Gayle Franklin Combs v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
GAYLE FRANKLIN COMBS
v. Record No. 1499-94-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
F. Ward Harkrader, Jr., Judge
John W. Luxton (Morchower, Luxton & Whaley,
on brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Appellant, Gayle Franklin Combs, appeals his conviction for
possession of marijuana in violation of Code § 18.2-250.1 on the
ground that the evidence is insufficient to sustain the
conviction. For the reasons stated below, we reverse.
On February 20, 1994, Deputy T.P. Collins of Goochland
County observed an automobile traveling on Route 6 and followed
it for several miles. As Collins followed, he noticed that the
vehicle weaved several times and exceeded the speed limit. Prior
to activating his emergency equipment, Collins noticed a burning
"cigarette type object" thrown from the vehicle's passenger
window. Collins stopped the vehicle, which was owned and driven
by Mr. Stafford. When Stafford lowered the driver's side window,
Collins could smell the strong odor of marijuana and alcohol. As
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Stafford performed sobriety tests, per Collins' instructions,
Combs sat in the front passenger seat. Later, Combs was directed
to exit the vehicle, and Stafford consented to the vehicle's
search. Approximately 3.7 grams of marijuana were found hidden
between the passenger door and passenger seat, where Combs had
been seated. Combs had no marijuana or contraband on his person,
and Collins could not recall if he found any cigarettes on Combs.
In a de novo appeal from the general district court, Combs was
tried without a jury and convicted of possession of marijuana.
To support a conviction based on constructive possession,
"the Commonwealth must point to evidence of acts, statements, or
conduct of the accused or other facts and 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." Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 740 (1984). "A conviction based on
circumstantial evidence may be sustained only if the evidence,
when taken as a whole, excludes every reasonable hypothesis of
innocence." Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448
S.E.2d 663, 664 (1994) (citation omitted).
Where the sufficiency of the evidence is challenged on
appeal, the Court must consider the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
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"judgment of a trial court sitting without a jury is entitled to
the same weight as a jury verdict and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Hambury v. Commonwealth, 3 Va. App. 435, 437, 350 S.E.2d 524, 524
(1986).
In this case, the evidence was insufficient to prove beyond
a reasonable doubt that Combs was aware of the presence and
character of the marijuana in Stafford's vehicle. As the Court
has stated, "[s]uspicious 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). The marijuana was concealed between the passenger door
and passenger seat, and the facts indicate that it was "hidden"
from view. While Combs' proximity to the marijuana and his
occupancy of the vehicle are factors to be considered, Josephs v.
Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990),
"no evidence or rule of law compels a finding that a person who
shares an automobile with another necessarily knows that the
other person has contraband or also shares possession of
contraband that the other person has in the automobile." Scruggs
v. Commonwealth, 19 Va. App. 58, 62, 448 S.E.2d 663, 665 (1994);
see Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863,
864 (1994) (occupant of automobile not presumed to be aware of
presence and character of small pieces of cocaine on tray between
occupant and driver).
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The evidence in the record proves Combs' proximity to the
marijuana, but nothing more. There were no acts, statements, or
other conduct establishing that he was aware of the presence of
the marijuana. Officer Collins could not state with any
certainty that a marijuana "joint," as opposed to a cigarette,
was thrown from the passenger window. It is not unreasonable to
hypothesize that Combs had thrown a cigarette from the window, or
that marijuana had been smoked in the vehicle before he became a
passenger. In short, the Commonwealth could not exclude every
reasonable hypothesis of innocence flowing from the evidence.
See Hamilton v. Commonwealth, 16 Va. App. 751, 433 S.E.2d 27(1993). "A conviction resting on circumstances which cast 'a
suspicion of guilt, however strong, or even a probability of
guilt is insufficient to support a criminal conviction.'"
Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898
(1985) (quotation omitted).
The appellant's conviction is reversed.
Reversed.
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