonwealth, 7 Va. App. 292, 295,
373 S.E.2d 164, 165 (1988) (quoting Norman v. Commonwealth, 2 Va.
App. 518, 520, 346 S.E.2d 44, 45 (1986) (citation omitted)). The
trial court's judgment will not be set aside unless the judgment
is plainly wrong or without evidence to support it. Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc) (citation omitted).
- 3 - [P]ossession of a controlled substance may be actual or constructive. See Archer [v. Commonwealth], 225 Va. [416,] 418, 303 S.E.2d [863,] 863 [(1983)]. "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.'" Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)); see Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987).
Although mere proximity to drugs is insufficient to establish
possession, it is a circumstance that may be probative in
determining whether an accused possessed such drugs. Lane v.
Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982)
(citations omitted). "Ownership or occupancy of the vehicle in
which the drugs are found is likewise a circumstance probative of
possession." Glasco v. Commonwealth, 26 Va. App. 763, 774, 497
S.E.2d 150, 155 (1998) (citations omitted), aff’d, 257 Va. 433,
513 S.E.2d 137 (1999). Thus, in resolving this issue, we must
consider "the totality of the circumstances disclosed by the
evidence." Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351,
353 (1979).
- 4 - Proof by circumstantial evidence "'is not sufficient . . . if
it engenders only a suspicion or even a probability of guilt.'"
Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,
859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977)). "'"[A]ll necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)
(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194,
196 (1981) (citation omitted)). "When, from the circumstantial
evidence, 'it is just as likely, if not more likely,' that a
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank Argued at Chesapeake, Virginia
WARREN DEWAYNE BRIGHT MEMORANDUM OPINION * BY v. Record No. 2794-99-1 JUDGE ROBERT P. FRANK NOVEMBER 21, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge
Kevin M. Diamonstein for appellant.
Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Warren D. Bright (appellant) was convicted in a bench trial
of possession of cocaine in violation of Code § 18.2-250. On
appeal, he challenges the sufficiency of the evidence. For the
reasons stated herein, we find the trial court erred in convicting
appellant and we reverse the conviction.
I. BACKGROUND
Newport News Police Officer James Vollmer was conducting
surveillance in the 1000 block of Twenty-Fourth Street on October
27, 1998 at 9:30 p.m. when he observed appellant, the sole
occupant of a pickup truck, stop in that location. Officer
Vollmer was conducting surveillance at that location because of
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. "numerous complaints" and drug-related arrests he had made there.
He saw appellant get out of the truck and cross the street. At
that point, appellant was not in the officer’s line of vision.
Thirty seconds later, appellant returned to the truck and drove
away.
After being contacted by Officer Vollmer, Officer Wachsmuth
stopped the truck shortly thereafter for not having a front
license plate on the vehicle and a faded temporary permit
displayed on the rear.
Officer Wachsmuth asked appellant about the license plates,
and appellant told him that his employer had given him the truck a
few weeks earlier. Appellant admitted it was his truck. He said
he put the temporary plate on the rear because he had not yet
obtained permanent plates from the Department of Motor Vehicles.
After he finished issuing appellant a traffic summons, Officer
Wachsmuth asked for permission to search the vehicle for "any
weapons or drugs."
Appellant consented to a search, and Officer Vollmer, who had
arrived on the scene, searched the truck. He found "three or four
little pieces" of loose crack cocaine on the driver's side of the
truck's bench seat. The drugs were found in plain view where the
driver sits. More cocaine, described by Officer Vollmer as
"crumbs," was found on the floor of the truck on the driver's side
doorframe. Nothing was found on appellant's person.
- 2 - The cocaine appeared to be a "rock" worth twenty dollars,
which had been broken up. The larger chunk, "about the size of a
piece of rice," was surrounded by the smaller "crumbs," as if the
item had been sat upon. Although there was "miscellaneous trash"
on the seat, there was no debris on the driver's side where the
cocaine was found and appellant was alone in the vehicle when the
police stopped him. There was no evidence appellant was nervous,
fidgety, or made furtive gestures.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal in
a criminal case, we view 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). "In so doing, we must
'discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom.'" Cirios v. Commonwealth, 7 Va. App. 292, 295,
373 S.E.2d 164, 165 (1988) (quoting Norman v. Commonwealth, 2 Va.
App. 518, 520, 346 S.E.2d 44, 45 (1986) (citation omitted)). The
trial court's judgment will not be set aside unless the judgment
is plainly wrong or without evidence to support it. Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc) (citation omitted).
- 3 - [P]ossession of a controlled substance may be actual or constructive. See Archer [v. Commonwealth], 225 Va. [416,] 418, 303 S.E.2d [863,] 863 [(1983)]. "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.'" Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)); see Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981).
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740
(1987).
Although mere proximity to drugs is insufficient to establish
possession, it is a circumstance that may be probative in
determining whether an accused possessed such drugs. Lane v.
Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982)
(citations omitted). "Ownership or occupancy of the vehicle in
which the drugs are found is likewise a circumstance probative of
possession." Glasco v. Commonwealth, 26 Va. App. 763, 774, 497
S.E.2d 150, 155 (1998) (citations omitted), aff’d, 257 Va. 433,
513 S.E.2d 137 (1999). Thus, in resolving this issue, we must
consider "the totality of the circumstances disclosed by the
evidence." Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351,
353 (1979).
- 4 - Proof by circumstantial evidence "'is not sufficient . . . if
it engenders only a suspicion or even a probability of guilt.'"
Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853,
859 (1997) (quoting Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977)). "'"[A]ll necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence."'" Betancourt
v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998)
(quoting Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194,
196 (1981) (citation omitted)). "When, from the circumstantial
evidence, 'it is just as likely, if not more likely,' that a
'reasonable hypothesis of innocence' explains the accused's
conduct, the evidence cannot be said to rise to the level of proof
beyond a reasonable doubt." Littlejohn, 24 Va. App. at 414, 482
S.E.2d at 859 (quoting Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The Commonwealth need not
"'exclude every possible theory or surmise,'" but it must exclude
those hypotheses "'which flow from the evidence itself.'"
Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328,
338-39 (1988) (citation omitted).
Here, appellant was in close proximity to the drugs and was
clearly the owner and sole occupant of the "work truck." While
the drugs were in "plain view" to the police officer, who is
trained in the recognition of drugs, the drugs were described as
"crumbs" and the larger piece was described as being "about the
- 5 - size of a piece of rice." There was no evidence appellant even
saw the cocaine, knew it was present, or exercised dominion and
control over it. There was no evidence that appellant was
nervous, fidgety, or made furtive gestures. Appellant made no
statements indicating he was aware of the presence and character
of the drugs. The fact that appellant was in an area in which
"drug related arrests" were made does not indicate possession of
drugs. Decent, law-abiding citizens live in "high crime areas"
along with those involved with illegal drugs. There is no
evidence appellant engaged in any illegal drug activity while in
the area.
The evidence proved the registration of the truck had not yet
been transferred to appellant on DMV's records. While the
evidence established appellant had the truck for three weeks, it
is unknown whether appellant only drove the truck to and from work
or also during the workday. It also is unknown how many times
appellant actually had possession of the truck within the three
weeks. A hypothesis that someone else placed the drugs in the
seat without appellant's knowledge is as consistent with the facts
as appellant's guilt. See Jones v. Commonwealth, 17 Va. App. 572,
574, 439 S.E.2d 863, 864 (1994) (small pieces of cocaine in plain
view in accessory tray on vehicle console not sufficient to
establish possession by passenger).
- 6 - The facts establish no more than a mere suspicion that
appellant possessed the drugs. We, therefore, find the evidence
insufficient to support the conviction.
For these reasons, we reverse the judgment of the trial court
and dismiss.
Reversed and dismissed.
- 7 -