Terry Deshawn Jackson v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
TERRY DESHAWN JACKSON
MEMORANDUM OPINION * BY
v. Record No. 0684-00-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge
Glenn R. Hilton for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Terry D. Jackson (appellant) was convicted in a bench trial
of (1) possession of cocaine, with intent to distribute, in
violation of Code § 18.2-248, (2) possession of a firearm, while
possessing, with intent to distribute, cocaine, in violation of
Code § 18.2-308.4(B); and (3) possession, with intent to
distribute, of more than one-half ounce but less than five pounds
of marijuana, in violation of Code § 18.2-248(a)(2). On appeal,
he contends the evidence was insufficient to convict him. We
agree and reverse and remand for further proceedings his
convictions for possession of cocaine and marijuana with the
intent to distribute. We reverse and dismiss his conviction for
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
possession of a firearm while possessing, with intent to
distribute, cocaine.
I. Background
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to that evidence all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
On May 13, 1999, the Norfolk Police Department executed a search
warrant at 3126 Argonne Avenue, Apartment B, in Norfolk. The
warrant was obtained on the sworn affidavit of Investigator J.F.
Poch, who did not testify. The affidavit asserted that three
controlled buys were made at the apartment and described two men
involved in the sales, neither of whom was appellant. One of the
men described in the affidavit was later identified as Gary Hill
(Hill). The other man was not identified. After the search
warrant was issued but before its execution, the confidential
informant conducted a fourth controlled buy. The fourth buy
occurred two to three hours before the warrant was executed. The
confidential informant described the seller to police as
"[a]pproximately five nine, 160 pounds, light-skinned, medium
Afro, . . . wearing a light-colored shirt, in his early 20's."
The confidential informant did not testify at trial.
When Officer R.C. Boone (Boone) executed the warrant, he
found appellant and Hill sitting on a couch. Five small bags of
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cocaine, weighing a total of .48 grams with a street value of $50,
were on a coffee table in front of the couch and two bags of
marijuana, containing a total of 2.64 ounces of marijuana, were on
the coffee table. A 1.34 ounce bag of marijuana was on the couch
next to appellant. A digital scale in a leather case was found on
the coffee table. Boone saw a handgun on the couch between
appellant and Hill.
A search of the rest of the apartment uncovered 4.48 ounces
of marijuana in the hallway closet and .08 ounces of marijuana in
the kitchen cabinet. Appellant admitted he was aware of the
marijuana on the coffee table and couch and the handgun on the
couch. However, other than appellant's presence in the apartment
at the time the officers executed the search warrant, there was no
evidence linking appellant to the apartment. 1
II. Sufficiency of the Evidence
Appellant contends that the evidence was insufficient to
convict him of the three charges. The judgment of the trial
court, sitting without a jury, is entitled to the same deference
as a jury verdict and will be set aside only if plainly wrong or
without evidence to support it. Crawley v. Commonwealth, 29 Va.
App. 372, 375, 512 S.E.2d 169, 170 (1999). "The credibility of a
witness, the weight accorded the testimony, and the inferences to
1
According to appellant's uncontradicted testimony, he had
not seen Hill in over five years and was in the apartment for only
thirty minutes before the search warrant was executed.
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be drawn from proven facts are matters solely for the fact
finder's determination." Id. (citation omitted).
In the instant case, appellant was tried on an indictment
alleging that he possessed cocaine, marijuana and a firearm with
the "intent to distribute" the cocaine and marijuana. "The
Commonwealth was required to prove that appellant 'intentionally
and consciously possessed' the [marijuana, cocaine and firearm],
either actually or constructively, with knowledge of its nature
and character, together with the intent to distribute it."
Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 444
(1994) (citations omitted).
A. Constructive Possession
Appellant contends that the evidence was insufficient to
prove he possessed the marijuana, cocaine and firearm. Possession
can be actual or constructive. See id. "Constructive possession
may be shown by [appellant's] acts, declarations or conduct which
support the inference that the contraband was 'subject to his
dominion or control.'" Id. (quoting Josephs v. Commonwealth, 10
Va. App. 87, 99, 390 S.E.2d 491, 497-98 (1990) (en banc)). Thus,
the Commonwealth must establish that appellant "was aware of both
the presence and character of the substance and that it was
subject to his dominion and control." Brown v. Commonwealth, 5
Va. App. 489, 491-92, 364 S.E.2d 773, 774 (1988). "[A] person may
constructively possess drugs owned by another." Harrison v.
Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854, 857 (1991).
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In the instant case, appellant testified that he knew what
marijuana, cocaine and a gun look like. He admitted he sat on the
couch with a handgun between himself and Hill. He saw the drugs 2
on a coffee table 3 located directly in front of the couch and the
marijuana on the side of the couch near him. Appellant noticed
the marijuana and gun as soon as he entered the living room.
While talking, Hill asked appellant if he wanted to "smoke a
blunt," but appellant refused. The drugs and handgun were located
within the immediate vicinity of appellant. At one point, Hill
went to the door and talked to someone else, leaving appellant
alone with the drugs and handgun. In combination, these
circumstances establish appellant's knowledge of the drugs and
firearm and that they were subject to appellant's dominion and
control. Thus, the Commonwealth established that appellant
constructively possessed the drugs and firearm. However, our
inquiry does not end there.
B. Intent to Distribute
All three of the charged offenses required the Commonwealth
to prove not only possession but also to prove beyond a reasonable
doubt that appellant had the specific intent to distribute the
2
On appeal, appellant claims he was only aware of the
marijuana, however, the record indicates he testified that "the
drugs were in front of" him.
3
Drugs were also found elsewhere in the apartment.
However, the Commonwealth presented no evidence that appellant
had knowledge of the other drugs.
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drugs. 4 "[P]roof of intent is essential to conviction. While
intent may be shown by circumstantial evidence, the existence of
intent cannot be based upon speculation or surmise." Adkins v.
Commonwealth, 217 Va. 437, 440, 229 S.E.2d 869, 871 (1976). Where
evidence of intent to distribute is wholly circumstantial, "'all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Barksdale v. Commonwealth, 31 Va. App.
205, 211, 522 S.E.2d 388, 391 (1999) (quoting Dukes v.
Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)); see
also Morton v. Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d 583, 584
(1991).
To prove appellant's "intent to distribute," the Commonwealth
presented evidence attempting to establish that appellant was the
seller in the fourth buy which occurred several hours before the
execution of the search warrant. "The standard for judging the
sufficiency of evidence to prove identity or any other key fact in
a criminal case is . . . the Commonwealth must prove that fact
beyond a reasonable doubt." Crawley, 29 Va. App. at 377-78, 512
S.E.2d at 172 (emphasis in original). In the instant case, the
4
The Commonwealth argues that Rule 5A:18 bars this Court
from considering the "intent to distribute" element of the
crimes because appellant "conceded that whoever possessed the
drugs had intended to distribute them." We disagree. Appellant
argued in his motion to strike that even though other persons
clearly possessed the intent to distribute the drugs, appellant
did not.
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confidential informant described the seller in the fourth buy as
"[a]pproximately five nine, 160 pounds, light-skinned, medium
Afro, . . . wearing a light-colored shirt, in his early 20's."
The confidential informant was the only person who observed the
seller during the fourth sale. There was no evidence presented
that the confidential informant identified appellant as being the
seller. The following colloquy with Investigator Boone occurred
during the trial:
Q. I thought. Investigator, earlier, when I
asked you whether Mr. Jackson had been
identified as the person described by the
confidential informant, you said, in essence,
that Investigator Poch would have to address
that question?
A. Right. He said to me, he didn't say to
the informant. He said, Did I identify him
from the description, and yes, I mean, from
the description, to me that fit him, yes. I
identified him as such. He didn't say
anything about the informant identifying him.
I'm not sure about the informant identifying
him.
Q. I'd asked you earlier whether the
informant had subsequently identified Mr.
Jackson by name. You said, by just a general
physical description. And you said, well, I
really can't address that. Officer Poch
would have to do it. And now you've just
said, you identified Mr. Jackson as being the
person who allegedly made the sale to the
confidential informant. I'm wondering how
we're getting to that point? I'm a little
confused.
A. Okay, so am I. Basically when you asked
me that question, I told you that he
identified him by description is what I said.
And what he just asked me was, based upon the
information that the informant gave to us,
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did I identify him as being that subject? To
me, that information obtained, matches the
subject. That has nothing to do with the
informant, as far as what I understood. If
that's what it was, then I misunderstood the
question.
Q. That's what I wanted to make sure of. In
other words, Mr. Jackson seemed to match the
general physical description given by the
confidential informant. So you're assuming
that Mr. Jackson was, in fact, the person who
tried to sell grass to the confidential
informant?
A. That's correct.
Despite testifying that appellant matched the description provided
by the confidential informant, Boone testified:
Q. Did he have the appearance that he has
today with the snakes or the dreads?
A. No.
Q. He did not?
A. Not to that extent, but he did have the
medium dreads.
Thus, Boone confirmed appellant's testimony that appellant had
"medium dreads" at the time of arrest not the "medium afro"
observed by the confidential informant. The general description
of the seller, never identified by anyone as appellant, is
insufficient to prove his involvement in the fourth sale. Nor is
this a case where the Commonwealth may rely upon the quantity and
packaging of the drugs to establish appellant's "intent to
distribute" because "one party in possession of controlled
substances may intend to distribute them while another person who
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constructively possesses the same substances because they are
subject to his dominion and control may not share the intent to
distribute the substances." Harrison, 12 Va. App. at 585, 405
S.E.2d at 857. As appellant was not the sole possessor of the
drugs, the Commonwealth must provide further evidence of "intent
to distribute" than simply the quantity and packaging of the
drugs. Absent proof of appellant's involvement in the fourth
sale, the Commonwealth provided no evidence that linked appellant
to any earlier sale or proved that he "intended to sell" any
drugs.
In summary, we hold the evidence was insufficient to sustain
appellant's conviction for possession of a firearm while
possessing, with the intent to distribute, cocaine and dismiss
this conviction. We hold the evidence was insufficient to sustain
appellant's convictions for possession of cocaine, with intent to
distribute, and possession of marijuana, with intent to
distribute, but remand to the trial court for sentencing on the
two lesser-included offenses of possession of cocaine and
marijuana.
Reversed and remanded,
in part, and reversed
and dismissed, in part.
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Benton, J., concurring and dissenting.
I concur in Part I and Part II(B) of the opinion. Because
I believe, however, that the evidence failed to prove Terry
Jackson constructively possessed the narcotics and the gun, I
dissent from Part II(A).
I.
The standard governing the analysis of this circumstantial
evidence case is well established.
The burden was on the Commonwealth to
prove beyond a reasonable doubt that
[Jackson] was aware of the presence and
character of the [narcotics] and was
intentionally and consciously in physical or
constructive possession of [them]. To
support the conviction, the possession does
not have to be actual or exclusive, but may
be proved by showing that the [narcotics
were] subject to [Jackson's] dominion and
control. But mere proximity to a controlled
drug is not sufficient to establish
possession.
Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734
(1977) (citations omitted) (emphasis added). The existence of
evidence necessary to prove elements of the offense "cannot be
based upon surmise or speculation." Patterson v. Commonwealth,
215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). "To satisfy the
due process requirements of the . . . Constitution, the
prosecution must bear the burden of proving all elements of the
offense beyond a reasonable doubt." Stokes v. Warden, 226 Va.
111, 117, 306 S.E.2d 882, 885 (1983).
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The evidence proved that the apartment was leased and
occupied by Gary Hill, who was present in the apartment at all
times. The evidence proved marijuana and cocaine were on the
table in front of Hill and marijuana was hidden in other places
in Hill's apartment. The police officer testified that he did
not know how long the cocaine and marijuana had been on the
table and that he detected no smell indicating that marijuana or
cocaine had been smoked. He further testified that the
marijuana and cocaine "weren't laying open as if someone had
been . . . using it."
As in Wright, the evidence in this case proved only that
Jackson was seated in proximity to the gun and the cocaine and
marijuana. No evidence proved he exerted dominion or control
over any of those items. Indeed, as in Wright, Jackson "did not
live in the apartment, no [cocaine] was found in his actual
possession, and there is no evidence that the [cocaine] was
shared with [the lessee] or that it was under [Jackson's]
dominion or control." 217 Va. at 670, 232 S.E.2d at 734. The
decisions in Wright, Huvar v. Commonwealth, 212 Va. 667, 187
S.E.2d 177 (1972), and Crisman v. Commonwealth, 197 Va. 17, 87
S.E.2d 796 (1955), all stand for the proposition that an
accused's mere proximity to persons who possess drugs or to
places where drugs are found is insufficient to establish
constructive possession. As in those cases, the evidence here
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also fails to establish that Jackson owned, controlled, or used
any of the cocaine or marijuana found in Hill's apartment.
Apropos to this case, the Court ruled in Huvar as follows:
The only evidence which connects the
[accused] with the drugs involved here is
his presence in the apartment when they were
found . . . . There is no evidence that
[the accused] owned, possessed or exercised
any control over these specific drugs.
212 Va. at 668, 187 S.E.2d at 178. No evidence of acts,
declarations, or conduct proved Jackson had dominion or control
over the marijuana or cocaine that was in Hill's apartment.
Proof that Jackson remained in the living room while Hill
answered a knock on the door fails to prove Jackson
intentionally and consciously possessed Hill's narcotics. This
evidence proves only that Jackson may have had the opportunity
to exercise control over the items.
"'[C]ircumstances of suspicion, no matter how grave or
strong, are not proof . . . sufficient to support a verdict of
guilty.'" Crisman, 197 Va. at 21, 87 S.E.2d at 799 (citation
omitted); see also Stover v. Commonwealth, 222 Va. 618, 624, 283
S.E.2d 194, 197 (1981).
It is well settled in Virginia that to
justify conviction of a crime, it is not
sufficient to create a suspicion or
probability of guilt, but the evidence must
establish the guilt of an accused beyond a
reasonable doubt. It must exclude every
reasonable hypothesis except that of guilt.
The guilt of a party is not to be inferred
because the facts are consistent with his
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guilt, but they must be inconsistent with
his innocence.
Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275,
276 (1970).
The evidence in this record proves only Jackson's mere
proximity to the cocaine, the marijuana, and the gun. This
evidence creates a mere suspicion that he could have had control
and, thus, it was insufficient to prove constructive possession
beyond a reasonable doubt. As does the majority opinion, I
would reverse the convictions of possession with intent to
distribute the marijuana and the cocaine and the corresponding
conviction for possessing a firearm. In addition, however, I
would also hold that the evidence failed to prove constructive
possession necessary to support the lesser-included offenses.
Accordingly, I would reverse all the convictions and dismiss the
indictments.
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