Tobias Norrell, s/k/a, etc v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
TOBIAS NORRELL, S/K/A
TOBIAS L. NORRELL
MEMORANDUM OPINION * BY
v. Record No. 0978-02-2 JUDGE LARRY G. ELDER
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge Designate
John W. Luxton (Morchower, Luxton & Whaley,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Linwood T. Wells, Jr., Assistant Attorney
General, on brief), for appellee.
Tobias Norrell (appellant) appeals from his bench trial
conviction for possession of cocaine with intent to distribute.
On appeal, he contends the evidence was insufficient to prove
his constructive possession of cocaine found inside a safe. We
hold the circumstantial evidence was sufficient to prove his
constructive possession, and we affirm.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to the evidence all reasonable inferences fairly
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). Circumstantial evidence is
sufficient to support a conviction provided it excludes every
reasonable hypothesis of innocence flowing from the evidence.
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993).
The possession necessary to support a conviction for the
possession of cocaine may be actual or constructive. See, e.g.,
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368
(en banc). Establishing constructive possession requires proof
"that the defendant was aware of both the presence and character
of the [item] 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 person's ownership or occupancy of premises
on which the subject item is found, proximity to the item, and
statements or conduct concerning the location of the item are
probative factors to be considered in determining whether the
totality of the circumstances supports a finding of possession.
Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826,
831-32 (1997). Possession "need not always be exclusive. The
defendant may share it with one or more." Josephs v.
Commonwealth, 10 Va. App. 87, 89, 390 S.E.2d 491, 497 (1990) (en
banc).
Here, although Officer Kenneth Cornett said appellant
entered the apartment through a window after trying to make sure
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no one was watching, appellant said he had a key to the
apartment and denied entering through the window. When asked if
he lived there, appellant responded, "I stay here, it's my
brother's house." When asked for identification, appellant
said, "[I]t's back here," and walked immediately toward the rear
of the residence. Appellant later went directly to one of the
apartment's two bedrooms where he examined the pockets of three
articles of clothing located on the floor and the bed of that
room. Although appellant said he could not locate his
identification, police subsequently found appellant's current
Virginia identification card in a tennis shoe in the closet of
that room. Also in the room were appellant's J. Sargeant
Reynolds picture student i.d. and two photographs of appellant.
This evidence, including appellant's statements that he
"stay[ed]" in the apartment and had a key, supported the
inference that appellant occupied the bedroom in which the above
items were found.
Other evidence linked appellant to the contents of the safe
found beneath the bed in that room, despite the fact that a key
to the safe was not found in his possession. When police opened
the safe, they found a contract for a cellular telephone bearing
the signature of Tobias Norrell as the guarantor and dated
October 1, 2001, only two days prior the officers' search of the
apartment. By comparing the signature on the cellular telephone
contract with the signatures on appellant's Virginia and J.
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Sargeant Reynolds identification cards, both of which contained
appellant's photograph, the finder of fact could conclude that
appellant was the person who had signed the cell phone contract.
See Wileman v. Commonwealth, 24 Va. App. 642, 647, 484 S.E.2d
621, 623-24 (1997) (noting that fact finder may conduct
"side-by-side comparison of genuine samples and alleged samples"
to determine whether handwriting is that of a particular
person).
Also in the safe was a box for a cellular telephone. At
the time of appellant's arrest, he had in his possession a
cellular telephone that matched the picture on the box. Thus,
the only reasonable hypothesis flowing from the evidence is that
appellant had access to the safe and constructively possessed
the quantity of cocaine also found in the safe, either jointly
or exclusively. See Birdsong v. Commonwealth, 37 Va. App. 603,
607-10, 560 S.E.2d 468, 470-72 (2002) (holding evidence need not
establish defendant knew combination to safe containing cocaine
where direct evidence linked him to other evidence in safe and
circumstantial evidence established his constructive possession
of drugs). The fact that an identification card for Eric
Pretty, the person who rented the apartment, was found beneath
the safe and that Pretty may also have had possession of the
cellular telephone matching the box in the safe on the day of
the search does not require a different result.
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For these reasons, we hold the circumstantial evidence
proved appellant constructively possessed the cocaine found in
the safe. Thus, we affirm his conviction for possession of
cocaine with intent to distribute.
Affirmed.
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