COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
WILLIAM HENRY DAVIS MEMORANDUM OPINION * BY v. Record No. 2994-96-1 JUDGE WILLIAM H. HODGES NOVEMBER 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Timothy G. Clancy (Cumming, Hatchett & Jordan, on brief), for appellant. Kimberley A. Whittle, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
In a bench trial, appellant, William Henry Davis, was
convicted of possessing cocaine with the intent to distribute.
The trial court sentenced him to twelve years of imprisonment
with seven years suspended. On appeal, Davis challenges the
sufficiency of the evidence to prove that he possessed cocaine.
Finding no error, we affirm appellant's conviction.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "It is
fundamental that 'the credibility of witnesses and the weight
accorded their testimony are matters solely for the fact finder * Pursuant to Code § 17-116.010, this opinion is not designated for publication. who has the opportunity of seeing and hearing the witnesses.'"
Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175,
176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382,
337 S.E.2d 735, 736-37 (1985)).
While on patrol in Newport News on the night of March 29,
1996, Officers Frank Nowak and J. D. Bell observed Davis on the
street. In the same area were several "shot houses," where
individual drinks of alcohol were sold. Nowak observed
appellant, who was alone, turn away as the police cruiser drove
past him. Nowak saw a light-colored object fall from appellant's
hands and land near the front right side of a pickup truck. At
the time, Nowak was approximately nineteen feet from appellant. The officers stopped their vehicle in the middle of the
street and approached appellant on foot. Appellant unzipped his
pants and appeared to urinate. Nowak proceeded to the area in
front of the pickup truck where he had seen the object land.
About six inches under the right side of the truck was a
light-colored object in a clear plastic container similar in size
and appearance to the item he had seen appellant drop. Nothing
else was beneath the truck. Only a minute or two had lapsed
since appellant had dropped the item, and there was no one else
in the area. Although it had been raining and the pavement
beneath the container was wet, the top of the container itself
was dry.
The plastic container recovered by Nowak held eight to nine
2 pieces of crack cocaine totalling more than four grams in weight.
On the streets of Newport News, one gram of cocaine was worth
$80 to $100. Appellant also possessed a pager, a cellular phone,
and $478 in cash.
Testifying in his own behalf, appellant stated that he was
in the area to gamble at a particular house. He said he had
stopped to urinate when the police officers approached him. He
testified that the cocaine found beneath the truck was not his,
and he denied any knowledge of its presence. II.
Appellant argues that the evidence did not prove beyond a
reasonable doubt that he possessed the cocaine Nowak recovered
from beneath the truck. Possession may be actual or constructive. Constructive possession may be established by "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 the character of the substance and that it was subject to his dominion and control."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citations omitted). "While proximity to
a controlled substance is insufficient alone to establish
possession, it is a factor to consider when determining whether
the accused constructively possessed drugs." Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc).
In Collins, the police officer drove his patrol car into a
3 dimly lit parking lot and stopped approximately thirty feet
behind Collins, who was sitting in a parked vehicle. Id. at 178,
409 S.E.2d at 175. When Collins exited the vehicle, the officer
saw him make "a throwing motion under the vehicle with his right
arm." The officer immediately "approached [the vehicle] and
illuminated the area underneath the vehicle with his flashlight."
A second officer "retrieved from underneath the vehicle a
plastic baggie containing fourteen smaller baggies of a white
substance." Id. On these facts, we held that the evidence was
sufficient to prove that the cocaine recovered from underneath
the vehicle had been cocaine that the defendant possessed and
threw under the vehicle. See also Beverly v. Commonwealth, 12
Va. App. 160, 165, 403 S.E.2d 175, 177-78 (1991) (holding that
the evidence was sufficient to sustain a conviction for
possession of cocaine where "the police found a package
containing almost two grams of cocaine at the place where
appellant had dropped an object" just a short time earlier).
Similarly, the evidence in this instance, viewed in the
light most favorable to the Commonwealth and granting to it "all
reasonable inferences [that may be] drawn therefrom," creates
much more than "a mere suspicion" that the cocaine found beneath
the truck was the same item that appellant was seen to have
possessed and dropped there. See Garland v. Commonwealth, 225
Va. 182, 184, 300 S.E.2d 783, 784-85 (1983). See also Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971)
4 (noting that "[n]umerous decisions have affirmed convictions for
possession of narcotic drugs resting on proof that a defendant
was observed dropping or throwing away an identifiable object
which, when subsequently recovered, was found to contain
narcotics").
As the police vehicle passed, appellant turned his body away
and dropped a light-colored object. Nowak was approximately
nineteen feet distant when he observed the object fall from
appellant's hand, near a pickup truck. Moments later, Nowak
found a plastic container with a light-colored substance inside
at the spot where defendant had discarded the item. No other
persons were in the area and no other objects were under the
truck. Although it was raining and the ground beneath the
container was wet, the container itself was dry. Defendant
denied knowledge of the container or dropping any object. The
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
WILLIAM HENRY DAVIS MEMORANDUM OPINION * BY v. Record No. 2994-96-1 JUDGE WILLIAM H. HODGES NOVEMBER 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Timothy G. Clancy (Cumming, Hatchett & Jordan, on brief), for appellant. Kimberley A. Whittle, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
In a bench trial, appellant, William Henry Davis, was
convicted of possessing cocaine with the intent to distribute.
The trial court sentenced him to twelve years of imprisonment
with seven years suspended. On appeal, Davis challenges the
sufficiency of the evidence to prove that he possessed cocaine.
Finding no error, we affirm appellant's conviction.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "It is
fundamental that 'the credibility of witnesses and the weight
accorded their testimony are matters solely for the fact finder * Pursuant to Code § 17-116.010, this opinion is not designated for publication. who has the opportunity of seeing and hearing the witnesses.'"
Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175,
176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382,
337 S.E.2d 735, 736-37 (1985)).
While on patrol in Newport News on the night of March 29,
1996, Officers Frank Nowak and J. D. Bell observed Davis on the
street. In the same area were several "shot houses," where
individual drinks of alcohol were sold. Nowak observed
appellant, who was alone, turn away as the police cruiser drove
past him. Nowak saw a light-colored object fall from appellant's
hands and land near the front right side of a pickup truck. At
the time, Nowak was approximately nineteen feet from appellant. The officers stopped their vehicle in the middle of the
street and approached appellant on foot. Appellant unzipped his
pants and appeared to urinate. Nowak proceeded to the area in
front of the pickup truck where he had seen the object land.
About six inches under the right side of the truck was a
light-colored object in a clear plastic container similar in size
and appearance to the item he had seen appellant drop. Nothing
else was beneath the truck. Only a minute or two had lapsed
since appellant had dropped the item, and there was no one else
in the area. Although it had been raining and the pavement
beneath the container was wet, the top of the container itself
was dry.
The plastic container recovered by Nowak held eight to nine
2 pieces of crack cocaine totalling more than four grams in weight.
On the streets of Newport News, one gram of cocaine was worth
$80 to $100. Appellant also possessed a pager, a cellular phone,
and $478 in cash.
Testifying in his own behalf, appellant stated that he was
in the area to gamble at a particular house. He said he had
stopped to urinate when the police officers approached him. He
testified that the cocaine found beneath the truck was not his,
and he denied any knowledge of its presence. II.
Appellant argues that the evidence did not prove beyond a
reasonable doubt that he possessed the cocaine Nowak recovered
from beneath the truck. Possession may be actual or constructive. Constructive possession may be established by "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 the character of the substance and that it was subject to his dominion and control."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,
368-69 (1994) (en banc) (citations omitted). "While proximity to
a controlled substance is insufficient alone to establish
possession, it is a factor to consider when determining whether
the accused constructively possessed drugs." Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc).
In Collins, the police officer drove his patrol car into a
3 dimly lit parking lot and stopped approximately thirty feet
behind Collins, who was sitting in a parked vehicle. Id. at 178,
409 S.E.2d at 175. When Collins exited the vehicle, the officer
saw him make "a throwing motion under the vehicle with his right
arm." The officer immediately "approached [the vehicle] and
illuminated the area underneath the vehicle with his flashlight."
A second officer "retrieved from underneath the vehicle a
plastic baggie containing fourteen smaller baggies of a white
substance." Id. On these facts, we held that the evidence was
sufficient to prove that the cocaine recovered from underneath
the vehicle had been cocaine that the defendant possessed and
threw under the vehicle. See also Beverly v. Commonwealth, 12
Va. App. 160, 165, 403 S.E.2d 175, 177-78 (1991) (holding that
the evidence was sufficient to sustain a conviction for
possession of cocaine where "the police found a package
containing almost two grams of cocaine at the place where
appellant had dropped an object" just a short time earlier).
Similarly, the evidence in this instance, viewed in the
light most favorable to the Commonwealth and granting to it "all
reasonable inferences [that may be] drawn therefrom," creates
much more than "a mere suspicion" that the cocaine found beneath
the truck was the same item that appellant was seen to have
possessed and dropped there. See Garland v. Commonwealth, 225
Va. 182, 184, 300 S.E.2d 783, 784-85 (1983). See also Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971)
4 (noting that "[n]umerous decisions have affirmed convictions for
possession of narcotic drugs resting on proof that a defendant
was observed dropping or throwing away an identifiable object
which, when subsequently recovered, was found to contain
narcotics").
As the police vehicle passed, appellant turned his body away
and dropped a light-colored object. Nowak was approximately
nineteen feet distant when he observed the object fall from
appellant's hand, near a pickup truck. Moments later, Nowak
found a plastic container with a light-colored substance inside
at the spot where defendant had discarded the item. No other
persons were in the area and no other objects were under the
truck. Although it was raining and the ground beneath the
container was wet, the container itself was dry. Defendant
denied knowledge of the container or dropping any object. The
substance in the container was determined to be crack cocaine.
"The Commonwealth [was] not required to prove that there
[was] no possibility that someone else may have planted,
discarded, abandoned or placed the drugs" on the ground. Brown,
15 Va. App. at 10, 421 S.E.2d at 883. The evidence unerringly
identified the item that appellant dropped as the crack cocaine
later retrieved. Accordingly, the evidence was sufficient to
establish beyond a reasonable doubt that appellant possessed
cocaine.
For these reasons, we affirm appellant's conviction.
5 Affirmed.
6 Benton, J., dissenting.
"[W]here, as here, 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.'" Garland v. Commonwealth,
225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).
"Suspicious circumstances, including proximity to a controlled
drug, are insufficient to support a conviction." Behrens v.
Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).
On the evidence in this record, the Commonwealth failed to
prove beyond a reasonable doubt that William Henry Davis
possessed the cocaine. The evidence proved that Officer Nowak
saw Davis while Officers Nowak and Bell were patrolling at
11:00 p.m. in an area where people go to purchase alcohol and
drugs. Davis, who was nineteen feet away, turned and began to
urinate. Officer Nowak testified that when Davis turned,
"something f[e]ll out of his hand." Officer Nowak also testified
that he did not know what the object was and did not tell Officer
Bell that he saw an object fall from Davis' hand. Although
Officer Nowak described the item as light colored, he did not
describe its size or shape.
The two officers approached Davis. Officer Nowak told Davis
to put his hands on the car. After Davis did so, Officer Nowak
walked to the front of a pickup truck. Officer Nowak testified
7 that he found a plastic container "underneath the . . . truck and
about six inches under the right front side of the . . . truck."
Nowak testified that the object was the same size and color as
the item he saw fall from Davis' hand.
This proof is not entirely consistent with guilt nor is it
inconsistent with Davis' claim of innocence. The evidence fails
to exclude the reasonable hypothesis that the object, located
under a truck in an area known for drug distribution, was placed
there by some other person at an earlier time. Indeed, the
evidence proved that the police officers were patrolling the area
because drugs and alcohol were distributed and prevalent in the
area. Numerous cases report that drug dealers often hide drugs
under vehicles, in fields, and around houses in places where
drugs are sold. See, e.g., Warlick v. Commonwealth, 215 Va. 263,
267, 208 S.E.2d 746, 749 (1974). McGann v. Commonwealth, 15 Va.
App. 448, 450-51, 424 S.E.2d 706, 708 (1992).
Proof that the container was relatively dry when the street
was wet from rain does not prove that Davis possessed the
container. Obviously, the truck would shelter from the rain
items underneath the truck. Furthermore, Officer Nowak did not
testify that Davis tossed the item. The evidence proved,
however, that the container that Officer Nowak found was six
inches under the truck and "completely dry except for . . . the
portion . . . that was touching the ground." That testimony is
consistent with the object having been placed there or left for a
8 long period of time. Thus, the container recovered by Officer
Nowak could have been placed, thrown, or dropped under the truck
by some other person long before the officers approached Davis.
When, as here, "the evidence leaves it indefinite which of
several hypotheses is true, or establishes only some finite
probability in favor of one hypothesis, such evidence cannot
amount to proof, however great the probability may be." Massie
v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924). Furthermore, the evidence creates a mere suspicion that
Davis dropped an "identifiable object" and that the same object
was recovered by Officer Nowak. See Gordon v. Commonwealth, 212
Va. 298, 300, 183 S.E.2d 735, 737 (1971). Merely identifying the
recovered object as "the 'same color [and] size'" as the object
Officer Nowak believed Davis possessed raises only a suspicion or
probability of guilt. Id. at 298, 183 S.E.2d at 736.
"Suspicion, however, no matter how strong, is insufficient to
sustain a criminal conviction." Stover v. Commonwealth, 222 Va.
618, 624, 283 S.E.2d 194, 197 (1981). Officer Nowak's belief
that he recovered the same object dropped by Davis was mere
speculation. Officer Nowak did not look anywhere other than
under the truck for the object. He did not testify that he
looked in any other area to determine whether the object dropped
by Davis was something other than the item found under the truck.
Thus, I would hold that the evidence was insufficient to
prove beyond a reasonable doubt that Davis possessed the cocaine
9 that was found under the pickup truck. For these reasons, I
dissent and would reverse the conviction.