Deon Andre Richardson v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
DEON ANDRE RICHARDSON
MEMORANDUM OPINION *
v. Record No. 0942-95-1 BY JUDGE JOSEPH E. BAKER
APRIL 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
J. Warren Stephens, Judge Designate
James S. Ellenson for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Deon Andre Richardson (appellant) appeals his bench trial
conviction by the Circuit Court of the City of Newport News
(trial court) for possession of cocaine in violation of Code
§ 18.2-250. The sole issue presented by this appeal is whether
the evidence is sufficient to support appellant's conviction.
In passing upon the sufficiency of the evidence, we view the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d
711, 713 (1982). Guided by that principle, the record discloses
that on October 12, 1994, at approximately 11:00 p.m., appellant
was riding as a front-seat passenger in a vehicle which was
stopped for a minor traffic violation by Newport News Police
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Officer Christopher Wells (Wells). Two additional passengers
were seated in the rear seat of the car.
Wells obtained the driver's license and vehicle registration
and asked the driver to exit the vehicle. The driver complied
and Wells radioed for assistance. While talking to the driver
outside of the vehicle, Wells noticed a lot of movement by
appellant and a rear seat passenger and that appellant looked
back at him a couple of times.
Officer Michael Horton (Horton) and another officer arrived
in response to Wells' request for assistance. Horton and the
other officer went to the vehicle and asked the passengers to
step out. Horton stated that appellant kept "looking down and
around by the seat" and, because of this, he asked appellant
"[w]hat are you looking for." Appellant did not respond. After
appellant exited the car, Horton saw "off-white rocks" along the
doorjamb where appellant had been looking. Additionally, Horton
saw an off-white substance "smeared in the seat which would have
been between [appellant's] legs where he was sitting," and "a
couple of pebbles . . . between the seat and where [appellant's]
legs would have been." Later, Horton also observed "some white
substance crushed into the jeans of [appellant's] pants" which
appeared to be the "same color and consistency" of what he had
located in the vehicle.
After securing the passengers, Horton returned to the car to
collect evidence for forensic analysis. In doing so, he combined
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the "off-white rocks" found along the doorjamb and the "little
pebbles" from appellant's seat in one container. Later he
collected some of the white substance which was on appellant's
pants and kept that separate from the samples taken from the car.
Forensic analysis of the evidence revealed that at least one
of the substances in the container holding the off-white rocks
from the doorjamb and the little pebbles from appellant's
passenger seat tested positive for cocaine. No controlled
substance was found in the off-white substance removed from
appellant's pants.
Possession of a controlled substance may be actual or
constructive. 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." 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)).
Due to the collection techniques utilized in this case, it
is unclear what, in fact, tested positive for cocaine; it may
have been the off-white rocks from along the doorjamb, the little
pebbles from appellant's seat, or both. While at least one of
the two substances tested positive, because the two were combined
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and tested together we have no way of knowing if both were, in
fact, cocaine. See Reedy v. Commonwealth, 9 Va. App. 386, 387,
388 S.E.2d 650, 650-51 (1990) (The Commonwealth must show that
evidence was not contaminated in any way that would affect the
results of its analysis). We do know that the substance on
appellant's pants did not test positive for cocaine, and that
Horton testified that the substance on appellant's pants was
similar in appearance to the other substances collected from the
car. A reasonable hypothesis flowing from the evidence is that
the little pebbles found resting between appellant's legs and the
substance on appellant's pants were, indeed, the same substance.
In fact, the Commonwealth, believing that the substance on
appellant's pants had tested positive for cocaine, urged that
hypothesis on this Court.
Given our inability to determine which substances tested
positive for cocaine, we cannot say that the evidence proves
beyond a reasonable doubt that appellant "was aware of both the
presence and character of the substance and that it was subject
to his dominion and control." McGee, 4 Va. App. at 322, 357
S.E.2d at 740. Accordingly, the judgment of the trial court is
reversed and the charge against appellant is dismissed.
Reversed and dismissed.
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