Opinion
Record No. 1947-92-1
Decided: November 22, 1994
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE, William L. Forbes, Judge
Affirmed.
Edward P. Grissom, Jr. (Grissom MacDonald, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton and Willis and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from his conviction for possessing cocaine with the intent to distribute, Willie Ames contends that the evidence was insufficient to prove beyond a reasonable doubt that he constructively possessed the cocaine. We disagree and affirm the conviction.
During the late evening on March 20, 1991, Officer Barney D. Keys of the Chesapeake Police Department, accompanied by another person, approached the back door of 2208 Berkeley Avenue in Chesapeake. Keys was not in uniform. Ames opened the door, and Keys and his companion entered. The companion asked Ames, "Is anybody doing anything?" Ames, referring to Keys, responded: "Who the fuck is this guy?" Despite assurances from Keys's companion that Keys was "okay," Ames continued to object to Keys's presence, stating: "I don't give a fuck who he is, who he knows or how many times he's been here before. I ain't selling him shit. Get him the fuck out of my house." Keys left the house; his companion remaining inside. Keys reentered the house to retrieve his companion. Ames objected to Keys's reentry, exclaiming "Who the fuck do you think you are walking into my house like you live here?" Ames pulled a Mac nine millimeter machine gun (commonly referred to as an Uzi) from a couch, upon which Keys and his companion left the house.
Within seven to ten minutes thereafter, Keys's companion was searched, and no narcotics were found on his person. Keys gave his companion fifty dollars and told him to purchase cocaine from 2208 Berkeley Avenue. The police observed the companion entering and leaving the house. Upon leaving the house, the police again searched the companion. The search revealed no currency, but did reveal a substance which field-tested positive for cocaine.
Based upon this "buy," the police obtained a search warrant for the house. The Chesapeake SWAT Team effected a "dynamic entry" of the house at 1:10 a.m. on March 21, 1991. Detective Ronald Young was the first to enter the house and he observed Ames six to eight feet from the kitchen table, upon which lay thirty-eight baggies of cocaine. Eight people were in the house. In addition to the cocaine, which totalled twenty-four grams, the police recovered a machine gun from the couch.
Ames presented the testimony of Gwinella Williams. She stated that she and Terry Livingston lived at the house, that Ames did not live there, and that Livingston often had company at the house. Detective Douglas Anderson confirmed that Ames did not own or lease the house.
At the conclusion of the evidence, Ames unsuccessfully renewed his motion to strike, arguing that there was insufficient evidence to establish constructive possession. The jury returned a verdict of guilty.
"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).
[P]ossession of a controlled substance may be actual or constructive. . . . "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.' "
McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).
"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). Thus, when considering an accused's proximity to illegal drugs, the Court looks to "the totality of the circumstances disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).
Viewing the evidence, as we must, in the light most favorable to the Commonwealth, the following acts, statements, conduct, and circumstances were before the jury:
1. Ames, referring to Keys, stated: "I ain't selling him shit." The jury could infer from this statement that Ames was willing to sell a product to someone other than Keys.
2. Ames told Keys's companion to "Get him [Keys] the fuck out of my house." (Emphasis added.) Although Ames did not own or lease the house, the jury could infer from this statement that he exercised dominion and control over it.
3. Ames asked Keys: "Who the fuck do you think you are walking into my house like you live here?" (Emphasis added.) Again, the jury could infer from this question that Ames exhibited a possessory interest in the house.
4. Ames threatened Keys with an Uzi machine gun. From this evidence, the jury could infer that (a) Ames was again exhibiting dominion and control over the property, and (b) Ames was in possession of a "tool" of the narcotics trade. See United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989).
5. Keys's companion entered the house with fifty dollars and left the house with a substance which field-tested positive for cocaine.
6. Thirty-eight baggies, containing twenty-four grams of cocaine, were found in plain view on the kitchen table within six to eight feet of appellant.
7. The police recovered a machine gun from the couch. Ames had earlier pulled such a gun from the couch to threaten Keys. Keys testified that the gun which was recovered looked like the one Ames had pulled from the couch.
Although seven other persons were in the house when it was raided, the evidence showed that Ames controlled who came into and left the house, even to the point of threatening violence, and that he was within six to eight feet of cocaine packaged for distribution at the time of raid. Ames's acts, conduct, and statements, along with the attendant facts and circumstances described supra, were sufficient to prove beyond a reasonable doubt that Ames was aware of the presence and character of the cocaine and that it was subject to his dominion and control.
Ames cites four cases in support of his position that the evidence failed to prove that he constructively possessed the cocaine. Those cases are inapposite. Three merely underscore the proposition that proximity to a controlled substance, standing alone, is insufficient to prove possession. Wright v. Commonwealth, 217 Va. 669, 232 S.E.2d 733 (1977); Fogg v. Commonwealth, 216 Va. 394, 219 S.E.2d 672 (1975); and Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972). The fourth case indicates that ownership of an unoccupied vehicle in which a controlled substance is found is insufficient, in the absence of other evidence linking the owner to the substance, to prove possession. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).
Accordingly, we affirm the conviction.
Affirmed.
When the police entered the house with a search warrant, eight people were in the house, including Gwinella Williams and Terry Livingston, the two women who occupied the house. The police found on the kitchen table a paisley colored purse that contained cocaine. Some of the cocaine was lying on the table by the purse. Willie Ames was not in the kitchen.
When the Commonwealth's prosecution is premised upon the theory that an accused constructively possessed cocaine, "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 [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). In such a prosecution, "all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence." Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982). "To accomplish that, the chain of necessary circumstances must be unbroken and . . . the criminal agency of the accused [must be] proved to the exclusion of any other rational hypothesis and to a moral certainty." LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950). The evidence in this record fails to satisfy these standards.
At 11:30 p.m., when the officer and the informant first went to the house, Ames opened the door and admitted them to the kitchen. The officer did not testify that cocaine was visible on the kitchen table. He saw no cocaine in the house. When the informant asked whether anyone was selling drugs, Ames became angry. After a heated exchange between Ames and the informant, the officer walked out of the house. When the informant did not follow him, the officer reentered the house. The officer testified that Ames was then sitting on a couch in a room next to the kitchen. The officer testified that four or five people were in the house at that time. The officer testified that he did not see any cocaine at this time when he reentered the house to get the informant.
The evidence is uncontradicted that neither the officer nor the informant purchased cocaine on these occasions. Ames made no statements indicating that he or anyone else in the house had cocaine. After the informant and the officer left the house, they returned to a bridge some distance from the house and met with other police officers. The evidence does not establish whether people entered or exited the residence after the officer and the informant left the house and met with the other officers who had been watching the house.
Ten minutes after they left the house, the officer returned with the informant to an area 250 yards from the residence and let the informant out of the automobile. No evidence proved whether, during the ensuing ten minutes that the informant was away from the officer, people entered or exited the house. The informant returned with cocaine. Because the informant did not testify, no evidence proved how the informant obtained the cocaine. An hour after the informant returned to the officer with cocaine, the police entered the residence at 1:10 a.m. with the search warrant. No evidence proved whether anyone entered or exited the house from 11:30 p.m. to 1:10 a.m.
When the police entered the house with a search warrant, Ames and eight other people were present. No evidence proved whether the cocaine that was in and near the paisley purse on the kitchen table was in the house when the informant purchased his cocaine. No evidence proved that the cocaine on the table was visible before the police made their "dynamic entry" to the house and the people in the kitchen scattered. Although three women were in the house, no evidence proved which of them owned the purse that contained the cocaine.
No evidence proved that Ames was aware of the presence of the cocaine or present when the informant purchased cocaine. When the police entered the house an hour after the purchase, Ames was not in the kitchen where the drugs were found. Furthermore, no evidence proved that Ames sold the drugs to the informant or was aware that the informant purchased drugs at the house. Indeed, no evidence proved who sold the cocaine to the informant.
The circumstantial evidence in this case does no more than raise a suspicion of guilt. Because, however, in all criminal prosecutions "[t]he actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt," Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22, 25 (1944), "circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty." Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977). Ames did not live in the house. Ames had neither money nor cocaine on his person. No evidence proved that Ames was in the kitchen where the cocaine was found. No evidence proved that Ames was aware of the presence of cocaine in the house. See Harris v. Commonwealth, 13 Va. App. 593, 413 S.E.2d 354 (1992). Indeed, this case is similar in many respects to Wright v. Commonwealth, 217 Va. 669, 232 S.E.2d 733 (1977); Fogg v. Commonwealth, 216 Va. 394, 219 S.E.2d 672 (1975); and Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972).
In Wright, the evidence proved that when the police raided an apartment early in the morning, Wright was in the immediate presence of drugs. He was sitting on a bed with an occupant of the apartment who was holding a syringe. A bag of heroin was found at the feet of Wright's companion. Another bag of heroin was found under a dresser three feet away from Wright. A box of syringes was found in the dresser. 217 Va. at 669-70, 232 S.E.2d at 733. The Court reversed Wright's conviction of possession of narcotics because Wright was not in constructive possession of the drugs. No evidence proved that Wright shared drugs with his companion, that Wright possessed the drugs, or that the drugs were under Wright's dominion and control. Id. at 670, 232 S.E.2d at 734. The Court concluded that the inferences drawn from the evidence to convict Wright were based on speculation and conjecture. Id.
In Fogg, the evidence proved that forty-five minutes after Fogg and a companion entered a motel room, the police entered the room and found a bag with drug paraphernalia on the windowsill beside the bed. In a cushion of a chair ten feet away from Fogg the police found a bag containing fourteen bags of heroin. The police also found a pipe with marijuana residue in Fogg's purse. 216 Va. at 394-95, 219 S.E.2d at 672-73. The Court reversed Fogg's conviction for constructive possession of heroin. Id. at 395, 219 S.E.2d at 673. The evidence did not prove that either the fourteen bags were in plain view or that the contents of the bag on the windowsill were in plain view. Id. The Court noted that "no evidence [was proved] from which it might reasonably be inferred that Fogg owned, controlled, or used any heroin in the room." Id.
The evidence in Huvar, is not dissimilar in any principled way from the evidence in this record. Huvar was in an apartment with ten other people when the police entered with a search warrant. A large quantity of drugs was found around the three room apartment in plain view. The apartment had an odor of marijuana that the police smelled when they entered. It was not Huvar's apartment. Huvar and two others were in the bathroom. No drugs were found on Huvar; however, he appeared to have been under the influence of drugs at the time. 212 Va. at 667-68, 187 S.E.2d at 177-78. The Court reversed Huvar's conviction for constructive possession of a narcotic. Although it may have been a "pot party," no evidence in the record proved that Huvar "owned, possessed or exercised any control over these specific drugs." Id. at 668, 187 S.E.2d at 178.
As in Wright, Fogg, and Huvar, the evidence in this case is based upon speculation and conjecture. The majority concludes that the jury could have inferred from Ames's statement, "I ain't selling him shit," that Ames "was willing to sell a product to someone other than [the officer]." This statement, however, neither admits that he had cocaine nor does it even establish that Ames was referring to cocaine in particular. It is just as reasonable that Ames was emphatically relating that he had nothing to sell and, even if he did, that he would not sell to the officer. At best, the statement is a vague and ambiguous remark with several reasonable explanations.
Ames's statements concerning the house also raise a question of ambiguity. The evidence proved it was not his house. Furthermore, the evidence did not show that Ames "controlled who came into and left the house." It merely showed that Ames was angry and did not want the officer in the house. No evidence proved that Ames admitted or sought to bar any other person. "Where an inference supporting guilt is no more likely to arise from a proven fact than one favoring innocence, the inference of guilt is impermissible." Morton v. Commonwealth, 13 Va. App. 6, 11, 408 S.E.2d 583, 586 (1991).
Moreover, even if it is commonly known that guns are used in the drug trade, "[i]t does not follow, however, that because police officers know that drug dealers frequently own guns . . . [Ames] was a drug dealer and, therefore, he knowingly possessed the [cocaine] found in [the house]." Burchette v. Commonwealth, 15 Va. App. 432, 437, 425 S.E.2d 81, 85 (1992). Because the evidence failed to prove beyond a reasonable doubt that Ames was aware of the presence of the cocaine, I would reverse the conviction.